Category: Office for Students

  • What is a ‘governing document’ in the University of Sussex?

    What is a ‘governing document’ in the University of Sussex?

    by GR Evans

    The  Office for Students has found that the Trans and Non-Binary Equality Policy Statement  of the University of Sussex involves breach of two of the relevant OfS Regulatory Requirements in late March 2025, and imposed an unprecedentedly substantial fine. The first of those criticised (OfS Condition E1) concerns the duty to protect freedom of speech and academic freedom:

    The provider’s governing documents must uphold the public interest governance principles that are applicable to the provider.

    A further OfS Condition (E2) requires that ‘the provider must have in place adequate and effective management and governance arrangements’ so as  to ‘operate in accordance with its governing documents’.

    On 9 April 2025 the Vice-Chancellor of the University of Sussex published a fierce criticism of the unprecedented decision of Office for Students that it had failed to comply with one of its own ‘policies’. The Vice-Chancellor considered that the policy in question was:

    a really small statement, of which we have many dozens, if not hundreds, of similar policies and statements. Whereas the governing documents of the university  are its charter and statutes and regulations.

    There was press coverage about the ensuing uncertainty. UniversitiesUK, as the ‘collective voice’ of universities promised to write to the OfS to ask for clarity as its decision appears to find that it is a ‘failure to uphold freedom of speech and academic freedom’ if a university has ‘policies’ to prevent ‘abusive, bullying and harassing’ material or speech.

    The University has notified the OfS of its intention to apply for judicial review.  Among the grounds Sussex relies on is that the Office for Students did not have powers to treat ‘documents that are not a provider’s “governing documents”’ as creating the public interest governance condition necessary to permit the OfS to seek judicial review. The OfS defines ‘governing documents’ somewhat inadequately as ‘set out in’ its ‘Regulatory Framework’, where  ‘the provider’s governing documents must uphold the public interest governance principles that are applicable to the provider. In this case it held:

    that the University of Sussex breached ongoing condition of registration E2 because it failed to have adequate and effective management and governance arrangements in place to ensure that it operates in accordance with its governing documents.

    The definition of ‘governing documents’ is therefore of the first importance if a precedent is to be set by this OfS decision. The Higher Education and Research Act (2017) s.3(8)(a) protects the autonomy of higher education providers, defining it as ‘the freedom of English higher education providers within the law to conduct their day to day management in an effective and competent way’. Sussex was created among the batch of new universities of the 1960s.

    The Act created a new Regulator, the Office for Students, stating that the Regulator ‘must have regard to’ the ‘need to protect the institutional autonomy of English higher education providers’. This requires a fine balance if the OfS is to avoid intrusion upon a provider’s autonomy.

    The institutional autonomy of higher education providers gives them control of the drafting of their internal legislation. External authorities may insist on particular points in certain cases. For example medical qualifications set by a provider cannot constitute a qualification to be a doctor unless they are recognised by the General Medical Council.  But the right to create its own rules (within the law) largely lies with the provider, who may design them  and order them in its own preferred hierarchy.  The Office for Students may not interfere.

    Nevertheless the creation of ‘governing documents’ must carry certain implications about the source of the internal or external authority to create, review or amend them.  It is suggested that ‘Sussex contends that these are matters for our old friend the Visitor, a traditional legal role in UK university governance, who in Sussex’s case is the actual King’, and:

    cites longstanding legal authority confirming that the Visitor has exclusive jurisdiction over internal governance questions, including interpretation and application of the university’s own rules, and says that unless Parliament clearly removes or overrides that jurisdiction, external bodies like OfS can’t interfere.

    Where the Monarch is not the Visitor it is normally a Bishop.

