Thus far in the weekend delivery scandal, it’s been hard to envisage the circumstances under which the Student Loans Company’s (SLC) regs as published could have been misunderstood.
The story so far is the Department for Education wrote to a small number of providers on 23 March telling them they had incorrectly categorised courses that are distance learning, and DfE had “urgently requested” those providers work with SLC to correct the categorisation.
We understand that approximately 22,000 students are covered, and that DfE had made clear to providers that it was their responsibility to support affected students and provide financial hardship support. SLC customers found to have been “overpaid” will be expected to repay – either in full, via a repayment plan, or through deductions from future funding entitlement.
As such it’s worth taking a look at the history of the guidance that providers have been following. Because it turns out that it’s not always been quite so clear.
Every year for as long as I can remember, the SLC has published guidance on assessing eligibility, providing detail on who can and who can’t get financial support.
Since 2021, the section on Distance Learning courses has reproduced the definition of a distance learning course in the secondary legislation:
distance learning course” means a course on which a student undertaking the course is not required to be in attendance by the institution providing the course, where “required to be in attendance” is not satisfied by a requirement imposed by the institution to attend any institution (a) for the purposes of registration or enrolment or any examination; (b) on a weekend or during any vacation; or (c) on an occasional basis during the week.
But it hasn’t always been this way.
In the 2019/20 publication, for example, the guidance said that:
…Distance learning, sometimes called flexible or open learning, is a programme of study that allows students to study at home.
Then when defining full or part time, it says that courses which meet all of the criteria below would, in the department’s (ie DfE’s) view, be a full-time course for the purposes of regulation 5(1) of the Regulations:
Students are normally required to undertake the course for a period of a minimum of 24 weeks in each academic year, and for courses of two years or more, for a minimum of 8 weeks in the final year. A whole year full-time fee should be chargeable by the institution for the current year of the programme of study (exceptions to this will be made for students who are repeating part of a year). It is understood that full-time means that students are required to undertake their course on most days of the week and for most weeks of the year.
It’s not hard to see why a provider requiring on-campus attendance at the weekend that also expected substantial independent study during the week might have read that and thought “it’s a full time, non-distance learning course”.
The same is true for various versions of the guidance earlier than 2019/20, too.
It’s also worth a look at the guidance that surrounded specific course designation.
For most of the last decade, specific course designation worked as an application-based regulatory process for courses that were not automatically designated under the student support regulations. In practice, alternative providers generally had to apply, and designation was course-specific and location-specific rather than a blanket approval for the whole provider.
A provider that wanted support attached to a new course, a new location, or sometimes a changed mode of study had to go back through the process. The system was administered by HEFCE on the Department’s behalf, but the final decision rested with the Secretary of State. In the 2014 system there were two main application windows each year, while by 2017 existing providers could apply for additional courses or locations through the HEFCE extranet outside the original new-provider cycle.
The August 2014 guidance defined distance learning as a “programme of study that enables the student to study at home”. It said students would not be “required to attend traditional on-campus courses”, although there may be occasional and short periods of attendance. It also said distance learning courses could be full-time or part-time, and could be treated as full-time if students were expected to study for periods equivalent to full-time students who attend. No mention of weekend at all.
The 2015 supplementary guidance said that providers would have to provide the Department with their recruitment and attendance policies, and that controls would apply to part-time and distance learning expansion. That suggests the Department was paying specific regulatory attention to how providers classified and administered attendance, but still without creating any explicit “weekend” category.
Let’s therefore imagine that it was possible for a course that didn’t meet the strict legal definition that nevertheless got ticked out by the Department.
What providers had to say to get designation was extensive. They had to identify the provider and its key officers, nominate an accountable officer, and submit evidence on quality assurance, financial sustainability, management and governance, and course eligibility. That included validation or awarding-body approval, the course title and qualification level, mode of study, duration, delivery locations, start and renewal dates for validation arrangements, and evidence that the provider was approved to deliver the course at the specified site.
Providers also had to set out enough information for the Department and HEFCE to judge whether they were financially viable, properly constituted, and run by fit and proper persons. In earlier guidance, providers were also expected to provide contextual material such as attendance policies, complaints procedures, and details of recruitment agencies.
The application was not just a form-filling exercise. HEFCE checked completeness first, then assessed the submission and could ask for more information or clarification. Incomplete applications could be refused. If the Department was minded to refuse, the provider was normally given a short chance to make representations, but not to submit an entirely new case. If minded to approve, the accountable officer had to sign a declaration accepting responsibility for compliance with the conditions of designation. Those conditions became increasingly intrusive over time. By 2015 to 2017, providers were expected not only to maintain QAA approval and submit annual returns, but also to provide information on recruitment and attendance policies, enrolment and progression data, drop-out and completion rates, director changes, and to permit access to premises and records in some circumstances.
Via franchising and OfS, much of that has melted away since. But as I say, it’s perfectly possible to imagine that courses that didn’t meet the strict legal definition nevertheless met the criteria in guidance and got ticked out by the Department.
To get designation, providers had to describe the course in ways that bore directly on whether it was distance learning or not, even if the guidance did not always require them to write a freestanding narrative answering the question “is this a distance learning course?”.
The application material had to include the course’s mode of study, duration, delivery model, and delivery locations. It also said that validation and approval documents needed to include details of the delivery model, duration, and specified delivery locations. The 2017 guidance kept the same structure, requiring approval documents to include details of delivery model, duration, and named locations, and stating that separate designation was required where there was a different mode of study or duration.
The definition of distance learning in the 2017 guidance appears in Annex C:
A distance learning course is defined as one where students are not required to attend on campus sessions, although there may be occasional and short periods of attendance.
There is no reference anywhere in the document to “weekend delivery”, “evening delivery”, or any specific pattern of attendance across the week. Instead, the framework distinguishes modes indirectly through attendance requirements. Courses requiring regular, substantial attendance over defined weeks are treated as in-attendance (full-time or part-time). Courses where attendance is not required, or only occasional, fall into distance learning.
My inbox suggests that some professionally focussed weekend delivery courses delivered by what we used to call “alternative” providers were approved through the course designation process and its heavy scrutiny in the middle of the last decade.
In that sort of scenario it’s hard to find fault on the providers’ part, and since none of this is students’ fault either, even harder to stomach the idea that impacted students in a scenario of that sort are being asked to pay back maintenance received so far.