Jim is an Associate Editor at Wonkhe

It’s not the despair, Laura. I can take the despair. It’s the hope I can’t stand.

There are all sorts of critiques that you can make of the record to date of England’s higher education regulator, the Office for Students (OfS).

I should know. I’ve made a lot of them.

You can disagree with the political premise of the thing as a regulator of “providers” in a “market” where student consumers and their “demand” cause some to expand and others to fail. I’m not so sure about that – a world where demand doesn’t drive higher education would mean what? The government tells me what to study and where to live?

You can argue about regulatory burden and the extent to which compliance hampers your activities and your ability to actually deliver in the student interest. I’m not so sure about that either. Surely every regulated sector has to engage in a pendulum-swing tussle over burden of this sort from time to time?

You could take aim at the change in the nature of the relationship from friendly buffer funding council to gunslingin’ tough talkin’ regulator seeking to avoid regulatory capture. Again, not so much for me. It always was the case that the fees regime ought to mean a change in the relationship – and I mean the growth in international students in the mid-80s before I even get to the funding settlement today. Ultimately it always felt like too much was capable of being done quietly and behind closed doors in an era demanding meaningful transparency and individual accountability from all sorts of slices of public life.

You can argue about tone, or tactics, or transparency or the operation of the TEF. Maybe much of that is forgivable for a body that was only formed legally in 2018, was designed to operate explicitly in the student interest and has had major changes in political context and a global pandemic to contend with since.

We have, on the site, carried critiques of all of these things and more, in a level of detail that we suspect has been at times frustrating for those inside Nicholson House juggling multiple demands and impossible expectations on a never ending stream of issues over which “something must be done”.

So almost four years into its existence, as OfS publishes a major consultation on its strategy for the future, we thought it was time to pause and ask where, if it’s gone wrong in the past, it could go right in the future. Elsewhere on the site, all week we’ll be publishing views and ideas from some of the best brains from around the sector on improving regulation, and we’d welcome ideas from you too – whatever your role in and around higher education.

But as I say, it’s not the despair – it’s the hope I can’t stand. If anything one of the oft-repeated on-this-site cardinal sins of higher education marketisation is the idea that it encourages the raising of expectations beyond that which are reasonably deliverable by providers or experienceable by students.

So let’s take ourselves back, shall we, to what the Department for Education (DfE) said that OfS would do for students back when it consulted on the regulatory framework in the Autumn of 2017.

Life is demanding without understanding

Maybe the signs were there from the start.

When DfE published its consultation on the rules that higher education providers in England would have to play by once OfS was set up on 19 Oct 2017, the press coverage egged on by Jo Johnson’s officials on the day said little about choice, or value for money, or hidden course costs, or harassment, or quality of teaching, or the wider student experience or really anything that students were concerned about. It also barely mentioned the things that had been identified as priorities in either the Green or White papers that preceded the Higher Education and Research Act that had been approved a few months earlier.

It focussed on… freedom of speech.

“Ministers plan fines for universities which fail to uphold free speech”, ran the Guardian’s headline. The Times said the regulatory framework would force universities to “challenge the culture of so-called safe spaces” and to “answer for the behaviour of student unions” that no-platformed controversial speakers. Jo Johnson, the universities minister, said any that failed to protect freedom of speech could be fined, suspended or ultimately deregistered by the new regulator.

Naturally, the passing moral panic of a shapeshifting culture war meant that at the minister’s behest at the media’s behest, a regulator that was supposed to be busy constructing a sensible way to operate a “level playing field” of diverse higher education providers was dragged into setting expectations it could never meet right from Day One.

When on the day Michael Barber said “It’s really important that universities are a place where diverse opinions can be expressed, and that must include unpopular ones, otherwise it’s not really diverse”, did he think it was wise for the government to be threatening fines for a phenomenon that was obviously both exaggerated and more about wider political polarisation and the way the internet works than what universities were doing?

Or was he just asked to go along with it, to work with officials and add some paragraphs to a section in the consultation on “public interest governance principles” so Johnson could get through the next media cycle? And either way, why has nobody apologised for the whole wheeze apparently failing so hard that an entire separate Bill with identical media framing is now weaving its way through the houses of parliament?

We may never know. What we do know is what OfS was supposed to do for students.

Is enough enough?

On October 19th 2017, alongside a formal consultation on “risk-based regulation for teaching excellence, social mobility and informed choice in higher education” that was so complex that a separate document offering guidance on the consultation was published alongside, we got a phalanx of other documents too – a consultation on the “transition approach”, a “summary impact assessment”, a thing on Degree Awarding Powers and University Title, stuff on registration fees, pointless consultations on anointing HESA and QAA as the designated data and quality bodies respectively, and details of four consultation events in Birmingham, London, Bournemouth and Manchester.

