David Kernohan is Deputy Editor of Wonkhe

Jim is an Associate Editor at Wonkhe

The Office for Students (OfS) has published the papers from its December board meeting, and as usual they contain helpful clues on what’s going on with the regulation of higher education providers in England.

Excitement includes the uneasy handover from one director for fair access and participation to another, where OfS is at on free speech ahead of getting beefed up powers in a Bill, and (yet) another update on Data Futures.

Minutes from September 2021

We covered most of this when we looked at the papers for September’s meeting, but a few interesting nuggets popped up in discussion.

As part of the planning for the implementation of the Lifelong Loan Entitlement (LLE), an OfS Challenge Competition had been launched for providers to bid for funding to develop short courses – and for those moaning about the deadlines, it was recognised that the timescales for this were “challenging” but this was “necessary” due to the need to gather learning to inform the implementation of the LLE – which we now know is going to need legislation all of its own, given the lack of any detail in the actual Skills Bill.

If you’ve been following the ongoing saga of everyone assuming that OfS regulates in relation to mental health – but actually doesn’t really – you’ll be interested to learn that it is continuing its work in relation to suicide prevention and student mental health, and is exploring options for “further intervention” in this area, which apparently could extend from setting expectations, to gathering and publicising student feedback through NSS, and measures to promote good practice.

We covered Chris Millward’s paper on access and participation in our review of September’s papers. In the discussion it was suggested that providers would “need to assess the capabilities of incoming students” and focus their catch-up activities on those that need the most support, but it’s not clear who said that and whether OfS ever made that helpful suggestion in public. The minutes also note someone suggesting that OfS’s work on access and participation “should align with the government’s wider plans for post-18 education”, if only we knew what they were.

Apparently, someone said that the aim of outreach work with schools and colleges is to “improve grades” and “shift family expectations” – although someone else said that caution was needed on how much we can expect providers to improve attainment in schools. Apparently providers can do more to “widen the funnel”, which sounds like a fun title for a workshop.

Tellingly, the minutes record that “although the HE sector to play an important part in the government’s levelling up agenda through providing education and encouraging people to stay in the region, the OfS does not currently have the levers to manage the market in this way and to make it a focus of its access and participation work” – although outreach mapping (since published) looks at any gaps in support provided for students from moderate backgrounds falling between those classed as advantaged and disadvantaged.

You’ll recall that there was also an (exempt from publication) paper to the September board on freedom of speech, and we do at least see some of the points made in the discussion.

Apparently someone said that free speech is essential for higher education, and should be defended across the board with all views being allowed, subject to the constraints of the law. The problem is that somebody also said that a university should be a place where people can debate and discuss issues in a “structured” way that leads to a better society, and that it is important that students have the opportunity to learn to debate complex and difficult issues in a “nuanced” way. Isn’t half the problem that structure and nuance require behavioural rules that some argue restrict free speech? And haven’t we established that some speech is technically “lawful” but beyond the pale in an academic setting?

There’s then a few paragraphs which we’re calling “the Sussex sections”, because they note that the board took the view that concerns about free speech were too important to wait for the free speech Bill to be enacted – and it was important for OfS to continue to use its existing powers. The minutes record an explicit recommendation from the executive to proceed with using OfS’ current powers – but that in doing so it “will be important to choose cases that incentivise compliance now and in the future”.

That “make an example of them” justification for landing on some cases rather than others is one we heard from Susan Lapworth (OfS Director of Regulation) last year – but it’s interesting that the board requested “further discussion” about the criteria that would be used to identify cases OfS would pursue at a future meeting.

In the discussion on the financial sustainability of providers, it was noted that changes and events that could impact on the sector such as a rise in energy prices, a weak pound and the appetite of the banks to lend to providers, will be used to inform modelling and monitoring. That makes sense – but there’s also the ongoing issue of what OfS, DfE and others expect universities (and their income streams) to be responsible for when it comes to students and wider society – an issue we looked at on the site here.

Chief executive’s report

Nicola Dandridge (the outgoing Chief Executive) takes her customary turn doing the “summary of main activity”. The main thing the OfS has been up to appears to be assessing consultation responses to the main quality and standards consultation. The board got an update (item 5.1), we – alas – do not see this in the papers but a consultation response publication is planned for late January 2021. Consultations on the B3 baseline, TEF, and data indicators were all in the pipeline (at the time of the meeting) for January 2021.

There’s a whole chunk on the University of Sussex investigation – including the careful caveat that:

The fact that we are conducting an investigation should not be interpreted as indicating that any form of wrongdoing has actually taken place.

And it does appear that the investigation was (unusually) publicised by OfS after a (HERA s78) request for information that came in from DfE after a parliamentary question in the House of Lords. OfS is an independent regulatory body, just to be clear.

Hilariously, Dandridge told the Board that a Augar review response could be expected “in the coming weeks”.

Among the items in a fairly dull list of things that OfS has done, we learn that James Wharton (who follows the government whip in the House of Lords) will chair the panel that gets to decide whether or not a specialist provider is “world class”. Nolan Smith will be deputy chair. And there’s bad news if you bid for OfS capital and bid for an amount close to the £3m cap – OfS has decided to lower that cap to £2m, meaning it can support more projects overall but might not cover the full extent of that lab refurbishment you had your eye on.

