On average, a Universities UK affiliated university in England needs 18 full time equivalent staff just to ensure that it complies with regulatory requirements.
The total commitment of time to regulation that Moorhouse Consulting identified on behalf of Universities UK in a survey of 116 universities was an astonishing 128 FTE at executive level, 638 FTE at manager/director level, and 1,289 at officer/coordinator level.
That is a lot of time spent on regulation.
Why we need regulation
The counterpoint to all this needs to be that regulation is necessary for a sector with access to billions of pounds of public funds, and which is responsible for the development of a skilled workforce and the creation of commercially valuable research. Universities need to be answerable to the government (and, of course to other customers) when they fall short – and they need to be transparent about what they are doing and how.
Though the Office for Students has principal responsibility for the higher education sector in England – and has a say over the power to award degrees or access public funding – it is by no means the only regulator that universities worry about. Apprenticeships, even at degree level, have their own complex requirements. The many providers offering further education alongside higher education need an interface with another regulator. We’ve covered many times the needs of professional, statutory, and regulatory bodies (PSRBs) in particular subject areas, or with relation to entry to fields of employment.
That said, if someone in English higher education is about to complain about regulation in higher education, the chances are that the OfS will be in the line of fire. And – although members of every regulated sector have horror stories about “their” regulator, the OfS does seem to have particularly upset the sector it is responsible for – to an extent that the now biannual “relationship resets” have been unable to address.
A bit of history
Higher education in England has been a regulated sector for a long time. OfS predecessor the Higher Education Funding Council for England may have principally acted as a funder (and, occasionally, an advocate for the interests of the sector within Whitehall) but it was still a regulator – as was (to an extent) the University Funding Council (UFC) before it. In those times, conditions of grant did some of the jobs that conditions of registration do now – there may not have been a TEF or reportable events, but there were (two, overlapping) highly interventionist quality assurance regimes and a cyclical financial audit process.
So how has the Office for Students managed to annoy so many people in a comparatively short period of time?
Moorhouse cites “limited engagement, unclear requirements, and disregard of consultation responses”, alongside “highly prescriptive” requirements and “short notice changes” as evidence of a “strained relationship” between regulator and sector. Throughout the report, though there are many of the now familiar calls for “risk-based regulation”, it is the quality of the relationship between OfS and the sector (indeed, between the OfS and pretty much everyone) that seems to be causing the trouble.
OfS set out with the aim of bringing responsive, risk-based, regulation to higher education in England. With a part of the impetus for the shift from HEFCE being the development of a “level playing field” to allow new entrants to bring their own innovative flair to the sector, the idea was that newer and riskier providers would get more attention in the early years – with established providers (with decades of experience in offering what was generally seen as a service of globally competitive quality) benefiting from a looser leash.
This never really happened – OfS noisily scrapped cyclical review of providers’ own quality assurance practices, but replaced it with an array of data informed external monitoring of messily-defined “outputs”. Newer providers, meanwhile, enjoyed a registration process that was neither speedy nor responsive – and complained bitterly about it. All this was compounded by rapid staff turnover at the regulator, pressure on OfS capacity, and a shift in roles meaning that OfS came across more like an impersonal watchdog than people that understood higher education.
Is it all about good comms?
The Moorhouse recommendations centre on this “air war” of the overall regulatory relationship – despite the title of the report it feels clear that burden can only be addressed when trust is restored and regulation proceeds via a longer term plan rather than rapid shifts and numerous consultations. There’s nothing new or unexpected – yet another “reset”, clearer documentation planning and delivery (including publication timelines, and consultations that include an in-built assessment of the impact of new information requirements on providers).
Universities UK, in responding to the report, repeats the call for a full review of OfS under the auspices of the Public Bodies Review process due later this year – there is a possibility that this could just be an in house checkbox approach like last winter’s post-legislative review of HERA, and Universities UK are very much on the front foot for what we could mischievously call a “boots on the ground” approach – with the voice of regulated providers central within that.
A notable addition to the Moorhouse recommendations is a UUK call to reinstate the stalled DfE Higher Education Data Reduction Task Force. This Michelle Donelan innovation was a Johnson-regime attempt to tame the hydra of higher education data requirements (which seem to multiply with alarming frequency) with an expert working group. It all seemed to peter out during the Truss interregnum, though its work is needed, with the advent of the LLE and the spectre of in-year Data Futures collections, more than ever.
Regulatory capture
There’s a way of seeing this kind of special pleading as a kind of hedge against the impact of high quality regulation – in other words, of course the sector doesn’t want to be regulated properly in the interests of students. While providers might reasonably claim to have a concern for the student interest, the incentives do not always stack up to ensure this is at the forefront of decision-making, especially in times of collective crisis, and this situation doesn’t show many signs of getting much better. Surely we need someone who can speak up for students?
