Happy new regulatory regime

The architects of every successive higher education quality assurance regime since the early 1990s have made claims that, somehow, the impact of the accountability measures introduced will be less burdensome for universities than previously. It has never been true before and, looking forward to the new Office for Students regime; it looks a particularly unlikely prospect now. A previous post expressed some anxiety about our regulated future, and things aren’t looking much better a few months on.

And while the Chair, Chief Executive and staff of the nascent Office for Students will have begun to analyse responses to the recent consultation over Christmas, it is difficult to imagine the results of this resulting in anything other than a growth in sector regulation. At least in the short to medium term.

Why the long face?

But why the pessimism you may ask, especially given the bold statement in the preamble to the Green Paper, Fulfilling our Potential: Teaching Excellence, Social Mobility and Student Choice, published in November 2015:

This consultation proposes a new single gateway for entry to the sector, which would create a common system for all providers. It sets out proposed new architecture for the higher education system, to reflect the way higher education is now funded by students, and to reduce the regulatory burden on the sector.

The Minister Jo Johnson’s foreword to the document adds:

We will establish a sector regulator that has a clear remit to champion value for money and the student interest in its decisions: the new Office for Students. We will do this while reducing the overall burden of regulation and the number of public bodies in the sector.

And then the full document sets out the principles for reform:

4. In creating a simpler and more efficient higher education system architecture and regulatory framework the Government will:
– Ensure the system promotes the interests of students, employers and taxpayers to ensure value for their investment in education
– Create an open, market-based and affordable system, with more competition and innovation, and a level playing field for new providers
– Maintain the highest quality of higher education, safeguarding the strong international reputation of English providers
– Reduce the regulatory and administrative cost and burden, adopting a risk-based approach while improving accountability to students
– Protect the institutional autonomy and academic freedom that has underpinned the success of English higher education
– Require transparency from providers so that students, employers and taxpayers have the information to hold providers accountable. (Green Paper p57)

While these clear aspirations are set out in the Green Paper the reality is that the only appearance in the subsequent Bill or indeed the final Higher Education and Research Act itself relates to a desire to reduce the amount of information collected from institutions.

The Bill states that the new Office for Students will “have regard to the desirability of reducing the burdens on such providers relating to the collection of information.”

And the Act, in referring to the designated data collection body, notes:

64

(8) In performing the duty under subsection (1)(a), the relevant body must—
(a) cooperate with other persons who collect information from registered higher education providers, and
(b) have regard to the desirability of reducing the burdens on such providers relating to the collection of information.
(9) In carrying out other functions under this section, the OfS and the designated body must have regard to the desirability of reducing the burdens described in subsection (8)(b).

This is welcome, but hardly a significant impact on the regulatory burden. The Autumn 2017 Consultation on the OfS Securing student success: risk-based regulation for teaching excellence, social mobility and informed choice in higher education appears to offer more though and highlights a range of areas where it is proposed that the new Office will be concerned with reducing burden:

the monitoring and assessment of providers will avoid detailed and burdensome assessments or ad hoc demands for information where there is not a justification for this in terms of risk of breaching conditions (and thus of risk to students). (Paragraph 37)

The OfS’s approach to risk-based regulation means that providers that do not pose specific risks, regardless of the age or corporate form, will only be subject to light touch monitoring. This means that there is no need for annual re-designation for student support, or annual reviews involving lengthy returns. (109e)

[To access research grant sources, registered providers] will need to meet criteria specified for “Independent Research Organisations” (IRO) by UKRI for access to Research Council funding. This will involve a separate validation process, although the OfS and UKRI will seek to coordinate and reduce duplication wherever possible, and the OfS will work with UKRI as they develop their process to minimise any burden on providers. (182)

In developing the OfS’s proposed approach to risk assessment, the following considerations have been taken into account:
1. the need to identify and respond to increased risk to student outcomes and value for money before risk crystallises and registration conditions are breached
2. the OfS’s duty to be proportionate in its regulation of providers and its aim to reduce regulatory burden where possible whilst ensuring that action can be taken, where required, by its statutory duties (212)

The provision of reliable and timely data to the OfS and the DDB is central to a light-touch, risk-based and proportionate approach to monitoring and regulation working effectively. This data requirement is therefore not intended as a regulatory burden upon providers but rather they will provide the information that then allows the OfS to be an effective and proportionate regulator. It is anticipated this data will be largely quantitative and generated as a result of a provider’s existing management functions, minimising the burden upon providers and allowing for greater consistency, comparability and objectivity when looking across a range of providers. (242)

Strong and effective relationships with other organisations will be essential to the OfS and its stewardship of the sector. The OfS will wish to draw on and share, consistently with its statutory powers and obligations, best regulatory thinking and practice, not only in determining the regulatory framework, but in the ongoing delivery of its regulatory functions. (324)

Providers with an existing Tier 4 licence will need to continue to have educational oversight checks conducted during 2018/19 to maintain their licence and, as necessary, will need to reapply for their Tier 4 licence if it expires in 2018/19. The OfS will seek to avoid conflict between these educational oversight checks and those being carried out for entry to the register to reduce the administrative burden upon providers. (415)

For providers currently regulated by HEFCE or by DfE, OfS will use and assess existing evidence during the registration process. For example, the financial information provided during the annual accountability return or for annual re-designation, and the outcomes of recent quality assessment activity will be used to assess compliance with the initial registration conditions. Providers will also have to demonstrate that they comply with new initial registration conditions, for example to have in place an appropriate student protection plan, for which existing evidence does not exist. (420)

The document argues that this approach is intended to ensure that OfS will have available the evidence it requires to assess each institution’s compliance with the initial registration conditions but to do so in a way that minimises the regulatory burden and should not be asked to provide similar pieces of evidence twice.

