Ministers warn that institutions in England risk breaking the law by withdrawing offers

Ministers and authorities have warned vice-chancellors that if they create loopholes allowing them to withdraw offers from students at the last minute if courses are oversubscribed, they risk breaking competition laws.

The rise in A-level results has allowed more students than expected to reach their offer targets in the last two years, and several universities have withdrawn offers when it became evident that courses would be oversubscribed.

Universities have been advised to remove oversubscription terms from their offers or face possible penalties from the government, the Office for Students (OfS), the higher education regulator for England, and the Competition and Markets Authority (CMA).

Vice-chancellors were warned by Michelle Donelan, the universities minister, that it was “vital” that their offers were fair as an incentive for hardworking students to achieve their grades.

“It is therefore disappointing 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,” Donelan said in a letter sent to all vice-chancellors in England.

The OfS stated it was “concerned” that higher education institutions had included oversubscription terms in their student contracts.

“Our view is that providers should not use such clauses, as doing so would probably contravene consumer law,” the OfS stated. “A potential breach in consumer law may prompt the OfS to investigate and, if appropriate, carry out enforcement action to address any failures to comply.”

The CMA, which oversees universities for possible antitrust violations, reiterated its position that the offer and acceptance of a university place constituted a legally binding contract, with the university obligated to hold a spot if the student met specific entry requirements such as A-level grades.

The CMA stated that a condition granting broad discretion to cancel an accepted offer “is likely to be unreasonable under unfair terms regulations.” Similar agreements that limit a university’s liability if it fails to grant a place to qualified students are “inappropriate and potentially unjust.”

Universities UK, which represents the heads of large schools, said admissions choices were an important area of autonomy for universities, and that they were “fully aware of their legal obligations under consumer law and seek to ensure these are met.”

Because of the pandemic’s uncertainty, university administrators claim they’ve been compelled to withdraw spots or give incentives for students to alter courses or postpone their studies, particularly the government’s decision to scrap formal exams in favor of teacher-assessed marks. As a result, far more top grades were awarded than admissions departments had anticipated.

Donelan also applauded Universities UK and GuildHE’s work to draft a new sector-wide admissions code of practice. She did, however, urge institutions to avoid using “conditional-unconditional” offers, which guarantee a spot in exchange for candidates quickly rejecting all other options.

During the pandemic, the Office of the Superintendent of State imposed a temporary prohibition on the use of these offers, which was lifted in September. Donelan said she would “strongly advise” colleges to keep “avoiding the use of conditional-unconditional offers and other methods that may put excessive pressure on students to make decisions.”