David Kernohan is Deputy Editor of Wonkhe

Jim is an Associate Editor at Wonkhe

If we’re doing these things properly a strategy should constitute the long term goals of an organisation.

Strategies are meant to stretch the attention of an organisation away from the day to day and should be situated within a plausible future. The key questions that should underpin it should concern what this future should be like (you can get your scenario planning in here, or for the irredeemably post-millenial you could do a PESTLE analysis), and the part that the organisation in question should play in making this future happen.

The proposed Office for Students (OfS) strategy for 2022-2025 – currently out for consultation – does not do this. It is a plan of action first and foremost, and one that will be familiar to anyone who has followed recent statements and speeches. Regulators are gonna regulate, in other words.


Lord Wharton’s short introduction does not bury the lead – the focus is on quality and standards, and equality of opportunity. Though he tries to sell this as a step change, it is not – the only change from the previous strategy is an even more pronounced focus on “low quality” or “inadequate provision”.

Again, let’s take a step back. OfS only has the power to regulate providers that have registered with it. To do so, each of the 418 currently on the list (yes, it was 422 earlier this year – four applied to leave) had to meet a set of initial conditions. These also make up the majority of the ongoing conditions against which OfS monitors each provider. The infamous B3 – the student outcomes requirements (consultation coming any day now) – is both an initial and ongoing regulatory condition.

To put that another way: the only way a provider gets onto the list in the first place is if it has suitable student outcomes. If it emerges that during the maximum of four years since OfS assessed these that the conditions are not now being met, OfS can take action to address the decline that has precipitated under the ever watchful eye of OfS’ “monitoring” regime. Of such things are quality assurance made in 2021.

This, under the terms of the regulatory framework, is pretty much the main thing that OfS is meant to do. So you will excuse the rolling of eyes when we read in paragraph 24 that:

During the next strategic period, our work will be strongly focused on ensuring that providers are meeting these expectations.

If the OfS approach to regulation was working correctly, the approach should be the opposite. The registration process itself should have secured good baseline performance against output metrics and anything else – and you would expect a responsive regulator to be spending most of its time supporting providers in improving beyond the minimum performance requirements. That there is a need to spend nearly the entire first decade of regulation on ensuring performance is above the baseline should have a red light flashing on a dashboard somewhere.

Open goals

In terms of the regulator’s goals, we get a short list falling into three very broad categories:

  • Quality and standards – adds DfE-pleasing free speech within the law and contributions to local prosperity to the stuff you would expect
  • Equality of opportunity – success unlimited by student characteristics, and a choice of courses and providers rub uneasy shoulders with harassment, sexual misconduct, and mental health
  • Enabling regulation – financially viable providers, students as consumers, and minimising regulatory burden

What’s missing? An opportunity to say something on sector cohesion and co-regulation has been missed. There should really have been something about external pressures – the recovery and change as a result of Covid-19, the wellbeing of staff, the incoming demographic pressure on the system.

If you were writing a new strategy for anybody involved in English higher education, your environmental analysis would include the potential government response to the Augar report and the incoming Lifelong Loan Entitlement (PESTLE fans: that’s under P, E, T and L!). You will search the strategy consultation in vain for more than a single line noting the LLE might be a thing. So maybe a goal around delivering and supporting systemic changes. And another about working in partnership with other agencies.

There’s a school of thought that would suggest waiting until you have all your senior roles filled before you wrote a strategy – the whole point of recruiting good board members and directors is to let them have an input into things like this, surely?

Dirty hands

We know from a speech at the Independent HE conference that the quality and standards arm of OfS is keen to get stuck in the investigation, compliance, and enforcement toolbox. The consultation document recaps some of these approaches in paragraph 25:

We use a range of regulatory approaches to secure compliance with the baseline: setting clear expectations for compliance with our conditions of registration; taking proportionate action to secure compliance with this baseline, escalating enforcement action where it is breached; and intervening where a provider is at risk of dropping below it. We also communicate information and use influence to incentivise compliance with the baseline.

The next paragraph reminds us that the big sticks remain in the box – OfS can restrict provider access to student fee loans, OfS grants, and degree awarding powers, and this will be done using a risk-based and proportionate approach that puts student and taxpayer (read: government) interests first.

But what if OfS was somehow aware that parts of the current regulatory approach was sub-optimal? What if some one-in-a-generation global crisis had demonstrated that the system was riven with perverse incentives, subject to unhelpful ministerial pressure, and unable to demonstrate the flexibility and compassion that was needed?

Sandy feet

There’s no admission of any of this, but the glimmer of hope that things could change comes via a regulatory sandbox. The same paragraph is repeated three times within the documentation:

We will consider using our funding powers to support small-scale, regulatory ‘sandbox’ activity for providers wishing to experiment in innovative and flexible approaches in a way that continues to satisfy our requirements.

You could see, in this context, a “sandbox” as being the higher education equivalent of a “freeport” – an area where the expectations and requirements applied to most provision can be selectively disapplied to support innovation and drive expansion in a targeted way.

The original design of the Office for Students – as an outputs-focused, “responsive” regulator explicitly invoked a blindness towards approaches and structures that would encourage innovative providers and provision both in form and function. The fact that we are looking at a “sandbox” to encourage innovation suggests that this hands-off approach has been found wanting.

Listen to the song here in my heart

There’s an interesting and quite off bit of the documents that formally consults on adding the following sentence to OfS’ regulatory framework:

For more information about our priorities in a particular strategic period, please consult our current strategy, which can be found at www.officeforstudents.org.uk/about/our-strategy/

Who knows why this is necessary, but it does remind us that with the powers given to it by HERA, OfS has a set of choices about what to focus on. Now if you were an organisation whose principal beneficiaries were named in your title, you might reasonably set about involving those beneficiaries in determining those priorities, right?

You could talk about the consultation exercise with students that had underpinned your thinking. You could describe the meetings with students’ unions and the deliberation over strategy carried out by your student panel. You could reflect on the complaints that have come in via the OIA, or national NSS results, or notifications. And even if you can’t say hand on heart that any of that has influenced you, you could at least mention the “refresh” of the student engagement strategy you’re running right now.

Nothing. Nada. Even the paternalism doesn’t sound especially benevolent this time around. There’s a couple of pages reminding us that 25 different directions in ministerial guidance letters have helped shape the strategy, both not a single word on how students have.

Anything else

  • You’ll scour the document in vain for any hints about the new TEF – something that feels a little vestigial given the central focus on baseline quality. There does appear to be new student/applicant focused communications coming on the diversity of provision (which you could read alongside the general supply-side feel of the LLE).
  • We’ll also see case studies backed by qualitative and quantitative research on sexual misconduct and harassment – this does feel very much like a plan to influence rather than regulation intervention (though we know from the Freedom of Speech Bill that issues that the government feels are important can be added to the regulatory framework).
  • It looks like the current and planned B condition consultations will be followed by a look at the C conditions covering student protections, as soon as next year.
  • The five questions are very open ended – comments and clarity, qualitative not quantitative. You have until 6 January to submit these via an online response form.

Overall, what’s especially striking about the thing is capture – just not by providers. You might remember that last year, OfS held an online event where it debated the problem of regulatory capture – where agencies come to be dominated by the interests they regulate and not by the public interest. When OfS was set up, it was to eschew the cosy club of HEFCE and be robust in the student interest instead of provider interest.

There always was a problem in defining “the student interest” and it always did obscure that political interests looked likely to dominate instead. In the absence of a real vision, at least James Wharton has dropped the pretence.

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