Category: Consumer Rights

  • Universities now need to be much clearer about the total cost of a course

    Universities now need to be much clearer about the total cost of a course

    Now that we know the undergraduate fee caps that will apply in England in 2026-27 and 2027-28, now seems like a good time to get something off my to-do list.

    For the sector, the headline is financial stability – after years of the fee cap being frozen while costs rose, two years of confirmed inflationary increases provide some relief.

    But the announcement also crystallises a compliance problem that has been building since April, when new price transparency provisions came into force under the Digital Markets, Competition and Consumers Act 2024.

    Last week the Competition and Markets Authority published finalised guidance on Complying with the law on unfair commercial practices relating to price transparency.

    For a student starting a three-year degree next September, the total tuition cost is now entirely calculable. Year 1: £9,535. Year 2: £9,790. Year 3: £10,050. Total: £29,375.

    And yet university prospectuses and websites overwhelmingly advertise just the Year 1 figure – understating the actual three-year cost by nearly £2,000.

    Under the new CMA guidance that practice looks legally vulnerable. And, at least for England, OfS about to consult on applying a new “treating students fairly” condition to all registered providers, the regulatory architecture to enforce compliance is assembling itself.

    A note before I get going – the DMCC Act is UK-wide legislation, and the CMA’s price transparency requirements apply to universities in Scotland, Wales and Northern Ireland just as they do in England.

    The OfS regulatory overlay – particularly Condition C5, whatever version of it gets applied to existing providers, and a presumption of non-compliance where consumer law has been breached – is England-specific.

    Scottish, Welsh and Northern Irish universities don’t face the same automatic read-across from CMA findings to registration consequences. But they remain fully exposed to CMA enforcement, including direct fines and redress orders. It just means the enforcement route is different.

    £29,375. And the rest

    CMA209 is formal CMA guidance issued under the DMCC Act on the price transparency provisions – not HE-specific, but nothing in it carves higher education out.

    At its heart, it says that whenever a trader gives information about a product and its price, that is usually an “invitation to purchase” – and at that point the consumer must be given a realistic, meaningful and attainable total price, including any fees, taxes or other payments they will necessarily incur if they go ahead.

    The guidance defines “invitations to purchase” broadly – a website listing, an advert, a prospectus entry, an email, an instant message from an ambassador, so long as it indicates the characteristics of a product and its price and enables the consumer to decide whether to purchase or take some other “transactional decision.”

    Universities can’t rely on the detailed fee terms being buried on a separate page, or in the conditions of offer, to cure a misleading headline later in the journey.

    Three specific practices are now explicitly prohibited or heavily restricted:

    Drip pricing – showing one price up front and then introducing mandatory charges only later in the process – is now a prohibited practice under section 230 of the DMCC Act. The guidance is unambiguous:

    The practice of showing consumers an initial headline price for a product and subsequently introducing additional mandatory charges as consumers proceed with a purchase or transaction – sometimes called ‘drip pricing’ – is prohibited under the UCP provisions.

    Partitioned pricing – giving a list of components without also giving the overall total – is:

    …generally prohibited since it is not consistent with providing the ‘total price’ of the product.

    You can’t say “Tuition fee £X, additional compulsory course costs apply, see small print” without also giving either a single total price or, where that total genuinely cannot be calculated, a clear and prominent explanation of how it will be calculated.

    Non-prominent variable pricing information – where some part of the total price cannot reasonably be calculated in advance, traders must tell consumers how that part will be calculated, “with as much prominence as” any calculable components. A footnote in the terms and conditions will not do.

    Mandatory charges and hidden course costs

    The guidance is explicit that the “total price” must include any fees, taxes, charges or other payments that the consumer will necessarily incur. Mandatory charges include – per the guidance –

    administration fees, however described, such as booking or processing fees, quality assurance charges, platform charges… [and]… fees relating to additional services that cannot be avoided.

    Crucially, the guidance also says that charges arising from the trader’s own input costs – including the costs of third parties they choose to contract with – are mandatory and must be baked into the advertised price, not bolted on separately.

    Consumers have no control over such expenses. They cannot compare and select the third-party provider or products they use and have no way of opting out of them.

    I’m thinking maybe mandatory DBS and occupational health checks for health courses where the university organises the process, or compulsory field trip costs where the programme design offers no realistic non-paying route. Under CMA209, those all look like mandatory charges that should be rolled into the total price shown wherever the course and its fee are advertised – not left for discovery on a faculty web page in week three of term.

    The guidance is also explicit that merely calling something an “extra” or listing it separately does not make it optional:

    A charge is mandatory if the consumer will have to pay the additional charge in order to purchase or receive the advertised product. It is still a mandatory charge even if the consumer could theoretically avoid it by purchasing or signing up for an additional product.

    The guidance notes that refundable security deposits – money held against potential damage that’s “automatically refunded if not called upon” – don’t need to be included in the total price.

    But non-refundable deposits that form part of the purchase price are different. International students routinely pay substantial non-refundable deposits to secure places – often £1,000–3,000 or more, and sometimes 50 per cent of the first year’s fees.

    These are mandatory charges, payable before the student can even accept an offer. Under CMA209’s logic, the existence of the deposit, its amount, and the circumstances in which it might be forfeited are all material information that should be disclosed upfront – not discovered partway through the application process.

    The guidance’s emphasis on not introducing charges “later in the process” is directly relevant – if a student applies based on a headline fee figure and only later discovers they need to pay a substantial non-refundable deposit before they can confirm their place, that looks a lot like drip pricing.

    The “additional course costs” problem

    Plenty of universities maintain a separate page – often linked from the main fees section – listing “additional course costs” that students should “budget for.” Under CMA209, this structure is problematic on multiple fronts.

    First, where those costs are genuinely mandatory – DBS checks, professional registrations, required equipment – listing them separately is textbook partitioned pricing. The guidance is explicit:

    It is not enough to present the individual price components and expect the consumer to calculate the total price.

    A course page that shows tuition at £9,535 and then separately lists a £50 DBS check, £150 uniform and £120 professional body registration is doing exactly what CMA209 prohibits – presenting components without the total.

    Even where costs relate to optional modules, the guidance requires that variable pricing information be given “with as much prominence as” the calculable headline price. A link to a separate page does not constitute equal prominence.

    The “optional” categorisation itself deserves scrutiny. The guidance notes that a charge remains mandatory “even if the consumer could theoretically avoid it” through alternative choices.

    If a geology degree features fieldwork in its marketing, and the fieldwork module has a £500 field trip cost, the theoretical existence of non-fieldwork routes doesn’t make that cost optional for students buying the product as advertised.

    The test is whether the base price is “realistic, meaningful and attainable” for the degree as typically experienced – not whether a determined student could engineer a cheaper path through.

    Universities may need to audit every course’s additional costs and ask hard questions about what’s genuinely optional versus what’s mandatory in practice. The answer will often be uncomfortable. Oh, and the cost of resitting something also clearly needs more… clarity.

    Multi-year degrees and in-contract price increases

    The guidance has a specific section on “periodic pricing” – contracts where the consumer makes regular payments in return for ongoing services, such as subscriptions, gym memberships or broadband. It distinguishes between “rolling contracts” (can be cancelled any time, so the total price is just the price per period) and “minimum term contracts” (consumer commits for a defined period).

    For minimum term contracts, traders can either provide:

    ….the cumulative price that the consumer will have to pay over the entire minimum length of the contract, inclusive of all mandatory charges in that period

    …or provide:

    the total price that the consumer pays for each period of the contract… alongside a prominent statement of the number of months the consumer is committed to pay that price for.

    Most undergraduate degrees look very like a minimum-term periodic arrangement in substance. The student expects to be there for three or four years, paying annual tuition fees for ongoing access to teaching and services, and will normally make their transactional decision on the basis of the whole degree rather than a single year.

    The CMA’s own 2023 HE guidance reinforces this as follows:

    …the contract for educational services is for the full duration of the course, with milestones to be achieved in order to progress to the next year or other period of study.

