Category: OfS

  • OfS consults on a condition of registration for subcontracted provision

    OfS consults on a condition of registration for subcontracted provision

    Cast your mind back to the end of January this year.

    The Department for Education proposed that all providers delivering a course via a franchise model to more than 300 students should register with the Office for Students.

    The rationale was straightforward. An increasingly large number of students were studying at, effectively, unregulated providers – with the connection to the lead provider achieved via an office in the registry and subject to varying (shall we say) levels of oversight in terms of quality, standards, and – frankly – probity (as we and others have extensively reported).

    That consultation concluded in April, and we have heard very little about these plans since. So when, just before summer recess, the Office for Students announced its own consultation on regulating franchise provision one could be forgiven for assuming that the two approaches would somehow link together.

    Information requirement

    What OfS has suggested addresses the other end of the issue – while DfE wants to register delivery providers, OfS wants to put a new condition of registration (E8) onto institutions with more than 100 students taught via subcontractual arrangements. The condition is not an arduous one – it basically suggests that a lead provider should have adequate governance and oversight of risks concerning subcontractual provision, and be prepared to share key information about these arrangements (a so-called “Comprehensive source of information”, or CSol). In return OfS can demand more information (“monitoring”) and make “directions” for the lead provider to start or stop doing stuff. All this would, consultation pending, come into force in January 2026.

    Now, it would be fair to wonder whether this kind of effective governance in the public interest is already covered in conditions E1 and E2, and the information end of things feels a little bit F3. It is neither unreasonable nor arduous to expect providers to have adequate governance or to publish information – though it is questionable (given the applicability of these existing registration conditions) that this will have any meaningful impact on provider activity.

    In other words, if you don’t have effective arrangements in place regarding subcontractual provision, you are already in breach of condition E2 and will face consequences. Just ask Leeds Trinity University, now £115,000 poorer as a result – and, as the consultation suggests, just the tip of a very large iceberg of provision where OfS has been regulating quietly behind the scenes.

    Rationale

    So why the need for E8? If providers are already required to be transparent around governance arrangements and oversight, why do we need another condition to do the same thing for subcontractual relationships? And if there are additional informational needs, or a need to limit what a particular provider can do, why not do a specific condition of registration relating to subcontractual activity? Or why not wait a few weeks to see whether DfE brings the people doing the actual course delivery into its regulatory ambit? OfS says:

    We consider that implementing a general ongoing condition of registration sends a clearer signal to the sector about our expectations for managing subcontractual partnerships now and in the future. Including our requirements in the regulatory framework in this way provides greater transparency for all providers and for other stakeholders.

    We are, once again, in the realms of vibes-based regulation: the purpose of this requirement is to make it look like OfS is finally doing something to address the problems with subcontractual provision that have been visible to the media since at least 2014.

    In the weeds

    You’ll look in vain within the consultation for any mention of OfS’ own long-promised publication of definitive data on the size and shape of franchised provision – now possibly coming in the last quarter of 2025 (following a very small pilot release last year). Where this gets interesting is the methodology for calculating where or not you are over the threshold (a total of 100 – headcount – students studying via subcontractual arrangements at relevant providers) as calculated by the OfS’ own student number methodology and that would be returned via HESES. While OfS has not yet been confident enough in this data to release it in full, it is somehow content to rely on it for regulation.

    The 100 isn’t an exact cut off: if you generally recruit more than 100 subcontractual students but happen not to one year, you are still in scope – likewise if you make changes to your plans so that you will recruit more than 100 (or are “materially likely” to do so) you are in scope already. Or if OfS decides you are in scope, you are in scope.

    To be clear, this isn’t all such arrangements. The use of the term “relevant” excludes by definition any provision in a state-funded school, FEC, sixth form, designated institution (FHEA 1992 section 28), provider of NHS services, local authority, or police and crimes commissioner. Also exempt in your calculation are students subcontracted to any provider with degree awarding powers authorised by or under an Act of Parliament or a Royal Charter (so all taught or research DAPs, basically).

    Back end

    For clarity, the traditional way in which subcontractual arrangements are regulated is via the registering provider – and these OfS proposals are an attempt to bring some of what should be going on already out a bit further into the open. The existing transparency conditions of registration (F1, which operationalises section 9 of HERA) don’t cover governing (or academic quality and standards) documentation. Indeed, OfS has been historically light on governance transparency – which is why it isn’t always easy to figure out what is going on inside a given provider.

    It’s not so long ago that OfS was lambasting providers for “gold plating” internal quality assurance processes in a long-sustained campaign to flush out those in the sector who cleave to the much older doctrines of the UK Quality Code. You know, nonsense like:

    Providers and their partners agree proportionate arrangements for effective governance to secure the academic standards and enhance the quality of programmes and modules that are delivered in partnership with others. Organisations involved in partnership arrangements agree and communicate the mutual and specific responsibilities in relation to delivering, monitoring, evaluating, assuring and enhancing the learning experience.

    A big chunk of the documentation that OfS is asking for here (in the comprehensive source of information) is basically documentary proof that a provider is compliant with principle 8 of the UK Quality code (including the QAA’s recent guidance), not that you will be thanked by the regulator for pointing this out. Perhaps some of that “gold-plating” was important after all.

    But there is one place where OfS goes further: it asks for a “strategic” rationale for entering into each subcontractual arrangement. We don’t get any guidance on what a suitable rationale would be, just that it must fit with a provider’s vision and strategic intent. Case law here is going to be fascinating.

    Front end

    From a student protection perspective OfS would gain powers to compel those franchising out provision to make changes to the terms of these agreements or the governance or process involved in running them – in extremis the regulator could require that an arrangement ends immediately, students have their fees refunded, and the registering provider steps in to teach out the remaining student. It can also tell you to stop recruiting students onto subcontracted out courses, or limit the number of students that can be recruited.

