Background
Summary of Council decision:
Two issues were investigated, of which one was Not upheld and one Upheld.
Ad description
A website and student prospectus for Cherwell College Oxford, a further education college, seen in May 2016:
a. The “Staff” page on the website www.cherwell-college.co.uk included a list of 38 academic staff.
b. The student prospectus stated “... breath-taking views of Dreaming Spires and comprising a suite of tutorial and lecture rooms including an art studio, a supervised study facility and library, a common area with vending machines for student use and an ICT and multi-media suite ...”. The prospectus also included extracts from an ISI (Independent Schools Inspectorate) Report, following an inspection of the college in April 2016 including “The College Exceeds Expectations for the quality of education - all standards for educational oversight were met and quality is excellent ...” and on the opposite page to the claim about the facilities available at the college, “Management structures and responsibilities are excellent. The effectiveness of governance, leadership and management is excellent”.
Issue
The complainant challenged whether:
1. the list of academic staff in ad (a) was misleading, because they believed it implied that they were employees of the college whereas they understood staff were self-employed and the list gave the impression that the college was larger than it was; and
2. the quotations from the ISI report misleadingly implied that the ISI had endorsed the facilities referenced in ad (b), whereas they understood the facilities had not been available at the time of the ISI's inspection.
Response
1. Cherwell College Oxford said the website (a) listed only those tutors with whom they were working at the time and they did not believe that their employment status, whether an employee, self-employed or a contractor, constituted material information that needed to be included. They said all of their clients, which could include a student’s parents, received the same standard of service, regardless of the tutor’s employment status. All tutors were required to abide by their Tutors Policy, the content of which was in line with the college’s Safeguarding and Child Protection Policy. In addition, Cherwell College referenced the ISI report, which had stated “The College successfully attracts highly qualified and experienced teachers … Procedures for the recruitment of staff are excellent, in accordance with legal requirements and official guidance, with all appropriate checks undertaken”.
Cherwell College said they had 22 full-time students in the last academic year (September 2015 to July 2016) who were, on average, taking between four and five subjects each. Some of the tutors undertook subject tuition on a one-to-one basis, while others were responsible for carrying out seminars and science practical sessions in groups. Given that each student could be taking up to five subjects, and their tutors delivered their sessions in different ways, they did not believe that the list of tutors was misleading.
2. Cherwell College said the facilities highlighted in the ad were available during the ISI inspection. They explained that they had moved to their current premises on 1 April 2016, but, ahead of that move, they had submitted plans, which included two rooms for use as a library and common room, to the local planning authority.
Cherwell College provided photographs of their meeting, tutorial and seminar rooms which were taken on 17 April and 4 May, as well as the timetable for seven of the teaching rooms covering the week of 25 April to 1 May. They said they had spoken at the Annual General Meeting of Chartered Institution for Further Education, held on 19 and 20 May, and during that speech, had used a presentation that included photographs of their seminar room, the students’ common room and another teaching room.
Assessment
1. Not upheld
The ASA considered consumers who visited the “Staff” page on the website were likely to be seeking information about the college itself, such as the subjects and the names of the tutors, and would expect the list of academic staff to reflect the tutors working at the college during that academic year. The terms on which the tutors were employed did not contradict the validity of the staff available to teach, all of whom would have a contract with the College. We acknowledged that part-time staff might not be available to students at all times, but considered that consumers were unlikely to expect all the listed staff to necessarily be teaching or available every day or that those members of staff would be teaching them. Although the tutors were contracted on different terms, we understood that they were nonetheless required to abide by the same standards set by the college, irrespective of their employment status, which was likely to be more relevant to students than whether the tutor was self-employed or part-time. We considered that the employment status of the tutors was unlikely to affect a consumer’s decision on whether or not to attend the college and therefore its omission from the ad was unlikely to mislead.
We understood that 22 students were enrolled at the college when the ad appeared, with many students studying between three and five subjects from the wide range on offer. Tutors provided tuition on a one-to-one basis, in group sessions and seminars, with some teaching a number of different subjects. Some subjects were covered by more than one tutor.
Although there was a large body of teaching staff to deliver such tuition, we considered that it did not necessarily follow that a large number of students were also enrolled at the college. The overall impression of the “Staff” page was that it was there to inform consumers about the academic staff, in some cases including the subjects they taught. We considered that consumers were likely to understand the reason for the academic staff list, rather than infer that it was a reflection of the number of students attending the college or by extension the size of the college.
Because the list was an accurate reflection of the tutors available at the college during the academic year and was likely to be understood to be a claim about the staff working there rather than an inference of student numbers or the size of the college, we concluded that the list was unlikely to mislead consumers.
On this point, we investigated ad (a) under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising), but did not find it in breach.
2. Upheld
The prospectus (b) included a number of quotes taken from the ISI report, but those quotes did not specifically reference the facilities highlighted in the ad. We therefore considered that consumers were likely to understand that the quotes, such as “Management structures and responsibilities are excellent. The effectiveness of governance, leadership and management is excellent”, to be the ISI overall assessment of the college rather than an endorsement of the facilities at the college. Because the ISI Report quotes were clearly labelled as such, they should be separate and distinct from the other claims in the prospectus made by the advertiser.
However, we considered that consumers would understand the claim “… art studio, a supervised study facility and library, a common area with vending machines for student use and an ICT and multi-media suite” to mean that those facilities were in place and available when the prospectus was published. Although Cherwell College provided evidence of a common area and its meeting, tutorial and seminar rooms, we saw no evidence to show that an art studio, ICT and multi-media suite facilities were available at the college at the time the prospectus was published. We noted the plans submitted to the local planning authority, ahead of the college’s move to its current premises, highlighted space for a library, but no evidence was provided to show that the library was in place and available to students when the ad went to print. In addition, although we saw photographic evidence of the student common area, it did not include any vending machines, as claimed.
We considered that the evidence provided was insufficient to support the claim that the facilities existed at the college at the time the prospectus was published and concluded that the claim “… art studio, a supervised study facility and library, a common area with vending machines for student use and an ICT and multi-media suite” had not been substantiated and was therefore misleading.
On this point, ad (b) breached CAP Code (Edition 12) rule 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
Action
The prospectus must not appear again in the form complained about. We told Cherwell College Oxford Ltd to ensure that their advertising did not imply facilities were available until such a time as they were in place and functioning.