    However a Visitor is not essential to the law-making of a higher education provider. ‘Alternative providers’ may not have Visitors. As eleemosynary bodies their Colleges normally have Visitors of their own but neither Oxford nor Cambridge has a Visitor. Under the Oxford and Cambridge Universities Act of 2023, both Universities create their own Statutes. In Oxford’s case those which are King-in-Council Statutes require the consent of the Privy Council on behalf of the King. In Cambridge all its Statutes require that consent to their creation or modification. Their subordinate legislation, most Regulations in Oxford (some of Oxford’s Regulations may be created by its Council) and Special Ordinances and Ordinances in Cambridge, simply require the consent of their governing bodies, Oxford’s Congregation of over 5000 and Cambridge’s Regent House of over 7000 members.

    The rules at the top of a provider’s hierarchies may constitute governing documents but it is far from clear how far down that status applies. For purposes of management ‘procedural or process documents’ explain the required ways of doing things and the processes which must be followed’. Among these are Codes of Practice and ‘Guidance documents’. This seems to be where the Trans and Non-Binary Equality Policy Statement fits, as approved by the Executive Group in 2018, 2022, 2023 and 2024 and placed under the heading of Equality, Diversity and Inclusion(revised in 2022, 2023 and 2024).  Is it a governing document in this lowly position?

    Also found relevant by the Office for Students in the Sussex case was the exercise of powers of delegation. It identified ‘a pattern of decisions taken at the university to adopt and/or revise policies without proper delegated authority’, both that its:

    Prevent Steering Group approved and adopted the 2021 version of the University’s Freedom of Speech Code of Practice despite not having delegated authority to do so

    and also that ‘the 2023 version of the External Speakers Procedure was approved by the University Executive Group, despite that group not having delegated authority to do so’.

    Like similar universities Sussex has an Executive Team composed of a Vice-Chancellor, Pro-Vice-Chancellors, their deputies, Deans of Schools and Faculties, with senior academic-related staff headed by a University Secretary, a Financial Officer and various Directors. These are not directly responsible for framing its legislation but may have authority to apply it, though not necessarily powers to delegate its application.

    The Office for Students could turn to the University’s rules about delegation in framing its criticism. Sussex has given thought to that. Sussex’s Council approved a Scheme of Delegation in March 2018. ‘Responsibility’ may be delegated by the Council except for the appointment of the Vice-Chancellor and President; ‘the variation, amendment or revocation of the Charter or Statutes’; and responsibility for approving the University’s annual audited accounts or the appointment of Auditors. The Scheme of Delegation clarifies where roles and responsibilities are allocated between Council and its Committees, among Committees, and between Council and Senate. The ‘Executive’ and a University Executive Group are described as exercising ‘leadership’ and there is also a University Leadership Team, though ‘leadership’ is undefined.

    Sussex has also given thought to overall responsibilities for supervision of the exercise of its internal rules. It has chosen to describe them collectively as ‘policies’. It is recognised to be ‘important that a clear and consistent approach is taken to drafting and updating policies across the institution’ details the requirements for the creation, approval, review, and updating of policies.  However it clarifies the difference between policies and other associated documents, sets out responsibilities relating to policies, and details the requirements for the creation, approval, review, and updating of policies. An overarching Policy on Policies has been agreed by the ‘University Executive Team and Council’. This consists in a Policy on the Creation and Management of University Policies (‘Policy Framework’).

    The aim of the University’s Policy Framework is to make clear what a policy is and what policies should be used for, to differentiate between policies and other types of documents (e.g. procedural documents, codes of practice, etc), and to outline the process that should be followed when drafting, reviewing, and updating policies. An outline of where responsibilities lie in relation to policies is also included.

    This suggests that if pressed Sussex might take all these to constitute its ‘governing documents’, while recognising distinctions among them.

    Nevertheless Sussex distinguishes governance and management. ‘A policy is a high-level statement of principles, requirements or behaviours that apply broadly across the University’ and ‘reflects institutional values’, thus supporting ‘the delivery of the University’s strategy’.  It  reflects ‘legal and regulatory obligations, sector standards, or high-level operational requirements’. These create obligations.

