Category: OfS

  • Communicate, repeat and compensate – OfS issues principles over industrial action

    Communicate, repeat and compensate – OfS issues principles over industrial action

    University and College Union (UCU) staged a national marking and assessment boycott (MAB) – delaying graduations, job starts, and transitions to postgraduate study.

    UCU members took the action to tackle disputes including headline pay, gender and minority ethnic pay gaps, staff workload and the casualisation across the sector.

    Whenever there’s industrial action, the hope in Carlow St is that students will see the bigger picture – but this time around, at least for some students in some universities, the impact was significant. At the time, UCU estimated that 30,000 students were unable to graduate on time or were affected in some other way.

    In the aftermath, the Commons Education Committee held a mini inquiry to investigate the impact – it wrote to the then Conservative government to raise concerns about the lack of data, the role of the Office for Students (OfS) and the lack of clarity over students’ rights, and the eventual (post election) reply was predictably weak.

    Now, two years on, OfS has published research that was commissioned to develop an understanding of what the impacts were from a student perspective – along with guidance for institutions on protecting the interests of students during industrial action, and a webinar event planned for mid-May on the regulator’s expectations on how providers should support students before, during and after industrial action.

    OfS first ran a text-based focus group via YouGov in July 2024 that discussed short- and long-term impacts, what information they got from their institutions, and how those institutions handled the situation. A quantitative survey followed that gathered 763 responses (279 undergrads, 284 postgrads, and 200 graduates) that had been studying at impacted institutions during the boycott. You’d not be diving into demographic splits on that sample size.

    The polling drilled into how the industrial action affected their academic lives – immediately and over time – along with the comms they received from their universities, and how they viewed their rights as students.

    On the top line

    In a “topline” results report and associated student insights brief, we learn that the industrial action caused delayed or unmarked coursework (53 per cent) and exams (46 per cent), reduced lecture time (68 per cent), and decreased contact with staff.

    Most impacted students reported negative effects on academic work quality (49 per cent) and grades (42 per cent). The MAB’s psychological impact was significant – with 41 per cent reporting increased stress, 32 per cent experiencing poorer mental health, and 15-18 per cent noting negative effects on their social lives.

    One student is quoted as follows:

    I was waiting for the result of a resit that the progression of my masters’ depended upon but it was delayed so much I had to pay for the next module and would not get the results until halfway through.

    International students faced particular challenges, with visa uncertainties arising from delayed results and qualifications. Some students couldn’t attend graduation ceremonies because their results came too late:

    I didn’t manage to get graduation tickets in time due to how late results were, so I didn’t have a graduation ceremony.

    Communication varied considerably across institutions – with most updates coming through emails (65 per cent) rather than during lectures (22 per cent). Students rated information from individual lecturers (78 per cent satisfaction) more highly than university-wide communications (64 per cent satisfaction).

    Many students in the focus group:

    …were not told which of their modules would be affected, or when they would get their marks and feedback.

    OfS says that the institutional response was inconsistent across the higher education sector. Students directly affected by the MAB expressed significantly higher dissatisfaction (54 per cent) with their university’s handling of the situation compared to unaffected students (18 per cent). Just 46 per cent of affected students received alternatives or compensation, primarily through “no detriment” policies adapted from those developed during the Covid era (26 per cent).

    Financial compensation and rights awareness was low – with only 30 per cent knowing they could request it, and a mere 9 per cent successfully receiving any. The boycott also negatively impacted perceptions of education quality (38 per cent reporting a decrease) and value for money (41 per cent reporting a decrease), with one student noting:

    I ended up with a [postgraduate diploma] instead of my MSc, and I came out with a merit instead of a distinction.

    The brief does note that universities employed various mitigation strategies, including awarding interim degree classifications, guaranteeing minimum classifications, improving mental health support, reallocating marking responsibilities, and engaging with employers to request flexibility for affected graduates.

    Were they OK? Some students felt their institutions responded well, others reported that the experience contributed to decisions not to pursue further studies or work in higher education, with 42 per cent reporting decreased trust in their universities.

    Behind the screams

    Much of that won’t come as a surprise – although the sheer scale of the suggested impacts, as well as their depth and breadth on individual students (esp rer mental health and international students) ought to invigorate debates about the morality of the tactic, and how universities handled it to limit legal or financial exposure.

    Arguably of more interest is the letter and “regulatory statement” that accompanies the publication from John Blake, Director for Fair Access and Participation.

    Re-stressing that it’s not OfS’ role to intervene in labour disputes, Blake expresses concern about how strikes and the MAB disrupted students’ academic experiences, notes inconsistencies in institutional responses, sets out an aim to establish clearer expectations for fair treatment for all students in any similar future scenarios.

    And there’s a fascinating section on compensation:

    We want to be clear that we don’t see compensation as a substitute for the holistic experience of intellectual, professional and personal development that a student should expect from their higher education. Institutions should continue to focus their efforts during industrial action on delivering the education that students expect. The inclusion of an expectation in relation to compensation does, though, reflect the rights students have under the Consumer Rights Act 2015.

    Given that many students got neither, the clear implication is that a large number of students should have received both.

    Six principles

    The core of the guidance letter then manifests in six principles:

    1. Providers must remove contractual terms that inappropriately limit liability to students during staff industrial action or other circumstances within the provider’s control, as these breach consumer protection law.
    2. Effective contingency plans must be developed to minimise disruption to students during industrial action, ensuring plans are actionable, timely, and protect qualification integrity.
    3. When implementing contingency plans, providers should prioritise education delivery by: first avoiding impacts on students; if not possible, making minimal changes; and if necessary, providing timely repeat performance of missed teaching or assessment.
    4. Fair compensation must be paid when contingency plans fail to deliver promised aspects of student experience, particularly for missed teaching without timely replacement, delayed assessment marking, or delayed progression decisions affecting jobs or visa status.
    5. Clear communication with students is essential, including transparent information about rescheduled activities or compensation, with proactive identification of eligible students rather than requiring them to submit claims.
    6. Providers must submit reportable events about industrial action to the Office for Students (OfS) in accordance with established regulatory requirements.

    It’s an interesting list. The first one on the inclusion of industrial action in so-called “force majeure” clauses in student contracts – which limit liability for events that are outside of the predictability or control of of providers – is a long-running passive-aggressive row between the Competition and Markets Authority (CMA) and OfS on one side, and providers on the other.

    OfS has previously published a referral to National Trading Standards involving the University of Manchester’s contract – but my spreadsheet suggests that there’s a large number of providers that either haven’t seen that, or are digging in for a battle over it.

    That may be partly because those sorts of clauses – and CMA’s advice on them (which OfS requires providers to pay “due regard to”) – are a key point of dispute in the ongoing Student Group Claim, the UCL portion of which won’t get to court until early 2026.

    From a student point of view, if those clauses shouldn’t exist, the snail’s pace of enforcement on this is as baffling as it is frustrating.

    There won’t be many providers that weren’t developing contingency plans, notwithstanding that they can always be improved – and the one-two-three-four punch of avoid, adjust, repeat or compensate reflects (and translates) the position under consumer law.

    Of course some will argue that a legal duty to undertake any/all of those steps under consumer law depends on those force majeure clauses not existing or being unlawful – and as it stands there’s a major silent standoff that’s unhelpful.

    Even if you just look at compensation, the survey fails to differentiate between compensation paid for breach of contract, and “goodwill” payments where no such breach has been accepted by providers. As far as I’m aware, the former was vanishingly rare.

    The other issue, of course, is with punch three of four – where university managements satisfy themselves that once a dispute is over, teaching or support is rescheduled “because we told them to”, despite the fact that most heads of department find it hard to actually implement those instructions with UCU members.

    The “proactive identification of eligible students” for “repeat performance” or compensation is interesting too – especially over the latter, providers have long relied on students having to make complaints in order to get redress. This not only depends on the breach of contract or not issue being resolved, it also raises questions for universities’ legal advisors and insurers about the relative risks of doing as John Blake says, or waiting for students to raise concerns.

    But as well as all of that, there’s three things we ought to be surprised not to see.

    What’s missing?

    For a set of documents seeped in the translation of consumer protection to a higher education setting, there’s nothing on the extent to which any alternative arrangements in a MAB – especially alternative arrangements over marking – should still be carried out with reasonable skill and care. Academic judgement can’t be challenged, but only if that judgement has been carried out in the way we might expect it to be by people who know their onions. That was a major issue in the dispute for plenty of students, even if it wasn’t a big issue in the polling.

    The second is the lack of answer to the questions raised both in the polling and by the Commons Education Committee – which concern students’ understanding of what their rights are. If OfS thinks that it can vaguely pressure providers into proactively identifying students entitled to wads of cash, it’s misunderstanding the countervailing pressures on providers in similar ways to those identified by Mills and Reeve over provider collapse. And as I often say on the site, good regulatory design considers how individuals come to understand (or access information) on their rights should they need to use them without having to access a regulator or complaints adjudicator – there’s nothing on any of that here.

    But the third is the lack of a clear link to the regulatory framework, and the lack of any enforcement carried out over what must amount to failings. If the guidance is grounded in OfS’ rules, students might well say “well what action have you taken given that the problems were widespread?”

    If it’s not grounded in OfS’ powers, providers might well say “well notwithstanding that we like to look nice, why would we magnify the efficacy of an industrial action tactic if we don’t really have to”.

    It’s all very well for OfS to be “give them guidance” mode, but over this set of issues the financial impacts of compliance with something that sounds contested, and partly voluntary, could be huge both in an individual dispute and in the long-term. That all (still) needs bringing to a head.

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  • Explaining Sussex v the Office for Students

    Explaining Sussex v the Office for Students

    The University of Sussex has published a pre-action protocol letter to the Office for Students (OfS).

    The letter notifies the regulator of the university’s intention to seek judicial review and appeal the decision – which imposed a £600k fine over breaches related to academic freedom and freedom of speech.

    Thus far we’ve had a war of words – now we see the legal basis for the argument. Sussex argues that OfS acted ultra vires (ie beyond its powers), misinterpreted legal principles, misapplied statutory definitions, and demonstrated irrationality in its findings, particularly over the Trans and Non-Binary Equality Policy Statement (TNBEPS).

    It also asserts that OfS overstepped its authority, failed to engage in procedural fairness, and ignored safeguards already in place – putting meat on the bones of its eye-catching “free-speech absolutism” claim.

    Some of it concerns a regulatory regime that’s set to be replaced – but some of it concerns an allegation of “absolutism” about how the regulator is interpreting the law. The second of those could go on to matter quite a bit once the Higher Education (Freedom of Speech) Act 2023 actually gets implemented.

