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Consumer rights and complaints in English higher education: a new form of student agency?

by Rille Raaper

A year ago I wrote a blog post inviting the SRHE community to reflect on what it means to be political for today’s students. That piece was a thought experiment exploring political agency beyond traditional notions of student activism or protest. I now want to extend this thinking by considering whether student-as-consumer complaints can also be understood as a form of political agency.

Consumerism has increasingly invaded new sectors of society, including higher education. In the UK, consumer rights and relationships are actively promoted through higher education policy, which frames students as consumers and universities as providers. The Office for Students, the main regulator in England, encourages students to understand their consumer rights with statements such as: ‘Knowing your consumer rights should help you to be protected if things go wrong on your course’. Although the phrase “things going wrong” remains ambiguous, universities must comply with consumer protection law by providing accurate, up-to-date information about their offerings and maintaining internal complaints and appeals processes for students who wish to raise concerns about their experience. These processes are broadly similar across institutions, typically moving from informal resolution to formal complaints, and, if unresolved, escalation to the Office of the Independent Adjudicator (OIA) – the body responsible for reviewing unsettled student complaints in England and Wales.

While it may be a ‘chicken and egg’ question as to whether the rise in complaints or the introduction of formal procedures came first, what is clear is that student complaints have grown significantly. Although university-level complaint data is confidential, we know that the Office of the Independent Adjudicator (OIA) received 3,613 complaints in 2024 – an increase of over 130% compared to 2016. The financial implications are notable: £677,785 was awarded to students following a “Justified” decision, and an additional £1,809,805 was offered as part of settlements in 2024. It is reasonable to assume that university-managed complaints have experienced a similar surge.

This peak in complaints and related institutional procedures raises an important question: should we view complaints not merely as an inconvenience or evidence of institutional shortcomings, but as a process that activates certain forms of agency within the student experience? Specifically, could this agency represent a new form of political agency in a context where students may be reluctant to engage in traditional activism for fear of jeopardising their academic success and financial investment?

In my broader work, I adopt a wide lens on political agency, drawing on works from Michel Foucault, Sara Ahmed, and Jouni Häkli & Kirsi Pauliina Kallio. From this perspective, political agency encompasses ‘a variety of individual and collective, official and mundane, rational and affective, and human and non-human ways of acting, affecting and impacting politically’. Complaints, while largely individual, can be both rational and affective, making them a compelling example for expanding our understanding of political agency. When considering complaints as political agency, I propose we start by reflecting on the following:

Institutional inequalities

Most student complaints originate – at least from the perspective of those making them – in response to perceived institutional failure or wrongdoing. Complaints are therefore generally directed against some form of injustice. While students can raise concerns about a wide range of issues, the OIA statistics indicate that service-related complaints, eg poor teaching quality, undelivered services, or misleading marketing, account for roughly one third of all cases handled by the OIA.

Courage

Like any form of political action, making a complaint requires considerable courage and perseverance. Sara Ahmed’s work highlights how raising a complaint can make the complainant vulnerable, positioning them as the locus of an institutional problem. Similar ideas resonate with Foucault’s notion of parrhesia – truth-telling as a courageous act that is both risky and potentially transformative for the individual.

Social spillovers

Although a student complaint is typically an individual act, it carries an element of publicness. Complaints can create opportunities for students to engage with their broader social context and advocate for fairness in higher education. This ethical stance may ripple outward, influencing others and contributing to wider institutional change; for example, when a single complaint leads to policy or practice reforms.

While we may debate whether student complaints are a ‘necessary evil’ in market-driven higher education, I invite readers to consider whether raising a complaint might also be a courageous and transformative experience for our students. If we allow ourselves to think this way, complaints could become an important lens for understanding how today’s students exercise their political agency.

For more details, please see my book published as part of the SRHE and Routledge book series Research into Higher Education:

Raaper, R (2024). Student Identity and Political Agency. Activism, Representation and Consumer Rights Oxon: Routledge

Professor Rille Raaper is in the School of Education at Durham University. Rille’s research interests lie in the sociology of higher education with a particular focus on student identity, experience and political agency in a variety of higher education settings. Her research is primarily concerned with how universities organise their work in competitive higher education markets, and the implications market forces have on current and future students. The two particular strands of Rille’s research relate to: a) student identity and experience in consumerist higher education; b) student agency, citizenship and political activism. rille.raaper@durham.ac.uk


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What is a ‘governing document’ in the University of Sussex?

by GR Evans

The  Office for Students has found that the Trans and Non-Binary Equality Policy Statement  of the University of Sussex involves breach of two of the relevant OfS Regulatory Requirements in late March 2025, and imposed an unprecedentedly substantial fine. The first of those criticised (OfS Condition E1) concerns the duty to protect freedom of speech and academic freedom:

The provider’s governing documents must uphold the public interest governance principles that are applicable to the provider.

A further OfS Condition (E2) requires that ‘the provider must have in place adequate and effective management and governance arrangements’ so as  to ‘operate in accordance with its governing documents’.

On 9 April 2025 the Vice-Chancellor of the University of Sussex published a fierce criticism of the unprecedented decision of Office for Students that it had failed to comply with one of its own ‘policies’. The Vice-Chancellor considered that the policy in question was:

a really small statement, of which we have many dozens, if not hundreds, of similar policies and statements. Whereas the governing documents of the university  are its charter and statutes and regulations.

There was press coverage about the ensuing uncertainty. UniversitiesUK, as the ‘collective voice’ of universities promised to write to the OfS to ask for clarity as its decision appears to find that it is a ‘failure to uphold freedom of speech and academic freedom’ if a university has ‘policies’ to prevent ‘abusive, bullying and harassing’ material or speech.

The University has notified the OfS of its intention to apply for judicial review.  Among the grounds Sussex relies on is that the Office for Students did not have powers to treat ‘documents that are not a provider’s “governing documents”’ as creating the public interest governance condition necessary to permit the OfS to seek judicial review. The OfS defines ‘governing documents’ somewhat inadequately as ‘set out in’ its ‘Regulatory Framework’, where  ‘the provider’s governing documents must uphold the public interest governance principles that are applicable to the provider. In this case it held:

that the University of Sussex breached ongoing condition of registration E2 because it failed to have adequate and effective management and governance arrangements in place to ensure that it operates in accordance with its governing documents.

The definition of ‘governing documents’ is therefore of the first importance if a precedent is to be set by this OfS decision. The Higher Education and Research Act (2017) s.3(8)(a) protects the autonomy of higher education providers, defining it as ‘the freedom of English higher education providers within the law to conduct their day to day management in an effective and competent way’. Sussex was created among the batch of new universities of the 1960s.

The Act created a new Regulator, the Office for Students, stating that the Regulator ‘must have regard to’ the ‘need to protect the institutional autonomy of English higher education providers’. This requires a fine balance if the OfS is to avoid intrusion upon a provider’s autonomy.

The institutional autonomy of higher education providers gives them control of the drafting of their internal legislation. External authorities may insist on particular points in certain cases. For example medical qualifications set by a provider cannot constitute a qualification to be a doctor unless they are recognised by the General Medical Council.  But the right to create its own rules (within the law) largely lies with the provider, who may design them  and order them in its own preferred hierarchy.  The Office for Students may not interfere.

Nevertheless the creation of ‘governing documents’ must carry certain implications about the source of the internal or external authority to create, review or amend them.  It is suggested that ‘Sussex contends that these are matters for our old friend the Visitor, a traditional legal role in UK university governance, who in Sussex’s case is the actual King’, and:

cites longstanding legal authority confirming that the Visitor has exclusive jurisdiction over internal governance questions, including interpretation and application of the university’s own rules, and says that unless Parliament clearly removes or overrides that jurisdiction, external bodies like OfS can’t interfere.

Where the Monarch is not the Visitor it is normally a Bishop.

However a Visitor is not essential to the law-making of a higher education provider. ‘Alternative providers’ may not have Visitors. As eleemosynary bodies their Colleges normally have Visitors of their own but neither Oxford nor Cambridge has a Visitor. Under the Oxford and Cambridge Universities Act of 2023, both Universities create their own Statutes. In Oxford’s case those which are King-in-Council Statutes require the consent of the Privy Council on behalf of the King. In Cambridge all its Statutes require that consent to their creation or modification. Their subordinate legislation, most Regulations in Oxford (some of Oxford’s Regulations may be created by its Council) and Special Ordinances and Ordinances in Cambridge, simply require the consent of their governing bodies, Oxford’s Congregation of over 5000 and Cambridge’s Regent House of over 7000 members.

The rules at the top of a provider’s hierarchies may constitute governing documents but it is far from clear how far down that status applies. For purposes of management ‘procedural or process documents’ explain the required ways of doing things and the processes which must be followed’. Among these are Codes of Practice and ‘Guidance documents’. This seems to be where the Trans and Non-Binary Equality Policy Statement fits, as approved by the Executive Group in 2018, 2022, 2023 and 2024 and placed under the heading of Equality, Diversity and Inclusion(revised in 2022, 2023 and 2024).  Is it a governing document in this lowly position?

Also found relevant by the Office for Students in the Sussex case was the exercise of powers of delegation. It identified ‘a pattern of decisions taken at the university to adopt and/or revise policies without proper delegated authority’, both that its:

Prevent Steering Group approved and adopted the 2021 version of the University’s Freedom of Speech Code of Practice despite not having delegated authority to do so

and also that ‘the 2023 version of the External Speakers Procedure was approved by the University Executive Group, despite that group not having delegated authority to do so’.

Like similar universities Sussex has an Executive Team composed of a Vice-Chancellor, Pro-Vice-Chancellors, their deputies, Deans of Schools and Faculties, with senior academic-related staff headed by a University Secretary, a Financial Officer and various Directors. These are not directly responsible for framing its legislation but may have authority to apply it, though not necessarily powers to delegate its application.

The Office for Students could turn to the University’s rules about delegation in framing its criticism. Sussex has given thought to that. Sussex’s Council approved a Scheme of Delegation in March 2018. ‘Responsibility’ may be delegated by the Council except for the appointment of the Vice-Chancellor and President; ‘the variation, amendment or revocation of the Charter or Statutes’; and responsibility for approving the University’s annual audited accounts or the appointment of Auditors. The Scheme of Delegation clarifies where roles and responsibilities are allocated between Council and its Committees, among Committees, and between Council and Senate. The ‘Executive’ and a University Executive Group are described as exercising ‘leadership’ and there is also a University Leadership Team, though ‘leadership’ is undefined.

