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Will the Office for Students’ proposals bake in disadvantage?

  • 28 January 2022
  • By Joan O’ Mahony

Dr Joan O’ Mahony is Director of Academic Development at Bloomsbury Institute London. Previously she was Senior Advisor (Teaching and Learning) at Advance HE, and before that the Academic Lead for Student Retention at the Higher Education Academy.

The purpose of any policy consultation by a regulatory body is to provide those who it regulates, and others, the opportunity to scrutinise and shape policy. Such consultation must therefore be carried out in a collaborative and bona fide spirit.

Running to almost 700 pages, the Office for Students’s second-stage consultation should be seen as not only providing the opportunity to comment on the technical or operational detail of the proposed policy, but also to offer those subject to higher education regulation the chance to interrogate the principles and assumptions that underlie it. There is particular value in this kind of scrutiny in a context such as now when the goals of provider and government (and regulator) do not always or often coincide. Bloomsbury’s mission is to extend opportunities to students passionate about accessing higher education, who would otherwise not have the chance to do so, and where we and they have judged they have potential to succeed and benefit from the academic experience and the significant levels of 1:1 support we provide. Ministers, while they share a commitment to widening participation, find this commitment vastly curtailed and shaped by the priorities of the student loans bill, and a deeply divided society made worse by spiralling levels of poverty.

As such, the second phase documentation – for all its additional, and in places useful, clarification – offers little to change the concerns of providers catering to particularly complex widening participation (disadvantaged and/or underrepresented) intakes and for whom in consequence risks of non-continuation are greater. For example, while interviews, entrance exams and psychometric tests are enormously helpful in making judgements about the potential of applicants without traditional qualifications, it is inevitably a more complex task than assessing applicants clutching a string of A-Levels. Moreover, tolerance of risk is inevitably greater in a higher education institution such as ours, aiming to fulfil an ethos of solidarity with the disadvantaged and excluded, applicants with significant potential who want a chance to realise it but who need support to do so.

These differences between Government and those widening participation providers catering to the most complex of intakes are perhaps not resolvable, but debate and discussion ensures we keep alive the questions of who higher education is for, and what is its purpose.  A number of issues raised by respondents to the Phase 1 consultation are particularly worth keeping in focus.

Equality impact

Respondents were concerned that the new proposals would unintentionally place disadvantaged applicants more at risk of exclusion from higher education and undermine efforts to improve equality and diversity. Such anxieties about risk-averse behaviour are not irrational. There is sufficient evidence from primary and secondary school sectors to show that where externally appointed indicators of success do not sufficiently account for the weight of disadvantage, then providers are motivated to act perversely. For example, the House of Commons Library’s Briefing Paper Off-rolling in English schools points to ‘gaming’ of the school performance system, suggesting the causal factor of ‘unintended incentives through school performance measures such as Progress 8 to remove lower-performing pupils from a school’s score.’ And in one year, the Education Secretary had to intervene 28 times in response to requests from local authorities with respect to Academies refusing to admit looked-after or previously looked-after children.

As a result, and whatever specific mechanisms providers ultimately chose, there is the possibility that providers will be more cautious about recruiting widely or prioritising the recruitment of students from under-represented groups, as the examples of behaviour in the secondary school sector have demonstrated.

In the summary of responses, the Office for Students notes that it was suggested they should complete an equality impact assessment to consider how the proposals could impact the access and participation of students from disadvantaged backgrounds, by driving risk-averse provider admissions. Interestingly, the OfS make no response to that. It is only in the consultation document itself that EIA is mentioned again. OfS write:

We have also had regard to the equality impact assessment conducted in relation to the OfS’s regulatory framework, which states that the impact of the quality and standards conditions is assessed as positive, in particular because the regulatory framework frames these conditions in a way designed to achieve a positive impact on students with protected characteristics and from underrepresented groups.

But the regulatory framework was of course published before the current consultations and before the proposals on universal baselines as well as the details of compliance and also before we know what happens to different student groups once these baselines are applied.

Variations in baselines

Another area where respondents don’t quite get an answer is in relation to the numerical threshold for part-time students. Despite the entire consultation being based on the argument that it would be wrong if all students did not enjoy the same minimum standards, the continuation and completion rates for part-time students are a full 20 percentage points lower than for full-time students (60% for continuation and 55% for completion). While not disagreeing that part-time (and mature) students have particular needs, respondents were keen to hear the Office for Students’s rationale, but the OfS limit their explanation to a one-sentence statement:

We take the view that there are structural differences for part-time courses, in particular the length of the course when compared with the length of an equivalent full-time course, which mean it would not be appropriate to set the same numerical thresholds as for full-time courses

Essentially, the Office for Students have adopted a more generous approach to the baselines for part-time students because of the challenges these students face and because they recognise these cannot be always fully compensated for by high-quality provisions. However, it cannot always be the case that part-time students, because of the extended study period are more vulnerable to externalities than a disadvantaged Foundation Year intake on a full-time integrated Foundation Year.