    Chilling effects and balancing acts

    Sussex’s disciplinary statement classified “transphobic abuse, harassment or bullying” – including name-calling and derogatory jokes – as serious disciplinary offences, and it argues that OfS made a legal error in finding that the statement breached regulatory requirements around freedom of speech.

    It arguies that the language targets conduct already covered by existing laws – like section 5 of the Public Order Act 1986, which prohibits abusive speech likely to cause harassment or distress.

    In 2023, the university introduced clarifications – a “harm threshold” requiring speech to be reasonably expected to cause fear or distress, and an explicit statement safeguarding lawful academic freedom and speech, stating that the policy should not justify disciplinary action for expressing controversial or unpopular views.

    It claims OfS ignored those contextual safeguards and wrongly interpreted the policy as restricting lawful speech, even though its objective meaning, when read in full and in context, demonstrates otherwise.

    Broadly, this is about the “chilling effect” – Sussex is saying that universities can lawfully discipline harmful or abusive speech, as long as there’s an alignment with existing legal prohibitions, and as long as there are clear safeguards for lawful expression – limiting OfS’s power to challenge policies based on hypothetical misreadings. Doing so gives universities freedom to uphold respectful environments without breaching free speech duties.

    Expression that you can restrict

    Next, Sussex argues that OfS misunderstood what “freedom of speech within the law” actually means – taking the position that universities can’t prohibit any speech unless it’s already explicitly banned by civil or criminal law.

    Sussex’s argument is that universities, like other institutions, are allowed to set standards of conduct and discipline behaviour – like plagiarism, abuse, or poor academic quality – even if those behaviours aren’t technically illegal:

    The University would have to tolerate academics designing curriculums which lack academic rigour, for example a curriculum which seeks to reinforce stereotypes (as distinct from a curriculum that discusses stereotypes).

    The University would have to tolerate an academic starting every lecture by swearing at and demeaning students, so long as such action did not relate to protected characteristics.

    The University would have to tolerate an academic conducting every lecture through the medium of song or mime (noting that freedom of speech protects the manner of speech as well as the content).

    The argument is that lawful speech can still be restricted if the restriction is lawful and proportionate, as allowed under Article 10 of the European Convention on Human Rights, and that the mere possibility of disciplinary action doesn’t amount to an unlawful restriction on speech, citing European case law to back this up.

    This one’s interesting because it’s a key part of the “absolutism” argument – in its draft guidance on the new legislation last year, for example, OfS said:

    It is likely to be extremely difficult, if not impossible, for higher education providers and other relevant organisations to comply with their free speech duties if they seek directly or indirectly to restrict the particular content of speech. For instance, a provider, constituent institution or relevant students’ union may wish to restrict or prohibit speech because it has made a negative value judgement about the content of the speech. There is likely to be very little scope to restrict or prohibit lawful speech in this way.

    Sussex is basically saying that the case law suggests that it’s not nearly as difficult or impossible as OfS claims – and that universities retain the lawful authority to set and enforce standards of behaviour, academic integrity, and professionalism – even where those rules affect speech that isn’t illegal. It’s also saying that having disciplinary procedures in place isn’t, by itself, a breach of free speech obligations, so long as they aren’t used to punish lawful expression improperly.

    Stereotyping standoffs

    One of the things we’ve reflected on before is the apparent refusal of the regulator to accept that the case law puts a higher value on free speech in academic contexts than in others – and of course a university encompasses all sorts of contexts.

    Put another way, what a student writes in an essay or what an academic teaches (with all the usual qualifications about proper rigour) that might, say, stereotype a trans person is a world away from stereotyping banter on a society social.

    In the letter, Sussex challenges the logic and legality of OfS’s conclusion about the 2023 “Stereotyping Statement” in the TNBEPS. OfS accepted the statement didn’t infringe academic freedom, noting the policy included a safeguard against constraining academic freedom or imposing disproportionate limits on free speech. Yet it still found the same policy breached freedom of speech duties, because it could chill other lawful speech, particularly by students or non-academic staff.

    Sussex argues this is irrational because the Stereotyping Statement only relates to how the curriculum is designed – something that exclusively involves academics. If OfS was satisfied that the policy didn’t infringe the academic freedom of those academics in setting the curriculum, it argues there is no rational basis to then conclude that their freedom of speech was infringed by the same policy.

    This standoff matters. OfS is saying that even if a policy respects academic freedom, it can still breach free speech duties if it chills broader expression – while Sussex argues that in curriculum design, those duties converge, and protecting academic freedom inherently protects speech.

    Is a policy statement a governing document?

    Sussex argues that the Trans and Non-Binary Equality Policy Statement (TNBEPS) is not a “governing document” as defined by section 14(1) of the Higher Education and Research Act 2017 (HERA), which it says only refers to foundational legal documents like a university’s Charter and Statutes.

    In comments to the Guardian at the end of last month, Sussex vice chancellor Sasha Roseneil argued as follows:

    This is 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. So that’s the core of the problem

    In the pre-action letter, Sussex claims OfS has wrongly expanded the definition through its regulatory framework, which includes broader policy documents, without the legal authority to do so – insisting that only Parliament can define those terms – and that interpreting TNBEPS as a governing document is beyond the OfS’s powers (ultra vires).

    You might argue that it’s sensible for both the law and the regulator to only look at proper, formal governing documents when assessing breaches of things, you might not – but if Sussex is right on that, it does underline a key difference between the law operating in 2021 and what would be the position if the Higher Education (Freedom of Speech) Act 2023 was fully in force.

    It goes on to argue that the regulator “misunderstood and misapplied” its regulatory role, because OfS was supposed to determine whether the university’s governing documents were consistent with principles of academic freedom and freedom of speech – not to speculate on how someone might misread a policy.

    It criticizes OfS for relying on “hypothetical misinterpretations” rather than objectively interpreting the actual text, ignoring contextual safeguards like the university’s disciplinary rules and Free Speech Code – which the university says led to a flawed and unlawful decision.

    If Sussex is right, it’s saying that OfS may have failed a basic legal duty – to interpret documents in context and according to their actual effect, not based on imagined misunderstandings.

    Delegation and proportionality

    You’ll recall that the other big fine for Sussex was about delegation. Sussex argues that OfS acted beyond its legal authority by making findings about whether the university properly followed its internal rules on who has the power to approve policies (its delegation arrangements).

    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.

    It 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.

    Sussex says HERA 2017 doesn’t meet the test, because it neither expressly nor necessarily implies that OfS can judge whether a university has followed its internal delegation rules.

    OfS argues that cases like Thomas v University of Bradford [1987] AC 795 make clear that HERA 2017 grants it the power to impose conditions as long as those conditions fall within its statutory mandate.

    This one’s interesting because it has echoes of arguments about the powers OfS has over consumer protection. In that area, C1 allows it to assess whether a provider has paid “due regard” to guidance, but OfS doesn’t have actual powers to judge whether a provider is in breach – which is partly why it’s busy proposing to remix consumer law as a “fairness condition” of its own, and partly why interim Chair David Behan has been arguing to DfE that it needs to be given proper powers to become an enforcement body.

    Poking around in the annex

    As such, Sussex also argues that OfS exceeded its legal authority by including Annex H in its Final Decision.

    That contains OfS’ views on whether the university may have breached other legal obligations – like Article 10 of the European Convention on Human Rights (ECHR) and the Equality Act 2010. Sussex asserts that HERA 2017 doesn’t authorise OfS to investigate or make findings about compliance with these separate legal duties, which fall outside its jurisdiction.

    OfS tries to justify its actions by saying that potential non-compliance with these laws might indicate whether Sussex breached Condition E1 (the requirement for governing documents to support freedom of speech and academic freedom).

    But Sussex argues this logic is flawed – it says E1 is about the content of governing documents and whether they align with public interest governance principles – not about whether the university might have violated unrelated legal duties that OfS doesn’t oversee.

    The university also points out what it says are legal errors in OfS’ analysis. OfS claimed the university might have breached Article 10 ECHR simply because it didn’t conduct a formal “proportionality assessment” – but case law says that’s not a requirement to prove a breach.

    The case referenced is a fascinating one – in Belfast City Council v Miss Behavin’ Ltd [2007] the council had denied a licence to an adult entertainment business, who argued their freedom of expression was infringed because the council hadn’t assessed whether the denial was proportionate.

    The House of Lords rejected the argument, deciding that what matters is whether the interference was in fact justified – not whether the council had formally weighed it up using proportionality language.

    And Sussex argues that OfS wrongly suggested the university’s curriculum content could amount to indirect discrimination under the Equality Act, even though curriculum content is explicitly excluded from that law under section 94(2).

    Process issues

    Some of the process issues are eye-opening. We learn, for example, that OfS suggested various potential penalties and breaches throughout the 1246 days of the investigation, “most of which were later dropped”.

    We already knew that OfS “never met with university representatives”, declined all requests for meetings or discussions about its findings or decisions, and would not confirm whether changes the university made to its policy addressed the concerns raised.

    Here Sussex says that when the provisional decision was reached and sent in March 2024, it was “259 pages long, repetitive and poorly written”. A year or so later, out of the blue, it says it got a call from OfS requesting a meeting within 3.5 hours – a courtesy call that the final decision was coming that day.

    It says that the majority of the findings and proposed penalties in the provisional decision had been abandoned, but the proposed penalties had actually increased – with no explanation.

    Sussex claims OfS acted unfairly during its investigation by meeting with Kathleen Stock multiple times while refusing nine requests to meet with university representatives – and argue OfS relied on a second statement from Stock, obtained after the university’s submissions, without disclosing it or allowing any response, using it to reject the university’s position on harm caused under condition E1.

    What happens next will hinge on whether OfS engages with the university’s legal challenge or digs in for a court fight – there’s a question over whether there’s any pre-action protocol for this kind of tribunal, and Sussex reserves the right to rely on other grounds.

    But more broadly, the case lays bare fundamental disagreements about how speech should be regulated in higher education, who gets to interpret the law, and where the boundaries lie between institutional autonomy and regulatory oversight.

    Whether you think Sussex is bravely standing up for a more balanced view of the campus culture see-saw, or is simply resisting accountability, the outcome may well reshape how free speech duties are understood and enforced across the sector.

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  • Edward Peck’s performance at the Education Committee

    Edward Peck’s performance at the Education Committee

    There’s something wonderfully postmodern about Edward Peck’s committee hearing ahead of his likely appointment as the next chair of the Office for Students.

    While the first chair of the regulator, Michael Barber, arrived with a fully documented quasi-academic theory of delivery – and while the second, James Wharton, brought a certain kind of political cunning – Edward Peck has a fully fledged multi-disciplinary research-informed theory of leadership as performance.

    How should we understand leadership as performance?