    Applied to tuition fees, that raises some uncomfortable questions. If a university advertises fees at £9,535 for a three-year degree, is it in effect inviting the student into a three-year minimum term contract for services, with periodic payments due each year?

    If so, under CMA209 it should either present the total cumulative cost for the minimum term – or present a per-year total price plus a prominent statement of the minimum term, with any one-off fees (or, by analogy, any known annual increases) properly disclosed.

    Guidance was already clear that fee variation clauses are more likely to be fair if they include a “worked example” of how the clause might operate. Abstract percentages – “fees may increase by up to 5% annually” – don’t give consumers equivalent information to concrete pound figures.

    An international applicant who sees “£28,000” as the headline may not instinctively calculate that (“up to”) 5 per cent annual increases would mean approximately £88,200 over three years rather than £84,000 – a difference of over £4,000.

    For that percentage to have “as much prominence as” the headline price, it would need to be translated into the actual cost impact. This is particularly important for vulnerable consumers who may not run compound calculations when making application decisions.

    Universities might have argued that the total cost of a degree “cannot reasonably be calculated in advance” because future fee caps depend on inflation forecasts not yet made. For home UGs in England, that defence has now evaporated.

    Continuing to advertise “£9,535” when £29,375 is knowable would, under CMA209’s logic, be hard to reconcile with the requirement to provide the total price in an invitation to purchase.

    The guidance is explicit that traders should use any information already available to calculate the total price. The worked example for hotel bookings states that:

    …if a consumer searches for a ‘three-night stay for two people’ on a hotel booking website, the trader should use this information to calculate the total price based on those requirements including any per-transaction charges (and any other mandatory charges).

    By analogy – if a student is applying for a three-year degree starting in 2025, the university has all the information it needs to calculate and display the total cost.

    As we noted when the DMCC provisions came into force in April, vague claims that fees “may rise with inflation” may breach the rules if they fail to explain how, when, or by how much – or if that information isn’t given equal weight to the headline figure.

    Universities might argue that the “product” is access to one year of teaching and assessment, with progression to subsequent years being a separate (conditional) transaction. Under that framing, each year would be a genuinely rolling contract and the periodic pricing provisions wouldn’t require cumulative totals.

    The problem with that defence is threefold – it contradicts how universities market degrees (as three or four-year qualifications leading to awards), it contradicts the CMA’s own 2023 HE guidance on the duration of the educational services contract, and it would require universities to fundamentally redesign their offer letters, student contracts, and progression frameworks. It is not, I tentatively suggest, an easy pivot.

    The deferral problem

    The interaction between in-contract price increases and deferrals creates another drip pricing risk that universities may need to address.

    A student who applied for 2025 entry and accepts an offer does so on the basis of £9,535 fees. If they then defer to 2026, they face £9,790 – a £255 increase. The CMA’s 2023 HE guidance already flagged that deferrals require:

    …transparent information on the level of fees for that year if they could increase, and any other significant potential aspects of the course that you know will or may be different.

    Under CMA209, this looks like exactly the kind of later-revealed mandatory charge that the drip pricing prohibition targets. The student was shown one price when they made their transactional decision (accepting the offer), then charged a different, higher price when they actually enrol. Universities offering deferrals with “fees will be the rate applicable in your year of entry” are building this mechanism into their standard practice.

    The compliant approach would be to disclose at the point of offer – or certainly at the point of accepting a deferral – what the Year 1 fee for 2026 entry will be, what the total degree cost will be (using the now-known 2026-27, 2027-28, and projected 2028-29 figures), and how this differs from the cost had the student started in 2025. Anything less risks a student committing to defer without understanding the price implications.

    Non-standard degree structures

    The DfE announcement also creates specific presentation challenges for degrees that don’t follow the standard three-year full-time model.

    Foundation years: The announcement confirms that classroom-based foundation years remain frozen at 2025-26 levels while subsequent years increase. A four-year programme with a foundation year therefore has a complex cost profile: Year 0 at one price, Years 1–3 escalating. You cannot simply multiply the Year 1 fee by four – and the total will be different from a standard three-year degree starting in the same year. How should universities present this? The CMA209 logic suggests they need to show the actual cumulative total for the specific programme structure, not an indicative per-year figure that doesn’t reflect reality.

    Placement years and years abroad: Different percentage caps apply – 20 per cent of the full fee for sandwich placements, 15 per cent for years abroad and Turing years. A four-year degree with a placement year has three years at full fee and one at 20 per cent, while a degree with a year abroad has three at full fee and one at 15 per cent. For a 2025 entrant on a four-year sandwich course, the calculation would be £9,535 (Year 1) + £9,790 (Year 2, placement) × 20% + £10,050 (Year 3) + [2028–29 fee] (Year 4) – giving a total of around £21,543 plus the unknown final year. Universities need to work through these calculations for every programme variant and present the results clearly.

    Accelerated degrees: Two-year accelerated degrees have higher annual caps (£11,750 for 2026-27, £12,060 for 2027-28). A student choosing between a standard three-year degree and an accelerated two-year version is making a comparison that matters – £29,375 over three years versus approximately £23,810 over two years (for a 2026 entrant). CMA209’s requirement that prices be “realistic, meaningful and attainable” for the product as advertised suggests universities should be helping students make this comparison, not obscuring it with per-year figures that don’t facilitate like-for-like assessment.

    Part-time study: Part-time degrees stretch over 4–6+ years, accumulating more annual increases. The maths becomes more complex and the cumulative cost may substantially exceed the nominal fee multiplied by FTE years. Again, the guidance suggests universities should be doing this calculation for students, not leaving them to work it out themselves.

    Home students versus international students

    For home students in England, the government has now confirmed two years of fee increases, with a stated intention to legislate for automatic annual uprating thereafter. Ironically, the specific inflation measure remains technically unconfirmed – the Post-16 Education and Skills White Paper indicated fees would rise “in line with inflation” but didn’t specify which index.

    You and I know that the figures are the OBR’s projections of inflation as of today, but that’s hardly an “objective verifiable inflation index.” Universities can at least show the trajectory for students whose entire degree is now priced.

    For international students, the position is much more exposed. Here, fee-setting is entirely at the university’s discretion, and annual uplifts of several hundred pounds – or several per cent – are routine.

    If a university can state “fees will increase by up to X per cent annually,” then it can calculate a maximum total cost for the degree. The guidance’s logic would suggest it should be displaying that maximum – or at minimum, the inflation cap and worked examples – with equal prominence to the Year 1 headline figure. Asking a student to commit to a multi-year programme on the basis of “£28,000 in year 1 – fees may rise in future years” without any structure looks exactly like the sort of thing this guidance is trying to stamp out.

    The universities that have moved to fixed-fee guarantees are in the cleanest compliance position. If the fee genuinely won’t increase, you can advertise Year 1 and the cumulative total is just three or four times that figure. Everyone else – particularly those with vague “may increase with inflation” language buried in terms – is more exposed.

    The deposits problem

    The deposit practices that have become widespread in international recruitment also deserve particular scrutiny under the new framework.

    According to UUKi survey data from last year, two thirds of providers charge deposits for international students at a specific monetary amount, with a further 17 per cent setting deposits as a percentage of the tuition fee – often 50 per cent.

    Universities have been encouraged to set earlier deadlines for applications and deposits as a way of “managing risk” – but the effect is to shift that risk onto students, who must commit substantial sums before they have complete information about accommodation, living costs, or visa outcomes.

    Of course universities have been explicitly encouraged to use deposits to reduce the likelihood of students transferring out of the degree programme. The logic is straightforward – if a student has already paid £5,000–15,000 that they’ll lose if they change their mind, they’re locked in.

    But that sits uncomfortably with OfS Condition F2, which requires registered providers to publish clear information about transfer arrangements – and with OfS’ legal duty to monitor the availability and utilisation of student transfer schemes.

