The Student Consumer Contract

When you accept an offer from Cardiff University and enrol on your course, you are entering into a legally binding contract that will give you both rights and responsibilities. As an individual agreeing a contract with a business, you are legally deemed as a consumer and your contract is a consumer contract. This is important because it gives you additional rights.

Your rights and responsibilities come from:

• The terms of your contract with the University;
• Anything the University promised to you, that was so important it made you decide to enter into the contract;
• Consumer Rights Legislation;
• Authoritative guidance from Statutory bodies;
• The Human Rights Act 1998;
• The Equality Act 2010.

If the University breach your contract or you find that they have misrepresented it to you in a way that really matters, you may be able to claim compensation, a partial refund or repeat performance at the University's cost.

Addressing any Problems

If you feel that the University are breaching your consumer rights by, for example, making unexpected and/or unreasonable changes to your course, or are not delivering the essence of what they promised, you can take steps to seek redress.

• The University Complaints Procedure. In the first instance, you will usually be expected to raise your concerns through the University's Complaints Procedure. This Procedure allows for practical remedies (immediately addressing the quality of online lectures or changing supervisor) and financial remedies (compensation). You will always have to exhaust the University's internal processes before you can approach the independent ombuds body, the Office of the Independent Adjudicator (OIA) and you will usually be expected to have taken steps to try and resolve any issues before taking legal action. Further information and advice on how to raise a complaint is available on our University Complaints webpage.
• The Academic Appeals Procedure. The Complaints Procedure does not allow for an acdemic outcome so, if this is what you are seeking (e.g. a further attempt at an assessment, an extension, uncapping of grades), you will need to submit an academic appeal. In some instances you may need to consider submitting a complaint and an appeal and further information on this point is available on our Appeal Complaints page.
• The OIA. If, after exhausting the University's internal procedures, you are unhappy with the outcome, you can complain to the OIA. Further information on how to do so is available on our OIA Complaints webpage.
• Make a court claim for money. If you are not happy with the outcome of the OIA complaint, you can consider making a claim to the court for either a common law or statutory remedy (as explained above). Quantifying the amount of your claim can be difficult and you may want to seek legal advice. If you are claiming for a breach of contract you will need to show that the losses you are claiming for were caused by the breach and were reasonably foreseeable. If you are claiming for a specific amount, you can claim online. If you want to ask a judge to decide the amount, you will need to complete a paper form, which is a more expensive route. Further information on how to claim and what and when you need to pay is available on Gov.uk.

Your Rights

The information below explains where your rights come from and what you can ask for if things go wrong. You will see on our Writing your Complaint page, that it is important to refer to the University's obligations if you are asking for them to put something right.

Contract Terms

Contract terms are more commonly referred to as terms and conditions or ‘the fine print’. Terms and conditions identify and describe the rights and responsibilities of each party in that particular contract. If either party fail to adhere to the terms and conditions as described, they will be deemed as being in breach of contract. If one party breaches the contract, the other party is usually then entitled to seek some form of redress (i.e. that the breach is put right or compensation is paid).

Contract terms can be:

• Express. Express terms are those that have been said or written and agreed as being part of the contract; or
• Implied. An implied term is one that is essentially forced in by law, whether it is written in or not. See the Consumer Rights Legislation section below for more information on this point.

The University’s terms must be fair, accessible and transparent. The University should also draw your attention to any terms that may be particularly surprising or important, and whose significance may be missed. An example of such a term could be a provision that sets out how tuition fees may change during the course. It also arguably covers the possible changes from blended to entirely remote learning.

The Competition and Markets Authority’s (CMA) Higher education: guide to consumer rights for students states that terms may not be fair, accessible and transparent if, for example, they are:

• only provided at the time you meet the requirements of a conditional offer or at the time you enrol;
• only available on a university’s intranet, which can only be accessed by existing students;
• set out in a number of lengthy documents or across a number of locations (for example on the university’s website); or
• not written in plain language so you are unable to understand the meaning and how the terms could affect you.