    The idea of performativity – broadly speaking that the descriptive language we use in a given situation has a direct impact on the situation itself – has informed a conceptualisation of leadership as a performance that interrelates both with the wider ideas of what it is to be a leader and the narrower immediate context as a particular leadership “act”. This shifts the focus on leadership from a kind of all-powerful “strongman” (with the consequent cod-psychological popular literature on essential attributes of successful leaders available at an airport near you) to something more subtle around relationships, language, and behavior across multiple settings as shaping experiences of leadership.

    Leaders – in other words – are sensemakers, both in terms of explaining (and thus shaping) reality for those around them, and in collaboratively situating activities carried out by an organisation within this negotiated reality. Sometimes these acts can be almost ritualistic (“is” performance) like in representing the university at a graduation ceremony where roles and norms are predetermined.

    At other points these are more spontaneous (“as” performance) a narrative (a pre-existing conceptualisation of an experience or situation) enacted to an audience in response to an everyday stimulus – something like a discussion of university finances during a spontaneous conversation with a member of staff on campus).

    Not an actual theatre

    This isn’t a literal assertion that leadership is theatre – that it is a kind of scripted reality that lacks authenticity – but the idea that the actions of leaders reiterate (and thus endorse) organisational norms and organisational cultures. So when Peck repeatedly qualified his responses to the education committee with reference to what the OfS had learned in eight years of regulatory activity, and in his need to understand the way in which the legal framework in which regulation takes place has been interpreted he is situating himself as a part of an ongoing story rather than attempting to begin telling a new one.

    This is likely to be important to those who might think a return to a HEFCE-like situation in which leaders were former vice chancellors and things were, apparently, nicer (they weren’t nicer, but this is the story some like to tell) – Peck is entering the stage in the middle of the play and is clearly looking to be an evolutionary rather than a revolutionary chair.

    What he does seem to want to do, in narrative terms, is to use more of the language that institutional leaders themselves use within regulation. In Peck’s performativity theory – these linguistic shifts are important in that they themselves have an impact on the collective understanding of what is going on.

    Usually about six

    The best example of this was, inevitably, about university finances. To Peck there are “usually about six” things that universities do to balance income with expenditure in times of financial constriction – he didn’t name the six, but the impression he was looking to give is that these are well-known and familiar interventions among those who run universities. With this frame, he was able to put the onus on universities rather than regulators to act (“a lot of institutions are still on this journey”), allowing him the appeal to accepted wisdom in being clear that it was not for the Office for Students to bail out universities, and to go further to suggest that if there was a credible route to sustainable business it would be visible to banks (and, I guess, other lenders) and it should not be for the government to create a “moral hazard” by stepping in.

    Committee member Manuela Perteghella pushed him on what he had specifically learned from what Nottingham Trent University had done to stave off financial problems (NTU ran a £9.5m surplus last year, but saw around a 10 per cent reduction in student numbers this year). The first example he reached for can again be traced back to the way he has written about leadership in the past – he made much of the need to “be clear with colleagues” about the problems that the university was facing and do so regularly and openly (there is a quarterly town hall meeting).

    As a leader you do have the chance to control the narrative – and this shapes the way problems are understood. Peck noted the problems that other providers had faced in submitting unrealistic income or recruitment projections to the Office for Students – grand (if broad) plans that made any subsequent need for economy harder to sell internally. He was able to sell a 10 per cent reduction in staff numbers at NTU on the basis of needing less staff to teach less students (based on historical precedent) – and being clear about recruitment problems early allowed him to say that all these job losses would be voluntary.

    The historical precedent – an appeal to a quantifiable and shared memory within the organisation – also made it easier to make the case for a lower staff headcount maintaining the quality of education. If, after all, we could teach this number of students at an acceptable level a few years back with this number of staff, why can’t it be done in 2025?

    Independence day

    One of the stories that has become accepted fact about the Office for Students is that it is too close to the government – reverse regulatory capture, if you like. The Behan report (and to a lesser extent the House of Lords Industry and Regulators Committee report) undermined this assumption a little – there are examples of places where OfS pushed back against the department, although the very nature of the beast means that such independence is rarely visible in public.

    As chair Peck would clearly need to work with government on the underpinning policy framework – hinting at a “new” policy under development for release in the summer, most likely the much-heralded “HE reform” package – but emphasised that “operational” decisions would be independent, and that his network of contacts across the sector would help OfS build better relationships with institutions.

    Again, this isn’t new – or even particularly notable – but it’s another pointer to his explanatory mode of leadership. It suggests that the problem is one of communication, and he even suggests his own ability to communicate as the solution. Virtuoso performance as leadership. When we get to the actual structural changes there’s a sense that OfS has been on the right track recently – revamped student panels, more student surveys. The only novelty is a promised re-engagement with NUS.

    Curtain call

    There’s a lot of stuff that would remain in a Peck-led OfS: he’s keen on B3 as driving value for money, keen to get stuck in on regulating modular provision, feel like we are in the right place on freedom of speech given recent changes, pleased with TEF and access and participation plan (though he asked a fascinating question around what happens to those who register with UCAS – he is interim chair there, currently – but are not placed by the end of the cycle).

    For much of this, regulation is a matter of establishing codes of practice and ensuring that the actions of universities are within these bounds – Peck’s government work on student mental health should have provided the clue there. The codes themselves set the stage, the universities act within those boundaries. You could argue this as legalism, but it makes more sense as freedom within set parameters, something which universities (and indeed academics) will find comfortingly familiar.

    In their 2009 book, “Performing Leadership” Peck and Helen Dickinson (now a professor at the University of New South Wales) cite one compelling example (an unpublished conference paper by Druckett from 2007) of the way the performance of a particular style of management has an impact on lived experience of university staff.

    the case study… illustrates that the assertion, arguably the over-assertion, of the hierarchical and individualist ways of organising by senior management is generating negative feedback from the academics in the organisation. The consequences of not allowing the isolate and enclave approaches to contribute adequately to the organisational settlement may be having, or have in future, significant detrimental consequences for the university.

    The classic postmodernist understanding of the organisation, in contrast, is one of multiple narratives within a common framework. If you feel that OfS has been too deterministic – too rules based rather than risk based – within the first eight years, the way in which Peck (and whoever he chooses as a senior executive team) allows other voices to fill the stage will be fascinating to watch.

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  • The Office for Students reviews TEF… again

    The Office for Students reviews TEF… again

    The Office for Students has been evaluating the last iteration of the Teaching Excellence Framework (TEF), which happened in 2023.

    The 2023 TEF was a very different beast to previous iterations, focusing more on qualitative (submissions from providers and students) evidence and less on the quantitative experience and output measures. But to be clear, this work does not appear to assess the impact or likely effects of these changes – it treats the 2023 exercise very much as a one off event.

    We get an independent evaluation report, written by IFF research. There’s the findings of a survey of students involved in preparing the student submissions (aspects of which contribute to a student guide to evidence collection for TEF), findings from a survey of applicants (conducted with Savanta), and an analysis of the estimated costs to the sector of TEF2023. The whole package is wrapped up with a summary blog post, from OfS TEF supremo Graeme Rosenberg.

    Of all this, the blog post is the only bit that touches on what most of us probably care about – the future of the TEF, and the wider idea of the “integrated quality system”. Perhaps predictably, OfS has heard that it should

    “build on the elements of the TEF that worked well and improve on areas that worked less well for some providers.

    The top-line summary of everything else is that OfS is pleased that TEF seems to be driving change in institutions, particularly where it is driven by student perspectives. There’s less confidence that the TEF outcomes are useful for prospective students – the regulator wants to explore this as a part of a wider review of information provision. And while institutions do find TEF valuable, the cost involved in participation is considerable.

    How much does TEF cost then?

    It cost OfS £3.4m, and the mean estimate for costs to the wider sector was £9.96m. That’s about £13.4m in total but with fairly hefty error bars.

    What else could the taxpayer buy for £13.4m? There’s the much-needed Aylesbury link road, an innovation hub in Samlesbury near the new National Cyber Force headquarters (promising jobs paying upwards of £3,000 according to the headline), or enough money to keep Middlesbrough Council solvent for a while. In the higher education world, it’s equivalent to a little under 1,450 undergraduate annual tuition fees.

    The sector numbers come from a survey involving 32.3 per cent of providers (73: 52 higher education providers, 21 FE colleges) involved in the 2023 TEF conducted in September and October 2024 (so significantly after the event). It looked at both staff costs and non-staff costs (stuff like consultancy fees).

    As you’d probably expect, costs and time commitments vary widely by institution – one provider spent 30 staff days on the exercise, while for another it was 410 (the median? 91.6). Likewise, there was variation in the seniority of staff involved – one institution saw senior leaders spend a frankly astonishing 120 days on the TEF. Your median higher education provider spent an estimated £37,400 on the exercise (again, huge error bars here). It is asserted that Gold rated providers spent slightly more than Silver rated providers – the data is indicative at best, and OfS is careful not to assert causality.

    We also get information on the representations process – the mechanism by which providers could appeal their TEF rating. The sample size here is necessarily tiny: 11 higher education providers, 8 colleges – we are given a median of £1,400 for colleges and £4,400 for higher education providers.

    Was it worth it?

    The picture painted by the independent IFF evaluation is positive about the TEF’s role in driving “continuous improvement and excellence” at providers. The feeling was that it had encouraged a greater use of data and evidence in decision making – but in some cases these positive impacts were negligible given the volume of the input required. Students were also broadly positive, citing limited but positive impacts.

    The evaluation also made it clear that the TEF was burdensome – a large drain on available staff or student resource. However, it was generally felt that the TEF was “worth” the burden – and there was a broad satisfaction about the guidance and support offered by OfS during the process (although as you might expect, people generally wanted more examples of “good” submissions – and the “woolly” language around learning gain was difficult to deal with, even though the purpose was to drive autonomous reflection on measures that made sense in a provider context).

    One of the big 2023 cycle innovations was a larger role for the student submission – seen as a way to centre the student perspective within TEF assessment. This wasn’t as successful as OfS may have hoped – responses were split as to whether the process had “empowered the student voice” or not – the bigger institutions tended to see it as replicating pre-existing provider level work.

    Students themselves (not many of them, there were 20 interviews of students involved in preparing the submissions) saw this empowerment as being limited – greater student involvement in quality systems was good, but largely the kind of things that a good provider should be doing anyway.

    But the big question, the overall purpose, really needs to be whether TEF2023 raised the value of the student experience and outcomes. And the perspective on this was… mixed. Commonly TEF complemented other ongoing work in this area, making it difficult to pick out improvements that were directly linked to TEF, or even to this particular TEF. Causality – it’s difficult.