    More broadly, the Consumer Rights Act 2015 already constrains what universities can do. Cancellation or early termination charges must be limited to what is “fair and proportionate” – meaning the university can recover its genuine costs or lost profit, but cannot levy charges designed to punish students for changing their mind or to scare them into staying in the contract.

    When challenged, universities might argue that the CAS allocated to the student could have gone to someone else, so they’ve lost the profit they would have made. But if the university hasn’t actually recruited to its CAS allocation – if numbers are down and places remain unfilled – that argument collapses.

    CMA’s existing guidance is clear that traders can only retain money to cover actual costs and losses, not to enforce compliance targets or prevent student choice. Universities aren’t really allowed to shift the burden of their regulatory obligations or commercial risks onto students.

    DMCC adds further layers. Under the duty of professional diligence, universities must act with the skill, care, and honesty that a reasonable trader should exercise in line with good market practice.

    Breaching that duty becomes unlawful when it distorts, or risks distorting, a consumer’s decision-making – a bar that drops further when the consumers in question are vulnerable. Practices that exploit a student’s weakness, confusion, or lack of experience can breach the Act even if no actual loss can yet be proven.

    OfS’ own prohibited behaviours list – currently applicable only to new registrants but expected to be extended – includes:

    …requiring a student to pay a disproportionately high sum of money as penalty to the provider or for services which have not yet been supplied, where the student decides not to sign the contract or withdraws from the contract after signing it.

    In its consultation response, OfS argued that the prohibited behaviours it was proposing closely reflect existing legal requirements “with which traders in any sector are required to comply.”

    If that’s right, then the current deposit practices of many universities may in many cases already be legally questionable – the prohibited behaviours list just makes explicit the kinds of practices consumer protection law is already concerned about.

    The interaction with immigration policy is awkward. The Legal Migration white paper signalled that UKVI will soon be demanding visa refusal rates of less than 10 per cent and course enrolment rates of at least 90 per cent of CASs issued.

    In the C5 consultation, one respondent suggested that OfS should work closely with UKVI to “agree a position on non-repayment of deposits for visa-sponsored students” – presumably because universities are using deposit forfeiture to manage these compliance targets.

    But again – universities can’t shift the burden of their regulatory obligations onto students. If a student’s visa is refused through no fault of their own, or if they withdraw before enrolment for legitimate reasons, treating a 50 per cent deposit as simply forfeited looks difficult to defend as “fair and proportionate” under consumer protection law.

    Postgraduate provision

    I’ve focused on undergraduate study here, but the transparency issues are at least as acute – arguably more so – for postgraduate provision.

    Taught masters programmes of one year limit the in-contract increase problem. But doctoral programmes run for 3–4+ years, with annual fee increases that are often entirely uncapped for international students. A PhD student starting at £25,000 per year with 5 per cent annual increases faces a four-year total of over £107,000 – significantly more than £100,000 if they’d assumed stable fees.

    The sums involved make transparency even more important, and current practice is often worse than undergraduate – many doctoral programme pages show only the current-year fee with no indication of how it will change.

    Postgraduate loans for home students are capped and don’t cover the full cost of many programmes, creating an additional transparency issue – the gap between the loan available and the fee charged is itself a mandatory cost that students need to understand upfront.

    The deposit problem is particularly tricky for international PGT students. A student who paid a 50 per cent deposit on a £20,000 masters programme – £10,000 – and then changed their mind about the course, or had accommodation fall through, or discovered that the cost of living information the university supplied was three years out of date, faces losing that entire sum unless they fit restrictive refund criteria.

    They’re locked in, or they’re out of pocket – and the consumer protection framework suggests many of those lock-ins may be unfair.

    Agents and intermediaries

    The guidance is explicit that both the party making an invitation to purchase and the trader on whose behalf it is made can be liable:

    If the product is being marketed on the seller’s behalf or in their name, the seller may also be responsible if the invitation to purchase fails to comply with the requirements of the UCP provisions.

    This has big implications for a sector that has become heavily dependent on international recruitment agents. Agents are involved in over 50 per cent of international student admissions – in some markets, the figure reaches 70 per cent.

    Under CMA209, if an agent in Lagos or Mumbai is advertising “Study at [University] for £22,000” without disclosing annual increases or the mechanism by which fees will rise, both the agent and the university are potentially in breach of the price transparency provisions.

    The guidance says that traders using other businesses to market their products must ensure they have provided those businesses with all the information required by the DMCC Act, and must also ensure that those businesses are complying with their obligations under the DMCC Act.

    If we’re honest, that’s compliance burden most universities are not currently equipped to manage. Many do not systematically audit agent materials. Commission arrangements are commercially sensitive and rarely transparent. Sub-agents – informal intermediaries whose details may not even be known to the contracting university – add further layers of opacity.

    The guidance creates, at minimum, an expectation that universities will need much tighter control over what partners and agents say about fees and increases.

    The guidance also notes that:

    …if an invitation to purchase is directed at UK consumers, it must comply with the relevant UCP provisions, even if the trader making the invitation to purchase is located outside the UK.”

    That jurisdictional reach catches overseas agents advertising to prospective international students who will study in the UK.

    Bang average

    Consumer protection law uses an “average consumer” test – would the practice mislead or affect the transactional decision of a typical consumer? But that test isn’t applied uniformly.

    Where a practice is directed at a particular group, the average consumer is judged by reference to that group. And where a practice is likely to materially distort the behaviour of consumers who are “particularly vulnerable” due to mental or physical infirmity, age, or credulity, it’s assessed from the perspective of the average member of that vulnerable group.

    DMCC recognises that vulnerability can arise from permanent characteristics – age, disability, low literacy – or from temporary circumstances like bereavement, financial stress, or life crisis.

    Applying from abroad to study in an unfamiliar country, navigating a complex visa system, relying on agents whose incentives may not align with your own, committing substantial deposits before you have complete information – all of this creates vulnerability in the consumer protection sense.

    In higher education, several groups of students could reasonably be considered vulnerable consumers in this context:

    International students face acute information asymmetry. They may be unfamiliar with UK consumer protection norms, language barriers may affect comprehension of complex fee terms, they’re making decisions from a distance often based on agent advice, and the financial stakes – total cost of attendance including living costs, visas, flights – are enormous. The combination of agent recruitment practices and student vulnerability is a killer – agents have financial incentives that may not align with student interests, students may not know agents are paid by universities, and the power imbalance is huge.

    Young people – most undergraduate applicants are 17ish when they make application decisions – are making one of the largest financial commitments of their lives with limited experience of contracts, consumer rights, or long-term financial planning. The guidance’s examples of misleading practices often involve consumers failing to notice or understand pricing complexity – that risk is heightened for young people navigating an unfamiliar system.

    First-generation HE students lack family knowledge to draw on. They may not know what questions to ask, may be more susceptible to impressive-sounding marketing claims, and may not have access to informal networks that help more advantaged students navigate the system.

    Students from disadvantaged backgrounds have a different vulnerability – the financial implications of hidden costs or unexpected fee increases fall harder on those with less family buffer. The same opaque pricing that a wealthy student might absorb as an inconvenience could derail the plans of a student with no margin for error.

    DMCC requires traders to design their sales practices, contracts, and communications with these vulnerabilities in mind. It is no defence to say that the “average” consumer would cope – if a foreseeable group of people is likely to be misled, disadvantaged, or harmed, the practice breaches the Act.

    The duty of professional diligence demands that universities act with the skill, care, and honesty that a reasonable trader should exercise in line with good market practice. Practices that (even inadvertently) exploit weakness, confusion, or lack of experience can be unlawful even if no actual loss can yet be proven.

    If university marketing practices disproportionately affect vulnerable groups – and there’s good reason to think they do – the compliance standard should be assessed accordingly.

    A fee presentation that might not mislead an experienced, sophisticated consumer could still breach the rules if it’s likely to mislead the students actually being recruited. The “average consumer” for an international recruitment agent’s materials isn’t a UK-based parent with professional advice – it’s someone in China, Nigeria or India trying to understand what three years of study will actually cost.

