Higher education providers have been told that the use of over-recruitment clauses in admissions offers that allow them to withdraw or defer places if courses are oversubscribed are likely to be in contravention of consumer law.
On 24 November 2021, the Department for Education via the Minister for Further and Higher Education, the Rt Hon Michelle Donelan MP, wrote to vice-chancellors expressing disappointment that “during previous admissions cycles, there have been instances of providers introducing oversubscription conditions that permitted them to withdraw places where the number of students meeting offer conditions exceeded the number of places available”.
This has seemingly prompted the Competition and Markets Authority (CMA) to re-iterate its views on consumer protection law in relation to course offer terms which could either allow higher education providers to withdraw or cancel an offer after a student has accepted it (and met any entry conditions) or limit or exclude liability where they seek to withdraw or cancel an offer. The CMA goes on to say that it is likely such clauses are unfair under unfair terms legislation.
The Office for Students (OfS) also issued a statement expressing its concern at the use of such clauses and saying that they should not be used. According to the OfS, the use of such clauses may constitute a breach of general ongoing condition of registration C1, which requires higher education providers to have regard to relevant guidance about how to comply with consumer protection law (including that published by the CMA) when developing and implementing their policies and terms and conditions. This may prompt the OfS to investigate and, if appropriate, carry out enforcement action.
The disruption and uncertainty caused by the pandemic, together with the government’s decision to cancel formal exams and use teacher-assessed grades which led to a higher number of top grades than forecast, has made making accurate admissions forecasts very difficult for higher education providers. Furthermore, if providers were unable to withdraw offers, the over-subscription of courses could have potential consumer protection law consequences if facilities and staff cannot cope, as well as a potentially negative effect on the student experience.
That said, it is important that, in light of the statements made, higher education providers familiarise themselves with the CMA’s guidance and review their terms and conditions where necessary.