    If we are going to have a big, expensive, exercise like TEF it is important to point to tangible benefits from it. Again, evidence isn’t quite there. About half of the providers surveyed used TEF (as a process or as a set of outputs including the “medals” and the feedback) to inform decision making and planning – but there were limited examples of decisions predicated on TEF offered. And most student representatives were unable to offer evidence of any change as a result of TEF.

    Finally, I was gratified to note that coverage in “sector publications like Wonkhe” was one key way of sharing good practice around TEF submissions.

    The value to applicants

    Any attempt within the sector to provide a better experience for, or better outcomes for students is surely to be welcomed. However, for a large and spendy intervention the evidence for a direct contribution is limited. This is perhaps not surprising – there have been numerous attempts to improve student experience and outcomes even since the birth of the OfS: by the regulator itself, by other sector bodies with an interest in the student experience (the Quality Assurance Agency, Advance HE, the sector representative bodies and so forth) and autonomously by institution or parts of institutions.

    Somewhat curiously, the main evaluation document has little to say about the realisation of TEF’s other main proposed benefit – supporting applicants in choosing a provider to study at. Providers themselves are unsure of the value of TEF here (feeling that it was unlikely that applicants would understand TEF or be able to place due weight on the findings of TEF) though there is some suggestion that a “halo effect”, drawing in part from the liberal use of logos and that job lot of gold paint, could help present a positive image of the provider. It is a hell of a reach, but some noted that the fact that institutional marketing and recruitment efforts used TEF and the logos presents evidence that someone, somewhere, thinks it might work.

    The thing to do here would be to ask applicants – which OfS commissioned Savanta to do on its behalf as a separate exercise. This research was based on six focus groups covering 35 prospective students aged between 17 and 20 and applying to England. In four of these groups, participants had heard of the TEF – in two they had not – and in every case the applicants had ended up applying to silver rated universities.

    This is backed up by what initially looks like a decent survey instrument – a big (2,599 respondents, covering various existing online panels, and weighted via the use of quotas on age, gender, ethnicity and post fieldwork by provider type, mode of study, domicile, and neighbourhood participation marker) survey conducted in April and May of 2024. The headline finding here is that 41.7 per cent of applicants (n=798) had seen TEF ratings for any university they had looked at.

    Somewhat mystifyingly, the survey then focuses entirely on the experience of those 333 applicants in using the TEF information, before asking whether applicants may think TEF would be important in applying to university of the whole sample (52.2 per cent reckoned they would be important, despite a fair number of these applicants not having even noticed the ratings).

    Can I just stop here and say this is a weird methodology? I was expecting a traditional high n survey of applicants, asked to rate the importance of various factors on application choices, ideally with no prompting. This would give a clearer picture of the current value of TEF for such decisions, which is what you would expect in evaluation. That’s not to say that the focus groups or a specific awareness or use survey wouldn’t be a valid contribution to a proper mixed methods analysis – or as a means of generating a survey instrument for wider use.

    Even so, participants in the focus groups were happy to list the factors that affected their choices – these included the obvious winners like location, course content, and graduate outcomes, plus a “significant role” for the cost of living. Secondary (less important) factors included university reputation, teaching quality, and other personal preferences. Though some of these factors are covered within the TEF exercise, not one single applicant mentioned TEF results as a primary or secondary factor.

    For those that had heard of TEF it was seen as a “confirmatory tool rather than a decisive factor.” Applicants did not understand how TEF ratings were determined, the criteria used, or what the meaning of – say – gold rather than silver meant when comparing providers.

    The focus groups chucked the supplementary information (panel statements, submissions, the data dashboard) at applicants – they tended to quite like the student statements (viewing these as authentic), but saw the whole lot as lengthy, overcomplicated, and lacking in specificity.

    I enjoyed this comment on the TEF data dashboards:

    I feel like there is definitely some very useful information on this page, but it’s quite hard to figure out what any of it means.

    On the main ratings themselves, participants were clear that gold or silver probably pointed to a “high standard of education,” but the sheer breadth of the assessments and the lack of course level judgements made the awards less useful.

    There was, in other words, a demand for course specific information. Not only did applicants not mention Discover Uni (a government funded service that purports to provide course level data on student outcomes and the student experience), the report as a whole did not mention that it even existed. Oh dear.

    Unlike IFF, Savanta made some recommendations. There needs to be better promotion of the TEF to applicants, clearer ratings and rationales, and a more concise and direct presentation of additional information. Which is nice.

    What to make of it all

    Jim will be looking at the student submission aspects in more detail over on the SUs site, but even this first reading of the evaluation documents does not offer many hints on the future of the TEF. In many ways it is what you would expect, TEF has changed mainly when OfS decided it should, or when (as with the Pearce review) the hand of the regulator is forced.

    While providers are clearly making the best of TEF as a way to keep the focus on the student experience (as, to be clear, one stimulus among many), it is still difficult to see a way in which the TEF we have does anything to realise the benefits proposed way back in the 2015 Conservative manifesto – to “recognise universities offering the highest teaching quality” and to allow “potential students to make decisions informed by the career paths of past graduates.”

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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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  • OfS is starting to better understand the student interest

    OfS is starting to better understand the student interest

    Part of the point of having a regulator focused on students, rather than – say – a funding council or a department, was always about acting in “the student interest” rather than, say, the “provider” interest.

    But ever since HEFCE started talking about “the student interest” back when it made the Quality Assurance Agency bid to become its quality assurance agency, there’s always been a vague sense that “the student interest” is only ever really definable by reference to what it isn’t, rather than what it is.

    Can you define “a seminar”? Maybe not. Is 150 people in a room “a seminar?” Nope. And so on.

    In theory, once you know what “the student interest” actually is, you can then embed it into regulatory priority setting, regulatory design and regulatory activity.

    It’s a laudable principle, but as the idea hit reality it turned out that the sheer diversity and complementarity of student interests are not easily understood or quickly realised.

    As the Office for Students (OfS) has dealt with “monster of the week” framings of freedom of speech and grammar in assessment, a common criticism has been that student interest has been “ventriloquised” to back (sometimes questionable) ministerial priorities.

    And in areas where the body it has been using to define the student interest has gone against the views of ministers – for example on decolonisation and inclusive curricula – there appears to have been a concerning tendency to silence competing voices.

    Have students historically been able to trust OfS to advocate for their interests? It’s not entirely clear. The publication of new research into student priorities is therefore supposed to centre aspects of the authentic student voice within regulation and policy.

    Research findings

    OfS has worked with polling companies and conducted its own surveys and focus groups to gather information. Sources include:

    • Polling conducted by Savanta (1,761 students and graduates)
    • Two online focus groups conducted by YouGov
    • A YouGov online survey (750 responses) with prospective students, current students and graduates
    • An online focus group with students from small and specialist providers, arranged with the support of GuildHE
    • The Office for Students Student Panel

    Though this is a fair amount of evidence, OfS is clear that what is presented is a snapshot – the interests and priorities of students will evolve in future. The outputs from this exercise have helped to shape the recent OfS strategy – future strategic thinking would need to be shaped by more recent examples of this kind of engagement.

    The research is presented in four themes, covering student experiences and expectations, the idea of students as consumers, student interests in the long and short term, and the relationship between the student interest and the public interest.

    As presented, each section offers headline findings and key results from polling followed by a range of illustrative quotes from individual students.

    Students expect a high quality education that “reflects their financial investment and the promise that was made to them” – this includes opportunities to engage in social and extra-curricular activities. Academic and personal needs should be supported, and students also expect opportunities that will help their future careers.

    Yougov polling found that 79 per cent of undergraduates believed that university had either met or exceeded their expectations – 91 per cent felt they would end up with a credible qualification, 90 per cent felt they would leave with credible knowledge of their subject area.

    In contrast students do not feel they have received sufficient one-on-one support from staff, and have experienced disruption from the Covid-19 restrictions on activity and industrial action. More widely, the cost of living has had an impact on studies (60 per cent of students polled by Savanta agreed) – students were clear there is insufficient financial support available. And there is a persistent feeling that tuition fees are too high – 60 per cent felt their degree represented value for money.

    Specific issues have included difficulties in finding suitable and affordable accommodation, and a lack of mental health support for those who need it. Savanta polling suggested that 28 per cent of undergraduates felt contact hours had been insufficient to support their learning, 32 per cent of undergraduates had issues with the way their course has been taught, and 40 per cent said that one of the three biggest influences on their success was financial support.

    I was promised x amount of hours in person and I wasn’t able to due to strikes/Covid. Online lectures/seminars were not fruitful at all. (Male, 23, graduate, YouGov focus group)

    You can’t do anything without your health and with the stress that can come with the intense study and financial restraints of university life it is particularly important that the university supports students so they can maintain good wellbeing. (Male, 20, higher education student, YouGov focus group)

    Lots of different things can influence student interests. Cultural differences can mean some students might need varying levels of support to properly enjoy university life. Socioeconomic backgrounds for example can require that students will have an interest in needing either more financial support or the ability to balance part time work with studies.’ (Female, 23, higher education student, YouGov focus group)

    As signalled over the summer, students as a whole do not like the term “consumer”, feeling that the term implied education could be bought rather than acquired through personal effort. That said, there was an identification with the idea of “student rights” – both in terms of promises being met and access to refunds.

    And the idea of students as “investors” in their education was not viewed favourably either – students don’t consider their financial contribution as a choice, preferring to think about how they invest their time and effort.

    Students are not really given consumers rights, as seen by Covid year students who want money back. If you are given a false promise … there should be a way to complain … but [there] is not really. (Female, 18, further education student, YouGov focus group)

    It is much more difficult to complain, and essentially impossible to claim a refund. (Female, 20, higher education student, YouGov focus group)

    I have a right to get what I was expecting when I signed up for the degree… This means having teaching provision in line with what was advertised. (Female, 20, higher education student, YouGov focus group)

    There is a slight preference (60 to 40 per cent) for a provider focus on long-term rather than short-term student interests.

    By “short term”, students mean their day-to-day experiences – so stuff like academic support, progression and success, costs of living, and mental well being. “Long term” interests extend beyond graduation, revolving around career preparation and progression, skills for employment, and networking.

    I think in the short-term, academic and pastoral support with exams and coursework deadlines is most important, as well as general support with aspects of student life such as managing finances, finding accommodation etc. (Female, 20, higher education student, YouGov focus group)

    For me long-term encompasses the whole of the time I spend at university and then the years after where my degree affects my career progression etc. (Female, 23, higher education student, YouGov focus group)

    You’ll have spotted that there’s less information in these sections as we go on – the last one gives another inconclusive split – according to students, providers should focus on delivering student benefits (66 per cent) rather than public benefits (36 per cent).

    There were “a number of perceived conflicts” between student and public interest – these were “related” to tuition fees and accommodation, but we are not told what they are precisely.