And buried in all that was something else. A “student summary” of the whole thing.

I’m always amused when organisations that have no idea whatsoever about talking to students attempt it – especially when for ideological reasons an attempt is made to bypass SUs or NUS to get some sort of mythical “authentic” student voice. They almost always fall into one of two categories – versions of the How Do You Do Fellow Kids? meme from 30 Rock, or hopelessly dry and impossibly buried summary versions of complex proposals.

This was firmly in the latter camp.

“Whether you are an 18-year-old undergraduate, a mature part-time learner, or an international PhD candidate”, said the intro, conveniently sidestepping the almost complete absence of focus on the latter in the proposals or subsequent delivery, “all students should have a higher education experience that is positive and life transforming.”

Really? That would be nice, for sure. But all students should have an experience that’s “life transforming”?

Some blah about HERA and where to find the impenetrable consultation document followed. And then we got a sort of highlight list of the fantastic things the framework would achieve.

Your voice will be heard and your interests reflected throughout the OfS, influencing everything from how it is designed (chapter 2, paragraphs 72 to 75) to how it monitors providers (chapter 5 part C, especially paragraphs 232 and 244)”

This got off to a bad start partly because some of the paragraph references were wrong – we assumed because extra bits (on stuff like free speech) had been bodged in at write-round, famously leaving the published PDF with a filename of “HE reg framework condoc FINAL 18 October Final FINAL”.

We never did find out which paragraphs were being referred to, but the one para on involving students in provider monitoring promised that:

The OfS will in particular seek input from students themselves – this may be in the form of insights in the form of lead indicators from the National Student Survey, complaints raised with the OIA or by inviting representations from individual students and student bodies.

Have NSS results either at national or local level played this role? Have complaints that have reached the OIA – either in volume metrics or in terms of qualitative issues highlighted – ever led to OfS action? And other than inviting SUs to feed in to evaluations of Access and Participation Plans (a process which SUs have naturally had no feedback on so far) where’s all this “inviting representations” stuff?

Even HEFCE used to host an NUS officer as an observer to its board.

But where do you belong?

Next we were told that:

Disadvantaged students will be given more help before they start to access higher education, more help while they are there to succeed in their studies, and more help while they are there to progress to a good job or further study when they finish.

There was a Michael Barberology theory of change here. Holding providers to account on their metrics on access, drop out and graduate-level jobs would mean providers would focus on disadvantaged students getting in, getting on and getting out into the labour market. But there aren’t many in the sector that would agree that this “more help” thing has happened – instead a meaningless game of cat and mouse has ensued as the sector points out the multiple flaws in the metrics, while the regulator constantly refines and invents new ones, with little understanding of why things are the way they are along the way.

Will the teaching and learning be good? Well:

Your provider will have to meet high minimum bars for quality if it wants its students to have access to student loans (chapter 1, paragraphs 14 to 25, chapter 4, especially paragraphs 148 and 191), and the OfS will act quickly and decisively if you are at risk of receiving an educational experience that does not meet this bar (chapter 5 part E, paragraphs 277 to 308).

Little did students know that they would never be told what that minimum bar actually meant, that much of the judgement around it would be on outcomes figures available years after students graduate rather than a judgement on the provision itself, that they couldn’t complain on the basis of quality even if they did know the baseline, and that at the first sign of that that “educational experience” risk crystallising during a pandemic, OfS would publish a document making clear that “we do not expect to initiate any action in relation to performance on student outcomes until normal regulatory activity is resumed” – all while the higher education minister toured around the studios assuring anyone that would listen that the “minimum bar for quality” was still there.

It continued. It promised “clear and fair contracts between you and your provider, covering what you can expect to receive on your course” – work that was put off and put off and then stalled just before the pandemic – and is only obliquely referenced in the new strategy. It said students would “have access to information on how you can transfer to another course, or to another provider”, the “student transfers” duty that appears to have been totally forgotten both by providers and OfS, and on which has never reported on it meaningfully.

It said it would “be easier for you [you know, the Marty McFly previous you given it meant UG courses with an ELQ rule in place] to compare courses and providers, thanks to new information (like Teaching Excellence and Student Outcomes Framework ratings for each subject at a provider)” and “better presentation of existing information”.

Of course subject-TEF never happened, TEF metrics are now so old as to be meaningless (and so old that you can’t tell anyone about them right now) and anyway are so general in large providers as to be downright misleading as a predictor of your experience on your course.