    This is a large improvement on current arrangements, which have largely been predicated on a provider having an up-to-date student protection plan and being able to deliver on it. The fee refund requirement, in particular, should make anyone that is knowingly partnering with someone offering students a sub-par experience sit up and pay attention.

    It’s not perfect, however: the January DfE proposal on franchising and partnerships was interesting precisely because it broke with established practice on subcontractual arrangements – those delivering teaching would be regulated, whether or not they were awarding the degrees in question. If OfS could intervene directly with a delivery provider, surely that would be quicker than going via the registration provider – the measures in this consultation would then be usable for purely punitive reasons (and, as above, duplicate other conditions of registration)

    OfS has followed the DfE lead in excluding most publicly funded provision from these regulations – it made sense to exclude schools, colleges, and the NHS from active regulation as they are already regulated elsewhere. If the purpose of these OfS proposals is to ensure that the universities that are subcontracting out do so with a level of strategic intent, it seems unlikely that someone is incapable of making a strategically poor or under-resourced commitment to work with an FEC or sixth form: surely these arrangements also deserve a level of scrutiny?

    And – frankly – why shouldn’t providers involved in subcontracting be required to publish information about it (rather than hold it until OfS asks for it)? The current concerns with this style of provision have developed precisely because agreements and fee-splitting agreements can remain obscure – a bit of public accountability for these kinds of decisions would do a lot to separate out the good and valuable subcontractual arrangements from the more questionable partnerships.

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  • Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Just 44 days before duties on it go live, but some 389 days since it closed a consultation on it, the Office for Students (OfS) has finally published Regulatory advice 24 – its guidance to universities and colleges in England on freedom of speech that flows from the Higher Education (Freedom of Speech) Act (HEFoSA).

    The timings matter partly because it’s mid-June, there won’t be many (if any) big committee meetings left (let alone processes designed to engage with people on policy development ahead of approval), and it was OfS itself that fined the University of Sussex partly over the proper approval of some of its policies.

    And it’s not as if there are only minor drafting changes. An 11,773 word draft has become a 23,526 word final, and the list of 30 illustrative examples has grown to 52 – despite the fact that this new version omits all the duties on students unions (which the government announced last year it intends to repeal), and is now also silent on the free speech complaints scheme.

    All the detailed and prescriptive expectations in the original draft over how that should be promoted have gone – largely because we’re all waiting for Parliament to debate (sensible) changes that will cause students to have to use the Office of the Independent Adjudicator (OIA), rather than OfS, to resolve any complaints in this area.

    Alongside, there’s surely a record-breaking 788 paragraph analysis of responses and decisions off the back of the eleven question consultation, some alarming-sounding polling that will likely be making the news, and some short guides for students and staff.

    A lot of the new version of the guidance adds more detail into the examples – many are now more realistic, plenty are better at signalling the differences between “good ideas” and minimum expectations, and a whole host of them are now more accurately qualified with reference to key legal principles or tests, many of which have been emerging in case law since OfS started its consultation.

    That said, some are still so preposterous as to be useless. If there really is a college somewhere that requires students to seek written permission a month in advance to hand out leaflets or post flyers, where those flyers must be posted on a single designated noticeboard which is both small and on a campus where flyers may not be posted anywhere else, I’ll eat my hat – or maybe my pudding at the formal dinner at whichever Oxbridge college authors were reminiscing about when Example 38 was drafted.

    As there are 52 of them, this initial article doesn’t dive into all of the vignettes comprehensively – although doubtless a number of them (not least because of the judicious use of qualifiers like “depending on the facts of the case”) will continue to cause readers to cry “yeah but what about…” – which is presumably why OfS initially attempted to let lessons unfurl from the casework rather than publish guidance. And we may well end up looking at some of them in more detail in the coming days and weeks.

    What I have tried to do here is look at the major ways in which the guidance has developed, how it’s handling some of the bigger questions that both universities and their SUs were raising in responses during the process, and what this all tells us about OfS’ intended approach to regulation in this area as of August.

    As a reminder, we’re talking here about the duty to “secure” freedom of speech on campus (A1 in HEFoSA), and the expectations that OfS has around the requirements for a souped up Code of Practice (A2) for each provider. There’s no guidance (yet) over the “promote” duty (A3), and to the extent to which the previous version strayed into those areas, they’ve largely been removed.

    The sandbags are coming

    If we were to identify one theme that has dominated discussion and debate over the Free Speech Bill ever since then universities minister Michelle Donelan stumbled, live on Radio 4, into an apparent contradiction, it would be where free speech (to be protected and promoted) crosses the line into harassment – which of course, under a separate heavy new duty as of August 1st, is something to be actively prevented and prosecuted by universities. Middle grounds are no longer available.

    The good news is that the section on reconciling free speech duties with equality law, anti-harassment provisions, and other legal requirements is better than anything else OfS has published to date on the interactions and fine lines. So detailed, for example, are many of the sections that deal with harassment on campus that at times, it’s a lot more helpful than the material in the actual guidance on registration condition E5 (Harassment and Sexual Misconduct).

    People often, for example, find others’ conduct to be unpleasant or disagreeable – Para 47 reminds us that the concept of harassment in the Protection from Harassment Act 1997 is linked to a course of conduct which amounts to it, that a course of conduct has comprise two or more occasions, that the conduct must be “oppressive and unacceptable” rather than just “unattractive or unreasonable”, and must be of sufficient seriousness to also amount to a criminal offence.

    Similarly, the judgement of harassment isn’t purely subjective – it applies an objective test based on what a reasonable person would think, which helps provide a consistent standard rather than relying solely on individual perceptions.

    Hence in Example 1, a student publishes repeated comments on social media attacking another student based on lawful views, including “tagging” them in posts and encouraging others to “pile on”. The student’s speech is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment – and so carrying out an investigation into the student based on a policy that bans harassment would not breach the “secure” duty.

