Securing Student Success: risk based regulation for teaching excellence, social mobility and informed choice in higher education. Response to consultation by Shakespeare Martineau LLP.

We set out below our main substantive responses to the main regulatory framework consultation.

Question 1: Do you agree or disagree that these are the right risks for the OfS to prioritise?

We disagree.

The risks articulated must also include the OfS’s duty as set out in HERA to have regard to the need to protect the institutional autonomy of providers. We believe that autonomy has been the foundation of the world-class higher education system that the UK has enjoyed to date and that erosion of autonomy through excessive regulation is a risk to the high quality of the education and the qualifications that the sector currently offers. This in turn represents a risk to students, graduates and employers and this is why the OfS’s duties under HERA refer expressly to the need for it to protect, rather than simply have regard to, institutional autonomy. We believe that the OfS should therefore have a fifth core objective, which is to ensure that its regulatory activities protect institutional autonomy and are designed to ensure that regulatory interference goes no further than is necessary to deliver its other objectives. We believe this will be a valuable safeguard against regulatory overreach both now and in the future, reflects the proportionality tests built into HERA, and will reduce the risk of conditions being challenged by providers as being excessive or unnecessary. We also suggest that the remainder of the regulatory framework needs to be reviewed by the OfS to assess whether this suggested fifth objective is being met. We have highlighted elsewhere in this response where we believe that it is not currently being met.

Question 3: Do you agree or disagree that a new Quality Review system should focus on securing outcomes for students to an expected standard, rather than focusing on how outcomes are achieved?

We disagree. We do not consider that the consultation provides sufficient clarity about what the relevant outcomes are. They are expressed so broadly that it may be very difficult for applicants, students, employers and the general public to have confidence that they are being met. Outcomes that are not derived from the quality of education must be avoided. An example is the criterion of graduate destinations. These are influenced by many factors other than the quality of education. We are also concerned that in the Guidance on the Registration Conditions, the proposed lead indicators regarding the quality and standards conditions overlap very significantly with the TEF metrics. This will result in confusion as to the purpose of the two exercises, and the undesired consequence of TEF becoming a proxy for both “teaching excellence” and quality and standards. It does not seem possible for a quality review system to avoid at least some consideration of how outcomes are secured, if only to demonstrate with confidence why quality was judged to be at the standard it was. For example, how can a review team assess that a new provider has “an appropriately designed curriculum”, without some assessment of critical factors like student and employer involvement, externality and internal approval processes? If these factors are to be assessed, then fairness demands that they are published. Broad, unstructured discretion to reach these judgments risks challenge.

Question 4: Would exploring alternative methods of assessment, including Grade Point Average (GPA), be something that the OfS should consider, alongside the work the sector is undertaking itself to agree sector-recognised standards?

Methods of assessment should be a matter for individual providers and/or the sector, not the OfS. The definition of institutional autonomy in HERA includes expressly the manner in which courses are assessed. The OfS’s role, if any, should be to collate evidence from students and employers as to what concerns they may have, if any, about current methods of assessments to share with providers, which can then respond as appropriate at either an institutional or sectoral level.

Question 5: Do you agree or disagree that a student contracts condition should apply to providers in the Approved categories, to address the lack of consistency in providers’ adherence to consumer protection law?

We believe that the condition as drafted risks confusion in a number of ways. Firstly, what expertise does the OfS have to judge the extent to which providers have had due regard to the CMA guidance? Secondly, the guidance is just that and expressly recognises that it is for the courts to decide whether the underlying legal obligations have been met. Thirdly, individual students have rights and remedies under the relevant legislation but may be deterred from pursuing them if they believe that the OfS has already judged their provider to be compliant. We think it would be better to make compliance with other legal duties an implicit obligation, as it already is under the Management and Governance condition and the Risk Management Public Interest Principle, or (possibly) to make it an express Public Interest Principle. Where concerns are raised about an individual provider, it may be appropriate to impose a specific registration condition on that provider only.

Question 6: What more could the OfS do to ensure students receive value for money?

