It was widely reported in the media last month that the Secretary of State for Education (SoS), Damian Hind, wrote to 23 universities urging them to eliminate the practice of ‘conditional unconditional’ offers.
These offers guarantee students a place, regardless of their A-Level results, on the condition that they name that institution as their first choice. Last year, 87,000 students were given this form of offer – an increase of a third from those awarded such offers 5 years earlier.
The SoS has also asked the regulator, the Office for Students (“OfS”) to review how well admissions practices serve students, and how they can be improved considering what he regards as ‘unethical’ practice.
Mr Hind has suggested that this practice is not only damaging to the global reputation of our Higher Education (“HE”) sector, but also a possible breach of consumer protection laws (if students have greater clarity over what they must do in order to gain entry to a particular institution.). The concerns raised by the government are that the ‘conditional unconditional’ offers have a negative impact on A-Level attainment, whilst preventing students from considering potentially better alternatives. This is in some-way supported by Universities and Colleges Admissions Service’s (“UCAS”) research which indicates that students who accepted the conditional unconditional offers were 7% more likely to miss their predicted A-Level grades than those with conditional offers.
Of more concern to some, is the Secretary of State’s willingness to criticise the admissions process of HE organisations which are autonomous, and should be free from State intervention. The vice-chancellor at Worcester University has publicly stated that Mr Hinds’ comments are damaging to the reputation of the sector. The Higher Education and Research Act 2017 imposes an obligation on the government to protect institutional autonomy, and that any guidance by the Secretary of State to the OfS must not be in relation to admissions, or how educational institutions apply their own rules around admissions.
A spokesperson for UUK has commented in the media:
This independence empowers universities to approach admissions as best fits their individual contexts and the characteristics of students.
Others see this practice as having a positive impact on student welfare, with the pressure on students being eased at exam time, as opposed to simply being a pressure-selling tactic for student recruitment. Cambridge University has stated this is perhaps a natural consequence of the result of the government-led marketisation of the HE sector, which has resulted in a reduction of central government funding and increased regulation.
This political agenda -v- legal agenda and its conclusion – however that may appear – will impact how the HE sector will be governed post-Brexit. Whilst the outcome on what will happen to the ‘unconditional conditional’ practices are uncertain, what we do know is that both sides will deliver strong media pitches, and any decision or public statement that has a significantly detrimental impact on the future of universities’ independence is likely to be challenged.
Capital Law are specialist advisers in education law and can assist any institution wishing to seek advice about how to challenge the statements made by the SoS.