Regulatory crackdowns on broken promises are not all that they seem

Do you remember when the Office for Students (OfS) told providers back in June that they had to give students “clear and timely information” about how the delivery of their courses would change this year as a result of the pandemic?

Or that time when it assured everyone back in October that it was “actively monitoring” universities that had significant numbers of students required to take all their courses online as a result of coronavirus restrictions.

In October the plan was to more closely monitor providers who had been tipped into DfE Tier 3 or 4. We’re talking meetings and calls to ensure that providers were communicating changed arrangements for teaching and learning clearly, and to ensure that they were “maintaining the quality of their provision that is accessible for all”.

If you play the ball where it lies and accept at face value that such monitoring a) works b) is necessary, the problem then was that the Department for Education (DfE) wasn’t really using the higher education tiers. But the problem now that every provider is basically in DfE Tier 3 as a result of the lockdown is that you can’t do “special monitoring” of everyone. So what do you do?

Absolute clarity

You’d think that we should have known already. Last summer OfS said that students will need to understand what a provider is committing to deliver both in the current circumstances and in different scenarios, how this would be achieved, and the changes that might need to be made in response to changing public health advice.

As such you’d think that OfS ought to have set out how the regulation of providers was going to be delivered both in the circumstances then and in different scenarios, how this would be achieved, and the changes that might need to be made in response to changing public health advice.

Anyway – what you do has now been announced by OfS. Under the headline “latest lockdown should not lead to lost learning, says regulator”, its big message is that universities should do “all they can” to deliver the teaching they have promised to students, and make alternative arrangements where this is not possible. This, it says, may include putting on extra lectures, repeating parts of the course, or fee refunds.

Let’s ignore for a moment that the message from the regulator of higher education in England lazily conflates “teaching” with “learning”, as if independent study (and the facilities and services that enable it), are irrelevant. There’s quite a bit going on here, both on the surface and underneath, that deserves some scrutiny.

And just before we dive in, a word of warning for friends and colleagues in the devolved nations. While this is an intervention that is ostensibly about English regulation, it refers to (student) consumer protection law – and if OfS’ interpretations are right then much of this stuff is important outside of England too where students are paying fees.

The new plan

As well as a press release, what we have here is a letter sent to providers universities and colleges in England that sets out an alternative to the “closer monitoring” plan we had back in October. Now that everyone’s affected, and because it says it has heard from some students that providers either were not clear about what had been promised, or that what was promised has not been delivered in practice, OfS has asked providers to carry out a “self-assessment”.

Basically, providers have to ask themselves about the extent to which they have met the commitments they made to students in relation to both teaching and alternative arrangements. That is to include:

• Whether providers were sufficiently clear with new and continuing students about how teaching and assessment would be delivered in 2020-21, the circumstances in which changes might be made, and what those changes might entail.
• An assessment of whether students received, during the autumn term, the teaching and assessment they were promised and might reasonably have expected to receive based on the information provided.
• An assessment of whether current plans for the spring and summer terms would ensure that students received the teaching and assessment they were promised and might reasonably expect to receive based on the information provided.

Once that’s done, if providers conclude that students were not provided with sufficiently clear information about how teaching and assessment would be delivered in 2020-21 – or that teaching and assessment were not delivered as promised – OfS lays down the gauntlet in the press release. Providers are to “actively consider obligations under consumer law” for refunds or other forms of redress.

Then if the outcome of the review identifies potential compliance risks with condition C1 (consumer protection), providers have to inform OfS of the risks identified and whether or not they are taking remedial action. It doesn’t say if you have to tell OfS about every single potential breach, or a majority breach, or somewhere in between.

And while it is not otherwise expecting providers to proactively report to it on the outcome of the review, if it receives notifications from students or others that raise relevant issues, it will be likely to want to discuss these with providers “and this would include asking to see documents relating to your review.”