    Among them Sussex lists ‘Regulations’, which  must be made ‘pursuant to the Charter’. These contain detailed rules governing a wide variety of actions of, or on behalf of, the University falling under governance but extending into management: staffing procedures, student disciplinary and appeals procedures, the Students’ Union, the composition of Council and Senate, titles of degrees and Schools, roles of Heads of Schools, lists of collaborative institutions, academic titles and dress, the various degree courses awarded by the University, and general University regulations (library, ICT, administrative). These Regulations are updated annually and approved by Council and/or Senate. Next come written ‘Resolutions’ which Council members may choose to approve or not, ‘in accordance with procedures set out in the Regulations’, though amendments to the Charter and the Statutes and certain Regulations require ‘a three-fourths majority’.

    For purposes of management ‘procedural or process documents’ going beyond these categories explain the required ways of doing things at Sussex and ‘the processes which must be followed’. Among these are Codes of Practice and ‘Guidance documents’. This seems to be where the Trans and Non-Binary Equality Policy Statement fits, as approved by the Executive Group in 2018, revised in 2022, 2023 and 2024. placed under the heading of Equality, Diversity and Inclusion.  Are they still among ‘governing documents’ with a constitutional role in the University’s  governance? An application for a judicial review will take a considerable time to produce a recommendation even if it supports Sussex’s argument

    SRHE member GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.

    Author: SRHE News Blog

    An international learned society, concerned with supporting research and researchers into Higher Education

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  • What’s in a name? That which we call a university…

    What’s in a name? That which we call a university…

    by Rob Cuthbert

    In England the use of the title ‘university’ is regulated by law, a duty which now lies with the regulator, the Office for Students (OfS). When a new institution is created, or when an existing institution wishes to change its name, the OfS must consult on the proposed new name and may or may not approve it after consideration of responses to the consultation. The responsible agency for naming was once simply the Privy Council, a responsibility transferred to the OfS with the Higher Education and Research Act 2017. For existing older universities where legislative change is needed, the Privy Council must also still approve, but will only do so with a letter of support from the OfS. The arrangements were helpfully summarised in a blog by David Kernohan and Michael Salmon of Wonkhe on 8 April 2024, before most of the recent changes had been decided.

    That which we call a university would probably not smell quite as sweet if it could not use the university title, and with its new power the OfS has made a series of decisions which risk putting it in bad odour. In July 2024 it allowed AECC University College to call itself the Health Sciences University. Although AECC University College was a perfectly respectable provider of health-related courses, this name change surely flew in the face of the many larger and prestigious universities which had an apparently greater claim to expertise in both teaching and research in health sciences. The criteria for name changes are set out by the OfS: “The OfS will assess whether the provider meets the criteria for university college or university title and will, in particular: …  Determine whether the provider’s chosen title may be, or may have the potential to be, confusing.” It is hard to see how that criterion was satisfied in the case of the Health Sciences University.

    Even worse was to come. In 2024 Bolton University applied to use the title University of Greater Manchester, despite the large and looming presence of both Manchester University and Manchester Metropolitan University. And the OfS said yes. If you google the names Bolton or Greater Manchester University you may even find the University of Bolton Manchester, which is neither the University of Bolton nor the University of Manchester, but is “Partnered with the University of Bolton and situated within the centre of Manchester” – indeed, very near the Oxford Road heartland location of Manchester and Manchester Metropolitan universities.

    This is rather more confusing and misleading than University Academy 92, founded by a group of famous football team-mates at Manchester United, formed in August 2017 and based near Old Trafford. Wikipedia says that “the approval by the Department of Education (DoE) to allow UA92 the use of ‘University Academy 92’ was questioned with critics claiming the decision to approve the use of the name makes it ‘too easy’ for new providers to use ‘university’ in a new institution’s name”. This criticism continues to have some merit, but a high-profile football-related initiative, now broadened, is perhaps less likely to cause any confusion in the minds of its potential students. It may be significant that it was created at the same time as the HERA legislation was enacted, with government perhaps relaxing its grip in the last exercise of university title approval powers before the Privy Council handed over to the OfS. UA92 was and continues to be a deliverer of degrees validated by Lancaster University. In 2024 the OfS the University of Central Lancashire applied to be renamed the University of Lancashire, despite the obvious potential confusion with Lancaster University. And the OfS said yes.

