Category: OfS

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

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

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

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

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

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

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

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

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

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

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

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

    Doing so much harm, doing so much damage

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

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

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

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

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

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

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

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

    But you don’t wanna get involved

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    I know you wanna live yourself

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

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

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

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

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

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

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

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

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

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

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

    But could you forgive yourself

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

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

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

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

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

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

    I stand in front of you

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    C5: Treating students fairly

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

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

    E7: Effective governance

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

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

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

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

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

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

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

    Documentation

    So what would you now need to submit:

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

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

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

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

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

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

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

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

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

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

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

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

    Being objective

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

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

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

    People who need people

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

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

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

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

    Other requirements for registration applications

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

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

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

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

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

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

    By OfS request

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

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

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

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

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

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

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

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

    How this will be done

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

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

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

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

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  • Ventriloquising the student interest | Wonkhe

    Ventriloquising the student interest | Wonkhe

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

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

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

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

    Much talk, no sources

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

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

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

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

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

    Get a job

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

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

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

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

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

    Whose priorities?

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

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

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

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

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  • Happy New Year | SRHE Blog

    Happy New Year | SRHE Blog

    by Rob Cuthbert

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

    January

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

    February

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

    March

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

    April

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

    May

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

    June

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

    July

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

    August

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

    September

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

    October

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

    November

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

    December

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

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

    SRHE News Editor Rob Cuthbert is Emeritus Professor of Higher Education Management, University of the West of England and Joint Managing Partner, Practical Academics [email protected]. Twitter @RobCuthbert

    Author: SRHE News Blog

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

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  • Bridget Phillipson reaffirms commitment to free speech

    Bridget Phillipson reaffirms commitment to free speech

    Secretary of State Bridget Phillipson has delivered a statement to Parliament on her regulatory approach to higher education – specifically, the future of the Higher Education (Freedom of Speech) Act.

    Ahead of her day in court with the Free Speech Union – which is taking her to court over her implementation pause – she announced that key provisions will be brought into force, whilst “burdensome provisions” will be scrapped.

    And the good news is that pretty much for the first time from a minister on this issue, there’s an explicit recognition of the fine lines, complexities and contradictions often in play on the issue. A press notice covers largely the same material.

    You’ll recall that on taking office back in July, Phillipson paused further commencement of the Act in response to “concerns raised by a cross section of voices” – and controversially, at least for some, a “source” branded the Act as passed a “Tory hate charter”.

    In the intro, Phillipson said she was still committed to ensuring the protection of academic freedom and free speech – “vital pillars” of the university system:

    Universities are spaces for debate, exploration, and the exchange of ideas, not for shutting down dissenting views… extensive engagement with academics, universities, students, and minority groups revealed concerns about unworkable duties, legal system burdens, and potential impacts on safety, particularly amid rising antisemitism on campuses.

    Insights from her work to consult with interested stakeholders (both for and against the act), says Phillipson, have shaped a “balanced, effective, and proportionate approach” to safeguard free speech while addressing minority welfare.

    What stays

    First up, the government will commence the following requirements currently in the act (in sections 1,2 and 6):

    • The duties on higher education providers to take reasonably practicable steps to secure and promote freedom of speech within the law
    • The duty on higher education providers to put in place a code of conduct [practice] on freedom of speech

    Those are relatively uncontroversial – most providers were preparing in that spirit already, although the (very) detailed suggestions on compliance previously proposed by OfS may yet change.

    Underpinning that, Phillipson also intends to commence the duties on the Office for Students (OfS) (section 5) to promote freedom of speech and the power to give advice and share best practice. And unsurprisingly, the ban on non-disclosure agreements for staff and students making complaints about bullying, harassment and sexual misconduct will also remain.

    There was a curious passage on the Director for Free Speech and Academic Freedom role – the Secretary of State said that she had “complete confidence” in Arif Ahmed who will be staying on – but then criticised how he’d been appointed, drawing on interim Chair David Behan’s review of the regulator that had recommended a look at how all OfS executive and board appointments should be made.

    She said will decide on the process of appointing directors to the independent regulator “shortly”.

    What’s going

    A couple of other measures were “not proportionate or necessary”, so she’ll be seeking repeal.

    The duties on students’ unions are to go – because they’re neither “equipped nor funded” to navigate such a complex regulatory environment, and are already regulated by the Charity Commission:

    But I fully expect students unions to protect lawful free speech, whether they agree with the views expressed or not, and expect providers to work closely with them to make sure that happens, to act decisively to make sure their students union complies with their free speech code of conduct.

    That effectively returns us to the Education Act 1986 position – of providers taking reasonably practicable steps to get their SU to comply – and sensibly removes the prospect of a new student being told about two codes of practice to follow depending on who they’d booked a room with.

    Most controversially for some, she will also repeal the legal tort, on the basis that it would have resulted in:

    Costly litigation that risks diverting resources away from students at a time when University finances are already strained – remaining routes of redress have plenty of teeth.

    Those pro the tort worry that that only leaves OfS’ powers to find as the compliance lever – although others worried that the threat of it would have resulted in more threatening letters than sensible, nuanced decisions.

    What’s changing

    On the OfS free speech complaints scheme, it will remain in place for university staff and visiting speakers – but there will be two changes. OfS will first be freed up to prioritise the more serious complaints – and be officially empowered to ignore others.

    And the government will remove the “confusing duplication” of complaint schemes for students. Students will be diverted to using the Office of the Independent Adjudicator (OIA, and OfS will take complaints from staff, external speakers and university members.

    That doesn’t quite remove the potential duplication of the two bodies considering the same incident or issue from different angles/complaints – but it’s a sensible start.

