If the risks have changed, then so should the protections

Student Protection Plans are supposed to alleviate the risks of enrolling faced by students. Jim Dickinson on what needs to change in light of Covid-19.

A read of all 394 Student Protection Plans of higher education providers that are on the Office for Students (OfS) register already felt like being through the looking glass – now that feeling is combined with a trip down memory lane.

SPPs – a regulatory requirement introduced when the Higher Education and Research Act started to be implemented – are supposed to set out the risks to continuation of study faced by students, and make clear the plan if any of those risks came to be “crystallised”. It’s a policy sticking plaster over the wound of the odd marketisation graze. Competition is good, except when it’s bad – so when it’s bad, here’s a first aid box.

It’s fair enough, if you think about it. Enrolling on a course of study is quite a risky business and involves a major investment from individuals. The state here is suggesting that its system of autonomous, competing providers normally works well – but on the occasion that it doesn’t, its regulator insists that an appropriate safety net has been developed so you can be confident you’ll be able to continue and complete your course.

Plans therefore have to set out any “risks to continuation of study”, but there’s always been a nagging doubt that the risks on display weren’t necessarily an honest assessment of a given provider’s situation – and so the mitigations looked weak. Compare a read at random of 100 of them (all arguing that the risk of provider failure is vanishingly small) with OfS’ own assessment of the financial sustainability of the sector, and you’ll see that something is off. Somehow, the two don’t match.

You don’t have to take my word for it. OfS Chair Michael Barber said as much as far back as October 2018, and in OfS’ own review of the initial registration process, it fessed up that a large number were poor – and that 266 providers had been asked to resubmit plans. Trouble is, it “would not have been in the interests of students to delay registration in so many cases”, so it approved a number of plans that were “significantly” below the standard it would expect anyway, on the promise that those providers were told to resubmit improved plans following the publication of revised guidance by OfS.

But that revised guidance never came, and those plans were never revised. A consultation was repeatedly delayed last year, paused for the General Election, and has now been indefinitely suspended. And today, things look much, much worse.

This changes everything

The Regulatory Framework does cover scenarios when the risks change. We’re on Paragraph 393 here of the RF:

Where the OfS’s routine monitoring activities identify a change in the extent of the regulatory risk for an individual provider or in the risk to the continuation of study for the provider’s students, it may seek assurance that the measures in the provider’s student protection plan remain sufficient to mitigate risks identified. The OfS may require further mitigating measures to be included and/or may require the plan to be revised and provided to the OfS on a more frequent basis.

I’m pretty convinced at this stage that there’s barely a provider in England for whom the regulatory risk profile hasn’t changed, or who doesn’t have at least some enhanced risks to continuation of study for some students on some courses – if not all students on all courses. But how would this work now? No-one predicted a global pandemic, but students were made a little promise when DfE consulted on the Regulatory Framework on behalf of the emerging OfS back in 2017:

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’s fair to say that there have been some pretty dramatic wider economic changes, and that OfS in theory now therefore has two jobs on its hands – to get the levels of protection for individual students back up to where they were pre Covid-19, and then up to this “strong, deliverable, and in service of the student interest” standard it never quite reached in round one. All while fiddling with webcams in Zoom meetings.

Think again

So where might providers have to look again? Let’s imagine that the current requirements have to stay in place (we’re assuming that OfS was keen to change them – hence the planned consultation). SPPs are supposed to consider the likelihood of non-continuation of study for students in a number of areas, and it’s worth looking at each in turn.

First, a provider has to consider the prospect that, as a whole, it is no longer able to operate, or has decided to cease operating. It’s probably not being alarmist to suggest that a large number of providers’ finance directors are staring into a scary looking abyss without some form of bailout coming. Certainly the submission of one of OfS’ new reportable events (focused on running out of cash within a month) would presumably have some synergy with overall provider viability. The question, as ever, is whether a provider is prepared to be honest in its published, public plan. If yes, you get that run on the bank problem. If no, the required mitigations in the event of collapse don’t flow properly from the risk assessment.

Next, a provider has to evaluate the risk that its power to award degrees is under threat, or that validation for one or more of its courses looks shaky. It’s interesting stuff this – providers right now are necessarily playing very fast and fairly loose with academic standards, in a way that they would probably be forgiven for in the round. But being forgiven for something you know you’re going to have to do still means you’re doing it – and presumably providers should therefore fess up the real risks both from QAA and PSRBs.

