Publish or perish? The OfS on information

The whole point of the Office for Student register, and the HEFCE register before it, is to put information about providers into the public domain.

This is a regulatory need – and a statutory requirement – for the spreadsheet, but there was an initial expectation that having such things out in the open would be good for current and prospective students too. As the initial consultation on the regulatory framework put it:

This new system will give students confidence in those providers on the register”

Confidence, for instance, that the regulator does not have any fundamental questions about the fitness for purpose of what the provider offers – in terms of quality and standards (the B condition of regulation ) or even financial stability (the D condition). If OfS did have a concern, a specific condition of registration would be displayed on the register for the world to see.

You don’t need me to tell you it doesn’t quite work like that.

Principles-based

The new “principles-based” gloss on the regulatory framework meshes uneasily with the information-based underpinnings. Facilitating the smooth operation of the market requires the publication of a fair amount of information, and the use – as Bloomsbury found out – of a set of key requirements based on this information. Famously, the cut off points for performance that could confirm or deny registration were not published before they were needed in court. The poetry of principles would allow OfS to make a nuanced decision – easier to do, but harder to defend. The prose of metrics and indicators lends a scientific air to choices made by the Registration Team.

So this consultation sets out what OfS would expect to publish about each provider, and seeks affirmation that regulatory decisions and regulatory compliance should be visible – again:

Visibility provides confidence in the regulatory system and this is in the interests of the public, of any current or potential students, and of other providers that have satisfied the OfS’s regulatory requirements.”

This has been tested in the courts (the Barking & Dagenham College case in 2019). In terms of decisions, OfS is required in HERA to publish:

• Decisions about registration
• Decisions about specific authorisations (registration levels, fee limits, degree awarding powers, use of university title, validation arrangements)
• Decisions that vary these registrations or authorisations – including a list of de-registrations and associated transitional provisions.

The regulator also chooses to publish details of decisions made by others, such as whether a provider is also regulated by ESFA, or on the Home Office (Tier 4) register, or is accredited by DfE to deliver initial teacher training, or the outcomes of QAA reviews.

There are also decisions made by OfS itself that are not required by HERA that are published – most notably if it imposes conditions of registration or sanctions. It also publishes data about providers, and decisions to refuse registration, on a case by case basis. These customary but not mandatory publications are among those that have provoked concern and legal challenges – sharing information that a provider has been sanctioned based on poor quality provision is unlikely to be of benefit to the provider in question.

What could change

The new proposals attempt to offer clarity about what information the regulator will or will not publish about a provider. For instance, the OfS would not publish information about:

• Internal data on a provider’s “risk profile”
• Information on “enhanced monitoring requirements” (though the use of these is to be minimised).
• Information from third parties or whistleblowers, except in an anonymised form if relevant.
• Information about investigations into potential non-compliance.

The table at Annex B of the consultation contains mode detail on what would be published. While this isn’t a big shift in publication plans, it puts what OfS does on a clearer footing. A provider could no longer be surprised by an unexpected publication (even though, if it had been paying attention, it should not be surprised by what is currently done.

All fair enough so far.

Annex C

The fun always starts at Annex C. Here we get into the weeds of how the tidy, principles-based, approach to information sharing meets messy reality. OfS can make exceptions to the general policies described above, and most of these are based on the “have regard to” bits of HERA. If you are recalling that OfS is quite keen not to “have regard to” things like institutional autonomy over recruitment practices then this may cause you to raise an eyebrow.

The Public Sector Equality Duty is another reason to diverge, as is – concerningly – guidance issued by the Secretary of State. And then there’s a whole list of other factors, though a cheeky footnote reminds us that this is not an exhaustive list. We start with:

• Relevant case law
• The student interest – covering prospective and current student information needs, the promotion of quality in higher education, and exemplars of information that could be acted on if submitted by students – which is balanced against the need to keep providers viable and not to damage provider or course reputations
• The public interest – general aspirations towards transparency, and encouraging whistleblowing and information submission – as balanced against things that might make it difficult to regulate, might identify individuals, might prejudice investigations where there are doubts concerning accuracy and reliability (!), and commercial in confidence information.
• The provider interest – encouraging compliance, demonstrating that action is taken on non-compliance, and where publication may have a positive impact – against damage to a provider’s commercial interests, to an owner’s commercial interests, or a provider’s staff.

In essence

It feels like OfS is committing to publish a quite detailed list of information about regulating HE except where it decides it doesn’t want to. This is pretty much the status quo – publication decisions will always be made on a case by case basis, and (as we saw with Bloomsbury) OfS will fight and lose court cases where it gets these decisions wrong.

I’ve got a lot of time for regulatory clarity on what we could expect to see if, for example, there are financial concerns about a provider (such as the nine FE colleges on the OfS register that have a “financial health notice to improve” from ESFA), and although the design of the OfS and the register suggested that these would be published, this has never happened.

The Annex C considerations suggest that it never will.