Welcome to the first edition of Higher Education Spotlight - a quarterly newsletter designed to support colleagues working within the Higher Education sector. In each edition we will place the spotlight on a particular legal issue impacting Higher Education, with an article from one of our specialist Higher Education lawyers. 

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Emerging from lockdown and social “bubbles” for students

As Higher Education providers are busy preparing for the academic year due to start in September, but with no end to the coronavirus pandemic in sight, it is looking unlikely it can proceed as normal. A flurry of much awaited guidance over the last week has begun to indicate a roadmap for reopening. Across the board, the message is that the sector should plan on the basis of returning students to a physical campus which is adjusted to accommodate social distancing. There is growing confidence from some in the sector that it is possible to offer a ‘comparable’ quality of experience, despite the restrictions. However, this confidence may not be matched by incoming students. Universities UK’s chair, Julia Buckingham, the vice-chancellor of Brunel University, said universities would not shift wholly online but planned to offer students a “blended” education, combining some online lectures with smaller face-to-face tutorials.

Universities UK have set out some high level principles in a document detailing how this may work. The principles provide a framework for individual universities, both in the coming weeks, and as they develop their plans for the new academic year. While individual universities must tailor their approaches depending on their own unique circumstances, the publication highlights key considerations to support universities and provide transparency to students on the work underway to give them the full university experience next year. This guidance emphasises the need to ensure ‘regular, timely and clear communications to current and prospective students on what to expect in terms of course structure and delivery, assessment, quality and fees.’ This reflects the guidance issued by Office for Students (‘OfS’) on consumer protection during the COVID-19 pandemic and the briefing note on providing information, advice and guidance for prospective students.

Guidance has also been released by the Quality Assurance Agency (the ‘QAA’), the Universities and Colleges Employers’ Association and the Department for Education (see links below). These sets of guidance also focused on reasonably high-level principles, without offering specific instructions for institutions. The QAA has floated the idea of establishing of a steering group to oversee 2020/21 planning.

Across the various guidance, a notable focus is on reopening buildings and campuses, with specific guidelines for different types of building and facility, from laboratories to halls of residence. This includes how to manage social distancing on campus, risk assessments and support for socially isolated students. The general message is that an experience as close to normal as possible is to be offered, while keeping within the law and current Public Health England guidelines to minimise the spread of coronavirus. How that is achieved will of course depend on the situation come September. However, much like with schools which have re-opened, planning will need to include changes to physical layout and infrastructure where appropriate; and regularly reviewing and adapting hygiene and cleaning protocols in all university spaces in accordance with public health advice.

Wider issues arise given the traditional structure of the Higher Education experience. Many students, particularly first-years, live in halls of residence with a large number of others, sharing bathrooms and kitchen space. It remains unclear whether staying in protective “bubbles” of the same small group, living and studying with them to minimise mixing, will be sufficient to meet Public Health England guidelines even if accommodation capacity is reduced, such that fewer students would be sharing communal facilities. Universities UK suggested at a briefing that students could be kept in small groups, sharing accommodation with people taking the same course. Students would move around campus in a one-way system and whilst they may be able to meet with others outside their bubble, there would be controls on who could go inside accommodation. Large social events, including freshers’ week, would be hosted mostly remotely. There may be scope for socially distanced events, perhaps occurring in small groups. It is unclear how bubbles will work where for example modules offered on courses might involve students outside their bubble. Providers will have to be very careful about how and when they communicate their intended approach to both current and prospective students (who may be considering taking up places via clearing), given the very specific requirements of the relevant consumer legislation and their own terms and conditions.

These reforms run against the traditional student experience, and many prospective students due to start in the autumn have indicated disquiet with it. According to a survey from the University and College Union, 71% of students would prefer to push back the start of term, if it meant they had more in-person and less online teaching. The currently amorphous nature of the proposals means there hasn’t yet been hard pushback from students. However, it is likely that once these take shape, student unions will get involved. Nevertheless, all institutions face the same challenge and so students are likely to have to make decisions at a time when the whole sector is constrained.