Sussex has also given thought to overall responsibilities for supervision of the exercise of its internal rules. It has chosen to describe them collectively as ‘policies’. It is recognised to be ‘important that a clear and consistent approach is taken to drafting and updating policies across the institution’ details the requirements for the creation, approval, review, and updating of policies.  However it clarifies the difference between policies and other associated documents, sets out responsibilities relating to policies, and details the requirements for the creation, approval, review, and updating of policies. An overarching Policy on Policies has been agreed by the ‘University Executive Team and Council’. This consists in a Policy on the Creation and Management of University Policies (‘Policy Framework’).

The aim of the University’s Policy Framework is to make clear what a policy is and what policies should be used for, to differentiate between policies and other types of documents (e.g. procedural documents, codes of practice, etc), and to outline the process that should be followed when drafting, reviewing, and updating policies. An outline of where responsibilities lie in relation to policies is also included.

This suggests that if pressed Sussex might take all these to constitute its ‘governing documents’, while recognising distinctions among them.

Nevertheless Sussex distinguishes governance and management. ‘A policy is a high-level statement of principles, requirements or behaviours that apply broadly across the University’ and ‘reflects institutional values’, thus supporting ‘the delivery of the University’s strategy’.  It  reflects ‘legal and regulatory obligations, sector standards, or high-level operational requirements’. These create obligations.

Among them Sussex lists ‘Regulations’, which  must be made ‘pursuant to the Charter’. These contain detailed rules governing a wide variety of actions of, or on behalf of, the University falling under governance but extending into management: staffing procedures, student disciplinary and appeals procedures, the Students’ Union, the composition of Council and Senate, titles of degrees and Schools, roles of Heads of Schools, lists of collaborative institutions, academic titles and dress, the various degree courses awarded by the University, and general University regulations (library, ICT, administrative). These Regulations are updated annually and approved by Council and/or Senate. Next come written ‘Resolutions’ which Council members may choose to approve or not, ‘in accordance with procedures set out in the Regulations’, though amendments to the Charter and the Statutes and certain Regulations require ‘a three-fourths majority’.

For purposes of management ‘procedural or process documents’ going beyond these categories explain the required ways of doing things at Sussex and ‘the processes which must be followed’. Among these are Codes of Practice and ‘Guidance documents’. This seems to be where the Trans and Non-Binary Equality Policy Statement fits, as approved by the Executive Group in 2018, revised in 2022, 2023 and 2024. placed under the heading of Equality, Diversity and Inclusion.  Are they still among ‘governing documents’ with a constitutional role in the University’s  governance? An application for a judicial review will take a considerable time to produce a recommendation even if it supports Sussex’s argument

SRHE member GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.

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What’s in a name? That which we call a university…

by Rob Cuthbert

In England the use of the title ‘university’ is regulated by law, a duty which now lies with the regulator, the Office for Students (OfS). When a new institution is created, or when an existing institution wishes to change its name, the OfS must consult on the proposed new name and may or may not approve it after consideration of responses to the consultation. The responsible agency for naming was once simply the Privy Council, a responsibility transferred to the OfS with the Higher Education and Research Act 2017. For existing older universities where legislative change is needed, the Privy Council must also still approve, but will only do so with a letter of support from the OfS. The arrangements were helpfully summarised in a blog by David Kernohan and Michael Salmon of Wonkhe on 8 April 2024, before most of the recent changes had been decided.

That which we call a university would probably not smell quite as sweet if it could not use the university title, and with its new power the OfS has made a series of decisions which risk putting it in bad odour. In July 2024 it allowed AECC University College to call itself the Health Sciences University. Although AECC University College was a perfectly respectable provider of health-related courses, this name change surely flew in the face of the many larger and prestigious universities which had an apparently greater claim to expertise in both teaching and research in health sciences. The criteria for name changes are set out by the OfS: “The OfS will assess whether the provider meets the criteria for university college or university title and will, in particular: …  Determine whether the provider’s chosen title may be, or may have the potential to be, confusing.” It is hard to see how that criterion was satisfied in the case of the Health Sciences University.

Even worse was to come. In 2024 Bolton University applied to use the title University of Greater Manchester, despite the large and looming presence of both Manchester University and Manchester Metropolitan University. And the OfS said yes. If you google the names Bolton or Greater Manchester University you may even find the University of Bolton Manchester, which is neither the University of Bolton nor the University of Manchester, but is “Partnered with the University of Bolton and situated within the centre of Manchester” – indeed, very near the Oxford Road heartland location of Manchester and Manchester Metropolitan universities.

This is rather more confusing and misleading than University Academy 92, founded by a group of famous football team-mates at Manchester United, formed in August 2017 and based near Old Trafford. Wikipedia says that “the approval by the Department of Education (DoE) to allow UA92 the use of ‘University Academy 92’ was questioned with critics claiming the decision to approve the use of the name makes it ‘too easy’ for new providers to use ‘university’ in a new institution’s name”. This criticism continues to have some merit, but a high-profile football-related initiative, now broadened, is perhaps less likely to cause any confusion in the minds of its potential students. It may be significant that it was created at the same time as the HERA legislation was enacted, with government perhaps relaxing its grip in the last exercise of university title approval powers before the Privy Council handed over to the OfS. UA92 was and continues to be a deliverer of degrees validated by Lancaster University. In 2024 the OfS the University of Central Lancashire applied to be renamed the University of Lancashire, despite the obvious potential confusion with Lancaster University. And the OfS said yes.

It was not ever thus. The Privy Council would consult and take serious account of responses to consultation, especially from existing universities, as it did after the Further and Higher Education 1992 when 30 or so polytechnics were granted university title. A massive renaming exercise was carefully managed under the Privy Council’s watchful eye. As someone centrally involved in one such exercise, at Bristol Polytechnic, I know that the Privy Council would not allow liberties to be taken. The renaming exercise naturally stretched over many months; the Polytechnic conducted its own consultations both among its staff and students, but also much more widely in schools and other agencies across the South West region. Throughout that period, in a longstanding joke, the Polytechnic Director playfully mocked the Vice-Chancellor of Bristol University by suggesting that the polytechnic might seek to become the ‘Greater Bristol University’. It was a joke because all parties knew that the Privy Council, quite properly, would never countenance such a confusing and misleading proposal.

How would that name change play out now? In the words (almost) of Cole Porter: “In olden days a glimpse of mocking was looked on as something shocking, now heaven knows, anything goes.”

Rob Cuthbert is the editor of SRHE News and Blog, and a partner in the Practical Academics consultancy. He was previously Deputy Vice-Chancellor and professor of higher education management at the University of the West of England.


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University autonomy and government control by funding

by GR Evans

A change of government has not changed the government’s power to intrude upon the autonomy of providers of higher education, which is constrained chiefly by its being limited to the financial. Government can also issue guidance to the regulator, the Office for Students, and that guidance may be detailed. Recent exchanges give a flavour of the kind of control which politicians may seek, but this may be at odds with the current statutory framework.

As Secretary of State for Education, Gillian Keegan sent a Letter of Guidance to the Office for Students on 4 April 2024. She stated her priorities, first that ‘students pursue HE studies that enable them to progress into employment, thereby benefitting them as well as the wider economy’. She also thought it ‘important to provide students with different high-quality pathways in HE, notably through higher technical qualifications (HTQs), and degree apprenticeships’ at Levels 4 and 5. These ‘alternatives to three-year degrees’, she said, ‘provide valuable opportunities to progress up the ladder of opportunity’. As a condition of funding providers were to ‘build capacity’ with ‘eligible learners on Level 4 and 5 qualifications via a formula allocation’.  The new Higher Technical Qualifications were to attract ‘an uplift within this formula for learners on HTQ courses’. ‘World leading specialist providers’ were to be encouraged and funded ‘up to a limit’ of £58.1m for FY24/25.

The change of Government in July 2024 brought a new Secretary of State in the person of Bridget Phillipson but no fresh Letter of Guidance before she spoke in the Commons in a Higher Education debate on 4 November, 2024. Recognising that many universities were in dire financial straits, she  suggested that there should be ‘reform’ in exchange for a rise in tuition fees for undergraduates which had just been announced. That, she suggested, would be needed to ensure that universities would be ‘there for them to attend’ in future.

However, commentators quickly pointed out that Phillipson’s announcement that there would be a small rise in undergraduate tuition fees from £9,250 to £9,535 a year would not be anywhere near enough to fill the gap in higher education funding. The resulting risks were recognised. When the Office for Students reviewed the Financial sustainability of higher education  providers in England in 2024 in May 2024 it had looked at the ‘risks relating to student recruitment’ by providers in relation to the income from their tuition fees.

Phillipson was ‘determined to reform the sector’. She called for ‘tough decisions to restore stability to higher education, to fix the foundations and to deliver change’ with a key role for Government.  Ministers across Government must work together, she said, especially the Secretary for Education and the Secretary of State for Science, Innovation and Technology in order to ‘deliver a reformed and strengthened higher education system’. This would be ‘rooted in partnership’ between the DfE, the Office for Students and UK Research and Innovation’.

“… greater work around economic growth, around spin-offs and much more besides—I will be working with my right hon. Friend the Secretary of State for Science, Innovation and Technology on precisely those questions.”

In the debate it was commented that she was ‘light on the details’ of the Government’s role’.  She promised those for the future, ‘To build a higher education system fit for the challenges not just of today but of tomorrow’. She undertook to publish proposals for ‘major reform’.  There were some hints at what those might include. She saw benefits in providers ‘sharing support services with other universities and colleges’. Governing bodies, she said, should be asking ‘difficult strategic questions’, given the population ‘changing patterns of learning’ of their prospective students. The ‘optimistic bias’ she believed, needed to be ‘replaced by hard-headed realism’. ‘Some institutions that may need to shrink or partner, but is a price worth paying as part of a properly funded, coherent tertiary education system.’ She saw a considerable role for Government. ‘The government has started that job – it should now finish it.’

Like her predecessor she wanted ‘courses’ to provide individual students as well as the nation with ‘an economic return’. She expected providers to ‘ensure that all students get good value for money’. Other MPs speaking in the debate pressed the same link. Vikki Slade too defined economic benefit in terms of the ‘value for money’ the individual student got for the fee paid.  Laura Trott was another who wanted ‘courses’ to provide individual students as well as the nation with ‘an economic return’. Shaun Davies asked for ‘a bit more detail’ on ‘the accountability’ to which ‘these university vice-chancellors’ were to be held in delivering ‘teaching contact time, helping vulnerable students and ensuring that universities play a huge part in the wider communities of the towns and cities in which they are anchor institutions’.

