Too many students, not enough spaces

Too many students, not enough spaces

What the Government’s latest U-turn may mean for HE admissions.

The Government’s U-turn on A-level grades has created several headaches for universities and other higher education providers, one of which is the prospect of significantly more students than had been previously anticipated meeting the conditions of their offer, and thus becoming entitled to a place on a course.

Why is there a potential problem this year?

As a matter of law, a contract is formed at the point at which the student accepts the offer of a place. Most student contracts are conditional on the student performing to a certain level in their A-levels or other equivalent qualifications. Universities routinely make more offers than they have places, because there is natural attrition in the process (students who don’t make the required grades, students who choose to go elsewhere etc), and so they usually have or can make available roughly the right number of places at the start of each academic year, even taking into account processes such as adjustment and clearing which occur very late in the process.  This year, that might not prove to be the case, especially as some institutions have already had additional offers accepted through clearing which they made based on the grades announced last week.

What happens if the institution finds that it does not have sufficient places available for all those eligible for a place? 

Unless the institution has specified in its offer letter or its terms and conditions that it may not be able to fulfil the offer if there are excessive numbers of successful candidates (and we are not aware that this is common practice in the sector), students will say that they are entitled to be enrolled. We do not think that the A-level grade fiasco would be regarded as a force majeure event as an excess number of successful applicants does not make the service difficult or impossible to perform per se, but only in relation to the “excess” successful applicants. Similarly, we do not think that it could be argued that the contracts have been frustrated, the legal doctrine that treats contracts as null and void where some supervening event renders them impossible to perform.  Certainly, where a university is able to provide its services to some students, the chance of a court concluding that the contract was frustrated in relation to the other students is low.

Therefore there is a real risk that universities will simply be in breach of contract. We do not think that the specific Consumer Rights Act remedies of a repeat performance or a right to a price reduction will be appropriate here, so for most students the available remedy would be some form of damages. However, such claims are very difficult to calculate at the best of times, and this definitely isn’t the best of times; sometimes students can argue that a delayed start meant that they are delayed entering the job market and/or the opportunity for further study, but these claims are inherently speculative and even more so against the backdrop of a global recession and economic disruption.

Mitigation is key

Wherever there is a potential claim for damages, both sides need to think about ways to mitigate the amount; in this case, students because they are under a legal duty to do so, and universities because it makes financial, as well as moral and reputational sense, to keep any claim they might face to a minimum. This may involve considering alternative courses, alternative institutions, deferred starts, or modified curricula. Could the intake be expanded if there was, for example, more done remotely and online, and less done on campus? What would this mean for the student experience and indeed the contractual rights of those students who have secured a place to get what they were promised (which is probably already quite different to what they originally thought they would get because of COVID-19 related modifications). Oversubscribed institutions could also consider whether partnership working with other institutions who may have more space available is an option, although time may be the enemy here. In all cases, care needs to be taken that mitigations do not deliver sub-standard experiences that lead to increased dissatisfaction and complaints further down the line.

Access and participation

There is a risk in this scenario that the applicants who shout loudest and assert their rights most vociferously get in ahead of those less confident in navigating the process. Therefore, institutions need to consider the process by which they select who gets in and who doesn’t. For example, should it be first come, first served or should vulnerable or disadvantaged groups be prioritised or given additional support on the basis of the institution’s commitment to widening access and participation?

What about courses with capped student numbers?

Institutions will be particularly constrained in those subjects where spaces are controlled by an external cap, such as medicine. Here, the ability of institutions to mitigate by expanding the intake or modifying the curriculum will be limited, and there may be no alternative to deferral. Mitigation in this context may need to be more creative, for example, some opportunity to develop relevant skills through the period of deferral through short and introductory courses so that delayed applicants can spend the time in a way that is ultimately useful to them.

Universities are currently being challenged at every level due to the effects of COVID-19 - from a prospective massive drop in income due to the reduction in overseas students, to the reality and practicalities of ensuring their campuses are COVID safe and switching large portions of their teaching to an online environment.  The additional crisis over A-level grades and resulting university places and every challenge that this might bring with it, is adding further stress to a sector already in difficulty.

Contact us

If you would like further information or advice in relational to handling subject access requests, or how best to deal with student complaints, then speak to Smita Jamdar in our specialist education team.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.