Resetting relations between the Office for Students and universities

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• This blog was kindly contributed by Rachel Hewitt, Chief Executive of  MillionPlus, the Association for Modern Universities. Rachel formerly worked as HEPI’s Director of Policy and Advocacy. Before this, she held a number of roles at the Higher Education Statistics Agency (HESA).
• Earlier this year, MillionPlus was one of several signatories on a letter to Robin Walker MP, Chair of the Commons Education Committee, calling for an investigation into the role and practices of the Office for Students (OfS), the regulator of the English higher education sector.

It’s important to state at the outset that universities are not opposed to robust regulation. A sector with no regulatory oversight is unlikely to be a healthy one and none in the sector dispute the need for proportionate, evidence-based regulation to ensure all students have access to high-quality education. But with higher education one of the UK’s biggest international success stories, educating millions of students every year, the relationship between regulator and regulated must be a functional and healthy one. As of this moment, it is arguable whether this is the case.

Many are concerned that the OfS is not implementing a fully risk-based approach, that it is not genuinely independent and that it is failing to meet standards we would expect from the Regulators’ Code.

There is a definite sense of scope creep when it comes to the OfS, much of it stemming from ministerial pressure. Since its inception, the regulatory framework has expanded and looks to continue to swell with new measures on harassment and sexual misconduct, on free speech and growing activity on quality and standards. MillionPlus does not dispute the importance of these areas, but this represents an expansive growth in activity from the regulator in a short space for time. It is not clear that any other areas have been deprioritised, to account for these new priorities.

Not only does this become overly burdensome in the sheer amount of time university staff have to dedicate to ensure they are in compliance, but it has a pure cost implication too, with MillionPlus members facing an increase in their registration fees of over 10% this year. Meanwhile, with tuition fees frozen, inflation eats away at university’s principal income stream and a cost-of-living crisis continues to bite.

Such rapid regulatory expansion begs the question if the OfS has the required capability and capacity to deliver on the new fronts that it continues to open up. This stands to become more problematic as OfS takes the reins from QAA as the designated quality body for England, and the bodies which set the standards and monitors them become one and the same.

One area of the OfS’s operations that ought to be expanded is its engagement with actual students, as we heard recently during evidence at the House of Lords Industry and Regulators Committee. Given the focus of the regulator as the body for students, it is not clear that the student voice is being well-heard, and the student panel does not nearly reflect the diversity of institutions that the UK can boast. This too should change.

There is a troubling lack of mechanisms for the OfS to gain structured feedback from providers on its own performance which appears contrary to the Regulators’ Code (as highlighted in a report by the National Audit Office). Where is the mechanism to review enforcement processes and procedures from both the OfS and provider perspectives to ensure enforcement is transparent, fair and robust? At present, OfS is allowed to operate with almost no checks and balances on how it uses the considerable power it wields. That cannot be right.

Much of this ultimately comes down, rightly or wrongly, to a sense in many universities that a hostile attitude pervades within the OfS, that institutions are perceived as bad actors, and that the instinct, rather than to be collaborative and work with HEIs and the sector more broadly to work through issues, is overly punitive.

The timing issue is important, with too much ‘performative consultation’ in evidence; institutions are invited to supply data or responses to vast consultations with little time to turn submissions around, only for that feedback to be largely ignored in favour of OfS doing what is always planned to do, or whatever ministerial directive has dictated it should do.

So what is to be done? How do we turn the ship around?

It would be a weak regulator that was never prepared to show its teeth, but one suspects that a little more carrot to go along with the stick would go a long way to bolster the relationship between universities and the OfS. A quiet word and an arm-around-the-shoulder type approach would leave universities clear about what is required of them without leaving such a bitter taste in the mouth.

Recent work on access and participation could perhaps be a useful template for how the university-OfS dynamic should work going forward, with genuine feedback sought and consideration given to different types of providers and early discussions held about the right approach to take.

Perhaps fresh approaches are required. Could there be examples from abroad we could look to? Say, to the US or Australia where there is a greater breadth and more nuanced approached to regulation, with different institutions regulated in different ways depending on if they are research or teaching focused or with independent panels making ultimate decisions on if regulations have been reached after the regulating body has made its case.

Whatever the approach, it is in the interest of OfS, universities and, crucially, students, that a healthier, less adversarial relationship between regulator and regulated can be fostered.