Government enforcement sits uncomfortably with the autonomy of higher education providers insisted on by the 2017 Higher Education and Research Act. This Act created the Office for Students as ‘a non-departmental public body’, ‘accountable to Parliament’ and receiving ‘guidance on strategic priorities from the Department for Education’. Its ‘operations are independent of government’, but its ‘guidance’ to providers as Regulator is also heavily restricted at s.2 (5) which prevents intrusion on teaching and research. That guidance may not relate to ‘particular parts of courses of study’; ‘the content of such courses’; ’the manner in which they are taught, supervised or assessed’; ‘the criteria for the selection, appointment or dismissal of academic staff, or how they are applied’; or ‘the criteria for the admission of students, or how they are applied’.

This leaves the Office for Students responsible only for monitoring the financial sustainability of higher education providers ‘to identify those that may be exposed to material financial risks’. Again its powers of enforcement are limited. If it finds such a case it ‘works with’ the provider in a manner respecting its autonomy, namely ‘to understand and assess the extent of the issues’ and seek to help.

Listed in providers’ annual Financial Statements may be a number of sources of funding to which universities may look. These chiefly aim to fund research rather than teaching and include: grants and contracts for research projects; investment income; donations and endowments. The Government has a funding relationship with Research England within UKRI (UK Research and Innovation). UKRI is another Government-funded non-departmental public body, though it is subject to some Government policy shifts in the scale of the funding it provides through the Department for Science, Innovation and Technology.

Donations and endowments may come with conditions attached by the funder, limiting them for example to named scholarships or professorships or specific new buildings. However  they may provide a considerable degree of financial security which is not under Government control. The endowments of Oxford and Cambridge Universities are substantial. Those made separately for their Colleges. may be very large, partly as a result of the growth in value of land given to them centuries ago. Oxford University has endowments of £1.3 billion and its colleges taken together have endowments of £5.06 billion. Cambridge University has a published endowment of  £2.47 billion, though Cambridge’s Statement for the Knowledge Exchange Framework puts ‘the university’s endowment ‘at nearly £6 billion’.  Cambridge’s richest College, Trinity, declares endowments of £2.19 billion.

The big city universities created at the end of the nineteenth century are far less well-endowed.  Birmingham had an endowment of £142.5 million in 2023, Bristol of £86 million. Of the twentieth and twenty-first century foundations, Oxford Brookes University notes donations and endowments of £385,000 and Anglia Ruskin University of £335,300. The private ‘alternative’ providers of higher multiplying in recent decades have tended to have a variety of business and commercial partnerships supporting their funding. Categories of funding provided by such gifting remain independent of Government interference.

The Review of Post-18 Education and Funding (May 2019) chaired by Philip Augur stated ‘Principles’ including that ‘organisations providing education and training must be accountable for the public subsidy they receive’, and that ‘Government has a responsibility to ensure that its investment in tertiary education is appropriately spent and directed’. ‘Universities must do more to raise their impact beyond their gates’, Phillipson said, so as ‘to drive the growth that this country sorely needs’ including by ‘joining with Skills England, employers and partners in further education to deliver the skills that people and businesses need’.

In the same Commons debate of 4 November Ian Roome, MP for North Devon, was confident that in his constituency ‘universities work in collaboration with FE sector institutions such as Petroc college’. Petroc College offers qualifications from Level 3 upwards, including HNCs, higher-level apprenticeships, Access to HE diplomas, foundation degrees and honours degrees (validated by the University of Plymouth) and ‘in subjects that meet the demands of industry – both locally and nationally’. Roome saw this (HC 4 November 2024) as meeting a need for ‘a viable and accessible option, particularly in rural areas such as mine, for people to access university courses?’ Phillipson took up his point, to urge such ‘collaboration between further education and higher education providers’. Shaun Davies spoke of the £300 million the Government had put into further education, ‘alongside a £300 million capital allocation’, invested in further education colleges’.  

However in an article in the Guardian on 4 November 2024,Philip Augur recognised that ‘the systems used by government to finance higher and further education are very different’. ‘Universities are funded largely through fees which follow enrolments’, in the form of student loans of £9,250, now raised to £9,535. ‘Unpaid loans are written off against the Department for Education’s balance sheet’. At first that would not be visible in the full  government accounts until 30 years after the loan was taken out. Government steering had become more visible following the Augur Report, with the cost of student loans being recorded ‘in the period loans are issued to students’, rather than after 30 years.  

By contrast the funding of individual FE colleges is based on annual contracts from the Education and Skills Funding Agency, an executive agency of the DFE for post-18 education. They may then spend only within the terms of the contract and up to its limit. The full cost of such contracts is recorded immediately in the public accounts. This makes a flexible response to demand by FE colleges far from easy. Colleges may find they cannot afford to run even popular courses such as construction, engineering, digital, health and social care, without waiting lists for places. The HE reform Phillipson considered in return for a rise in tuition fees had no immediate place in FE.

Government funding control maintains a pragmatic but very limited means of means of giving orders to universities. This depends on regulating access to taxpayer-funded student loans. The Office for Students measures a provider’s teaching in terms of its ‘positive outcomes’. These are set out in the OfS ‘Conditions’ for its Registration, which are required to make a provider’s students eligible for loans from the Student Loans Company. Condition B3 requires that a provider’s ‘outcomes’ meet ‘numerical thresholds’ measured against ‘indicators’: whether students continue in a course after their first year of study; complete their studies and progress into managerial or professional employment.

An Independent Review of the Office for Students: Fit for the Future: Higher Education Regulation towards 2035 appeared in July 2024. The Review relies on ‘positive outcomes’ as defined by the OfS’s ‘judgement’,  that ‘the outcome data for each of the indicators and split indicators are at or above the relevant numerical thresholds’. When such data are not available the OfS itself ‘otherwise judges’.

The government’s power to intrude upon the autonomy of providers of higher education continues to be constrained, but chiefly by its being limited to the financial, with many providers potentially at risk from their dependence on government permitting a level of tuition fee high enough to sustain them.

GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.


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Must do better:  making the Office for Students accountable

by GR Evans

The House of Lords Committee on Industry and Regulators pulls no punches in Must do better. This Report on its Inquiry on the Office for Students published on 13 September finds the OfS to be underperforming in a number of respects. It criticises its ‘prescriptive regulatory requirements and time-consuming processes’ and its  ‘inappropriate micromanagement’, with ‘little regard to the need to protect institutional autonomy’. Institutions are found to be reluctant to engage with it ‘for fear of a punitive regulatory response’.

‘The student interest’ in which it was set up is described as ‘defined by the OfS in line with the political priorities of Ministers rather than the priorities of students’. In comparison with its  threatening mass of detailed rules for providers the OfS definition of  required ‘outcomes’ affecting students (student continuation beyond a first year; progression to completion; gaining employment) is found to be ‘simplistic and narrow’.

The Office for Students is a non-departmental ‘arm’s length’ public body with executive functions. These are far more extensive than HEFCE possessed in its role of ‘buffer’ between Government and providers of higher education and Must do Better is concerned that the OfS has been adding to them. Moreover Must do better says that the lack of close attention to the underlying objectives of his statutory duties ‘makes it difficult for the OfS to be held accountable’.

The OfS is a regulator. Must do Better says it ‘should improve its adherence to best regulatory practice through closer alignment with the Regulators’ Code’ dating from 2014. It should do so ‘with respect to how it implements its policies and procedures, as well as how it develops them’. The Regulators’ Code has ‘accountability’ as its overall aim, and emphasises reciprocal and mutual responsibilities between regulator and regulated, a point on which the OfS is now found conspicuously wanting.

The provisions for its accountability seem inadequate to address the potential abuse of power arising from a failure of the OfS to engage appropriately with the providers it regulates. If it decides a provider ‘must do better’ in meeting its ‘outcomes’ requirements, the Office for Students can remove it from its Register, take away its degree-awarding powers and its university title or impose a monetary penalty, with the provider paying the costs of its investigation, with internal appeal only against the scale of the costs.

Appeal against an OfS decision on such matters lies to the First-tier Tribunal Health, Education and Social Care Chamber (Care Standards). It must be made within 28 days of the issue of the decision by the OfS, on the grounds that the decision was based on an error of fact; was wrong in law, or unreasonable, except where the decision was to revoke degree-awarding powers or University title. In that case the grounds of appeal are not specified and the decision may be made afresh. The Tribunal will take into account evidence that was not available to the Office for Students when it made its decision.

A landmark case was brought by Bloomsbury Institute Ltd, formerly the London School of Business and Management, after its application for Registration was refused by the OfS in May 2019 under Registration Condition B3, namely  that ‘student continuation rates from year one to year two (“continuation rates”) and rates of progression to professional employment or post-graduate study (“progression rates”). First came an attempt at judicial review on a several grounds. That was unsuccessful but an appeal succeeded on two grounds, ‘delegation’ and the failure of ‘publication and consultation’. Bloomsbury is now on the Register subject to an Ongoing Condition about student ‘continuation’ (R. v. Bloomsbury Institute Ltd. and The Office for Students [2020] EWCA Civ 1074).

Must do better points to the agreed accountability ‘framework’, not between OfS and providers but between OfS and Government. The current Framework document between the Department for Education and the Office for Students is dated January 2023. This promises ‘reviews’ to ‘ensure intra alia that the OfS is delivering effectively’ against the ‘aims and objectives’ of the Public Bodies Review Programme, but ‘The date of the next review is yet to be determined’. 

It may take some time to arrange. Must do Better notes the National Audit Office’s recent criticism in its Central Oversight of Arm’s Length Bodies that ‘review programmes’ had ‘failed to meet their ambition of reviewing every ALB [Arms Length Body] within a Parliament’. Must do better notes ‘that the Government is committed to a public body review of the OfS’, but calls for that to go beyond the ‘considering whether the OfS’ work remains useful and necessary’ by placing ‘ its work in a wider context, focusing on the strategic issues facing the sector’.

In any case the Office for Students’ Framework Document provides accountability only through the Secretary of State (ultimate accountability to Parliament) and the Minister for Higher Education (day-to-day responsibility). The DfE’s Senior Sponsor for OfS will ‘hold quarterly performance reviews with the leadership of the OfS as part of performance monitoring and accountability’. These do not seem to be on published record. Government ‘recognition of the problems created by regulatory duplication in the higher education sector’ is welcomed but Must do better  wants  the DfE to ‘set out in further detail the steps it is taking to streamline regulatory responsibilities within the sector, including its proposed timetable for this’.

