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The OfS’ has recently published a new paper setting out its strategy for the next three years. This article examines the key policy shifts and how they will impact providers; there is also an analysis of how recent case law and OfS enforcement actions will determine the regulator’s policies in the coming years.

The current strategic landscape

The OfS published its strategy paper for 2022-2025 in March: this is the overarching plan of action which will determine the regulator’s activities in the coming years. The final paper was borne out of a consultation period that lasted from November 2021 to January 2022. There were a number of salient issues and concerns which stakeholders raised during the consultation period and these tend to reflect some of the underlying ‘hot topics’ within the sector at the moment:

  • Grade inflation and degree scores which do not faithfully reflect student performance.

  • A need for greater collaboration between HE providers and schools in delivering high-quality education.

  • The build-up of onerous internal bureaucracy within education providers, especially in an effort to surmount the OfS’ requirements and regulatory burdens.

  • Greater clarity on the issue of free speech and how this intersects with existing frameworks (such as the Equality Act).

Following the consultation, the OfS published its final version of the strategy paper. In terms of overarching strategy, the paper refers to the “regulatory baseline”: this is minimum performance that the OfS expects of its providers and determines the regulator’s approach. The paper notes that “the baseline is predominantly expressed through our conditions of registration and all providers are required to satisfy these…During this strategic period, our work will be strongly focused on ensuring that providers are meeting these expectations”.

The three strategic areas of focus

The paper sets out three headline areas of focus which will govern the OfS’s strategy for 2022-2025. These are:

  1. Quality and standards

  2. Equality of opportunity

  3. Enabling regulation

Interestingly, there were calls for other, more specific areas of focus, including:

  • An increased focus on mental health after the pandemic.

  • The development of student and graduate skills.

  • More effective support for students with a disability.

  • More effective support for care experienced and estranged students.

However, the OfS brushed these demands aside and argued that the three areas of focus they have proposed encompass the more niche recommendations put forward by stakeholders. More specifically, the strategy paper sets out eleven goals, each of which sit beneath one of the three areas of focus and which the OfS argues will address the current issues arising within the HE sector. Among other areas, these goals cover: credible assessments and awards, the government’s levelling-up agenda, the protection of free speech, the prevention of harassment and sexual misconduct, the financial viability of providers, and the minimisation of the OFS’ regulatory burden.

Focus area 1: quality and standards

Commenting on this area, the OfS claims it will take a “more robust” approach to quality and standards. The notion of quality and standards links directly to the OfS’ ongoing general conditions of registration which providers must meet: specifically, conditions B1 to B5. Indeed, the strategy paper notes that “we will ensure that all providers satisfy our minimum requirements for student outcomes”. In terms of specific policy changes, the OfS have now updated those registration conditions B1 to B5 (as of 1 May). Broadly speaking, these changes will enable the OfS to take a more interventionist approach if university courses are falling below expectations, degree awards are inflated, or students are being inadequately supported. The strategy paper expects an “increase in our investigative and enforcement activity” and these powers include monetary penalties, suspension of the provider and full de-registration.

As alluded to above, the question of grade inflation is a pertinent one in the OfS’ thinking. In May, the regulator published a piece warning HE providers “to steer clear of normalising post-pandemic grade inflation”, together with an analysis of changes in graduate attainment from 2010-11 to 2020-21. Similarly, the requirement for providers to facilitate free speech is one of the key goals of this focus area. The importance of this topic relates to the proposed The Higher Education (Freedom of Speech) Bill which - in its current form - places various obligations on the OfS to foster free speech culture within universities.

It is also worth noting that the OfS is currently running a consultation until 9 June about its proposal to start publishing information about investigations into providers’ non-compliance and regulatory mischief. Again, this links to the OfS’ increased interest in maintaining quality and standards and meeting the public interest. This correlates with the High Court’s decision (discussed below) that vindicates the OfS right to publish information about underperforming applicants / providers.

Focus area 2: equality of opportunity

Here, the OfS has reiterated the importance of the access and participation plan (APPs) framework whilst noting that they will keep its strategy “under review”. This follows a March 2022 webinar given by John Blake, the OfS director for fair access and participation in which he sets out the OfS’ plans for APP reviews, performance criteria and variations over the next few years. The theme of enforcement crops up in this area too and the strategy plan emphasises the OfS’ enforcement powers against providers who are falling short of their APP commitments.

One interesting goal within this focus area is that “prospective students can choose from a diverse range of courses and providers at any stage of their life, with a wide range of flexible and innovative opportunities”. In this context, it’s worth mentioning the Lifelong Loan Entitlement (LLE), which (to quote from the landing page of the consultation where the idea was floated) “will provide individuals with a loan entitlement to the equivalent of 4 years of post-18 education to use over their lifetime. It will be available for both modular and full-time study at higher technical and degree levels (levels 4 to 6), regardless of whether they are provided in colleges or universities”. The LLE is part of the Skills and Post-16 Education Bill, trailed in the Queen’s Speech. The Bill hasn’t appeared on Parliament’s website yet, but there’s a brief description of its provisions on pp.50-52 of the briefing notes that were published to stand alongside the speech.