There’s then some bits on communication with students that stress the need to inform them of any further changes to teaching and assessment arrangements, and bits that argue that providers should inform students about their entitlement to seek refunds or other forms of redress (like the opportunity to repeat parts of the course that can’t be delivered this year) if they have not received the teaching and assessment promised.

Tied up in nets

As well as all that stuff on consumer protection, there’s also a short section on quality and standards that principally reminds providers that “standards should remain secure”, and goes on to differentiate between “safety nets” (defined here as measures for individual students affected by the pandemic and its impact such as changes to mitigating circumstances policies) and “no detriment” policies (by implication all that stuff where you fiddle with degree algorithms).

“With such safety nets in place”, says the letter, “you may determine that it is no longer necessary to implement the type of no detriment policies put in place by some providers in to mitigate the early disruption caused by the pandemic on students” – which is a sentence where “may” does quite a bit of heavy lifting.

There’s also a note telling us that some of the previous documents will be revised, a supportive letter from universities minister Michelle Donelan, and a warning that SUs will be briefed later this month on how and when to use OfS’ “notifications” process.

Promises promises

So what’s going on here and why does it matter? On the surface, this is a necessary next step in the story laid out at the start of this blog – OfS has been saying all year that providers have a legal duty to tell students what they should expect in different scenarios, and so now it’s asking providers to check that they’ve been keeping those promises.

Providers might well argue that their ability to keep their promises has been dealt a major blow by constantly changing guidance and the unpredictable nature of a global pandemic. That may be true, partly. But the time to have that argument was probably back in June when OfS published guidance that stressed that students needed to understand what a provider was committing to deliver “both in the current circumstances” and in “different scenarios”, all with “how this would be achieved, and the changes that might need to be made in response to changing public health advice”.

That argument comes down to – if you’re signing students onto degree courses, scenario plan different types of lockdown and make clear to students how things will change under each scenario. And to be fair, that DfE guidance on the tiers did effectively describe what we have now – a national version of its Tier 3. So sure, some of the detail has been slow to emerge on stuff like lateral flow tests. But the fundamentals were predictable and so students should have been warned.

That creates a potential crunch if the comparison between what was promised and what is being delivered is negative. To set right a complaint that a promise has been broken while maintaining academic standards, you can either hand over cash, or do more, or both. The “doing more” will likely involve extra resources, or extra time, or both. But neither the OfS letter nor the DfE letter puts extra resources, cash or time on the table.

That is obviously both outrageous and preposterous. How, for example, is the Office for “Students” saying that students should be invited to repeat parts of their course without clarifying any entitlement to student support that would enable them to do so?

In a different world, the letters from DfE and OfS would have been asking providers to do a different kind of internal audit – gathering intel on what will require more time and money so that promises to students can be kept either through extra delivery or extensions to the academic year.

But instead the whole thing is framed as “your problem, you sort it, or else” which can only result in disaster if it’s true that plenty of students aren’t getting what they were promised.

Getting to the bottom

So on the surface this looks threatening and unhelpful. But a look below the surface is always important. And while this looks like a highly problematic and unsupportive intervention from the regulator sent in the student interest, in fact it’s nothing of the sort.

Look at the realities here. The internal audit of kept promises notably doesn’t tell providers to involve either their students or their students’ unions – which makes no sense if you think about it. Nor does the plan here involve being any clearer with students about their rights to redress or the basis on which they might make a complaint. It doesn’t look like OfS is much interested in ensuring that students can use their rights in this area.

In the letter it says that it has been “engaging positively” with providers to understand and address issues that have arisen over the past 10 months, particularly in relation to concerns about financial sustainability and quality, and that it’s “grateful for the constructive way in which providers have approached these discussions”. Any other regulator would be naming and shaming bad practice or failures that it’s seen so far – but not a peep. There are 417 higher education providers on the register, and we don’t know if OfS has identified a single breach of its guidance on student and consumer protection so far, and if so what it’s done about it.

But the craftiest thing in here – that should cause England’s vice chancellors to all sleep soundly after all – takes us back to that conflation of “teaching” with “learning”. I’m talking about the repeated framing of the promises that were about “teaching and assessment”.