There is published self-criticism. The OfS’s Annual Report for 2022-3 took stock of its own performance expressly in terms of the requirements of its Framework relationship with the DfE:

This year we experienced some resource challenges, which had implications for some business plan activities. Our Performance analysis report identifies where this was the case.

OfS accordingly tracked its ‘performance against’ its eleven Key Performance Measures and Operational Measures and ‘reported to the DfE’ on its ‘progress’. KPM 11 covers ‘Efficient Regulation’ and lists under the headings: ‘Minimum and maximum number of OfS data and information returns for providers’; ‘Average number of OfS conditions of registration subject to enhanced monitoring per registered provider’; Amount of regulatory fees paid by providers per student’. The Operational Measures count Reportable Events; Notifications; Registration; Degree awarding powers, and time taken to resolve these. The OfS Annual Report adds that its ‘performance against budget’ is ‘monitored and reported each month’ and its ‘performance against financial target’ on an in-year basis. It has monitored  its performance in paying its creditors, ‘greening’, the Cabinet Office’s Functional Standards for Counter Fraud and salaries.

Must do better makes recommendations but it is far from clear how accountability can be insisted on. Must do better finds it ‘worrying that some institutions would be unwilling to engage with the OfS’ particularly ‘in the early stages of falling into financial difficulty for fear of a punitive regulatory response’. The 2022-3 Annual Report looks towards the  individual providers with which the OfS has a regulatory relationship, but chiefly in terms of their ‘Financial sustainability and governance’. It had required 250 providers to complete their annual financial return for the 2020/2021 financial year:

Of these, 117 were subject to further assessment, there was informal monitoring of 51 providers, of which 31 were subject to additional formal monitoring. Three providers were subject to Student Protection Directions, which enable the OfS to intervene “quickly and in a targeted way” where there is a material risk of market exit. One provider exited the market.

 It was recognised before the burden was increased with the creation of the OfS that already  ‘the accountability burden in the higher education sector is out of proportion to the risk of financial or academic mismanagement.’ This may no longer be true, and if so that matters in connection with the full title of Must do better: the Office for Students and the looming crisis facing higher education.  The Report outlines this crisis in terms of the diminishing value of the tuition fee against the expanding institutional cost of teaching an undergraduate and the growing reliance on income from international students.

It expresses concerns about the adequacy of OfS’s checking of financial sustainability especially with reference to the latter. It finds it too trusting, which is especially a concern in the light of the recognition that providers in financial difficulties are afraid to raise their concerns with the OfS. The OfS Register defines the providers whose students are entitled to loans from the Student Loans Company. It currently lists 425, in two categories, those which may charge fees up to £9,250 and those without a ‘fee cap’ to which the SLC will lend only £6125, less if the provider has no TEF rating. There is perhaps a further growing concern which Must do better fails to pick up and that is the multiplication of alternative providers not all of which have degree awarding powers or university title and not all of which are offering courses above Levels 4 and 5.

How badly is the Office for Students failing? Can it improve sufficiently to help protect the future of English higher education? It has been publishing reassurance that it is making efforts to connect better with the providers of higher education it now regulates. It has published the findings of two assessment visits on Business and Management courses and celebrates ‘positive engagement’ from local graduates on an OfS programme. It is ‘advising’ on ‘what works in supporting disabled students’. This is all a warrant of a wish to repair flaws and to improve what it does but the criticisms of Must do Better may not be easy to meet piecemeal.

A letter to the Chair of the House of Commons Education Select Committee from the chief executives of the Russell Group, GuildHE, MillionPlus and the University Alliance in January 2023, suggesting that the OfS was failing to comply with the Regulators Code  helped to prompt concerns that this was encouraging providers to resort to litigation. That led to further concerns in March about the lack of ‘basic safeguards around transparency, fairness and accountability’ in the conduct of the OfS.

The Lords’ Industry and Regulators Committee began its inquiry in March and the now published evidence submitted to it fully supports the conclusions of Must do Better. If the Office for Students is beyond reform could it be abolished? That would require fresh legislation. The Higher Education and Research Act (2017) depends heavily on the belief that, with the block grant shrunk to vanishing point for teaching and tuition fees a chief source of university income, HEFCE’s allocation of a block grant in the capacity of a buffer between Government and providers would no longer be enough. When providers were attracting their funding directly, institutional autonomy was no longer to be trusted without a new Regulator. The drawbacks of this policy change are now apparent. Perhaps it is time for a radical rethink.

SRHE member GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.

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Irregulation: is the Office for Students fit for purpose?

by Rob Cuthbert, SRHE News Editor

The House of Lords Industry and Regulators Committee has decided to investigate the OfS. The Committee, with a remit “to consider matters relating to industry, including the policies of His Majesty’s Government to promote industrial growth, skills and competitiveness, and to scrutinise the work of UK regulators”, published 12 questions on which it invited evidence. The first three questions nail it:

  1. Are the OfS’ statutory duties clear and appropriate? How successful has the OfS been in performing these duties, and have some duties been prioritised over others?
  2. How closely does the OfS’ regulatory framework adhere to its statutory duties? How has this framework developed over time, and what impacts has this had on higher education providers?
  3. What is the nature of the relationship between the OfS and the Government? Does this strike the right balance between providing guidance and maintaining regulatory independence?

Michael Salmon, News Editor for Wonkhe, said on 3 March 2023: “This is much of what sector groups have been calling for, and reflects concerns raised in OfS’ recently published review of its engagement with universities.” The HE sector’s ‘mission groups’, memorably labelled ‘gangs’ by the late David Watson, wrote collectively to the new Education Select Committee chair Robin Walker on 16 January 2023 to ask for a proper review of the Office for Students: “… there is growing concern 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 that we would expect from the Regulators’ Code.”

The concerns are not limited to people within the sector. Ian Mansfield, now at Policy Exchange, former special adviser in the DfE to Gavin Williamson and Michele Donelan, wrote for Times Higher Education on 16 February 2023 complaining that “The OfS has thus far failed to live up to the ambition of its creators to be light-touch and proportionate. … However, universities must take their share of responsibility. Despite being part of a mass participation system, receiving significant taxpayer funding, too many do not accept the basic fact that they should be regulated.” Lawyer Smita Jamdar of Shakespeare Martineau tweeted: “I come across v few institutions who resist being regulated. I come across more who are unhappy about the lack of pretty basic safeguards for procedural fairness. People like Mansfield who have egged the OfS on to rush to start investigations carry some (much?) of the blame.” She then wrote in Times Higher Education on 8 March 2023 that “the Office for Students’ published approach to monitoring the risk of breaches of registration conditions demonstrates that it lacks basic safeguards around transparency, fairness and accountability.” Sometimes if you are attacked from all sides you might be in the right place, but the OfS will struggle to argue that case: consider those three questions from the Lords Committee.

Are the OfS’ statutory duties clear and appropriate? How successful has the OfS been in performing these duties, and have some duties been prioritised over others?

This goes to the heart of the statute establishing the OfS, the Higher Education and Research Act 2017 (HERA).  HERA explicitly aimed to institutionalise a market for higher education because former Universities Minister David Willetts believed that market competition would ‘drive up quality’. One of his  successors Jo Johnson continued in that mistaken but fervently held belief as he steered HERA to become law. However the ‘disruptive’ innovators encouraged as new entrants have mostly created more problems than solutions, despite some small but distinctive successes like the Dyson Institute.

There is no space here to explore the failure of this kind of market, but one repeated motif in policy pronouncements before and since might be summarised as ‘Why won’t they do what we want?’. The answer is not that universities resist regulation (though some may do) but, more surprisingly, is that ‘You can’t buck the market’. There has always been intense competition between HE providers, for reputation and for the things which flow from that – students and research income – but often the competition is not overtly financial. Policymakers failed to understand institutional realities then, and even more so now. Policymakers introduced £9000 fees in the mistaken belief that a spectrum of fees would emerge reflecting quality differences. Anyone in any university could have told them, as many did, then that no self-respecting university would charge less than £9000, for the real reputational fear of declaring ‘low’ quality. The Higher Education Funding Council for England no doubt did advise just that, but HEFCE was of course abolished by HERA. Now we have a regulator which seems as ill-informed about institutional realities as policymakers continue to be.

Institutions actually respond rapidly to market forces and regulatory threats. At one end of the market, conditional unconditional offers by some universities were a predictable and rational response to accentuated competition for students. A combination of shame and regulatory threat forced their abandonment. At the other end, the declining real income from home undergraduate students drives expansion of international student numbers with higher fees at the same time as well-qualified home applicants are rejected – a saga which is yet to play out but may have toxic consequences for government. And there are growing lacunae of provision in some geographical areas and in some subjects, as market behaviour which makes sense for institutions delivers irrational distribution of provision across the country. This is market failure – because we have the wrong kind of legally-enacted market, and the wrong kind of regulation. The OfS’s duties may be clear, but they are not appropriate.

How closely does the OfS’ regulatory framework adhere to its statutory duties? How has this framework developed over time, and what impacts has this had on higher education providers?

Andrew Sentance (Cambridge Econometrics) argued in The Times on 14 February 2023 that there has been a broad failure of regulation since privatisation and it was time for a complete overhaul. The OfS may be an example, but it is probably untypical because it was so likely to fail. The history of OfS deserves to be written as a case study in regulatory failure, and one chapter will surely start with former Director of Fair Access Les Ebdon’s accurate prediction that “I can tell you exactly what the OfS will do. It will do whatever the government of the day wants it to do.” OfS shortcomings were at first masked by the skills and knowledge of its first chair, Sir Michael Barber, and first CEO Nicola Dandridge. Barber had been in and around government and HE for many years, and though not popular in HE was deeply thoughtful and knowledgeable both about the sector’s performance and about the nature of regulation. Dandridge had been CEO of Universities UK with a broad appreciation of the contribution of the whole range of the HE sector. They were respected and trusted, or at least given the benefit of any doubt, as they sought to respond to the growing range of issues which the government laid at the door of the OfS, now including unexplained grade inflation, harassment and sexual misconduct, mental health and well-being, freedom of speech and increasing the diversity of provision.

