Case Summaries

The provider has a “Bad Fail” rule for all years of study. This rule means that students who fail with a mark below 30 must resit all subjects at the next opportunity. We understand the rule was intended to stop students “gaming” the system by trying to spread their exams over two exam periods rather one. The provider does not provide a resit period for final year students. Because of this and the “Bad Fail” rule, the student was required to resit all their exams in summer 2019, and was unable to graduate in summer 2018. The student appealed against the provider’s decision but it rejected the appeal.

The student complained to us. The student argued that the “Bad Fail” rule was too harsh and they should only have to resit the failed exam.

We decided that this complaint was Partly Justified.

We concluded that the provider’s decision to reject the student’s appeal was not reasonable in all the circumstances. We decided that the “Bad Fail” rule combined with the fact that there was no late summer resit opportunity for final year students had a disproportionate effect. It means that final year students must return to the provider the summer after completing their studies and resit all their modules. For many students, particularly those on professional courses, the “Bad Fail” rule might mean they could not take up job offers because they had failed one (non-core) module and could not graduate in time.

We considered the Competition and Market Authority’s guidance of 12 March 2015, “UK higher education providers – advice on consumer protection law” (the “CMA guidance”). This sets out the minimum information that providers should give to students and when. Providers should give “material” information to prospective students before they decide which course to study and where.

The Programme Handbook told students about the “Bad Fail” rule and directed them to the LLB Classification Scheme which said that final exams are held only once a year and that there is no resit period. However, in our experience of the HE sector, the “Bad Fail” rule and the fact the provider does not have a late summer resit period for final year students were unusual and potentially onerous, because of the likely effect on whether a student could start work at the end of the third year. We would have expected the provider to draw both prospective and current students’ attention to these parts of the Regulations and the fact they could delay a student’s progression/graduation by one year - or even more since students have three attempts at the final year examination. We considered this particularly important because even students with accepted extenuating circumstances could be caught by the requirement to resit all subjects one year later if their failure was not marginal. We did not consider this to be fair. We noted that the provider had not given any reasons for having either the “Bad Fail” rule or no late summer resit (such as a professional requirement that all exams should be passed in one sitting, or a requirement that students who fail badly should undergo further tuition). We therefore decided that the provider had not established that the “Bad Fail” rule was a competence standard that could not be adjusted.

We recommended the student keep the pass marks achieved in summer 2018 for the law modules and that in summer 2019 the provider allow the student to resit only the accountancy exam that they failed the year before. We also recommended that the provider review its Classification Scheme and consider (a) introducing a summer/autumn resit period for final year students and/or (b) adjusting the requirement to resit all final year exams at once. Going forward the provider should make sure that clear information about its progression and assessment regulations are available to both prospective and current students so that they can make informed decisions.

The provider has since amended its regulations and the LLB classification scheme to introduce an in-year resit period for all undergraduate students and to remove the “Bad Fail” rule.