    From the focus group quotes we can deduce that there is a public interest in developing graduates. The public interest may be to minimise student debt, while individual students might benefit by not paying off loans – the public might not like student accommodation blocks in city centres, while students do.

    That these hang off a mere handful of focus group quotes is frustrating and limits the usefulness of the insights. That “provider interest” is missing is also frustrating – plenty of students will argue with themselves and each other about the extent to which their personal interests can conflict with those of “the university”.

    I think a long-term interest of developing inquisitive, interested graduates who want to continue to learn about and critically analyse the world around them is an incredibly important part of a robust society. (Female, 33, higher education student, YouGov focus group)

    Student debt is a clear conflict of interest between students and the public interest. It is in the public interest to minimise student debt as a lot of it is not paid off by the students, however an individual student is benefiting by not paying off their student loans. (Female, 20, higher education student, YouGov focus group)

    Student accommodation is another example. Generally, members of the public don’t like having large student accommodation blocks built in city centres, however many students would like to live close to university and of course, in a cheaper accommodation. (Female, 20, higher education student, YouGov focus group)

    Also frustrating is the extent to which the findings seem to assume that students can’t or won’t consider their community or collective interests – understanding the extent to which, for example, student A is prepared to cross-subsidise student B’s mental health support or more expensive teaching probably matters much more than knowing who’s thinking short-term or longer-term, when surely pretty much everyone has both rattling around in their head.

    So what?

    For anyone who works with students, or has met students, none of these findings will come as a huge surprise. There are many formal and informal surveys of students and graduates, and this new research largely acts as a way of reinforcing what is already known.

    For critics, not being able to see the underpinning polling data raises all sorts of questions – like what was asked, who was asked, when were they asked it, what the differences were by characteristic or provider type, and how the results were weighted – partly because one way for a regulator to prioritise is by focussing in on those most at risk, or most unhappy, and so on.

    It’s also possible to raise an eyebrow at some of the conclusions that OfS Director for Fair Access and Participation John Blake draws from the research. When he says, for example, that he has “discovered” that students have two categories of expectation – one relating to their experiences of higher education (what studying feels like) and the other relating to what it gets them in the future – you are left thinking “well what else would they have expectations about” if not “good job the whole of your quality improvement medals scheme, a review of which involved a shed ton of research with students, also framed things in terms of experience and outcomes”.

    It’s possible to have expectations that are too high given OfS’ form, legal remit and the realities of day to day expectations. Jim often notes that while students’ unions will carry out plenty of research into “the student interest”, they’re still going to run a freshers fair, a course rep system and elect some full-time sabbatical officers in March – just as for all the research that providers do on their strategies, they pretty much all still vow to deliver excellent teaching, groundbreaking research, something something knowledge exchange and civic, and something something buildings HR and finance. For all the high blown rhetoric about change on inception, OfS is still a cruise ship not a speedboat.

    One thing that does still feel missing is not so much the recognition that diverse students have different priorities and interests – that does come out vividly in Blake’s blog – but that when you have a fixed remit and limited resources, you do have to prioritise. Add in that sometimes diverse interests are opposed, and you then have to set out how and who makes the calls, and then demonstrate that that has impacted what you do and how you do it. You do get the sense that there are passionate people in there who recognise that – but that there’s still a way to go in delivering the old “whole provider strategy” thing inside OfS.

    There’s also the partner question. Perhaps the newly souped-up interest board will get to do some of this, but if you take that two-thirds/one-thirds split on student v public interest, the point about student as partner is that they are seen both as capable of holding both thoughts in their head at once, and capable of contributing to a discussion about how you find a way through what can feel like a contradiction. It’s true on freedom of speech v freedom from harm , it’s true on “high academic standards” v “supporting students to succeed”, and true on the often contested balance between student feedback and academic authority. Education is always co-produced, even if one side is young and paying for it and the other “provides” it.

    Nevertheless, while eight years in is a bit late to be properly considering how the “student interest” is defined strategically, this is a good start. Over the coming year it says it will share further student insight based on polls and engagement that it has done – that might be on a topic with direct links back into its regulation, or something of regulatory interest to OfS but where it’s not yet planning direct regulation, or unable to act directly. The theory of change is that that sort of information can suggest areas of focus for providers (and while it doesn’t say so, for ministers) and support informed choice by students.

    If nothing else, it should allow students and their representatives to test whether the issues they’ve spoken on – on accommodation, on support, on their rights, and on value for money – will be acted on meaningfully by a regulator that is starting to realise just how important keeping promises to students is.

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  • Fairness and protection for students is coming – but not for those that need it now

    Fairness and protection for students is coming – but not for those that need it now

    As well as a new condition of registration on governance (covered elsewhere on the site by my colleague David Kernohan), the Office for Students (OfS) has announced a new approach focussed on providers “treating students fairly”.

    There will be a new condition of registration – replacing existing ones on consumer protection guidance and student protection plans – aimed at institutions providing students with clear, easy to access information about what will happen if changes are made to their course, and fair processes for refunds and compensation and complaints.

    Broadly, OfS will shift from expecting providers to pay “due regard” to guidance from the Competition and Markets Authority towards itself making judgements – both about compliance with consumer law, and some of its own higher standards for fairness.

    It says that students have told the regulator that they want to receive a high quality education that reflects their financial investment and the experience they were promised, and that they want to be treated fairly – but that while many students do not explicitly refer to their experiences as consumers, words such as “fairness” and “honesty” are often used when they describe specific experiences and promises that have not been met.

    As cuts continue across the sector, a heavy focus on financial sustainability both inside providers and the regulator almost certainly means an enhanced risk that students will feel unfairly treated when their courses or wider experiences shoulder the burden of savings reductions. Often those feelings will be legally justified.

    But the jaw-to-the-floor astonishing thing – given OfS’ positioning as a risk-based regulator – is that none of the new proposals in this area will apply to currently regulated providers:

    We recognise that proposing to strengthen protections and ensure consistency of information for students of providers registered under [new] proposed initial condition C5 would mean that different arrangements would be in place for different groups of students, depending on when their provider was registered.

    Changes to ongoing regulatory requirements for registered providers are not within the scope of the current consultation. However our ultimate aim is to strengthen protections and ensure consistency of information for all students at all OfS-registered providers. In doing so, we would aim to align ongoing requirements for all registered providers, and we therefore envisage that having different requirements for different providers would be an interim position.

    Proposals to achieve this alignment, and to ensure that all students are treated fairly on an ongoing basis, would form part of a future consultation on ongoing requirements for currently registered providers.

    That’s right – well over five years since the bones of its new approach were set out in a paper to its board, in a context where the risks to students in this space have intensified significantly, better protecting students inside providers already on the register is parked as an “ultimate aim” with an unspecified date. And so for some, what follows below shifts from “need to get across” to “of mild passing interest for the time being”.

    Doing so much harm, doing so much damage

    The main thrust of the new approach to “fairness” – telegraphed by Director for Fair Access and Participation John Blake last summer – has a couple of key components.

    First, rather than relying on the Competition and Markets Authority, or the courts, or National Trading Standards to take action or make a judgement over an issue, it’s taking that in-house.

    And to go alongside that, it’s taking existing legislation – mainly consumer protection law, but there’s other bits too – and adding to it to form a new mega-definition of what it considers to represent “fairness”, partly to address the cat-nip nature of the “consumer” nomenclature.

    As well as the engagement feedback it’s had from students, it’s doing this based on experience. Examples it has seen include omitting material information, like additional course costs or registration fees, leading students to make uninformed decisions.

    It says it’s come across providers withdrawing offers after acceptance due to over- or under-subscription, leaving students unable to secure alternative options and stuck with financial commitments like accommodation. It has also come across – and referred to trading standards – like contractual terms that limit providers’ obligations during staff industrial disputes that may prevent students from receiving adequate teaching or compensation.

    It’s also seen issues involving complaints processes that impose unreasonable barriers, like short submission windows, which hinder students from seeking redress and compensation.

    And it’s picked up on false or misleading advertising, including claims about financial aid, course accreditation, or a provider’s status as a university, that may mislead students into pursuing programs that fail to deliver expected outcomes – where as a result, students may complete courses only to find that their certificates lack the value or recognition they anticipated.

    One might ask, if it’s seen all of that in its current crop of registered providers, why it’s consulting on souping up its regulation only in newly registered providers for the time being.

    But you don’t wanna get involved

    But on the assumption (which, from experience, is a dangerous one) it gets there in the end, it’s worth looking at what it’s proposing in detail.

    First thing on fairness. Currently, providers have to demonstrate compliance with consumer protection law when they apply to be on the register – but are not required to show how they more broadly ensure “fair treatment” of students.

    This, it says, can result in situations where providers meet regulatory conditions but still have unfair policies or terms affecting students. So the proposed changes aim to better protect students by ensuring that providers’ policies and practices are fair and safeguard consumer interests consistently – avoiding a situation where students end up having to legally challenge unfair terms, and moving towards an approach of requiring providers to act fairly from the outset.

    In that lovely OfS way, it will then assess whether a provider treats students fairly through a requirement that identifies when a provider does not treat students fairly. The old “I don’t know what a seminar is, but a 100 people in a room isn’t one” is the vibe here.

    A bunch of negative behaviours will be set out, and assessments will evaluate whether providers meet the condition by identifying the presence or absence of those negative behaviours – a “streamlined process” that it says will result in a clear “satisfied” or “not satisfied” outcome.

    The specifics of that run like this. If actions (or omissions) either fall within one or more descriptions, which it proposes to set out in a separate “OfS prohibited behaviours list”, or give rise to a likelihood of detriment or actual detriment to the student (except where reasonable in all the relevant circumstances), then the application gets the big red “unfair” stamp.

    The definition of unfair treatment it’s proposing draws on consumer protection law and CMA guidance, which it says are already familiar to higher education providers (notwithstanding that a whole chunk of it is changing, which I looked at earlier on the site here). The key bit is that OfS is aiming to offer an additional layer of protection beyond editing legal requirements – the proposed list of negative behaviours is not confined to those explicitly prohibited by law.

    And for consumer law fans, contract terms that may be regarded as unfair according to the Consumer Rights Act 2015 (the so-called “grey list”) will always be unfair in OfS-world – particularly over changes to courses, refund and compensation policies and contract terms and conditions:

    We are proposing to consider documents beyond those that may ordinarily have contractual effect and the condition therefore has a wider scope than consumer protection law. Our initial view is that this is appropriate because students may rely on a wider range of documents in practice.

    Some will regard that as overreach – others will feel reassured that the square peg/round hold of applying consumer law to the relationship between student and university will be properly addressed.