    It was not ever thus. The Privy Council would consult and take serious account of responses to consultation, especially from existing universities, as it did after the Further and Higher Education 1992 when 30 or so polytechnics were granted university title. A massive renaming exercise was carefully managed under the Privy Council’s watchful eye. As someone centrally involved in one such exercise, at Bristol Polytechnic, I know that the Privy Council would not allow liberties to be taken. The renaming exercise naturally stretched over many months; the Polytechnic conducted its own consultations both among its staff and students, but also much more widely in schools and other agencies across the South West region. Throughout that period, in a longstanding joke, the Polytechnic Director playfully mocked the Vice-Chancellor of Bristol University by suggesting that the polytechnic might seek to become the ‘Greater Bristol University’. It was a joke because all parties knew that the Privy Council, quite properly, would never countenance such a confusing and misleading proposal.

    How would that name change play out now? In the words (almost) of Cole Porter: “In olden days a glimpse of mocking was looked on as something shocking, now heaven knows, anything goes.”

    Rob Cuthbert is the editor of SRHE News and Blog, and a partner in the Practical Academics consultancy. He was previously Deputy Vice-Chancellor and professor of higher education management at the University of the West of England.

    Author: SRHE News Blog

    An international learned society, concerned with supporting research and researchers into Higher Education

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  • University autonomy and government control by funding

    University autonomy and government control by funding

    by GR Evans

    A change of government has not changed the government’s power to intrude upon the autonomy of providers of higher education, which is constrained chiefly by its being limited to the financial. Government can also issue guidance to the regulator, the Office for Students, and that guidance may be detailed. Recent exchanges give a flavour of the kind of control which politicians may seek, but this may be at odds with the current statutory framework.

    As Secretary of State for Education, Gillian Keegan sent a Letter of Guidance to the Office for Students on 4 April 2024. She stated her priorities, first that ‘students pursue HE studies that enable them to progress into employment, thereby benefitting them as well as the wider economy’. She also thought it ‘important to provide students with different high-quality pathways in HE, notably through higher technical qualifications (HTQs), and degree apprenticeships’ at Levels 4 and 5. These ‘alternatives to three-year degrees’, she said, ‘provide valuable opportunities to progress up the ladder of opportunity’. As a condition of funding providers were to ‘build capacity’ with ‘eligible learners on Level 4 and 5 qualifications via a formula allocation’.  The new Higher Technical Qualifications were to attract ‘an uplift within this formula for learners on HTQ courses’. ‘World leading specialist providers’ were to be encouraged and funded ‘up to a limit’ of £58.1m for FY24/25.

    The change of Government in July 2024 brought a new Secretary of State in the person of Bridget Phillipson but no fresh Letter of Guidance before she spoke in the Commons in a Higher Education debate on 4 November, 2024. Recognising that many universities were in dire financial straits, she  suggested that there should be ‘reform’ in exchange for a rise in tuition fees for undergraduates which had just been announced. That, she suggested, would be needed to ensure that universities would be ‘there for them to attend’ in future.

    However, commentators quickly pointed out that Phillipson’s announcement that there would be a small rise in undergraduate tuition fees from £9,250 to £9,535 a year would not be anywhere near enough to fill the gap in higher education funding. The resulting risks were recognised. When the Office for Students reviewed the Financial sustainability of higher education  providers in England in 2024 in May 2024 it had looked at the ‘risks relating to student recruitment’ by providers in relation to the income from their tuition fees.

    Phillipson was ‘determined to reform the sector’. She called for ‘tough decisions to restore stability to higher education, to fix the foundations and to deliver change’ with a key role for Government.  Ministers across Government must work together, she said, especially the Secretary for Education and the Secretary of State for Science, Innovation and Technology in order to ‘deliver a reformed and strengthened higher education system’. This would be ‘rooted in partnership’ between the DfE, the Office for Students and UK Research and Innovation’.

