OfS began consulting on the information that it will (or won’t) publish about providers all the way back in December 2020 – pausing only to issue a supplementary consultation in March 2021.
The big difference between the two was that in December 2020, the proposal was that OfS would not usually reveal information about an investigation into potential non-compliance with a condition of registration, except in some fairly specific and unusual circumstances.
By March 2021, that had changed – OfS was proposing that it would normally expect to publish information about an investigation into potential non-compliance with a condition of registration (or into other potential regulatory harm), at which point the hares were set off running, not least because:
- It was proposing to normally publish information when it opens an investigation
- It was also proposing to normally publish information about the progress of an investigation “at key” milestones (like, for example, once it got a report back)
- It was also proposing to normally publish information about any provisional decisions it had taken as a result of an investigation pending any appeal.
To explain and underline the importance of this, you may remember back in May that OfS press released “Regulator launches eight investigations into poor quality courses”, a headline now mysteriously deleted from its press release archive and replaced with the rather less…. judgemental “Regulator opens investigations into quality of higher education courses”.
What we didn’t know then about the Michelle Donelan-approved “boots on the ground” deep dive into a bunch of business studies provision was the identity of the lucky eight providers visited – but presumably now this consultation is complete, we’re about to find out, even though the investigation itself isn’t complete. Ditto the identity of those under investigation over grade inflation.
Unsurprisingly, in the consultation there was broad support for a general policy about publication, and general agreement that OfS’ regulatory activities should be transparent and accountable.
And while there was support for most of the information OfS proposed to normally publish or normally not publish, the “notable exception” was the proposal to publish information about an investigation before a final outcome is reached.
Some argued this could lead to public misunderstanding and the outcome of an investigation being prejudged, some talked about the potential impact on individuals connected with a provider when OfS publishes that information, some suggested that publication could cause (potentially irreversible) reputational damage to a provider, which could lead to knock-on consequences for student recruitment and its financial viability and sustainability, and some tried to argue that there should be the opportunity to engage with OfS before any publication.
As if now the pattern with these OfS consultations, three things have come of the process – OfS is basically going ahead as planned (former DfE SpAd Iain Mansfield is pleased), there are some materially insignificant changes to the wording of some bits of it to clarify it, and there’s a terrific 58-page document setting out in astonishing detail the rationale for doing what they planned do do anyway.
The decision is partly justified on public and student interest ground, partly on transparency, partly grounded in a court case and the precedent it sets, and partly in a new legal exemption for defamation in these circumstances that was buried in the Skills Bill last year. And there are still some circumstances where it might not publish – but fun is coming, “normally”.
One thing that the getting to the end of the 58 pages did remind me was that the OfS register is supposed to identify where a provider has entered into validation agreements (where the courses of a provider without degree awarding powers are awarded by another provider with degree awarding powers) and subcontractual (“franchising”) arrangements where a lead provider may subcontract teaching of some or all of a course to a delivery provider or to another organisation. That particular bit of transparency, which we were supposed to get when OfS was set up, can’t come soon enough.