The government’s legislative plans for higher education have a few problems

Draft statutory instruments are always welcome. They give us a first chance to look at government plans, and – ideally – represent a chance for further feedback.

At first glance, everything in the draft Higher Education (Fee Limits and Fee Condition) (England) (Amendment) Regulations 2026 is as expected. We’ve already learned, via a policy paper published alongside the November Budget, that the higher level fee cap will rise to £9,790 in 2026-2027, and £10,050 in 2027-28 – with caps at other levels also rising proportionally.

The peculiar thing about that announcement, and thus this draft legislation, is what happens in January 2027. That’s the point when the entire undergraduate funding system will switch over to the Lifelong Learning Entitlement funding system: the one where the government will set fee caps per academic credit (with a small number of carveouts for courses that can only be taken year by year).

The explanatory note to this draft SI does refer to this at section 11.3:

Fee limits for new undergraduate students whose courses start on or after 1 January 2027 will be covered under the new Lifelong Learning Entitlement system, which will be set out in a separate SI that is expected to be laid in Parliament in spring 2026

This legislation to land in spring 2026 – it is pretty much the last point it can happen if the LLE is to kick of as planned in January 2027 (if you are advertising a course that starts in January 2027, one year from now, you need to tell people how much it will cost pretty soon).

The draft SI we are dealing with here uses the old powers (from the Higher Education and Research Act 2017) to raise fees as the government has already set out. Trouble is, the new powers under the Lifelong Learning (Higher Education Fee Limits) Act will completely redefine the way the HERA powers work.

So, despite this just-published draft 2026 SI setting fee limits for the 2026-27 and 2027-28 academic year, when the new powers are in place the fee limits will need to be set again. By credit.

On one level that is pretty easy to do: the caps currently refer to one (120 credit) year of undergraduate study. So the per-credit caps are likely to be £81.58 next year, and £83.75 the year after. On the other hand – why would you? Why would you set fee limits and then reset them at the same level via a different mechanism.

And then we come to the Skills Bill.

The government has been looking for a suitable primary legislative vehicle to do various things regarding higher education. There’s some stuff on free speech, some twiddles on access and TEF, some bits from the Behan review on OfS governance – hell, I had a list of asks myself if anyone from DfE is reading.

We can talk confidently about the Skills Bill because of a stray mention in the draft impact assessment for the 2026 draft SI. We learn that fee rises:

will also help stabilise the sector’s finances and put HE providers in a strong financial position to respond effectively to forthcoming reforms to be pursued through the Skills Bill, which include higher quality thresholds to be introduced as part of planned changes to the OfS’s quality regime

Sounds fun, doesn’t it? The first thing it makes me think of is the proposed link between the new Teaching Excellence Framework and the fee limits. But as I seem to be forever screaming into a formless, nameless, void until the stars burn out the government does not need new powers to do this.

TEF is a Higher Education and Research Act 2017 section 25 scheme to apply ratings regarding the quality and standards of higher education provision by particular providers. Despite the name, there’s not a lot of parameters set in section 25 (in contrast the Pearce review got its own section, section 26).

You’ll find the bit about the link to the fee limit in schedule 2 of the same act – a section 25 rating may turn out to be a “high level quality rating” which can (schedule 2, section 2, paragraph 2, subparagraph a). And even if we turn to the draft SI just released we can see that this is already happening – for 2026-17 the “higher amount” fee cap for providers that have a TEF award is £9,750 and the one without a TEF (“the floor amount in respect of that higher amount”) is £9,525.

Of course, because the Secretary of State currently agrees that Bronze, Silver, and Gold TEF awards are a “high level quality rating”, if you have a TEF then you get to charge the full amount. If she changes her mind for future years (as she can) then maybe only Gold and Silver will count as a “high level quality rating”.

So, in essence, the Department for Education’s legislative strategy as expressed here does not appear to make any sense.

A bill is coming (a very welcome bill, I hasten to add, that could possibly fix a lot of very broken things) for the ostensible purpose of making a link between TEF and fee caps that already exists and is in use. And a draft SI has been laid which will be superseded very shortly after it has been enacted.