Hate to say we told you so

So here we are.

For years Independent Higher Education has raised privately and then publicly our growing concerns that the OfS registration process is not fit for purpose.

Deadlines repeatedly missed. Months without applications being acknowledged let alone progressed. Agonising delays have sadly become the norm, leaving thousands of students without maintenance funding, disabled students allowance or tuition fee loans for all or parts of their courses.

In 2023 we predicted that the resignation of the Designated Quality Body would slow down registration even further, and raised the red flag that OfS was not equipped to do the jobs of both regulator and quality assessor.

Now the Office for Students has declared that the task our Parliament entrusted it with in 2017 is too difficult, that there is not enough resource for it to support providers in financial crisis alongside its other statutory duties.

Backdated

The decision to suspend registration and DAPs processes until late in 2025 is a clear enough dereliction of their statutory duty. But to extend this to providers already in the process, effectively backdating this decision to the spring of 2024, is completely unjustifiable.

In taking this step, what the OfS is actually doing is picking winners and losers: deciding which providers are worth prioritising for financial sustainability, which students are deserving of the protection of the regulator and the funding to support their studies, and which are not. There has been no discussion about how to protect these students from the consequences of this decision. No evaluation of the impact on students at all.

IHE has always believed that the first priority of the OfS when it was established should have been to bring as many providers as possible within its regulatory reach so that every student gets the benefits and protections promised for a regulated sector. Instead, as we set out in our evidence to the House of Lords inquiry last year, the hundreds of providers still left outside of the regulatory framework stand as a testament to its failure to achieve this.

The franchise issue

More than 250 providers in England offer UK degrees in partnership with a university but are not registered with the OfS. Their students are mostly invisible in the data and in regulation, and only recently has any attempt been made to change this. At least another 300 providers offer programmes that should be considered to be under the purview of the OfS, but no attempt has been made to contact them, let alone ensure that registration offers sufficient benefits to incentivise their participation, or to create streamlined and efficient enough regulatory processes that are proportionate to their size, scale and needs.

There are more than 700 independent providers of post-compulsory education at Level 4 and above in England who are eligible under HERA to apply for OfS registration, potentially offering their students access to funding and other benefits to support their success. A growing number have asked IHE for our help. Many wish to get ahead of the introduction of the LLE, for which OfS is still the only regulatory game in town. Others simply want their students to gain the protection and benefits of regulated higher education that is their right.

More and more registered providers have been applying for Degree Awarding Powers lately, taking full responsibility for their academic standards partly to escape the rising costs and instability of academic partnerships. For these providers there is now no clear way forward, no appeals process, no commitment to engage with them to limit the damage from this decision, and no assurance that the path from August will be any smoother. Several will now face considerable additional costs from the need to extend partnership contracts and undergo unplanned revalidation processes.

In whose interest?

While the financial challenges of universities today are well publicised, and it is right that the regulator does all it can to protect students from any institutional closure, this cannot justify such transparent prioritisation of one set of students’ interests over another. Given the significant and growing role that independent providers play in extending access to higher education to underrepresented groups, there is a real risk that this decision could lead to indirect discrimination and further breaches of the OfS’s duties under the Equality Act.

Protecting students from the consequences of financial stresses in the funding model is vitally important work, but equally important is that the English higher education system is seen by the public, by providers, by investors and by international markets as a place where the rules are clear, decision making is transparent, institutions are resilient and the regulatory framework is consistent and fair. This is not the message they will be hearing today.

The significant sums of money wasted on applications that will be out of date before they can be submitted, and the opportunity costs that will arise from unplanned disruption and delay to institutional strategies, will hit providers hard. The OfS will itself now be responsible for putting the financial sustainability of institutions at risk, which will be corrosive to its future credibility. If government policy has created a situation where the regulator feels that it cannot do the essential job it was given by Parliament, then government should intervene to fix it – not allow the costs of this failure to be paid by those who did nothing to earn it.

A troubling precedent

What is perhaps most worrying of all is that the OfS board seems to believe they can simply disapply their core statutory duties as determined by parliament, whenever it suits them. This is troubling as a precedent. The OfS has clear obligations and commitments under the Higher Education and Research Act 2017, and the first such commitment is to register providers who apply to it in the manner specified and who meet the initial conditions of registration. In a startling example of legal gymnastics, the OfS has now decreed that “the specified manner” be interpreted as “not in the period between 26 November 2024 and 1 August 2025”.

Legal scholars and linguists may disagree on the validity of such creative interpretation of the word “manner”. Certainly, it is not the manner to which we are accustomed.

The OfS should at the very least reverse its unjust decision to suspend the processing of applications currently in progress. Even if we accept the tortured legal justification for a moratorium on new applicants, this does not extend to applications already received, the suspension of the assessment of which appears to be unsupported in law. OfS should instead engage these providers in piloting more efficient registration processes, to enable them to experience a positive end to this protracted process.

We have invited OfS to work urgently with IHE, other sector representatives and the Department for Education to find a different solution to their apparent resourcing crisis which will allow the resumption of critical regulatory processes as soon as possible.

We owe it to the students who were unaware that their future rights and protections were to be conditional on the arbitrary assessment guillotine of a regulator which seems interested only in taking partial responsibility for the sector it was tasked with regulating in full.