The shortcomings of the OfS might even have been overcome through evolutionary change, but the government, with Gavin Williamson then still Secretary of State for Education, doubled down on its earlier mistakes when it replaced Barber and Dandridge (see below), destroying the relationship between the OfS and the sector as it struck entirely the wrong balance for a supposedly independent regulator.

What is the nature of the relationship between the OfS and the Government? Does this strike the right balance between providing guidance and maintaining regulatory independence?

The notes to the 2017 Act say: “This Act creates a new non-departmental public body, the Office for Students (OfS), as the main regulatory body, operating at arm’s length from Government, and with statutory powers to regulate providers of higher education in England.” (emphasis added). It was rumoured that Barber sought a second term as OfS chair but was denied. Former UUK chair Sir Ivor Crewe (former VC, Essex) was interviewed, as Sonia Sodha and James Tapper reported for The Observer on 14 February 2021: “Perhaps it was the long passage in Professor Sir Ivor Crewe’s book The Blunders of Our Governments about the way ministers’ mistakes never catch up with them that led Gavin Williamson to reject the expert as the new head of the Office for Students. Or maybe the education secretary was put off by the section of the 2013 book, written with the late Anthony King, dealing with how ministers put underqualified, inexperienced people in charge of public bodies. The job of independent regulator of higher education in England was instead handed to James Wharton, a 36-year-old former Tory MP with no experience in higher education who ran Boris Johnson’s leadership campaign.”

The Education Select Committee questioned Lord Wharton of Yarm on 5 February 2021 and endorsed his appointment, which was announced by OfS on 8 February 2021. Rob Merrick reported for The Independent on 2 February 2021 that Lord Wharton had been subject to ‘hard questioning’, in the course of which he said he didn’t see why he could not retain the whip, nor why his role as Boris Johnson’s campaign manager should raise any conflict of interest issues. So the ‘independent’ regulator was to have a partisan chair who would retain the government whip. Conflict of interest issues raised themselves almost immediately, as Lord Wharton was revealed to be a paid adviser to a company seeking to build a cable connection through land at the University of Portsmouth, which had also made donations to several Conservative MPs.

Wharton’s appointment was greeted with incredulity in HE, but with no signs of embarrassment on his part; he even brazenly secured the appointment of Rachel Houchen, the wife of a friend and political colleague, to the OfS Board, which has just two people with extensive and current HE institutional experience, one from Oxford and one from UCL. Chris Parr of Research Professional News elicited the surprising information from the OfS on 13 March 2023 that the OfS Chair has only visited five universities since his appointment more than 2 years ago – Nottingham, King’s College London, Cambridge, Sheffield Hallam University and The Engineering and Design Institute in London.

OfS, ‘having regard to ministers’ as statute demands, started to leave HE realities behind. DfE wrote frequent letters to the OfS and the OfS jumped to respond. An OfS consultation document issued on 26 March 2021 put into practice the ‘instructions’ received earlier from Secretary of State Gavin Williamson, proposing to steer more funds to STEM subjects and, among other things, halve additional funding for performing arts, media studies and archaeology courses. WonkHE’s David Kernohan gave his critical analysis on the same day. OfS announced on 30 March 2021 that after the first phase of a review of the NSS, commissioned by Universities Minister Michele Donelan, there would be ‘major changes’ including dropping all references to ‘student satisfaction’. Consistent reports that 85% or more of students in most universities are satisfied with their experience would be embarrassing for a government determined to prove otherwise.

Not a buffer, an irregulator

In the past funding councils were statutorily responsible for in effect providing a buffer between HE and government, to regulate excesses on either side. There is no danger of ‘provider capture’ now that the arm’s-length relationship with government has such short arms. However the limitations of the OfS are being increasingly exposed, not least by the remaining Lords Committee questions, especially No 4: Does the OfS have sufficient powers, resources and expertise to meet its duties? How has its expertise been affected by the Quality Assurance Agency for Higher Education’s decision not to continue as the OfS’ Designated Quality Body?

The QAA withdrew as DQB because the OfS expectations were incompatible with QAA’s broader remit and international roles and indeed the requirements of the European Association for Quality Assurance (ENQA) – which makes it unlikely that an international provider in Europe would agree to take its place as DQB. The OfS as ‘interim’ quality body has lived up to its threat to put ‘boots on the ground’; even though repeated tweaks of its Key Performance Measures have not yet produced any persuasive identification of ‘low quality courses’.

Nor has OfS shown that it will take any notice of widespread HE opinion, as UUK’s Charlotte Snelling reported in despair in her Wonkhe blog on 31 October 2022. On 9 March 2023 OfS announced a consultation on how it should have its investigations funded. The OfS has powers to make such charges following orders laid in Parliament only in December 2022, and “This consultation is not seeking views on the powers that the Regulations give the OfS or whether we should seek to recover the costs of our investigations. We are also not seeking views on matters relating to the OfS’s approach to monitoring registered providers, which may lead to us opening or conducting investigations.” The OfS plans to recover all staff and other costs attributable to the investigation, which it is entitled to do by those orders. It is a sham ‘consultation’, since it is clear what is intended and it is wholly predictable that the OfS will do almost exactly what is proposed.

The role of buffer was condemned as ‘backward-looking’ by Jo Johnson in his recent evidence to the Lords Committee; for good measure he also described QAA as a legacy from a previous era, even though he made clear the undesirability of OfS being more than an interim quality body. But we might at least expect the OfS to show some understanding and appreciation of the difficulties which institutions face, especially with rapidly declining levels of real income from tuition fees. Instead OfS put its fees up by 13%: Gloucestershire VC Stephen Marston, a former senior civil servant who also worked in HEFCE, said in Times Higher Education on 16 January 2023 that the increase was unacceptable. John Morgan reported in THE on the same day that the ‘shameful’ 13% rise would push the largest universities’ fees above £200,000. OfS chief executive Susan Lapworth blogged shamelessly on 26 January 2023 about how OfS plans to ‘refresh its engagement’ with universities and other providers.

To sum up, in the words of Paul Ashwin (Lancaster) and former Secretary of State Charles Clarke:

“Overall, we have a situation in which the OfS has become more interventionist to protect ‘the student interest’, apparently as defined by ministers and certain sections of the media, while its expertise to understand what such interventions involve has fallen significantly. Moreover, it is very unclear what forms of intervention the OfS considers could be effective in changing university behaviours in the desired direction. Together, these points represent a serious challenge to the legitimacy of the OfS as a regulator.”

Effective regulation in higher education depends on the willing, or at least grudging, consent of the regulated, but that consent has been deliberately dismantled. Instead the Office for Students is collapsing in an orgy of partisanship and wilful disregard for the real interests of higher education and its students.

Rob Cuthbert is Emeritus Professor of Higher Education Management, University of the West of England and Joint Managing Partner, Practical Academics rob.cuthbert@btinternet.com. Twitter @RobCuthbert


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The value and values of third sector collaboration for equality of opportunity

by Ruth Squire

In October 2022, as part of a foreword to the Office for Student’s consultation on ‘regulating equality of opportunity in English higher education’, the Director for Fair Access and Participation set out that he expects ‘more, and more impactful, strategic, enduring, mutually-beneficial partnerships with schools and with the third sector’ (OfS, November 2022).

The expectation has carried through into more recent guidance issued by the OfS (OfS, March 2023a), which names the third sector as potential collaborators in supporting school attainment and student outcomes. This is not a new expectation – the OfS, its predecessor organisations, and the DfE have repeatedly stressed the value of collaboration and HE providers (HEPs) collaborating with the ’third sector’ for access and participation – but it does warrant some scrutiny, as it can carry several implicit assumptions about the value and values that the ‘third sector’ can bring to access and participation. In its summary of consultation responses, the OfS notes that some respondents were ‘unsure’ whether third sector collaboration was appropriate (OfS, March 2023b), suggesting that not everyone has the same understanding or enthusiasm around these potential relationships as the OfS.

Questioning the third sector imaginary

The term ‘third sector’ (as opposed to a voluntary, community or charity sector) carries with it a lot of political history and assumptions. Organisations considered ‘third sector’ have been generally assumed to be, in some ways ‘better’ than alternatives in the public or private sectors, whether ethically or in terms of structures that make them more effective at tackling social issues (Macmillan, 2015). These organisations have been assumed to have innovation, effectiveness and (the right) values ‘baked in’ to their organisational structure. These assumptions can become particularly problematic when they are framed in opposition to the work of HEPs, whose widening access work has sometimes been criticised for making slow progress and being informed by institutions’ market interests. Rather than considering these qualities as attributes of ‘types’ of organisations or sectors, it might be better to ask what qualities we need and value in widening access and participation, and how these can be supported in all contexts. Simply ascribing qualities or values, even implicitly, to third sector organisations can frame them either as an ‘add on’ or even antidote to access and participation within HEPs – not particularly collaborative.

The examples of third sector collaboration offered by the OfS and its predecessors have tended to focus on particular ‘types’ even within the third sector – mostly social enterprises and philanthropic organisations. These are often ‘hybrid’ organisations that explicitly combine social and economic value and/or blend public and private sector practices. Among these, the Sutton Trust, with its blended focus on research, lobbying and activity delivery, and a message focused on access to the most elite professions and universities, has become the most prominent. However, the majority of non-HEP access and participation organisations do not have the resources of the Trust, nor is it appropriate for all organisations to follow this blended model of delivery. The presence of such a dominant model of ‘third sector’, which is particularly attractive and well-known among political figures, can create both opportunities and challenges for other third sector organisations, particularly in terms of advancing alternative visions of widening access and collaboration.

If we look wider than this narrow understanding of the ‘third sector’ and how it should operate, then there are a whole range of different organisations that could be and have been collaborators in access and participation. These include campaigning organisations, grassroots community organisations, parent-teacher associations or students’ unions. Collaboration with charitable and/or community organisations around widening access is not new for HEPs. Nor is it a new way of delivering on widening participation aims. However, with a dominant view of what qualifies as ‘third sector’ it is unclear whether these organisations offer the value or values expected by the OfS.

Looking more closely at the capacities and qualities of third sector collaborators can also reveal some assumptions we make about the shape of collaboration and the role of HEPs. Many third sector organisations, even those referenced as exemplars by the OfS, need to collaborate with universities to deliver their missions and to survive. However, they rarely have the security of long-term relationships that can support the effectiveness and innovation that are supposedly their essential characteristics. Examples of existing partnerships have tended to frame third sector organisations as deliverers of activity or consultants, with the HEP in control. What ‘impactful, strategic, enduring and mutually-beneficial’ looks like may require a change from current practice, questioning that power dynamic.

