Jim is an Associate Editor at Wonkhe

Sometimes when the Office for Students does a thing, you’re left wondering what on earth the question was to which that thing is an answer.

So here’s a thing. A festive press release reaches us from OfS towers with the headline:

Regulator sets out how students can register concerns.

Exciting times. After all, along with rent rebates, education that doesn’t harm their mental health, action on climate change, tuition fee refunds and a dialling down of the marketisation of their universities, top of many a student activist’s list of demands has been a… clearer process for regulatory concern registration.

OfS announcements are sometimes iron fists in velvet gloves, sometimes velvet fists in iron gloves, and sometimes riddles wrapped in a mystery inside a press release. You’re reading the start and you’re thinking maybe this one will turn out be a dramatic intervention designed to reshape the landscape in the interests of students to give them more power – after all, in OfS’ charming (and quite revealing) own words:

Students are not generally sophisticated consumers able to make unaided choices about what and where to study.

Or maybe this will be the moment where OfS makes clear to students what their rights are. Maybe OfS will get some visibility over complaints raised internally at a provider, or maybe fixing the problems that students raise will be extended to students who don’t make a complaint when an institutional failing is discovered by another student’s complaint.

Or maybe – because remember the regulator can’t be out of touch, it’s the children who are wrong – this is actually just one of those moments where an already baffling regulatory and redress regime is explained like a Brit abroad trying to order a full English by repeating himself, only louder. And all in a handy PDF called “Regulatory advice 18: Notifications about providers from third parties”.

Separately in Santa’s regulatory sack, nature is healing – we have a consultation on OfS’ approach to publishing information about providers (which DK looks at on Wonk Corner), a restart for its consultation on fines, updated guidance on the way OfS will monitor and intervene, and a consultation on new guidance on reportable events. We look at the last two below.

Absolute clarity

Back in mid-October OfS wrote to providers to give a short update on action it was taking in response to outbreaks of Covid-19 at registered providers that included this line:

We will be hosting on our website resources for students on their rights during the pandemic. This will draw together information published by the Competition and Markets Authority, Department for Education, and the Office of the Independent Adjudicator. This is intended to help students navigate the guidance available to them.”

Some weeks went by without any sign of this, and then universities minister Michelle Donelan announced to the Commons Petitions Committee that:

OfS is working on a comms campaign, and a new page is now on its website that pulls together existing guidance on consumer issues.”

We tried very hard to find this elusive material, and eventually we were pointed towards a webpage appeared on the OfS website entitled “Student and consumer protection during the coronavirus (Covid-19) pandemic”, which contains helpful FAQs like:

  • Q: How should my university or college be keeping me updated about how my course will be delivered?
  • A: Your university or college should be keeping you informed about how your course is being delivered.

And stellar expectation management like:

  • Q: What can I expect from my university or college around delivering campus facilities and activities that are normally part of the higher education experience?
  • A: Your university or college should give you clear information about what you can expect from them over the coming weeks and months and they should be able to answer any questions that you have.

One of the frequently asked questions takes you off to another page called “Consumer Benefit Forum” which reveals that the forum (a group comprised of OfS, the Department for Education, the Office of the Independent Adjudicator and the Competition and Markets Authority) has been working on new ways of making students aware of their rights and raising awareness about providers’ internal complaints processes, how students can access these and what the process entails.

So we think that “Regulatory advice 18: Notifications about providers from third parties” is, in part, an answer to that ongoing question on rights, redress and complaints. But it’s not a very good one.

Telling the regulator

The press release informs us that OfS is regularly told about concerns about higher education providers from students, their parents, staff and others – known as “notifications” in the regulatory framework:

For example, students may wish to tell the OfS that they have not received the teaching they were promised, or that their course is being closed without a suitable alternative being offered. A member of staff at a provider may wish to make a notification about the misuse of public funding, or conflicts of interest in the provider’s decision-making processes.

OfS can then investigate further where it receives information suggesting a provider may not be complying with its requirements. Where regulatory action is needed, OfS has powers available – like requiring specific action from universities or colleges, issuing fines, or removing providers from the register.

