Jim is an Associate Editor at Wonkhe

Anyone reviewing Office for Students’ CEO Susan Lapworth’s recent appearances at sector conferences should conclude that higher education in England is beset by increased risk.

At her contribution to the Chartered Association of Business Schools annual shindig, Lapworth argued that the regulator can see a range of them – rising costs as a result of inflation, challenges in maintaining and improving facilities and buildings, competitive pressures for UK students, and reliance on income from international students.

She said that looking at the risks in the environment just now, for a small number of institutions the financial picture is “particularly worrying”. She said that quality, financial sustainability and protecting public funding are all areas she would expect to see on institutional risk registers.

In a similar speech to AdvanceHE’s Governance Conference, she asked governors to reflect on financial pressures – and to ask if their universities are doing early thinking about “radical options for transformation, new business models and different ways of doing things”. Maybe there’s some fat left to trim – but it’s more likely that Lapworth means “portfolio reviews”, pathway and course closures, and the reduction of professional service levels to students.

These risks to higher education providers are risks to students too. It has to be objectively less likely that a student that enrolled on a programme this term will experience that which they were promised when compared to September 2022 – more likely that they’ll experience industrial action, more likely that their provider will make dramatic changes to courses and services, more likely that their provider will collapse, and more likely that their course will be thinned out or will close.

Yet those students would never know it from the public pronouncements of risk that OfS requires providers to make to students – the assessment of the risks to the continuation of study that are supposed to be in Student Protection Plans.

The unexpected hit us between the eyes

Over the past four years or so, I’ve developed a habit each time that a large provider announces a significant round of redundancies or a set of course closures. I reach for the “current” SPP – and in pretty much every case, the risk assessment in that SPP suggests that the risk of the thing happening that gets announced is vanishingly small, and the SPP itself has usually not been updated in the previous 12 months.

Is there a student protection plan that rates the risk of course closure as “low if we hit our international recruitment targets, high if we don’t”? There is not.

In the last year alone, a provider closing a specialist department offering undergraduate degrees had an SPP dated “May 2019” which told students there was a “moderate” risk that, over time, some courses will become unviable – “most likely” to apply to postgraduate taught courses. Another closing a department announced in its SPP that it was formally reported as “Not at Higher Risk” in the consideration of Financial Sustainability, good management and governance matters following the 2017/18 annual assessment of institutional risk by… HEFCE… in 2018! Another said the risk of not delivering modules might materialise because staff will leave. It omitted to mention that the reason for leaving might be making around 100 staff redundant.

When Hadlow College collapsed into educational administration in May 2019 after receiving £2.827 million of emergency funding from the Department for Education that February alone (after it said it was out of cash when the leadership had quit), its “live” SPP said:

The risk that Hadlow College is unable to fulfil its commitment to students because of corporate financial performance is assessed as low. The financial performance of the College has been robust over an extended period. We consider the risk that the provider as a whole is unable to operate is low because our financial performance is strong over time, with a clean external financial audit track record over the period.

This is all a problem for a couple of reasons. OfS says that SPPs are supposed to provide assurance to current and future students, be written with students in mind as the audience, and set out an honest assessment of risks to the continuation of study for students. It also says that a failure to regularly review a plan or a failure to update the plan to reflect changes in circumstances would be examples of behaviours that may indicate noncompliance with its conditions of registration. But this obviously isn’t being enforced, and so students are being misled.

There’s a likely reason for this. Despite the text of the regulatory framework, in that speech to the governance conference Lapworth said that “institutions facing financial difficulties wouldn’t thank us for making them publicly visible”. That’s as may be – but OfS’ own framework suggests that providers should be honest – indeed its own registration FAQs say that providers should be transparent to applicants and students about risks in SPPs, and deliver information that an applicant might reasonably expect to have to make an informed choice about study.

It even addresses the worry that SPPs might “expose areas of risk that we would not want to be exposed” with this answer:

The purpose of your SPP is to protect the quality and continuation of study of your students. You need to be transparent for applicants and students about the risks in this area that are reasonably likely to occur and the measures you will put in place if any of these risks do crystallise.

If I was applying to study a programme at a university I would reasonably expect to know if said provider was in financial strife, or thought my subject area was for the chop soon if recruitment to it (or some other programmes) doesn’t improve. And yes, I know that providers will be worried about “run on the bank” scenarios – but this is OfS itself I’m quoting from – and keeping everything secret and lying by omission in SPPs is some distance from the “student interest focussed regulator” that students were promised.