Trouble is, as the evidence that has come to light around the forthcoming House of Lords Industry and Regulators Committee report has shown, the Office for Students has not done a particularly good job at this – and has seemed much happier representing the interests of ministers and the government, who have also been bad at looking out for the interests of students and graduates – I mean, try talking to them, at least. That report, when it lands in coming weeks, will couple the trenchant and important regulatory critique advanced by Moorhouse and UUK with the parallel concerns about the student voice in the Office for Students and the disquieting closeness between the policies of the Conservative Party and the work of an independent regulator.
And if that doesn’t do the job, the Institute for Government is also planning an independent view of the work of the OfS to follow.
Clearly, nobody benefits from maintaining the status quo – and the Office for Students, if it is to survive, needs to change rapidly. There have been some encouraging changes recently – the latest reset appears to be beginning to achieve results, it appears that humble pie may be consumed following the low-key mess that was this year’s National Student Survey, and we even saw a meaningful early consultation about regulation.
But it is not clear that this will be enough. With more critical reports on the way, by the end of the month things could look very different.
Us are businesses and, given the chance, all businesses cheat their customers – hence various forms of controls and regulation in most countries, from anti-cartel laws via consumer protection regimes to actual inspection.
UK HE plc some decades back avoided inspection by what has become OFSTED as for schools by setting up its own toothless watchdog (latterly the QAA), and now squeals because the OFS is getting closer to being a proper regulator than ever was the cosy UGC/UFC/HEFCE.
While the OFS (along with the CMA) needs to get much tougher with Us re their being obliged fully to apply consumer protection law for the benefit of student-customers, it is doing a good job – measured by the whinging from the VCs, whose trade body (the UUK) could and should have been and be far more proactive in terms of anticipatory self-regulation over (eg) degree grade inflation, teaching quality & quantum, and executive pay.
If there is to be any change it should be by way of creating an OFTE – Office for Tertiary Education – for if/when England ever gets to progress (like Wales) to a joined-up post-18 tertiary system.
Indeed Universities need to be taken to task by a regulator, not some wishy-washy body that’s too closely connected to University management.
As to the 18 FTE, I suspect that pales into insignificance to the EDI staffing in many Universities, though from my experience they’re an even bigger waste of resources, being little more than simple window dressing to attract/pacify students, yet toothless when there’s disability discrimination and inequality involved.
Well I guess you’ve identified the problem in your first three words. Universities are (generally) charities whose objects are the public good of education. Creating an environment that makes them behave like businesses was a bad move. Businesses have the primary and overwhelming objective of making money, not public service. The pressure to act as businesses, rather than just being businesslike in pursuing public benefit, more or less guarantees things will go badly.
There’s no doubt that any organisation is at risk of having its behaviours distorted into the interests of those who control it. The legal profession, for example, has distorted the law into something that bolsters the need for lawyers, rather than the most efficient way of managing the conflicts between different interests in society.
Charities aren’t special cases without the need of external watchfulness to keep their behaviour aligned with their constitutional objectives. But the crude managerialism, ever more numerical judgement and crude rule setting, the first resort of centralist government, has not been successful elsewhere. It harms rather than bolsters the disinterested professionalism that is needed to manage complex work with all its local variation.
David, I can’t agree that the OfS is doing a good job. I struggle to see evidence of it truly focusing on risky providers or provision or understanding the sector it regulates let alone the interests of the students it purports to be an office for. As you say, it could (and should) be doing more in the sphere of consumer rights, but that seems of little interest to it as that would be something that may be of actual benefit to students.
You are quite correct that the sector does need regulation, but it does need to be with the interests of students at its core.
OfS certainly creates lots of extra work for universities and others via TEF, APP, its B3 data and its lengthy consultations but compared to the work that universities generate themselves in admissions, assessment, committees, REF etc, it seems quite modest.
The UUK commissioned research identifies 2,000 jobs working on OfS.compliance in a sector that employs more than 300,000 people. 18 people per university working on OFS complianve is a lot of wasted effort but it would be worse if there were Ofsfed-style inspections of teaching, monthly student data returns, externally commissioned audits of student records, individually priced programmes for all students and some of the other things experienced by schools and colleges.
And whatever the HE regulator does or doesn’t, there’ll be a rising tide of work associated with consumer protection, duty of care expectations, data/privacy regulation, the Protect and Prevent duties etc which can probably only be addressed by a relentless search for efficiency, AI and a willingness to challenge existing practices.
There’s an issue glossed over here in staff turnover. The rapid exit of almost all the longer term middle and top level managers (and reasons for this) should cause concern for anyone concerned about quality and consistency of decision making.
Churn is normal, to a degree, but as you say there are too many things being hidden, NDA’s are one of the tools they use to keep things quiet and out of the press and public eye (and staff in the dark). Some of the worst failed in the ‘real world™’ senior (mis)management appointee’s I’ve had the displeasure of working under/dealing with use the University sector as a ‘safe haven’. But when the truth about just how much they cost their ‘real world™’ previous employer come out many slink away, but not before shafting the unfortunate University that employed them, and all too often it’s staff.