    Much of that flows from a newly reworked version of what counts as free speech within the law that translates some of the case law and principles set by the ECHR and the UK High Court in cases like Higgs v Farmor’s School. As such, while there’s still lines in there like “The Act protects free speech within the law – it does not protect unlawful speech”, there’s now much more helpful material on the different ways in which free speech might be curtailed or interfered with given other duties.

    To get there it outlines a three step test (with some wild flowchart graphics):

    • Step 1: Is the speech “within the law”? If yes, go to step 2. If no, the duty to “secure” speech does not apply.
    • Step 2: Are there any “reasonably practicable steps” to secure the speech? If yes, take those steps. Do not restrict the speech. If no, go to step 3.
    • Step 3: Are any restrictions “prescribed by law” and proportionate under the European Convention on Human Rights?

    There’s no doubt that it’s a more nuanced and balanced reflection of the legal position than we saw in the draft – albeit that it switches between “what to do in practice” and “what to say to students and staff in theory” in ways that are sometimes unhelpful.

    The problem is that the closer it gets to necessary complexity, the further away it gets from something that’s easy to understand by the very staff and students whose day to day conduct and confidence (what we might call the “culture” on campus) is supposed to be being influenced by the new duties.

    More importantly, as the examples unfurl, it’s both possible to spot numerous ways in which “it’s a balance” turns into Kafka’s cake and eat it, and to see how the “reasonably practicable steps” duty turns into something genuinely hard to understand in practice.

    Someone should do something

    One thing that’s not gone is a tendency in the examples to signal to the outside world that the new rules will tackle the things they’ve read about in the Times and the Telegraph – until you realise that they won’t.

    That Example 1 discussed above (highlighted in the accompanying press release) is a classic of the genre. On the surface it looks like OfS is tackling “mobbing”. But in reality, the whole point about pile-ons is that they’re almost never about one big evil ringleader engaging in conduct that is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment.

    It’s more often than not a hundred micro-oppressions having the cumulative effect of making the target feel terrible. Even if you argue that aspects of social media culture are within the influence (if not control) of a provider, in other parts of the guidance OfS seems to be saying that because each micro-act isn’t harassment, you shouldn’t be trying to meddle in the culture of the campus.

    That problem becomes amplified in the section on microaggressions. In 2019, the Equality and Human Rights Commission (EHRC) found microaggressive acts to be a key component of a culture of racism on campus – and both argued that they could have an impact on equality of opportunity and good relations between different groups, and that universities must not ignore microaggressions that do not meet the definition of harassment in the Equality Act 2010 because of the cumulative impacts of repetition.

    But as soon as universities started to tackle microaggressions by, for example, encouraging their reporting, various anti-EDI culture warriors started to raise concerns. Discussing a scheme launched by Sheffield SU to have their halls reps understand the concept, Spiked’s Joanna Williams argued:

    They will need an odd combination of extreme sensitivity to offence – alongside a high degree of insensitivity to interrupting conversations – to point out exactly where the speakers went wrong. Presumably, candidates will also have to sit some kind of test to prove their own thought purity on all matters concerned with race and ethnicity.

    The Command Paper that led to HEFoSA was also worried:

    Schemes have been established in which students are paid to report others for perceived offences.

    And as Report+Support tools started to open up avenues for students to raise issues such that universities could spot patterns, academics – among them a fairly obscure Cambridge philosopher called Arif Ahmed – started to complain:

    The encouragement to report ‘inappropriate’ or ‘offensive’ behaviour amounts to a snitches’s charter. Any risk-averse white person will simply not engage with anyone from an ethnic minority, in case an innocent or well-meaning remark is overheard, misunderstood and reported. Whatever Downing College may think, being offensive is not an offence.

    Several years on, Arif Ahmed is OfS’ Director for Freedom of Speech and Academic Freedom, asserting that his appointment and approach isn’t “political”, and launching actual regulation (Example 39) that says this:

    University A promotes an anonymous reporting process. Students are encouraged to use a portal to submit anonymous reports to senior staff of “microaggressions”, which is not further defined. The portal includes free text boxes in which reporters may name or otherwise identify the individuals being accused. University A says that it may take action against named (or identifiable) individuals on the basis of any anonymous report that it receives.

    …Depending on the circumstances, the existence of the reporting mechanism and portal may discourage open and lawful discussion of controversial topics, including political topics and matters of public interest.

    …Reasonably practicable steps that A could now take may include remove the free text boxes from the anonymous reporting portal to be replaced with radio buttons that do not permit submission of any identifying data.

    There is a legitimate, if contested, political view that structural racism is fictional, harmful or both – and that what flows from it is division via concepts like microaggressions. There’s another view that to tackle racism you need to interrogate and tackle not just skinheads hurling abuse and painting graffiti, but the insidious yet often unintended impact of stuff like this (EHRC again):

    A recurring theme in our evidence was students and staff being dismissed as “oversensitive” and their experiences of microaggressions viewed as isolated incidents rather than a cumulative and alienating pattern of repeated slights and insults.

    Many staff and students reported that racial harassment doesn’t only happen overtly. All too often, offensive comments were justified by perpetrators as “jokes” or “banter”. The damaging effect of repeated microaggressions is often made worse by a lack of empathy and understanding when individuals decide to speak up about their treatment.

    In that “debate”, OfS has picked the side that we might have expected Arif Ahmed to pick. Whether he’s legally justified in doing so is one question – but let’s not pretend that the agenda is somehow apolitical.

    And for my next trick

    All of this is possible because of a central conceit in the guidance that relates back to a long-running theme in the rhetoric surrounding culture on campus – what we might call a “maximalist” approach to describing free speech, and a “minimalist “ (specific, legal thresholds) approach to harm and harassment.

    Anything goes unless it specifically breaks this specific law, and if you pretend otherwise you might end up “chilling” free speech.