But there’s another reason that I think it’s a problem. In theory, the risk mitigations that are described in an SPP – and would be rolled out in the event of a risk crystallising – are supposed to flow from that accurate, honest and up to date risk assessment. If the SPP risk assessment is suffering from what Lapworth’s speeches keep calling “optimism bias”, then the mitigations are likely to be insufficient too. And that means a system that will fail to adequately protect students, unless OfS’ magical behind the scenes machinations can avert all the crises. And I’d tentatively suggest that that is highly unlikely to be the case.

Is it working?

Part of the problem is OfS’ own lack of transparency on the issue. We never get anything like regular updates on the triggering of SPPs over anything other than institutional failure – yet courses, franchise providers, campuses and all sorts of other changes must have “triggered the provisions” since 2019. It is impossible to say whether the system is working well – because it’s impossible to see whether it’s working at all.

Another issue is OfS’ in-practice applied definition of “continuation of study”. In the live documentation, as well as provider, course and campus closure, SPPs are supposed to cover where a provider is no longer able to deliver “material components” of one or more courses.

But OfS has never properly defined the term, large numbers of SPPs don’t mention them at all with impunity, and plenty of others get away with defining “material components” as core modules only – allowing any number of advertised specialist pathways to be swept away in a redundancy round with no protection for students who chose the course on the basis of those pathways. Trigger’s broom or Ship of Theseus – students should get the course (and the wider services) they signed up for.

And then there’s the mitigations that are promised. The core expectation is “teach out” – but I’ve been slowly gathering endless horror stories about what that tends to mean in practice. Because in this case, even the mitigation appears to suffer from “optimism bias”.

Teach out, all out

In one case the university committed to teaching out programmes it said it was closing, but approved everyone teaching on that programme for VR – leaving a hotchpotch of unsuitable academics from other programmes and some hourly-paid, “bought in” sessional staff to deliver bits and bobs.

In another, students were promised “teach out” only to watch their own lecturers for the modules they’d signed up announce their own leaving dates over a tense summer – all while students and their SU were told that the discussions were “confidential until complete” (and so too late to even contemplate switching provider).

In a number of other cases, all optional modules were simply removed. In some, students were warned when the last run of each module would be – so any students who hadn’t chosen to sit an optional module by that point were given no choice, and nor were those whose mitigating circumstances triggered a resit. In others, students with retakes and those students who were enrolled last (so had the longest time left) had nothing like the pathway choice they were promised.

In several cases, materials weren’t updated (problematic for subjects where the OfS requirement to keep programmes up to date really matters), some modules were left with a tiny number of students, and in pretty much all cases, course committee and subject boards were perfunctory at best and as numbers dwindled.

In pretty much all of the cases, even where a skeleton staff team remained, they were inevitably miserable and tended to slowly jump ship during the life of the intended teach-out period – leaving a lot of hourly paid staff, endless gaps and perfunctory academic support. Students who intercalated were screwed. I’ve heard of optional modules that ran but ended up being taught by whoever was knocking about – generally someone hoping last year’s slides were available and that students don’t ask too many hard questions.

Particular horror stories surround stuff that is accredited or that involves technical skills – harder to cover with “warm bodies” who are often called on to supply-teacher their way into delivering a humanities module. In some cases specialist pathways taught by specialist teachers become “opportunities to study that area” without the specialist – the imperceptible conversion of a specialist pathway into a dissertation topic.

And some of the stories I’ve heard about validation and franchising agreements being terminated – and the way in which “teach out” is delivered in practice in those situations – are as shameful as they are shocking, for students who generally have little access to the confidence, cultural capital or students’ union representation to back them in a fight.

In a sensible world, providers would be required to proactively monitor satisfaction with a teach-out plan at regular intervals, OfS would be able and willing to tell us about satisfaction, drop-out and success rates for students on programmes where it’s there’s been a closure, and there would be a review of the tactic by now that covers all the tales I’ve had and more. But obviously and miserably, there is nothing – not least because a course closure isn’t even a reportable event.

And there’s more

Teach-out isn‘t the only failure in the protection regime. I’ve heard of several cases where students on foundation years find that the main degree course doesn’t exist by the time they get there – and plenty of students who are told that they’ll be able to progress to Masters’ level study in their discipline only to find that provision withdrawn.

If a UG counselling course was to lead to a Masters course to qualify, you see the problem. Consumer law might technically regard all three of those as separate courses, but students regard all three as key issues of “continuation of study” – and SPPs don’t cover that kind of “continuation”.

