The 157 Group and law firm SGH Martineau have teamed up to produce a guide for college on the legal issues surrounding learners. Smita Jamdar outlines some of the key issues.
Over the last few years, the government has introduced policies to encourage greater competition and learner choice in the FE sector.
More recently this has been accompanied by an obligation on a growing number of learners to pay for their college education through loans and fees, creating a quasi-customer/supplier relationship.
Given that there may be any number of providers offering a learner’s desired qualification or study route, what drives learner choice between different providers is increasingly likely to be the quality of the overall experience on offer.
Understanding the law that applies to that experience is important if colleges are to guard against the risk of complaint and challenge from disgruntled learners.
The learner experience comprises a package of services, facilities and benefits that learners expect to enjoy as a result of choosing one provider over another. These include the quality of teaching and learning opportunities and facilities, as well as ancillary services such as careers guidance, counselling sevices, leisure facilities and placement opportunities.
The legal framework that underpins the learner experience includes contract law, requiring colleges broadly to promise only what they can deliver and then deliver what they promise.
Learners may be able to claim damages for losses suffered as a result of a failure in either respect.
Given the complexity, it would be easy to view the legal framework as just another part of the burden of compliance for colleges
A particular risk area for providers is where aspects of the contract fall to be provided by third parties, so partnership delivery, placements and the use of recruitment agents require careful attention and control.
Allied to contract law is the full panoply of consumer protection legislation which is designed to prevent colleges exercising the perceived imbalance of power in their relationship with learners by, for example, unilaterally withdrawing courses, or subjecting learners to onerous terms such as hidden fees or obligations. This is an area which is currently attracting particular attention in higher education as colleges who deliver such courses will know.
Learners are also entitled to all the protections of the Equality Act, meaning that the learner experience must be delivered without unlawfully discriminating against learners on the grounds of a wide range of protected characteristics including race, gender, religion or belief, age, sexual orientation or disability.
Disability discrimination includes a positive duty to make reasonable adjustments to eradicate any substantial disadvantage students with disabilities may experience in accessing the learner experience and this can be a challenging area for colleges.
A final strand of law that applies to the learner experience is public law, particularly relevant where a college intends to take action that has the potential to be detrimental to learners, for example by disciplining them, or taking action against them on the grounds of their fitness to practise.
Colleges are required to act fairly and proportionately when managing these adverse events for learners, often while having to balance the competing rights of other learners, staff and other stakeholders.
Given the complexity, it would be easy to view the legal framework as just another part of the burden of compliance for colleges.
However, embedding good legal risk management can deliver positive organizational outcomes. Clearly drafted college policies and codes, for example, are not just necessary as a matter of contract law, but also facilitate a transparent and open college environment where everyone knows what is expected of them.
This is why our guide to the learner experience and the law produced with the 157 Group focuses not just on the legal principles, but also practical steps colleges can take to improve and simplify the position, thus enhancing the learner experience as a whole.