The Office for Student’s push to address the unfair treatment of students

As financial pressures continue to affect the higher education sector, the Office for Students (OfS), the regulator for higher education in England, considers that it is more important than ever that the interests of students are placed at the centre of its work.

The OfS issued a consultation on a new initial condition of registration C5, to address the perceived unfair treatment of students. The new condition would replace other current entry requirements. The changes will potentially take effect before the start of the next academic year.

The overarching requirement of proposed initial condition C5 is that a provider must treat each student fairly in relation to any activities that are connected with the provision of higher education and/or ancillary services. If introduced, all higher education providers seeking registration with the OfS, and all registered providers seeking to change the category in which they are registered, would need to meet condition C5 for their registration application to be approved.

This is against a background where the OfS, in determining applications for registration, regularly sees unclear or misleading information published on providers’ websites, contract terms that unfairly favour the rights of the provider over the students, and complaints processes and refund and compensation policies, which limit students’ ability to seek redress. The thinking behind proposed initial condition C5 is that it will ensure that only those organisations which provide students with clear, accurate and timely information; use fair terms and conditions; and have fair mechanisms for dealing with complaints, refunds and compensation are registered. 

The proposals in detail

The OfS has sought views on the following nine proposals, which the OfS says will strengthen the regulatory requirements it imposes on providers seeking registration:

1. To replace existing initial condition C1, which relates to consumer protection law, on the basis that the current requirement to have ‘due regard to relevant guidance about how to comply with consumer protection law’ does not adequately ensure that provider policies, contracts, terms and conditions are fair to students. Instead, the OfS would require providers to submit relevant policies and terms and conditions to assess whether there is evidence of unfair behaviour.
2. To focus on fairness for students, in that that the overarching requirement in relation to consumer and student protection would be to treat each student fairly. The concept of ‘fairness’ would ‘go beyond the existing legal provisions.’ Proposed initial condition C5 is informed by legal concepts but is not limited to matters that may be strictly unlawful.
3. To set out explicit criteria for assessing whether a provider treats students fairly, based on evidence of behaviours that constitute unfair treatment of students (or their absence, where applicable).
4. To define unfair treatment by reference to factors informed by, but separate to, the protections afforded by consumer protection legislation, including whether any of the provider’s acts or omissions fall within the OfS definition of ‘prohibited behaviour,’ or give rise to actual or likely detriment to the student; and whether the provider has been the subject of an adverse finding of non-compliance with consumer protection law, or wrongdoing under Section 214(1) of the Education Reform Act 1988 (relating to unrecognised degrees) or ss. 76(6) and 1198 of the Companies Act 2006 (relating to use of the term ‘university’), unless it can demonstrate it has addressed the issues to the OfS’s satisfaction.
5. To include within the scope of initial condition C5 prospective students, former students, and students who are studying as part of their employment and regardless of fee arrangements. The aim is to protect all individuals undertaking a course of study, including those who may not fall within the relevant definition of ‘consumer’ for the purpose of consumer law. The OfS also intends to: define the ‘provision of higher education’ broadly; define ‘ancillary services’ as services where a contract exists between a provider and a student as part of their higher education experience; define ‘information for students’ broadly to capture any information a student might rely on; and apply the OfS’s existing approach to regulating providers in partnership arrangements, by applying initial condition C5 to all providers seeking registration regardless of whether it registers (or will register) any students.
6. To require providers to submit student-facing documents for the OfS to assess. The OfS will make a judgment about whether they contain problematic or concerning provisions. This is likely to include: template contracts for the provision of higher education; documents and agreements relating to services and facilities likely to be most important to students (such as library services, disability support packages, scholarships, accommodation and sports facilities); and policies and procedures (such as those setting out the circumstances in which the provider may make changes to courses, complaints processes and refund policies).
7. To replace existing initial condition C3. This would mean that providers would no longer be required to submit a student protection plan. This is on the basis that the suite of student-facing documents referred to above, together with ongoing condition C4 (which covers risks around provider closure), cover the relevant issues.
8. To require providers to publish the student-facing documents expressly labelled as the student protection plan in an easily accessible place on its website, which in the OfS’s view would provide transparency and assist students in holding their provider to account where services are not delivered as promised.
9. To disapply ongoing condition C3, which requires the ongoing publication of a condition C3 student protection plan, in relation to providers that have been registered on the basis of initial condition C5 (but not to providers registered under existing initial condition C3). The OfS envisages that having different requirements for different providers would be an interim position, and that proposals to achieve alignment of ongoing requirements for all registered providers would form part of a future consultation.

