Changing models of course delivery planning for the future

VWV’s Bettina Rigg and Clive Read: Legal issues that institutions need to know for the future

For years the ‘standard’ model of delivering undergraduate teaching was a three-year full-time course delivered in situ. Some institutions structured courses to provide for an extra year to undertake a placement or study overseas. There were also opportunities for part-time study, until a combination of increased tuition fees and lack of availability of student loans for part-time study, effectively killed off part-time provision.

However, the new normal could look very different in response to the demands of prospective students, a changed economic environment and increased globalisation. 

Degree apprenticeships

Degree apprenticeships were launched in September 2015 and from 6 April 2017 have been funded through the apprenticeship levy. 

According to a Universities UK report in March 2017 there has been a 658% increase in degree apprentice entrants from 640 in 2015/16 to 4,850 in 2017/18 and 91% of the universities surveyed were actively involved in degree apprenticeships. The number, range and quality of degree apprenticeships seem set to expand and given the emphasis on the need to upskill the workforce post Brexit will remain a priority.

As well as opportunities to deliver degree apprenticeships, the introduction of the apprenticeship levy gives institutions the opportunity to effectively recycle the apprenticeship levy they pay by engaging and training apprentices to ensure a supply of highly skilled and qualified employees in hard-to-recruit areas.

Universities delivering degree apprenticeships need contracts in place with the employers, sub-contracted providers and end-point assessment organisations involved in their delivery.

The key issues are:

The university’s funding contract with the Education and Skills Funding Agency (ESFA) will contain broad provisions allowing ESFA to decline to pay or claw back funding if there is a breach of the funding rules in delivering the apprenticeship.
This exposes universities to risk if the employer, sub-contracted provider or end-point assessment organisation breaches the ESFA’s funding rules, so contracts should properly apportion risk and responsibility between the parties to ensure that if funding is withheld or clawed back due to no fault of the university, it can recover the lost funding from the party responsible.

The university’s contract with the employer should make it clear that, whilst the university is delivering educational services to the apprentice, it is not responsible for the acts or omissions of the apprentice, or for the quality of the apprentice’s work for the employer.
It is easy to imagine a situation where an apprentice acts negligently, causes the employer significant financial loss and the employer claims the university is responsible because it did not educate the apprentice properly.
A good contract, with legally enforceable limitations and exclusions of liability, will protect against such claims.

The university will need to share personal data about the apprentice with the employer, sub-contracted provider and end-point assessment organisation. It must ensure the data sharing is carried out in accordance with the Data Protection Act 1998 (DPA) and the forthcoming General Data Protection Regulation (GDPR) or it could face action from the Information Commissioner’s Office, including fines of up to £500,000 under the DPA and 4% of the university’s annual worldwide turnover under the GDPR.
Contracts should ensure the relationship between the university and the employer, sub-contracted provider or end point assessment organisation complies with the DPA and GDPR and allocate liability appropriately between the parties if there is a data protection breach.

The university should ensure its contract with the employer imposes strict obligations on it to employ the apprentice in line with all applicable employment laws.
If an apprentice brought an employment claim, whilst primary liability would sit with the employer, it could be seriously damaging to the university’s reputation.
The contract should place clear obligations on the employer to employ the apprentice in a lawful way, to reduce the risk of unethical employment practices affecting the university’s reputation.

Degree apprenticeships are a great opportunity for universities to provide their services in an innovative and practical way, meeting the needs of modern employers. However, the apprenticeship model carries legal risks which are magnified by the complicated supply chains involving universities, employers, sub-contracted providers and end-point assessment organisations, where difficult questions of who is responsible if something goes wrong can arise.

Therefore, it is important universities have well-drafted and balanced contracts in place to ensure the apprenticeships are delivered smoothly and the university is not exposed to unnecessary risk.

Accelerated degrees

According to Jo Johnson (Minister of State for Universities, Science, Research and Innovation) the ‘standard’ three-year undergraduate degree model has increased from 68% to 79% in just four years. A key reason is that the cap on tuition fees has not given universities any incentive to provide accelerated degrees. 

However, the Secretary of State is being given the ability to set higher annual fee limits for accelerated courses to incentivise universities to them. The likely model will be two-year courses with students foregoing the long summer and winter vacations.

There are a number of legal issues to be considered, including the impact on staff teaching within this new model and the impact on university estates.

Accommodation – a year-round destination?

The advent of accelerated degrees is likely to lead to intensification of use of a university’s estate – academic, leisure, retail and residential. This will involve thinking about and adapting existing working practices, including:

Planning ahead – typically for three-year degrees, universities look to offer residential accommodation to undergraduates early in the spring term which coincides with third-party providers’ planning cycles. Accelerated degrees are likely to have an impact on rudimentary planning cycles but also raise more complex issues around supply, depending on the duration of the lease to students/nominations agreement, which range from 35 plus weeks to 51 weeks, especially in larger conurbations.

Revisit existing contracts? While third-party providers regularly provide accommodation in agreements over one to three years, there are many very long-term deals stretching back to the early millennium. Whether those can and should be revisited will depend on a myriad of factors including the availability and suitability of accommodation stock and the financial consequences. A legal audit will help inform what action to take next.

Soft and hard FM cycles – well-drafted nominations agreements allow for regular maintenance and redecoration – that could need revisiting if some premises are being used effectively back to back, with little or no time for maintenance. The feudal ‘three-field system’ could be a model to consider with a more fallow year consisting of a conventional undergraduate academic year which provides some time for redecoration in holiday periods. For both residential and academic buildings the summer vacation is typically the busiest time of year for estates directors, and maintenance cycles may need to be adjusted.

Competing with vacation lettings? Easter and summer vacations have historically been the time when universities attract commercial conferences into residences. That could be challenged if degrees are accelerated into a two-year cycle. While the two may not be mutually exclusive, a cost-benefit analysis will need to be done to assess the rewards of preferring one type of letting over another.

Maintaining quality and value for money – student satisfaction surveys demonstrate the importance of good-quality buildings and facilities. Ensuring buildings are properly maintained will be a further logistical challenge. Procurement requirements should be considered when looking at panel or other longer-term maintenance planning: the timing of when works can be done could add to the overall cost.

A year-round destination – there is a chance to create ever-more vibrant campuses given the current challenge in attracting good-quality commercial businesses onto campus due to long vacation periods. This gives an opportunity to offer 12-month trading opportunities for retailers and restaurateurs on campus.

So, exciting and challenging times beckon! 

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