Underlying providers’ responses to COVID-19 and adjustments to the student experience, is the need to comply with contractual obligations and the consumer law position. Often, contractual provisions offer a degree of flexibility around unforeseen circumstances or make provision for force majeure events. Whilst this may give providers the ‘green light’ to make adjustments to previously advertised arrangements from a contractual law perspective, it is still necessary to consider the position under consumer law. In particular, there is a requirement to obtain agreement to changes to ‘pre-contract’ information, which might include information about course delivery such as where or how a course is to be delivered, and modules. Providers also need to ensure that website and prospectus information is up-to-date. We have been advising providers on the balance between ensuring they have adequate flexibility to respond appropriately to COVID-19 whilst complying with various legal requirements. If you require further help and guidance, please contact Virginia Cooper, Amy Tschobotko

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The Resource Library

Free webinars

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Employment Law Webinar - Managing Workforce Issues in light of COVID-19
Tuesday 16 June, 10.00 - 11.  

Contract Management Webinar - Contract Management in the wake of COVID-19
Thursday 9 July, 11.30 - 12.30 


Higher Education in Focus - Employment Eye (April 2020)

Building Safety Fund available for residential buildings over 18 metres

COVID-19: The Transition Back to Work

UK Government publishes advice on responsible contractual behaviour

Procurement: Procurement Policy Note PPN 05/20 – The Outsourcing Playbook V2.0 June 2020

COVID-19 - Higher Education and student related challenges



Full HE resource library

Public Procurement Podcast – FAQ 4 Direct award under PCR 32 (2)(c) - extreme urgency case

Public Procurement Podcast – FAQ 3 Accelerated procedures

Public Procurement Podcast – FAQ No.2: Extension of contracts under PCR 72

Public Procurement Podcast – FAQ No.1: the application of Cabinet Office Procurement Policy Note – PPN 02/20 – Supplier relief due to COVID-19.

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The news that matters

GOV.UK guidance

Coronavirus (Covid-19) guidance for schools and other educational settings:
Collection: Coronavirus (COVID-19): guidance for schools and other educational settings
Department for Education, Cabinet Office and Public Health England | maintained (last updated 4 June 2020)
Guidance and advice about coronavirus (COVID-19) in educational settings for staff, parents and carers, pupils and students.

Guidance: Higher education: reopening buildings and campuses
Department for Education | June 3, 2020
Guidance for higher education providers in England on when and how to reopen their campuses and buildings.

Guidance: Student number controls
Department for Education | June 1, 2020
This guidance outlines measures to protect students and universities during the coronavirus outbreak, including temporary student number controls and additional places. Providers and institutions will be able to apply for additional places and are advised to visit this page from 18 June 2020 for more information.

Guidance: Actions for HE providers during the coronavirus outbreak
Department for Education | Last updated May 21, 2020
Information for HE providers on the government support package available for universities and students, the process for clearing and student numbers during the coronavirus (COVID-19) outbreak.

Office for Students (OfS)

Supporting postgraduate research students during the pandemic
OfS | 11 June 2020
The latest briefing note (attached) from the OfS looks at how universities, colleges and other organisations are supporting postgraduate research students during the coronavirus (COVID-19) pandemic.

Briefing note published on supporting prospective students during pandemic
OfS | 10 June 2020
The latest briefing note focuses on how universities, colleges and other organisations are providing information, advice and guidance for prospective students during the coronavirus (COVID-19) pandemic.

Be clear to students on how courses will be taught, regulator says
OfS | 10 June 2020
The OfS has published new guidance on student and consumer protection during the coronavirus pandemic. Universities and colleges must give students clear and timely information about how the delivery of their courses will change next year – including the extent to which they will be delivered online – as a result of the coronavirus (COVID-19) pandemic, the OfS said in new guidance published today.

Care leavers more likely to drop out of university
OfS | June 4, 2020
Care experienced students are more likely to drop out of university than their peers, but the gap is shrinking – according to new experimental data from the Office for Students (OfS).

Briefing note published on supporting international students during pandemic 
OfS | May 21, 2020
This briefing note focuses on how universities and colleges are working to support current and prospective international students during the coronavirus (COVID-19) pandemic.