    You might. But while insisting on an objective test to determine whether harassment has happened is a central feature, no such test of objectivity is then applied to whether a chilling effect has occurred – it becomes, in effect, about “potential” and feelings. Hence in its Sussex investigation, OfS said:

    …a chilling effect arose as a result of the Trans and Non-Binary Equality Policy Statement and the resulting breach of condition E1. By “chilling effect”, the OfS means the potential for staff and students to self-censor and not speak about or express certain lawful views. Staff and students may have self-censored as a result of the policy because they were concerned about being in breach of the policy and potentially facing disciplinary action for expressing lawful views.

    So having established that “harassment” has to amount to something objectively criminal, while “chilling” is in the eye of the Director, OfS is able to get away with railing against another newspaper favourite – by all but outlawing requiring academic staff to issue trigger warnings. Example 50:

    Depending on the facts, issuing a “content note” (informing attendees about sensitive material) in advance of this event may not be a reasonably practicable step for A to take. A standing requirement to use content notes may encourage more intrusive investigation of the content of seminars, readings or speaker events. An expectation of content notes may also discourage academics from exposing students to new controversial material (so as not to risk wrongly including no, or the wrong type of, content note).

    You could of course just as easily argue that failing to issue “content notes” could have a chilling effect on some students’ active participation. Alternatively, you could double down and chuck in a minimalist little qualifier for cover:

    However, there may be occasions when the use of specific content notes may be helpful to enable students to access material, if there is evidence that they are in fact helpful.

    The point isn’t to debate whether they work or not – the point is that OfS suddenly gets to pick and choose what it thinks could chill, while demanding that rules reflect specificity and extremity over individual conduct for harassment. It’s culture war politics shoehorned into regulation, with the law lingering around in the background.

    Is the process the punishment?

    You might remember a major news story in 2021 when a student at Abertay was investigated after other students complained that she made “hateful, discriminatory, sexist, racist and transphobic” remarks during an online seminar on gender politics.

    Following an investigation, it was determined that Lisa Keogh had a case to answer in relation to “making inappropriate comments” which “could be construed as discriminatory” – but after a panel reviewed recordings made available from the seminar, it found no evidence of discrimination:

    As a result, the board found there was insufficient evidence to support the allegations made against you on your behaviour in class and, therefore, decided to not uphold the charge of misconduct.

    Keogh’s argument was that she should never have been subject to formal processes in the first place – and so sued.

    Her case was basically that the university acted in breach of the Equality Act 2010 by pursuing her for “expressing her gender critical beliefs” and caused “stress at the most crucial part of my university career” – but Dundee Sheriff Court dismissed her case, with Sheriff Gregor Murray saying that university was entitled to take steps to investigate complaints:

    The number, nature and timing of the allegations, and the involvement of at least three final year students who were about to sit examinations, all placed the university in exactly the type of “tricky territory” that entitled it to investigate immediately.

    The defender was entitled to take steps to investigate complaints. It could not be guilty of discrimination simply because it did so. Following investigation in this case, the complaint against the pursuer was not upheld.

    Cases like that then get mangled into examples like Example 40 in the guidance. In the vignette, a professor expresses views that upset some students – they bring a complaint, there is a lengthy investigation process, and at the end of the process the university finds that there is no case to answer.

    This should have been clear to investigators at the outset, but the university was concerned that closing the investigation quickly would further offend the students who complained. The prospect of a lengthy investigation with an uncertain outcome may deter students and staff from putting forward unpopular views on controversial topics.

    Again, you can just as easily argue that rapidly dismissing students’ genuinely held concerns would have a chilling effect on their confidence to complain, and that students making formal complaints of this sort is so rare that a university would be wise to carefully investigate whether there’s an underlying fire accompanying the smoke.

    But as above, OfS seems to be saying “if students weren’t describing specific behaviours that would meet the harassment test, don’t even investigate” – applying a specific and objective test to harassment while being speculative and partial over its chilling test.

    A useful tool, but not that useful

    The original draft was fairly silent on antisemitism – an obvious issue given the high-profile nature of the coverage and political commentary on it, not least in the context of protests surrounding the war in Gaza.

    Notwithstanding the specific stuff on “time, place and manner” (see below and here) and what OfS might be counting as an “essential function” of a university (again, see below), what I would say is that if there’s a debate about whether action A, protest B or leaflet C amounts to antisemitism, it’s pretty obvious that those advocating the adoption of the IHRA definition are seeking to have it used when making a judgement.

    Some will argue (like Arif Ahmed once did) that universities should not adopt the definition:

    This “definition” is nothing of the kind; adopting it obstructs perfectly legitimate defence of Palestinian rights. As such it chills free speech on a matter of the first importance. I hope the Secretary of State reconsiders the need for it; but these new free speech duties ought to rule it out in any case.

    We’ve covered his mysterious conversion before – and wondered how that might manifest in any final guidance. It doesn’t, at all – but what we do get in the consultation commentary is this astonishing paragraph:

    We do not comment in this guidance on the IHRA definition of antisemitism or on any other proposed non-legally binding definition that a provider or constituent institution may wish to adopt. Nonetheless, we have adopted the IHRA definition because we believe that it is a useful tool for understanding how antisemitism manifests itself in the 21st century. The IHRA definition does not affect the legal definition of racial discrimination, so does not change our approach to implementing our regulatory duties, including our regulatory expectations of registered providers. A provider that adopts any definition (of anything) must do so in a way that has particular regard to, and places significant weight on, the importance of freedom of speech within the law, academic freedom and tolerance for controversial views in an educational context or environment.

    Some will argue that adoption – either by OfS or providers – has precisely the kind of chilling effects that are railed against at length throughout the guidance. Others will argue that adoption as a kind of interesting window dressing without using it to make judgements about things is pointless, raises expectations that can’t later be met, and allows antisemitism to go unchecked.

    I’d argue that this is another classic case of Kafka’s cake and eat it – which dumps a deep set of contradictions on universities and requires attention and leadership from regulators and politicians. We are still not there.

    Practicably reasonable

    As well as that central thread, there are various other issues in the guidance worthy of initial note.

    A major concern from mission groups was the way in which the new duty might play out over transnational branch campuses – especially those with rather more oppressive legal regimes over expression than here.

