New OfS Regulatory Advice on Reportable Events – what it means for providers

In February 2021 the Office for Students concluded its consultation on reportable events.

The Office for Students’ consultation on reportable events – Shakespeare Martineau.

The OfS has now published its updated regulatory advice on reportable events, which is effective from 1 January 2022. We explore what this means for providers.

“Reportable events” are the events or matters registered providers are required to report to the OfS, and in the original consultation the OfS proposed a new definition for a reportable event, and new guidance to assist providers in deciding whether to make a report in recognition of the difficulties providers were having with the current approach.

Regulatory advice 16: Reportable events – Office for Students

There is now a new definition of a reportable event

:

“A reportable event is any event or matter that, in the reasonable judgement of the OfS, negatively affects or could negatively affect:

1. The provider’s eligibility for registration with the OfS.
2. The provider’s ability to comply with its conditions of registration.
3. The provider’s eligibility for degree awarding powers, or its ability to comply with the criteria for degree awarding powers, where the provider:
   • 
     holds degree awarding powers; or
     
   • 
     has submitted an application for degree awarding powers to the OfS, and for which the OfS has yet to reach a final decision.
     
4. 
   The provider’s eligibility for university title, where the provider:
   
   • 
     holds university title; or
     
   • 
     has submitted an application for university title to the OfS, and for which the OfS has yet to reach a final decision.
     

In interpreting ‘the reasonable judgement of the OfS’, the OfS will, as a matter of policy, consider whether a reasonable provider intent on complying with all of its conditions of registration and acting in the interests of students and taxpayers (rather than in its own commercial, reputational or other interests), would consider the event or matter to be material.”

Whilst this is broadly similar to the proposed definition in the consultation, the OfS has gone further to make it clear that the third and fourth criteria also apply to providers who have submitted applications for degree awarding powers/university title.

What matters should be reported, and when?

The guidance contains a table (Table 1) containing a non-exhaustive, illustrative list of reportable events, which includes some events that are and have always been reportable. These include a merger, change of ownership, loss of student sponsor licence, breach of a financial covenant attached to a loan, change in the identity of the accountable officer or chair of the governing body and the closure of a campus, department or subject area.

A provider is required to report an event within five working days of the date that the event is identified or, if that is not possible due to exceptional circumstances beyond the control of the provider, as soon as reasonably practicable thereafter and without undue delay. The guidance provides further details with regard to timings for events that have yet to happen but are in contemplation, eg. a merger or closure of a subject area, and events that have already happened but which the provider might only become aware of later, eg a possible fraud. The OfS will consider whether a provider met the timescales for reporting an event as part of the assessment of the event.

A report must be made online via the OfS portal.

One thing to note is that the OfS has made clear that the new reporting requirements are not intended to have a retrospective effect, and so events that occurred during the period when reduced reporting requirements were in place, which were not reportable at the time, will not need to be reported under the revised requirements.

OfS assessment of a reportable event

The OfS will review the information submitted (and may ask for further information) and following consideration will determine one of the following next steps:

1. 
   The information contained in the report should be recorded but no further action is required from the provider at this time.
   
2. 
   A more extensive assessment is required because the information contained in the report is likely to affect the provider’s eligibility for registration, its compliance with its conditions of registration, or its eligibility for degree awarding powers and university title, or its ability to comply with the criteria for degree awarding powers (where relevant).
   
3. 
   A more extensive assessment is required because the information contained in the report adds new information to a known issue or to a pattern of events or issues.
   

If an extensive assessment is carried out and the OfS decides there is an effect on the provider’s eligibility for registration, a change in the OfS’s risk assessment for one or more conditions of registration (with risk increasing or decreasing, or crystallising into a breach of a condition), or an effect on the provider’s eligibility for degree awarding powers or university title or its ability to comply with the criteria for degree awarding powers (where relevant), further assessment or action will be taken in response.

What does this mean for providers?

Providers will need to ensure that they have the optimal internal processes in place to identify reportable events in a timely way. Therefore, steps should already have been taken and if not, should be put in place rapidly, to make sure that potentially reportable events are considered at an appropriate level, systems are in place for recording decision-making and that the processes for reviewing potentially reportable events are reviewed periodically to check that they are operating effectively.