Extra, extra!

While the aspirations are welcome, it is impossible to escape the conclusion that the totality of the new regulatory framework amounts to a significant additional burden on institutions.

The new framework as set out includes the following additional elements

  • The initial registration process is likely to place a considerable burden on institutions which will have to submit a range of evidence proving they meet baseline requirements across all initial registration conditions and undergo a quality review by the Designated Quality Body, with a strong track record counting for little.
  • With the OfS acting as a market regulator, protecting students rather than institutions but with a very narrow perspective (such as focusing on arrangements for student transfer) the OfS will be “unapologetic and decisive wherever it needs to intervene”.
  • Subject level TEF, building on institutional TEF.
  • Registration requirements include mandatory TEF participation, requirements to address grade inflation and publishing a statement on “value for money”.
  • The consultation suggests teaching grants may in future be used as a regulatory lever.
  • While freedom of speech requirements seem to align with current legal framework, there is a threat to name and shame institutions where there is a perceived problem. (And there have been a LOT of perceived problems aired in the last few months.)
  • The introduction of random annual sampling of providers.
  • A greater data reporting burden.
  • The requirement to develop a student protection plan.
  • Additional governance reporting requirements around senior staff pay.

A recent HEFCE-commissioned report from KPMG put the total cost of quality assurance and quality assessment compliance at over £1B for English universities or 8% of teaching budgets. This is before the additional OfS requirements listed above. It does sound like it is going to get even more costly.

As UUK Chief Executive Alistair Jarvis commented about the consultation document in a recent piece in THE:

The tone of the document is, in places, confrontational and appears preoccupied by short-term political concerns rather than the larger long-term task of creating a credible, independent regulator.

The long view

So how does this all shape up in relation to previous quality assurance and accountability efforts? Roger Brown, Emeritus Professor of Higher Education Policy, Liverpool Hope University, in a forthcoming book chapter entitled Changing Patterns of Accountability in the UK – from QA to TEF, discusses the main changes in quality assurance in the UK, and specifically England, between 1992 and March 2017.

This excellent chapter summarises the main developments in quality assurance and accountability over the period, offers an analysis of the causes and discusses changes in the balance of accountability. Brown quotes Lindop (1985)

The best safeguard of academic standards is not external validation or any other form of external control, but the growth of the teaching institution as a self-critical academic community.

A message that has been studiously ignored by legislators in the 30 years since. Brown’s central argument is that accountability for quality in English higher education is

shifting away from the academy to a combination of increased accountability to the state and the market, with uncertain but probably damaging impacts on both quality assurance and quality.

He identifies three main forms of accountability for quality in higher education:

  • Accountability to the academic community collectively, through the representative bodies of institutions, sector agencies, subject and professional groupings and networks and their agents, as well as to the academic profession generally;
  • Accountability to the state or its agents, through reporting, inspection or regulation in some form;
  • Accountability to the market: the ‘consumers’ or ‘users’ of higher education ‘services’.

He also follows Stensaker and Harvey (2011) in using a three-dimensional approach to analysing accountability in a global perspective:

  • Power: what accountability schemes look like, why they are established, who are the key actors;
  • Quality: how the information generated from such schemes is enacted and interpreted, how these interpretations may change the norms and values of higher education;
  • Trust: whether and how accountability schemes enhance the legitimacy of the sector, not least in an international setting.

The article takes this approach in clinically dissecting the recent developments in quality and accountability. He knows this stuff inside out. It is unarguably the case, as Brown puts it himself, he “has probably read and written more about quality assurance in UK higher education than any other single individual.” He argues that there is one over-riding thing that emerges clearly from examining the main changes in the external quality assurance of English higher education since 1992 – it is the way in which accountability to both the state and the market has gradually risen at the expense of the academy.

Moreover, he observes, quoting Brown and Bekhradnia (2013), that in spite of repeated pledges to reduce the ‘burden’ of regulation, both the number of different regulatory bodies with which universities have to deal and the number of separate regulatory frameworks, have steadily increased since 1992. It’s a world away from Lindop.

And, despite the very latest assertions, the weight of accountability demands are going to mean that the burden on universities is unlikely to be reduced. Rather the list of additional requirements to be instituted by the OfS is going to mean a substantially increased regulatory burden, at least initially.

A beast of a burden

If I were to provide a crude graph of the growth in regulatory impact on English universities over the past 30 years, I think it would look something like this. Note that the numbers here are merely a subjective indicator of additional regulatory steps rather than any meaningful measurement of the actual growth in regulation, but you get the general idea (and I’ve only named it to ensure no-one takes it too seriously):

Pretty grim, isn’t it? And the best thing is that institutions are all going to have to pay the OfS substantial sums of money for the privilege of all of this additional regulation. However, if the promise of the OfS to reduce the regulatory burden over time were to be delivered, it would mean that the next bar on the graph would show a decline. Let’s hope so.

Happy new regulatory regime.

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