OfS also asks providers to evaluate whether one or more of the locations at which it delivers courses to students will no longer be available, particularly if it is considering closure or significant change to a location. This sounds distant to many, although courses that Provider A is franchising for delivery by Provider B surely have to be up there in the red risk charts.

And OfS also needs to see an evaluation of the likelihood of not being able to deliver courses to students in one or more subject areas and/or departments. This is surely now likely in many providers – again, without any public prospect of a bailout, to survive a whole clutch of universities could have to look at closing courses where the student numbers (particularly the international student numbers) don’t stack up.

Getting granular

There’s more. OfS guidance reasonably asks providers to think about no longer being able to deliver one or more courses, particularly if providers are “considering course closures in the next three years” (a concept which we assume to be inclusive of “the next three weeks”). It also requires a look at not being able to deliver one or more modes of study, but perhaps more importantly an assessment around particular types of student.

As every day goes on we can see more and more student “types” finding Covid-19 mitigations that aren’t quite enough to keep them on the course – and in the rush online, we know that we’ve moved at a pace where, for example, there are many students for whom “reasonable adjustments” (either in the formal disabled students definition, or more generally) are not being made. Why should student parents who now can’t complete the year because they’re trying to teach their own kids, or disabled students who now can’t access their teaching, be racking up tuition fee debt for the year?

Importantly, as well as all that plans are supposed to cover a look at the delivery of “material components” of one or more courses. In the past providers have attempted to assert that this refers to core modules, giving themselves ample freedom in terms and conditions to cull student choice in optional modules when finances get tough.

But this is obviously, manifestly, problematic. This isn’t about preventing a module leader from updating their acetates, but it is about offering students the sorts of academic breadth and ability to specialise that they were promised on application. There are plenty of providers that both have and will seek to cull “options” if they can – but for students, surely these should be protected just as much as the “core” of a course should.

And it’s not just about “courses” either. Students get told about, toured around and sold campus facilities, and welfare services, and gyms and libraries and sports pitches. They are coaxed in on the promise of student societies, and access to industry leading professionals and studio facilities and world beating labs. Even if providers found a way to temporarily exempt these from being delivered in terms and conditions on the basis of extended social distancing, some will also be looking to cull or curtail some of these components to make some savings. Real protection in the student interest should count all of these as “material components” of a course – because they are, like, material.

The reality is

Here’s the thing. If the new risks to all of the above were honestly evaluated, there’s not a chance that the mitigations in most SPPs would cut it. That’s largely because in almost all cases they’re predicated on the concept of little isolated chunks of student transfer – group of students A move to providers B, C and D to carry on. Plans have usually been silent on compensation required in that case (and whether the new provider will have comparable outcomes), and have always assumed that this type of “move but carry on” solution would be eminently possible because it would be so rare. But things have changed.

Perhaps one solution is that OfS writes to all providers, setting out a more polite and legalistically worded version of all of the above and makes clear that it will deregister providers that can’t meet the protection standard in this risky new world. But that doesn’t feel like it will work, lest between now and the autumn we plunge thousands more students into enforced discontinuation of study than we’re already bound to see.

What we’re going to have to do is assume that a large number of students may well face their courses (or components of them) falling over. We also have to accept that some students just can’t make this pivot online work – and that’s not their fault, because it’s not what they signed up for. All of this means we’re going to have to assume that refund and compensation policies will actually have to be enacted rather than assuming that students will be able to move elsewhere. And all of that means that those refund and compensation policies will need to be properly underwritten.

In the aftermath of London Met losing its Tier 4 license back in 2012, NUS proposed a collective insurance and compensation scheme, which naturally was derided by much of the sector and never implemented. It probably would still be derided now – and anyway, pricing insurance to cover the risks posed by a pandemic IN THE MIDDLE OF A PANDEMIC probably isn’t very smart. And students will hardly be happy if their already stretched student fee income is having to pay to prop up providers that go under elsewhere.

But something will have to be done. Maybe DfE is going to have to step in and underwrite such a scheme, or maybe a big bailout is coming. Wales and Northern Ireland also need solutions, fast. Whatever happens, it would be absolutely scandalous – and a complete, shocking and abject failure of “risk based, student interest regulation” – if we go into the next academic year, whenever that starts, with the weight of all the increased risk carried on the backs of students.

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