    We might have expected OfS to use some sort of “what’s practicable relates to the law in the country you’re delivering in” qualifier, but it has somehow managed to square the circle by simply stating, with no further qualification (P13) that:

    HERA does not require providers or constituent institutions to take steps to secure freedom of speech in respect of their activities outside England.

    It’s an… interesting reading, which is maybe related to the usual territorial extent qualifiers in legislation – the consultation commentary is similarly (and uncharacteristically) silent – but what it does appear to do is contradict the usual prescription that it’s about where the main base of the provider is, not where it’s provision is, that sets the duties.

    Even if some legal workaround has been found, it does start to call into question how or why OfS can regulate the quality of your provision in Dubai while not worrying about freedom of speech.

    Another section with a mysteriously short sentence is one on the original Donelan conundrum:

    The OfS will not protect Holocaust denial (by visiting speakers or anyone else).

    That’s a carefully worded sentence which seems to be more about OfS making choices about its time than an explanatory legal position. Unlike in many other countries, holocaust denial is not in and of itself illegal in the UK – although in the weigh up, Article 17 of the ECHR removes protection from speech that is contrary to fundamental convention values, and cases in the UK have tended to be prosecuted under other legislation such as section 127 of the Communications Act 2003 when the content is deemed “grossly offensive”.

    Quite why OfS has not chosen to explain that is unclear – unless it’s worried about revealing that all sorts of other types of grossly offensive stuff might fall under the balancing provision. And more to the point, as I’ve often said on the site, most holocaust deniers don’t announce that the title of their talk in Room 4b On Tuesday evening will be “the holocaust is a fiction” – which opens up the question of whether or not it’s OK to outlaw holocaust deniers who may or may not engage in actual holocaust denial when they turn up.

    The sole example in the guidance on the weigh-ups over external speakers and extremism is one where the proposed speaker is a self-professed member of a proscribed group. It’s easy to say “well it’s fine to ban them” – what we don’t have here is anything meaningfully helpful on the real cases being handled every year.

    And some of the media’s hardy perennials – universities doing things like signing up to charters with contested “values” or engaging in contested work like decolonisation – are also either carefully contorted or preposterous.

    Hence Example 51 describes a university that [overtly] requires that all teaching materials on British history will represent Britain in a positive light – one of the many not as clever as the authors think they are inversions of the allegations often thrown at woke, UK history hating academics.

    Meanwhile Example 52 nudges and winks at the Stonewall Charter by describing a department of a university that applies for accreditation to a charter body with links to the fossil fuel industry, where the accreditation process requires it to sign up to a set of principles that include:

    Fossil fuel exploration is the best way to meet our future energy needs.

    The text underneath is fascinating. Once you’ve got the “depending on the circumstances” qualifier out of the way, we learn that “institutional endorsement of this principle may discourage expression of legally expressible views”. That’s your “chilling” allegation again.

    But rather than warning against signing it, we merely get:

    …not implementing the provisions of any accreditation that risks undermining free speech and academic freedom is likely to be a reasonably practicable step that university B should now take.

    Replace that with the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, and you can see why the fudge above will satisfy no-one.

    I’ve read the para in the guidance several times now, and each time I read it I resolve different things. Either the university can take a position on contested ideas as long as these aren’t imposed on staff, or it can’t because taking the position on contested ideas would chill staff. Flip a coin.

    It’s that sort of thing that makes the otherwise helpful section that clarifies that you can have a code of conduct for staff and students so silly. Codes of conduct are fine as long as any restrictions on speech reference a legal rule or regime which authorises the interference, that the student, member, member of staff or visiting speaker who is affected by the interference has adequate access to the rule, and if the rule is:

    …formulated with sufficient precision to enable the student, member of staff or

    visiting speaker to foresee the circumstances in which the law would or might be applied, and the likely consequences that might follow.

    I’d tentatively suggest that while that makes sense, OfS’ own guidance represents a set of rules where forseeing how it might respond to a scenario, and the likely consequences that might follow, are clear as mud.

    To clear up protest and disruption rights, OfS stresses viewpoint neutrality, uses its “time, place and manner” confection we first saw last year, and also has a new oft-repeated “essential functions” of higher education qualifier of:

    …learning, teaching, research and the administrative functions and the provider’s or constituent institution’s resources necessary for the above.

    I can’t really call whether OfS thinks the sports hall counts, or whether it thinks the encampment is OK there, but not in a seminar room. Either way, it’s another of those vague definitions that feels open to abuse and interpretation by all sides of a dispute and by OfS itself.

    Another allegation thrown at universities is often about EDI training – Example 53 sets up the idea that an online EDI induction asks if white people are complicit in the structural racism pervading British society, where the only answer marked correct is “True” – a candidate who ticks “False” is required to re-take the test until they have explicitly assented to “True”.

    Maybe I’m being naive, but if that’s grounded in a real example I’d be more worried about that provider’s wider approaches to teaching and assessment than its approach to free speech.

    This university is a vile hell-hole

    A few other fun bits. Fans of reputation management will be disappointed to learn at Example 22 that a social media policy requiring staff to not to post material that is “unnecessarily critical”, coupled with a strong but lawful pop at the provider’s employment practices in a public post on social media, would represent a “protect” policy breach and a “protect” practice breach if the staff member ends up with a warning.

    Meanwhile, notwithstanding the silence over whether full-time SU officers are members or students of a provider, Example 23 has a student representative posting unfavourable commentary on university management on the SU’s website, along with some student testimonials describing students’ experiences of accommodation:

    University Z requires the student to remove this post on the grounds that if the post is reported more widely in the media, this would threaten University Z’s recruitment plans.

    That that would be a breach may feel like a problem for the small number of universities whose senior managers directly threatened SU officers over TEF student submission drafts.

    But more broadly, like so many other examples in the guidance, neither the staff nor the student example get at broader culture issues.

