In a belated response to the 2019 Review of Post-18 education, the Government is planning to direct the Office for Students (OfS) to introduce student number controls that limit the numbers of students in England taking courses which do not lead to a professional job, postgraduate study, or starting a business 15 months after graduation.

The OfS has already exercised this power on a narrow and targeted basis (see examples given here) but, commendably, its focus has tended to be on securing improved outcomes rather than capping recruitment. Given that a more formal number control policy may not be implemented until the 2024/25 academic year, and with a possible election in the interim, it is conceivable it may never be put into practice. But it is nevertheless worth engaging with the proposed policy on its own terms. While there is undoubtedly no reason why students or the taxpayer should have to put up with poor quality teaching and resources, there are a number of reasons why this is a misjudged and flawed policy, which has the potential to deny a number of prospective students a chance of higher education and to destabilise a number of institutions through no fault of either the students or the institutions.

What is the regulatory context?

The number control will be linked to the outcomes specified by the OfS under its B3 registration condition. This requires institutions to meet certain numerical targets for the proportion of students continuing their studies, completing their courses and progressing into appropriate jobs or further study.

On a simplistic level, it could be argued that there is no reason why courses that achieve poor results on these measures should be allowed to continue to recruit students without further controls. However, there are a number of reasons why such a measure is likely to have a disproportionate impact on certain types of students and certain types of institutions, and why that impact may be difficult to justify.

What does the evidence show?

The recent Advance HE/HEPI Student Academic Experience Survey identified the profound significance of the current cost of living crisis for many students. It was, for example, the single highest factor cited as giving rise to concerns about the value for money of courses, above tuition fees for example. Cost of living was also cited as a factor for students who had considered leaving their courses. More students were having to undertake paid employment in order to make ends meet while studying. A clear majority of students cited challenges around the cost of living as negatively impacting their studies, either a little or a lot. There was a correlation between groups of students who relied on maintenance loans or grants, and the degree of impact that the cost of living crisis has had on their studies. Other students who are also more likely to be affected included those who have to work to support their studies, older students, first-in-family students, those with caring responsibilities, care-experienced students and students with a trans-identity or trans history. It is also important to remember that these cost of living concerns are coming off the back of the pandemic which itself had a disproportionate impact on many of the same groups of students. Neither the cost of living crisis nor the effect of the pandemic were, for obvious reasons, factors that the 2019 Review took into account.

The findings of the Advance HE/HEPI survey therefore provide important updated context for the proposed policy. This evidence shows that institutions who take large numbers of students from certain groups have a large number of students who are at risk of not continuing or completing through no fault of either the student’s or the institution’s.

What about progressing into graduate employment or further study? Here too, 2023 research by the Centre for Transforming Access and Student Outcomes in Higher Education has shown that students from disadvantaged backgrounds go into less well-paid jobs, to a large extent irrespective of which university they study at or even what subject they study. The research also shows that such students nonetheless experience positive outcomes when compared with their non-graduate disadvantaged peers. While institutions could do more to reduce the gap between disadvantaged and non-disadvantaged students, the lives of the former group are nonetheless enhanced and improved by their experience at university in many ways, even if not the precise ways defined by the higher education regulator.

It appears, therefore, that there is ample data to indicate that if students from these backgrounds are more likely to experience negative student outcomes, it is wholly or mainly for reasons entirely outside the control of the institution. As a result, the proper regulatory policy response ought, arguably, to be to question whether these are proper measures of institutional quality at all, and modify or remove B3 entirely. A proper government policy response might also be to fund and incentivise activities designed to reduce outcome gaps further, such as better maintenance support. Instead, the proposed policy response on both counts appears to be to double down on the fiction that these students’ outcomes are the sole result of institutional deficiencies and that it is right that institutions who take higher numbers of such students are therefore vulnerable to penalty.

The OfS has on occasion appeared unwilling to engage with the available evidence. It has adopted the position that, as all students should be entitled to equally good outcomes irrespective of their characteristics, any failure to deliver must therefore be the fault of institutions. All things being otherwise equal, this may be good policy. However, the evidence shows that for many students things are not equal, and as such the policy basis is flawed.

What may be the wider impact on institutions?

The impact on institutions could extend way beyond the course in question. Reputationally, if nothing else, being labelled “poor quality” could affect recruitment to other courses too. Finances at many institutions are already precariously balanced, as a consequence of, amongst other things, a maximum tuition fee that has not kept in line with inflation and is now estimated to be worth £6000 in 2012’s money along with pressures on other sources of income such as international students fees.. Therefore the policy risks further and perhaps fatally destabilising institutions which may be providing the regulator’s definition of “positive outcomes” to students in other areas and delivering vital provision that their region or the nation needs, in professions such as nursing, teaching and social work.

Are there grounds for legal challenge?

For all these reasons the policy is surely questionable. However, is it so questionable as to be unlawful? Any challenge to the policy will need to be brought by way of judicial review, which can result in orders setting aside policies that are irrational, but will not normally intervene in policies that are simply bad, or suboptimal. Establishing irrationality is an extremely high threshold to meet. The OfS will, in due course, have to consult on how it intends to apply the policy, and that may provide an opportunity for robust evidence to be put forward as to why it should not be adopted. However, given the political pressure on the OfS to implement government policy and the evidence to date that the OfS does not necessarily engage meaningfully in consultation, this may not result in any change. For all these reasons, it may be that the only option is to continue to lobby and to ensure that the evidence which shows that it is not right or necessary for students and institutions to be penalised in this way is put forward in as many ways and to as many audiences as possible, in the hope that good sense may yet prevail.

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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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Published: 17th July 2023
Area: Education

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