Values-driven organisations

The supposed neutrality and (non-partisan) values of third sector organisations working in widening participation have sometimes made them particularly attractive to political figures and to policy makers, singling these out as examples of good work. Despite values being seen as a positive quality in the work of the third sector, relatively little scrutiny has been placed on values in access and participation practice and policy more broadly. The quality of ‘good people doing good things’ is certainly not unique to the third sector, especially given that they are often the same people and same values as those working in HEPs or even the OfS.

Personal and institutional values have a core role in the enactment of widening participation in all settings. In a survey conducted with widening access professionals in 2021, personal experiences and values were a motivating factor in their roles for all respondents, regardless of the type of organisation they worked for (McCaig, Rainford & Squire, 2022). However, this is not to say that context is not important. Third sector organisations are often materially different to HEPs, not least in their relationship to widening participation policies. In that same survey, there were notable differences in how respondents described their organisations’ motivations, both within and between third sector organisations and HEPs.

There is a growing argument that we need to look more closely at the enactment of widening policy and how it is translated into practice within organisational and national contexts (Rainford, 2020; Benson-Egglenton, 2022). This is as true of third sector organisations working in this space as it is of HEPs (and of the FE colleges, employers and virtual spaces which are also often not included in policy and research). Understanding more about the different contexts in which widening participation is enacted and about those who enact it is an important component in understanding how some of the broader goals of widening participation can be achieved. We also need to pay critical attention to the different roles and capacities of organisations in the widening participation policy space, and their interests. Third sector organisations, just like HEPs, are not neutral by virtue of being charities. Values matter and they offer the potential for meaningful and enduring connections that are not based on organisation ‘type’. If we are to build the type of partnerships the OfS is calling for it will be crucial to move beyond assumptions and develop greater understanding of our similarities and differences .

Dr Ruth Squire is Evaluation and Impact Manager at Leeds Trinity University. Her PhD thesis explored the role of third sector organisations in widening participation policy and practice and she continues to research the enactment of policy, evaluation practice and widening access and participation work.


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Where should freedom of speech responsibilities in higher education lie?

by GR Evans

Under the Higher Education (Freedom of Speech) Act higher education providers and students’ unions will be required to publish Codes of Practice on freedom of speech. The Bill sets out the requirements separately for higher education providers (at A2 (2)(c)) and for students’ unions (at A6(2)(c)).

For both the Code must cover ‘the conduct required’ of the responsible bodies. Any complaint is therefore to be against the provider or students’ union, not any person or persons whose ‘conduct’ may be complained of. The complainant must be an affected individual who must have ‘suffered adverse consequences’ as a result of something the responsible body has done or not done. (An affected individual is (a) a person who is or was— (i) a member or member of staff of the students’ union, (ii) a student of the provider, or (iii) a member or member of staff of the provider or of any of its constituent institutions, or (b) a person who was, or was at any time invited to be, a visiting speaker.)

This has the advantage of clarifying who are to be the parties in a dispute about ‘conduct’ under the Act. However, the definition of ‘adverse consequences’ will have to be tested case by case and shown to be the fault of the responsible body. This could well seem remote from the actions of individuals which triggered or caused the harm. It will not be easy to identify a role for a decision-maker – the Bill requires the Office for Students to create a Free Speech tsar as arbitrator – to determine what responsibility a provider has in a given case, and especially the responsibility of individuals acting on behalf of the provider, such as HR professionals or union representatives.

Difficulties of these kinds have arisen in a number of instances which throw into question the practical reality of laying blame as now proposed. Kathleen Stock, a Professor at the University of Sussex, faced demands from campaigners that the University should dismiss her for her alleged transphobia. They wrote ‘we do not say Stock should not be permitted to say the things she does. We believe in the principles of academic freedom’, but they did not want those relied on. ‘Conflating concern about the harms of Stock’s work with threats to academic freedom obfuscates important issues’, they said. Stock told the Guardian that the academics had created ‘an atmosphere in which the students then become much more extreme and much more empowered to do what they did’.  UCU had taken sides against her, but trade unions are not included in the Act as responsible for the protection of freedom of speech.

The Vice-Chancellor of the University wrote to ‘all staff’ to say that the University had ‘vigorously and unequivocally defended her right to exercise her academic freedom and lawful freedom of speech, free from bullying and harassment of any kind’. Stock was not dismissed. She chose to resign. The question must be whether the University could have done more to protect her against the ‘adverse consequences’ she undoubtedly faced. On what grounds could she complain against the University?

Steven Greer, a Law Professor at Bristol, was attacked by student members of the University’s Islamic Society for allegedly making ‘Islamophobic, bigoted and divisive’ remarks in lectures. He received online threats. The University did something. It held a review, conducted by a KC who found that his remarks included ‘no evidence of Islamophobic speech’ and ‘did not amount to discrimination or harassment’, being ‘intended as the basis for academic debate by the students who elected to study it’. A Bristol spokesman was quoted as saying that students were encouraged ‘to engage with, debate, analyse and critique ideas and theories of all kinds within our academic programmes’. Steven Greer retired in 2022 but has published a book about his experience. He continues to call for the student activists to be punished by the University.

Speaking to Times Higher Education Greer drew attention to two other ‘freedom of speech’ cases at Bristol. David Miller, Professor of Political Sociology, had been dismissed by Bristol over remarks he had made about Israel. A Jewish student had made a complaint. The University commissioned a report from a KC, who, the University explained in a statement, ‘considered the important issue of academic freedom of expression and found that Professor Miller’s comments did not constitute unlawful speech’. Nevertheless, Miller was dismissed in October 2021, apparently for unprofessional conduct. His internal appeal was unsuccessful in March 2022. Had the new Act been in force he could have complained against the University, but could it have defended his dismissal if it was for reasons unconnected with any breach of its responsibilities to protect freedom of speech?

The second, the Bristol student Rachel Rosario Sanchez, had felt undefended by the University when she faced a hate campaign by student ‘trans activists’. She took the University unsuccessfully to court alleging that it had failed in its duty of care to her as a student. The option of making a complaint to the Office for Students might have been open to her had the new legislation been in force.

In Oxford, Professor Selina Todd co-signed an open letter to The Sunday Times in June 2019 questioning the acceptability of universities paying for training by Stonewall on LGBT matters, arguing that it was discouraging academic freedom of discussion. She was threatened by trans-rights activists. The University provided security at her lectures. In February 2020 her invitation to a conference was withdrawn. She told Cherwell (7 March 2020) that she was ‘shocked to have been no-platformed by this event, organised by Oxford International Women’s Festival and hosted at Exeter College’. She had “explained to the organisers that some trans activists may object to my being there. In fact, trans activists had already tried to shut the conference down because they claimed second-wave feminism was inherently trans-exclusionary”. If this was a college event, the University’s conduct was not in question in this case. The University has not sought to limit her continuing exercise of freedom of speech. She wrote to The Times on 3 November 2021 to criticise the Athena Swan scheme which is approved in many universities.

Cambridge has had recent cases testing the ‘conduct’ of one of its colleges and its Students’ Union. “Students from various colleges eagerly participated in the peaceful demonstration by banging pots and pans along with the chants”. This was reported by Tab in an article extensively illustrated with pictures of a ‘peaceful protest’ held outside Caius by the Cambridge Student Union LGBT+ campaign on 25 October 2022. A possible complaint about that action might lie against Cambridge University Student Union (CUSU).

The occasion was a lecture given by Helen Joyce, leader of the campaign group ‘Sex Matters’, at the invitation of Professor Arif Ahmed, a Fellow of Caius. It had gained considerable notice because the Master of Caius had circulated a letter deprecating the event, which had prompted press coverage. The Head of House did not, however, seek to prevent the occasion from taking place. But this is an example of a ‘freedom of speech’ episode where the responsible body was a ‘constituent institution’ of a higher education provider registered by the OfS. Any complaint of ‘adverse consequences’, for example about the consequences of the letter circulated by the head of House, would lie against the College.

Varsity has recently reported the vandalising of the front door of the Department of Chemical Engineering and Biotechnology by an activist group ‘citing the department’s ties to fossil fuel funding’ and alleging ““lobbying” by the department to delay a motion to stop the University receiving funding from fossil fuel companies”. “Activists from the group had taken similar action against the Schlumberger Gould research centre and the BP institute”.

These examples suggest that it is not going to be easy to draft Codes of Practice for providers or students’ unions which can realistically protect the freedom of speech of individuals in the face of an activism by other individuals which may place a higher ethical premium on a particular cause or campaign. The banging of pots and pans is arguably an acceptable form of protest speech, but can that be true of the breaking down of a door? The damaged Departmental door is not a person so it cannot make a complaint.

The role of the OfS in handling complaints

The new legislation is built round the role of the Office for Students. The OfS is to ‘regulate’ the duties of providers and students’ unions, operate a Complaints Scheme and have on its Board a Director for Freedom of Speech and Academic Freedom, adding this role to its other Directorship, for Fair Access and Participation.

This will require a change of attitude by OfS. On 15 December 2022 OfS implied that it would take no direct role in the enforcement of freedom of speech in higher education providers:

“The Office for Students stands for the widest possible definition of free speech within the law. It is not our role to take sides in the contested debates that feature in the higher education sector. We must, and will, apply our understanding of the law to the facts of an individual case and do so with care and impartiality.”

However, it did sketch intentions which might now be included in a Code of Practice. It would ask whether a provider has “robust decision-making arrangements, which require it to consider the impact of its decisions on free speech and academic freedom as part of the decision-making process” and “checks and balances to ensure that its policies and processes do not adversely affect free speech or academic freedom”. It would ask whether it ensured “that staff are appropriately trained, in particular those who are making decisions that may affect free speech and academic freedom matters.”

OfS wrote more robustly about its role in protecting freedom of speech on 17 May 2021, after the Higher Education (Freedom of Speech) Bill was introduced. It shared a joint press release with the Department for Education on 12 May, proposing the role of a new Director, to oversee the various free speech functions of the OfS, now to include compliance and enforcement. It does not appear to have been suggested that this task properly lay with the UKRI too, so as to ensure that freedom to research was protected as well as freedom of speech in teaching. The vandalising of the Cambridge Departmental door was prompted by remarks on the value of research in areas in dispute. The word ‘research’ appears in the Bill only as part of the title of the Higher Education and Research Act 2017 and a few times in connection with checks on overseas funding for research.

