Regulatory recap: what did the Behan Review propose for the OfS?

The publication in July ’24 of David Behan’s review of the OfS, “Fit for the Future”, offered registered providers hope of a regulatory reset, following what has undoubtedly been a rocky start for the regulator’s relationship with the sector. There was indeed much to welcome, with the recommendation that there should be a reduced number of strategic priorities for the regulator and renewed efforts to reduce the regulatory burden on providers. There were a number of points that it would be worth the sector keeping an eye on, however.

What should the OfS’s role be in relation to consumer protection?

The review recommended that the OfS should be given consumer protection enforcement powers. Consistent with its status as a regulator in the student interest, the OfS has taken a far more proactive and interventionist approach to the question of whether or not institutions are complying with their consumer protection obligations than either of the bodies currently having enforcement powers, the CMA and Trading Standards. Therefore, if it were to be given formal enforcement powers, the OfS would likely hold institutions far more vigorously to account. In our experience, this could significantly increase the risk of regulatory action against institutions.

Should there be a model student contract?

Alongside the recommendation about enforcement powers, the review returned to the long-debated question of whether there should be a model contract for the student/university relationship. If this were to be pursued through the auspices of the OfS then it would almost certainly result in reduced flexibility for institutions, a drift towards greater homogeneity, and a reduction in institutional autonomy.

What should the future be for quality and standards

The review endorses the permanent abandonment of the role of the designated quality body (DQB), with the OfS taking on the quality and standards assessment role for the long term. This is arguably undesirable, without some reform of the OfS’s approach to these activities, The OfS’s current approach gives the sector an insufficient role in determining what quality and standards in higher education should look like. Although individual practitioners are involved both through membership of the OfS’s Quality Assessment Committee and as members of assessment teams, these are appointed for their individual expertise rather than because they command the confidence of the sector, as was a required criterion for the QAA to act as DQB.

More encouragingly, the review recommends that the OfS’s approach should recognise the importance of promoting quality enhancement as well as simply assessing quality to a baseline level. The sector may have mixed emotions about the OfS adopting such an approach, but it would bring England back into line with the devolved administrations and would also recognise an important, and currently undervalued, aspect of maintaining a world leading sector.

Are the arrangements for market exit and student protection fit for purpose?

The review recognised that the current regulatory framework for market exit is not sufficiently developed or robust and expressed support for enhanced requirements for student protection plans. Again, this is likely to evoke mixed emotions in the sector; it is undeniable that the plans need to be made stronger, but the only way to do that is likely to involve stronger guarantees of protection which will involve more investment of time and resource by providers.

What about the OfS Board

A final aspect of the review that the sector should monitor with interest are the recommendations relating to the OfS Board. The first is that there should be an independent board evaluation. Given the damning conclusions of the House of Lords industry and regulators’ committee in its report on the OfS, Must do Better, a review of the effectiveness of its board seemed inevitable. Interestingly, the review also recommends that the DfE should review which members of the OfS leadership team the Secretary of State appoints, suggesting these should be only the Chair and non-executive board members. They in turn should appoint the Chief Executive, who should then appoint other members of the management team. Currently the Secretary of State appoints the Chair, the members of the Board, the Chief Executive, the Director of Access & Participation and the Director of Freedom of Speech and Academic Freedom, all of whom sit on the board. The review recommends that the ongoing membership of the board of the executive posts should be considered further.

Depending on which of these recommendations are taken forward, and how, we look set to see a further period of change at the OfS. It is to be hoped that these will result in the continuation of the more focussed and constructive approach to regulation that the OfS has recently tried to adopt.