    And the government will also amend the mandatory condition of registration on providers to give OfS flexibility in how they apply those conditions to different types of providers – we’d expect that to cover issues like the obvious oversight of 14-year olds in FE colleges caught by the Act suddenly gaining free speech rights.

    The government says it will also take more time to consider implementation of the overseas funding measures in the act as it “works at pace” on the wider implementation of the foreign influence registration scheme that was part of the National Security Act 2023. Those two bits of legislation never felt properly aligned – so that also feels pretty sensible.

    In the debate that ensued, there was some lingering suspicion from the opposition that that all amounted to the government going soft on China – and regardless of the foreign funding clauses, there were some concerns from providers about the workability of the draft OfS guidance on the main duties re oppressive regimes and TNE. That will be one to watch.

    Finally, we will also get a policy paper to set out the proposals in more detail, potentially alongside a decision on information provision for overseas funding.

    What’s next

    As we signalled back in March, the interaction with allegations and incidents of antisemitism appears to have been a big influence on the decisions – the press notice reminds readers that there were fears that the legislation would encourage providers to “overlook” the safety and wellbeing of minority groups, including Jewish students, and instead protect those who use hateful or degrading speech on campus:

    Groups representing Jewish students also expressed concerns that sanctions could lead to providers overlooking the safety and well-being of minority groups.

    Phillipson even referenced the faux pas from Michelle Donelan way back in May 2021 when, on the day the Bill was launched, she was unable to explain how the government’s proposals would prevent Holocaust deniers coming to campus.

    Phillipson said that she could see “no good reason” why any university would invite a Holocaust denier onto campus to deny the overwhelming evidence that the Holocaust is an “appalling form of antisemitism”. Even when the last government had clarified the position on holocaust denial, it never confirmed that holocaust deniers could be banned – and the point about many external speaker edge cases is that they rarely fill the form in with “I’m going to say something unlawful”.

    There’s still a way to go yet on these (and other) fine lines – in the ensuing debate, Phillipson said that she was worried that the regime that was due to launch would have “unduly prioritized” free speech which is hateful or degrading over the interests of those who feel harassed and intimidated – these issues, she said, can be “very finely balanced”. That may well see a push from the SOS that the two sets of guidance – on OfS’ new Harassment and Sexual Misconduct duties, and the drafts on this regime, are integrated more sensibly.

    The ongoing questions surrounding the IHRA definition of antisemitism may also yet pop up again too – not least because of Arif Ahmed’s own apparent u-turn on it and the ensuing cases challenging its usage in disciplinary procedures. Questions of pro-Palestinian activism on camps and where that might stray into antisemitism were notably absent from OfS’ guidance drafts.

    Overall, some in the debate will be furious at the government’s apparent watering down of the Act, others will be pleased that some of the arguably more unworkable aspects are being amended.

    But probably the most important signal from Phillipson was a recognition that the area is complex and decisions often finely balanced – putting a degree of trust in universities (and their SUs) that they will also take it seriously.

    Whatever else has happened over the past few years, there’s plenty of evidence that understanding has improved in the sector – it looks it has in Whitehall too. The question now is whether, next time an incident or issue comes along, it is handled by a university (or its SU) in a way that commands confidence.

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  • OfS approves renaming of UCLan and University of Bolton

    OfS approves renaming of UCLan and University of Bolton

    In two separate hearings published on December 19, the OfS granted approval for the University of Bolton to be renamed the University of Greater Manchester, and for the University of Central Lancaster (UCLan) to become the University of Lancashire.  

    The regulator permitted Bolton becoming the University of Greater Manchester despite objections from the University of Manchester that the change would be “very confusing and misleading”. Manchester Metropolitan University and the University of Salford also objected to the name change.  

    In a consultation on UCLan’s rebranding to the University of Lancashire, 90% of the 1,812 respondents said that the new name could be “confusing or misleading”, given that the existing Lancaster University carries the same official title.  

    During the ruling, the regulator considered the name change could be particularly confusing for international students “less familiar with contextual information” but concluded that it was “unlikely to lead to any material harm or detriment”. 

    The consultations in Bolton also garnered widespread opposition to the rebrand, with 64% of respondents saying the name change could cause confusion.  

    The OfS recognised that both instances could be confusing “for particular groups of stakeholders, including for example those for whom English is not their first language or who have difficulties in distinguishing or processing information”. 

    However, it concluded that “the range of contextual information that students use when applying to study” would help to prevent material harm arising from such confusion.   

    The name change is very good news for our students, very good news for the institution, very good news for the town and amazing news for jobs

    Professor George Holmes, University of Greater Manchester

    In both cases, the OfS ruled that its duties to protect the “institutional autonomy” of providers and “encourage competition” between universities weighted in favour of consenting to both new names.  

    In Bolton, the proposals to change the university’s name sparked backlash from local politicians and members of the public, with a motion put to Bolton Council in 2023 calling on the university to rethink the name change.  

    Announcing the news on December 19, vice chancellor Professor George Holmes told a group of staff members that he was “delighted” to announce the change.  

    “The name change is very good news for our students, very good news for the institution, very good news for the town and amazing news for jobs,” said Holmes, adding that it was “an important accolade to have the University of Greater Manchester based in Bolton”.  

    Professor Graham Baldwin, UCLan vice chancellor, also welcomed his institution’s new title, saying that it would “better reflect our regional economic importance and aid continuing efforts to raise brand awareness further afield. 

    “Locally the acronym UCLan was widely used but for many outside the region they didn’t know it was the title of a university nor where it was located,” said Baldwin.

    On December 2, 2024 the OfS announced it was temporarily pausing the registration of new institutions, as well as suspending applications for an institution to change its name “where it already holds university title”. Applications already submitted would be completed, it said.  

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