I audibly gasped when I first read the judicial review judgement in the case of the University of Sussex vs Office for Students.
Not because Sussex won – I was expecting that. But because Justice Lieven didn’t just throw the OfS case out on a single ground: she went through every argument in forensic detail, leaving the reader in no doubt about her understanding that OfS was repeatedly and seriously in the wrong.
I can imagine a similar, if not entirely identical, reaction that morning at the Office for Students. The regulator quickly made the decision not to appeal (there really would have been no point) and to reflect on what the judgement was telling them. And today we get a “lessons learned” publication that goes far beyond OfS’ multiple “sector relationship reset” exercises.
The initial decision to investigate Sussex happened while Conservative peer James Wharton was chair of OfS, and Susan Lapworth became chief executive (having been a director with responsibility for regulation) shortly after the investigation started. OfS is now under new management, with Wharton standing down shortly after the last General Election, and Lapworth ending her appointment a few months before the judgement was handed down. With the two principal players now firmly off the court, a dispassionate response – and an opportunity for genuine learning – presents itself.
Mea maxima culpa
New incumbent OfS chair Edward Peck, and new joint chief executives Ruth Hannant, and Polly Payne set the tone in a short introduction:
We made mistakes in the University of Sussex case, and we regret this. We did not therefore appeal the judgment; instead, we promised to consider its findings with honesty and humility, so that they could inform our future approach to regulation.
We learn that the changes required dovetail with work already underway to respond to the two previous uncomplimentary reviews of regulatory activity administered to OfS – the House of Lords Industry and Regulators Committee review, and the Behan Review. To those reports, and the spectacularly detailed high court judgement we add the findings from an as-yet unpublished internal review conducted by KPMG (in the spirit of transparency perhaps it should be published?), the new OfS stakeholder survey, and conversations with colleagues and stakeholders.
Some of these findings have resulted in recommendations signed off by the OfS board. Others can be seen in changes to regulation – including the publication of a legally compliant definition of a “governing document” published alongside the report, and to be incorporated in a forthcoming update to the Regulatory Framework.
Such a pretty house and such a pretty garden
The headline is that regulation should present “no surprises” to higher education providers. OfS will “engage early, communicate openly, and use enforcement only where we consider necessary.” This approach will be embedded into internal processes, and will rely on an enhanced sector understanding of why OfS is doing what it does.
All the expected phrases are present and correct – where there are concerns, OfS will engage “openly and at an early stage” and give institutions a “meaningful opportunity to respond and improve.” Only then, and if needed, will formal regulatory activity commence (unless there is a “clear and justified reason” to do otherwise). Enforcement – the fines, the conditions of registration – will typically only happen where there are significant or escalating concerns, which have not been addressed through earlier engagement.
This is a significant de-escalation in a relationship between regulator and sector that has often seemed ludicrously combative. It is not a free-for-all – OfS is clear that this new mood will not stop “robust and swift action to protect students and taxpayers where this is warranted” – but the idea that the regulator will communicate clearly and offer opportunities to address concerns before we get to regulatory or compliance tanks on university lawns will be welcomed. Rather than seeking fault, the focus will be on encouraging improvement.
And all I’m asking in return
The unacceptable experience faced by Sussex will not be repeated – it is promised that “we will meet any provider we are investigating that wants to meet us, at least once in every investigation.” This is just one of the ways that OfS will engender respectful relationships with higher education providers.
This isn’t just a nice to have – a regulatory system where just 43 per cent of institutions trust the regulator to treat them fairly is not a functioning system. This came up in Behan, in the House of Lords, and is of a piece with what institutions have been saying since the inception of OfS. It is entirely possible to imagine a world where such dysfunction would have resulted in more radical change: OfS is very lucky to survive such sustained ill-will, and can perhaps thank a lack of ministerial interest in reconfiguring English higher education yet again for avoiding replacement.
There is a new mood of collaboration with sector bodies and the sector more widely – with promises of regular meetings as a part of routine regulatory practice. This particularly applies to communication with providers where there are concerns, as well as the promise of meetings (incredible that this has to be spelled out, really!) these will not be conditional on accepting that conditions have been breached. These new rules will be clearly communicated to the whole sector, alongside a greater transparency about the investigation process – older readers will recall us working to piece together what the process appeared to be based solely on investigative reports.