    “… greater work around economic growth, around spin-offs and much more besides—I will be working with my right hon. Friend the Secretary of State for Science, Innovation and Technology on precisely those questions.”

    In the debate it was commented that she was ‘light on the details’ of the Government’s role’.  She promised those for the future, ‘To build a higher education system fit for the challenges not just of today but of tomorrow’. She undertook to publish proposals for ‘major reform’.  There were some hints at what those might include. She saw benefits in providers ‘sharing support services with other universities and colleges’. Governing bodies, she said, should be asking ‘difficult strategic questions’, given the population ‘changing patterns of learning’ of their prospective students. The ‘optimistic bias’ she believed, needed to be ‘replaced by hard-headed realism’. ‘Some institutions that may need to shrink or partner, but is a price worth paying as part of a properly funded, coherent tertiary education system.’ She saw a considerable role for Government. ‘The government has started that job – it should now finish it.’

    Like her predecessor she wanted ‘courses’ to provide individual students as well as the nation with ‘an economic return’. She expected providers to ‘ensure that all students get good value for money’. Other MPs speaking in the debate pressed the same link. Vikki Slade too defined economic benefit in terms of the ‘value for money’ the individual student got for the fee paid.  Laura Trott was another who wanted ‘courses’ to provide individual students as well as the nation with ‘an economic return’. Shaun Davies asked for ‘a bit more detail’ on ‘the accountability’ to which ‘these university vice-chancellors’ were to be held in delivering ‘teaching contact time, helping vulnerable students and ensuring that universities play a huge part in the wider communities of the towns and cities in which they are anchor institutions’.

    Government enforcement sits uncomfortably with the autonomy of higher education providers insisted on by the 2017 Higher Education and Research Act. This Act created the Office for Students as ‘a non-departmental public body’, ‘accountable to Parliament’ and receiving ‘guidance on strategic priorities from the Department for Education’. Its ‘operations are independent of government’, but its ‘guidance’ to providers as Regulator is also heavily restricted at s.2 (5) which prevents intrusion on teaching and research. That guidance may not relate to ‘particular parts of courses of study’; ‘the content of such courses’; ’the manner in which they are taught, supervised or assessed’; ‘the criteria for the selection, appointment or dismissal of academic staff, or how they are applied’; or ‘the criteria for the admission of students, or how they are applied’.

    This leaves the Office for Students responsible only for monitoring the financial sustainability of higher education providers ‘to identify those that may be exposed to material financial risks’. Again its powers of enforcement are limited. If it finds such a case it ‘works with’ the provider in a manner respecting its autonomy, namely ‘to understand and assess the extent of the issues’ and seek to help.

    Listed in providers’ annual Financial Statements may be a number of sources of funding to which universities may look. These chiefly aim to fund research rather than teaching and include: grants and contracts for research projects; investment income; donations and endowments. The Government has a funding relationship with Research England within UKRI (UK Research and Innovation). UKRI is another Government-funded non-departmental public body, though it is subject to some Government policy shifts in the scale of the funding it provides through the Department for Science, Innovation and Technology.

    Donations and endowments may come with conditions attached by the funder, limiting them for example to named scholarships or professorships or specific new buildings. However  they may provide a considerable degree of financial security which is not under Government control. The endowments of Oxford and Cambridge Universities are substantial. Those made separately for their Colleges. may be very large, partly as a result of the growth in value of land given to them centuries ago. Oxford University has endowments of £1.3 billion and its colleges taken together have endowments of £5.06 billion. Cambridge University has a published endowment of  £2.47 billion, though Cambridge’s Statement for the Knowledge Exchange Framework puts ‘the university’s endowment ‘at nearly £6 billion’.  Cambridge’s richest College, Trinity, declares endowments of £2.19 billion.

