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Education e-briefing - Student Accommodation

  • United Kingdom
  • Education - Briefings

05-04-2018

Welcome to the fourth in our series of Student Accommodation e-briefs for universities, colleges and private providers. These e-briefs highlight aspects of the student accommodation contract which pose challenges for the education sector.

This time we focus on how consumer law impacts on student accommodation contracts and what providers ought to be considering as part of the student accommodation contract in that regard.

Since 2015, the education sector has come under closer scrutiny in respect of its consumer law compliance following the publication by the Competition & Markets Authority (the CMA) in March 2015 of guidance to HE providers on consumer protection law.

The topic is now the focus of yet greater scrutiny with the introduction of specific registration conditions in connection with consumer protection law by the Office for Students (OfS) in its new regulatory framework for higher education providers in England. In respect of these, the OfS has made clear that “student contracts” include not only the contract for academic services but also other contracts into which a student may enter as part of the higher education experience including contracts governing the provision of accommodation (Condition C1: Guidance on consumer protection law).

Institutions should therefore be mindful of the application of consumer law to the contracts into which they enter with students for the provision of accommodation.

Failure to comply with consumer law exposes institutions to significant risks including complaints and legal claims, reputational damage and even criminal liability under the Consumer Protection Regulations 2008.

What is sometimes overlooked is that much of the consumer law addressed by the CMA in its recent guidance, and now addressed by OfS, is not, in fact, “new” law but something with which institutions should already be compliant.

It is worth noting that the provisions of the Consumer Contracts Regulations 2013 (which include a requirement to give students cancellation rights in certain circumstances) do not apply to the provision of accommodation contracts, although many institutions choose to apply some of the student protection provisions set out in these regulations as a matter of good practice and consistency with their academic services contracts.

Crucially, however, under the Consumer Rights Act 2015, the terms of the student accommodation contract should be “transparent” and in “plain and intelligible language” and, where written (as most terms will be), “legible”. In particular, terms dealing with the price to be paid by the student for the accommodation, and other charges made under the accommodation contract, must be “transparent” and “prominent” or they will risk being assessed for fairness. As we mentioned in our last e briefing, the same principles apply to rent deposits.

All the terms that are to form part of the accommodation contract should be properly incorporated at the point the contract is formed as it can be difficult to vary an accommodation contract once it has been entered into, even where the agreement includes a valid variation clause. The rights of the institution to vary the contract (e.g. to change the nature of the accommodation services or to increase fees or other charges) will need to be clear, fair and robust, as should the entitlement of students and the institution to terminate the accommodation contract.

Students’ obligations and the institution’s powers under the accommodation contract should be clearly set out, including in respect of students’ conduct obligations and the institution’s powers to take action and impose sanctions in the event of breach by a student of those obligations (including removal from the accommodation). The disciplinary process under which suspected conduct breaches will be dealt with should be clear, fair and properly incorporated into the accommodation contract and sanctions should be proportionate to the nature and seriousness of the offence committed (if proven).

Rights of entry in favour of institutions to enter students rooms should be expressly included (if required) and also set out when an institution can require entry and the extent of the institution’s right to search student rooms.

Particular care should be taken when seeking to impose sanctions on students collectively where the specific culprits of an offence (e.g. damage to the accommodation) cannot be identified.

Terms which do not comply with the above risk being challenged as being “unfair” and may be unenforceable in law which would mean that the institution would not be able to rely on them.

It is also important that institutions consider the alignment of the terms of the student accommodation contract with those of the student contract including in respect of the application of student regulations generally and termination of students’ registration.

Finally, if student accommodation is being delivered through private sector providers, the institution should also seek to ensure that any overarching nomination agreements to which they are a party align with their obligations to students under consumer law. Specifically where an institution enters into a nominations agreement with a private provider, the institution should include an obligation on the private provider to comply with consumer law in the agreements it enters into with the students for their accommodation. It may also want the form of accommodation agreement annexed to the nominations agreement with an obligation on the private provider to consult with the institution before making amendments to it. Often it will be the institution that is criticised for non-compliance even though it is not the one entering into the accommodation contract.

Eversheds Sutherland has a wealth of experience advising on student accommodation contract-related issues in the HE and FE sectors. If you would like to discuss how Eversheds Sutherland may assist you in managing any of the issues addressed above (or any other student contract / consumer related issues).

For more information contact

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