It was a clear black night, a clear white moon
A change to the OfS regulatory framework – such as that which is needed to enshrine the new, legally accurate, definitions of “governing documents” – requires laying the entire revised document in front of both houses of Parliament. In the past this has been done sporadically – the last changes were confirmed in 2022 – with numerous overlapping “regulatory advice” publications setting out interim measures that persisted over years.
From now, OfS expects to update and consolidate the framework once every year – meaning that the entire rulebook is now contained within a single document. Academic registrars everywhere will be delighted – such cohesion significantly reduces the regulatory burden, and ends a situation where rules are derived from numerous pdfs, press releases, speeches, and (let’s be honest) Wonkhe articles drawing everything together.
In another change that really should have been embedded from the start OfS will now seek to allow institutions to demonstrate compliance before fines, enforcement, and formal investigations begin. This is a distinct shift – and, as well as saving money and time for regulators and the regulators, it also emphasises that regulation is looking to bring about good practice rather than focusing on publishing past misdemeanors.
Making your mind up
By far the most dangerous finding from the judicial review was in paragraph 443:
The fair-minded, informed and not unduly suspicious observer would in my view conclude that there was a real possibility that the decision-maker here was biased in the sense of having a closed mind to the legal and factual merits of the university’s position
To make such a finding requires significant legal hurdles to be cleared – it is not language used lightly. It cuts at the heart of fair and dispassionate regulatory practice. And OfS treats it with according seriousness.
The KPMG review of OfS found that the boundary between developing policy, and enforcing compliance was blurred during the Sussex investigation. The concentration of decision making responsibilities on a complex and politically charged issue within a small group of officials did not help either. As KPMG also noted, a senior leadership preference – in this case to signal the importance of compliance in this area to regulated providers – runs the risk of gathering “decision momentum” that is hard to challenge.
How much of this can be laid at the door of previous senior staff, and how much is a failing of the way OfS is set up, should be very carefully considered. Good processes don’t mitigate against questionable decisions – they prevent them from happening.
Young team
There’s some findings that suggest administrative solutions – better record keeping, clearer sign-off processes, even identifying and using evidence more effectively and consistently. There’s also a clear need to build review points into investigation processes.
But we cannot and should not put the entire blame at the door of ineffective bureaucracy. OfS is commissioning a review of its structure, oversight, and processes that will recommend wider changes to the regulator and the way it regulates. This is expected by the end of 2026 – I hope (with transparency and trust in mind) it is published in full, alongside the board’s response to the findings. This project starts with a comparison with the way other regulators in the UK and beyond regulate.
Some structural changes are already underway. OfS will gain a specialist enforcement team, a financial sustainability provider engagement team, and a specialist team focusing on institutional management and governance. These may well require new staff and development for existing staff – but bringing expertise directly into institutional interaction can only help. These come alongside tweaks to the “quality, consistency, and evidential basis” of decision making – including setting out who makes decisions, how decisions are made, and developing clear templates and guidance for investigation and enforcement.
Fitter, happier, more productive
We should take OfS at face value. It has stopped attempting to ignore or trivialise criticism, it has committed to change, and it is making the right noises about transparency and communication. And we shall watch what happens as a result with interest, and with hope.
But it is hard to get past a sense that all of these new measures are the basics we should expect from any regulator. OfS – particularly within the Sussex case, but also more generally – has failed to reach what we might call the threshold standard for regulation. Running a fair and transparent investigation, having basically respectful relationships with the sector: these are core competencies enshrined within the Regulators’ Code and foundational within guidance from the UK Regulators’ Network (a peer learning organisation I still hope to see OfS join).
The OfS will improve – it needs to. Because I cannot understand why it should get another chance after this one.
A Sussex response
Sasha Roseneil, the vice chancellor of the University of Sussex, told us:
I warmly welcome the Office for Students’ lessons learned review and the constructive, forward-looking approach it sets out, but it falls short in a number of areas. It reveals deep cultural problems within the OfS in relation to freedom of expression and internal challenge, and it is heartening to see the new leadership setting different expectations for the organisation. Expectations that are more appropriate for a public institution, trusted to regulate one of the most important sectors in a democratic society.
I recognise and appreciate the new leadership’s commitment to learning and change and their acknowledgement of some of the OfS’s mistakes in the Sussex case. However, the report does not fully reflect the breadth or the seriousness of the High Court’s findings or all the lessons that could be learned from the case. It is also disappointing that the review missed the opportunity to engage with the University of Sussex when their lack of engagement was roundly criticised by the High Court.
