The London School of Science and Technology Limited

Students have a right to fair, clear and accessible terms and conditions in the contract they have with their university or college so that they benefit from the protections of consumer law and understand their rights.

This case report provides an example of our work to protect students’ consumer rights before and during their studies.

We have also published a version of this case report for students to explain the sort of contract terms that could undermine their consumer rights, and what they should look out for when reviewing terms and conditions. 

Where students, their representatives and students’ unions have concerns about terms and conditions, they should raise these with their university or college. If this doesn’t lead to a satisfactory outcome, they can raise a complaint with the Office for the Independent Adjudicator. They can also notify us about concerns that a university or college is not meeting its obligation to uphold students’ consumer rights. 

Only a court can determine whether consumer protection law has been breached. The case report sets out work the OfS and Trading Standards have done to ensure a provider’s student contracts do not contain terms that could be deemed unfair or to affect students’ consumer rights.

Case overview 

The OfS referred The London School of Science and Technology Limited (LSST) to National Trading Standards in April 2024, because we identified terms and conditions in the higher education provider’s contract with students that we considered were likely to be unfair. A Trading Standards assessment identified elements in LSST’s terms and conditions that it considered could be deemed to be unfair and may not comply with the provisions of Part 2 of the Consumer Rights Act 2015. LSST worked with Trading Standards to change its terms and informed current and re-enrolling students of the revised terms and conditions. The OfS is not taking any further regulatory action because LSST took action to address these issues.

This case report sets out the OfS’s role in protecting students’ consumer rights, and shows how our partnership with National Trading Standards works in practice to identify and assess whether a higher education provider’s terms and conditions could be deemed to be unfair under consumer protection law.¹ It explores the terms and conditions we had concerns about in this case, and how these were resolved through our partnership with Trading Standards and the action it took. 

We encourage other universities and colleges to use this case report to familiarise themselves with their legal obligations and to revisit their own terms and conditions where that is necessary to ensure compliance with consumer protection legislation. Any changes should be communicated clearly to students. 

The consumer rights issue

The OfS engaged with LSST in 2023, after we identified some aspects of terms and conditions in its contract with students that we considered were likely to be unfair and may not comply with consumer law. We were concerned that, overall, LSST’s student enrolment terms and conditions compromised students’ rights because the document contained clauses relating to extra costs that were not likely to be clear, intelligible and unambiguous, as required by the Consumer Protection from Unfair Trading Regulations 2008 and the Consumer Contracts (Information, Cancellation and Additional Charged) Regulations 2013 and the Competition and Market’s Authority (CMA) guidance to UK higher education providers.²

LSST made some changes to its terms as a result of our engagement. However, we identified several issues in the updated terms that gave rise to further concerns about compliance with consumer protection law.

The clauses we were particularly concerned about were:

'These terms, together with the matters referred to in any documented setting out the offer made to you (“the offer”) (directly to you by LSST and on the enrolment form or online application) form the entire agreement and understanding between you and LSST with regard to course and replace any other written or verbal promises, undertakings or representations.'

We were concerned this clause is unfair and unenforceable under the Consumer Rights Act 2015 because it supersedes all other communications, including that presented orally. This is contrary to paragraph 3.11 of the CMA guidance to higher education providers which states ‘information given to students whether in writing or in oral representations may be treated as a part of the contract and therefore be legally binding’.

'LSST reserves the right to request, at any time or after enrolment that you apply for a basic disclosure check. I.e. you will make an application to the Disclosure and Barring Service (DBS) to check for any convictions (Basic Disclosure) at your own cost and provide the results of the disclosure check to SST within 3 working days of receipt of the results from the DBS. DBS checks are not refundable in any case.'

'Irrespective of how you pay for your course fees, for example via the Student Loan Company or self-funding, course fees do not include possible additional fees incurred during your course such as resit fees, admin fees…or DBS checks, where required (the fee for which will be set by a separate DBS checking agreement)..’

