Consultation on proposals to change how the Office for Students regulates further education colleges in England

Summary

The Office for Students (OfS) is currently consulting on proposals to change the way it regulates further education (FE) colleges in England.

In short, FE colleges are regulated by both the Department for Education (DfE) and the OfS and there is overlap across the two regimes. The proposals are intended to reduce some of this duplication and therefore, it is argued, reduce the regulatory burden on FE.

Shakespeare Martineau is responding to the OfS consultation as an organisation with an active interest in both FE and HE and a strong belief in the importance of effective regulation in the education sector as a whole.

This document provides some background to the approach before setting out some broad points in relation to the proposals and then addresses a number of the questions asked as part of the consultation. The consultation closes on 10 February 2026 and we would encourage those interested to respond via the online form (although the constraints of this make it, as seems to be the case with all OfS consultations these days, very difficult to offer any views other than direct responses to the questions they wish to ask).

General points

The stated intentions of the proposals are to:

• reduce duplication of regulation for eligible FE colleges regulated by the DfE
• make OfS registration assessments more efficient for eligible FE colleges by removing registration requirements.

The OfS plans to achieve this by reducing the set of regulations which it applies in such cases. As the regulator puts it, it will “disapply” a number of the initial and ongoing conditions of registration for FE colleges where it believes there is already sufficient DfE oversight. These are:

• initial and ongoing condition A2 (access and participation statement)
• initial and ongoing condition D (financial viability and sustainability)
• initial conditions E7(a set of governing documents and business plans), E8 (fraud and inappropriate use of public funds) and E9 (Individuals)
• ongoing conditions E1 (public interest governance) and E2 (management and governance).

So that’s five initial and four ongoing conditions of registration which will not apply.

Reasons to be cheerful

One of the arguments in favour of reducing OfS regulation is that the powers of intervention by the DfE are more than sufficient to address concerns in these areas of a college’s activity. The OfS really does not need to do more here.

Part of the reason for moving on this now, ahead of some changes to OfS conditions of registration expected in the near future, is the expected growth in FE provision following the Post-16 Education and Skills White Paper.

One additional rationale for this relaxation is that most of these FE colleges will not be applying for Degree-Awarding Powers (DAPs). Revised arrangements in the form of new Initial Conditions for Registration  came into force in August 2025 and it is believed that these will ensure that there is appropriate consideration of new applicants for registration and DAPs. In other words, if an FE college does in future decide to go for DAPs it will find itself very much back in the realm of comprehensive OfS oversight.

Essentially though, where it has any concerns, the regulator reserves the right to impose ongoing conditions of registration on any FE provider as it sees fit. One of the scenarios where this may occur is if the OfS has concerns about a college’s oversight of arrangements where colleges without DAPS enter into subcontracting relationships (often described as franchising) with Ofqual regulated awarding organisations in relation to certain higher education courses.

In broad terms we are supportive of the approach the OfS is taking here and have responded accordingly to the questions asked. At the end of our submission we make two recommendations for further reductions in OfS regulation of FE in respect of TEF and Free Speech.

Responses to consultation questions

Question 1

Do you agree with the proposal to disapply initial condition A2 (access and participation statement) for further education colleges applying for OfS registration? Please provide a reason for your answer.

We understand that the rationale for this change for ALL FE colleges, including those applying for DAPs, is to prevent duplication with the annual accountability statements FE colleges are required to produce which cover broadly the same ground. This change therefore reduces the regulatory burden on institutions and seems entirely appropriate.

Question 2

Do you agree with the proposal to disapply ongoing condition A2 (access and participation statement) for all registered further education colleges? Please provide a reason for your answer.

We understand that the rationale for this change for ALL FE colleges, including those with DAPs, is to prevent duplication with the annual accountability statements FE colleges are required to produce which cover broadly the same ground. This change therefore reduces the regulatory burden on institutions and seems entirely appropriate.

Question 3

Do you agree with the proposal to disapply initial condition D (financial viability and sustainability) for further education colleges applying for OfS registration that are not seeking DAPs? Please provide a reason for your answer.