    OfS is coming

    If all of this feels a bit theoretical – the CMA has guidance, but will anyone actually enforce it? – OfS’ parallel moves should concentrate minds.

    OfS has already been pointing providers in this direction:

    …if providers are making changes that increase fees for new entrants in line with prescribed limits, they should make sure that prospective students have access to information about the full cost of their course, for the duration of the course, before they commit themselves to undertaking a higher education course.

    That language – “full cost of their course, for the duration of the course, before they commit” – is close to what CMA209 now makes a legal requirement. The sector can’t reasonably claim it had no warning.

    OfS has also established an important ceiling for continuing students – they can’t be charged more than the lower of either the relevant prescribed fee limit, or the level to which fees can be increased in line with the inflationary statement recorded in the Access and Participation Plan (or annual fee information return) that was in effect in their year of entry.

    That inflationary statement mechanism – which effectively caps what returning students can be charged – creates a documented ceiling that universities could, in principle, use to calculate and disclose maximum cumulative costs at the point of admission.

    It also means that the universities on my spreadsheet that have already increased their fees for continuing students beyond that which was committed to in the APP are very much risking it for a biscuit.

    Sinclair C5

    Of course OfS has published a new initial condition of registration, C5 (“Treating students fairly”), a version of which it says it will consult on applying to existing registered providers imminently. The condition is currently in force for new registrants – extending it to the existing register would make fee transparency a live regulatory issue for every provider in England.

    C5’s version of “consumer protection law” explicitly includes the Digital Markets, Competition and Consumers Act 2024 – so non-compliance with CMA209’s price transparency provisions would directly implicate the condition. And the scope is, if anything, broader than CMA209 itself.

    The condition covers:

    …any arrangements the provider has made or plans to make to attract individuals to study at the provider, encourage individuals to submit applications to study at the provider, or to otherwise communicate with students or anyone with an interest in studying at the provider.

    The accompanying guidance defines “information about the provider” as anything individuals may rely on in their decision-making – including:

    …emails or other forms of communication; presentations delivered at open days; any written material used to inform communications (such as scripts for recruitment phone calls).

    On agents, C5 is if anything more explicit than CMA209. The guidance states that:

    …where a provider works with recruitment agents or other entities similarly working on its behalf, it will be held accountable for their behaviour.”

    And the provider must:

    …undertake appropriate due diligence on all third parties and on all third parties’ arrangements.

    On partnerships, the condition “applies to all higher education provided through all forms of partnership arrangements” and may result in “more than one provider being responsible for compliance with this condition in relation to the same student.”

    Delivery providers in franchise arrangements will have to must submit lead provider documents – including “template student contracts (including terms related to tuition fees and additional costs)” – and if they think those documents contain problematic provisions, they’re expected to work with the lead provider to address this before applying for registration.

    What are universities actually selling?

    More broadly, the price transparency requirements raise an uncomfortable question – what, exactly, is the “product” that universities advertise?

    Prospectuses don’t just show lecture theatres and libraries. They feature students playing sports, performing in shows, running societies, going on trips. Open days tour the SU facilities. Marketing copy talks about “joining a vibrant community” and “making friends for life.”

    If that’s part of how the product is marketed, CMA209 suggests it’s part of the product – and if accessing it costs extra, those costs are material information. A university advertising a “great and vibrant SU” without mentioning that club membership fees typically run to £5–50 per society, that sports clubs charge for kit and fixtures, and that participation in activities often costs money beyond tuition, is arguably presenting a version of the product whose price doesn’t reflect what students would actually pay to access it.

    Where a free inter-campus bus or shuttle is part of that promotional bundle – the thing that makes a multi-site timetable viable without extra cost – withdrawing it mid-course effectively increases the mandatory costs faced by students. At minimum, that raises the same kinds of questions about hidden charges and changes to the product that the price transparency regime is designed to address.

    For students from lower-income backgrounds who chose the university partly based on its marketed student life, discovering the hidden costs of participation is a form of bait-and-switch – even if legally defensible.

    The logic extends to living costs. Section 227 of the DMCC Act prohibits misleading omissions – failing to provide material information that consumers need for informed decisions. For students choosing between universities, living costs are often the second-largest expense after tuition, and they vary enormously by location. A student choosing between London and a smaller city could face a £15,000+ difference over three years – that’s material.

    Where universities make claims about accommodation, those claims must be accurate. “Affordable accommodation from £X per week” is misleading if that figure refers only to heavily oversubscribed halls available only to first-years, while most students pay significantly more in the private rented sector. Marketing materials featuring halls and campus living are potentially misleading if most students spend most of their degree in private accommodation of significantly lower quality at higher cost.

    Even a university in a notably expensive area that makes living costs look lower than they really are in its marketing may be committing a misleading omission – and OfS’ Condition C5 reinforces this by covering:

    …anything individuals may rely on in their decision making about whether (or what) to study at the provider.

    What happens now

    The unfair commercial practices provisions of the DMCC Act came into force on 6 April 2025. This is not prospective regulation – it applies now. The CMA has indicated it will update its sector-specific guidance in light of the new Act, but no timetable has been given for HE – and the absence of sector-specific guidance does not provide a grace period.

    The CMA now has direct enforcement powers under the DMCC Act. It doesn’t need to go to court to determine that an infringement has occurred – it can make that determination itself and impose financial penalties directly on businesses and individuals. The reputational and financial exposure for non-compliance has increased substantially.

    There will be some in the sector suggesting this is all rather tiresome – more compliance burden when universities should be focused on teaching and research or restructuring for survival. Sure, sure – but for me, that response misses the point.

    Consider what the current system asks of applicants. A 17-year-old browsing a website is expected to notice that £9,535 is a Year 1 figure, intuit that fees will rise annually, locate the relevant inflation mechanism buried in terms and conditions, run compound calculations across three or four years, and identify which “additional course costs” are genuinely optional versus effectively mandatory – all while simultaneously choosing A-levels and writing personal statements.

    It’s not a reasonable expectation. It’s a system designed by people who understand it for people who don’t, and the information asymmetry falls hardest on exactly the students who can least afford to get it wrong – first-generation applicants without family knowledge to draw on, international students navigating an unfamiliar system from thousands of miles away, young people from disadvantaged backgrounds with no financial buffer for unexpected costs.

    I’m no lawyer, and some of the above might not turn out to be technically required, but it seems to me that the point here isn’t to do the bare minimum to stay on the right side of the CMA, or in England, OfS.

    It’s to recognise that when you transfer the cost of higher education onto students and graduates – when you ask them to take on £30,000, £50,000, £80,000 of debt for a degree – you take on a corresponding obligation to help them understand what they’re buying and what they’ll pay. That means straining every sinew to make pricing clear, not hunting for loopholes that let you technically comply while keeping the complexity intact.

    In other words, however much of a pain in the arse it is, transparency isn’t bureaucratic overreach. It’s just what fairness looks like when you write it down.

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  • Students don’t think anything will change. They’re probably right

    Students don’t think anything will change. They’re probably right

    The standout quote for me from new Office for Students (OfS) commissioned research on student consumer rights comes from a 21-year-old undergrad in a focus group:

    If you were unhappy with your course, I don’t know how you’d actually say to them, ‘I want my money back, this was rubbish,’ basically. I don’t think that they would actually do that. It would just be a long, drawn-out process and they could just probably just argue for their own sake that your experience was your experience, other students didn’t agree, for example, on your course.

    There’s a lot going on in there. It captures the power imbalance between students and institutions, predicts institutional defensiveness, anticipates bureaucratic obstacles, and reveals a kind of learned helplessness – this student hasn’t even tried to complain, and has already concluded it’s futile.

    It’s partly about dissatisfaction with what’s being delivered, and a lack of clarity about their rights. But it’s also about students who don’t believe that raising concerns will achieve anything meaningful.

