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Rebooting the regulatory framework

  • 7 December 2021
  • By Gary Attle

This blog was contributed by Gary Attle, Partner and Head of Education & Governance for Mills & Reeve LLP.

During the coronavirus (COVID-19) pandemic, the Office for Students as the regulator for higher education in England took steps to reduce the regulatory requirements which had to be met by registered providers.

A particular example of the reduction in the regulatory burden on institutions related to what are known as ‘reportable events’. These are defined in the OfS regulatory framework as: ‘any event or circumstance that, in the judgment of the OfS, materially affects or could materially affect the provider’s legal form or business model, and / or its willingness or ability to comply with its conditions of registration’.

In addition to an ongoing requirement to report some events (for example, a change of ownership or control of the provider), the focus on the reporting to OfS during the pandemic related to a) short-term financial risk and b) cessation or suspension of the delivery of higher education, including the inability to award qualifications or credit.

In its revised guidance published on 20 October 2021, OfS confirmed that the full reportable events requirements would come back into force from 1 January 2022.

A new definition of reportable events under an amended regulatory framework will be as follows:

A reportable event is any event or matter that, in the reasonable judgement of the OfS, negatively affects or could negatively affect:

a. The provider’s eligibility for registration with the OfS.

b. The provider’s ability to comply with its conditions of registration.

c. The provider’s eligibility for degree awarding powers, or its ability to comply with the criteria for degree awarding powers, where the provider:

(i) holds degree awarding powers; or

(ii) has submitted an application for degree awarding powers to the OfS, and for which the OfS has yet to reach a final decision.

d. The provider’s eligibility for university title, where the provider:

(i) holds university title; or

(ii) has submitted an application for university title to the OfS, and for which the OfS has yet to reach a final decision.

In interpreting the reasonable judgement of the OfS, the OfS will, as a matter of policy, consider whether a reasonable provider intent on complying with all of its conditions of registration and acting in the interests of students and taxpayers (rather than in its own commercial, reputational or other interests), would consider the event or matter to be material.

The revised guidance on reportable events makes a distinction between matters that must always be reported to OfS and those where a judgement will need to be made about whether a report is required or not. An appendix is included in the revised OfS guidance which includes a table setting out a non-exhaustive, illustrative list of reportable events. A column is included in the table to indicate which of those events is always reportable. By way of an example, a change to the control of a provider is always reportable but the fact of legal / court action being brought against an institution is not always reportable.

There is a very short time-limit for reporting a reportable event to the OfS, namely ‘within 5 working days of the date that the event is identified or, if that is not possible due to exceptional circumstances beyond the control of the provider, as soon as reasonably practicable thereafter and without undue delay’. There is further guidance about events that have yet to happen.

Reportable events is one mechanism by which OfS monitors registered providers for their compliance with their conditions of registration. The other main ways by which OfS monitors institutions are to consider relevant data ‘indicators’ and what are called “notifications” from third parties. OfS published revised guidance on its approach to monitoring and intervention on 20 October 2021.  

Earlier this year (8 July 2021), the OfS also published guidance on its approach to determining the amount of a Monetary Penalty. A Monetary Penalty is one of the enforcement powers of the OfS where there is or has been a breach of an institution’s conditions of registration. Other measures include: imposing specific conditions of registration; suspending a provider’s registration; and, deregistering a provider from the Register of English Higher Education Providers.

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