    You might argue that “reasonably practicable steps” in both cases might involve specific commitments to enable dissent, or more explicit encouragement of public discussion over controversial issues.

    You could certainly argue that much of the committee discussion marked “confidential” should be nothing of the sort, and that non-disclosure agreements imposed on settled-with complainants outside of the specific ban on those in sexual misconduct cases should be outlawed.

    You could also argue that in both cases, fears over future funding – your salary for the staff member, your block grant for the SU officer – are classic chillers that need specific steps to be taken. Alas, none of that sort of “why” stuff appears.

    There’s also still a whole bunch of headscratchers. What happens when three different providers have three different sets of policies and codes and all franchise their provision to a fourth provider? Should providers be inspecting the reputation rules in the employment contracts of their degree apprentices or other credit-based work based learning? Now the requirement to tell all new students about all this has been softened, isn’t there still a need to include a lot of FoS material in the still compulsory training to be offered as per E5? And so on.

    In the complaints scheme consultation, there was some controversy over the definition of visiting speakers – including when an invitation manifested as an actual invitation and who was capable of extending one. On this, OfS has actually decided to expand its definition – but neatly sidesteps the Amber Rudd dilemma, namely that while it’s easy to expect people in power to not cancel things because some object, it’s a lot harder to make a volunteer student society run an event that it changes its mind about, regardless of the reason.

    And when the guidance says that OfS would “generally” expect providers to reject public campaigns to punish a student or member of staff for lawful expression of an idea or viewpoint that does not violate any lawful internal regulations, we are still stuck in a situation where some basic principles of democracy for anyone elected on campus – staff, but more often than not, students – come into direct conflict with that expectation even if they are “organised petitions or open letters, an accumulation of spontaneous or organised social media posts, or long-running, focused media campaigns”.

    Changing the culture

    There may well be plenty more to spot in here – legal eagles will certainly be pouring over the document, expectations on all sides may need to be reset, and all in a context of very tight timescales – not least because much of the material implies a need for a much wider review of related policies than just “write a compliant Code”.

    Everyone should also think carefully about the YouGov polling. There are some important caveats to be attached the results and some of the splits based on wording, assumptions and whether it’s even reasonable to expect someone teaching something highly technical to be wading into the sex and gender debate. And whether you’re teaching, researching or otherwise supporting, it must be the case that not all subject areas include as much scope for controversy and “debate” than others.

    But even if you quibble over the N equalling 184, when 24 per cent of those who do not feel free in their teaching cite fear of physical attack, there is a problem that needs urgent interrogation and resolution.

    [Full screen]

    (Thanks as ever to DK for the visualisation of the YouGov polling – sample size 1234 adults and weighted for teaching staff in England, by age, gender, region, and contract type)

    We also still have the debate over the partial repeal of the Act to come too, some additional complexity over complaints to resolve, and as I note above, huge questions like “so can we adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism or not” remain unanswered – as well as a set of inevitable conflicts to come over the practical application of the Supreme Court ruling on the meaning of “woman” in EA2010.

    I should also say that I’ve not had time to properly interrogate the research aspects in the guidance – but we’ll get to that with my colleague James Coe in the coming days.

    What I’m mainly struck by – other than the ways in which a particular set of (contested) views on campus culture have been represented as apolitical – is the way in which, ultimately, much of the material comes down to the regulatory realities of expecting authority to behave.

    In some senses, that’s not unreasonable – governors and leaders hold considerable influence and power over students and staff, and what they ban, or punish, or encourage or celebrate can have important impacts that can be positive for some, and negative for others.

    But to the extent to which there really is a problem with free speech (and academic freedom) on campus, much of it feels much wider and organic than the hermetically sealed campus community assumptions at play in documents of this sort.

    I won’t repeat so many of the things I’ve said on the site over the past few years about confidence being key to a lot of this – suffice to say that the freedom ideal at play in here feels like something that is easier to experience when steps have been taken to improve people’s security, given them time and space to interact meaningfully with each other, and act specifically to boost their bravery.

    Not only should some of the solutions be about resolving conflicts and integrating the concerns into a more stable definition of what it is to be a member of staff or a student, of all the agendas in higher education, it strikes me that this area remains one where solutions and sticks and games of blame abound, but causal analysis feels hopelessly weak.

    In the absence of alternative guidance on the “promote” duty, if I was high up in a university, I’d be resolving to interrogate more carefully and listen more closely before I pretended that my shiny new Code of Practice will do anything other than tick the boxes while making matters worse.

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  • The Harvard experience: could it happen here?

    The Harvard experience: could it happen here?

    by GR Evans

    On 1 May 2025 The Guardian headline read: ‘Trump administration exploits landmark civil rights act to fight universities’ diversity initiatives‘. What prevents a British King or Prime Minister from attempting to impose sanctions on universities?

    US higher education is exposed both to presidential and to state interference. Government powers to intervene in US HE reside in presidential control of federal funding, which may come with conditions. Trump cannot simply shut down the Department of Education by executive order but it seems he can direct that the Department’s grant- and loan-giving functions are taken on by another government department.

    As early as 2023 Donald Trump had said ‘We are going to choke off the money to schools that aid the Marxist assault on our American heritage and on Western civilization itself’. In response to campus protest he removed $400m of Columbia’s federal funding in March 2025 on the grounds that the University had failed to address the alleged ‘persistent harassment of Jewish students’. In April 2025 he gave orders to Ivy League universities, threatening withdrawal of funding if their teaching and research did not comply with Government policy as the President defined it and that their appointments should have regard to those expectations.

    On 8 April the Washington Examiner reported a planned attempt to counter such action by legislation, that is to prevent Trump’s directives taking effect by amending the Higher Education Act of 1965 ‘to prohibit political litmus tests in accreditation of institutions of higher education and for other purposes.  On 10 April the Chronicle of Higher Education foresaw an Executive Order.

