However, usual predictions and algorithms used to manage admissions are likely to be redundant in these uncertain times. In particular, we might expect that the record numbers of applications from Chinese students this year will not be seen again for the next round of admissions. Conversely, the number of prospective UK students might increase.
This could leave some HEPs with far fewer students than expected and some courses significantly under-subscribed. In the alternative, some may even have more people who have met the terms of their offers, and end up with significantly higher numbers of students eligible to enrol than they have places available.
Office for Students and UK government concerns
Based on UK government reports, a small number of universities have changed a significant proportion of their offers to undergraduate students from ‘conditional’ to ‘unconditional’ in a bid to manage the uncertainty and hopefully secure their attendance for the 2020/21 academic year.
The minister for higher education in England, Michelle Donelan, has now asked providers to only make firm offers to students they can accommodate and refrain from changing their offers made to undergraduate students for the next two weeks to reduce the risk of "destabilising the admissions system, increasing financial uncertainty and volatility for all institutions at a time when universities are already facing significant pressures". She has challenged HEPs to "act responsibly to maintain the integrity of the higher education system, and avoid actions which might not be in students’ best interests, simply to maximise their intake over other universities".
In addition, Office for Students (OfS) chief executive Nicola Dandridge said the regulator "will use any powers available to us to prevent such offer making on the grounds that it is damaging to students and not in their interests".
Contract to admit
In deciding on strategies for managing admissions in this difficult period it is important for HEPs to consider not only the likely regulatory risks they face, from and OfS and under consumer law, but also their underlying legal obligations to prospective students under the contract to admit.
Where a prospective student applies to be admitted to a HE institution (HEI) the relationship between that person and the institution is based on a legal contract. The legal relationship between the parties is often referred to as the contract to admit. It is created when the prospective student agrees to accept either an unconditional or conditional offer from the HEI, usually through the UCAS system in the case of undergraduate applications and directly where postgraduates are concerned.
In in relation to each entrant the contractual principles of "offer" and "acceptance" will apply. One area of debate has often been whether the requirement for "consideration" – in most contracts this means the exchange of monetary sums or goods or services – is met.
It has been established in the courts for over a century that as long as there is a reciprocal exchange of something nominally of value "in the eye of the law" then a contract will come into existence. In the case of a prospective student this is likely to be the loss or detriment the student may arguably suffer when he or she limits his or her options by agreeing to accept an offer at one HEP at the expense of other offers available to them. The value of the consideration on the HEP's part is the fact that it has, subject to conditions being met, the knowledge that it has filled a student place and will likely receive the benefit of future tuition fees as a result.
In the situation where graduate students are concerned it is likely that a deposit will be taken as without that there is always a risk that such an arrangement is more of a simple promise and potentially not enforceable.
Enforcement of the contract to admit
In practical terms the legal risk falls entirely on the HEP. Although in theory a HEP could sue an applicant who has failed to honour their acceptance of a place for lost tuition fees, this never happens in practice. The UCAS system now allows prospective students to self release. Last year over 30,000 students holding unconditional offers used this mechanism to enter clearing.
In the event that a university is unable to admit a prospective student who has met the terms of their offer, the ability of the dissatisfied applicant to sue for breach is well-established. The requirement that the HEI compensate that student under contract was established by the Court of Appeal as far back as 1993. That case, of Moran v University College Salford (No.2), saw rejected an argument by the College that an offer through was a mere invitation to treat rather than an offer.
However, as the case confirmed, the remedy of any aggrieved applicant will be in damages as the court in that case was unwilling to grant an order, often called an order for specific performance, requiring the College to honour its offer and admit Moran.
The potential implications are likely to be different depending on the type of HEP and demographic of entry. However, in all cases there are likely to be issues which may result in difficult decisions taken regarding prospective students.