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Having set out its stall in its 2022-25 strategy (which we wrote about here), the OfS has now released its business plan for the coming year. Unsurprisingly, the plan sticks closely to the contents of the strategy, laying out the OfS’s aims for the year by reference to the 11 goals identified in the strategy, all of which fall into the three priority categories of (1) quality and standards, (2) equality of opportunity, and (3) enabling regulation.

Regulatory approach

With regard to the OfS’s overall approach, the business plan is something of a mixed bag. On the one hand, it says that the OfS will be increasing its capacity to carry out investigatory and enforcement work, including by visiting individual institutions. In terms of where that extra capacity is likely to be focused, the OfS states that it will be opening investigations in relation to course quality, possible grade inflation, and failure to secure academic freedom and free speech. In all cases, it intends to publish the outcome of those investigations.

On the other hand, the business plan emphasises the OfS’s desire to reduce the regulatory burden where possible. It will continue to implement a risk-based approach, both in the context of its investigatory and enforcement actions, and in relation to the information it collects from providers.

The business plan outlines the OfS’s regulatory plans in relation to specific matters.

Some of its proposed actions will depend on parliamentary activity or consultation. In the realm of academic freedom and freedom of speech, the OfS’s approach will depend on the final form of the Higher Education (Freedom of Speech) Bill, which is still making its way through Parliament. The OfS’s actions on student outcomes and on the Teaching Excellence Framework (TEF) will depend on the results of the consultations on these issues – its current intentions are covered later in this article.

A significant slice of the “Equality of opportunity” section is devoted to furthering the OfS’s new strategy on access and participation. The OfS has already stated that it will contact providers that are not on track to improve equality of opportunity for underrepresented groups, and the business plan confirms this. The OfS notes that it will “consider whether individual providers are delivering high quality and positive outcomes for students from all backgrounds”. The business plan does not say what metrics the OfS will use to determine this, but the OfS has produced a self-assessment tool to help providers produce high-quality evidence about the impact of their access and participation plans. This tool came out in early 2019, so it long predates the OfS’s current access and participation strategy, but it should still offer some helpful pointers.

Work on the Lifelong Loan Entitlement, which is scheduled to be introduced through a Higher Education Bill sometime in the currently parliamentary session, forms part of the OfS’s equality of opportunity plans. The OfS’s actions in this area will, naturally, be dependent on the contents of the legislation (the Bill has yet to be published). Even so, the business plan promises, rather vaguely, that the OfS “will ensure effective regulation of Higher Technical Qualifications”, which form a central part of the Government’s plans for lifelong learning.

Information the OfS will be publishing

The OfS’s policy on publishing information about individual providers has not yet been finalised: a recent supplementary consultation suggested that it wanted to adopt a policy of making public announcements in a wide range of circumstances (such as when it opens an investigation or refers a matter to another regulator), but that consultation only ended on 9 June. According to the business plan, the OfS will publish the outcome of that consultation – and its policy decision – sometime in 2022-23.

The consultations on student outcomes and the TEF closed in March, though the documents are still available on the OfS’s website, if you would like to read them: the consultation landing page for the TEF is here and the page for the student outcomes consultation is here. According to the business plan, the OfS’s current intention is to publish the TEF specification, invite submissions from providers, and publish the final ratings in 2023-24. In the case of student outcomes, the OfS will “share with individual providers their student outcomes indicators and publish these at provider level”, taking action with providers “where appropriate”. Unfortunately, the plan does not elaborate on what circumstances might render it “appropriate” to take action – possibly because this will depend on the outcome of the consultation.

The business plan states that the OfS will publish the outcome of the consultation on data collection, which ran from last December to this February. An analysis of the consultation responses is now available on the OfS’s website – the policy decisions are on pp. 13-15.

Not all of the OfS’s publication plans are connected to provider performance and data collection. The business plan mentions research that the regulator will be publishing, which should give providers a helpful steer on regulatory compliance and good practice. For example, it intends to review approaches to blended learning and to publish its findings on what works and what “falls short of our regulatory requirements”. Providers involved in transnational education may be interested in two other publications that are in the pipeline: a report on the transnational activities of English providers, and a statement “setting out for an international audience the regulatory arrangements that ensure ... higher education quality and outcomes”.

The OfS will be reviewing progress made by the sector in dealing with harassment and sexual misconduct, by reference to its statements of expectations. It will publish an evaluation of the impact of its statement, and outline its next steps. The review will be based on “information from our regulatory casework, our stakeholder engagement and other relevant data”, which suggests that the OfS will not be demanding any extra information from providers.

In the background, the OfS will continue to amass evidence on the approaches that help support disabled students and international students. It will also be launching a project to help providers support the mental health of their students. It is to be hoped that any reports that result from this research will offer practical guidance to providers.

Consultations

This article has already alluded to some of the OfS’s consultations. Others are mentioned:

  • A consultation on future access and participation plans. The results of this consultation will feed into the OfS’s policy decisions from 2024 onwards, so it may be worth watching out for this.

  • A consultation on changes to the National Student Survey.

  • A consultation on minimising the regulatory burden associated with access and participation plans.

In the Foreword, Interim Chief Executive of the OfS, Susan Lapworth, says that the OfS welcomes feedback on its business plan. It seems unlikely that feedback will significantly alter the course of the coming academic year, but given that, in the following sentence, she writes, “We will be led by evidence of ‘what works’”, it is at least possible that if you communicate your thoughts about (or experiences with) the plan to the OfS, that will feed into its future policies.

If you require further information about anything covered in this briefing, please contact David Copping, Rachel Holmes 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, June 2022

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