The unbearable heaviness of regulation

Should universities really need to retain every piece of assessed student work for five years? Paul Greatrix asks what happens when regulation goes too far

Paul Greatrix is Registrar at The University of Nottingham, author and creator of Registrarism and a Contributing Editor of Wonkhe.

Back in the 1970s there was a popular family game which was always being advertised – and was almost as much in demand as Rock ‘Em Sock ‘Em Robots and Evel Knievel and his stunt cycle.

Buckaroo! (I’m afraid it does have an annoying exclamation mark in the title, for those unfamiliar with this exciting offer from Ideal Games), involved adding a selection of items, from a frying pan to a bucket to a pick-axe on to a spring-loaded pack animal until, as one piece too many is added, the moody mule bucks up and sheds its load, with the last one to add an item being the loser.

Endless fun.

Beasts of burden

From the perspective of those inside universities it has felt for some time that – much like the poor overloaded beast in Buckaroo! – we are facing a cumulative regulatory burden in which regulation after regulation, requirement after requirement, directive after directive, are being loaded onto us.

Unfortunately, unlike the four-legged hero of Buckaroo!, we have no mechanism we can set off which enables us to relieve ourselves of the burden once it becomes too much. It just gets heavier and more expensive. The higher education version of Buckaroo! is much more likely to lead to collapse. It really is already getting close to unbearable.

I’ve written many times before about over-regulation and, without wishing to sound too repetitious, the growth in regulation remains a significant problem for our sector, especially in England where the consequences of the Higher Education and Research Act 2017 have led to a major and continuing increase in regulatory burden.

Regulatory event horizon

I’ve commented before on the absurd end point of all of this additional regulation – where the burden of regulation gets ever bigger and there comes a point at which a university collapses in on itself to form a super-dense and massive regulatory black hole. And then other parts of the sector are drawn in by the regulatory gravitational pull, spending more and more time and money on regulation until they too pass the regulatory event horizon and disappear into the black hole and finally our entire university system is squished into nothingness and we will reach the singularity of all that there is being the most intense regulation imaginable. No education but total regulation.

A bit daft I know. But we do seem to forget rather quickly the most recent piece of excessive regulation we have been required to adopt and move on. The last excess is analysed, understood, worked into systems and adopted and then everyone gets on with it. But the burden is increased, we forget about the last regulatory addition as we eye up the next one, and the poor mule buckles a little further. As the burden of regulation continues to grow and government continues to insist on more direction of and control over university activities we will reach a point where the cost of regulation itself and the expense for universities of complying with the regulation risks actually exceeding the cost of the activity regulated. Not quite a black hole but massive nevertheless.

Implementing higher ed regulation is a thankless business. Colleagues who have to deal with this stuff are not always embraced warmly by those they exhort to provide the necessary responses to satisfy external regulatory requirements. But universities all over the country now have new and bigger compliance teams charged with addressing and responding to the regulatory shovels and pick-axes to ensure that their institution does not fall foul of the plethora of regulations. And there is a lot of this stuff.

For example, in just one academic year, 2021-22, the OfS made over 50 requests of institutions and requested 25 data returns. As we move towards the departure of QAA as the Designated Quality Body we are also anticipating the growth in additional OfS-led activity in its role as fall back DQB. Calls are already going out for academics to support quality assessment activity. It’s fair to say that this development has not been greeted with joy by the sector and there is, as yet, no clarity on where the next DQB is coming from.

Archive of assessment

The other current major source of institutional concern (pending the Freedom of Speech legislation being finalised) is the implementation of the OfS B4 requirement. Paragraph 61 in relation to Condition of Registration B4, which is intended to ensure that students are assessed effectively and that assessment is valid and reliable and awards are credible states:

As part of its approach to assessing compliance with this condition, the OfS is likely to need access to students’ assessed work, including for students who are no longer registered on a course. A provider is therefore expected to retain appropriate records of students’ assessed work for such regulatory purposes for a period of five years after the end date of a course. Where possible, a provider is expected to retain records of student assessments in an anonymised form by removing students’ personal data from the records. However, in doing so, it should ensure that removal of students’ personal data would not limit the OfS’s ability to assess the provider’s compliance with condition B4, including by ensuring that all of the work of an individual student can be identified from the records.

There is an awful lot riding on the word “appropriate” here but reports of discussions with the OfS would suggest that it really does appear that this is being taken to mean everything. At the moment it seems therefore that all assessments for all students need to be retained for five years after the end of a course. This represents an enormous, staggering burden requiring institutions to establish new systems to collect, collate, organise and store securely many hundreds of thousands of items, of various forms, each year. A recent survey estimated a minimum cost in the range of £270,000 to £1m per institution depending on size. This seems to me very much at the conservative end.

And all to allow for the possibility, however remote, that an inspector may, at some point, want to assess the judgements on standards of marking and assessment in relation to a particular course at an institution. In other words, the English sector will be required to retain tens of millions of pieces of assessed work, at massive expense, on the off-chance that the OfS is concerned about standards on a particular course.

This is, by any definition, a disproportionate burden. The mule has no chance.

Value for money

On top of this there are well-placed rumours of a significant increase in the fees universities pay for the privilege of being regulated by the OfS. This despite the continuing erosion of the value of university fees and the expectation we do more and more for the same declining unit of resource. The proposed increase includes the additional cost of new and recent legislation, and universities should not be paying for this – we will have to pay enough to respond to it within our institutions. Moreover, the OfS should be able to allocate its resources more efficiently now it is fully up and running and be able to demonstrate it is really adding value to students.