Prohibited behaviours 

The consultation document explains that the reason for proposing to introduce an ‘OfS prohibited behaviours list’ is to seek to address behaviours that the OfS has observed in its capacity as regulator which are detrimental to students. In the OfS’s view, regulation has the potential to provide an additional layer of protection for students, beyond expecting providers to comply with the law. A provider may therefore satisfy its legal obligations but not the OfS’s proposed initial regulatory requirements. The OfS is also proposing to consider documents beyond those that may ordinarily have contractual effect, because the OfS says in practice students may rely on a wider range of documents.

 The OfS are proposing to look at: 

• The way in which providers communicate information, and offer courses, services and facilities, in particular where information is inaccurate or false, fails to clearly disclose or explain certain matters and/or is likely to mislead, whether providers provide students with sufficient opportunity or time to make an informed choice, or make persistent and unwanted contact.
• The clarity and legibility of key documents and other information for students.
• Policies relating to the circumstances in which it may make changes to its courses, in particular where there is a lack of information and lack of provisions that would ensure fair treatment in practice.
• The contents of the provider’s complaints processes.
• The clarity of the provider’s refund and compensation policies.
• Issues around publishing fake reviews, publishing reviews in a misleading way and failing to take steps to prevent or remove fake reviews. 

Detriment

The proposed starting position of the OfS will be that a provider may not be treating students fairly where their acts or omissions are to the detriment of students. However, this will be considered on a case-by-case basis, taking into consideration reasonable mitigating circumstances. An act or omission is likely to be considered ‘reasonable in all the circumstances’ (and therefore not unfair treatment within the meaning of initial condition C5) where the OfS considers it is reasonably arguable that the action is/was necessary in the circumstances; that these circumstances are/were outside the provider’s control; and that the provider is doing/has done everything possible to limit the extent of the detriment. 

Adverse findings 

The OfS considers that, because of the serious nature of adverse findings (eg, by a court), it is appropriate to place more weight on this evidence and is therefore proposing a starting presumption (which is capable of being overturned) that if a provider has been subject to an adverse finding this indicates the provider does not treat students fairly. The OfS will consider evidence submitted by the provider when determining whether the presumption is overturned. In particular, looking at how recent the findings are, whether they relate to repeated or sustained matters and whether they include a view about whether the action or inaction was deliberate, as well as how the provider has engaged with the issue since and steps the provider has taken to address the issue and ensure it does not happen again.

Undertakings and applications for enforcement orders

Initial condition C5 would require a provider that has given an undertaking to comply with consumer protection law, or that has had an application for an enforcement order made against it in relation to carrying out activities contrary to consumer protection law, to make a formal declaration. The OfS is proposing to take this into account as a factor to be considered alongside other evidence, without any presumption based on this evidence that a provider does not treat students fairly.

Removal of concerning terms or information from documents

The OfS considers that if there are terms or information of concern to the OfS in any of the provider’s documents, understanding the concern is the first step to improving practices and ensuring fair approaches are applied in future. The OfS is therefore proposing a starting presumption that mere removal of the concerning terms or information would not be sufficient for the OfS to conclude that the provider treats students fairly; it would be for the provider to submit evidence that it has also considered and addressed any underlying issues that led to the unfair term being included.

Next steps

The OfS has sought views on the proposals, including how clear the requirements of the proposed condition and the accompanying guidance are, any foreseen unintended consequences, aspects of the proposals which are unclear, whether the relevant policy objectives could be delivered more efficiently or effectively and the potential impact of the proposals on individuals based on their protected characteristics. 

The impact of proposed changes will be felt most immediately by providers that have already submitted registration applications which have been paused in the early stages of assessment, and providers planning to apply once the OfS begins accepting new applications, as the student-facing documents these providers will be required to submit will often be tailored to meet regulatory requirements. It is also important to note that students at providers registered after proposed initial condition C5 comes into effect stand to benefit from strengthened protections, as the OfS will assess the provider’s student-facing documents according to an OfS definition of fairness (that goes beyond the legislative framework and is based on its experience as a regulator). There is currently no timeline for the OfS to roll out the new regulatory requirements beyond applicants seeking to register or change registration category; providers that are already on the register will remain subject to the existing conditions. It remains to be seen whether C5 will become an ongoing condition of registration, although in its consultation the OfS says it would likely take regulatory action if it identifies concerns that after registration a provider weakens the protection afforded to students.

Subject to the outcome, the OfS is proposing to publish its decisions about whether to adopt the proposals in August 2025, when the OfS lifts its current ‘pause’ on new applications for registration, and to implement the majority of the proposals at the same time.