In other tiny and insignificant amounts of money news, there is a £10m pot that will be used to support providers who saw increases in undergraduate student numbers in 2021-22 due to the use of centre assessed grades, which will be allocated based on this year’s HESES returns. There doesn’t appear to be anything at all to support providers who suffered financially following the consequent decrease in student numbers elsewhere.

Moving to the world of reviewing things the Board got a heads up over the National Audit Office study into sector financial stability – and the final report of the findings of OfS’s own triennial review of the QAA will go to the Quality Assessment Committee in spring 2022.

Annex A (a review of comms activity) cannot be published for copyright reasons and Annex B (the regular report on risk) is considered exempt from publication due to locally sensitive information. However, summary risk information will be published in OfS’ annual report and accounts.

Discussion with the Minister of State (Minister for Higher and Further Education)

How exciting! There was a discussion involving Michelle Donelan, but sadly no papers or slide decks to go with it. Maybe she explained how the draft Freedom of Speech Higher Education Bill would have had any impact on the University of Sussex case, or maybe she offered some detail on Lifelong Loan Entitlement consultation plans.

Emerging outcomes of July 2021 quality and standards consultation

There was a presentation to the board on the main themes emerging from the responses to the phase two consultation on quality and standards conditions – but as noted above we’ll have to wait until the outcomes of that bit of policy development work are published (in January) to find out what was presented.

DfE guidance letter on access and participation

Annex A: DfE guidance letter

All we get to see here is a short paper noting correspondence from DfE, with the recommendation that the board notes the contents of the letter but parks discussion to 3 February when the new Director for Fair Access will be at the meeting. The major changes in direction required here were hopefully not lost on the board – we’ll send them the analysis we did in November just in case.

Update on data futures

Another two million pounds of core funding finds its way to the beleaguered data collection refresh programme – this, of course, happened before the recently announced consultation set things back so one can only imagine that some of the “contingency” and “rolled-over underspend” needs to be brought in to play at this point. On that, OfS notes:

[I]t is not yet clear the extent to which approaches to in-year data collection will diverge between the nations. Notwithstanding the flexibility in the solution, any divergence or radical change to the approach will lead to an overall increase in HESA’s costs in delivering the information duties for 2023-24, these increased costs could be met through grant funding by the OfS and the devolved administrations or, in England at least and subject to compliance with section 66 of HERA, increased subscription funding.

If you change the requirements during the development process, in other words, costs will rise. Is the bit of OfS that does stuff that keeps the minister happy not speaking to the bit that actually delivers on long term projects? We think we should be told.

Anyway, the Board will get to come to a decision on the future funding of data futures if one of the more complex and England-specific options is chosen.

Otherwise, the project is progressing well – everyone seems happy with the revised governance and oversight plans. The beta phase is on track for early 2022 – and, although recruitment has been tricky (the delay in filling posts is why we see an underspend), HESA and Jisc are on top of the situation. Wonderfully, the programme overall is at an Amber level of risk, but the table in Annex A makes it clear that the main risk is that OfS might change what they are asking for.

Finance report

An update was given to the board on OfS’ Programme and Administration funding. Loc Sen, sadly. We’d be keen to see how that 15 per cent cut is having an impact on OfS capacity and activity.

Report from the Student Panel

This is always a fun read. The panel had had a meeting in late October, and one of the two big items on the agenda was the OfS strategy. Amusingly, someone is recorded as having suggested that if the strategy was successful then by the end of the strategic period, every student would know about OfS. A “contentment” question with OfS in the National Student Survey can’t be far away.

Helpfully, the panel also argued that the strategy should include a commitment to support students to understand their consumer rights and what they are entitled to, a commitment to restoring the “robustness of assessment” (one of those points that leaves you wondering who thought it wasn’t, and why) and that “there is a tension between our goal on free speech and our goals on harassment and mental health”, and that the equality of opportunity side of the free speech goal should be articulated in a more robust way. On this evidence, it turns out that the student panel is better at articulating the tensions here than the board itself.

The second big item was panellists’ ideas for the refresh of OfS’s student engagement strategy – where the panel (no doubt politely) suggested that OfS should ensure staff are excited to engage students and embed their views into policy development, and said that OfS should aim to work in partnership with students in its policy development. Oh, and the panel had met with Michelle Donelan on 4 November to discuss return to campus and the Lifelong Loan Entitlement, but there’s no detail on what was said.

We still feel some distance from being able to identify impact here, but maybe that’ll be picked up by the new strategy.

Report from the Quality Assessment Committee

Little to say here – the committee received an update on the quality and standards consultation, and discussed the proposed scope for undertaking a review of the QAA as the Designated Quality Body, as it’s required to do under the Higher Education and Research Act.

Report from the Risk and Audit Committee

With the important bits on data futures and OfS’ risk report and risk appetite redacted, not much to see here either, other than a note reminding us (as noted above) that the National Audit Office is running a study examining how well DfE and OfS are protecting students’ and taxpayers’ interests from risks to HE providers’ financial sustainability. The Public Accounts Committee is also involved.

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