New Office for Students Consultation: Condition C6: “Treating Students Fairly”

What is the new consultation about?

The Office for Students (OfS) has announced a new consultation over a new ongoing condition of registration for institutions which it says is necessary to ensure they treat students fairly.

The details of the consultation can be found here. The consultation will close on 9 July 2026, and the OfS is expecting to publish its final decisions in autumn 2026.

As a firm which works closely with many parts of the higher education sector Shakespeare Martineau believes it is important that as many institutions and sector bodies respond as possible to the consultation to ensure that the issues and concerns with the proposals are fully aired and considered by the OfS. We are providing this note, which builds on our earlier summary of the issues, to help everyone with their responses to this consultation.

In this note we summarise the contents of the consultation, set out some of the arguments in favour and against aspects of the proposed new condition along with some of the other issues which respondents may wish to comment on. We have not attempted to answer all of the consultation questions, only those which believe are most important.

The proposed condition

The proposed condition – “Treating students fairly” – which would become condition C6, would replace two existing conditions: Guidance on consumer protection law (C1) and Student protection plan (C3). The new condition is also intended to establish:

• principles and requirements that are consistent with treating students fairly.
• that all students, higher education and ancillary services are in scope of the condition.
• positive requirements related to the OfS information requirements list
• negative requirements related to the OfS prohibited behaviours list
• negative requirements related to aggressive commercial practices
• a greater focus on governance and leadership responsibilities in relation to fair treatment of students
• a shift from redress to pro-active prevention of harm.

As part of the new condition, every registered institution would be required to publish, on its website (on a single web page), a set of key documents for students. These are expected to be clear and accessible to students and cover student protection arrangements such as student contracts, policies related to course changes, information on complaints, refunds and compensation together with agent information.

While there are some elements of the proposals which are positive, we do have a range of substantive concerns about the new condition.

Response to the consultation questions

We set out below responses to specific questions, some of which have been combined.

Proposal 1 – Introduce a new ongoing condition requiring fair treatment of students

1. Do you support the proposal?

Strongly oppose

Proposal 2 – Establish principles and requirements that are consistent with treating students fairly

2. Do you support the proposal?

Strongly oppose

3. To what extent do you support our proposal to establish a combination of principles and requirements that would be consistent with treating students fairly?

Strongly oppose

4. What are your views on the proposed principles, including any reflections on the individual principles? If there are any other principles you think are important, please include these here.

Our principal concern is that the OfS is explicitly seeking to establish regulatory requirements that go beyond the law, which will leave providers unclear as to the specific tests the OfS will apply in assessing fairness.

The legal test for unfairness in a consumer context is any term which, contrary to the requirement of good faith, causes a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumer.

There are a number of safeguards here which the OfS is proposing to remove:

1. The condition does not limit its application to cases where the provider has not acted in good faith;
2. It is not limited to significant imbalances in rights and obligations, but any changes;
3. It is not limited to contract terms but to any commitments;
4. It is not limited to the parties’ rights and obligations, but extends to other services provided by third parties;
5. There appears to be no need for any detriment to any individual, but rather a more abstract conceptual unfairness.

In setting up its alternative standards, the OfS has chosen to adopt the specific legal terms used in consumer protection law, but applying its own definitions. For example, the OfS states that in the Digital Markets, Competition and Consumers Act (DMCCA), misleading actions and misleading omissions are unfair only if they are ‘likely to cause the average consumer to take a transactional decision that the consumer would not have taken otherwise as a result of the practice’ but that it is proposing to decouple the requirements from any assessment of the likely impact on a transactional decision. The OfS gives as an example, information must always be clear and accurate, not only where failure to do so is likely to cause a student to take a different decision.

This leaves completely open and abstract how the assessment of clarity, accuracy or whether something is misleading should be carried out, or what level of lack of clarity, accuracy etc would be sufficient to trigger regulatory action. This is not fair on providers who need to be able to gauge with reasonable certainty that they are compliant.

The OfS will be the arbiter of whether something is clear or accurate or fair, but it has provided no information about what objective tests it will apply to its assessments in the absence of any evidence of “real world” impact. Undefined and unconstrained discretion of this sort can lead to arbitrariness and poor regulatory judgments.

The condition is likely to confuse rather than support students in asserting their consumer rights, which will continue to be rooted in legal definitions. This could lead to a situation where the regulator determines something is unfair (and therefore imposes a sanction on a provider) but a court concludes it is not because the necessary reliance, for example, is not demonstrated and declines to give the student a remedy.

We also remain concerned that the starting point for all of these principles presents fairness to students solely through the lens of consumer protection. There needs to be a balance which reflects an understanding of the nature of the education experience (the student is not buying a TV), its enduring nature and the inherently unpredictable environment in which institutions are operating. The latter point is relevant to assessing concepts such as good faith and whether there is indeed significant imbalance in the rights and obligations of students.

