The position of this autumn's university applicants is confused by the legal and political situation on fees
STUDENTS may yet defeat tuition fees this year if universities have failed to spell out the precise terms of the educational contracts they offer, it was claimed this week, writes Alan Thomson.
Dennis Farrington, deputy secretary of Stirling University and author of The Law of Higher Education, believes that students could mount successful legal challenges against universities which have failed to detail their offers of admission which would have to include any tuition fees due.
Dr Farrington, founder member of the Universities and Colleges Education Law Network, said that there is nothing to stop universities charging tuition fees at any level from this October.
The only way to prevent fees in excess of Pounds 1,000 a year is if the powers in Clause 18 of the teaching and higher education bill are enacted. Peers are opposed to this clause and could strike it from the face of the present bill.
Dr Farrington, speaking personally, said: "I think that if the bill goes through even with the various amendments now proposed, the biggest spanner in the works can still be thrown by students who have accepted offers of admission for 1998 without being told in clear, plain and unambiguous language by the institution that they will have to pay fees.
"There is nothing to stop institutions trying to levy fees on the assumption that they have given due notice of this possibility in their prospectuses or otherwise drawn it to the applicant's attention at the point of formation of the contract of admission.
"In practice I doubt that all, or a majority, of institutions have taken the necessary steps (regarding the details of contracts of admission). These institutions would be in serious difficulty attempting to impose higher fees than are currently 'charged' or possibly any fees at all."
Dr Farrington explained that even if the bill was delayed for a year universities could charge fees at any level because they have the power, under the Education Reform Act 1988, to enter into contracts which must include contracts with students on such terms as may be determined, including charging fees.
Even if the bill is passed, and so the government can claim statutory power to prevent top-up fees, it remains unclear whether the new legislation would apply to contracts of admission entered into in 1997 and 1998 for entry this year.