But we knew that already. Its existing page on the “notifications” process says:

We do, though, welcome information from students and others about a university or college where this is relevant to our regulatory remit. For example, a student may wish to tell us that they haven’t received the teaching they were promised, or that their course is being closed without a suitable alternative being offered. Or a member of staff at a provider may wish to tell us about the misuse of public funding, or conflicts of interest in the provider’s decision-making processes.

And it goes on:

We use the information sent to us as we monitor a provider’s compliance with its conditions of registration. Where we think a notification raises concerns about a provider we will follow-up and, if necessary, consider taking regulatory action.

So the question is whether “Regulatory advice 18” tells us anything new. And we’re not so sure.

Say it slower

First we’re reminded that notifications are a component of OfS’ risk-based approach to regulation – the others being “indicators” (for example of student outcomes or indicators of financial performance), “reportable events” (for example because the provider does not expect to recruit the number of students it had planned with consequences for its financial position) and “additional information” it may have collected. We knew that already.

What we don’t know is what the plan is if certain types of student or certain types of institution were to represent more notifications about similar issues than others. Would OfS ever notice or do anything about it? Don’t we need consistent information coming in about providers to have confidence in the way they’re being regulated?

Next it reminds us that that risk-based approach to regulation means that it focuses regulatory attention on those providers that are at greatest risk of breaching their conditions of registration. We knew that already.

What we don’t know is why in practice that should result in a group of 10 students raising a concern about a micro-provider having it noticed, but 10 students at a university of 50,000 would be a tiny and ignorable ripple in the ocean. Why are student concerns valued in relation to the provider they happen to be in rather than in relation to the risks to them?

We are reminded that OfS is not a complaints handling body, does not have the statutory remit to investigate individual complaints from students, staff or other third parties, and can’t provide individual redress for the notifier. We knew that already.

What we don’t know is why therefore students would bother. What would be their motive? How would they know how to do this? What would they gain by doing this? Do they even know what sorts of things they could raise by doing this? And so on.

And there are bigger questions that are left hanging. Neither OIA nor OfS have any visibility over the volume or nature of complaints being seen within providers that don’t reach the OIA that are quietly settled, or take unacceptably long to resolve, or where the student gives up. The theory here seems to be that the only way OfS would ever know would be if what – students are encouraged to copy OfS in when it makes a complaint? Eh?

We might want to assess OfS’ performance on acting on notifications, but we are notably not told that OfS will be revealing the volume or patterns of notifications it gets, or telling us what they tend to be about, or who they tend to be from. Because this isn’t a process that’s for notifiers. It’s for OfS.

We are told that OfS will be working with students’ unions (and “other student bodies”) to ensure they know what sort of issues can be considered through the notifications process – and how to raise these with the regulator. But let’s be very clear here – simply inviting students’ unions to grass their institution up to the regulator is nowhere near as helpful or powerful as the assertive partnership embodied by the Student Written Submission into the QAA institutional review used to be.

In fact, just imagine the benefits if SUs were invited to reflect on the institution’s performance against the Regulatory Framework every year in a report to both the university and OfS – a report whose sophistication and evidence base could in and of itself be seen as an indication of the quality of support for student engagement within that institution. Sigh.

The press release says that:

Students are at the heart of everything we do.

That may be true, in a kind of benevolent paternalistic kind of way. But if students really aren’t “generally sophisticated consumers able to make unaided choices about what and where to study”, we’d want proposals that make them more powerful. Instead this feels like the latest in a long line of interventions designed to make OfS more powerful instead.

And anyway, maybe beefing up the rhetoric over the notifications process is actually cover – for a reduction in the other sorts of information OfS used to get from something called sampling.

Monitoring and evaluation

As we noted above, there’s two more bits of “say it slower and then they’ll understand” under the tree here – one on monitoring and intervention, and a consultation on new reportable events guidance.

The former (Regulatory advice 15: Monitoring and intervention) is a pretty comprehensive rewrite of a document of the same name from last year – and the main change seems to be the removal of “random sampling” as an approach to monitoring that we saw signalled in that DfE “Reducing bureaucratic burden” policy paper a while back.

