OfS knows best on quality and standards – what could go wrong?

The Office for Students (OfS) tends to come in for a lot of criticism over its use of “outcomes metrics” when it’s judging the quality of what’s on offer from a higher education provider.

Its consultation on condition of registration B3, for example, has caused all sorts of howls of pain – in principle as a way of determining quality, in practice because you have to be precise about how you apply rules that will work across a sector, and in secret as senior managers bemoan that their methods for “playing the averages” across a portfolio of provision may not work in the way they were supposed to now that OfS is looking at the outcomes in several slices.

But as well as the outcomes metrics, the “B conditions” include a range of other ways of setting out and defining minimum thresholds for quality in higher education.

In November 2020 we saw a broad, principles-based consultation canvassing the sector’s thoughts on a set of ideas that OfS said would define “quality” and “standards” more clearly. Then last summer we saw more formal, final-ish proposals on the remainder of the B conditions – what they were to be, and how they would be assessed. We saw semantics over definitions, formal concern over deviation from the UK-wide quality code, consternation over the way students were framed and all of that stuff about spelling codified into the almost impenetrable legalese of the regulatory framework.

Now we have the result of that consultation – a final final outcome of a very long process.

The conditions come into force on 1 May 2022 and consist of:

• Condition B1 which requires that all students receive a high quality academic experience. This means that courses must be up-to-date, challenging and well delivered, and equip students with the skills they will need after graduation.
• Condition B2 which requires that all students receive the resources and support they need to succeed on their courses and after graduation. This, says OfS, is particularly important for students from disadvantaged backgrounds.
• Condition B4 which “clamps down on grade inflation” by requiring universities and colleges to assess students effectively and award qualifications that are credible and stand the test of time
• Condition B5 which ensures that the standard of qualifications is consistent with sector-recognised standards.

There’s an analysis of responses (that pulls the usual OfS trick of explaining in excruciating detail why respondents were wrong), a final version of the quality and standards conditions to replace the current ones in the regulatory framework (along with a formal notice of the determination of conditions of registration), and a bonus document setting out the sector-recognised standards that relate to condition B5 (sector-recognised standards) from 1 May 2022, and initial condition B8 (standards).

We won’t repeat what we said in July last year here – but we will reflect on what’s changed as a result of the consultation, and what remains that will cause the most upset. In some ways the more interesting bit is to come – as OfS prepares to do some public enforcement of these new conditions to send signals to the rest of the sector and in ways that look set to be a lot more public than many might have hoped.

Quality of a provider’s courses

B1: Academic experience

Under new condition B1, providers have to ensure that the students receive a high-quality academic experience – and for the purposes of this condition, that includes but is not limited to ensuring each course is up-to-date, provides educational challenge, is “coherent”, effectively delivered, and (as appropriate to the subject matter of the course) requires students to develop relevant skills.

Much of the material here concerns the usual merry-go-round of providers arguing that the individual issues in that list are for them to determine autonomously, while OfS says that its list is a reasonable and almost universal set of things that will apply on a principles-basis in the student interest. There’s also endless backwards and forwards on the meaning of phrases like “up to date” and “challenge”.

Reading much of it resembles being in one of those university committees where there are hours of wrangling over a policy wording involving well-meaning pedants battling it out with hassled pro vice chancellors, while the student reps get on with their emails, and the clerk prepares to write it all up as a “lively discussion”.

Some providers, for example, had a go at suggesting that requiring courses be “up to date” might be incompatible with consumer protection law. Sadly, “teaching a load of out of date material” is not something students tend to demand when attempting to enforce their rights, so there are hundreds of words on how the two things aren’t, in fact, incompatible.

There are some minor changes. OfS agreed that what would constitute “educational challenge” may vary depending on the level of the course and so the definition now includes level as a contextual factor. There’s clarity on examples that would demonstrate “coherence” when it comes to module and pathway choice. And there’s a robust defence of English language proficiency being central to the “relevant skills” component. But broadly, B1 is intact from last time.