    Earlier this year, the regulator asked Public First to examine students’ perceptions of their consumer rights, and here we have the results of a nationally representative poll of 2,001 students at providers in England, alongside two focus groups.

    On the surface, things look pretty healthy – 83 per cent of students believe the information they received before enrolment was upfront, clear, timely, accurate, accessible and comprehensive, and the same proportion say their learning experience aligns with what they were promised.

    But scratch a bit and we find a student body that struggles to distinguish between promises and expectations, that has limited awareness of their rights, that doesn’t trust complaints processes to achieve anything meaningful, and that is largely unaware of the external bodies that exist to protect them.

    Whether you see this as a problem of comms, regulatory effectiveness, or student engagement probably depends on where you sit – but it’s hard to argue it represents a protection regime that’s working as intended.

    Learning to be helpless

    Research on complaints tends towards five interlocking barriers that prevent people from holding institutions and service providers to account – and each of them can be found in this data.

    There’s opportunity costs (complaining takes time and energy), conflict aversion (people fear confrontation), confidence and capital (people doubt they have standing to complain), ignorance (people don’t know their rights), and fear of retribution (people worry about consequences). In this research, they combine to create an environment in which students who experience problems just put up with them.

    When they were asked about the biggest barrier to making a complaint, the top answer was doubt that it would make a difference – cited by 36 per cent of respondents. The polling also found that 26 per cent of students said they have “no faith” that something would change if they raised a complaint, and around one in six students (17 per cent) disagreed with the statement “at my university, students have a meaningful say in decisions that affect their education.”

    One postgrad described the experience of repeatedly raising concerns about poor organisation:

    People also just don’t think anything’s going to happen if they make a complaint, like I don’t think it would. With my masters’, it was so badly organised at the start, like we kept turning up for lectures and people just wouldn’t turn up and things like that […] We had this group chat and we were all like, ‘What’s going on? We’re paying so much money for this,’ and […] it just seemed like no one knew what was going on, but we raised it to the rep to raise it to like one of the lecturers and then […] it would just still happen. So it’s like they’re not going to change it.

    That’s someone who tried to work the system, followed the proper channels, raised concerns through the designated representative – and concluded it was futile.

    The second most common barrier captures the opportunity costs thing – lack of time or energy to go through the process, cited by 35 per cent. Combined with doubting it would make a difference, we end up with a decent proportion of students who have cost-benefit analysed complaining and decided it’s not worth the effort. Domestic students were particularly likely to cite futility as a barrier – 41 per cent versus 25 per cent of international students.

    They’ve learned helplessness – and only change their ways when failures impact their marks, only to find that “you should should have complained earlier” is the key response they’ll get when the academic appeal goes in.

    Fear of retribution is also in there. About a quarter of students cited concern that complaining might affect their grades or relationships with staff (25-26 per cent) or said they felt intimidated or worried about possible consequences (23-26 per cent). A postgraduate put it bluntly:

    I think people are scared of getting struck off their course.

    Another student imagined what would happen if they tried to escalate to an external body:

    I think [going to the OIA] would have to be a pretty serious thing to do, and I think that because it’s external to the university, I’d feel a little bit like a snitch. I would have to have a lot of evidence to back up what I’m saying, and I think that it would be a really long, drawn-out process, that I ultimately wouldn’t really trust would get resolved. And so I just wouldn’t really see it as worth it to make that complaint.

    That’s the way it is

    What are students accepting as just how things are? The two things students were most likely to identify as promises from their university were a well-equipped campus, facilities and accommodation (79 per cent) and high quality teaching and resources (78 per cent).

    Over three-quarters of students said the promises made by their university had not been fully met – 59 per cent said they had been mostly met, 14 per cent partially met and 1 per cent not met at all, leaving just 24 per cent who thought promises had been fully met.

    Yet fewer than half of respondents said these were “clear and consistent parts of their university experiences” – 42 per cent for physical resources and just 37 per cent for teaching and resources. In other words, the things students most clearly remember being promised are precisely the things that, for a large minority, show up as patchy, unreliable features of day-to-day university life rather than dependable fixtures.

    There’s also a 41 percentage point gap between what students believe they were promised on teaching quality and what they report actually experiencing – 78 per cent say high quality teaching and resources were promised, but only 37 per cent say that kind of provision is a clear and consistent part of their experience. Public First note that “high quality” wasn’t explicitly defined in the polling, so these are students’ own judgements rather than a technical standard – but the size of the mismatch is still striking.

    About a quarter of students (23 per cent) reported receiving lower quality teaching than expected, rising to 26 per cent among undergraduates. Twenty-two per cent experienced fewer contact hours and more online or hybrid teaching than expected, and twenty-one per cent reported limited access to academic staff.

    One undergraduate described being taught by someone who made clear he didn’t want to be there:

    One of our lecturers, he wasn’t actually a sports journalism lecturer, he’s just off the normal journalism course, and he made it pretty clear that he didn’t like any of us and he didn’t want to be there when he was teaching us. And we basically got told that we had to go and get on with it, pretty much. So there wasn’t any sort of solution of, ‘We’ll change lecturers,’ or anything, it’s just, ‘You’ll get in more trouble if you don’t go, so just get on with it and finish it.

    When presented with a list of possible disruptions and asked which they’d experienced, 70 per cent identified at least one type. The most common was cancellation or postponement of in-person teaching, reported by 35 per cent of undergraduates. Industrial action affecting teaching or marking hit 20 per cent of students overall, and 16 per cent said it had significantly impacted their academic experience.

    Limited support from academic staff affected 20 per cent overall, rising to one in four postgraduate students – and this was the disruption that students were most likely to say had significantly impacted their experience (23 per cent overall, climbing to 32 per cent among international students).

    Telling is how dissatisfied students were with institutional responses to disruptions. Forty-two per cent said they were not that satisfied or not at all satisfied with their institution’s response to cancelled or postponed teaching – 45 per cent said the same about the response to strikes or industrial action. In other words, students experienced disruption, they weren’t happy with how it was handled, and yet most didn’t complain, because (again) they didn’t think it would achieve anything.

    Informal v informant

    Unsurprisingly, most students (65 per cent) had never lodged a formal complaint against their institution. On its face, that could look like satisfaction – if students aren’t complaining, perhaps things are generally fine. But when you dig into the reasons students give for not complaining, about one in four students (24 per cent) who hadn’t complained said they weren’t confident they’d know how to go about it – that’s the ignorance barrier.

    And the bigger obstacles weren’t procedural – they were about believing it was pointless or fearing consequences.

    When students did complain, they were at least twice as likely to have done so through informal channels (such as course representatives or conversations, 23 per cent) than through formal procedures (11 per cent). That’s your conflict aversion in action – you try the informal route first, see if you can get something fixed quietly without escalating to a formal process that might create confrontation.

    But it also means the formal complaints processes that are supposed to provide accountability and redress (and documented institutional learning) are being bypassed by students who’ve concluded they’re not worth engaging with.

    Among those who did complain formally, around half (54 per cent) felt satisfied with their institution’s handling of it – which means nearly half didn’t. So if you’re a student considering whether to raise a complaint, and you believe there’s roughly a 50-50 chance it won’t be handled satisfactorily, if you’ve already concluded there’s a strong likelihood it won’t change anything anyway, why would you bother?

    Especially when you add in the other barriers – concern it might affect grades or relationships with staff, feeling intimidated or worried about consequences, lack of trust in the university to handle it fairly.

    The focus groups reinforce the picture of systematic dismissal. One undergraduate explained the calculation:

    If you were unhappy with your course, I don’t know how you’d actually say to them, ‘I want my money back, this was rubbish,’ basically. I don’t think that they would actually do that. It would just be a long, drawn-out process and they could just probably just argue for their own sake that your experience was your experience, other students didn’t agree, for example, on your course.

    That’s someone that has already mapped out in their head exactly how the institution would respond – they’d argue it’s subjective, other students were happy, your experience doesn’t represent a breach of contract. And, of course, they’re probably right.