This is particularly important in student contracts because, unlike in some other consumer contracts, in practice it is likely to be difficult for you to switch to another course or university if a change is made that you are not happy with.

Your contract with the University has a vast amount of terms and conditions, coming from a variety of sources. These terms and conditions should be brought to your attention before you accept an offer of a place. You should be given a reasonable opportunity to read and understand the terms before you are asked to accept them.

Importantly, if the University do this, you will usually be bound by the terms and conditions, whether you have read them or not. Any terms not made available to you before you agreed the contract are arguably then not part of it.

Sources of express terms and conditions.

Some of the most important terms of your contract with the University are detailed in the University’s Academic Regulations. These Regulations are supplemented by separate Policies and Procedures, all of which are accessible through links within the Regulations themselves.

The Academic Regulations and associated Policies and Procedures dictate what the University expect from you and what they are promising to deliver themselves. They cover a wide variety of matters, such as your attendance and engagement, how to report extenuating circumstances and what the University will do if they are concerned you have cheated in an assessment. They also cover the finer details of your course, such as how many attempts you are allowed at an assessment, how your degree will be calculated and how long you can study for.

Some parts of the Academic Regulations refer to other documents and promise to meet the requirements set by them. This means that the University is effectively adding those documents into your contract and you can also rely on them when looking at what your rights are in certain matters. These documents are also considered authoritative guidance (explained below) and include:

• The OIA Good Practice Framework. This is a document produced by the ombuds body, the Office of the Independent Adjudicator (OIA);
• The QAA’s UK Quality Code for Higher Education. This is a document produced by the Quality Assurance Agency (QAA), the independent body entrusted with monitoring and advising on standards and quality in UK higher education;
• The QAA’s supporting Advice and Guidance on dealing with specific issues.

Variation/Exclusion Clauses

A variation clause is one that allows a party (in this context, the University) to vary the terms of the contract, usually without your permission. An exclusion clause is one that attempts to exclude liability for failing to deliver the service to the required standard. The law does allow for both but, in a consumer contract, any such term must meet the legal requirement for fairness. An unfair term is not binding on the consumer and so is unenforceable (see Unfair Terms section below).

The University have included a variation clause in their Academic Regulations, which currently say that

“The University reserves the right for the Vice-Chancellor to vary arrangements in exceptional circumstances, which are beyond the University’s reasonable control…

Where such events occur the University will seek to minimise the impact on the student learning experience by, for example:

• delivering a modified version of the same Programme; or
• by making available to affected students such learning support and/or services and facilities as it considers appropriate; or
• offering affected students the opportunity to transfer to another Programme, or to withdraw and be given reasonable support to move to another university…

The University will provide continued assurances of the standard and quality of the award. Students will be informed of any changes to learning support, services and facilities by the University as soon as is practicable.”

For full details please see ‘Variation of Arrangements’ in the University's Academic Regulations.

Unfair Terms

The Consumer Rights Act 2015 states that unfair terms are not legally binding, unless you choose them to be. This means that the University cannot enforce any term in your contract that does not meet the legal test for fairness.

The fairness of variation and exclusion clauses has been considered by the CMA in light of changes made to contracts because of the Coronavirus pandemic. The CMA Statement on coronavirus (COVID-19), consumer contracts, cancellations and refunds suggests that 

Variation clauses are likely to be unfair and unenforceable under Part 2 of the Consumer Rights Act 2015 if:

• they have the effect of a ‘blank cheque’ allowing (the University) to adjust important aspects of the contract at will
• the (University) is not required to give the consumer reasonable notice of any changes
• the consumer does not have a right to freely cancel the contract without being left worse off

The CMA Higher Education: guide to consumer rights for students states

“Terms allowing changes to be made, for example to your course, will not be automatically unfair as there needs to be a reasonable amount of flexibility, for example to allow adjustments for recent theories and practice in an area. However, this has to be balanced against the overarching requirement that you should receive the service you expect…

A term will not be made fair just because a university says that any changes it makes will be reasonable, as you will still be unclear about what changes may be made, and opinions on what is reasonable may vary.”