We were concerned that these clauses were unclear and ambiguous because they did not provide students with adequate information and referred to a separate policy that was not easily located or presented upfront in the same place as other relevant information. This is contrary to paragraph 4.16 of the CMA guidance to UK higher education providers, which advises ‘if you do not provide prospective students with the necessary material information that they need at appropriate times, including before they make a decision about which providers courses to apply to, this may constitute a ‘misleading omission’ under the Consumer Protection Regulations.'³ This clause also did not align with paragraph 5.6 of the CMA guidance to higher education providers, which states that important information should be easy to find and presented upfront in the same place as other relevant information.

‘If payment of the course fees (or any instalment under an instalment plan) is not made by the agreed date(s), you will be charged a late fee of £15.00 per missed instalment. We also reserve the right to charge interest at 8% per annum from the date of the missed instalment.’

We were concerned that this clause did not align with paragraphs 5.8 of the CMA guidance to UK higher education providers, which advises providers to ensure any terms that may be particularly surprising or important, and especially those whose significance may be missed, are specifically brought to a student’s attention. This non-exhaustive list in the guidance includes ‘a charge that allows a higher education provider to impose a financial sanction on the student for a breach of the contract for educational services, e.g. a charge for late payment of tuition fees’.

'While LSST undertakes to take all reasonable steps to provide the course and services with reasonable care and skill, should circumstances beyond the control of LSST interfere with its ability to provide the course or the service, LSST undertakes to take all reasonable steps to minimise the resultant disruption to the course and the services.’

We were concerned about this clause because it did not contain information on the reasonable steps LSST would take to minimise disruption. It also failed to outline events that would meet the definition of ‘beyond its control’ so students could foresee when and how they are likely to be affected. This does not reflect the guidance in paragraphs 5.35 of the CMA guidance for higher education providers’.

'LSST will use all reasonable endeavours to deliver the course in accordance with the description applied to it in LSST’s marketing and promotional materials (e.g. website entries or prospectus) for the academic year in which you begin the course. However, LSST has limited resources which it has to manage in an efficient way, in the context of the provision of a wide range of courses to a large number of students. LSST therefore shall be entitled to:

• At any time to make non-substantial alterations to the timetable to you, to alter the number of classes relating to the course, alter the methods by which the course is delivered and to alter the location of delivery of the course, such changes not to be considered substantial unless they would alter the location of course, such changes not to be considered substantial unless they would alter the study mode, academic classification, or eligibility for benefits, immigration status or Council tax credit purposes of the course.”

We were concerned about this term because it provides LSST an unreasonably wide discretion to significantly vary course content and structure during the duration of the course which is contrary to paragraphs 5.22 – 5.24 of the CMA guidance to UK higher education providers. This advises at paragraph 5.26 that ‘a term that allows blanket changes and affords the higher education provider a broad discretion to change significant aspects of the course without describing the circumstances when and the reasons why this might happen, so that the student is able to foresee how and when the changes might be made and understand the impact on them, is unlikely to be considered fair given the potential detriment that could be caused to the student by significant changes to what was expected. Changes provided for in a term should be narrow in scope and limited to what is objectively necessary.

We also had concerns that these clauses included grey listed terms⁴ from the Consumer Rights Act 2015 because they had the object or effect of enabling the trader to alter terms about the contract unilaterally without a valid reason which is specified in the contract.

'LSST does not accept responsibility and expressly excludes liability, for any indirect or consequential loss or damage (including, without limitation, loss of profit, loss of earnings, loss of opportunity, and living expenses), however arising, suffered by you as a result of any breach by LSST of these terms and conditions or any other act or omission of LSST or its employees or agents.'

'If LSST is found liable to you for any breach by LSST of these terms and conditions the liability of LSST shall be limited to a refund of the course fees actually paid by you.'

We were concerned about these clauses because they are contrary to the CMA guidance to higher education providers as they seek to exclude or limit LSST’s liability to the total course fees paid by students. These types of terms may be blacklisted⁵ under the Consumer Rights Act 2015. In addition, guidance 2 (c) limitations of liability paragraph 5.6.1 states ‘if a contract is to be fully and equally binding on both trader and consumer, each party should be entitled to full compensation where the other fails to honour its obligations. Clauses which limit the trader’s liability are open to the same objections as those which exclude it altogether’.