    A letter to Harvard dated 11 April signed on behalf of the Department of Education and other federal agencies asserted that the United States had ‘invested in Harvard University’s operations’ because of ‘the value to the country’ of its work, but warned that ‘an investment is not an entitlement.’ This letter, if accepted, was to constitute ‘an agreement in principle’. Governance was to be ‘exclusively’ in the hands of those ‘tenured professors’ and ‘senior leadership’ who were ‘committed to the ‘changes indicated in this letter’. Its ‘hiring and related data’ and its student ‘admissions data’ were to be ‘shared with the federal Government’. International students ‘hostile to American values’ were not to be admitted and those already admitted  were to be reported to federal authorities. Policies on diversity, equity and inclusion were to end and student protest restricted.

    Harvard and other Ivy League Universities were indignant. Harvard in particular rode the headlines for some days, objecting to the Government demand that it immediately agree:

    to implement the Trump administration’s demands to overhaul the University’s governance and leadership, academic programs, admissions system, hiring process, and discipline system—with the promise of more demands to come

    and thus ‘overtly seek to impose on Harvard University political views and policy preferences advanced by the Trump administration and commit the University to punishing disfavored speech’. There were reports that US academics were seeking to escape to employment in Canada,  the UK or Europe.

    The American Association of Colleges and Universities(AACU), founded in 1915 as the Association of American Colleges, now has a wide-ranging  and international membership. It is a loose counterpart to the British Universities UK which also has a membership including an extensive range of higher education providers. The AACU issued a Call for Constructive Engagement on 22 April, 2025, but litigation was already in hand, with the President and Fellows of Harvard seeking declaratory and injunctive relief on 21 April. Harvard is listed as the plaintiff with a considerable list of defendants identified (paras 15-30). In its submission Harvard argued that:

    American institutions of higher learning have in common the essential freedom to determine, on academic grounds, whom to admit and what is taught, how, and by whom

    and that such ‘American institutions of higher learning’ were ‘essential to American prosperity’.

    It stressed a ‘longstanding collaboration between universities such as Harvard and the federal government dating back to the Second World War’. It pointed to Harvard’s success in using federal funding to achieving significant research outcomes. The recent ‘broad attack of Government’ on ‘universities across America’, not only on Harvard and the other Ivy League Universities listed, had affected the ‘critical funding partnerships’ that made this invaluable research possible.

    This case was being brought because, it was argued, the Government had been using ‘the withholding of federal funding as leverage to gain control of academic decision making at Harvard’. Harvard cited the Government’s letter of 11 April as demanding governance reform and a ‘third-party’ audit ‘of the viewpoints of Harvard’s student body, faculty, and staff’, followed by the hiring of new Faculty and admission of students whose views were satisfactory to the Government. It had asserted that teaching should be ‘to the Government’s satisfaction as determined in the Government’s sole discretion’ and to that end Harvard  should ‘terminate or reform its academic “programs” to the Government’s liking’. The Government had since ‘launched multiple investigations and other actions against Harvard’.  

    The Government had ‘within hours of the Freeze Order ‘ended ‘$2.2 billion in multiyear grants and $60M in multiyear contract value to Harvard University’ and Harvard began receiving ‘stop work orders’. In order to bring a case against the Government it was essential for Harvard to establish that the Government’s action constituted a breach of public law. To that end it stated that the ‘Court has jurisdiction over Harvard’s claims’ because the University did not ‘seek money damages or an order mandating specific performance of any contract’, but:

    an order declaring unlawful and setting aside sweeping agency action taken in violation of Harvard’s constitutional rights under the First Amendment and its rights guaranteed by statute and regulation.

    Harvard stressed that even though it is a private university its research is federally funded ‘through a grant process administered by federal agencies’. It cited Title VI of the Civil Rights Act of 1964 which requires ‘a detailed and mandatory statutory framework’ of procedures to be followed. Harvard had its own procedures, added to or created in August, September and November 2024. Specifically in March 2025, Harvard released updated “Frequently Asked Questions” clarifying that both Jewish and Israeli identities are covered by the University’s Non-Discrimination Policy.

    Harvard explained that it had attempted ‘collaboration’ in the weeks following the government letter and the Federal Task Force’s press release announcing campus visits. It had sought to arrange a meeting on the campus and that was scheduled for late April 2025, yet on April 20 it was reported that the ‘Trump administration has grown so furious with Harvard University’ that ‘it is planning to pull an additional $1 billion of the school’s funding for health research.’

    Trump’s threatened sanctions concerned the future of Harvard’s funding. Harvard has endowments  of c$53 billion so any threat from Trump to reduce federal funding posed a limited risk to its future. However he made a further proposal on 18 April to remove Harvard’s exemption from Government tax on its income, which could have hit its normal operation harder.

    The US counterpart to HMRC is its Internal Revenue Service (IRS). The IRS may grant tax-exempt status to a charitable, religious, scientific or literary organization, on condition that it refrains from campaigning or seeking to modify legislation. However, the President is not permitted to direct the IRS to conduct an investigation or audit. To that extent the counterbalancing of executive, legislative and judicial powers in the US seems to be holding.

    Harvard was making its challenge at a time when the balance between the executive and the judiciary in the US had come into question in a number of cases where Trump’s executive orders sought to override the courts. It claimed that ‘the Freeze Order is part of a broader effort by the Government to punish Harvard for protecting its constitutional rights. … multiple news outlets have reported that the Internal Revenue Service is considering revoking its recognition of Harvard’s tax exempt status’. Representing 86 universities, the Presidents’ Alliance has filed an Amicus brief supporting the litigation.

