From April 2018 the Office for Students (OfS) will be the regulatory body for the English higher education sector. This guide attempts to set out as clearly as possible what OfS is, what it does, as well as the context for it being created.
OfS was established by HERA (the Higher Education and Research Act 2017), a bill first brought before parliament in 2016 following thinking which had been set out in green and white papers.
With the rapid growth of new types of providers in higher education, including FE colleges and alternative (private) providers, regulation had become fragmented with responsibilities lying between multiple bodies. The government wanted a simplified landscape that would bring many of the functions of HEFCE, OFFA, the Department for Education and the Privy Council together into a single organisation.
OfS is a regulator of the English HE marketplace – designed to encourage the growth of a competitive market that informs student choice, to intervene when the market is failing in areas such as equal access, and protect the interest of its consumers (students, government, and wider society).
The Office for Students is so named to visibly put students at the heart of the market and ensure that it functions for the students. However, the low level of student representation in OfS has been controversial since its inception. It has appointed a student board member and established a student panel. However, NUS (the national body that represents students) has been kept at arm’s length with no formal appointments to any of OfS’s structures.
Michael Barber is the chair of OfS and in turn, the new board, which had the final appointments announced on New Year’s Day, with much media attention on the controversial appointment of Toby Young. In David Kernohan’s recent article, he argues that if you look at the Board as a whole there is a noticeable move away from the use of existing higher education expertise towards external appointments with legal and other regulatory backgrounds.
Furthermore, recent job postings indicate the ambition for OfS to be a more data-driven and legally-led market regulator. However, the appointment of Nicola Dandridge as Chief Executive has eased some concern in mainstream institutions, given her extensive experience in UK HE as the chief executive of Universities UK.
OfS is charged with regulating the HE market without undermining the core principles of autonomy and co-regulation. Despite recent legislation making it clear that OfS must ensure the autonomy of institutions, many feel its powers and relationship with government, particularly through the Secretary of State, will make this difficult.
Autonomy is the idea that higher education institutions should have freedom in the delivery of their core purposes of teaching and research. Consequently, HE institutions should be able to develop their own curricula, pedagogy and academic practice free from direct government control.
Co-regulation – to ensure autonomy, the higher education sector sets its own regulatory terms and individual institutions scrutinise each other through co-regulation, which has traditionally been delivered with the help of a third-party body. Co-regulation relies on a network of institutional peers to collaborate and ensure the sector-agreed standards are met.
How will OfS regulate the market?
Registration (and fees)
OfS will manage and maintain a list of registered English higher education providers that must be publicly available. There are three categories of registration, which are linked to accessing public funding. Fundamentally, the more public funding an institution receives, the more regulatory conditions exist:
- Basic – Those that want to be recognised as a higher education provider with no grants or access to public funding.
- Approved – Those that want access to public funding, such as student loans or tier 4 licences but not grants or fee loans, meaning there is no cap on their fees.
- Approved (with fee cap) – Those that want access to public funding and grants, such as teaching and research grants. This category of institutions will have their fees capped.
HE providers will also now be charged a fee to cover the administrative costs for OfS to manage the register. In HEFCE, these costs were previously covered directly by government grants. We recently covered the uncertainty the costs could present to the sector.
Degree Awarding Powers (DAP) and University Title
A fundamental part of OfS’s role is to grow the market, and it will be able to grant a provider degree awarding powers (and revoke these powers). Previously, applying for degree awarding powers was a difficult process, requiring a long track-record of delivering higher education, generally enabled through course-level validation from an existing Degree Awarding Body (DAB). In theory, this track record ensured that a new provider learned how to deliver HE from an established provider. We recently covered the complexities and risks of the validation process.
The issue for DfE, and in turn OfS, is that such arrangements are arguably anti-competitive on two fronts:
- They require a new institution to rely on a potential competitor in the market to establish itself.
- They encourage more uniformity in the higher education sector, with the new provider adopting the same approaches and processes as its validating DAB.
Thus, HERA introduced two additional regulatory functions. The first is for OfS to be the validator of last resort, in cases where a new provider can’t find a willing partner. The second is to award “New Degree Awarding Powers” that don’t rely on a track record. Instead, an institution will have the ability to award degrees for a specified time providing they can show a strong action plan. Following this trial period, they can then receive full degree awarding powers.
Access and participation
The bulk of the work of the Office for Fair Access (OFFA) is expected to continue as the organisation is merged into OfS. The access and participation remit will be led by a legally-mandated Director of Fair Access and Participation, with Chris Millward appointed. The focus is on access plans, which will be part of the registration conditions for Approved (fee cap) institutions, and not much else. The regulatory framework states OfS will be the champion of widening access and will monitor access plans but will not set targets for the sector. How OfS will develop more ‘risk-based innovations’ to widen participation remains unclear.
Quality and standards
HEFCE always held the legal responsibility to assure quality in higher education, but outsourced it through contracts, which mostly went to the Quality Assurance Agency (QAA). Therefore, OfS holding this responsibility is not new. However, instead of outsourcing it to an independent body, such as QAA, it will instead pass these assessment functions to a designated body, for which QAA was the only bidder. This brings a previously independent (and still sector-owned) body closer to government.
