Anniversaries should be happy affairs – a chance to come together and remember the times we have shared. But one year after the Office for Students assumed the full powers granted it by the Higher Education and Research Act, as well as its duties, independent providers have little to celebrate.
It was an ambitious project, to apply a single system of regulation to potentially over 1,000 organisations of incredible diversity – in size, history, mission, experience, pedagogy and the characteristics of their students – connected only by their commitment to education and developing student potential. It would require of the start-up organisation tasked with the job a regulatory high-wire act – combining rigour and agility, objectivity and judgement, efficiency and transparency, moral authority and institutional modesty. It is no wonder that the OfS has experienced some stumbles along the way. But what has been lacking to date is a safety net of self-awareness and a willingness to course-correct.
Waiting for registration
The first statutory duty of the Office for Students – its primary purpose – is to maintain a Register of Higher Education Providers in England. It committed to publishing this Register in September 2018, five months after opening for applications. It is now August 2020, and several applicants from that hopeful first spring are still waiting for a decision. Dozens have waited for well over a year. Seasons have changed. Entire student cohorts come and gone. Staff have started work, and left for new opportunities. Boards have grown nervous. Auditors have grown restless. Principals are speechless at the impossibility of getting a straight answer out of their OfS contacts as to what on earth is taking so long, and what if anything they can do to achieve some resolution.
Around 80 providers exist in this state of regulatory limbo, including 15 IHE members, but many more took one look at the confusion and inefficiency of the past two years and just washed their hands of the whole sorry business. They have made other arrangements to safeguard their institutions and the interests of their students, in the absence of an efficient and effective regulator. This is not the higher education sector they were promised, one which welcomes competition, encourages new entrants, promotes student choice and supports real innovation.
OfS managed to register all but one English university by the end of 2018, just about in time for the 2019 UCAS application cycle. But the large majority of independent providers entered the new year in a state of increasing trepidation. It was at this time that OfS internally declared “mission accomplished” and moved to reassign staff from registration to other apparently more pressing priorities. The long tail of applications slowed down even more, the average waiting time for applicants stretching from 9 to 12 months and beyond. Since April, the process has been suspended indefinitely.
Publicly, OfS maintain that “everything is fine”, and if it isn’t, well it’s somebody else’s fault. A report on the registration process in October 2019 laid all of the available blame on the doorstep of providers who were “not ready to be regulated”, with applications of “poor quality”. At a time when senior executives at established, well-resourced and highly professional organisations, who had proven quite capable of being regulated in multiple international jurisdictions, were tearing their hair out at OfS’s struggles to understand basic concepts of their business, the absence of any self-reflection, let alone self-criticism, was astonishing.
Perhaps at root what has undermined a bold new approach to regulation is a deep-seated conservatism inside OfS, with too little time, space or priority given to innovate itself. Under the surface of the new system, its ostensible focus on outcomes and its shiny new vocabulary of student choice and value for money, sits the same old regulatory toolkit build by HEFCE for the institutions it knew well (though since hollowed out by a flight of expertise from Bristol), and entirely ill-fitting to the different sizes, shapes, missions and cultures of the organisations invited to join them. An invitation which to many now appears to have been lost in the post.
Only OfS staff, current and former, know why the registration process went so wildly off track: why again and again an applicant answers a new question from their case worker and hears nothing back for months; why eventually they are told that all of the information required for a decision has been supplied, but decision came there none. Some of our members today have a greater insight into the scheduling of their case worker’s holidays than what if any schedule might apply to the consideration of their painstakingly assembled ‘application to stay in business’.
The impact of the delay
This is not some academic exercise. These bureaucratic woes have real-life consequences which are deeply felt. Senior staff at OfS were crystal clear with us that providers would need to be registered by 31 July in order for their students to access funding this year. We took this as a commitment to meeting the deadline themselves, but it has come and gone without a whisper. Several IHE members made carefully planned moves from a subcontract model to validated provision in order to register independently with OfS, and are now scrambling for other arrangements.
They never thought that they would be waiting for over a year, or that their students would be left stranded and unable to access the funding system. In a year riven with uncertainty, they are entering Clearing without knowing whether they will be allowed to take the course they want. Meanwhile, the Home Office has sat helpless on the sidelines, waiting for white smoke, their own deadlines and rules bent beyond breaking point. For many providers, their EU students will soon join other nationalities in being barred from attending altogether.
Something has to give.
A matter of judgement
The judgment published by the Court of Appeal last week, which found that OfS acted unlawfully in refusing the registration of our member Bloomsbury Institute may have come as a shock to its Board, but it was no surprise to us. The lack of transparency in its decision making, the failure to consult on profound issues of policy with sector-wide implications, and the apparent belief that ‘engagement’ is for military forces, not stakeholders, are disappointingly familiar. But instead of doubling down on their position, as must be very tempting, now is the moment for the Board and Chief Executive of OfS to demonstrate the leadership qualities of empathy, self-awareness, humility and the courage to admit their past missteps, and become enthusiastic agents of the change which is required.
It is time to press the reset button.
How to move forward
We have but a modest set of proposals for how OfS can reset relations with independent providers. In recent months it has felt like they might be receptive. If anything good has come out of the pandemic for HE, it could be that our regulator has discovered its listening mode, the benefits of engagement, of named individuals who understand a particular provider, and of proportionality in the regulatory demands it makes of already overstretched institutional leaders.
In this spirit, we ask the Board of OfS to work with us to agree and adopt clear service standards for registration. Regulators and public bodies of all stripes are expected to do so, as indeed are both of the designated bodies OfS keeps under contract. Why can OfS not follow suit?
We also propose that OfS undertake to conduct and publish a full and frank “lessons learned” report on the registration process, to demonstrate for all concerned that they have in fact learned something from this tortuous two years. We know they have, because the assessment that applicants undergo now, and the information they are asked to provide, looks quite different to that of April 2018. These changes must be incorporated transparently into the regulatory guidance, which no longer reflects the substantially modified process.
Alongside the purely administrative, OfS needs to review and improve its general approach to guidance and communications to better support the registration process. Certainly not all of the applications that OfS has received have been perfect, but it is fundamental to being an effective regulator – as the Regulators’ Code makes plain – that sufficiently clear information, advice, and guidance is provided to help the organisations to be regulated understand and meet their responsibilities.
The fact that such advice has been in short supply, and where provided is often incomplete, speaks to the pervasive feeling amongst independent providers that the regulator simply does not understand them, and so wouldn’t even know where to start.
Understanding the sector
This informs our final proposal: that OfS commission an external organisation to conduct urgent research into the different corporate governance and financial models of independent and SME providers, as this is often where the complexities OfS has struggled with begin. We called for this research to be done in 2017, but it would be better late than never – although their recent decision to register a provider with no formal governing document suggests a more flexible approach to this area than we once would have thought.
These proposals are the bare minimum required for new, SME and independent providers to feel that their regulator still remembers its duties and founding mission to promote greater choice and opportunities for students through a more diverse range of provision. Otherwise, for many of their students and staff, 2020 will be remembered not just for a public health crisis, but a crisis of confidence in the authorities who were tasked with safeguarding their interests. For how can these guardians protect them, if they won’t even let them in the gate?
It was never meant to be the Office for Some Students.