And DiscoverUni – the centrepiece of OfS’ IAG strategy – turned out to be a light lick of paint on the old UniStats site, a beta that hasn’t progressed since.

“Your provider will have to publish statements on how it provides value for money” turned out to mean value for the taxpayer rather than students. And “your provider will have to have a Student Protection Plan to protect you and make sure you are able to finish your studies” resulted in a batch of plans that Michael Barber condemned as unfit in 2019 – with promised guidance on making them better not materialising since.

And all for the bargain price – taken out of the fees students pay – of over £600k a week.

I could go on. My particular favourite is the promise in the main doc that OfS would host a regular “consumer benefit forum” event with the CMA and the Office of the Independent Adjudicator (OIA) annually, with an opportunity for (mainly student) delegates to ask questions and discuss issues relating to consumer protection law, student complaints and good practice, and the regulation of the higher education sector. But none of that happened.

How could a person like you bring me joy

We are, as they say, where we are. I know that there are folks around the sector that feel they’ve had frustrating exchanges with OfS staff – but our interactions with them up to and including senior people tend towards encountering real talent, and I think you can make a much better case for governance failure and a bewildering array of priorities tumbling in from ministers.

In any case, who cares why we’ve ended up here when it’s where we should be going that matters. In theory a large-scale consultation on the future of the regulator and its priorities gives it a chance to reset, recalibrate, demonstrate some learning from its first few years and clarify its regulation in the student interest – but the defensive draft doesn’t suggest so.

In reality, the danger is that without being in listening and learning mode, OfS sets off again with the same confused priorities – and makes a similar set of mistakes – as it has so far. So in the spirit of constructive engagement, I’ve got five suggestions that I think would make a real difference to the way the thing works which would in turn make a real difference to what happens inside universities for students.

The first is to drop the obsession with outcomes. Of course it is the case that we should worry about whether students are dropping out or getting good jobs, and I don’t even mind if ministers want to base some funding or places decisions on those things even if I wouldn’t – but as a principle way of doing regulation, there’s too much noise in the data, too many external factors, and too much tussle over causation. Students want to know if the provision itself is good. We need to find much better ways to work out if it is, and tell them.

On a related matter, we do need a regulator that is geared up to understand students as well as measuring them. There can be no better example of this than the madness of almost two decades’ worth of knowing how many students think their assessment is unfair, while still not knowing why they feel that way. Changing that needs more than a few qual questions to be inserted – it needs a proper strategic drive to work with universities and their SUs to understand students and their experiences. That is almost always the fastest way to make things better for them.

Then, stop being so silly about quality. Have your baselines if you must. But the original DfE consultation over implementation of HERA was actually quite clever in the role it envisaged for the QAA – and therefore by proxy the sector itself – in making judgements which are ultimately academic. I feel increasingly sad about English HE when I see QAA enhancement activity in Scotland, Wales and Northern Ireland. We ditch all of that – and the inclusion of England in the UK Quality Code – at our international-reputation peril.

The next is to look again at student engagement. Not only does it feel like a departmental project rather than a value running through the regulator and its decision making – it suffers from the same kind of benevolent paternalism that some SUs do. Either you think your job is to listen to students and then do things for them, or you think your job is to make students more powerful where you only step in if you have to. Right now it’s too much the former – student reps near its orbit know it – and what would make the most difference is an OfS that did all it could to improve student engagement within providers rather than just with itself.

Next we need to look at burdens – but not just in that “leave us alone” sort of way. During the debate on the free speech Bill, Lloyd-Russell Moyle reminded the committee of the “new burden doctrine”, where in local government and the health service, if a new burden is put upon a body, the government will make provision to pay for that new burden, or they will provide for that body to be able to raise revenue to cover the new burden. In other words, we need someone keeping an eye not just on “regulation” itself but on the myriad expectations that there are on higher education providers, and whether they are all practically possible on £9,250 a year – and if not, to say so.

On a related matter, it’s absolutely critical in my view that OfS grasps the nettle on all of this student mental health, harassment and sexual misconduct stuff. The idea that it hasn’t used its powers to establish a simple condition of registration that requires every provider to consult on and develop a risk-based (adult) safeguarding strategy is as frustrating as it is baffling.

But overall, it’s that keeping promises thing that matters the most. Within universities, without interventions, the basic incentives are to promise high and deliver low – and unless I’m missing something, it looks like that set of incentives has infected the regulator itself too. Is there much wrong with that list of things OfS said it would do back in 2017? No. Is delivery against those promises a problem? You bet.

A regulator that is obsessed, for itself and those it regulates, with making sure that promises are clear, are kept, and supports students to get redress if not, would be one that starts to command the confidence from those its name suggests it serves.

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