How quality is assured in higher education has changed dramatically over the last few years, following a review by HEFCE. OfS has made it clear it isn’t shy of reshaping this system and are showing a particular interest in sector standards, such as degree classifications. These standards fall under the autonomy of degree awarding bodies to set, so activism here has the potential to cause significant upset. In a recent article, I outlined the risks facing quality assurance and standards and the role OfS could play in this.
Students are not average consumers who can return the product if it isn’t what they wanted. They are making a long-term investment in their future, with limited information about the outcome. Thus, the ability for students to move between providers while studying is key to ensuring student choice, so the logic goes. Established sector structures exist, including a credit framework, to allow for recognition of prior learning and credit transfer. But with autonomous providers developing their own curricula, transfers can still be complex to administer. Wonkhe has covered the complexities of credit transfer in great detail.
Data, data, data
Data is key to OfS regulatory functions, with the use of lead indicators to measure institutional performance and measure risks. The appointment of Michael Barber as chair clearly set the agenda for a metrics-based system used elsewhere in government at his behest, an approach known as “deliverology”. OfS will designate a data body – likely to be HESA – to collect, process and publish this data. HESA has undergone significant work with its Data Futures project to grow data capacity within the sector and move closer to more timely data, but not quite “real-time”. We’ll be keeping our eye on the forthcoming OfS data strategy, which will be published this year.
The role of the Secretary of State
HEFCE was an NDPB (non-departmental public body) which received funding from government. Each year it received a grant letter from the Secretary of State outlining how much funding they would receive from the department and priorities were set for HEFCE to focus on with the sector. In practice, this letter was drafted by HEFCE staff in consultation with government.
OfS, however, is answerable to the Secretary of State and sits underneath them, as a NDPB (non-departmental public body). This means that a government minister has the power to give directions, demand advice and require reports from the regulator. The new agency has already been clear that it doesn’t intend to get involved with policy, leaving a much more centralised system under direct government control.
No policymaking, but a growing role?
Following the ‘year of discontent’ in 2017, the HE sector has found itself under increasing scrutiny and criticism from the media and others (cough, Andrew Adonis, cough). The anticipated role of OfS keeps expanding – beyond, arguably, the scope outlined in HERA – to respond to these criticisms. Yet the solutions look both difficult to enforce under the current legislative framework and look lot like the sort of policy that the body was not meant to get dragged in to.
Freedom of speech
Many were surprised to find obligations to ensure freedom of speech in the proposed regulatory framework, and Jo Johnson has outlined that OfS may enforce penalties where expectations are not met. This has been a recent addition to the function of OfS and is as a response of the “generation snowflake” critique of “no platform” and “safe space” approaches to cultural and political debate.
Of course, though OfS has the power to levy fines, it doesn’t have a free speech role enshrined in legislation other than under the Education (no 2) Act of 1986. No amount of boxed text in the regulatory framework consultation, ministerial speeches or newspaper headlines changes the fact that there is very little that the new regulator can actually do around free speech in universities and colleges. It can do even less for concerns about activity in students’ unions.
Value for Money
Although OfS has the remit to promote value for money in HERA, the letter of the law leaves this quite vague. However, an onslaught of criticism has brought vice chancellor pay (particularly) and student debt to the forefront of the national conversation.
HE providers will now need to publicly justify individual salaries over £150,000 to the OfS. However, with vice chancellors’ pay control subject to institutional autonomy, the ability for OfS to act on this issue is also limited. On student debt, although a major review of HE funding on is the horizon, fee levels and student support remain matters for parliament – so a direct regulatory role for OfS in this review is unlikely.
The teaching excellence and student outcomes framework (TEF) is currently managed by HEFCE on behalf of DfE. The regulatory framework consultation proposes that entry into TEF will be a registration condition for Approved category institutions, and so the delivery of TEF will no doubt move to OfS. Recent changes to the TEF include the introduction of metrics on grade inflation, teaching intensity metrics and a reduction of the weight placed on the results of the National Student Survey (NSS).
Graduate labour market
Within the recent industrial strategy, OfS was tasked to “address employer and student needs and expectations in the short, medium and long term – considering the skills gaps that exist today, and anticipating the demands of the future economy.“ This will be delivered by ensuring competition and innovation in the sector as well as general oversight. Despite references to working with other government bodies, there was no mention of the skills function for the new regulatory body in the recent consultation. Gordon McKenzie recently outlined the contradictions OfS presents in light of the Industrial Strategy on Wonkhe.
Ahead of beginning full operation, OfS is now in its shadow form, existing only to digest the responses to the regulatory framework consultation – the outcomes of which we expect in February. The shadow organisation is also currently staffing-up, with a number of key roles being currently advertised, ahead of the rest of its functions coming online in April.
An earlier version of this article suggested that the OfS was a QUANGO not an NDPB. Following comments below we are happy to update the text to clarify that OfS is an NDPB.