We believe that one of the issues the OfS could usefully tackle in consultation with the sector is the lack of an agreed definition of what value for money represents in higher education, and a lack of agreed measures of it. This would enable it to better judge what action, if any, is actually needed to further protect students.

Question 7: Do you agree or disagree that a registration condition on senior staff remuneration should apply to providers in the Approved categories? Are there any particular areas on which you think the OfS should focus when highlighting good practice?

We disagree with a registration condition on senior staff pay. We note that providers who publish accounts according to the HE SORP must already publish the pay and benefits of their Vice-Chancellors and the number of staff in pay bands above £100k. The condition as drafted here would capture many academic staff whose pay represents as much their research and knowledge transfer contributions to the provider as any notion of value for money for students. Insofar as the condition captures academic staff, their pay and conditions are included in the definition of institutional autonomy in HERA, and for the reasons given above the OfS has a duty to protect autonomy from those (in the media, in politics or elsewhere) who might seek to undermine it. We believe the better way of dealing with the issue would be as part of the Management and Governance condition, where it could be made an express Public Interest Principle. We do not believe that it is appropriate to require providers to publish justifications of remuneration packages over an arbitrary benchmark. We instead believe that a robustly drafted Public Interest Principle will be able to achieve the transparency and accountability needed to assuage any genuine public disquiet at levels of pay, whilst allowing institutions to make autonomous judgments about the levels of pay needed in their particular circumstances. Individual providers who do not respond in proper spirit to the Public Interest Principle can be made subject to a specific condition of registration as appropriate.

Question 9: Do you agree or disagree that participation in the TEF should be a general condition for providers in the Approved categories with 500 or more students?

We do not disagree in principle, but are concerned about the effect on the understanding of what TEF is and on the sector’s overall reputation. In particular, TEF was intended to be a measure of excellence rather than a baseline. Requiring everyone to participate undermines that proposition, unless it is possible to enter the TEF and not receive any categorisation at all. It is also inconsistent with OfS’s stated proposition elsewhere that its role is to assess baseline entry standards not to stimulate continual improvement. It is further premature to include this as a registration condition ahead of the independent review of TEF.

Question 10: Do you agree or disagree with the proposed ongoing general registration condition requiring the publication of information on student transfer arrangements? How might the OfS best facilitate, encourage or promote the provision of student transfer arrangements?

Whilst we understand the importance of student transfers in delivering a market-based approach to higher education regulation, we believe that the role of student transfer arrangements in empowering students is overstated, even where it is well publicised. There are many other barriers to students switching, such as the availability and/or location of suitable alternative courses, proximity to family and friends, and the overall inconvenience of physically moving accommodation. These cannot be addressed by student transfer arrangements. In these circumstances, the emphasis placed on student transfer arrangements by making this a registration condition is disproportionate to the benefit they can confer on students or to the risks of transfer arrangements not being publicised. Facilitating student transfers may be appropriate where changes to courses, including closure, are contemplated, as a matter of consumer protection law and providers can be judged for compliance against that as suggested above. It would be preferable for the OfS to focus on (a) ensuring students receive appropriate information to pick the right course in the first place; (b) running an information campaign to encourage students to exercise their rights (including asking to transfer) if the course they enrol on is not what they had been led to believe and (c) taking action against providers who fail to provide adequate support to students to transfer where those providers are in breach of their contracts or their consumer protection law obligations either by attaching a specific registration condition to that effect, or by taking enforcement action against those providers.

Question 11: Do you agree or disagree with the proposed approach to sector level regulation in chapter 2?

We believe that the approach to sector level regulation relies too heavily on regulatory conditions. Under HERA, conditions should only be imposed where they are proportionate to the regulatory risk posed by each provider. Regulatory risk is defined as the risk of the provider otherwise failing to comply with regulation by the OfS. This therefore presupposes some other form of regulation, with conditions only appropriate where that other form of regulation is insufficient. Our view is that the OfS should instead establish a process comprised of four stages:

(a) it articulates the specific objective it wishes to secure in line with its general duties;

(b) it carries out an assessment as to the extent to which providers are not already meeting that objective by asking providers to submit relevant evidence;

(c) it sets out its expectations that providers will address the gaps its assessment identifies;

(d) it imposes conditions on those providers who do not respond, or are very far below the sector standard; or those whose response or prior behaviour indicates that they will not address the gaps.

