Students can be partners and consumers all at once in Wales

Part 5 of the Draft Tertiary Education and Research (Wales) Bill 2020 is all about students, and depending on your perspective it’s either a confused mish mash of different ways of thinking about students, or a pick n mix Now! Album of the best bits of student-focussed regulation from around the UK.

There are three important components in the proposed legislation here. Wales will take steps to protect the interests of students through “Learner Protection Plans”. It will engage them as partners through a national “Learner Engagement Code” that providers will have to abide by. And it will facilitate students getting their concerns addressed by ensuring that students can make complaints, and get access to the Office of the Independent Adjudicator.

You and yours

Before we get to those three “big pillars”, there’s a largely-lifted-from-England proposal to cause providers (through a registration condition) to have to demonstrate they have given “due regard” to compliance with consumer protection law, and specifically to the Competition and Markets Authority’s guidance on the application of consumer law.

This is a helpful levelling up, but take note of OfS’ long-delayed look at the range of issues in this space – one of which is, basically, that the CMA isn’t that interested in education. So OfS is about to consult on whether it should issue its own guidance on how consumer law applies to providers that will be kept more up the date. A few wording tweaks should fix this issue once the Bill hits the Senedd.

Protect me

On first inspection, the proposed requirement that providers develop and have approved a “Learner Protection Plan” is lifted straight from the English OfS Student Protection Plan regime. But not only have SPPs so far arguably been a bizarre failure in England (“I wouldn’t start from here mate”), they’re also a specific response to a specific issue that shouldn’t really arise in Wales – and so are at risk of representing one of those “wooden legs but real feet” problems.

SPPs in England exist in a world where a competitive market does what it does – in theory, that usually drives up quality, but when from time to time it results in provision cessation, the plan is there to ensure students can complete their studies in an environment where ministers have repeatedly said they won’t bail out providers.

There are thousands of other words from me on the site that describe how broken this system is in England – but here you have to ask, given Wales isn’t ruling out financial assistance for struggling providers or over-extolling the virtues of a competitive market with attendant encouragement of an emerging private tertiary sector, why steal a broken market mechanism from England?

You can argue that right now students’ interests in England are better protected than those in Wales by the mere existence of SPPs – and there’s a case for Wales adopting SPPs for that reason. The Bill sneaks in a secondary purpose of SPPs to be fleshed out in guidance (“supporting a person… who wishes to transfer to another course”) but my advice here would be to take note of the old Trigger’s Broom problem, and ensure that these plans cover the cessation not just of “courses”, “campuses” and “institutions” but also material components of those courses and/or institutions.

There’s something else that ought to cause some proper policy work in the extended consultation between now and December. It took too many months for OfS to be cajoled into setting out a “square peg, round hole” approach on “protecting“ students from harassment and [sexual] misconduct, and it is still nowhere really on ensuring that there are standards on student welfare provision in universities. A proper “made in Wales” Student Protection Regime might reframe SPPs around not just provision cessation, but wider matters of student welfare, requiring providers through a flexible framework to work with students to set out risks to that student body’s welfare and wellbeing – and the steps being taken to minimise their crystallisation and impact.

Getting engaged

If the above stuff is about students as lumpen consumers, the additional selection in the pick n mix is very much about also, in some contexts, treating students as partners. This is partly covered off in the UK Quality Code, but to build on that here the proposal is that the commission develops, consults on and publishes a “Learner Engagement Code”, which will ensure the interests of learners are effectively represented in provider decision making.

Flexible enough to handle small apprenticeship providers through to large universities, the idea is that compliance with the code should allow learners students the opportunity to give their views to the provider about the education and training they receive. The wording here is a bit woolly right now – and if the Welsh government can’t guarantee a students’ union in every provider, it could at least commit to the code guaranteeing, funding and supporting both “provider-led” approaches of consultation and feedback gathering, and the facilitation and funding of “learner led” approaches – which in most providers is going to mean properly supporting the SU.

This is probably for the development of the code itself, but the proposals could go further. Requiring both the academic and corporate governance of providers to involve learners would be a start – students make up a third of the membership of all committees in the Baltics, for example – and the commission itself could have much more robust arrangements for the involvement of learners as partners in its work beyond “let the NUS Wales President come to meetings”.

I have a complaint to make

On complaints there’s not much to see – effectively all providers have to sign up to the OIA. The adjudicator took steps a couple of years ago to bring colleges into the fold so that students on HE courses in those providers can use the adjudication scheme, so notwithstanding residual concerns about small apprenticeship providers, FE complaints volume and subscription arrangements to cover costs, extending the complaints scheme across tertiary should be straightforward.

One thing that England managed to mess up in this space wasn’t so much ensuring that complaints procedures were there, or providing access to the OIA, but making sure that steps were taken to address the inherent power imbalance in relationships between students and providers – an issue we looked at on the site here.

Again, if Wales fancies carving itself out as a devolved nation that is more learner focussed than England, it will want to make sure that that learner engagement code includes a requirement that all registered providers facilitate access to high-quality independent advocacy in the event of a complaint, appeal or contract enforcement issue – or there is a material risk that students will not be able to secure the commitments made by a provider to them.

Overall, while there’s still work to do (retaining students’ right to feed into quality for example) and various tweaks to make either in the legislation or what comes from it, this is a good package for students – even if, in an annoying nod to the tertiary agenda, they are repeatedly referred to as “learners” here.

Some will say that students can’t be both partners (the dominant policy frame in Scotland) and consumers (the dominant policy frame in England) at the same time. I’d argue that not only are students in Wales perfectly capable of managing multiple relationships with their education provider, but they also deserve legislation and support from their new funder-regulator to strengthen both roles.