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Have the Higher Education & Research Act and the Office for Students delivered for new and ‘challenger’ providers?

  • 12 December 2022
  • By Professor Sir Malcolm Grant and Mary Curnock Cook CBE

This blog is provided by Professor Sir Malcolm Grant and Mary Curnock Cook CBE. Sir Malcolm chairs the PLUS Alliance, which sponsors TEDI London; Mary Curnock Cook chairs the Council of the Dyson Institute and is a non-executive Director at the London Interdisciplinary School, and is also a Trustee of HEPI.

The Higher Education & Research Act 2017 (HERA) was conceived in a different policy age. It was an enactment of the ideas put forward in 2016 by Jo Johnson, then Universities Minister, in the White Paper, Success as a Knowledge Economy. Among other things, the White Paper posited that allowing new challenger institutions to flourish would help drive up quality across the sector. In the press release accompanying the White Paper, Jo Johnson said:

Our universities are engines of economic growth and social mobility, but if we are to remain competitive and ensure that a high-quality education remains open to all, we cannot stand still. Making it easier for high-quality challenger institutions to start offering their own degrees will help drive up teaching quality, boost the economy and extend aspiration and life chances for students from all backgrounds.

The press notice continued, saying:

We will make it quicker and easier for new high quality challenger institutions to enter the market and award their own degrees. A new Office for Students will put competition and choice at the heart of sector regulation …

Competition and choice were duly enshrined in the General Duties of the new regulator, the Office for Students (OfS), set out in in the first few lines of HERA. A number of new providers started planning to launch innovative provision under a regime that the policy intent and the legislation were seemingly designed to support. Among these were providers such as the Dyson Institute of Engineering and Technology, the Dyson Engineering company’s in-house university play; MK:U – the Milton Keynes provider currently operating under the sponsorship of Cranfield University; TEDI-London, sponsored by the triumvirate of world-renowned institutions, King’s College London, Arizona State University and the University of New South Wales (together forming the Plus Alliance); NMITE – the New Model Institute of Technology and Engineering in notorious cold-spot, Hereford; and the London Interdisciplinary School (LIS), founded by pioneering education innovator, Ed Fidoe, to build on the success of his School21 through higher education provision. Several more highly innovative providers are known to be in planning stage. 

Through our close involvement in the governance of some of these challenger institutions, we have been able to see close up how things have played out. All the providers we are involved with or have spoken to tell a tale of a disproportionate burden of regulatory oversight, often nugatory interventions by the Quality Assurance Agency (QAA), and a stifling of the innovatory impulses that underpinned their creation.

With the QAA now demitting its responsibility as the designated quality body (DQB) for the Office for Students, and the OfS taking over its responsibilities until more permanent arrangements are agreed, this is a good opportunity for the OfS to rethink how it regulates new providers to ensure that they are given the chance to flourish while still safeguarding the critical quality underpinnings of UK higher education. 

The most important change that is needed is a recognition that quality assurance approaches used for larger traditional universities are not appropriate for new, small providers. Many of the new providers we have worked with resorted to expensive consultants to help navigate the arduous Registration and New Degree Awarding Powers (NDAPs) application process. These consultants invariably advised new providers to try to look ‘as much like an established university as possible’ – hardly a recipe for innovation in the sector. The result was hundreds of new documents created by each of the providers, thousands of hours of work and a viva voce-style interrogation of submissions by QAA reviewers. These processes cost time and money that would have been better spent on recruiting students and preparing for delivery; they did little to imbue meaningful quality approaches into the ultimate provision. 

NDAPs applications required providers to produce a plan that was monitored for precise delivery on quarterly monitoring visits by the QAA, with no room for iteration and improvement when the plan came into contact with live students and live delivery. One provider reports that it submitted 457 pieces of evidence to the QAA during its first year of NDAPs probationary monitoring. 

As one provider put it:

the QAA go descriptor-by-descriptor in every quarterly visit and, in response, the safest approach for any new provider is to produce a document which answers to every descriptor. The result is a binary quality assurance process: a provider meets all criteria and gets DAPs or the provider misses one criteria and, in theory, fails the test. A sensible and risk-based regulator could explicitly say at the outset that assessors should take a holistic view of the criteria.

Another reflected:

I always feel that I could capsize our small institution single-handedly with one mistake and that is thrilling and scary at the same time.

Given the scarcity of funding to support new providers, some of the requirements are unrealistic – for example, providers might be required to show evidence of suitable premises, student information systems, libraries, and so on, but might not consider it prudent to commit to multi-year contracts for infrastructure and services prior to achieving NDAPs.