This approach is consistent with a co-regulatory approach, and with the ethics based regulation the OfS professes. At present, the OfS is not in a position to judge the regulatory risk posed by individual providers and therefore cannot demonstrate that its proposed conditions are proportionate to that risk.

Question 13: The initial conditions should provide reassurance that providers will meet the general ongoing conditions without creating unnecessary barriers to entry. Given this, are the initial conditions appropriate?

No. We have commented on the overall approach to setting conditions and on the appropriateness of some of the conditions already. In addition:

• Some of the wording is unclear, for example the references to “successful completion” in conditions B2 and B3. Providers can only give students the opportunity and support to successfully complete; actual success depends on the student. Similarly, a provider cannot “ensure the value of qualifications…. over time”. The value of a qualification depends on many factors outside its control; all a provider can do is ensure that nothing it does undermines the value of its qualifications.

• Every provider should not be required to publish a student protection plan as a condition of registration. The implied requirement that there would be a SPP for every course strengthens our criticism. Even requiring a generic SPP for each provider would give the impression of a sector where “disorderly exit” (which is what the plan is designed to guard against) is a widespread risk and we do not believe there is any evidence of that. Certainly none is cited in the consultation documents. As part of its assessment of providers applying to be registered the OfS can seek information about arrangements to secure students’ continuation of study and then apply the condition to those providers where arrangements are considered inadequate.

• We do not understand the basis for imposing conditions that simply restate legal obligations – e.g. condition G. If the intention is to highlight areas particularly related to the OfS’s remit, it fails in that respect also – the supervisory duties over students’ unions in the 1994 Act are for example omitted.

Question 15: Do you agree or disagree with the proposed approach on the application of conditions for providers wishing to seek a Tier 4 licence?

We agree with the contention at paragraph 191 that providers only seeking a Tier 4 licence do not draw down public funding they contribute to the reputation of the English higher education sector. We do not understand why the same argument does not apply to providers in the registered basic category. We also do not consider that some of the proposed conditions are appropriate for providers only seeking a tier 4 licence, for example senior staff pay (these providers receive no public funds), the transparency condition (these providers are not under any duty to widen participation and indeed under Tier 4 rules are implicitly required not to accept “disadvantaged” international students, transfer arrangements (there are specific rules for international students wanting to transfer), facilitating electoral registration (international students almost by definition are ineligible to vote), participation in TEF (many of the TEF metrics are not appropriate for international students).

Question 19: Do you agree or disagree with the proposed approach to risk assessment and monitoring?

See our comments above regarding the need to assess risk before determining what conditions (beyond those described as mandatory in HERA) need to be imposed. It is the failure to approach conditions in this way that has led to conditions being proposed that are (a) inappropriate for the provider group in question (e.g. those only seeking Tier 4 licences); (b) disproportionate to the scale of any stated problem (e.g. student protection plans) or (c) do not relate to any of the OfS’s statutory duties (e.g. senior staff pay).

Question 24: Do you have any comments on the proposed exercise of OfS functions in relation to validation, in particular in relation to ensuring that the validation service is underpinned by the necessary expertise and operates in a way that prevents or effectively mitigates conflicts of interest?

We think this is an area on which there should be a further, specific consultation once the OfS has decided how it wishes to operate. At present there is insufficient clarity on:

1. Who will assess the quality of the OfS’s arrangements?

2. How the degree certification will adequately reflect the arrangements, so that there can be no confusion about where the award came from?

3. How l the OfS will ensure that the qualifications retain their value over time?

4. What value will be attached by employers to degrees awarded in this way and therefore whether validation in this way is truly in the students’ interests?

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