Are holes starting to emerge in sector regulation?

As the Office for Students shifts from “get everyone on the register” mode to “ongoing regulation of providers” mode, the open question for wonks is how that will work.

How will it find out if a provider is in breach of a condition of registration? What will it do? And are there holes in the regime that we’ve not yet spotted?

Take consumer law. Over the past week or so, a number of stories have appeared in the press suggesting that a significant proportion of students at the University of Liverpool have been banned from accessing university emails and shut out from campus libraries after failing to pay rent. In response, OfS CEO Nicola Dandridge told the Liverpool Tab that universities should be “mindful of guidance issued by the Competition and Markets Authority in this area which cautions that the blanket use of academic sanctions for non-tuition fee debts may be open to challenge under unfair terms legislation”. But she didn’t mention what OfS itself might do, if anything.

Fair trade mark

Back in the noughties, NUS spent some time petitioning the then Office of Fair Trading (OFT) on what it saw as the unfair link between non-academic debt (for things like rent arrears) and academic sanctions. The OFT rejected universities’ defence of that practice in a report in 2014. The OFT, later to become the Competition and Markets Authority, was so interested that it carried out a wider review which concluded that students were indeed consumers and that consumer protection law applied.

So, given the context, a largely unnoticed paragraph in the 2018 NUS/Unipol accommodation costs survey is interesting. Of the providers they spoke to, 16% of institutions retain the power to forbid non-academic debtors from attending their awards ceremony. An additional 6% do not let them graduate at all. More could be imposing other types of less dramatic academic sanction. Either they aren’t aware of CMA’s widely publicised guidance, or they’re choosing to flout it, waiting for case law to come along instead.

Ministerial pronouncements for well over a decade have tended to stress the consumer aspects of market reforms, but in almost all cases the focus has been on the applicant chooser rather than the disempowered user. The most recent run at getting close has been the OfS regulatory framework in which condition C1 requires providers to demonstrate that in “developing and implementing its policies, procedures and terms and conditions it has given due regard to relevant guidance about how to comply with consumer protection law”.

But the regulatory regime in areas like this, which involve broad duties that are not specific to HE but that apply to it – is a bit of a mess. What if providers give “due regard” but still ignore it? When they register, do providers have to tell the regulator if they’ve chosen to do something different to the guidance? OfS has no role in respect of individual redress, but students can seek redress via the OIA as an alternative to the courts once they have exhausted a provider’s own complaints procedure. We can guess how many students in rent arrears are likely to spot that this technical right may have been breached – and even fewer will have the patience and tenacity to run that particular gauntlet.

If a practice was “widespread and repeated”, the OfS could investigate and take action if it believed C1 was being breached. But what counts as widespread? If a provider pays “due regard” and ignores the guidance anyway, is it in breach? And how would OfS know? Without the routines and systems that were built into the old QAA student written submission process, it would be a bold students’ union that shops its institution to the OfS in the middle of its annual grant negotiation.

Knight of the round table

Apart from having to defend the government’s position on Brexit, new English HE Minister Chris Skidmore has been relatively quiet. So when press releases popped up last week to announce that he would be hosting a round table on disabled students, our interest was naturally piqued. “I believe that we can do more to break down access and participation barriers in higher education”, he said, suggesting that should happen “by focusing on spreading good practice and listening to disabled students about their needs”.

Where had this come from? Elsewhere on the Department for Education site, a research report had been published evaluating the Disabled Students’ Allowance regime. Back in 2015-16, the government cut entitlements to the costs of computer hardware, and then in 2016-17, further central cuts were enabled by transferring the responsibility for less specialist non-medical help for disabled students to providers. The justification was that, under the Equality Act 2010, it was for universities and colleges themselves to provide reasonable adjustments.

Given the changes, DfE had commissioned research. While things haven’t got significantly worse, buried in the report are some stark and sobering findings on provider-level support. Only two-thirds of disabled students agreed that their provider had a positive approach to supporting their learning and less than six in ten felt that their provider had an inclusive approach to designing and delivering teaching and learning. It goes on to identify poorly funded disability support services, variability of understanding and approach amongst academic staff, a lack of  understanding of alternative assessment methods, and inconsistent approaches to the generation and publication of learning resources as key issues.

Deploying the same round table method as that of his predecessors on issues like mental health and freedom of speech, Skidmore’s summit may wall shine a helpful spotlight on some of the issues and generate some action. But what of the providers that won’t play ball? The initiative highlights another potential gap in the regulatory regime that the English sector finds itself in. OfS’ access and participation approach is focussed on outcomes, not entitlements and provision. So if those disabled students that make it to HE overcome a bunch of barriers and succeed, OfS may not notice. Advance HE publishes guidance and advice – but it’s only that. Students could complain to the provider and the OIA if they feel a reasonable adjustment isn’t being deployed. But isn’t the idea of regulation to try to prevent that in the first place?

OfS’s baseline – the stripped back and pared down Quality Code – now barely mentions equality and diversity. Once on the register OfS’ wider regulatory framework suggests that it will judge a provider on “performance” on students with different equality characteristics – outcomes, not entitlements or provision. And while the management and governance condition mentions compliance with legislation and policies on equality and diversity (which presumably includes the Equality Act), the self assessment template that providers were given to register didn’t. And it’s not at all clear how OfS would find out if policies were poor or not being followed. It’s a similar situation when it comes to harassment, sexual misconduct and mental health policies.

More regulation, not less

Clearly, there are registrars and student support functions in excellent universities and colleges that will bemoan the idea of additional regulation in any of these areas. If you’re thinking that, just remember that risk-based regulation isn’t aimed at you. What this is really about is asking ourselves what – albeit in multiple contexts – all students should be able to expect, rather than letting choice and the market decide. There’s an important distinction between baseline (legal) entitlements, measures to improve access and participation outcomes and market-based nice to haves – but it’s a distinction that’s confusing and messy right now, especially to students.

In the consumer rights case, Liverpool is lucky to have a strong students’ guild raising the issue, and the university has said that it’s “working with the guild and others to discuss this and additional support for students in arrears shortly”.

But more broadly across the sector, this is about being clear with students about their rights – and how to secure redress – particularly if the students’ union (if there is one) is underfunded, or the local Citizens’ Advice Bureau is baffled. And when it comes what students on the margins should expect, if we’re keen to ensure that the unit of resource is maintained, we’d do well to champion regulation that exposes those providers that don’t take their responsibilities nearly seriously enough.

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