The updated CMA guidance for higher education – what’s changed?

The original version of the Competition and Markets Authority (CMA) guidance for UK higher education providers on consumer protection law has been serving as a blueprint for compliance since its publication in March 2015. This guidance has recently been revised and updated and was re-issued by the CMA on 31 May 2023.

We set out some of the key issues for institutions arising out of the CMA’s updated guidance in our blog earlier in the month. We now consider the changes in more detail.

What prompted the revised guidance?

In the guidance the CMA states that most of the advice contained in the original version of the guidance remains the same in the revised version, but that the key changes are:

• to update to out-of-date references with regard to consumer protection law, stakeholders, stakeholders’ policies or sector regulation;
• to incorporate the published findings of the CMA’s compliance review, and the published restatements of the CMA views on compliance with consumer protection for the HE undergraduate sector; and
• to include reference to other more recent guidance by the CMA, for example, the CMA’s unfair contract terms guidance.

What should institutions be looking out for?

Digging into the detail of the changes, the guidance now makes clear that:

1. It applies to any students who meets the definition of consumer, irrespective of the level or type of study. The previous iteration of the guidance emphasised its focus on HE providers of undergraduate courses.
2. Pre-contract information is legally binding and so any pre-contract information given at the offer stage should still be accurate on enrolment, and that a student’s express agreement must be obtained for any changes. In particular, the updated guidance makes clear that any attempts by providers to unreasonably limit liability for inaccurate website information constituting pre-contract information would be particularly concerning.
3. Where providers anticipate that an aspect of pre-contract information may change, a provider should make clear to prospective students what specifically might change. In particular, such a provision must enable students to foresee the circumstances, nature and extent of any change. Such information must not be buried in “small print”.
4. Where there are third parties involved in the course arrangements, providers must make it absolutely clear to students where responsibility lies for the delivery of the educational services.
5. Providers are required to explain in the course information how courses will be delivered and whether these will be in person, online or a mix of blended learning.
6. Key information must be provided in respect of deferrals and their potential impact on prospective students. If a deferral arises after a place has been accepted, the guidance provides that information be given again on any key matters that would be likely to influence the student’s decision to defer, in particular transparent information on fees.
7. The CMA would be concerned if a provider stated that a student had to accept that there would a new contract at re-enrolment for each year of study as this could be used as a means to bypass the requirements to obtain express consent to changes.
8. Variation terms regarding course content, delivery or withdrawal may be terms a student would find surprising and so should be explained in the course information. Those variation terms which give providers a wide discretion to change important aspects of educational services for potentially broad reasons, e.g. “reasons outside of our control”, could be unfair if there is no further information. Such terms are more likely to be fair if they set out clearly when they may apply so that the scope is restricted.
9. Broad limitation of liability terms are inappropriate and potentially unfair. For example, terms limiting liability for problems caused by a provider’s suppliers or subcontractors are likely to be unfair as a student has not choice as to those third parties. More specifically, the guidance makes clear that terms limiting liability due to factors beyond a provider’s control must be clear and specific. The guidance disapproves of legal jargon, such as the term “force majeure” being used without clear explanation.
10. Providers should have a written policy on student debt, forming part of the university’s regulations and which is clear and understandable so that students can clearly understand the consequences and implications for them for academic and non-tuition fee debt. The policy needs to be reasonable and fair and sanctions should not be disproportionately severe. For example, unpaid library fees might as a last resort result in library facilities, being withdrawn but the CMA would consider it unreasonable to withhold graduation or progression for outstanding library fines.
11. Providers should consider complaints brought to their attention by students about the performance of third parties they are responsible for.

How can we help?

It is important to remember that the guidance sets out the CMA’s advice as to the minimum requirements for compliance with consumer protection law. It is not intended to be an exhaustive substitute for the law, nor does it provide a definitive interpretation of the law or how a court might apply the in individual circumstances. However, institutions should review their terms and conditions to check whether any amendments need to be made to reflect the updated guidance.

Our team of education solicitors can support you with that process – speak to a member of the team today.