Essentially, this means that what is or is not fair, depends on the circumstances in each case. The University is likely to be able to rely on their variation clause to cover some small or temporary changes, provided the quality of teaching remains the same and the affected students are fully informed. They are less likely to be able to rely on it to cover more severe changes or changes that mean they are not providing the essence of what was promised.

Breach of Contract

If the University fail to provide their service with reasonable care and skill and as described in the terms and conditions, they will be in breach of contract. If this happens, you will be entitled to ask for a remedy. In many cases this remedy will mean the University putting right what they have done wrong by taking some kind of action, e.g. repeating a lecture, appointing a new supervisor, disregarding an assessment that was incorrectly conducted.

Common Law Remedies

The common law also allows you to argue a claim for damages (compensation). The common law comes from a vast history of decisions made by judges that have become legally binding, even though they are not written in statute.

The general principle behind an award of damages for breach of contract is to put the victim of the breach, so far as money can do so, in the position they would have been in had the contract been properly performed (Robinson v Harman (1848)).

There are two elements that can be claimed for (Hadley v. Baxendale (1854)):

• Losses that arise naturally from the breach in the usual course of things;
• Losses which ought to have been in the contemplation of the parties at the time the contract was formed.

Statutory Remedies

Statutory remedies are those that are written in an Act of Parliament (statute). If the University are found to be in breach of contract, the Consumer Rights Act 2015 says that you are entitled to

• Repeat performance at the University’s cost, provided that it is possible for the University to do so within a reasonable time;
• A reduction in price. In practice this means a proportionate refund, depending on the seriousness of the breach. It can be a full refund if the breach is serious enough and repeat performance is not a realistic option.

Misrepresentation

Misrepresentation in law is where one party makes a false statement of fact that the encourages the other party to enter into a contract.

Importantly, this must be a false statement of fact, not opinion. If, for example, the University say “we think you will be happy studying with us” and you are not, you are highly unlikely to have any right to redress. If, however, the University say that they will be providing 50% of your lectures in a face to face environment but then provide all sessions remotely, you may be able to argue misrepresentation.

Misrepresentation allows the innocent party to:

• Rescind the contract, which means ending it without penalty because of the misrepresentation. If you find that the University has misrepresented the contract to you and you want to end it, you will need to do so within a reasonable time of discovering that the information was false; and/or
• Claim damages (compensation). This can be a complicated area of law and you may find it easier to rely on your rights under the Consumer Rights Act 2015 (see below).

Consumer Rights Legislation

Competition and Markets Authority (CMA)

The CMA is an independent non-ministerial department, that work to ensure that consumers get a good deal when buying goods and services, and that businesses operate within the law.

In 2015, the CMA issued their Higher education: guide to consumer rights for students stating that

“Students have consumer rights. Universities and other higher education providers that don’t meet their obligations to undergraduate students may be in breach of consumer protection law.”

The relevant consumer protection legislation includes:

• Consumer Protection from Unfair Trading Regulations 2008 (CPRs)
• Consumer Rights Act 2015

It is a requirement of the CPRs that universities give you certain information up front, so that you can make an informed decision about where to apply. This is known as material information under the CPRs.

Consumer Protection from Unfair Trading Regulations 2008 (CPRs)

In the CMA’s Higher education: guide to consumer rights for students they suggest that material information is likely to include the following:

(a) Course information, including:

• the course title;
• the entry requirements (both academic and non-academic) and an indication of the standard/typical offer level criteria;
• the core modules for the course and an indication of likely optional modules, including whether there are any optional modules that are generally provided each year;
• information about the composition of the course and how it will be delivered, and the balance between the various elements. This will include the number and type of contact hours that you can expect – for example, lectures, seminars, work placements, and feedback on assignments. It will also include your expected workload, such as the expected self-study time, and details about the general level of experience or status of the staff involved in delivering the different elements of the course;
• the overall method(s) of assessment for the course, for example by exams, coursework or practical assessments, or a combination of these;
• the award to be received on successful completion of the course and, if relevant, the awarding body or institution;
• the location of study or possible locations – this should also include the likely or possible location of any work placements to be undertaken (where known);
• the length of the course;
• whether the course and university is regulated and by whom, for example, where it is regulated by the Higher Education Funding Council for England or Higher Education Funding Council for Wales, or has a specific course designation;
• whether the course is accredited, for example by a Professional, Statutory or Regulatory Body, and by whom; and
• any particular terms, such as those in the university’s rules and regulations, that apply to the course that you may find particularly surprising (for example, a term explaining that the body awarding the degree is different from the university running your course) or are otherwise important (for example any rules or regulations whose contravention might prevent you from completing your course).

(b) Total course costs, including:

• tuition fees – this should include, if applicable, whether fees in future years will increase and by how much (for example, in line with inflation). If increases will apply to only a certain group (such as international students) or in respect of a particular course, this should be made clear. If the future fee is not known, universities should indicate clearly the criteria for any future changes and how the changes will be calculated. Note that any possible fee increases should be restricted to limited circumstances where the university has valid reasons for making the change; and
• other extra costs you are likely to incur, for example field trips, bench fees or studio hire. Universities should also indicate how much these extra costs are or are likely to be. Where they are unknown or uncertain, universities should set out how they will be calculated and whether they are optional or mandatory for undertaking or passing the course. It is particularly important that universities highlight any course costs that are likely to have a direct impact on the outcome of your academic success, such as a field trip on which a piece of work will be based.

Universities should also set out when and how fees and any other costs are payable and when you will become liable for payment.

Consumer Rights Act 2015

The Consumer Rights Act 2015 gives you some very important rights. It says that the University

• Must provide their service with reasonable care and skill;
• Are legally bound by any information they give you that you rely on when deciding to enter into the contract, or rely on when making decisions during the contract. This includes anything said and anything written (though verbal promises are very difficult to prove if they are denied later).
• Cannot rely on any variation or exclusion clause to limit or exclude liability for either of the above points.
• Cannot enforce any terms that are legally deemed as unfair.

If the University breach the contract, the CRA says that you are entitled to

• Repeat performance at the University’s cost, provided that it is possible for the University to do so within a reasonable time;
• A reduction in price. In practice this means a proportionate refund, depending on the seriousness of the breach. It can be a full refund if the breach is serious enough and repeat performance is not a realistic option.

Authoritative guidance from Statutory bodies.

As above, some parts of the Academic Regulations refer to other documents and promise to meet the requirements set by them. This means that the University is effectively adding those documents into your contract and you can also rely on them when looking at what your rights are in certain matters. These documents are also considered authoritative guidance because they are produced by statutory bodies directly involved with the Higher Education sector and include:

• The OIA Good Practice Framework;
• The QAA’s UK Quality Code for Higher Education.
• The QAA’s supporting Advice and Guidance on dealing with specific issues.

OIA Good Practice Framework

The OIA Good Practice Framework is a group of documents produced by the ombuds body, the Office of the Independent Adjudicator (OIA). These documents set out the overriding principles and operational guidance intended for use by the University in ensuring their processes are robust, fair, transparent and timely.

The Good Practice documents include:

• The Good Practice Framework: Handling complaints and academic appeals;
• The Good Practice Framework: Supporting disabled students;
• The Good Practice Framework: Disciplinary procedures
• The Good Practice Framework: Delivering learning opportunities with others
• The Good Practice Framework: Fitness to  practise

OIA Position on Coronavirus and Tuition Fee Refunds

In addition to the Good Practice Frameworks, the OIA also issues guidance that is considered as authoritative, even if it is not part of your contract. Guidance issued by the OIA is authoritative because the OIA are the ombuds body and the independent student complaints scheme for England and Wales. It is now a legal requirement, under the Education Act 2005, for Higher Education Providers in England and Wales to become members of the OIA.