As the consultation reminds us:

Condition D requires a provider to be financially viable and financially sustainable and have the necessary financial resources to provide and fully deliver the higher education courses it has advertised and as it has contracted to deliver. It must also have the necessary financial resources to continue to comply with all conditions of its registration.

The OfS observes that the further education bodies insolvency regime provides a statutory framework for managing financial failure in colleges, removal of the OfS condition would simplify matters and mean that any FE college requiring financial support or intervention would only have to deal with one regulator rather than two.

This proposal therefore feels like a logical and appropriate change to make.

Question 4

Do you agree with the proposal to disapply ongoing condition D (financial viability and sustainability) for registered further education colleges without DAPs (and have not applied for DAPs)? Please provide a reason for your answer.

Agree for the same reason as Question 3.

Question 5

Do you agree with the proposal to disapply initial conditions E7 (governing documents and business plans), E8 (fraud and inappropriate use of public funds) and E9 (individuals) for further education colleges applying for OfS registration that are not seeking DAPs? Please provide a reason for your answer.

Question 6

Do you agree with the proposal to disapply ongoing conditions E1 (public interest governance) and E2 (management and governance) for registered further education colleges without DAPs (and have not applied for DAPs)? Please provide a reason for your answer.

Combined response to 5 and 6

The consultation document notes that under HERA, the OfS can set conditions of registration that include a public interest governance condition and that this is built into two key OfS conditions: E1 (public interest governance) and E2 (management and governance).

Management and governance is tested by the OfS when an institution applies for registration and this is done via assessing compliance with initial conditions E7, E8 and E9, which require: effective governing documents and business plan; comprehensive arrangements for detecting, preventing and stopping fraud; individuals who are fit and proper as well as having the right knowledge and expertise to ensure a provider’s compliance with all of the ongoing conditions of registration among other things.

As with the other conditions they are believed to be unnecessary given the regulatory powers already exerted by the DfE which cover the majority of these areas and are intended to ensure that further education colleges act in the public interest. Moreover, the DfE can intervene where necessary, including where there are serious concerns around management and governance.

While this therefore means that the OfS is not regulating FE colleges in relation to free speech and academic freedom this feels appropriate. Government has already signalled its intentions in relation to narrowing the implementation of the Higher Education (Freedom of Speech) Act 2023 and, although this has not happened yet, this proposal from the OfS feels in line with the direction of travel. Experience over many years has demonstrated that the concerns which prompted the Act were confined to HE domains in any case and only very rarely, if ever, occurred in FE settings.

Question 7

Do you foresee any unintended consequences resulting from the proposals in this consultation? If so, please indicate what you think these are and the reason for your view.

No

Question 8

Are there any aspects of these proposals you found unclear? If so, please specify which, and tell us why. 

No

Question 9

Do you have any comments about any potential impact these proposals may have on individuals on the basis of their protected characteristics?

No

Further Proposals and Conclusion

We wish to make two recommendations for the OfS to consider.

It is clear that the Higher Education (Freedom of Speech) Act 2023 does not apply to FE Colleges although other legal provisions relating to free speech do. It would be helpful we believe if the OfS not only explicitly excluded FE from consideration in relation to Advice Note 24 but also made it clear that when free speech legislation changes in future that it will continue to exclude FE. This needs to be stressed now otherwise FE will be carrying uncertainty in this area for years to come.

We also recommend that the OfS disapply Condition B6 “The provider must participate in the Teaching Excellence Framework (TEF).“ This should be an option for FE institutions but not compulsory. There may be many reasons why FE institutions want to participate but we do not believe it should be compulsory.

Overall then these changes are to be welcomed. They will serve to minimise unnecessary duplication of regulation to which FE colleges are subject although it is debatable whether the regulatory burden is being reduced – rather it is not being unnecessarily increased by the imposition of further requirements by a second regulator. Nevertheless, these are positive steps by the OfS and it is to be hoped that the ambition to reduce the regulatory burden is transferred to the higher education sector too.