    The other thing in here for consumer law detail fans is that the draft condition proposes that a provider would not be regarded as treating a student fairly if, in OfS’s reasonable opinion, its actions or omissions (including those that are proposed or likely) give rise to a likelihood of detriment or actual detriment to the student.

    That’s odd because, as I explained on the site a few days ago, consumer law and the way the CMA is proposing to apply it is moving away from a “detriment test” and towards banning some behaviours regardless.

    And excuses will be available – whether it is reasonable to argue that the course of action proposed or taken is, or was, necessary in the circumstances; whether those circumstances are, or were, in the control of the provider; and whether the provider is doing, or has done, everything possible to limit the extent of any detriment. That opens up all sorts of “what ifs” – including those on “but we were about to collapse and you told us not to collapse” – that OfS officials will doubtless be fielding on webinars in the coming weeks.

    One curious aspect of the proposal – at least as it’s set out here – concerns the difference between an “initial” condition and an “ongoing” condition of registration. OfS is proposing new C5 on fairness explicitly here as an “initial” condition – so it’s principally proposing to look at a bunch of documents and policies before it lets a provider onto the register.

    Of course not only can those policies change, it’s often the way they’re implemented (or not) and interpreter that matters more – the consultation is oddly silent on whether new C5 will also become an ongoing condition of registration that OfS could intervene on later.

    In fact it feels like OfS is under pressure to get registrations going again, isn’t quite ready on this fairness stuff, and so has half slipped it into an announcement on new registrations for the time being.

    I know you wanna live yourself

    This being OfS, you actually have to fish your way to page 72 of the consultation document at Annex D to see what it’s proposing as prohibited behaviours – and it’s in seven sections, covering key documents, descriptions relating to conduct and omissions, the clarity and legibility of key documents and other information for students, policies on changes to courses, complaints processes, refund and compensation policies and fake reviews.

    The first of those picks up much of the casework that it’s been referring to National Trading Standards – clauses that deny students the ability to offset payments due to provider failures, clauses that allow providers to withdraw offers at their discretion, particularly due to oversubscription, penalties for withdrawing or unmet obligations, and those that give universities the ability to terminate contracts or define terms at will.

    There’s also stuff on contracts that limit students’ access to legal recourse or impose restrictive dispute resolution processes, those that allow providers to transfer their obligations to other entities without student consent, and ones that allow a provider to determine whether the services supplied conform with the contract.

    In the actions and omissions bit, there’s claiming OfS registration or the right to use the term “university” without permission; offering degrees without appropriate authority or contracts; falsely asserting validation, accreditation, or endorsement by another body; displaying unauthorised logos, trust marks, or quality marks; and making definitive claims about future registration, university status, or authorisations that have not been granted.

    Pleasing to these eyes at least is also advertising or promoting courses, services, or facilities without disclosing reasonable doubts about the provider’s ability to deliver them; intending not to deliver what was advertised and/or planning to provide an alternative, and applying pressure to force immediate decisions, such as falsely claiming that an offer or its terms are available for a limited time only, depriving students of the opportunity to make an informed choice.

    There’s also communicating with prospective students in a non-English language without disclosing that services will be provided in English (!), presenting legal rights as unique features of the provider (!!) and using paid media content to promote services without clearly identifying it as advertising (!!!). It all goes on.

    In fact this list gets better as you move down it. Publishing false or inaccurate information about market conditions or competitors to induce students to sign contracts, offering prizes or rewards without delivering them or without disclosing associated costs, and falsely describing services as free when hidden costs exist are in there too – as well as making persistent, unwanted contact with applicants or students through various communication channels – defined partly in reference to harassment legislation.

    Maybe you work in a provider where you assume that the further down that list you get, the less likely it is that any of that happens. If you’re paying agents – either domestically or internationally – I can pretty much assure you that there’s a real iceberg below that tip.

    Clarity and legibility covers off documents that are hard to read or use unclear language, or fail to specify how they apply to different time periods or categories of students. Complaints unfairness includes strict time limits, no clear contact point, a lack of clear and reasonable timescales, and the one derisory mention of the Office of the Independent Adjudicator’s complaints scheme.

    And the section on changes hedges its bets a bit – there has to be clear stuff on the circumstances where changes may occur (like alterations to course content, qualifications, mode of study, teaching location, and fees), measures to address the needs of specific student groups, such as those with accessibility needs, and those policies must ensure that all students are treated fairly if such changes are implemented. Examples of where providers reserve too much of a right to make changes after the fact (“but all of those optional modules that you chose here for were not material”, and so on) are missing in action.

    Oh – and refund and compensation policies have to clearly outline the circumstances under which students are entitled to refunds or compensation (along with the methods used to calculate both!), and picking up some of that DMCC 2024 stuff, fake reviews are called out too – which include falsely claiming authorship by a student, concealing incentives provided for reviews, manipulating reviews by hiding or removing negative ones, and not taking reasonable steps to prevent or remove fake reviews.

    But could you forgive yourself

    Some other aspects of note. OfS expects all providers to comply with the law and as a starter any provider found not to have done so gets that “not fair” stamp. That includes consumer protection law, the Education Reform Act 1988 (unrecognised degrees), the Companies Act 2006 (failure to comply with a Secretary of State direction to change a company name, or a name giving misleading indication of activities).

    It’s also chucking in the Protection from Harassment Act 1997 to address circumstances where a provider imposes academic sanctions for non-payment of non-tuition fee debts, the thing that originally led the then Office for Fair Trading to start thinking about the way consumer law applied to students in the first place in the last decade.

    Of particular interest is scope. It covers relationships with current, prospective, and former students – the first and third of that list theoretically pick up rights that they often don’t have now. It obviously applies to all modes and levels of study, including online, face-to-face, or hybrid delivery. It naturally extends to providers operating through partnerships or intending to do so. But it also includes ancillary services and the provision of student information – including marketing and advertising.

    Ancillary services are defined here as services provided between a provider and a student as part of their higher education experience, including library services, disability support, scholarships, accommodation, and sports facilities:

    These services can influence a student’s decision on where to study and their overall higher education experience. Unclear or inaccurate information about these services may affect a student’s choice of provider or course, while unclear or unfair terms of service may negatively impact their experience.

    This is very good news for students who, from experience, are often told that stuff on or adjacent to that list can be cut because it’s not “part of the contract” or “on the CMA material information list” (it’s in the footnotes, actually). It should make it much harder to slash that intercampus bus, or cut 24 hour libraries down to 12.

    I stand in front of you

    What’s that you say? What happens to student protection plans? I’ve written extensively on the failure of that regime on the site before, suffice to say that the Higher Education and Research Act still mentions them, and OfS’ way around that is to argue that Condition C4, introduced in 2021, allows it to issue student protection directions if there is a material risk of a provider ceasing higher education provision – so C3 (have an SPP) is being deleted, and instead the suite of documents it will look at in pursuit of all of the above will, in effect, constitute a provider’s student protection plan.

    This makes lots of sense – SPPs were inconsistent, protections were assessed on OfS’ judgement of provider risk rather than the granularity pockets of students face in a large provider, and in theory means consistency from their point of view.

    So the silly SPP “risk assessment” goes – the one that right now probably says your university is swimming in cash as it announces a round of redundancies – and instead all of the above will have to appear on a single webpage to allow a “one stop shop” for students.

    You might also wonder where that strategy proposal has gone – the one that Jo Johnson proposed before OfS was born, and the one that Gavin Williamson proposed too – a “model contract” that sets out students’ rights and obligations, alongside the obligations of providers. It’s being parked for now as a potential addition:

    We may therefore explore development work in this area through further discussion and engagement with the sector, outside the current consultation process and alongside, rather than instead of, the introduction of a new initial condition of registration.

    On reflection, one glaring omission in here concerns what a provider can and can’t do when it comes to fee increases for continuing students – a cynic might argue that that’s controversial enough right now without OfS wading in and… protecting students. But given Ofcom has now banned in-contract price increases altogether, it does look like a huge hole.

    The other thing I’m surprised to see missing is the protection aspects of progression. There are plenty of providers that advertise a “BA in Wonkhe studies with an integrated foundation year” which technically and internally consists of an FY and a degree course – where the closure of the degree course seems to not trigger the same protections for those left high and dry as a second or third year disappearing. See also students who were “sold” a UG on the basis of progression to a vital PGT qualification.

    It’s also disappointing to see little mention of the sort of pressure that students can be under to make what the CMA, in its draft guidance on the DMCC, would call a “transactional decision” like agreeing to a (contract) variation. CMA’s definition of consumer vulnerability and its insistence than in practice, offering students the chance to exit a contract if they’re not happy with changes is not one most can make is a huge issue across the sector right now – and both is and will be a big driver of those “dishonesty” and “unfairness” perceptions that OfS leads the consultation off with. The lack of mention of the issues in the ongoing Student Group Claim – especially when OfS was pontificating about those issues during Covid – is wild.

    The single mention of the Office of the Independent Adjudicator (OIA) is also one to ponder on – partly because it’s the OIA that has tended to take the lead on judging (conceptually at least) fairness for students. Even if we set aside the politics, it won’t help for two sets of guidance to be floating around on what “fairness” means in practice – and students surely deserve these two grown-ups getting in a room to reconcile their advice on rights.

    One other thing that continues to vex me about the proposals and the approach is the obsession with OfS’ powers over student power. Some of this sort of stuff is about providers doing the right thing – but so much of it is about students understanding their rights, so that when someone says “well all those optional modules aren’t contractual”, they can put up a fight.

    It really wouldn’t be hard for OfS to write in something similar to that which we saw in Poland recently – where it’s the law that SUs are given the support to tell students about their rights (and responsibilities) in a way that barely goes near the catnip of consumerism. Beyond the wording of policies, some students are going to be treated unfairly sometimes – steps that ensure they know it beyond a feeling are surely a precursor to effective regulation. It’s hard to ever accept OfS announcements about student focus or student empowerment without that shift in approach that other regulators seem to understand.

    As such, the framing of it all is a bit odd given, as I say, this is being proposed as an initial rather than an ongoing condition of registration at this stage – sat within this need to announce what it’s doing about a growing backlog of applications. Some of the wording only really makes sense in terms of what providers do in practice, not what some PDF says on a website. We’re left assuming that what’s in here will, at some later date, apply beyond the day OfS says yes or no to a new provider – but even critiquing that appears to be outside of the scope of the consultation.

    It’s certainly interesting for OfS to be consulting providers, SUs and students and students on stuff that won’t apply to most of them, but might, in a slightly different way, apply them at an unspecified future time.

    Overall, this looks like great news for students – finally, an education regulator properly thinking through the ways in which students are treated unfairly. But to return to the astonishing aspect of all of this – what is being proposed here is one set of rights for students in a new(ly registering) provider, and another set of much weaker ones for everyone else, all in the name of “fairness”, at just the point that providers are under pressure to not deliver on some of the promises they made to students.

