Uniac - July 2022

21 However, while other regulatory conditions were relaxed, the OfS was clear in its message that the law is the law and universities must continue to comply fully with consumer protection legislation. Following this, in January 2021, the OfS instructed institutions to assess their compliance with consumer law and provide assurances to their governing body. In its November 2021 statement, the CMA has repeated its 2015 advice. Contract terms are likely to be unfair if they 1) allow a provider to withdraw offers when the terms of the offer have been met; and / or 2) exclude or limit the provider’s liability if it subsequently fails to provide the place it has agreed. Overall, within a changing and challenging external context, the legislative requirements, expectations, and advice for providers has remained unchanged since 2015. However, that is not to say that change is impossible. The OfS takes a strong interest in consumer protection for students. It has also signalled on several occasions its frustrations with the CMA’s hands-off approach and intentions in developing its own involvement. We highlight two key areas where we could see the OfS take action: 1. Standardised student contracts 14 https://www.officeforstudents.org.uk/media/80806001-1364-46d5-8326c0f60782dc1b/bd-2019-november-81-student-information-and-contracts.pdf At its very first Board meeting in January 2018, the OfS raised the possibility of standardising student contracts. This would give the OfS complete control over the contract terms used across the sector and the ability to remove any that it deems as unfair. 2. New guidance Currently, the OfS has limited scope to enforce compliance with consumer protection legislation. They cannot judge whether a provider is in breach of the law (this can only be done by a court) and their own regulatory condition only requires providers to give “due regard to relevant guidance”. In a Board paper from November 201914, the OfS states: “We know that our consumer protection tools, as currently configured, are not allowing us to intervene when we see evidence that our regulatory objectives and outcomes [high quality academic experience and protecting students’ interests] are not being delivered for students.” A straightforward solution, and one they express interest in, would be to replace the CMA’s guidance with their own and strengthen the wording of regulatory condition C1. This would allow the OfS to take more proactive enforcement action. While they do not have the authority to judge if a provider is in breach of the law, they can absolutely judge if a provider is in breach of their own published guidance. Potential developments

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