B2: Resources, support and student engagement

New condition B2 adds to the version in the first consultation the caveat that providers must take “all reasonable steps” to ensure that each cohort receives the resources and support it needs:

Each cohort of students receives the resources and support to ensure a high quality academic experience for those students, and their success in, and beyond, higher education. The condition would also require registered providers to ensure effective engagement with each cohort of students, also to ensure a high quality academic experience for those students, and their success in, and beyond, higher education.

Paragraph 2.3 breaks this down in more detail, suggesting “significant weight” will rest on an understanding of the particular needs of a given cohort – with the expectation that more needy students would require more resources – and correspondingly less weight on financial constraints. Case law relating to contractual obligations would not be applied when assessing whether all reasonable steps are taken – something which was previously implied but is now spelt out.

There’s a slight weakening of requirements on student engagement too – no longer is it required that providers build into the delivery of the course opportunities for students to contribute to the development of new provision. Instead, it is expected that “provision” is made. Those hoping to have student representation included, or students framed as “partners” have their hopes dashed – the consultation makes much of the (wholly unevidenced) idea that a student who chooses a “short, professional, course” may have different views on the desirability of various forms of participation. However the guidance offers a welcome clarification that mere student membership of appropriate committees would not be enough; an “effective contribution” is now also required.

If those of a trade union persuasion have been wondering whether the “sufficient in number” (clause k) provisions could be used as a defence against the next round of staff redundancies, the regulation now talks about an “adequate” number of staff (and amount of staff time) rather than tying this explicitly to the providers’ responsibility to offer students the advertised academic experience as the version in the consultation did. Providers must also ensure there is sufficient financial resource to both recruit and retain enough staff.

One helpful little clarification is that the sort of things that ought to be in place to enable underrepresented groups to succeed generally and disabled students specifically is covered by the line on “support”. That area would benefit from being more explicit for all concerned – it remains the case that monitoring differential outcomes under the access and participation conditions is a less than ideal way of assuring compliance with the anticipatory duty under the Equality Act 2010, and too few students impacted here understand their rights or how to enforce them.

In the – non-binding – guidance we see a much greater emphasis on potential issues with courses delivered on a franchise basis. And there is some unexpected pressure on library budgets – the initial expectation that students should be provided with resources if they are not reasonably able to provide these for themselves, has now hardened into something that may be considered a “reasonable step” for a particular cohort. We are drifting, in other words, towards the subscription model (where students by default have free access to textbooks via the library) – somebody at OfS needs to take a long-overdue look at rising costs in the e-textbook market if they intend to move towards a particular model of resource delivery.

B4: Assessment and awards

This one requires a provider to ensure that students are assessed effectively, there is rigour and consistency in assessment practices and that the awards and qualifications granted to students are credible and hold their value.

It’s also the one that allows OfS’ press release to claim that:

The new conditions also enable us to tackle unwarranted grade inflation. Despite some evidence before the pandemic that grade inflation had stalled, the rates of first class degrees are on the rise again. We will continue to analyse the latest data but are clear that where the proportion of students receiving top grades continues to increase without good reason, we can and will intervene.

As before, providers have attempted to rerun the arguments had in previous stages of the consultation. Plenty of respondents for example weren’t happy with the way OfS defines and then monitors “unexplained” grade inflation, but here OfS just reiterates the reasoning from November 2020 and July 2021. There’s also a rerun of the argument about who gets to make “academic judgements” (this comes up a few times in the document) – with respondents concerned that judgements might not always be made by academics, and other concerns about when the Designed Quality Body (ie QAA) might be deployed. Again, no changes here – OfS says it will use an expert academic opinion when it needs to.

On grade inflation, OfS notes that UKSCQA has agreed the need for further action on grade inflation and announced degree outcome statements – and makes clear that it would not expect it to, in itself, provide evidence of compliance with condition B4. And there’s a whole wedge of text on arguments that improvements in degree attainment may be the result of improved teaching, support for students or improvements in assessment and course design – OfS acknowledges that this is possible and, where there’s “credible evidence” that this fully accounts for any increase over time, OfS will leave you alone.

