What does the OfS consultation on its new strategy tell us about regulation in the years ahead?

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Published: 25th November 2021
Area: Corporate

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OfS consultation

The OfS has published a consultation on its new strategy for the period 2022 – 2025, which closes at noon on 6 January 2022.  The new strategy highlights a range of specific issues which institutions will need to be ready to address over that period.  

It’s all about the base(line)

The consultation confirms that the OFS sees its regulatory expectations (defined as both the conditions of registrations and “softer” tools such as statements of expectations) as the minimum performance that students and taxpayers are entitled to see. 

Therefore, its focus is on, and will remain on, providers who fail to meet these baseline expectations. Up until now that has principally meant focussing on the baseline as part of the registration process, where the judgments were made at provider level, but now the focus will shift to the ongoing compliance of registered providers. This could result in quite granular enforcement; for example, the strategy anticipates that individual courses that do not meet the quality and standards baselines will be “improved or closed”. This extends significantly the number of providers who are potentially “in scope” for action of this type and raises questions about how such action could affect the rights of students already on or recruited to the courses in question. More generally, institutions themselves will need to ensure that their processes for identifying and addressing instances of non-compliance at course or department level are robust and speedy. 

On the plus side, providers operating above the baseline are told they can expect to see a reduction in bureaucracy and regulatory burden. How this welcome assurance will be operationalised by the OfS remains to be seen, given the increasingly granular nature of its proposed enforcement.  Performance beyond the baseline will be encouraged through influence and incentives, including use of the OfS funding powers, rather than regulatory activity.  

Even more welcome is the OFS’s commitment to looking at a regulatory “sandbox” approach to support innovation, as we called for in this September 2021 blog OfS consultation: Regulating quality and standards – how far is too far? - (shma.co.uk), although this is likely to be small in scale.  

Quality matters

The new strategy identifies two focus areas, the first of which is quality and standards. We are still awaiting the outcome of the consultation into the suite of new registration conditions dealing with this area. The new strategy tells us that these will be robustly enforced, and will be underpinned with a new registration condition on student outcomes, and by the implementation of the next iteration of TEF.  

Free speech, inevitably, gets a mention, and the intention is that the OfS will respond to individual cases and take enforcement action where providers have failed to take positive steps to secure free speech, including where this has resulted in the inhibition of minority, unpopular and controversial opinions. 

Action will be taken under the OfS’s existing powers and will increase once the new powers under the Higher Education (Freedom of Speech) Bill comes into force. This does rather raise the question of why, if the problem is as severe as it is stated to be, the OfS has not yet used any of its existing powers.  

Equality of opportunity

In addition to a continued focus on access and participation, the OfS intends to stimulate more flexible and innovative provision so that prospective students have a diverse range of opportunities throughout their lives. The new strategy recognises that the regulatory approach may have to adapt to fit the new lifelong loan entitlement, whenever details of that are finally published.  

The OfS intends to consider further what action would be effective in regulating the way providers deal with cases of harassment and sexual misconduct. This will include qualitative and quantitative research on the scale of the problem, an analysis of what providers are doing in response to the OfS statement of expectations in this area and the development of an approach that will drive culture change, through the sharing of best practice and targeted enforcement activity. (It is a pity that a similar approach is not being proposed to deal with the perceived free speech issues on university campuses.) 

Further work will be done on the consumer protection and student protection registration conditions as well as the effectiveness of management and governance.  

What’s the carrot?

The carrot dangled in front of providers is the promise of risk-based regulation and an expectation that by the end of the strategic period, the OfS will have varied regulatory requirements for individual providers based on risk. However, rather disappointingly, this appears to involve increasing requirements on high risk providers, rather than reducing them for lower risk ones.  

Conclusion

The proposed new strategy is more evolution than revolution, but institutions should nonetheless brace themselves for a more intrusive approach to regulation in areas such as access, quality and standards, and consumer/student protection, as well as a greater focus on enforcement. It will be more important than ever for institutions to have clear processes and accountabilities for discharging regulatory requirements and for identifying and addressing potential breaches as quickly as possible.  

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Smita leads the team that works to shape the universities and colleges of the future by providing strategic advice and sector-specific insight across all their legal needs.

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