That’s a shame. OfS originally committed to operating this sampling process of asking a bunch of questions to about 5 per cent of providers a year for good reasons – to give assurance about the effectiveness of its ongoing monitoring approaches, to replace scheduled cyclical reviews with an approach that would incentivise ongoing compliance, and to review in detail how individual providers meet their conditions to help OfS identify and recognise good practice.

But not only are its intel tools being scaled back, its interventions are too. The use of “enhanced monitoring” as a tool is to be significantly reduced – we knew that was coming. But for some reason we’ve also lost from the list of four escalating levels of mitigation what the old approach called a “formal communication”, where OfS would write to a provider where it considered that there was evidence of an increased risk of a future breach of a condition. The old guidance expected the governing body of a provider to carefully consider the content of a formal communication (and so by implication be told), but that’s now gone, which feels like a shame.

So cut and shut all that with the press release headline, and we are effectively being told that students are able to notify OfS of things, but overall it will know less than it used to, and do less about it. That’s partly because of the “tone” issue that CEO Nicola Dandridge was talking about on the site earlier in the year – here OfS says that while regulation in the student interest requires a degree of distance from the sector it regulates, it will seek an “open and trusting” relationship with the providers it regulates based on “mutual respect”.

Ah yes. That “mutual respect” you show by publishing documents like this on December 14 in the middle of a pandemic.

Catch 22

There’s probably no better example of the tone issue, at least at sector level, than Regulatory Advice 16 on reportable events, which we also covered in October 2019 when it was published. Notable for its Kafka-esque damned if you do, damned if you don’t, and damned if you dare ask kind of vibe, this one requires a formal consultation because it’s proposing to change the definition of a “reportable event” from:

any event or circumstance that, in the judgement of the OfS, materially affects or could materially affect the provider’s legal form or business model, and/or its willingness or ability to comply with its conditions of registration.

…to the apparently clearer:

any event or matter that, in the reasonable judgement of the OfS, negatively affects or could negatively affect the provider’s eligibility for registration with the OfS, the provider’s ability to comply with its conditions of registration, or the provider’s eligibility for degree awarding powers or university title, or its ability to comply with the criteria for degree awarding powers.”

There’s some decent reasoning here – OfS says that relating reportable events to these three areas explicitly should allow a provider to understand the type of things that are likely to be within scope for reporting, because they relate directly to the provider’s regulatory obligations.

Whether it delivers the kind of practical clarity in understanding intended is another matter. In the end this is about providers fessing things up, and the bafflement all year has been what is big or serious enough to warrant said fessing when last October’s guidance said that over reporting might be a problem, and that asking advice on what should and shouldn’t be reported would also be a problem.

That’s now all been softened, and the test OfS will apply to providers’ reporting decisions is included in the proposed new definition as:

Whether a reasonable provider, intent on complying with all of its conditions of registration and acting in the interests of students and taxpayers (rather than in its own commercial, reputational or other interests), would consider the event or matter to be material”.

You can see what it’s trying to do – it’s basically a Clapham Omnibus “reasonableness” test – and says that the prioritisation of the interests of students and taxpayers above the provider’s own commercial, reputational or other interests is important in a context in which it has seen examples of under-reporting, either where a clearly-relevant matter is not reported at all, or where a matter is reported in an opaque way that serves to minimise its significance.

But without a bunch of examples of over reporting, under reporting and just-right reporting, as the next wondrous paragraph illustrates, OfS may always find it difficult make this stuff clear when it stresses being risk and principles-based:

The new definition clarifies the way in which materiality should be considered by a provider in reaching decisions about what to report. The way in which the concept of “materiality” is used in the current definition has been reported as presenting particular challenges for providers in making reporting decisions. The proposed new definition removes the concept of “materiality” from the overarching definition and allows it to be used instead as part of the test the OfS will use to judge whether a provider has met its reporting obligations.

So should students notify OfS of things? Who knows, but they can. Should providers notify OfS of things? Well. It depends. And if this is important enough to publish on December 14, why not re-start the delayed harassment and sexual misconduct consultation so that actual students can be better protected in time for next academic year? I don’t know.

And with that, the sector was moved very deeply by the absolute simplicity of the guidance, and let out a respectful whistle.

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