When a ‘Case for the Creation of the Office for Students’ as ‘a new public body’ to take the place of HEFCE and the Office for Fair Access was outlined by the then Department for Business Innovation and Skills on 2016 it was argued that there was ‘a need for a simpler, less bureaucratic and less expensive system of regulation’. This was the intention under which the OfS was created. However, concerns about its operation have been multiplying. On 12 January 2023 the sector bodies (Russell Group, Million Plus, GuildHE and the University Alliance) wrote a joint letter to the Chair of the Education Select Committee calling for ‘an inquiry into the operation and performance of the Office for Students’. It said it would be ‘timely’ to ask whether it was ‘fit for purpose’ given its new Freedom of Speech role.

The sheer scale of the expansion needed to provide for the operation of the new complaints procedure does not seem to have been calculated. The OfS has a budget of £30m and 350 staff. It is likely to need many more to cover this new duty and the litigation it may prompt. The Bill says that the complainant must have exhausted internal procedures first before it comes to the OfS and if the matter is before a court or tribunal the OfS scheme may not consider it, but between those stages the OfS will be very busy.

Also not fully examined seems to be the role of the new Director, described in the Bill in an insertion to Higher Education and Research Act 2017, Schedule 1 on the OfS. It involves ‘overseeing’, ‘performing’ and ‘reporting’ to the OfS. The ‘performing’ lays on the Director the ‘free speech functions’ of the OfS including ‘monitoring and enforcing the registration conditions’ of providers. This seems likely to require considerable additional staffing to support the Director.

Conclusion

The new legislation imposes on higher education providers and students’ unions a responsibility which seems difficult to fulfil in the face of the untidy realities of the ‘free speech’ behaviours of their members, staff and students as exemplified in recent disputes. It lays a further responsibility on the Office for Students to police it all at a time when concerns are mounting about its competence in discharging its existing responsibilities.

SRHE member GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.

This is a revised version of an article which first appeared in The Oxford Magazine No. 451, Eighth Week, Hilary Term 2023, reproduced with the kind permission of the editor Tim Horder.

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Memo to Universities UK: don’t let this crisis go to waste

by Rob Cuthbert

Carpe diem, quam minimum credula postero[1]

Our text is from Boris and Horace. Boris Johnson had Churchillian aspirations, and it was Churchill who supposedly first said in the 1940s: “never let a good crisis go to waste”, in the context of the formation of the United Nations. And it was Horace much longer ago who urged us to seize the day, and put little faith in the future.

As we survey the present carnage[2] in government, what are vice-chancellors to do? First, take stock of the damage to the machinery of government, both in the Department for Education and the Office for Students. At government level we had three Secretaries of State in the space of just 48 hours. Nadhim Zahawi, the last-but-two incumbent, had shown some signs of common sense, although admittedly his predecessor Gavin Williamson had set the bar very low. Nevertheless Zahawi had done nothing to rein in his universities minister Michele Donelan, who seemed to prefer fighting the culture wars to addressing the real problems of English HE – declining levels of funding, an epidemic of student mental health problems, profound staff dissatisfaction and the threat of mass redundancies and even insolvencies in too many universities. She had taken to telephoning individual vice-chancellors to question some aspect of university management or student behaviour, while enthusiastically pursuing the Higher Education (Freedom of Speech) Bill, which at the time of writing is at the committee stage in the House of Lords, procedurally close to its establishment in statute – perhaps. Her reward as the resignation carnage unfolded was a big promotion to Zahawi’s job, as he moved to be Chancellor of the Exchequer on Rishi Sunak’s resignation. But as the ministerial resignations surged past 50 on Thursday 7 July, Donelan obviously thought that it was safer to join in than to be, perhaps, buried in an eventual massacre of the survivors. But her timing was bad. Her letter of resignation was made public less than an hour before the news emerged that Boris Johnson had bowed to the inevitable and agreed to step down as leader of the Conservative Party – but to continue as Prime Minister, possibly until the Autumn party conference. For a brief period the DfE had no ministers at all, but the Donelan resignation made no difference to the outcome. Had she stayed, she would probably have remained in post and the outcomes for HE might have been different. Instead James Cleverly is the new Secretary of State. He has previously served in the Cabinet, but his views on Education have been “mainly confined to a yearly jeremiad on how A levels were getting easier”, according to David Kernohan’s instant appraisal for Wonkhe on 8 July 2022. At the time of writing the new Universities Minister has yet to be named.

The tsunami of ministerial changes will make waves for the regulator too. While that would be true of any ministerial change, in these peculiar circumstances the waves may reach storm heights. The chair of the Office for Students owes his position to his closeness to Boris Johnson. Baron Wharton of Yarm, as he now is, was simply a former MP when he took on the role of campaign manager for Boris Johnson’s successful bid to replace Theresa May as leader of the Conservative Party. (In the past there has been some dispute about whether he really was ‘the’ campaign manager, but no doubt there are now fewer claimants to that ‘honour’.) Wharton was rewarded first with a peerage, and then with the chair of the Office for Students. Controversially, he has continued to take the Conservative whip in the House of Lords although the OfS is by statute an independent regulator. It comes as no surprise that the OfS is fulfilling the prediction made before OfS was established by Director of Fair Access Les Ebdon, when he said “the OfS will do whatever the government of the day wants it to do”.

One of many ministerial letters of ‘guidance’ went to the OfS from the then Secretary of State Nadhim Zahawi and the then Universities Minister Michele Donelan on 31 March 2022. It said in effect that they like the way the OfS is doing the government’s bidding, but they want it done quicker and better. The interim OfS Chief Executive, Susan Lapworth, tried to defend the position in her HEPI blog on 13 June 2022: “ministers are not ‘politicising’ the work of the OfS when they make use of these lawful mechanisms to express their priorities and expectations. Rather, they are making proper use of the powers Parliament gave to them and that feels entirely democratic to me.” She noted that “ministers appoint the members of the OfS board: the OfS chair, independent members, the Chief Executive, the Director for Fair Access and Participation, and, subject to the passage of the Higher Education (Free Speech) Bill, another future director. These are all subject to the normal processes for public appointments. It is, though, hardly a surprise that ministers would wish to appoint people broadly aligned with the policy preferences of the government of the day. And a democratically elected government gets to make those decisions.”

Jim Dickinson and David Kernohan in their 1 June 2022 blog for Wonkhe noted: “… the first meeting for a new [OfS] board member announced by the Department for Education (DfE) as one Rachel Houchen. She’s the wife of Conservative Tees Valley Mayor Ben Houchen, who “lives in Yarm with his wife Rachel” and who until recently was assistant headteacher and governor of a local school, making her arguably more qualified than James Wharton to be on the board. No problem – according to the OfS interim chief executive, it’s OK to appoint the wife of your good friend and neighbour (and Conservative MP) to a seat on the board, if you’re the Chair who still takes the party whip in the House of Lords, because, “once appointed, we all ensure that OfS decisions are taken independently”.  

Now all bets are off. It remains to be seen whether the Higher Education (Free Speech) Bill will be enacted; it might depend on the kind of drubbing it gets in the Lords at committee stage, and whether a limping government has the inclination for a fight on that particular hill. That will determine whether we get a higher education free speech ‘tsar’, directly appointed by the Secretary of State (whoever that is by then). But the Donelan-pleasing initiative announced on 26 May 2022 is already looking more uncertain. The OfS launched investigations into eight universities and colleges to decide whether they meet the OfS’s conditions for quality, which had just come into effect. “Other factors to be considered include whether the delivery of courses and assessment is effective, the contact hours students receive, and whether the learning resources and academic support available to students are sufficient. To support this work the OfS is recruiting a pool of experienced academics to lead the investigative work.” OfS warned that they would be putting ‘boots on the ground’. But on what grounds? Diana Beech (London Higher) was in combative form in her HEPI blog  on 16 June 2022: “In sum, it appears that before implementation of the B3 risk framework, we have moved to a process of investigation based on undefined thresholds or metrics, accepted a subject-based evaluation rather than sector or institution, and accepted that volume balances against scale of variance. Consequently, questions must be asked about the timings, approach and motives for this announcement, which comes before the new Chief Executive of the OfS has been announced and also before a much-anticipated ministerial reshuffle.” Beech, of course had no inkling then of the scale of the ‘reshuffle’, but those questions must be asked with even more urgency now. Will the new DfE ministerial team wish to persist with such an ill-founded venture?

The situation poses existential challenges not just for government and the OfS, but perhaps also for Universities UK. There is an unprecedented opportunity for UUK to reset the terms of engagement between government and universities, by asserting a new and better interpretation of what the Higher Education and Research Act 2017 should mean. There is a chance to put an end to unproductive top-down meddling and reinstate constructive dialogue. But will UUK seize the day?

Some recent signs are not hopeful. OfS have repeatedly criticised ‘unexplained’ increases in the proportion of first class and 2:1s degrees, most recently in a report published on 12 May 2022, readily spun as ‘grade inflation’. In response Universities UK and GuildHE jointly announced on 5 July 2022 their plans to return to pre-pandemic levels of first class and 2:1 degrees being awarded over the next two years. The UUK ‘commitment’ is carefully worded, so the details of how the new arrangements will work are yet to be determined. However UUK accepted the language of ‘unexplained’ increases in the proportions of first class and 2.1s, even though the possible explanations include ‘better teaching’ and ‘students working harder and better’ – for which there is some research evidence. In principle the UUK announcement can only be seen as a shift to norm-referencing and away from criterion-referencing. There is no reference in the UUK announcement to the value of academic autonomy, or the need to be mindful of that autonomy. There must be a danger that UUK will continue to be reactive rather than assert more vigorously the value and the values which underpin the excellence of the English HE system.

But there are encouraging signs too. On 9 May 2022, while Michele Donelan was still fighting the culture wars as Minister for Further and Higher Education, UUK issued a strongly-worded rebuttal of government proposals to cap student numbers and introduce minimum entry requirements: “proposed reforms to post 18 education and funding in England would turn back the clock on social mobility while limiting the government’s own levelling up agenda. … UUK strongly opposes the introduction of student number caps, which would hurt those from disadvantaged backgrounds the most. As well as limiting student choice, student number caps entrench disadvantage because students who are unable to move location to attend university have fewer opportunities to apply and be accepted to university, making them more likely to choose a path with poorer employment outcomes. Limiting educational opportunities is also counterproductive as the UK looks to upskill and meet the growing need for graduate skills. There were one million more graduate vacancies than graduates in 2022. As part of its response to the consultation, UUK has also raised issues with using minimum entry requirements. The universities most likely to be most affected by minimum entry requirements recruit high proportions of students from disadvantaged backgrounds.”