    The lack of justification or explanation for that is alarming – and while I often do my best to not speculate or attribute motive, it would be hard for students braving a read of this to conclude anything other than OfS has resolved that the financial sustainability horse needs to have fully bolted before the regulatory framework stable door is closed in their interests.

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  • When OfS reopens its register, there will be implications for everyone else

    When OfS reopens its register, there will be implications for everyone else

    The process may be paused right now, but if you are thinking of registering with the Office for Students (by choice, or following the requirement for larger franchise providers to get on board) the game is changing.

    The Office for Students has issued a consultation on two new initial conditions of registration.

    Interested parties have until 23 April to offer feedback, with the overwhelming majority of conditions due to come into force from August – at the point where OfS is planning to resume registration activity following the current pause.

    This will have a particular impact on providers who are currently planning (or preparing to restart) submissions quashed when the pause started. Expectations and requirements will change – and while OfS hopes to primarily assess documents a provider will already have, these things do tend to be tailored to fit requirements.

    C5: Treating students fairly

    New condition C5 replaces C1 (consumer law) and C3 (protection plans) as initial conditions – an assessment will be based on identifying behaviours that constitute unfair treatment of students (there is a list) from documents providers already have.

    There are implications from that one that reach far beyond new applications to the register – Jim Dickinson has covered those in detail elsewhere on the site.

    E7: Effective governance

    This new initial condition replaces the current E1 (on public interest governance) and E2 (on management and governance), though those two remain as ongoing conditions. OfS offers a rationale:

    We are increasingly finding that newly established providers (with less experience of delivering higher education) are less sure about what is required in terms of the self-assessment we ask for at registration. This leads to inefficiencies in the assessment.

    Providers have been engaged in substantial back-and-forth conversations with OfS about what is expected during registration. The regulator has noted that people are describing existing documents where it would be quicker to submit them, and has spotted that what is submitted can often be poorly written and excessively tailored to paint a rosy (and hopefully successful) picture.

    Some applicants have been borrowing and adapting plans and documentation from other providers that are inapplicable (a small, single subject, provider using processes developed for a traditional, multi-faculty, university) – in part because of perceived expectations that newly established providers need to have the same range of processes and policies.

    So the self-assessment aspect will go – the plan is that providers should submit actual governance documents, a five year action plan, and other bits on the knowledge and experience of those involved.

    One surprising shift is that there will no longer be an explicit test of “public interest governance” (the Nolan principles and suchlike) in the registration process. OfS reckon that the strengths of the rest of these new requirements, plus the continued inclusion in ongoing condition E1, makes up for this.

    Ditto the absence of the (largely toothless) student protection plan – the line being that this should be visible to students via the documentation provided, which is a win for all those applicants who read governance documentation before they decide where to apply. See Jim’s piece for more detail.

    Documentation

    So what would you now need to submit:

    • The governing body’s terms of reference (or similar), which would cover purpose, membership, appointment procedures, responsibilities, decision-making procedures, meeting frequency and the arrangements for reviewing effectiveness
    • Establishing documents – like a Royal Charter or articles of association
    • A scheme of delegation (or anything else useful) about who makes decisions and how
    • Documentation pertaining to risk and audit – the operations of the committee responsible is given as one example
    • A policy on conflict of interest

    These are, to be clear, governance documents, not detailed operational arrangements – although of course such policies would need to be operationalised for ongoing conditions E1 and E2.

    In assessing these documents, OfS intends to look at the “appropriateness of arrangements”, bearing in mind a provider’s size, complexity, context, and business plan.

    Oh yeah, you need a five year business plan too. The regulator hasn’t been impressed with what has been seen so far.

    Some providers applying for registration have not been able to demonstrate that they have sufficient understanding of how the higher education sector operates. This can result in a provider making unrealistic assumptions in its planning, such as overestimating its ability to recruit students in a competitive market, which can pose risks to the ongoing viability of the provider and cause associated harm to students.

    Part of being sufficiently equipped to deliver higher education is preparing to meet the relevant regulatory requirements. We have encountered issues where newly registered providers were not sufficiently aware of the regulatory framework and so did not have robust plans in place to meet ongoing requirements

    And there’s a telling indication that problems multiply pretty quickly when the plans get hit with a dose of operational reality.

    Where a provider does not have robust plans in place, it may encounter financial challenges after registration. Providers have at times taken steps to address this without fully considering the risk of doing so, for example:

    a. Rapidly entering into new partnership arrangements because of the unexpected withdrawal of a current partner without having the governance and management processes needed to manage this change properly.

    b. Employing financially incentivised external recruitment agents to meet recruitment targets that are too ambitious.

    c. Taking out additional unplanned borrowing to fund unanticipated expenditure.

    All of these behaviours can result in negative consequences for students and taxpayers

    Being objective

    Who could possibly have foreseen, eh? Going forward OfS would like business plans to be comprehensive and clearly written – and demonstrate an understanding of the sector, of managing risks, and of the conditions of registration.

    It’s all standard stuff (objectives and targets and how to achieve them, risks and how to manage them, regulatory compliance) over a challengingly long five-year period. OfS’ assessment will not be based on the targets themselves, but whether the provider can deliver these in practice given their resources and prevailing sector conditions. As an overriding primary consideration the plans need to focus on the interests of students.

    There’s no expectation that there will be an assessment of the objectives in and of themselves (or whether they are a proper thing for the provider to pursue), and OfS would not endorse these objectives – it’s more a matter of understanding a provider’s chosen approach in looking at the plans it has to deliver. A neat distinction.

    People who need people

    So who will be delivering these plans? The new condition would set out key knowledge and expertise for the chair of the governing body, accountable officer, and where applicable, the person with overarching responsibility for financial management and an independent member of the governing body. There’s a sensible sounding list on pages 30-33, but the big shocker is that these would be assessed via an interview with OfS officers!

    Yes, you read that right: 30 to 60 minutes based on key questions allowing said knowledge and experience to be demonstrated. On one level it feels sensible to talk to the people involved as a way of establishing the credibility of plans, but the feeling that OfS is appointing (or approving the appointment of) your chief financial officer is a hard one to shake.

    In contrast the “fit and proper persons” test is pretty much as expected, with additional requirements to supply new information (if you are disqualified as a director or trustee, or declared bankrupt) during the course of the application process. This is a welcome admission that these processes can take a long time to work through.

    You’ve probably spotted that OfS and government are now very focused on fraud in the sector – and assessment of arrangements to prevent fraud will focus on an institution’s track record where it has already been delivering higher education as part of a franchise or partnership arrangement.

    Other requirements for registration applications

    Got all that? Well strap in, there’s more.

    There’s the new C5, the new E7, and OfS intends to beef up their financial information requirements from August 2025 too.

    Financial viability and sustainability is currently assessed via initial condition D – providers already submit full, audited, financial statements for up to three years alongside four years of forecasts and a commentary on these. OfS has noted that new registrants tend to defer their first year of recruitment (setting up a HE provider is hard!) and substantially under recruit when they do – with current financial and recruitment pressures this isn’t going to improve any time soon.

    The new requirement is an addition to the template, which allows a provider to model financial viability against different yet plausible scenarios: zero growth over four years and 40 per cent below forecast followed by three years of zero growth for those currently delivering HE – zero growth followed by 80 per cent below forecast for the next three years for those entirely new to the sector.

    These aren’t set in stone – OfS reserves the right to tweak them based on emerging sector issues. And we may also get an alternative for providers whether the business model is not predominantly balanced on higher education provision.

    The commentary to this new table would let the provider set out mitigations, or provide evidence that these scenarios are unrealistic. But even so, there is a risk here that condition D becomes the hard one to pass – OfS reckon this is fair enough given short– and medium– term challenges to the sector. Although one cannot help but think of the many existing registered providers that would not pass these tests.

    By OfS request

    There’s another welcome recognition that applying for registration takes ages in the requirement for a provider to submit updated finances, student numbers, and commentary in the late stages of application by OfS request. While this makes sense in that the regulator isn’t relying on year-old (and the rest…) numbers this is a hard sell for those prospective registrants now expecting to submit similar data twice – although it could be argued that this gets them used to regular submissions while registered.

    Likewise, if the financial year turns over during the registration process you’ll need to put an extra batch of audited financial statements in for that year.

    And, wonderfully, OfS wants an ownership and corporate structure diagram too – it’s been finding some structures “complex”, poor thing.

    If your provider is or has been under investigation by another regulator – or awarding organisation, professional body, funding body, statutory body, and so forth – you’d better believe that OfS wants to know about that up front too. Apparently it keeps finding out about such things midway through the assessment process – and it does tend to be relevant, even if it is not an automatic fail.

    The rules are for the 60 months proceeding application, any investigation that closed or opened during the application period is something OfS wants to know about: a brief description, the responsible body, the dates, and the findings and/or outcomes.

    And if you are looking forward to the exciting world of “reportable events”, something similar now applies during registration. If stuff happens (there’s a long and familiar list on page 42) then you’d best drop OfS a note within 28 days.

    Finally, from January 2026 you won’t be able to reapply within 18 months of an unsuccessful registration application. This “double jeopardy” rule is a new one, and it looks like it is aimed at ensuring that OfS capacity is not clogged with resubmissions of poor quality applications where identified weaknesses are not addressed. We learn that 40 per cent of applications don’t comply with the existing guidance.

    There is the possibility of individual exemptions from this rule, for example where there have been IIT problems or where information that was not available for reasons outside of the provider’s control is now available.

    How this will be done

    The changes to application requirements were done via the same “manner of application” loophole – section 3(5) of HERA – that was used to pause the registration process. It is, as we said at the time, a reach in terms of legislative interpretation but it is difficult to argue against many of the principles here.

    It is regrettable that the same group of providers that have been forced to delay or resubmit applications due to the pause will now have to do considerable extra work to get these into the new format.

    While the principle of assessing existing documents rather than new ones is a good one, the reality of this is not as neat as regulators sometimes think. For an expected influx of new registrations – the franchise thing, and whatever ends up happening with the lifelong learning entitlement is expected to flush out at least a few – it makes sense to have all this in order. But there are always winners and losers with these things, and the losers have lost several times in a row here.

    The only other disappointment is probably that these new approaches will apply only to new registrations – there’s clearly a lot of benefit to similar approaches (especially for C5 and the financial requirements) to be extended to existing registered providers, and it is likely that there is more to come on that front.

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  • Ventriloquising the student interest | Wonkhe

    Ventriloquising the student interest | Wonkhe

    Following the devastating review offered by the 2023 report of the Industry and Regulators Committee of the House of Lords, the Office for Students’ (OfS) proposed strategy makes a great play of being centred around “the student interest”.