    An entitled generation

    If students don’t believe complaining will achieve anything, part of the reason is that they don’t really understand what they’re entitled to expect in the first place. The research found that only 50 per cent of students said they understood and could describe their rights and entitlements as a student – which very much undermines the whole premise of students as empowered consumers able to hold institutions to account.

    When asked how well informed they felt about various rights, the results were even worse. Only 32 per cent of students felt well informed about their right to fair and transparent assessment – the highest figure for any right listed. More than half (52 per cent) said they felt not that well informed or not at all informed about their right to receive compensation. You can’t assert rights you don’t know you have.

    The focus groups then show just how fuzzy students’ understanding of “promises” really is. Participants found it difficult to identify what had been explicitly promised to them, with received ideas about higher education playing a significant role in shaping student expectations.

    They could articulate areas where their experiences fell short – reduced contact hours, poor teaching quality, limited access to careers support – but struggled to identify where these amounted to broken promises.

    One undergraduate captured this confusion as follows:

    I personally think I do get what I was promised when I applied to university. Not like I’m an easy-going person or anything, but I do get what I need in the university, yes.

    Notice the subtle shift from “promised” to “need” – the student can’t quite articulate what was promised, so they fall back on whether they’re getting what they need, which is a much vaguer and more subjective standard.

    This matters a lot, because if you don’t know what you were promised, you can’t confidently assert that a promise has been broken. You might feel disappointed, you might think things should be better, but you can’t point to a specific commitment and say “you told me X and you’ve given me Y.”

    Which means that even when students want to complain, they’re starting from a position of uncertainty about whether they have grounds to do so. It’s the perfect recipe for learned helplessness – you’re dissatisfied, but you’re not sure if you’re entitled to be dissatisfied, so you conclude it’s safer to just accept it.

    The one clear exception? Doctoral students, who were confident they’d been promised the support of a supervisor:

    When I was applying for a PhD, I applied to several universities, so I was selected and accepted in [Institution A] and [Institution B], but I decided to come to [Institution A] for the supervisor – he interviewed me, he sent me the acceptance letter.

    Getting on the escalator

    If the picture so far suggests a system where students lack confidence in internal complaints processes, the findings on external avenues for redress make sense. Only 8 per cent of all students had heard of the Office of the Independent Adjudicator (OIAHE), and the focus groups confirm there was “little to no awareness of external organisations or avenues of redress for students”.

    More broadly, more than a third (35 per cent) of students said they were unaware of any of the external organisations or routes listed through which students in England can raise complaints about their university – rising to 41 per cent among undergraduates and 38 per cent among domestic students. The list they were shown included the OIA, the OfS, Citizens Advice, solicitors, local MPs, the QAA, and trade unions or SUs like NUS. More than a third couldn’t identify a single one of these as somewhere you might go with a concern about your university.

    As for OfS itself, just 18 per cent of students overall had heard of it, falling to 14 per cent among undergraduates. Let’s go ahead and assume that they’ve not read Condition B2.

    When asked where they would go for information about their rights, the most common answer was the university website (53 per cent) or just searching online (51 per cent). About 42 per cent said they’d look to their SU for information about rights. That’s positive – SUs are meant to provide independent advice and advocacy for students. But the fact that only 42 per cent think to go there, versus 53 per cent who’d go to the university website, suggests SUs aren’t being seen as the first port of call.

    Among postgraduates in the focus groups, there was “limited interest in the use of these avenues for redress”, with the implicit sense that if intra-institutional channels of redress seemed drawn-out, daunting and potentially fruitless, it was unlikely that “resorting to extra-institutional channels would make the situation better”. If students have concluded that internal processes are bureaucratic and ineffective, they’re not going to invest additional time and energy in external ones – especially when they don’t know those external routes exist in the first place.

    Explorations

    It’s an odd little bit of research in many ways. It’s hard to tell if recommendations have been deleted, or just weren’t asked for – either way, they’re missing. It’s also frustratingly divorced from OfS’ wider work on “treating students fairly” – I know from my own work over the decades that students tend initially to be overconfident about their rights knowledge, only to realise they’ve over or undercooked when you give them crunchier statements like these “prohibited behaviours” (which of course only seem to be “prohibited”, for the time being, in providers that will join the register in the future).

    More curious is the extent to which OfS knows all of this already. Six years ago this board paper made clear that consumer protection arrangements were failing students on multiple fronts. It knew that information available to support student choice was inadequate – insufficiently detailed about matters that actually concern students and poorly structured for meaningful comparisons between providers and courses, with disadvantaged students and mature learners particularly affected by lack of accessible support and guidance.

    It knew that the contractual relationship between students and providers remains fundamentally unequal, with ongoing cases of unclear or unfair terms that leave students uncertain about what they’re actually purchasing in terms of quality, contact time, support and costs, while terms systematically favoured providers.

    It also knew that its existing tools weren’t allowing intervention even when it saw evidence that regulatory objectives were being delivered, and questioned whether a model requiring individual students to challenge providers for breaches was realistic or desirable.

    So many things would help – recognition of the role of student advocacy, closer adjudication, better coordination between OfS and the OIA, banning NDAs for more than sexual misconduct are four that spring to mind, all of which should be underpinned by a proper theory of change that assumes that not all power over English HE is held in Westward House in Bristol.

    If students have concluded that complaining is futile, there are really three possible responses. One would be to figure that the promises being made raise expectations too high. But there are so many actors specifically dedicated to not talking down a particular university or the sector in general as to render “tell them reality” fairly futile.

    Another is to try to convince them they’re wrong – better communications about rights, clearer signposting of redress routes, more prominent information about successful complaints. You obviously can’t give that job to universities.

    The third would be to ask what would need to change for complaining to actually be worthwhile. That would require processes that are genuinely quick and accessible, institutional cultures where raising concerns is welcomed rather than seen as troublemaking, meaningful remedies when things go wrong, and external oversight bodies that can intervene quickly and effectively.

    But there’s no sign of any of that. A cynic might conclude that a regulator under pressure to help providers manage their finances might need to keep busy and look the other way while modules are slashed and facilities cut.

    Why this matters more than it might seem

    Over the years, people have asserted to me that students-as-consumers, or even the whole idea of student rights, is antithetical to the partnership between students and educators required to create learning and its outcomes.

    “It’s like going to the gym”, they’ll say. “You don’t get fit just by joining”. Sure. But if the toilets are out of order or the equipment is broken, you’re not a partner then. The odd one will try it on. But most of them are perfectly capable of keeping two analogies in their head at the same time.

    In reality, it’s not rights but resignation, when it becomes systematic, that corrodes the basis on which the student-university relationship is supposed to work. If students don’t believe they can hold institutions to account, then all the partnership talk in the world becomes hollow.

    National bodies can write ever more detailed conditions about complaint processes, information provision, and student engagement. Universities can publish ever more comprehensive policies about policies and redress mechanisms. None of it matters if students have concluded that actually using those mechanisms is futile.

    There’s something profoundly upsetting about a system where three-quarters of students believe promises haven’t been kept, but most conclude there’s no point complaining because nothing will change. It speaks to a deeper breakdown than just poor communications or inadequate complaints processes.

    It’s precisely because students aren’t just consumers purchasing a service that we should worry. They’re participants in an institution that’s supposed to be about more than transactions. Universities ask students to trust them with years of their lives, substantial amounts of money (whether paid upfront by international students or through future loan repayments by domestic students), and significant life decisions about career paths and personal development.

    In return, students are supposed to be able to trust that universities will deliver what they promise, listen when things go wrong, and be held accountable when they fail to meet their end of the deal.

    The parallels with broader social contract failures are hard to miss. Just as students don’t believe complaining will change anything at their university, many young people don’t believe political engagement will change anything in society more broadly. Just as students have concluded that formal institutional processes are unlikely to deliver meaningful redress, many citizens have concluded that formal democratic processes are unlikely to deliver meaningful change.