    Harvard sought in its litigation to have the Freeze Order declared unconstitutional and also the ‘unconstitutional conditions’ sought to be imposed  in the April 3 and April 11 and any action taken under it so far, also banning any future orders in the same vein. It pleaded six Counts, first a violation of the First Amendment in that the letters had targeted the ‘academic content that Harvard professors “teach students”’. Count 2 was that ‘even if the prerequisites of review under the Administrative Procedure Act were not satisfied, federal courts have the “equitable power” to “enjoin unconstitutional actions by state and federal officers.”’ Count 3 was that Title VI does not permit wholesale freezing of a recipient’s federal financial assistance. Instead, it requires that a “refusal to grant or to continue assistance” be “limited in its effect to the particular program, or part thereof, in which . . . noncompliance has been so found.” Count 4 was the Government’s failure to ‘comply with their own regulations before freezing Harvard’s federal financial assistance’. Count 5 alleged that the action had been arbitrary and capricious and Count 6 that it had been ultra vires.

    At Indiana University a professor of Germanic studies was recently investigated under a state law after a student accused him of speech in support of Palestine.

    Could this happen in the UK?

    English higher education providers have their autonomy protected by the Higher Education and Research Act (2017)s.2 [HERA]. This legislation created the Office for Students, a non-departmental public body, whose nearest US counterpart is the Higher Learning Commission, an independent agency founded in 1895 which accredits higher education institutions. The University of Michigan, for example seeks, renewal of its accreditation from the Higher Learning Commission every ten years.

    The Office for Students is both regulator and funder, and distributes Government funding to higher education providers. This may take into account ‘particular policy areas and government priorities. Yet HERA outlaws any attempt by the OfS to impose the restrictions Trump sought to impose on the universities of the USA.  English higher education providers must be free:

    (i) to determine the content of particular courses and the manner in which they are taught, supervised and assessed,

    (ii) to determine the criteria for the selection, appointment and dismissal of academic staff and apply those criteria in particular cases, and

    (iii) to determine the criteria for the admission of students and apply those criteria in particular cases.

    Academic staff in England also enjoy ‘freedom within the law’:

    (i) to question and test received wisdom, and

    (ii) to put forward new ideas and controversial or unpopular opinions,

    without placing themselves in jeopardy of losing their jobs or privileges they may have at the providers.

    There is some Government oversight. In protecting ‘the institutional autonomy of English higher e providers’, the Office for Students is subject to the ‘guidance’ of the Secretary of State, though Government requirements are held off by the legislative fencing.  The guidance of a higher education provider by the Office for Students:

    must not relate to—

    (a) particular parts of courses of study,

    (b) the content of such courses,

    (c) the manner in which they are taught, supervised or assessed,

    (d) the criteria for the selection, appointment or dismissal of academic staff, or how they are applied, or

    (e) the criteria for the admission of students, or how they are applied.

    The legislation adds that:

    guidance framed by reference to a particular course of study must not guide the OfS to perform a function in a way which prohibits or requires the provision of a particular course of study.

    This seems to place universities safely out of reach of the kind of restrictions Trump sought to impose on Harvard and other Ivy League Universities, but the Office for Students is potentially able not only to set its Government funding levels but also affect its students’ access to loans from the Student Loans Company. That can certainly be at risk, for example in the case of the Oxford Business College, whose funding (via franchise arrangements) was blocked in April 2025 when it was found to have abused the student loan system by admitting unqualified students. (US accreditors do hold a lot of power, because universities must be accredited by a federally recognized agency in order to access federal student aid.)

    Access to Government funding through the OfS requires listing by the Office for Students on its Register as an approved provider. The Office for Students did not impose its Conditions of Registration on pre-existing universities before including them in 2018 on its first Register under HERA. It simply treated them as proven acceptable providers of higher education. Each university duly publishes an account of its compliance (eg at Oxford) with the requirements which enable it to remain on the Office for Students Register. What might happen if they were found not to have done so? Short of removal from its Register the OfS has been known to impose fines, notably of more than £500,000 in the recent case of the University of Sussex when it was alleged to have failed to follow its own procedures designed to protect academic freedom.

    Government oversight of the work of HE providers may overlap with or sit uneasily beside forms of ‘accreditation’ and ’qualification’. The accreditation of qualifications in the UK may be the responsibility of a number of ‘agencies’ external to HE providers, some of which are bodies offering professional qualifications. For example the Solicitors Regulation Authority keeps its own register of qualified solicitors. A university degree may not constitute a ‘qualification’ without the completion of further recognised study, some of which may be provided by the university itself, for example the Postgraduate Certificate in Education.

    An area of ‘accreditation’ undergoing significant reform and expansion in the UK covers ‘skills’, including  apprenticeships. Not all universities offer their own apprenticeships, though they may recognise some of those available from other providers at Levels 4 and 5. Nevertheless ‘skills’ are potentially at risk of Government intervention. At the beginning of March 2025, the House of Lords was debating whether  ‘skills’ might benefit from the establishment of a ‘new executive agency’.

    It was recognised that there would need to be a report from the Secretary of State  ‘containing draft proposals’ for an agency, ‘to be known as “Skills England”. Ian Sollom MPobjected that that that would represent ‘a significant centralising of power in the hands of the Secretary of State, without providing proper mechanisms for parliamentary oversight or accountability.’ A ‘statutory, departmental body would have more clout’, he argued.

    An Institute for Apprenticeships and Technical Education (IfATE) already existed, but it was concerned with qualifications up to Level 5, short of degree-level 6. ‘Skills England’ was intended to begin work in April 2025. ‘When Skills England calls, will anybody answer the phone?’ asked HEPI, pointing to ‘limited autonomy, complex cross-departmental coordination, tensions between national and local priorities, and competing objectives between foundational and higher-level skills need’. Its ‘cross-departmental working’ with Government was unclear.

    It looks as though some universities, at least, are safe from any initiative to interfere from above with the right to self-government and to determine what to teach and research. Harvard records a ‘revenue base’ of $65billion, with ‘federal funding ‘ as its largest source of support for research. The research income of Oxford, for example, is £778m, with commercial research income of £148m. That cannot compare with Harvard, but at least Oxford and some others will remain free to choose how to use that income for its academic purposes.

    This is a modified version of an article first published by the Oxford Magazine No 477 in May 2025, republished with the permission of the editor and author.

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

    Author: SRHE News Blog

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

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  • 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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