Moreover, this new condition – five pages long and with 17 pages of guidance – represents a significant increase in the regulatory burden on institutions and reduces the student/institution relationship to a much more transactional one, ultimately risking a reduction in the standard of provision to the bare minimum needed for regulatory compliance, the withdrawal of services because they now pose too great a regulatory risk and the stifling of innovation.

The positive and negative requirements

5. What are your views on the proposed positive requirements?
6. What are your views on the proposed negative requirements?

The consultation sets out some positive requirements related to the OfS information requirements list, some negative requirements related to its prohibited behaviours list and some rather extreme negative requirements related to what are described as aggressive commercial practices. The consultation says that the prohibited behaviours are based on the Grey List terms in the Consumer Rights Act, but are stated to be always unfair rather than contextually testing for unfairness as required in the act. The OfS has justified this enhanced obligation of fairness as being necessary to reflect the HE context, but the list of prohibited behaviours includes some which seem to be very far removed from typical institutional behaviour such as:

• Fake reviews;
• Descriptions relating to conduct and omissions such as presenting false information and offering prizes but then not awarding prizes.

Even if these have occurred on occasion, there seems to be no justification for setting enhanced general regulatory expectations around things that institutions generally do not do. The proper course is to take robust action against individual institutions which do actually engage in such practices – which could be done under the existing C1 condition – rather than as a part of a general condition which encourages unhelpful and inappropriate negative perceptions of the sector generally.

If the OfS wants to specify specific matters as prohibited or as commercial practices, these should be relevant to the higher education sector, not simply imported wholesale from obligations on “traders” generally.

The negative requirements around failing to treat each student fairly “includes, but is not limited to, where, in the reasonable opinion of the Of” the institution’s actions or omissions come under one of the areas listed. This is hugely problematic in the context where the OfS is not restricting itself to legal requirements. Essentially the effect of including this phrase is to say that institutions are prohibited from behaviours and practices, but the OfS cannot or will not, say categorically and exhaustively what those behaviours and practices are. This is not acceptable from either a legal point of view or in terms of good regulatory practice.

As with fake reviews and prize competitions the notion that institutions would engage in aggressive commercial practices to the extent that there needs to be a specific sector regulation of the point, such as those listed in consultation, seems some way from sector norms.

We do not believe that these really need to be spelled out in this way as if they are common practices which have to be stamped out by the OfS.

We are also concerned by the reference to freedom of speech in this context, as it appears to leave institutions in a position where they cannot intervene to prevent certain types of behaviour on the basis that the speech involved is within the law, even where it is unfair to students.

Proposal 3 – Include all students, higher education and ancillary services in scope of the condition

7.Views on application to all students.

The intention that the condition applies to current students as well as new ones (ie retrospective application) seems to us to be fundamentally wrong. In the event that something like this condition is introduced then it can only reasonably be applicable to prospective students. It would be wildly impractical to review all previous arrangements and contractual obligations with current and former students to ensure that they were covered by the condition. Whilst it is acknowledged that the OfS intends to exclude elements relating to the clarity and accuracy of academic content from consideration here, what remains still renders this aim unmanageable and inappropriate.

The proposal presents a particular challenge for TNE provision, where overseas delivery partners operate within local legal and regulatory frameworks that may differ significantly from English laws. The proposed condition does not appear to account for the potential for a conflict between OfS expectations and mandatory local law requirements.

Finally, we would note that this exposes the tensions between the need to make changes versus delivering what was (essentially) promised. There is no clarity here in the intended hierarchy for assessment of consumer standards.

Ancillary services and third party services delivery

8. The inclusion of ancillary services.
9. The inclusion of services delivered by third parties.

We have concerns about the increased liabilities of institutions to manage student protection on third party provided activity (sports, accommodation, student support etc) which could be to the detriment of a clearer and more explicit focus on the specific duty of institutions to educate and provide world class teaching and assessment. In addition, institutions provide these services in wide range of ways, or in some cases not at all, and there is a risk of unequal regulatory burden for those who offer the most comprehensive experience.

All of this implies a need for enhanced due diligence, clearer contractual standards, and ongoing monitoring and intervention mechanisms in relation to third party service providers at potentially significant additional cost.

Proposal 4 – Require publication of specified documents and information

10. Views on the proposal to publish specified documents on a single webpage?

We understand that, as part of the new condition, every registered institution would be required to publish on a single web page a set of key documents for students. These would cover everything related to student protection arrangements including student contracts, policies related to course changes, information on complaints, refunds and compensation as well as agent information.

