SPAs mission and role

1. Break-out: 3D How competition law affects HE admissions – issues to considerUCAS Admissions Conference, Tuesday 14 April 2014John Holliday, UCAS Legal Counsel and Janet Graham, Director, SPA

2. SPAs mission and role • SPA promotes fair admissions and access to higher education in the UK by developing and leading on good practice in the recruitment and selection of students, to support HE providers. • SPA is an independent and objective Programme, funded by HEFCE, DELNI, SFC (for a contextualised admissions project), UCAS and Universities UK • We undertake desk and field based research, evaluate and commission research enabling us to develop evidence based good practice to support professionalism in HE admissions • Small team of 5, all with HE admissions experience, plus admin support.

3. What is Fair Admissions? • be transparent • enable institutions to select students who are able to complete the course as judged by their achievements and their potential • strive to use assessment methods that are reliable and valid • seek to minimise barriers to applicants • be professional in every respect and underpinned by appropriate institutional structures and processes “Equal opportunity for all individuals, regardless of background, to gain admission to a course suited to their ability and aspirations.”

4. Aims of Session – and a Disclaimer …. • Raise Awareness • Stimulate Discussion, including on recent OFT Report • SPA cannot provide any legal advice, HE providers need to take their own advice • For many scenarios, cannot say what is “right” or “wrong” BUT …. We can • Make you aware of some of the facts and background • Suggest some approaches to managing the risk • Make you aware of some areas where you may want to exercise caution and/or seek your own legal advice

5. Competition Law: The Facts • The Purpose of Competition Law is: • To promote and maintain vigorous competition • To deliver dynamic markets and enhanced productivity • To protect both businesses and consumers from activity such as price-fixing and capacity-fixing

6. Competition Law: The Facts • An activity may be deemed anti-competitive if it has an appreciable negative effect on competition e.g. • Unreasonably restricts consumer choice • Artificially raises prices • Unfairly prices other similar businesses out of the market • This may be caused by: • Businesses entering into an anti-competitive agreement (a “cartel”) • Businesses exchanging commercially confidential information, allowing their business strategies to become artificially aligned.

7. Office of Fair Trading • Office of Fair Trading Call for Information on Higher Education in England Oct - Dec 2013 • Summary of findings and proposed next steps published March 2014 • While this interest is specifically in England, the other countries of the UK are equally covered by the same Competition Legislation. • OFT’s stated interests include how universities decide what fees to charge, how students make well-informed choices and whether the application process may affect how universities compete • Note that the OFT’s interest is about consumer protection as well as competition (the two are related but not identical)

8. OFT Report March 2014 1 • Note: the OFT was replaced by the Competition and Markets Authority (CMA) from 1 April 2014 • Sector generally operating well in competition terms • The current rules • preventing simultaneous applications to Oxford and Cambridge • limiting main-cycle UCAS applications to five choices have been deemed not sufficiently anti-competitive to pursue further ... • No evidence of price-fixing (in terms of tuition fees) found

9. OFT Report March 2014 2 • Consumer protection issues (rather than competition issues) have emerged as the main concern • Issues for the admissions sector include: • Insufficient clarity of terms and conditions for enrolled students, including issues of how these are communicated to applicants * • Some lack of clarity in course information for applicants and students • On information/data sharing, the message is that this could infringe competition law where it “runs the risk of reducing the level of competition between institutions”... but examples of where this might or might not happen were not given • *SPA has circulated some information to HE providers on the admissions aspects

10. Information Sharing • Sharing of information about future prices or places is presumed “anti-competitive” • Sharing of other types of Information can be illegal where they have the effect of restricting competition • Note that any restrictive effect : • requires assessment of the market, type of information, frequency and detail of information being shared • of information exchanged may be outweighed by beneficial effects e.g. benchmarking, good practice • So could this apply if HEIs share confidential information on: • Plans for future capacity e.g. Courses to be discontinued or set up ...? • Data on current courses / applicant numbers ...?

11. Information Sharing .... • MAY be less risky if: • It is already in the public domain • It is historical • It is aggregated to a high level • It is generic “best practice” sharing. • WILL be more risky if: • It relates to future plans • It relates to charging certain levels of fees or offering certain financial support. • It relates to which offers to accept and reject. • Capacity and number of places. • Planned investments not in the public domain BUT .... Agreeing to restrict prices, places or innovation IS likely to be illegal

12. And don’t forget .... • There is no such thing as “Off the record ...” • Legislation applies regardless of: • Setting • Time of day • Informal nature of your surroundings • Whether discussions are oral or written

13. Scenarios 1 • Two heads of admissions at comparable • neighbouring universities are chatting • over drinks in the evening following a • conference. • They exchange views on the viability of • offering degrees in humanities subjects • in the current climate, and one admits to • plans to review humanities courses • with a view to reducing provision in this subject area in the forthcoming years.

14. Scenarios 2 • At a meeting of the admissions officers • of a particular group of • HE Providers in the early summer, • Confirmation and Clearing is discussed. • The participants exchange ideas on how to • help Confirmation run efficiently, • and discuss the pros and cons of putting • courses into Clearing • After the meeting, two or three of the officers discuss informally which courses they intend to put into Clearing at their university that summer.

15. More information from: Janet Graham or the SPA team enquiries@spa.ac.uk or 01242 544891 www.spa.ac.uk Thank you