The OfS tries to square the circle on the question of Foundation Year with the proposal to construct split indicators for this provision so that differences in outcomes are more visible, but not as with part-time students to have a lower numerical threshold, leaving integrated Foundation Year providers ultimately dependent on judgements made as part of contextual considerations.

The OFS argument that this is justified on the basis of part-time being a different ‘mode’ of study (and not an adjustment on the basis of student characteristics) does not entirely convince; after all part-time study is mostly a challenge to students because of who they are.

Impact of COVID-19

Students entering higher education institutions this year and in the years to come may face more challenges than ever before. Even before COVID-19, while carrying out expert interviews with Directors/Heads of Counselling services as part of background research for a 2019 Department for Education  report on mental health, I was struck by accounts of students presenting with new and extremely complex issues that staff were not always certain how to categorise. The full impact of the pandemic on young people is a story that has yet to emerge, but there are indications that it may equally introduce challenges which we are not equipped to address.

The Social Market Foundation’s 2021 research report A matter of perspective? Outlook inequality and its impact on young peopleargues that COVID-19 has had a detrimental impact on the self-esteem and optimism that is vital to success in terms of labour market outcomes. In particular, young people from less affluent backgrounds have far less belief in their ability to achieve their goals: ‘(43%) of young people from such backgrounds expect to end up in a dead-end job’ compared with 29% from ‘comfortable families’. The Office for Students report the concerns from respondents regarding the pandemic in a number of places in their analysis and their proposals, but ultimately conclude with the somewhat contradictory remark, that while:

We do not yet know the longer-term impact on the sector or on student outcome indicators. … We think it would be wrong to set lower minimum requirements as a consequence of the pandemic, which will only have a temporary impact on student outcomes.

Keeping the bigger debate alive: Externalities of the labour market

Externalities that providers cannot control and that have a greater impact on widening participation students (for example, labour market bias) was the focus of many responses to the Phase 1 consultation heightened by a concern about the pandemic, which as noted received short shrift in the analysis. But it is vital we keep alive the discussions in the sector about how we can address this.  We recently opened Bloomsbury Institute’s new Law Clinic which provides free legal advice to people for whom legal aid is not available and who cannot afford to pay. But the Clinic has the equally important purpose of student learning: to provide Law students with clinical experience, and non-law students (from Business and Accounting) with the opportunity to develop their transferable skills. We are lucky to have external practising solicitors supervising our student advisers on a pro bono basis. These connections and opportunities for our students are vital in a society where access to the labour market is regularly determined by the name of your university rather than the quality of your course and the education you receive.

The Office for Students remark in the consultation papers that ‘We expect providers to do more to support future students who may have had lost learning in their secondary education as a result’. Providers will be doing this anyway, but we cannot do it on our own. We need Government to better challenge (or even regulate) employers for the provision of more inclusive recruitment practices. We all have a role in improving the quality of what we do, but it will only be effective if there is a genuine partnership between higher education, Government and employers that admits the extent of systemic disadvantage and works to do something about it.


  1. albert wright says:

    Some interesting observations regarding “more inclusive recruitment practices” relating to Universities and students but I strongly disagree with the idea of “We need Government to better challenge (or even regulate) employers…”

    The bulk of funding for schools, colleges and Universities comes from the Government by way of taxation. Government acts on behalf of society and should seek to provide more resources to and assist those who are disadvantaged when it comes to getting a place at University and making good progress while studying, on the grounds of “fairness” to those individuals and in the hope that this action will also benefit society.

    However, employers are in a different category to publicly funded Universities. Most employers are not publicly funded and should not be “regulated” / forced to provide more resources to employ people from disadvantaged backgrounds just because of where they come from and in particular, if this would put them in in a commercial adverse position.

  2. Lynn Danzig says:

    I find Dr O’ Mahoney’s insights persuasive and disagree with Mr Wright’s view about business being exempt from regulation. Compliance with the Equality Act applies to all.

    A government supposedly committed to levelling up should make sure that regulators do not prevent this by making widening participation in HE too risky for providers.

    Widening participation should be incentivised not discouraged by the regulatory framework.

    Business, like all sectors of society, has a responsibility to change discriminatory recruitment practices. They benefit from tax payers money spent on education.

    When arguing against regulation, the sector should show evidence of how they are providing equality of opportunity.

    With increasing use of opaque algorithms to decide on our opportunities (from bank loans to being short-listed for a job interview), removing barriers to equality of opportunity is at the heart of levelling up.

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