In light of the extensive focus on discussion on student wellbeing, the paper also emphasises the importance of providers cultivating an environment which is conducive to good mental health. On 13 May, the OfS announced that it had appointed a consortium to “help universities and colleges identify and make use of effective practice in supporting student mental health … [leading] to the creation of a central, online hub to share what works to support student mental health”. Also, the OfS has stated it intends to collect evidence from providers about what they are doing to combat harassment and sexual misconduct, by reference to the statement of expectations on harassment and sexual misconduct that it published last year. In her February 2022 board meeting report, Nicola Dandridge, the OfS chief executive, commented on this topic:

Our priority is to understand how providers have responded to the statement by reforming their systems, policies and processes…for instance in terms of whether providers have in place clear and accessible reporting systems, whether staff are trained to take disclosures effectively, and students have confidence that their provider will take reports of harassment and sexual misconduct seriously. That work will be undertaken over the next few months, with a view to reporting back to the OfS this summer.

Focus area 3: enabling regulation

Despite the slightly ambiguous title, this area relates to the OfS’ goal of reducing the burden of regulation, specifically saying that by the end of the strategic period, the regulatory requirements imposed on an individual provider will vary according to the risks it poses. The consultation paper provides some further details on this:

We use data and regulatory intelligence to identify courses and providers that are most at risk of not meeting our minimum requirements for quality. When monitoring access and participation plans, we focus on those providers that are most at risk of failing to deliver the commitments of their plans.

In terms of practical outcomes, we can expect to see a few more consultations. The OfS has already said they plan on consulting on the conditions of registration; specifically, condition E (governance) and C (student interests).

Condition B: an ongoing issue

The OfS’ internal discourse, and its keen focus on boosting quality and standards, is exemplified by recent OfS registration refusals, enforcement measures and indeed case law. The most frequent issue in each of these areas is condition B and whether providers are delivering for their students. Condition B3 (a provider must deliver successful outcomes for all of its students, which are recognised and valued by employers, and / or enable further study) often comes to the fore. Providers and their advisers would be prudent to pay heed to this condition due to its consistent prominence:

Refusals

In the OfS’ published list of providers who have been refused registration, a failure to meet condition B3 features regularly as one of the reasons cited. Within this, continuation rates and an insufficient number of students progressing from first to second year is a frequent issue. Employment prospects and the demographic attainment gap also crop up. Note that these are factors are the key metrics which underpin condition B3 in the OfS’ regulatory framework.

The right to publish refusals

The 2019 High Court case R. (on the application of Barking and Dagenham College) v Office for Students concerned the OfS’ refusal to register a college which did not meet condition B3. The college demonstrated poor continuation rates and graduate employment prospects but argued that these issues should be considered relative to the deprived area in which it was located – the OfS refused this argument and said that they assess condition B “in absolute terms”. Following this refusal, the college brought this action to prevent the OfS publishing these findings on the grounds that it would cause reputational damage and anxiety to current students. Chamberlain J dismissed the claim, commenting that:

I find it difficult to conceive of a case where it would be appropriate to use the coercive powers of the Court to shield members of the public from information that could affect them on the ground that it might make them anxious…those considering applying to study at the College have an equally strong interest in knowing that the College's application for registration has been refused.

This case emphasises the extent to which the OfS’ publication powers override a provider’s delicate reputational concerns.

Transparency

In R. (on the application of Bloomsbury Institute Ltd) v Office for Students, the OfS lost a judicial review appeal following its decision to refuse registration to the Bloomsbury Institute. Again, condition B3 was the salient issue. In this case though, the specific B3 performance metrics had been set out in an internal OfS paper which the Director of Competition and Registration had prepared. The Court quashed the OfS’ original decision on the ground that it should have consulted on such an important policy document and that it should not have been delegated. The OfS’ more recent activity in consulting, publishing and openly discussing its policies is clearly reflective of this case.

Ongoing conditions

In terms of registered providers, the OfS has regularly imposed specific conditions for ongoing registration that are related to condition B. This happens when a provider is at risk of falling below standards and the OfS intervenes. Recently, some specific conditions have included:

  • cooperating with third-party appraisers;

  • submitting an improvement plan for student continuation and employment prospects;

  • appointing an oversight committee in relation to condition B3; and

  • providing justification/reasons why a new course is being introduced.

Conclusion

It is clear enough that we can expect changes to the OfS’ regulatory landscape in the coming years. Quality and standards, equality of opportunity, and enabling regulation will be the primary areas of activity – providers would be prudent to familiarise themselves with the proposed strategic recalibration in order to stay ahead of the game. Furthermore, recent case law and registration / enforcement actions show that the OfS’ focus on the quality of provision and student prospects will remain a key issue going forward.

If you require further information about anything covered in this briefing, please contact David Copping, Rachel Holmes, Ethan Ezra or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, May 2022

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