Back on spelling again, there’s an entire section that reconciles the Equality Act with requiring proficiency to be assessed. On academic misconduct, OfS has accepted feedback on how students are targeted so that it now requires providers to take “reasonable steps” to detect and prevent plagiarism, students’ use of essay mills, or other forms of academic misconduct by students. And there’s a helpful section on concerns that providers had over GDPR and the retention of student work – although no changes to the wording originally proposed.

Standards of a provider’s courses

Condition B5 says that providers must “appropriately reflect” any applicable sector recognised standards – a downgrade from the expectation that course standards “are consistent with” external standards as was in the consultation. OfS was concerned about this whole section because it felt rules-based rather than principles-based – this move certainly removes that issue, but at the risk of being unclear as to what “appropriate reflection” may actually mean. It’s not a decision that is explained anywhere in the documentation, and to our minds it is a curious one.

This is the one where OfS seems institutionally incapable of recognising that the UK Quality Code is a nationally recognised standard. Things like the FHEQ (something that feels essential to a sector that intends to work within the framework of the Lifelong Loan Entitlement) and the UKSCQA degree classification descriptions – at least, until the regulator realises the role its own Designated Quality Body had in both of these initiatives.

Both these latter two would be – for some reason – adopted into the regulatory framework in their current form. So if the sector later decides to modify these sector-recognised standards, OfS can choose not to recognise the new sector-recognised versions if it doesn’t like them. This does not fill us with hope that OfS understands what a sector-recognised standard is, or that it is unable to arbitrarily own them.

And on the Quality Code itself – something that once again saw a lot of support from the sector (almost as if it was recognising some form of a standard…) we are treated to the following:

We are of the view that providers should take advantage of the significant opportunity that our regulatory approach creates to dismantle complex internal processes that may have accreted over many years as a consequence of seeking to comply with the UK Quality Code.

Which has much of the feel of a “Brexit benefits” statement from Jacob Rees-Mogg, probably not the look that the regulator is after. The code, it begrudgingly admits to, is still there for providers to refer to if they like, but:

In particular, providers should note that there are likely to be some parts of the Code which would lead to practice that we would consider non-compliant with our regulatory requirements.

New providers

The initial quality condition (B7) adds “physical and digital learning resources” to the text in the yellow box on what constitutes having the “capacity and resources” necessary to deliver plans for quality provision. And again there’s a bunch of stuff on franchise courses making it clear that the name on the tin is responsible for the content therein.

The initial standards condition (B8) repeats the “are consistent with”/”appropriately reflect” switch from the ongoing condition. The guidance makes it explicit that B8 reflects the providers ability to comply with ongoing condition B5, noting that the OfS will consider at this point whether the standards a provider sets appropriately reflect national ones. And again we get the stuff on franchises and partnerships.

Section 27 (3) of the 2017 Higher Education and Research Act reads:

Where a body has been designated under Schedule 4 to perform the assessment functions, the functions under section 23 — (a) so far as they relate to the assessment of the standards applied to higher education provided by a provider, cease to be exercisable by the OfS.

What this means is that, in law, when we have a designated quality body (the QAA holds that role) it is the DQB that is responsible for assessing the standard of higher education at a provider not the Office for Students.

However, OfS feels that using the DQB to make all assessments relating to standards would introduce “unnecessary delay and/or regulatory burden,” and as such wants to introduce an alternative approach to joining the register that would avoid this step – noting particularly changes of registration category or new legal entities being formed by mergers and acquisition (see the Regents University case, where OfS was technically outside of its competence under 27(3) to approve re-registration without going via the DQB).

The loophole would be compounded by another new provision allowing the OfS to consult basically anyone else it fancied on academic quality (standards is something only the DQB can do). Perhaps there are agencies other than the Quality Assurance Agency out there that would reasonably expect to have a say – the Engineering Council might be useful in considering an Engineering monotechnic, for example – but it does feel like the DQB is best placed for this particular job. OfS does not agree it should publish its reasons for not using the DQB, or that the DQB should see itself as supporting provider engagement with quality.

Quite who benefits from providers joining the register without so much as a visit from either OfS or the DQB is not entirely clear – but OfS is keen, despite sector opposition, to keep that loophole open too.