The Quality Assurance Agency for Higher Education (QAA)

Supporting documentation for the higher education sector in response to the COVID-19 pandemic:
Preserving Quality and Standards through a time of rapid change: UK Higher Education in 2020-21
QAA | June 2, 2020
Universities and colleges in the UK are remodelling their curriculum delivery to enable a blend of virtual and on-site learning from autumn 2020, according to a report published by QAA. The report recommends guiding principles for higher education providers in planning teaching and assessment for next year. In the absence of any certainty about the public health context in September, universities and colleges are making plans and contingencies which allow on-site teaching to take place, while complying with distancing measures, noting that these may vary over time and in different parts of the UK.

Guidance for UK higher education providers to help contingency planning for placement provision
QAA | May 29, 2020
This paper looks at health and safety considerations for students on work placements, as well as their wellbeing and mental health. It also considers other key areas such as credit weightings, regulatory requirements, significant volume of working hours, virtual placements, and potential alternative curricula and assessments.

Guidance on contingency planning for international placements 
QAA | May 29, 2020
This paper, developed by QAA with the support of experts from across the UK higher education sector, is intended to help providers and students navigate the decision-making process on whether to cancel, defer, replace or resume optional international placements.

The impact of the COVID-19 pandemic on Higher Education in Apprenticeships 
QAA | May 29, 2020
This paper notes three key elements that higher education providers should consider regarding their support for higher education apprenticeships: their ability to adapt their teaching/training in the current circumstances; the capacity of the employer to continue to provide an appropriate setting for work-based learning; the extent to which the requirements of the apprenticeship can continue to be delivered.

Universities UK (UUK)

Principles for emerging from lockdown 
UUK | June 3, 2020
A new set of principles provides a framework for universities in the coming weeks, and as plans are developed for the new academic year. While individual universities will tailor their approaches depending on their settings and situations, the publication highlights key considerations to support universities and provide transparency to students on the work underway to give them the full university experience next year.

New guidance on mental health and wellbeing – supporting staff and students more important now than ever 
UUK | May 18, 2020
UUK has published a refreshed version of its strategic framework, Stepchange: mentally healthy universities, calling on universities to prioritise the mental health of their students and staff by taking a whole university approach to mental health, meaning that mental health and wellbeing is considered across every aspect of the university and is part of all practices, policies, courses and cultures.


Coronavirus update
UCAS | May 22, 2020
his page provides the latest update from UCAS, including the following. On 4 May, UCAS sent a letter from the Universities Minister, Michelle Donelan, to applicants in England. This included an update on Government support to students and universities. On 16 April, the Secretary of State for Education, Gavin Williamson, announced that A level results in England will be released on 13 August.

More personalised options and support than ever for students in Clearing 2020 
UCAS | May 3, 2020
Clearing Plus will match unplaced undergraduate applicants to relevant courses with vacancies. The service introduces a new personalised Clearing in 2020 and will allow students to move between universities – with individual support on offer from UCAS through emails, social media, and over the phone.

University and College Union (UCU)

Almost a quarter of prospective students fear their university could go bust as a result of Covid-19 crisis 
UCU | June 3, 2020Almost a quarter of prospective university students fear that the university they wish to study at this year could go bust because of the Covid-19 crisis, warns a UCU survey of prospective university students. Nearly half fear that damage caused by funding cuts because of the pandemic will negatively impact on their education and over two-thirds back a delay to the start of term.

Unions set out five tests government and colleges must meet before staff and students can return 
UCU | May 13, 2020
Staff and student safety must be guaranteed before colleges can reopen, said unions representing staff in further education, as they set out five tests that must be met by government and colleges.

Universities' £2.5bn 'black hole' will cost economy £6bn and 60,000 jobs, warns report 
UCU | April 23, 2020
This report, by London Economics for UCU, warns that the Covid-19 pandemic and ensuing recession will lead to 111,000 fewer UK and 121,000 fewer international first-year students attending UK universities this year, resulting in a £2.5bn funding black hole.

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