This is the third area recently for which the OfS has specified a requirement for a single comprehensive source of information for students. While there is, on the surface, a positive intent and potential benefit from such a web page we would be concerned that, in practice, it might be so large and lengthy as to be extremely unwieldy, thereby ending up offering limited value to students. In order to make it as useful as possible then we believe institutions will need longer than three months to implement it. In particular, where policies need to be introduced or revised, there needs to be time for these to go through consultation and approval. To this end, we consider that the requirement should be delayed to the start of the 2027/28 academic year.

Proposal 5 – Remove requirements relating to student protection plans

11. Removal of ongoing condition C3. Do you support this proposal?

Yes

Student protection plans as they have been developed are an inadequate vehicle for addressing the issues facing institutions at times of maximum challenge and of limited value in protecting the interests of students.

Proposal 6 – Take a phased approach to implementation

12. Is the timetable – which proposes immediate implementation of the condition followed by the new publication requirements three months later – reasonable?

No, this is an inappropriate implementation timetable. The consultation closes on 9 July 2026, and the OfS is expecting to publish its final decisions in autumn 2026. However, rather concerningly, it seems that most aspects of the new condition would come into force at the same time as the outcomes of the consultation are published, which leaves institutions with no time to implement the final requirements as modified through a meaningful consultation process.

The requirements relating to publishing information on the website will come into force only three months later which is likely to encourage tick box approaches to producing documentation rapidly rather than considering carefully, consulting with students on and embedding robust and well-considered documentation post consultation. A lengthier window to publication (say the beginning of 2027 academic session) with the new requirements not in effect until then would produce better outcomes for all. Without changes the timetable as a whole will be extremely challenging for institutions and risks undermining the credibility of the consultative process.

Additional questions

13. Further comments and feedback on the proposed condition?

We would wish to offer a few other comments on the proposals:

• The implicit lack of trust in institutions to act fairly in relation to students – the language used implies that this rarely happens whereas many institutions have been doing the right thing for students for a very long time. This affects the perception and reputation of the sector more widely.
• The risk that this kind of condition ends up driving down the opportunities for students as institutions focus on minimal compliance rather than offering the best that they can. Innovation and seeking to excel create more consumer protection risks than sticking with a safe if uninspiring offer.
• Whether the proposals are in fact proportionate or whether the burden they will impose is excessive relative to the issues which they seek to address.
• Requiring institutions to spend more on helping students to complain (paragraph 71) calls into question arrangements for funding and supporting Students’ Unions and risks diverting resources from the delivery being complained about.
• A concern about the extent to which the important drive for transformation and efficiency in order to ensure the sustainability of the sector is built into the student protection proposals. We support the pursuit of fairness and protecting students but that needs to be done while being clear about the need to adapt and change to ensure provision is relevant to continually evolving pedagogy and the urgent need to ensure HE sustainability.
• By extension, a greater emphasis on managing expectations and extending rights on academic study with reduced emphasis on the wider student experience, might be wise.
• The emphasis on promoting recognised sector mechanisms for student complaints is welcomed and might go some way to reducing the growing signs of litigation as a form of dispute resolution.
• Concerns with terminology – in a number of places the OfS uses language it would not tolerate from institutions. Phrases like ‘including but not limited to….’ and ‘in the reasonable opinion of the OfS…’ are frequently deployed by the regulator but would not be supported in institutional policy and indeed would be covered by the prohibited behaviours list.
• The proposals, with their rigid foundations in consumer protection, take no account of the fluidities and uncertainties of education or indeed the management of delivery. It is simply not at all convincing that a consumerist approach will deliver a cultural change which will enhance the quality of students’ experience.

16. In your view, are there ways in which the objectives of this consultation could be delivered more efficiently or effectively than what we propose here?

We think the OfS should restrict itself to requiring: (a) compliance with consumer protection law; and (b) a short, exhaustive list of additional specific requirements that it can evidence are necessary to protect students in the specific context of higher education, for example a requirement to have policies on changes to courses and on student redress in those circumstances. This will enable prospective students to understand quickly what is likely to change, how the institution will act in the circumstances and whether they are willing to apply on that basis. This is likely to drive positive behavioural change in the sector more quickly than a long, vague set of proposals that will be difficult to comply with or to comprehend.

Conclusion

Finally, a reminder that the details of the consultation can be found here and that it will close on 9 July 2026, with the OfS currently expecting to publish its final decisions in autumn 2026.

We hope that you find these comments to be helpful in preparing your response to this consultation. We do think it is important that all institutions and sector bodies respond to ensure that the issues and concerns with the proposals are properly signalled to the OfS. If you would like to learn more about any of these or related regulatory issues then please do get in touch with the education team.

This content is provided for general informational purposes only and does not constitute legal advice. It is not intended to address the circumstances of any individual or entity, nor should it be relied upon as a substitute for specific advice from a qualified solicitor. The information reflects the legal position as at the date specified and may be subject to change. If you require advice on a specific matter, please contact us directly.