As a first step it would be helpful for everyone to be able to assess the impact of each item being loaded onto our mule’s back. So, calculating the cost of the burden for each regulatory requirement and monitoring demand and using this as the primary performance indicator for the OfS would be a huge step forward to establishing what is really needed for a proportionate and risk-based regulatory framework.

I do believe the OfS is serious about engaging with the sector on all of these issues – for example, following some sector push back, it has recently announced an extended deadline for universities to respond to requirements for updating their Access and Participation Plans – and I really hope that we can move towards a clear understanding of the real cost of these activities, an acceptance of the need for a genuinely risk-based approach and proportionality in regulatory measures and a shared approach to reducing the burden.

But of course what we really need is a wholesale review of this burdensome and costly regulatory architecture. We know there is a pressing need for a comprehensive review of the higher education funding landscape and student finance but we do also need to assess the regulatory framework. Any funding review is going to be difficult and politically charged and will take time to implement.

Changes to higher education regulation could happen a lot quicker and deliver immediate benefit for the sector and save time and money too. So let’s start that review now.

Better then to set universities free, just a little bit. So we are more able to unleash our contribution to delivering what the country expects in terms of high quality teaching and learning, world-leading research and innovation and knowledge exchange. And not unbearably laden down like a poor over-regulated beast of burden.

This article represents the personal view of the author.

7 responses to “The unbearable heaviness of regulation

  1. Excellent reflection here as ever. With respect to assessment archiving, can’t wait to see how performance based assessments will be stored. Will regulations be that all productions that are assessments have to be filmed? Will they regulate production values to make sure the visual artefact is representative of the quality of the performances?

  2. Speaking to colleagues across the sector the issue of retaining assessments for such a long period is something many institutions are still yet to deal with. Many taking a holding position and waiting for further guidance which was promised on this. The article highlights need for new systems (there will be processes and staff costs as well) to manage the data which will need to be retained and easily accessible, if an inspection happens.

    If this requirement were to be enacted in its current form, the Sector would not be able to build up this body of work for 5 years after requiring at some years to implement. How would the OfS make these assessments of compliance in the interim?

  3. Do we need to retain work or the records of work? OfS says… A provider is therefore expected to retain appropriate records of students’ assessed work for such regulatory purposes for a period of five years after the end date of a course. Where possible, a provider is expected to retain records of student assessments in an anonymised form by removing students’ personal data from the records.

    If it’s records, then we keep Board of Examiners minutes etc ad infinitum – but, the water is muddied by the next sentence: However, in doing so, it should ensure that removal of students’ personal data would not limit the OfS’s ability to assess the provider’s compliance with condition B4, including by ensuring that all of the work of an individual student can be identified from the records.

    If we need to ensure that the work of an individual student can be identified then that, of course, rather moves away from records of work – when raised with OfS we were promised a guidance note, which we don’t (as yet) have – as Vicky has said, do we keep recordings of every performance, photographs of every fine art exhibit, and so on? So, many thanks for raising this again – we do need some guidance!

  4. Entirely agree with the article’s comments about the need for a fundamental re-think. Assuming this won’t happen, or if it does won’t happen soon, in the interim OfS should be required to undertake an evidenced regulatory burden risk assessment for all new and revised regulatory requirements. The costs of these additional requirements are borne by students through the fees that they pay, and OfS must be transparent about the costs to students of their incessant increasing of the regulatory burden.

  5. The bigger questions is why it is needed at all given all of the procedures that Universities have in place as part of quality control including verification or double marking, external examiners etc. More generally as you say the burden is now extreme in the sector and to what end?

    1. From a purely technical perspective (and I know others have pointed this out to the OfS), the requirement to (1) store work in an anonymised form, but (2) then be able to retrieve this for a specific individual, presents a challenge. Firstly, the main assessment platforms in use (be that Turnitin, VLE specific assessments) allow for students to submit anonymously, and then for that to be “broken” post marking so grades and feedback can be returned. They DO NOT permit for anyomity to then be reimposed. Therefore, the sector will need to develop a solution to this – either as part of existing tools or to develop a new one. That is every HE institution affected by this having to spend time and money creating a system or solution. Surely one option could be OfS commission their own platform and institutions upload work into that for archival purposes.

      The other point I haven’t seen mentioned: to store assessments (if we assume they mean the actual work) for this duration will come at a significant cost to the enviroment and have a significant impact on sustainability and climate. Storing files digitally is not carbon free (even if it does save paper) – multiplied by the number of institutions, then this represents a significant carbon footprint. Does the OfS have an aligned strategy to climate action, and if not why not. In this sense its regulations are truly not sustainable.

  6. Absolutely Paul. What I fail to see anywhere is a robust and transparent assessment of return on investment (RoI) from the OfS that is underpinned and justified by appropriate risk-based analyses. The purpose of regulation should surely not be to devise and implement increasingly expensive and disproportionate requirements so that all perceived risk of poor practice / quality is removed (which is how many in the sector are experiencing the OfS). Such risk eradication simply cannot be achieved in a system as complex and dynamic as the UK HE sector and will lead to ‘black hole’ implosion and the UK sector slipping down the international rankings. Rather, the role of regulation should be to develop proportionate responses to credible and concrete risks that can balance the magnitude and impact of each risk (remembering that risk is the product of the hazard and its consequence) against the cost of mitigating it. This then opens up the opportunity for transparent RoI analyses that can justify the value of the regulation that is being proposed to the sector and generate institutional buy-in. The unfortunate truth is that the vast majority of us in the HE sector recognise the value that good regulation can bring to everyone – it is not that the sector is intrinsically hostile to regulation. But, the current regulatory approach is generating increasing hostility because the value of the benefits of the regulatory burden is disputed. This is to the detriment of all of us – students included.

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