From Act to implemention: priorities for the Office for Students

As the dust (perhaps literally) settles on the Higher Education and Research Act, officials will soon be turning their minds to the task of creating a whole new regulatory framework for universities, including the creation of the Office for Students.

The Act itself sets out a long list of duties for the new regulator. Last year’s White Paper states that the OfS will be a “consumer focused market regulator” and will have competition, choice, and the student interest at its heart “for the first time”.

The early implementation of the Act will set the tone for the sector’s relationship with its new regulator. It is clear that the government envisages there will be a significant change from HEFCE to the OfS. This might mean that the OfS will be less open to co-regulatory working and consultation with providers as it focuses on the consumer interest. And to what extent will the regulator consider the broader environment within which universities operate?

Whilst there may be a wish to start from new first principles in setting up the new regulator, there is no reason why some elements of HEFCE’s current way of working – elements which have been positive for both institutions and for students – cannot be replicated in the new regime. With many HEFCE staff members transferring to the OfS, we can hope that crucial expertise and institutional memory will be retained in order to support effective and evidence-based policy making.

A formal consultation on the new regulatory framework is expected this autumn, but there will be a valuable opportunity for the sector to shape thinking on what that looks like over the coming months. Here are five suggested priorities for the new regulatory regime:

1. The government has indicated that they want to see a risk-based and proportionate approach to regulation through the OfS, which will be welcome news to many in the sector. But what does this mean in practice? Levelling the playing field for all providers shouldn’t mean ignoring the strong governance procedures and track-record of quality which many institutions have worked hard over the years to achieve. Defining what we mean by risk-based will be an important starting point, and will have implications for the whole of the OfS’s remit.
2. Given the title and remit of the new regulator, the need to protect the student interest will be at the core of its mission. It will be crucial that students are protected from poor provision by maintaining a robust baseline of quality. It will also be important not to define the student interest too narrowly. This is not just about protection from provider failure. It is also in the student interest that teaching is properly funded and that students have access to rich and diverse learning environments.
3. Maintaining the world-leading status of the UK higher education system should be a key priority for the new regulator. Giving institutions with the flexibility to make their own decisions based on their institutional mission and the wider context in which they are operating will be crucial. Such an approach would recognise that by protecting institutional autonomy, which is strongly correlated with performance, a high quality of education and range of student choice can be maintained. This would accord with the provisions on autonomy which are included in the Act.
4. Whilst the OfS has a remit to ensure higher education institutions are managed efficiently and effectively, no such requirement has yet been placed on the regulator itself. Efficiency should be embedded into the operating principles of the regulator so it delivers value-for-money for universities, who will now be paying for it.
5. Finally, the OfS will have an important role in ensuring the whole system functions well for the benefit of the UK. This will mean having an awareness of the broader regulatory requirements placed on universities by other bodies including UKRI, PSRBs, and charity law (amongst others).

It will be important for the OfS to consider the implications of its decisions in the devolved administrations. The regulator should recognise the extent to which the higher education systems in the four nations of the UK remain interdependent, not least with regard to the need to protect the reputation of UK higher education overall. The Act includes provisions for joint working between the OfS, HEFCW, the SFC and DELNI in order to ensure that functions are delivered efficiently. These provisions should be applied broadly, to ensure that higher education agencies across the four nations consult and work closely with each other, as they have done so in the past.