'Although LSST shall endeavour to ensure that computer equipment and software it makes available for your use has reasonable security and antivirus facilities and protections, your use of such computer equipment and any software provided by LSST is at your own risk. LSST shall not therefore be liable for any loss or damage suffered by you as a result of use of any computer equipment or software provide or made available by LSST to you, including (but without limiting the general nature of this condition) any contamination of software or loss of files as a result of using LSST equipment or software.'

We were concerned about this clause because it sought to limit LSST’s liability for any losses incurred as a result of problems or defects in the computer equipment and software LSST provided for students – which are outside the control of students. This clause does not reflect paragraph 5.35 of the CMA guidance to higher education providers.

The Trading Standards assessment

Due to our concerns about the higher education provider’s updated terms, we referred the case to National Trading Standards. Through our partnership, Trading Standards will examine each referral it receives from the OfS. The agreement means that we are supported by Trading Standards’ expertise in understanding and enforcing consumer protection legislation so that together we can effectively protect students’ consumer rights. 

Trading Standards advised the higher education provider that some aspects of its terms and conditions may not comply with the provisions of the Consumer Rights Act 2015, Part 2 Unfair Terms. Trading Standards advised the OfS that it considered these terms could be deemed unfair under the legislation because the terms as written caused significant imbalance in the rights and obligations of the university and students, which causes detriment to students.⁶

Resolving the issue

After working with Trading Standards, LSST made the following changes:

• The entire agreement clause which superseded all other communications was removed.
• The term relating to DBS checks and associated fees was removed and paragraphs explaining the need for DBS checks were amended to include a link to the gov.uk website as well as the uncheck website so that students are aware that they will incur a cost and can compare what those costs are likely to be depending on how they make their application for the DBS check. References to the DBS checking agreement were also removed.
• The term relating to the interest LSST could charge students for late payment of fees was amended to reduce the interest rate from 8 per cent to 3 per cent.
• The term that gave LSST a wide discretion to vary course content and structure was amended to provide a clearer indication of when changes might be made and the impact they would have on students and their studies.
• The term referring to circumstances “beyond their control” without specifying what these were was amended to explain what such circumstances might be and the impact they would have on students.
• The terms seeking to limit LSST’s liability for any breach of these terms and conditions to a refund of the fees actually paid was removed and replaced with a statement acknowledging that compensation may be necessary and shall in such circumstances be awarded in accordance with consumer law.
• The terms seeking to limit liability for computer equipment was removed and replaced with a clear explanation of LSST’s responsibility for IT equipment and advised students of the requirements to abide by the “acceptable use policy”.

The OfS did not take any further regulatory action against LSST on these issues.

We will continue to refer cases to National Trading Standards where we have concerns, and we expect to publish further case reports explaining the outcomes of these cases.

Notes

[1] See New OfS-National Trading Standards partnership to protect students’ rights as consumers.

[2] This guidance Consumer law advice for higher education providers (publishing.service.gov.uk) was updated in May 2023. All references in this case report refer to the updated guidance.

[3] A ‘misleading omission’ may occur if you omit material information that the average consumer needs, according to context, to make an informed transactional decision, or if you provide material information in an unclear, unintelligible, or ambiguous way (Regulation 6 of the CPRs).

[4] The Consumer Rights Act 2015 contains a list of terms that may be regarded as unfair, known as the ‘grey list’. 

[5] Part 2 of the Consumer Rights Act 2015 contains terms and notices that are automatically unenforceable against consumers. Part 1 of the Act also blacklists certain terms and notices, making them automatically unenforceable and open to challenge.

[6] The Consumer Rights Act 2015 contains an indicative and non-exhaustive list in Part 2 Schedule 2 of terms that may be regarded as unfair, known as the grey list. This also applies to terms that have the same purpose or effect as terms on the grey list. However, these terms are not automatically unfair.