QAA’s process is largely mechanical, conducted by individuals whose expertise is in traditional quality review rather than in any intellectual discipline relevant to the proposal. The QAA is not attuned to risk-based evaluation, nor to the promotion of innovation, but to a bureaucratic notion of quality. New providers often don’t have the confidence to deviate from this when achieving NDAPs is often time-critical, with a whole academic year’s income and cost, or even survival, at stake.

Reviews simply report against adherence to the regulations and the NDAPs plan provided – there is no feedback for quality enhancement which would be welcomed by the providers we spoke to. Where degree apprenticeships are offered, providers struggle with the competing and sometimes contradictory approaches and demands of simultaneous monitoring from both the QAA and Ofsted. 

With OfS taking over the QAA’s responsibilities from April 2023, there is a real opportunity to change the approach to focus on things that matter for students and assess providers in ways more commensurate with their often single-programme offer for small numbers of students. Where sponsor organisations such as the PLUS Alliance, Cranfield University or Dyson are involved, it surely makes sense to acknowledge this in a risk-based approach to quality assurance. Recognising that not every new entrant is a potential profit-gouging rogue institution, the OfS’s role could readily become to encourage initiative and diversity in provision rather than to try to box it in and standardise it. This element of cross learning leading to intelligent responsive regulation has to become a central component of future regulation by OfS.

A recent speech to a UUK members’ event by the chief executive of the Office for Students, Susan Lapworth, offers some hope for positive change. Lapworth referenced regulation for new higher education providers, saying:

A Guardian article in 2001 had six economics professors from the University of Warwick complaining about the QAA processes and the volume of paper they had generated for a subject review visit. Things have obviously moved on a lot since then – but the point bears repeating, not least because new providers have told us that this is still their experience of review visits, and that they don’t think it adds value.

Competition and choice may no longer be a headline policy underpinning for the Higher Education sector, but the Levelling Up White Paper clearly acknowledges the role that new providers can play, particularly in known cold spots for higher education:

The 2017 Higher Education and Research Act created the Office for Students (OfS), which made the process of becoming an HE provider more straightforward and allowed for the first-time new providers to acquire degree awarding powers. As a result, new providers like the Jimmy Choo Academy, TEDI and the London Interdisciplinary School have become registered HE providers. The UK Government will continue to work with the OfS to reform barriers for entry to the English HE sector, so that new high quality HE providers can open across England, joining the 400+ providers already on the register, to increase access to HE particularly in towns and cities without access to this provision.

[our emphasis]

But, as Nick Hillman put it in this blog last March:

The one thing uniting everyone who has tried to get a brand new higher education institution off the ground is that it is much harder than they initially thought it would be. It does not matter if the backers are entrepreneurs, venture capitalists or multinational companies, it remains excessively hard to do.

This has to change, and it would be good to hear the Universities Minister, Robert Halfon, get behind this challenge for the sake of sector innovation, diversity and levelling up. The changing of the guard for quality assurance in the sector is a golden opportunity for the OfS to make good on this promise to remove barriers to entry and fulfil its general duties under the HERA, including to promote quality and greater choice for students.

Future HEPI events:

  • Tomorrow, HEPI and the University of the Arts London are hosting a free event to launch major new research on new HE funding options, produced by London Economics. More information is available here.

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  1. Is the nightmare for all regulators (not just in education) to be held to account – and quite possibly closed down – when something goes wrong? ‘How could [this] have been allowed to happen? Was the regulator asleep?’ are headlines no regulator wants to read.

    The regulator’s defence is to force compliance with an ever-tighter rule book. And a risk-based approach is fine – as long as all the risk is on those being regulated.

    Those being regulated, by contrast, want room for innovation and experiment, one consequence of this being the probability, if not likelihood, that something will ‘go wrong’, so stimulating learning.

    What are the elements of a new HE entrant that a regulator can allow to ‘go wrong’ safely? And does the regulator have the same perception as the regulated as to what ‘wrong’ looks like?

  2. Steve says:

    What this blog fails to consider is that the quality review methods being carried out by the QAA were devised by the Office for Students so in reality, the move towards the OfS carried out these review methods is likely to make things worse not better. The regulatory framework in England certainly needs to be looked at but I’m not convinced that the Office for Students is the correct body to be doing this – indeed I’m increasingly convinced that the Office for Students is not the correct body to be regulating quality in higher education.

  3. albert wright says:

    Perhaps Ofsted should be given the challenge.

    There is certainly more diversity and innovation among the providers it regulates.

    It also has a track record of closing down institutions that do not comply.

    It could also stimulate the growth of Degree Apprenticeships / Apprenticeship Degrees and levels 4 and 5 qualifications.

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