    But while it recognises that students have diverse and changeable views about their interests, it is still significant that it characterises these as “the student interest” rather than “students’ interests”.

    The reason for doing this is that it makes it much more rhetorically powerful to claim you are doing something in relation to an interest that is definitive, rather than interests which are multivarious and shifting.

    And be clear, the OfS proposed strategy shows a huge appetite to intervene in higher education in the name of “the student interest”.

    Much talk, no sources

    In the draft, OfS boasts that it has done a great deal of work to renew its understanding of the student interest – polling students, holding focus groups, hosting engagement sessions and talking to their own student panel.

    But two things are particularly noticeable about this work. First, whilst a lot of other sources are referenced in their strategy consultation, this is one area where no evidence is provided.

    This means the OfS interpretation of the outcomes of this consultation cannot be interrogated in any way. Clearly OfS knows best how to interpret this interest and isn’t interested in collective conversations to explore its ambiguities and complexities.

    Second, none of this work involves open ended engagement with students and their representative organisations (who appear to have been excluded completely, or at least their involvement is not detailed). They are all forms of consultation in which OfS would have framed the terms and agenda of the discussions (non-decision-making power, as Steven Lukes would have it). It’s consultation – but within tightly defined limits of what can legitimately be said.

    This seems to explain the remarkable number of priorities in the strategy (freedom of speech, mental health, sexual harassment) that are said to be in the student interest but previously appeared in ministerial letters outlining the strategic priorities of the OfS.

    Get a job

    Perhaps most concerning is that the government/treasury logic that the only real reason for going to university is to get a well-paid job is now central to the student interest. Sometimes this is done more subtly by positioning it in the (never-)popular student language of “a return on investment”:

    …in return for their investment of time, money and hard work they [students] expect that education to continue to provide value into the longer-term, including in ways that they may not be able to anticipate while they study (p.12).

    At other times, we are left in no doubt that the primary function of higher education is to serve the economy:

    Our proposals…will support a higher education system equipped to cultivate the skills the country needs and increase employer confidence in the value of English higher education qualifications. High quality higher education will be accessible to more people, and students from all backgrounds will be better able to engage with and benefit from high quality higher education, supporting a more equal society which makes better use of untapped talent and latent potential. The supply of skilled graduates will support local and national economies alike, while the ‘public goods’ associated with high quality higher education will accrue to a wide range of individuals and communities. Public goods include economic growth, a more equal society and greater knowledge understanding (OfS 2024 p.30-31).

    So what we are left with is a proposed strategy that makes powerful claims to be grounded in the student interest – but which could have easily formed part of the last government’s response to the Augar review.

    Whose priorities?

    Through its consultation on its proposed strategy, OfS has presented the priorities of the previous government as if they are drawn straight from its engagement with students.

    We don’t yet know the higher education priorities of the current government, but given the proposed strategy was published under their watch it looks like we are moving in a depressingly familiar direction.

    It is worth reflecting on the profound injustice of this. Students are expected to pay back the cost of their higher education and now have the previous government’s priorities presented as their interest so that OfS can intervene in higher education.

    Yes, you have to pay – but the government and its friendly neighbourhood regulator are here to tell you why you want to pay! It seems that despite the excoriating criticism of the House of Lords Committee, OfS have not really learned how to engage with students or to reflect and reconcile their interests.

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  • Happy New Year | SRHE Blog

    Happy New Year | SRHE Blog

    by Rob Cuthbert

    SRHE News is glad to bring you the Augur Report, its prognostications for 2025, based on extensive research into the works of Nostradamus, Old Moore’s Almanac and Mystic Meg.

    January

    • Donald Trump resumes the US Presidency and announces that free speech in HE requires him to ban the use of the words Diversity, Equality and Inclusion in US HE. Elon Musk argues that this should  also be applied in the UK.
    • UUK launches another major campaign to point out that most universities really are in serious financial trouble.
    • UCEA points out the difficulty of affording any staff salary increases at all in the present climate.
    • Vice-chancellors point out that the financial difficulties facing their institutions would not be significantly alleviated if they took a 50% cut in salary, and competitive salaries are essential to enable Britain’s world class universities to recruit and retain the best leaders. Especially when it has become so difficult to recruit staff.
    • The OfS announces a concordat with Russian higher education to support a major increase in its use of AI, using Russian cyber experts. The first expansion of AI will be in the approval of new university titles: the new AI Department will be known as the Nomenklatura Department. The criteria remain unchanged: the OfS “will consult on a provider’s proposed new name and assess the extent to which the proposed name is confusing or misleading”.
    • The OfS is already the investigating authority, prosecutor, judge, jury and executioner for all HE infractions, and now seeks the power to exile to Siberia any academics complicit in breaching Condition of Registration B2. Government agrees in the interests of reducing net migration.

    February

    • After the disappointing application figures for 2025 entry, UCAS launches a major advertising campaign to point out that the increase in undergraduate fees won’t make any difference to most student debt repayments.
    • UUK launches a new campaign to point out that the increase in undergraduate fees won’t make any difference to the financial troubles in most universities.
    • Government announces that even after all those new teachers are appointed there might be a bit left over for HE from the proceeds of VAT on private school fees. Teacher educators point out that after yet another year of missed targets in teacher training there is no-one qualified to apply for the new jobs in schools.
    • OfS approves a name change from Anglia Ruskin University to the University of Cambridge(shire).

    March

    • The OfS approves a name change from Oxford Brookes University to University of Oxford(shire).
    • UUK relaunches its campaign: “Most universities really are in deep financial trouble, honest.”
    • Government says there might still be something left for HE from VAT on school fees, and Elon Musk might have a point.
    • The interim temporary Archbishop of Canterbury says she will renounce the power of the Archbishop to award degrees.

    April

    • The OfS approves a name change from University of the West of England to the Greater Bristol University.
    • The OfS announces a major increase in the use of AI, to extend to all interventions on quality/standards/ breach of conditions of registration. The OfS Nomenklatura Department has been renamed, partly because no-one remembers the Soviet Union any more, and also because it was too likely to cause confusion with the rest of the OfS, who are already party-appointed bureaucrats. The suggested new name, the Behan Bots – conscripted to work for low pay, completely in the dark – is rejected because nobody remembers the Second World War any more and in any case it was too likely to cause confusion with existing university staff. OfS CEO Susan Lapworth says the new Department will now be known as the Laptops.
    • The OfS announces a concordat with Chinese higher education which will start with a new student recruitment campaign in the North East: “Huawei the lads”.

    May

    • The OfS approves a name change from Coventry University to Warwick(shire) University.
    • Government says sorry – even though they couldn’t appoint any new teachers there was nothing left from VAT on school fees because they diverted it to fill the £22billion hole in the public finances. It issues guidance on the use of language in HE, known as the Musk Directive.
    • UUK’s Taskforce on Efficiency and Transformation in Higher Education announces that it is in advanced talks with Government about restructuring the HE sector in England. Luckily the Taskforce chair is a lawyer specialising in mergers and acquisitions.

    June

    • The OfS approves a name change from Birmingham City University to the Greater Birmingham University
    • GuildHE issues a reminder that it has no formal connection with the Church of England or any other faiths but remains committed to whatever you are allowed to call diversity, equity and inclusion since the Musk Directive.
    • Canterbury Christ Church University is renamed University of Kent Two. OfS says this is unlikely to cause confusion among international students, especially since Kent is so near to Paris.
    • Bishop Grosseteste University becomes the University of Lincoln Two But We Were Here First. Leeds Beckett, Northumbria, Sheffield Hallam, Greater Birmingham and Greater Bristol consider name changes.
    • UUK issues a media release saying “we did warn you” as 30% of universities merge or close. OfS says everything will be OK, because all universities are required to have plans for an orderly exit from the market. Wimbledon fortnight begins and UCAS says “you cannot be serious”.

    July

    • OfS approves a name change for Liverpool John Moores to Liverpools University.
    • The BBC is forced to suspend filming of the new series of University Challenge after 30% of universities appearing have merged, have new names or have announced their intention to close.

    August

    • UCAS announces that the 30% reduction in available university places has luckily been matched by an equivalent fall in the number of applicants.
    • Government announces its three priorities for HE – reduction, reduction, reduction – will apply particularly to the numbers of students from all disadvantaged groups.

    September

    • The OfS approves its own name change from the Office for Students to the Office with No Students on the Board (ONO).

    October

    • Government announces its new higher education policy, with the establishment of a new corporation to take over all the universities not in a position to complain, provisionally titled the Great British University. ONO says this is unlikely to cause confusion, but governments in Wales and Scotland say they are confused since all the universities in the GBU are in England. The Northern Ireland Assembly say they’re glad it wasn’t the Great UK University, or they would have been confused. The new HE policy includes a pledge/mission/milestone promising net zero admissions by 2030, or maybe 2035.
    • The last Bishop to leave the Church of England is asked to remember to switch off all the lights to comply with its Net Zero Bishops pledge.

    November

    • The Greater London Non-University College of Monkey Business publishes its annual Report and Accounts: income £925,000; expenditure £925,000, all annual salary for the principal. It  recruited 100 students but they all left at the end of the year without leaving forwarding addresses. Having no students at all on its Board it claims to be completely aligned with the regulator.

    December

    • ONO announces it has breached its own conditions of registration and has removed itself from the Register of Approved Regulators. Dusting down a forgotten part of the Higher Education and Research Act (2017) it issues an urgent appeal – Quick, Anyone? Anyone! – for a new designated quality body to replace itself, which becomes known as the QAA appeal.
    • A High Court judgment finds that publishers have mis-sold the copyright of academics to multinational AI corporations and orders financial compensation, known as Publishers Pay Instead (PPI). Publishers set aside £100billion.
    • Universities launch a counter claim, asserting their ownership of, or failing that a pretty strong  interest in, copyright of academics in their employ, and sue to recover the costs of journal subscriptions and transitional agreements. Publishers set aside a further £100billion.
    • Multinational AI corporation share prices, now quoted only in bitcoin, continue to rise.
    • The new Wallace and Gromit film, Academic Free-Don, is set in a university where the inmates are planning a mass escape. When they realise that their new zero-hours contracts allow them to leave at any time, they apply for exile to Siberia, where they expect better pay and conditions of employment.
    • The theme for the 2026 SRHE Conference is announced: “Where do we go from here?”

    SRHE News is a not-for-prophet enterprise. No octopuses were harmed in the making of this editorial.

    SRHE News Editor Rob Cuthbert is Emeritus Professor of Higher Education Management, University of the West of England and Joint Managing Partner, Practical Academics rob.cuthbert@btinternet.com. Twitter @RobCuthbert

    Author: SRHE News Blog

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

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