Importantly, in terms of changes made to courses, the OIA briefing note 2: Our approach to complaints arising from the effects of coronavirus (COVID-19) - June 2020 states that

What students can reasonably expect, and what providers can reasonably be expected to deliver, is likely to change and evolve as circumstances change and evolve, especially if restrictions are tightened again. But providers should be planning to deliver what was promised - or something at least broadly equivalent to it - and to ensure that learning outcomes can be met. It’s unlikely to be reasonable not to do that, especially now the initial crisis period has passed.

Where providers have not or decide they cannot deliver what was promised they will need to consider how to put that right. A blanket refusal to consider tuition fee refunds in any circumstances is not reasonable. There may be groups of students that are particularly affected, and providers should take steps to identify those groups and address their issues. But they also need to consider concerns raised by students about their individual circumstances.

There are examples of decisions made by the OIA in relation to issues around Coronavirus available on the OIA website here. Importantly, the OIA decisions seem to show that:

• a complaint and refund request based solely on the fact that teaching is remote is unlikely to be upheld. This case was found NOT JUSTIFIED because the student had not been academically disadvantaged, could meet their learning outcomes and progress with their studies.
• compensation may be recommended where the university has failed to ensure that a student can meet the learning outcomes in any module(s). This case was found PARTLY JUSTIFIED because the univeristy had failed to mitigate the disruption to a student's learning experience in one particular module and had not ensured that the delivery of the module was broadly equivalent to its usual arrangements.

QAA’s UK quality Code for Higher Education

The QAA’s UK Quality Code for Higher Education is a document produced by the Quality Assurance Agency (QAA), the independent body entrusted with monitoring and advising on standards and quality in UK higher education. It describes itself as a "key reference point for UK higher education, protecting the public and student interest, and championing UK higher education's world-leading reputation for quality." It is made up of a number of elements that provide a reference point for quality assurance:

• Expectations - express the outcomes providers should achieve in setting and maintaining the standards of their awards, and for managing the quality of their provision. They are mandatory requirements for all UK providers.
• Core practices - represent effective ways of working that underpin the delivery of the Expectations and result in positive outcomes for students. They are mandatory requirements for all UK providers.
• Common practices - focus on enhancement. They are mandatory requirements for all providers in Scotland, Wales and Northern Ireland. In England, providers may wish to work towards these, but are not required to do so as they are not regulatory requirements and will not be assessed as part of the OfS's regulatory framework.
• Advice and guidance - made up of sector-developed themes, designed to support providers in developing and maintaining effective quality assurance practices. This is not mandatory for providers, but illustrative of a range of possible approaches.

The QAA have also issued a list of Subject Benchmark Statements, written by subject specialists. Subject Benchmark Statements describe the nature of study and the academic standards expected of graduates in specific subject areas. They show what graduates might reasonably be expected to know, do and understand at the end of their studies.

HEFCW

The Higher Education Funding Council for Wales – HEFCW – is the public body operating between Welsh Government and higher education providers. Under the Higher Education (Wales) Act 2015, HEFCW may become involved in issues with regulated institutions in certain areas. Importantly, this includes "inadequate quality, or quality that is likely to become inadequate". The assessment of quality here considers the baseline regulatory requirements of the Quality Assessment Framework for Wales.

In June, 2020, HEFCW issued the, W20/19HE: COVID-19 impact on higher education providers: information on consumer protection, student expectations and quality, which provides an update on actions that HEFCW is taking with regards to quality, standards and the student experience, in response to the Covid-19 pandemic. It provides information for institutions on matters which they should consider in implementing their plans for 2020/21.

This guidance echoes the themes of the CMA and OIA; that flexibility is needed but that students should be fully informed in a timely manner and can still rely on their consumer rights.

Contact Student Advice

Advice@cardiff.ac.uk
+44 (0)2920 781410