Degree apprenticeships

OfS has a role in assuring the quality of integrated higher and degree apprenticeships, and proposed that it would commission the DQB to do this for them in relation to condition B4. This is happening because the Institute for Apprenticeships and Technical Education (IfATE) is the body that establishes the overall framework of external quality assurance in this part of the sector, and it has decided it wants the work to be done properly.

Unintended consequences and other comments

There are some interesting things buried at the back of the book.

Some respondents tried to argue that regulatory burden would increase as a result of the inclusion of TNE courses, partnership arrangements and courses that are not eligible for OfS funding within the scope of the conditions. OfS’ view is that this burden already existed but “acknowledges that some providers may not have understood that the existing B conditions relate to all of a provider’s higher education courses” and is obviously now glad to have the opportunity to clarify.

You will have noticed the various definitions of “course” now include the “module” as defined in the Skills and Post-16 Education Bill (awaiting Lords consideration of Commons amendments as we write). There were a small number of very interesting questions posed in consultation responses around whether the OfS had either the skills or the data to regulate at this modular level. The regulator was clear that its requirements apply to all higher education courses (regardless of length or credit status) so there was no need for separate short course regulation. It admitted that the data quality (especially for non-credit bearing courses) is “variable” and proposed to rely on reportable events and third-party notifications alongside what data it could gather.

There’s a hint of further consideration of data requirements as they relate to the LLE and transnational education to come, something that will require the sector’s “HESA people” to once again tear up understanding (and printouts!) relating to this week’s Data Futures specification.

The QAA has a quality assurance offer on transnational education that is so well-liked people literally pay money of their own free will to be assessed by it. Some respondents questioned why the Office for Students in England needs to get involved with overseas provision to overseas students that do not pay UK fees – there was even one noble soul who questioned why the OfS felt it had the skills to do this. Still, it will happen.

What about this UK-wide reputation for quality that risks being diluted by the determination of OfS to go in another direction? Swiftly floating over the troubling idea that OfS regulatory burden is necessary but other regulatory burden is awful, we learn that the English regulator is working with regulators elsewhere in the UK to support (international) stakeholder understanding – which means OfS is quite happy to explain to the world why English providers are not held to the same recognised standards as providers elsewhere in the UK.

Those standards? – yes, the UK Quality Code, something that came up in a lot of consultation responses, with respondents arguing that UK divergence would cause widespread confusion. For whatever reason, OfS doesn’t like the sector-recognised, consensually developed, short, clear, and well-understood UK Quality Code – so we just get to live with the consequences of a questionable decision. As so often happens in these consultations.

Student engagement in making judgements about quality (on panels etc – and, for example, in the new TEF) was always central to QAA approaches – and so one extremely sharp and clever respondent asked how the views of current and former students might inform judgements about a provider’s compliance with the new conditions. Unless it’s sending in the QAA to do a review, OfS rather pathetically just refers to its notifications process here – suggesting to readers that students and their representatives will somehow magically become familiar with the B conditions, compare what they’re experiencing with those words, and then email notifications@officeforstudents.org.uk without even a guarantee of a response if there’s a mismatch. So in reality, students won’t meaningfully be involved in the flagging of any issues or judgements on them.

And on that. As we raised last time around, if students can expect what’s in there as a baseline, will they ever be told about it? There’s (still) nothing on linking the questions in the NSS to this definition of quality. There’s (still) nothing in the proposals on making sure students know about these definitions. And even if a student found out, there’s very little on what it is that students could and couldn’t complain about given the prohibition (in England and Wales) on students complaining about matters of “academic judgement” (one that is made about a matter where the opinion of an academic expert is “essential”).

If it’s now the case that students can make formal complaints about anything in the B conditions that OfS thinks it doesn’t need a view on from expert academics, doesn’t it need to say explicitly what those things are, and publish a shared understanding of those lists in conjunction with the OIA? In other words – if OfS is now saying a whole bunch of things don’t need expert academic opinion that used to, has a whole new can of complaints worms been opened here?