OFS Consultation on temporary “admissions” condition of registration: some initial thoughts
To this end, the OfS is consulting on a new temporary condition of registration, intended to last for a period of one year from the date it comes into force. The consultation ends on 26 May 2020.
The consultation proposes a new condition E6 as part of the suite of management, governance and accountability conditions, as follows: “the provider must not engage in any form of conduct which in the opinion of the OfS could reasonably have a material negative effect on the stability and/or integrity of the English Higher Education Sector”.
What issues does the imposition of this condition raise for the sector?
- The first is that the conduct proscribed by the condition is not limited to admissions practices, but goes much further than that, to anything that might, in the opinion of the OfS, reasonably have a material negative effect on the “stability and integrity” of the sector, including its finances, its governance, the wider interests of students, applicants and alumni and anything that might negatively affect public trust and confidence. The accompanying consultation implicitly alludes to, for example, decisions to furlough staff while continuing to receive public funds for their salaries as an example of the sort of conduct that would be contrary to the public interest.
- The second is that the OfS will judge the material negative effect not only by looking at the direct consequences of the individual provider’s actions, but also what might happen if lots of providers did the same thing. In effect, whilst this condition is in force, providers will have to consider not only the effect of their own actions and decisions in the very broad context described above, but also the likelihood and effect of others following suit. At the same time, a material negative effect may also be evidenced by the impact on a handful individual students. These are wide ranging and onerous expectations for providers to comply with.
- This is even more so, given that the condition is intended to have, at least in part, retrospective effect. It will apply to conduct which took place from 11 March 2020 (the day that the World Health Organisation declared a pandemic) where that conduct forms part of a series of events continuing beyond the date the condition takes effect. Providers are expected to take action to mitigate the effect of this earlier conduct – the example given is withdrawing any unconditional offers that have not yet been accepted, but given the breadth of the scope of the condition there may be other decisions that providers are expected to unravel at this stage. It goes without saying that it is extremely rare that for regulators to seek to take action in respect of things done prior to the regulatory requirement coming into force. (An unintended side effect of the new condition is that it appears to confirm that the OfS did not consider itself to have the power to act in these areas under the Regulatory Framework to date.)
- The consultation makes it clear that the OfS intends the condition to have both a preventative effect (reduce the likelihood of providers engaging in the undesired conduct in the first place) and a punitive effect. The consultation expressly refers to fines up to the maximum permitted (currently £500,000 or 2% of teaching fee and grant income, whichever is the higher), and to the fact that the OfS intends to “vigorously” regulate in this area.
From a legal perspective, the obligations imposed by the condition appear broad and onerous and attach to a very wide range of decisions that providers are making at a time of unprecedented disruption and uncertainty. Providers will need to second guess the impact of their decisions on the sector as a whole and what view the OfS will take of each decision. Broad, unspecific obligations such as this create risks of unfairness and oppressive behaviour by regulators, and could lead to legal challenges.
More fundamentally, the requirements of the condition cut across institutional autonomy not just in admissions but potentially in a whole host of other areas. It has become fashionable to knock the importance of autonomy but it has been a key part of the success of our world leading higher education sector to date. It is also difficult to see how, having adopted this approach “temporarily”, the OfS steps back from this once the emergency subsides if these steps are truly needed to achieve the outcomes described in the consultation. Like so many other areas, coronavirus may have changed the regulation of higher education for ever.
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