The Office for Students is at pains to be clear it is a risk-based regulator.
This is a common regulatory approach in a mature sector – the assumption is that the majority of participants are of good quality and act in good faith. Autonomy is granted, and the regulator would not step in unless clearly identified minimum standards are not achieved.
However, the lived reality of this regulation – in the registrar’s offices and boardrooms of English universities – is quite different.
On Wonkhe this morning interim Chief Executive of the Office for Students Susan Lapworth expresses concern about providers focusing on what she calls “documentation” – the cumulative achievement of institutional quality assurance processes and multiple stages of oversight – rather than “compliance”.
She takes pains to encourage universities to focus on their own priorities – and she admits that:
My heart sinks when I hear mature institutions expressing uncertainty about whether and how they should respond to a routine letter from the OfS
In other words, the regulatory position is that universities are suffering from a lack of confidence – making poor use of autonomy and delegation, and managing perceived risk in a belt-and-braces sign with significant attention at a very senior level.
She wonders why this might be.
Fifty-five times universities have been threatened with fines since 2017
This is not an exhaustive list, and for obvious reasons focuses on public rather than private communication with the sector. There’s also a focus on government and regulators – how a record like this contributes to the wider public discourse is a matter for further debate.
- Students using essay mills (Jo Johnson, 21 Feb 2017)
- Excessive unjustified VC pay (Jo Johnson, 7 September 2017)
- Free speech (Jo Johnson, 19 October 2017)
- Free speech (Jo Johnson, 26 December 2017)
- Grade inflation (OfS, 12 January 2018)
- Strikes causing harm to students (“a senior source” at OfS, 27 February 2018)
- Just generally (Sam Gyimah, 28 February 2018)
- Free speech (Sam Gyimah, 3 May 2018)
- A lack of recruitment diversity (Sam Gyimah, 6 June 2018)
- Excessive unjustified VC pay (Nicola Dandridge, 18 June 2018)
- Grade inflation (Michael Barber, 19 July 2018)
- A lack of recruitment diversity (Chris Millward, 7 September 2018)
- Poor graduate outcomes (Office for Students, 27 November 2018)
- Not recruiting enough white working class students (Damian Hinds, 13 December 2018)
- Grade inflation (Office for Students, 19 December 2018)
- Unconditional offers (Nicola Dandridge, 25 January 2019)
- Not addressing black attainment gap (Chris Skidmore, 1 February 2019)
- Drop-out rates (Damian Hinds, 7 March 2019)
- Grade inflation (Damian Hinds, 24 March 2019)
- Grade inflation (Damian Hinds, 11 July 2019)
- Just fines in general (Jo Johnson, 1 August 2019)
- “Bribing” applicants (Office for Students, 18 December 2019)
- Sexual misconduct (Nicola Dandridge, 9 January 2020)
- Unconditional offers (Nicola Dandridge, 24 March 2020)
- Unconditional offers (Office for Students, 3 May 2020)
- Unconditional offers (Office for Students, 3 July 2020)
- Inadequate teaching during a pandemic (Office for Students, 28 September 2020)
- Antisemitism (Gavin Williamson, 9 October 2020)
- Inadequate teaching during a pandemic (Nicola Dandridge, 9 October 2020)
- Inadequate teaching during a pandemic (Office for Students, 17 October 2020)
- Running poor quality courses (Nicola Dandridge, 17 November 2020) (£500k)
- Grade inflation (Office for Students, 19 November 2020)
- Free speech (Gavin Williamson, 9 February 2021)
- Free speech (Gavin Williamson, 13-17 February 2021)
- Recruiting too many students (Office for Students, 17 March 2021)
- Free speech (James Wharton, 9 April 2021)
- Free Speech (Government, 11 May 2021)
- Silencing holocaust deniers (Michelle Donelan, 13 May 2021)
- Continuing to teach online (Nicola Dandridge, 6 July 2021)
- Free Speech (Gavin Williamson, 11 July 2021)
- Grade inflation/running poor quality course (Office for Students, 19 July 2021)
- Online teaching (Gavin Williamson, 11 August 2021)
- Free Speech (Gavin Williamson, 9 September 2021)
- Not assessing spelling (Office for Students, 6 October 2021)
- Strikes causing harm to students (Office for Students, 1 December 2021)
- Poor quality courses (Office for Students, 19 January 2022)
- Grade inflation/quality (Office for Students, 2 March 2022)
- Online teaching (Department for Education, 1 April 2022)
- Online teaching (Office for Students “sources”, 10 April 2022)
- Online teaching (Michelle Donelan, 22 April 2022)
- Free speech (Michelle Donelan, 26 April 2022)
- Online teaching (Michelle Donelan, 30 April 2022)
- Grade inflation (Office for Students, 12 May 2022)
- Online teaching (Michelle Donelan, 14 May 2022)
So very fine
I’ve heard it argued (not by a “senior source” I hasten to add) that much of this invective is aimed at voters rather than vice chancellors – a chance to see the government “clamping down” on things. But this is the mainstream media – the radio programme university staff turn on in the morning, the newspapers and websites they read. The repeated message is simple: if you do things we do not like we will fine you. Or deregister you.
