Following CMA intervention, ESS has offered and signed binding commitments meaning eligible schools can now apply to exit longer-term software contracts a year early
Education Software Solutions Limited (ESS) is the largest provider of school management information system (MIS) software in England and Wales. In the UK, most state schools are required to have an MIS in place to manage information on staff and students including for handling attendance and safeguarding.
In April 2022, the Competition and Markets Authority (CMA) launched an investigation into whether ESS’s conduct was anti-competitive by effectively limiting schools’ ability to choose an alternative MIS software provider and excluding its competitors. The CMA was concerned that customers of ESS – meaning certain schools in England and Wales – had to move from one-year contracts to three-year contracts, without having sufficient time to make alternative arrangements with other software providers. The CMA was concerned that these changes reduced schools’ choice of MIS software provider and made it difficult for other providers to compete with ESS to win business.
To address the CMA’s concerns, the CMA has secured ESS’s offer and signing of legally binding commitments that will enable certain schools – meaning those which had genuinely considered switching providers but reasonably concluded that they did not have sufficient time to do so – to apply to an independent adjudicator for a 12-month break clause. If granted, the clause will allow them to exit their current three-year contract with ESS on 31 March 2024 and choose an alternative provider, should they so wish.
Ann Pope, Senior Director of Antitrust at the CMA, said:
This break clause will give eligible schools 12 months to decide whether to exit their current contract and, if they do, to switch to a new provider – longer than ESS originally offered. The commitments secured from ESS will also bolster competition in the MIS market, giving schools more choice and ESS’s rivals a further chance to compete.
Schools can apply for a break clause from noon today until 10 February 2023. Any applicants will be notified by the independent adjudicator – Evelyn Partners – as to whether they have been successful by no later than 31 March 2023.
The CMA’s decision to accept ESS’s legally binding commitments brings this investigation to a close. The CMA will continue to monitor ESS’s compliance with the commitments and intervene if it suspects a breach.
More information can be found on the CMA’s investigation into conduct of Education Software Solutions Limited case page.
Notes to Editors
The commitments provided by ESS are done so voluntarily. Commitments are designed to address the CMA’s competition concerns; the giving of commitments does not imply a finding that competition law has been infringed. In this case, the CMA notes that ESS maintains that its behaviour was not anti-competitive.
Find out more information on how to apply to the adjudicator, Evelyn Partners, on the ESS website from noon today. Evelyn Partners has been appointed, with the CMA’s approval, as an entirely independent adjudicator.
The CMA opened its investigation as it had reasonable grounds for suspecting that ESS may have infringed the Chapter II prohibition of the Competition Act 1998 (Act) in the supply of MIS software in the UK.
The responses to the CMA’s consultation are summarised, on an anonymous basis, in the decision. As is usual process, the CMA does not intend to publish the full responses.
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