    The learned helplessness this research documents in higher education mirrors learned helplessness – which later turns to extremism – in civic life.

    I don’t think I’ve ever heard of any uni willing to reimburse or cover if they’ve done a poor job of teaching. That’s never come to me.

    They’re right.

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  • OfS pushes ahead with two tier fairness for students

    OfS pushes ahead with two tier fairness for students

    Good news for students in England. Providers will soon be subject to tough new rules that ensure they’re treated fairly. But only if they’re in a new provider. Elsewhere, it seems, the unfairness can reign on!

    Just a few days before applications to join its register reopen, the Office for Students (OfS) has published consultation outcomes and final decisions on reforms to its registration requirements.

    It sets out the regulator’s decisions following its February 2025 consultation on changes to the entry conditions that higher education providers have to meet to register with OfS, and therefore access student loan funding. It covers:

    • A new initial condition C5 (treating students fairly), replacing the old consumer protection and student protection plan conditions (C1 and C3).
    • New governance conditions E7, E8 and E9, replacing the old governance requirements (E1 and E2).
    • Tighter application requirements, including more detailed financial planning, declarations about investigations, and restrictions on resubmitting applications after refusal.

    Conusingly, the changes interact closely with two separate consultations on subcontracting.

    First, in January 2025 the Department for Education consulted on requiring delivery providers in franchised or subcontractual arrangements to register directly with OfS for their students to be eligible for student support.

    Then, in June 2025 OfS ran its own consultation on the regulation of subcontracted provision, focusing on how such providers would be assessed, overseen, and held accountable if brought into the system.

    These reforms don’t themselves impose registration on subcontracted delivery providers, but they prepare the ground – the new conditions clarify how subcontracted applicants could meet C5 and related requirements, and OfS signals that it is ready to align with whatever the government decides on the January DfE proposals.

    Chin plasters

    We’re several months on now from the initial jaw on the floor moment, but by way of reminder – the main proposals on treating students fairly are justified as follows:

    Providers are facing increasing financial challenges. They must have effective management and governance to navigate those challenges in a way that delivers good student outcomes. Where providers are making tough financial decisions, they must continue to meet the commitments they have made to students. Our engagement with students shows that being treated fairly is very important to them and suggests that too often this does not happen.

    Against that backdrop, and repeated never-met promises to act to address student protection issues, you’d have thought that there would be progress on what is happening inside the 429 providers already on the register. Alas not – its centrepiece proposals on treating students fairly are only to apply to new providers, with a vague commitment to consult on what might be applied to everyone else (closing the stable door) at some point down the line (one the horse has bolted).

    But worse than that, in its infinite wisdom OfS has somehow managed to concoct a situation where for this tiny group of new providers, it will:

    • Remix lots of existing consumer protection law so that instead of talking about consumer rights, it talks about treating students fairly
    • In some areas go further than consumer protection law, because OfS can and has decided to in the student interest
    • In some areas not go as far as consumer protection law, because…. reasons?

    On the topline, what’s now being introduced is a new initial registration condition – C5, “treating students fairly” – that will replace the old consumer protection entry tests for providers seeking to join the OfS register.

    Instead of simply requiring a university or college to show that it has “had due regard” to CMA guidance, applicants will have to demonstrate that they treat students fairly in practice.

    To do that, OfS will review the policies and contracts they intend to use with students, and judge them against a new “prohibited behaviours” list, a detriment test, and any track record of adverse findings under consumer or company law. In effect, OfS is shifting from a box-ticking exercise about compliance to an upfront regulatory judgement about fairness.

    Providers will have to publish a suite of student-facing documents – terms and conditions, course change policies, refund and compensation policies, and complaints processes – which together will constitute their student protection plan.

    And the scope of the new condition is deliberately broad – it covers current, prospective, and former students, higher education and ancillary services like accommodation, libraries, or disability support, and information issued to attract or recruit students, including advertising and online material. In short, C5 sets a new standard of fairness at the point of entry to the system, at least for those providers trying to join it.

    Students aren’t consumers, but they are, or are they

    The problem is the relationship with consumer law. OfS is at pains to stress that new Condition C5 sits comfortably alongside consumer law, drawing on concepts that will be familiar to anyone who has worked with CMA guidance.

    It makes use of the same building blocks – unfair terms, misleading practices, clarity of information – and even names the same statutes.

    But we’re also reminded that C5 is not consumer law – it’s a regulatory condition of registration, judged and enforced by OfS as a matter of regulatory discretion. That means satisfying C5 doesn’t guarantee compliance with the Consumer Rights Act 2015 or the Digital Markets, Competition and Consumers Act 2024, and conversely, complying with the Act doesn’t automatically secure a pass on C5. The frameworks overlap, but they don’t align.

    In some respects C5 goes further. By creating its own “prohibited behaviours list”, OfS has declared that certain contractual terms – which the Consumer Rights Act 2015 would only treat as “grey list” risks – will always be unfair in the student context. Examples include terms that allow a provider to unilaterally withdraw an offer once it has been accepted, clauses that limit liability for disruptions within the university’s own control (like industrial action), or refund policies that impose unreasonable hurdles or delays.

    The list also bans misleading representations such as claiming “degree” or “university” status without proper authority, omitting key information about additional compulsory costs, or publishing fake or cherry-picked student reviews. It even extends to the legibility and clarity of terms and policies, requiring that documents be accessible and understandable to students.

    C5 also sweeps in documents that may not ordinarily have contractual force, like course change policies or compensation arrangements, and makes them part of the fairness test. In that sense, the regulator is demanding a higher standard than the law itself, rooted in its view of the student interest.

    But in other senses, C5 lags behind. Where DMCC now treats omissions of “material information” as unlawful if they’re likely to influence a student’s decision, C5 only bites when omissions cause demonstrable detriment, judged against whether the detriment was “reasonable.”

    DMCC introduces explicit protections for situational vulnerability, and a statutory duty of professional diligence in overseeing agents and subcontractors – neither concept is reflected in C5. DMCC makes universities liable for what their agents say on TikTok about visas or jobs – C5 says providers are accountable too, but stops short of importing the full professional diligence duty that the law now demands. DMCC makes clear that the full price of a degree needs to be set out in advance – including anything you have to buy on an optional module. C5 not so much.

    We will protect you

    The problem with all of that from a student point of view is that the Competition and Markets Authority is going to take one look at all of this and think “that means we don’t have to busy ourselves with universities” – despite the rights being different, and despite no such regulation kicking in in the rest of the UK.

    And worse, it makes the chances of students understanding their rights even thinner than they are now. On that, some respondents asked for wider duties to ensure students actively understand their rights – but OfS’ response is that its focus is on whether documents are fair, clear, and not misleading, and that if issues arise in practice (like if notifications flag that students aren’t being given fair or accurate information), OfS can require further information from the provider and take action.

    How on earth students would know that their rights had been breached, and that they can email an obscure OfS inbox is never explained. Even if students find the webpage, students are told that OfS “will not be able to update you on the progress or outcome of the issue that you have raised”.

    They’d likely make a complaint instead – but even if they got as far as the OIA, unless I’ve missed it I’ve never seen a single instance of OfS taking action (either at strategic/collective level or individual) off the back of the information I’m sure it gets regularly from its friends in Reading.

    I suspect this all means that OfS will now not publish two lots of information for students on their rights, depending on whether they’re new or existing members of the register – because like pretty much every other OfS strategy on the student interest, students are framed as people to be protected by a stretched mothership rather than by giving them some actual power themselves.

    I can make an argument, by the way, that sending complaints to lawyers to be assessed for legal risk to the provider, routinely ignoring the OIA Good Practice Framework, refusing to implement an OIA recommendation, not compensating a group when an individual’s complaint obviously applies to others who didn’t complain, using NDAs on complaints that don’t concern harassment and sexual misconduct, deploying “academic judgment” excuses on any appeal where the student is let down, or the practice of dragging out resolutions and making “deal or no deal” “goodwill” offers to coax exhausted students into settling are all pretty important fairness issues – but the relationship with the OIA in a whole document on fairness is barely mentioned.