The rash of articles after the passage of The Higher Education (Monetary Penalties and Refusal to Renew an Access and Participation Plan) (England) Regulations 2019 focuses on the maximum possible fine – £500,000, seldom noting that a secondary cap of 2 per cent of turnover (defined as fee income plus OfS grants) also applies. This is a discourse of “shock and awe” – feel the width of the fine and tremble.
The actual Office for Students approach to “monetary penalties” is surprisingly sensible in comparison. It takes into account the severity of any offence, the size and turnover of the provider, and the willingness of the provider to make changes (assessed in part via a track record of compliance”.
We do not, yet, have any evidence of how this works in practice. The Office for Students was unable to confirm that any fines had been levied outside what is listed on the monthly bulletin of regulatory activity. The two listed monetary penalties relate to access agreements – one (Writtle College 2018) claws back an underspend on financial support for students, the other (University of Hertfordshire, 2018) relates to fee overcharges on 44 students over three consecutive years. In the latter case the university repaid the students in question, and also received a small (£66,000) reduction from OfS grants the following year.
What to make of it
Threats lead to anxiety, which leads to compliance. That’s pretty much the point of threats. It betrays a limited theory of change – and yields a culture of tick box compliance. Universities very much do not want to be fined (for reputational as much as financial reasons), and will take very careful steps to avoid it.
It’s fair to assume that these careful steps may include the belt and braces approaches to assurance that – although not technically required by the Office for Students – allow senior leaders to sleep peacefully. The way the REF is perceived in universities – as described in Órla Meadhbh Murray’s superb piece for Wonkhe on the topic – offers research evidence for this effect in action as a part of another reputational (and in some cases, financial) risk management process.
I say risk management rather than risk avoidance because there is evidence from other sectors that the language of fines sits very close to the language of commerce – larger concerns in resource extraction or finance routinely incur fines as a part of a cost of doing business. It’s possible a contentious and politically motivated fine (on whatever “free speech” means this week, for example) would actually constitute an anti-establishment filip for a university looking to recruit from the progressive end of the student and staff market.
Approaches to regulation
Former OfS Chair Michael Barber has written a lot about regulatory approaches in and around the public sector. In How to run a government… he described five regulatory approaches:
- Trust and altruism
- Hierarchy and targets
- Choice and competition
- Devolution and transparency
Hierarchy and targets are used to get a public service from “awful to adequate” – an approach that Barber characterises as depending on “a steady supply of reasonably good data on which to base decisions”. It has weaknesses – targets can and do lead to game playing, and it is difficult to further raise from adequate to excellence.
In the early days OfS appeared (not least in the utterances of the then chair, and in the language around the 2017 Higher Education and Research Act) to be attempting to manage a shift between this phase of regulation and one more suitable to fostering excellence – language around student choice backed by high quality information comes straight from the “choice and competition” playbook. As Barber characterises it:
To make it work, the service user must be given real choice and the information on which to base decisions, the money in the system must follow those choices; as a result the more attractive or successful providers will gain and the less successful will struggle
This is market language in a quasi-market world – the government still retains control over inputs, but both government and regulator are becoming increasingly concerned with outputs and their political implications. In a world where we have “strategic priorities” around subject and place we can’t just let “the best” providers get bigger and others go to the wall. The ideas of 2017 have not worked.
Trying another way
So what seems to be happening instead is a move towards “devolution and transparency”. Applicants don’t seem to behave like customers, so we once again need regulatory accountability. To quote Barber again:
It involves devolving power and responsibility to managers close to the frontline and then, through transparent publication of data on outcomes, holding them to account
This is very much the “name and shame” approach borne out in the constant language around fines and interventions, in the “transparent public ranking” of TEF and the various dashboards and data releases, and in the push to give more protection to the regulator in calling out individual providers. The prevailing wisdom is that this approach can move you from “awful” to (maybe) “good”. (“Excellence” to Barber only comes from privatisation, or from giving public services money and getting out of the way, though he only really recommends the first one).
Begging the question
What was the state of the higher education sector before the advent of the Office for Students? Overall student satisfaction in England has been at above 80 per cent since we started to measure it in 2005 – it reached a peak of nearly 85 per cent in 2015 and has then declined in a stately manner since the advent of the new regulatory regime.
The world-class research seen in REF 2021 was primarily conducted in the times before HERA. The bulk of the growth in “grade inflation” and in conditional unconditional offers occurred after the demise of HEFCE. Most of the heavy lifting in widening access was done even before 2010. We could go on.
This crude comparison is unfair to OfS for two reasons – the regulator administers a larger and more diverse sector than ever before (though, to be scrupulously accurate, the overwhelming volume of provision is still in the old HEFCE sector), and the new regime has weathered a major pandemic and a geopolitical upheaval that have had far reaching consequences for data time series of all types.
But – to be frank – was the sector really that awful on 31 December 2018? What is the problem to which a move from “awful” to “adequate” (or “good” at a push”) is the only solution?