The question is what students are “buying”, and we have two extremes. On the one hand, by and large “teaching and assessment” can be moved online, and OfS seems to be saying that where it can’t be, you either compensate them or deliver it. Fair enough.

On the other hand there’s these amorphous concepts like “social capital” and “wider student experience” and “confidence” that all sound fairly “extra” and outside the bounds of the academic programme itself. There is a pandemic on after all.

Mind the gap

But what’s interesting for me is everything in between these extremes. In that consumer protection guidance over the summer, OfS said that sufficient information needed to be given to prospective students about their course, in line with Competition and Markets Authority guidance, including information about any planned changes and the provider’s plans for different scenarios.

They then reproduced CMA’s list of “material information” that needed to be clear, which again is focussed on the course and its teaching and assessment:

• Content of the course
• Length of the course
• How the course will be delivered
• Cost of the course
• How the course will be assessed
• Award (inc any professional accreditation)
• Possible locations

What’s interesting is not so much what was in the list – but was left off. In tiny writing in that CMA guidance there’s a note on “material information”. Reminding us that in law “material information” is information that the average consumer needs, according to the context, to take an informed transactional decision, it goes on to make clear that as well as that stuff about the course, there’s likely to be “non-course-related information” that students consider important and is likely to impact on their decision-making – like all the stuff they’re wheeled around on open days or that shows up in prospectuses. And crucially:

Consumer protection law will generally apply to these services, and providing misleading information, or omitting information, about such services may breach the CPRs, although they are not covered in detail in this advice.

And there’s the thing. If you look at what students are complaining about – and you dismiss the part where they’re really just moaning about the pandemic – what they’re complaining about is all the stuff that isn’t the “teaching and assessment”. It’s everything that goes around the “teaching and assessment” that helps them learn – about their subject and about the world and themselves. It’s the library, and the campus, and the trips, the wifi, the sport and societies, the space to do group work, the chaplaincy and the study support.

And OfS isn’t going near regulating all of that with a bargepole – which will be a huge relief to universities and a kick in the teeth for students.

Even where providers made changes to the material information, OfS said last summer that consumer law meant they had to ensure that students “expressly consent” to those changes. Did anyone arrange that meaningfully? Not really. Has OfS mentioned that in the new letter? Of course not. It would look culpable if mass non-compliance became obvious.

If nothing else, think about it like this. Students have paid for decent campus wifi, heating, lighting, and seating that they are now funding themselves. If employees should get an allowance for working from home, so should students.

Regulatory objectives

Officially, OfS would say that its regulation is carried out in pursuit of its regulatory objectives, and that while aspects of the wider student experience are important to students, it’s programmes and courses that it cares about. And the press note is at pains to remind us that OfS is not a body empowered to enforce breaches of consumer protection legislation:

This power rests with the courts, the Consumer and Markets Authority and local trading standards officers.

Whenever we’ve asked whether CMA might produce some advice for students on their (wider, non course, consumer) rights or whether it might look in detail at the plight of circa 3 million (if you count everyone across the UK since March) angry, young consumers who fear the academic repercussions of complaining – or whether it will address the deep complexities of applying the law in relation to education or student housing during a pandemic – it’s referred us back to DfE and OfS as bodies “better placed” to address such matters. But these bodies have no intention of doing so.

CMA even tried to refer us to OfS over student accommodation contracts the other day, which will be carrion comfort to someone tied into an HMO contract in Scotland.

So providers have little to fear from this new intervention from OfS. The basic pact that was established last March will remain. The “bailout” that the sector got was that students will pay their fees – and that they’ll be jolly grateful to be doing so. And it’s a shame that as a result few will cause a fuss and publicly object to this new intervention from OfS.

Because in the process, to fit the narrative the English regulator of higher education says that “learning” at university stems merely from “teaching” and “assessment”. And that’s about as far from how universities are supposed to work as you can get.