Could refusal to reveal graduate premium lead to a fraud charge?

David Palfreyman considers how secretiveness about the benefits a graduate might expect might fall foul of trading regulations

September 15, 2016
Nate Kitch illustration (15 September 2016)
Source: Nate Kitch

Young people and their parents understandably think that “going to uni” is a one-way bet in financial terms. In the UK, they hear enticing talk of the £100,000 (or even £200,000) graduate premium, and are unlikely to pick up on the small print.

They will not be alert to the fact that the £100,000 figure, calculated in 2002 by the UK’s Department for Education, is a crude average and arises from a massively wide range of outcomes, varying by the potential employer’s reaction to the course taken, the brand value of the university awarding the degree and the socio-economic background and cultural capital of the individual graduate. Nor does it take into account the cost of repaying student debt; with students now graduating with debts of up to £50,000, which double with interest over their lifetime, that pretty well accounts for the average graduate premium.

A more detailed picture is slowly emerging via the matching of data from the Student Loans Company with tax records and, most recently, via analysis of the Office for National Statistics’ latest Labour Force Survey (“Landmark study confirms graduate premium variations”, News, 8 September).

However, details relating to specific universities can be released only with that university’s permission. And, of those in possession of the statistics, not all have yet been willing to give that permission. Perhaps someone will try to extract it from them through a Freedom of Information request, but, in that event, they might try to hide behind the act’s commercial sensitivity exemption. After all, the information could be damaging to their business if it showed that too many of their graduates across too many of their courses see little or no financial return for the debt incurred – whatever wider benefits they might derive from their student experience and newly minted “graduateness”.

Could such secretiveness precipitate the next mis-selling scandal? Regardless of what the law may require, it is obvious that there is a moral question as to whether these data should be released. It is also worth noting that the government plans to release institution-specific data in due course.

But in the meantime, there may be other legal means to extract the information from universities, deriving from consumer protection rules. Like it or not, students count as “consumers” under the Consumer Rights Act 2015, and universities as “traders” selling a “service”. The Consumer Protection from Unfair Trading Regulations 2008 criminalise traders’ “misleading actions”. An example would be where the “average consumer” might be misled if “material information” is omitted from disclosure that would otherwise be a “significant factor” in making a properly “informed transactional decision”. Deliberately withholding data on graduate earnings – especially, perhaps, if asked directly for it at open days – might well fall foul of these provisions if the issue were ever brought to court.

Under the 2008 regulations (as amended) the victim of such mis-selling could sue to recover the price (in this case, the tuition fee) paid, and to extract damages for distress, inconvenience and consequential financial losses (which could be hefty). The trader could also be prosecuted by Trading Standards – which has the power to enter university offices to search for evidence. The offence is punishable with a fine, up to two years in prison, or both. Obviously the university itself couldn’t serve time, but anyone senior who had access to all relevant information and influence over the university’s marketing policy could be fingered. The director of marketing would be most in the firing line.

In addition, the Fraud Act 2006 establishes the offence of fraud by failing to disclose information – and this carries a maximum sentence of 10 years. It occurs when a person “dishonestly fails to disclose information to another person which he is under a legal duty to disclose, and intends [thereby] to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss”. Could a clever lawyer argue that the legal duty is imposed by the Consumer Protection Regulations, that the illicit gain is a bonus for boosting student recruitment, and that the loss arises when a student “buys” a degree that does not repay the investment through the graduate premium?

The dishonesty aspect of the offence is committed even if the accused claims not to have intended any adverse consequences; it is enough that the behaviour is dishonest “according to the ordinary standards of reasonable and honest people” and, second, that the offender realised that such folk would see it that way. Then again, some would maliciously assert that all those occupying a post such as director of marketing are so disconnected from ordinary standards of integrity and truthfulness that this second, subjective element of what is known in legal circles as the “Ghosh test” of dishonesty would not apply to them. So perhaps they would avoid the extra eight years in jail after all.

David Palfreyman is director of the Oxford Centre for Higher Education Policy Studies at the University of Oxford and is co-author of The Law of Higher Education.

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