Early in the last decade, the sector famously rejected a collective insurance scheme in the wake of the removal of the Tier 4 licence from London Met. But it remains the case that there are plenty of providers who – at the point of collapse – would simply be unable to meet commitments in an SPP (especially if they were improved) or deliver the refund and compensation commitments, especially in validated or franchised arrangements. OfS ought to be requiring providers to show where the money would come from, probably by asking them to identify and set aside funds in this event – but there’s no evidence that it’s doing so.

For a regulator so focussed on outcomes, you’d think that it would be insisting that where students were offered a transfer, there would be a nod to ensuring comparability of those outcomes, rather than just course content. In fact, consideration ought to be given to the way in which “similar” or “comparable” provision might be secured in all aspects of the “sold” student experience – the course itself, academic services/facilities, wider non-academic services/facilities and outcomes like student satisfaction and graduate employment. Getting widespread agreement on what constitutes comparability would be a whole other matter. But OfS never tries.

There’s a scale issue. The closure of a course, for example (as I say, not a reportable event) at one provider could be much bigger in student impact than the closure of a whole small provider (very much a reportable event). I don’t recall it saying anywhere on the OfS website that “you’ll get proportionately more protection from your SPP if you choose a small place”, but that’s the long and tall of it. Instead of fiddling about with definitions of courses (or campuses) it should just pick a number of a unit number students that risks should be considered from the perspective of. But it doesn’t.

Some of the arrangements and commitments for compensation in event of risk crystallisation are pretty woeful. Some barely mention wider student costs at all; some offer general stuff that fails to take into account those that can’t move three hundred miles to another university. If they were offering real protection, SPPs would include compensation for students having to move to study in a new location – and would assume that the role of the provider is to meet in full any costs (particularly relating to study materials, travel and accommodation) incurred by a student arising from new arrangements. But they routinely don’t.

I’m tired of stories of promised placement years that can’t be delivered because the capacity in the private sector hasn’t scaled with the extraordinary increase in PGT recruitment. And if anyone can explain why it’s OK for an SPP to say that it’s pretty much “tough luck” if a degree apprentice’s employer makes them redundant, I’d be grateful. Why do work based learners not get protection when those on traditional academic subjects do?

The situation has changed

Of course as well as OfS failing in England, there’s almost nothing around the rest of the UK. Welsh providers lobbied to soften the student protection arrangements in the new Commission for Tertiary Education and Research regime – CTER should harden them back up.

And the Competition and Markets Authority really ought to regard the risks that a provider won’t be able to meet all of its contractual commitments to students over a 3, 4 or 5 year course (or 6 or 8 in the case of PT students) as exceptionally high and be intervening on it now – but it continues to pretty much pretend that the HE sector doesn’t exist.

Seven years ago now, the Department for Education argued in a position paper on SPPs that “managed” course changes and “orderly institutional exits” were a “feature” of a healthy, competitive and well-functioning higher education “market”.

That was as daft then as it is now. But it made a commitment – that it wanted students to be reassured that they will not be left exposed if their chosen course or institution were to change or close, and to ensure “adequate, appropriate and consistent protection for students” across the registered sector.

That wasn’t the only promise. When DfE consulted on the regulatory framework on behalf of the emerging OfS back in 2017 it said this:

If there were wider economic changes that dramatically affected the sustainability of many providers, the OfS would review its regulation of individual providers, with particular regard to student protection plans. It may find that in order to retain the same level of protection for students, changes are required. The OfS would then work with providers to improve their student protection plans so that they remained strong, deliverable, and in service of the student interest.

It has arguably failed to deliver these protections – the educational equivalent of the lifejacket that won’t inflate and the whistle to attract attention in the event of a plane crash. But as well as that, at the time the regime was set up it suggested that “only a very small proportion of [market] exits may be due to financial insolvency”, and that it expected that “to remain the case.” These days, OfS itself is roaming around the conference rooms saying that the plane is much more likely to crash.

In 2016, DfE missed that the very way in which providers tend to stay afloat is by disrupting students’ continuation of study – but more importantly, the overall risk profile has changed. The money isn’t there. In many cases if a provider survives, it will do so by failing to deliver on its promises. If it doesn’t, it will also fail to deliver its promises. In this situation, market regulation is required – because students can’t win.

In her speeches, Lapworth called on providers to take steps to be “clear-eyed” about the risks providers need their internal control arrangements to mitigate. Both DfE and OfS should be just as “clear-eyed” about the lack of protection on offer to students from those providers – because from here it looks like students are both screwed if they do and screwed if they don’t.

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