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Universities must bear consumer law in mind when marketing courses on social media, says expert

Out-Law Analysis | 02 Sep 2015 | 11:38 am | 5 min. read

FOCUS: As universities adopt increasingly innovative tactics to recruit new students, they must be careful not to ignore their obligations under consumer protection law and must comply with regulatory guidance.

Following the removal of the cap on student numbers from this academic year in the UK it was expected that universities would have to fight much harder to recruit prospective students - and, following this year's 'clearing' period, we can see that  universities have not disappointed. This year has seen a surge in innovative approaches to student recruitment, from offering places to students via social media to dropping grade requirements.

However, universities considering innovative approaches will need to ensure that they continue to adhere to consumer protection legislation and to comply with guidance published by the Competition and Markets Authority (CMA) in March. As fees increase and students become more like consumers, regulators are increasingly emphasising the importance of universities being clear and transparent when describing exactly what services they are going to provide.

The CMA published its guidance in response to potential consumer law abuses highlighted during a 'call for information' by its predecessor, the Office of Fair Trading (OFT). These included whether students were being given all the information necessary to allow them to make an informed decision as to an appropriate course or provider, the fairness and reasonableness of university terms and conditions and complaints-handling.

There are various stages involved in forming a student contract and universities need to ensure that each stage remains compliant with consumer law and the CMA guidance - regardless of how the initial approach is made.

Social media offers

Clearing is the process through which universities and colleges fill any places remaining on their courses once all their firm offers to potential students have been accepted. In the past, clearing places have commonly been offered through an online system operated by the Universities and Colleges Admission Service (UCAS) or through individual institutions' clearing telephone helplines. However, the existing systems have struggled to cope with the level of demand and there have been reports of long waits to get through on the telephone and online system crashes.

This year, for the first time ever, a university decided to offer clearing places to students via social media. Birmingham City University (BCU) decided to provide the alternative method following a rise in course enquiries from prospective students on social media. BCU asked students looking for a place on one of their courses to send a private message to the university on Facebook or Twitter with their name and contact details, UCAS points, including subjects and grades, and the exact name of the course they were interested in. It would then respond, and potentially offer them a place, over the same channel.

The social media service ran alongside BCU's clearing telephone line, so it did not replace the traditional approach. Instead, it offered prospective students an alternative means of contacting the university which meant that they could avoid waiting in a telephone queue and could get an instant response as to whether any places were still available.

Greenwich University also used social media to advise prospective students about what courses were available through clearing; giving them the option to get in touch on the phone, via Skype, online chat or social media. Greenwich University did not, however, make offers through social media, instead referring applicants to the traditional UCAS method while reassuring them that they had enough spaces to offer.

Alternative recruitment methods

At the University of Gloucestershire, students were offered the opportunity to ‘jump the queue’ for clearing places on A-level results day by pre-registering for the university’s “VIP Clearing” service online. Once registered, students received details of the university’s available clearing places by email at 6am on results day – an hour before many other universities’ clearing helplines and services started. Other universities reportedly dropped the grade requirements for places on courses in order to attract students through clearing, while some universities even made unconditional offers to applicants before they knew their A-Level results.

Forming the contract

With undergraduates now paying £9,000 each to universities, the CMA is increasingly focussed on the relationship between them and their students under consumer law. The CMA's view is that students are in a vulnerable position because once they have enrolled on and started a course, it is difficult for them to switch to another university – or, to use the consumer law term, alternative ‘service provider’.  Consequently, the CMA is seeking to ensure that students are given the opportunity to make an informed choice at the very beginning.  At the same time, students are paying increased fees and expect value for their money.

Regulators are therefore placing increasing emphasis on the importance of universities being clear and transparent when describing exactly what services they are going to provide. The ‘pre-contractual’ information that institutions provide to prospective students has an important part to play in ensuring that the university is not in breach of consumer law.

Stage 1: research and marketing

Before entering into a contract, prospective students must be given information about how the course will be delivered and what it involves. Information provided needs to be true, clear and unambiguous as this forms part of the representations made by a university to prospective students enticing them to choose that course and that institution. It is unlawful to mislead prospective students by giving them false information that they then rely on when choosing which institution to study at.

Although this requirement obviously applies to information made available on university websites, in prospectuses and in course handbooks, it may also include information offered by a staff member via social media. This will usually form part of the pre-contract information, and will be binding if the student accepts the offer.

Stage 2: the offer

The obligation to continue to provide concise pre-contractual information does not stop at the marketing materials. The CMA recently highlighted the importance of providing prospective students with “crucial” information at the offer stage to assist them in making an informed decision about which institution to study at. This information can be quite detailed and include the main characteristics of the course, the duration of the contract, the total price for the services and details of other potential “unforeseen” costs. This information must again by accurate and not misleading.

The CMA also highlighted the need for an institution’s terms and conditions to be easily accessible at the point of offer, with important terms drawn to the prospective student’s attention. It is not clear whether, when using social media to market courses and make offers, universities are fully able to comply with these requirements – particularly where there are character or word count restrictions.

Scrutiny to continue

With the government having lifted the cap on student numbers, competition between universities to attract the best students will only increase – particularly during clearing, with some institutions reporting that places remain even on their most popular courses. Social media can provide forward-thinking universities with an easy and convenient way to supply prospective students with information about remaining places given the huge use of these services among young people in particular.

However, the importance of universities providing clear and transparent information about the services that they provide must not be underestimated when offering places through social media. With the chancellor signalling that “high quality” universities may be allowed to raise tuition fees still further as part of the Summer Budget, the CMA’s increased scrutiny of this area is expected to continue.

Tara Hepworth is a universities law expert at Pinsent Masons, the law firm behind Out-Law.com.