    The big city universities created at the end of the nineteenth century are far less well-endowed.  Birmingham had an endowment of £142.5 million in 2023, Bristol of £86 million. Of the twentieth and twenty-first century foundations, Oxford Brookes University notes donations and endowments of £385,000 and Anglia Ruskin University of £335,300. The private ‘alternative’ providers of higher multiplying in recent decades have tended to have a variety of business and commercial partnerships supporting their funding. Categories of funding provided by such gifting remain independent of Government interference.

    The Review of Post-18 Education and Funding (May 2019) chaired by Philip Augur stated ‘Principles’ including that ‘organisations providing education and training must be accountable for the public subsidy they receive’, and that ‘Government has a responsibility to ensure that its investment in tertiary education is appropriately spent and directed’. ‘Universities must do more to raise their impact beyond their gates’, Phillipson said, so as ‘to drive the growth that this country sorely needs’ including by ‘joining with Skills England, employers and partners in further education to deliver the skills that people and businesses need’.

    In the same Commons debate of 4 November Ian Roome, MP for North Devon, was confident that in his constituency ‘universities work in collaboration with FE sector institutions such as Petroc college’. Petroc College offers qualifications from Level 3 upwards, including HNCs, higher-level apprenticeships, Access to HE diplomas, foundation degrees and honours degrees (validated by the University of Plymouth) and ‘in subjects that meet the demands of industry – both locally and nationally’. Roome saw this (HC 4 November 2024) as meeting a need for ‘a viable and accessible option, particularly in rural areas such as mine, for people to access university courses?’ Phillipson took up his point, to urge such ‘collaboration between further education and higher education providers’. Shaun Davies spoke of the £300 million the Government had put into further education, ‘alongside a £300 million capital allocation’, invested in further education colleges’.  

    However in an article in the Guardian on 4 November 2024,Philip Augur recognised that ‘the systems used by government to finance higher and further education are very different’. ‘Universities are funded largely through fees which follow enrolments’, in the form of student loans of £9,250, now raised to £9,535. ‘Unpaid loans are written off against the Department for Education’s balance sheet’. At first that would not be visible in the full  government accounts until 30 years after the loan was taken out. Government steering had become more visible following the Augur Report, with the cost of student loans being recorded ‘in the period loans are issued to students’, rather than after 30 years.  

    By contrast the funding of individual FE colleges is based on annual contracts from the Education and Skills Funding Agency, an executive agency of the DFE for post-18 education. They may then spend only within the terms of the contract and up to its limit. The full cost of such contracts is recorded immediately in the public accounts. This makes a flexible response to demand by FE colleges far from easy. Colleges may find they cannot afford to run even popular courses such as construction, engineering, digital, health and social care, without waiting lists for places. The HE reform Phillipson considered in return for a rise in tuition fees had no immediate place in FE.

    Government funding control maintains a pragmatic but very limited means of means of giving orders to universities. This depends on regulating access to taxpayer-funded student loans. The Office for Students measures a provider’s teaching in terms of its ‘positive outcomes’. These are set out in the OfS ‘Conditions’ for its Registration, which are required to make a provider’s students eligible for loans from the Student Loans Company. Condition B3 requires that a provider’s ‘outcomes’ meet ‘numerical thresholds’ measured against ‘indicators’: whether students continue in a course after their first year of study; complete their studies and progress into managerial or professional employment.

    An Independent Review of the Office for Students: Fit for the Future: Higher Education Regulation towards 2035 appeared in July 2024. The Review relies on ‘positive outcomes’ as defined by the OfS’s ‘judgement’,  that ‘the outcome data for each of the indicators and split indicators are at or above the relevant numerical thresholds’. When such data are not available the OfS itself ‘otherwise judges’.

    The government’s power to intrude upon the autonomy of providers of higher education continues to be constrained, but chiefly by its being limited to the financial, with many providers potentially at risk from their dependence on government permitting a level of tuition fee high enough to sustain them.

    GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.

    Author: SRHE News Blog

    An international learned society, concerned with supporting research and researchers into Higher Education

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