    As usual, almost nothing has changed between proposals and outcome – but there’s a few nuggets in there. “Information for students” has been replaced with “information about the provider” – to make clear the duty extends beyond enrolled students and covers all marketing/info materials. The problem is that under DMCC stuff like, for example, misleading information on the cost of living in a given city is material, but under OfS “treating students fairly” doesn’t appear to be “about” the provider.

    OfS has clarified that its concerns about “ancillary services” only applies where there is a contract between student and provider (not with third parties), but has added that providers are responsible for information they publish about third-party services and expects universities to exercise “due diligence” on them and their contracts.

    Some language has been more closely aligned with the DMCCA on things like omissions and fake reviews), and in its “detriment” test providers now must do “everything reasonable” rather than “everything possible” to limit it.

    Banned practices

    In some ways, it would have been helpful to translate consumer law and then go further if necessary. But looking at the overlap between the CMA’s unfair commercial practices regime and OfS’s prohibited behaviours list reveals some odd gaps.

    OfS has borrowed much of the language around misleading marketing, fake reviews, false urgency, and misused endorsements, but it has not imported the full consumer protection arsenal. The result is that students don’t seem to be guaranteed the same protections they would enjoy if they were buying a car, a washing machine, or even a mobile phone contract.

    General CMA guidance prevents companies from mimicking the look of competitors to confuse buyers – but the practice is not explicitly barred by OfS. The CMA bans direct appeals to children – no mention of the vulnerable consumer / due diligence duties in OfS’ stuff. Under DMCC, a practice that requires a consumer to take onerous or disproportionate action in order to exercise rights that they have in relation to a product or service is banned – but there’s little on that from OfS.

    Fee increases

    One note on fees and increases – in the response, OfS points to a “statement” that anyone with an Access and Participation Plan has to submit on whether it will increase fees. It supposedly has to specify the “objective verifiable index” that would be used (for example, the Retail Price Index or the Consumer Price Index), in all cases the amount must not exceed the maximum amount prescribed by the Secretary of State for Education, and under consumer protection law, all students must have a right to cancel a contract in the event of a price increase, even where that price increase is provided for in the contact.

    Here’s the first five I found in approved Access and Participation Plans on Google:

    • “Our intention is to charge the maximum fee, subject to the fee limits set out in Regulations” (the doesn’t seem compliant to me)
    • “We will not raise fees annually for 2024-25 new entrants” (that one from a provider that has announced that it will after all)
    • “We will not raise fees annually for 2024-25 new entrants” (that from a provider who now says that for those who started before 1 August 2025, the continuing fee will be £9,535)
    • “We will not raise fees annually for new entrants” (that from a provider that now says “the fee information and inflation statement provided on page 69 of our 2025/26 to 2028/29 Access and Participation Plan are no longer current)
    • “Subject to the maximum fee limits set out in Regulations we will increase fees each year using RPI-X” (what it’s actually doing is increasing its fees by RPI-X as projected by the OBR, which is a very different figure, and no way would pass muster as an “objective verifiable index”

    I’d add here to this utterly laughable situation that the CMA is very clear that the right to cancel in the event of a material change or price increase has to be exercisable in practice:

    In the HE sector, switching course or, in some cases, withdrawing and switching HE provider, is likely to be difficult or impractical in practice, bearing in mind that in many cases the student will not be able simply to transfer their credits to another HE provider, and so saying the student can switch may not improve matters for them, or alleviate the potential unfairness of a variation.

    I’m not sure there’s a provider in the country that’s compliant with that.

    Wider changes

    On its reforms to registration requirements, the exciting news is that rather than introduce one new Condition of Registration, there’s going to be three – E7 (governing documents and business plan), E8 (fraud and inappropriate use of public funds) and E9 (on fit and proper persons, knowledge and expertise).

    In the future, providers will have to submit a defined set of governing documents at registration – replacing the previous reliance on self-assessment against public interest governance principles. Providers will also have to submit a clear and comprehensive five-year business plan showing objectives, risks, compliance with ongoing conditions, and consideration of students’ interests.

    Specific senior roles (chair of governing body, accountable officer, finance lead, and an independent governor) will have to demonstrate sufficient knowledge and expertise, usually tested through interviews. And a new fit and proper persons test will mean that those in senior governance and management roles will be subject to checks on past conduct (e.g. fraud, misconduct, behaviour undermining public trust).

    Providers will also have to have comprehensive and effective arrangements to prevent, detect, and stop fraud and the inappropriate use of public funds. A “track record” test also applies, the upshot of which is that relevant convictions or regulatory sanctions within the past 60 months could bar registration unless exceptional circumstances apply.

    You’ll not be surprised to learn that in the consultation, some worried that the changes would increase bureaucracy, slow down registration, and impose disproportionate burdens on smaller providers. Others objected to the removal of self-assessment against the Public Interest Governance Principles (PIGPs) at the point of registration, fearing this would dilute student protection or cause confusion given that PIGPs still apply on an ongoing basis.

    Concerns were also raised about creating a two-tier system where new entrants face tougher entry requirements than established providers, and about the practicality of requiring a five-year business plan when forecasting beyond two or three years is often unrealistic. Many also questioned a new interview requirement for key individuals, seeing it as costly, stressful, open to coaching, and potentially inconsistent. Just like student assessment!

    OfS was right all along, of course – arguing that the new conditions give stronger protection for students and taxpayers, that the five-year planning horizon is essential to test medium-term sustainability, and maintains that fit and proper person interviews are the most effective way to test leadership capacity.

    If you were one of the handful of respondents, it wasn’t all in vain – the phrase “policies and procedures” is now “policies and processes”, OfS has clarified the level of knowledge required (the chair and independent governor only need “sufficient awareness” of student cohorts rather than detailed operational knowledge) and a minimum requirement for fraud prevention arrangements is now in the actual condition (rather than just in guidance).

    Registering with OfS

    Much of that is now reflected in a tightening of the registration process itself. Applicants will now be required to submit a defined set of final, governing-body-approved documents at the point of application – including governing documents, financial forecasts, business plans, and information on ownership and corporate structure.

    The idea is to eliminate the previous piecemeal approach, under which providers often submitted partial or draft materials, and to ensure that applications arrive complete, coherent, and capable of demonstrating that a provider has the resources and arrangements necessary to comply with the ongoing conditions of registration.

    Some argued that the shift makes the process more rigid and burdensome, particularly for smaller or specialist providers, and warned that requiring fully approved documents could create practical difficulties or delay applications. Others were worried about duplication with other regulators and barriers to entry for innovative providers.

    Again, OfS is pressing on regardless, arguing that a standardised approach will improve efficiency and consistency, while promising proportionate application of the rules, detailed guidance on the required documents, and limited flexibility where a final document cannot yet exist.

    To the extent to which some might argue that a heavy and complex burden is a tough ask for small new providers – and runs counter to the original Jo Johnson “Byron Burgers” vision, the message seems to be that it turns out that scale and complexity is required to protect public money and the student interest. It would arguably be a lot easier (on both OfS and Independent HE’s members) if DfE was to just say so.

    Defeat from the jaws of victory

    Sometimes, OfS gets close to getting it – finally, an education regulator properly thinking through the ways in which students are treated unfairly – only to go and spoil it and say something stupid like “this will only apply to new providers”.

    As I noted when the consultation came out, what we now have is one set of rights for students in a new(ly registering) provider that they’ll never be proactively told about, and another set of much weaker ones for everyone else that they’re not told about either, all in the name of “fairness”, at exactly the point that the regulator itself admits is one where providers are under pressure to not deliver on some of the promises they made to students.

    The lack of justification or explanation for that remains alarming – and while cock up is often a better explanation than conspiracy, it’s hard to conclude anything other than OfS has proactively decided to turn a blind eye (while blindfolding students) to existing unfairness while everyone gets their cuts done. What a time to be a student.

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