This is the kind of robust response which UUK will need to maintain and strengthen. The clear statement of values which underpins the statement is the best way to show in practice how UUK will stand up for HE’s best interests and the ‘brand’ that is British (not just English) higher education. Zeenat Fayez (The Brand Education) wrote in a HEPI blog on 11 July 2022: “Brand is a comparatively new concept for universities and can be an intimidating commercial term; but, distilled to an essence, it is simply the reputation of an institution. Marty Neumeier encapsulated the concept best in his description: ‘a brand is not what you say it is. It is what they say it is.’ A brand can therefore be said to be a person’s gut feeling about a product, service or company. Consequently, brand management is the management of differences, not as they exist on data sheets, but as they exist in the minds of people.”

There are profound differences within HE, not least between staff and vice-chancellors, thanks to the long-running dispute over pay, pensions and conditions in USS institutions, and the equally severe problems facing many other universities as student numbers have shifted upmarket, away in particular from Million+ universities towards those Russell Group universities which have chosen to expand. This jeopardises opportunities for many potential students unable to move beyond their local institution, especially across arts and humanities subjects, as the reported redundancies in too many universities demonstrate. In some cases vice-chancellors have been tin-eared in response, as in the case of one VC announcing redundancies to a mass staff audience online, simply making a statement and not taking questions, and another threatening to stop recruitment to a programme where staff are currently taking industrial action. However a number of individual VCs swiftly and robustly disagreed when Michele Donelan wrote to all English HE providers on 27 June 2022 about “growing concern that a ‘chilling effect’ on university campuses leaves students, staff and academics unable to freely express their lawful views without fear of repercussion.” As for the Race Equality Charter and Athena Swan: “I would like to ask you to reflect carefully as to whether your continued membership of such schemes is conducive to establishing such an environment. On that note, I would draw to your attention that, in May 2022, the interim CEO of the Office for Students, warned that universities, should “be thinking carefully and independently about their free speech duty when signing up to these sort of schemes.” Jim Dickinson for Wonkhe on 27 June 2022 was quick to note there had been no ceasefire in the culture wars.

It is time for the sensible tendency in UUK to reassert itself. That would enable UUK to reset how people inside and outside HE think about the management of differences, especially those between HE staff, UUK, OfS and DfE. It might even enable UUK to give a lead in the broader culture wars. By asserting its position vigorously and properly, and by being proactive on some issues rather than simply responding to another government initiative, UUK has an unprecedented opportunity to restore some faith and trust in its capacity to represent the sector’s interests.

Rob Cuthbert, editor of SRHE News and Blog, is emeritus professor of higher education management, Fellow of the Academy of Social Sciences and Fellow of SRHE. He is an independent academic consultant whose previous roles include deputy vice-chancellor at the University of the West of England, editor of Higher Education Review, Chair of the Society for Research into Higher Education, and government policy adviser and consultant in the UK/Europe, North America, Africa, and China.

Email rob.cuthbert@uwe.ac.uk, Twitter @RobCuthbert.

[1] “Seize the day, put little faith in the future” Horace Odes 1.11

[2] After pausing to be grateful that carnage for once refers to somebody else’s mess, rather than commercially-inspired student drunkenness.

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Tunnel vision: higher education policy and the Office for Students

by Rob Cuthbert

In January 2022 the Office for Students published three sets of consultations, 699 pages of proposals for the regulation of student outcomes, the determination of teaching excellence, and the construction of indicators to measure student experience and outcomes. These were not separate initiatives, but part of a co-ordinated programme which needs to be seen in the context of the long-awaited government response to the 2019 Augar report, finally published in March 2022[1].

The OfS consultation announced that numerical thresholds will underpin requirements for minimum acceptable student outcomes at both undergraduate and postgraduate level. Universities and colleges not meeting these could face investigation, with fines and restrictions on their access to student loan funding available as potential sanctions. For full-time students studying a first degree, the thresholds require: 80% of students to continue into a second year of study; 75% of students to complete their qualification; 60% of students to go into professional employment or further study.

Not just numbers? OfS say: “we recognise that using our indicators to measure the outcomes a provider delivers for its students cannot reflect all aspects of the provider’s context … If a provider delivers outcomes for its students that are below a numerical threshold, we will make decisions about whether those outcomes are justified by looking at its context. This approach would result in a rounded judgement about a provider’s performance.”

But then: “… such an approach may present a challenge for some providers. This is because they must only recruit students where they have understood the commitment they are making to support their students to succeed, irrespective of their backgrounds. … Most universities and colleges relish this challenge and already deliver on it. However, some do not. While some may offer opportunities for students to enter higher education, we also see low continuation and completion rates and disappointing levels of progression to relevant employment or further study.” A warning, then, for “some”, but not “most”, providers.

The OfS approach will be fine-grained: “We would consider whether a provider has complied with condition B3 in relation to each separate indicator or split indicator. This enables us to identify ‘pockets of provision’ where performance in a specific subject, for students with specific characteristics, or in relation to partnership arrangements, falls below a numerical threshold”.

‘Selecting’ universities might think that ‘contextual judgment’ will rescue them, but may still decide to play safe in subjects where the numbers don’t look so good. ‘Recruiting’ universities, especially in ‘levelling up’ areas, might be looking at the numbers across many programmes and considering their strategy. Everyone will be incentivised to play safe and eliminate what are numerically the most marginal candidates, subjects and courses. And everyone thinks this will discriminate against disadvantaged students. For example, the University Alliance response published on 16 March 2022 said: “The University Alliance is gravely concerned that the proposals outlined by government could have unintended consequences for the least privileged students in society.”

Sally Burtonshaw (London Higher) blogged for HEPI on 26 January 2022: “As the dust begins to settle on the 699 pages of Office for Students’ (OfS) consultations and accompanying documents published on Thursday and providers across the sector begin to draft responses (deadline March 17th), it feels like there is a gaping chasm between the sector and its regulator. Language in the accompanying press release with references to ‘crack downs’, ‘tough regulatory action’ and ‘protecting students from being let down’, jars with a sector which has contributed so much throughout the pandemic.”

Diana Beech (London Higher) blogged for HEPI on 7 March 2022 about the government response to Augar and the OfS consultations: “… what we are facing now is not a series of seemingly independent consultations concerned with the minutiae of regulation, but a multi-pronged and coordinated assault on the values our higher education sector holds dear.” Diana Beech was a policy adviser to the last three ministers for universities.

SRHE Fellow Peter Scott summed it up like this: “This … ‘direction of travel’ is … based on the assumption that we should continue to distinguish between FE and HE, vocational and academic tracks, in terms of their social bases and costs. Of course, that is the current reality. Universities, especially Russell Group ones, draw a disproportionate number of their students from socially-privileged backgrounds, while FE is badly under-funded. This is why it makes (economic) sense for the Government to try to divert more students there. But is that sustainable in a country that aspires to being both democratic and dynamic? Most other countries have moved on and now think in terms of tertiary systems embracing HE, FE, on-the-job training, adult and community learning, the virtual stuff … bound together by flexible pathways and equitable funding – and, above all, by fair access. In the UK, Wales is setting the pace, while Scotland has had its ‘Learner Journey 15-24’ initiative. In England, sadly, there is no echo of such positive thinking.”

Status hierarchies must, it seems, be maintained, and not just between HE and FE, but also between universities. Contrary to expectations the Teaching Excellence Framework will rise from the ashes of the Pearce Review via the OfS’s second consultation. Earlier versions of TEF did not reliably reproduce the existing status hierarchies; some Russell Group institutions even suffered the indignity of a bronze rating. Clearly this could not be allowed to continue. So now: “The proposed TEF process is a desk-based, expert review exercise with decisions made by a panel of experts to be established by the OfS. The panel would consider providers’ submissions alongside other evidence. … TEF assessment should result in an overall rating for each provider. The overall rating would be underpinned by two aspect ratings, one for student experience and one for student outcomes but there would be no rating of individual subjects within a provider.” Such undifferentiated provider-level arrangements will surely be enough to ensure no further embarrassment for those with the highest reputations.

There will still be gold, silver and bronze awards, but not for all. The OfS script is worthy of Yes Minister: “… our minimum baseline quality requirements establish a high quality minimum for all providers. Therefore, quality identified that is materially above the relevant baseline quality requirements should be considered as ‘very high quality’ or ‘outstanding quality’ … ‘Outstanding quality’ signifies a feature of the student experience or outcomes that is among the very highest quality found in the sector for the mix of students and courses taught by a provider. … ‘Very high quality’ signifies a feature of the student experience or outcomes that is materially above the relevant minimum baseline quality requirements for the mix of students and courses taught by a provider.” Is the difference clear? If not, don’t worry, because the TEF Panel will decide.

As Sir Humphrey might have put it: it’s like the Olympics – not everyone will get on the podium. And it’s like ice dancing: judges hand out the marks based on how they rate the performance. The table of “features of excellence” spells out the criteria, for example: “The provider uses research in relevant disciplines, innovation, scholarship, professional practice and/or employer engagement to contribute to an outstanding academic experience for its students.” Whereas for high quality: “The provider uses research in relevant disciplines, innovation, scholarship, professional practice and/or employer engagement to contribute to a very high quality academic experience for its students.” Is the difference clear? If not, don’t worry, because the TEF Panel will decide.

Nick Hillman blogged for HEPI on 21 January 2022 about the OfS initiatives, reflecting on the limited success of previous attempts to shift evaluation towards metricisation, and Debbie Mcvitty blogged for Wonkhe on 24 January 2022 with a helpful potted history.There will be no surprises in the outcomes of the consultations. Whether or not the Titanic is sinking, we are consulted only on how to arrange the deckchairs. As HEPI’s Nick Hillman said: “I vividly recall what Les Ebdon, the former Director for Fair Access, said a few years ago when he was asked, “What will the Office for Students do?” His answer was, “It’s very simple. I can tell you exactly what the OfS will do. It will do whatever the government of the day wants it to do.” And so it has proved.”

Let us, then, look not at the entirely predictable outcomes, but at the style the OfS has adopted to reach them. The consultation on regulation of outcomes is telling. It takes 100 pages to assemble a rational-bureaucratic edifice in rational-bureaucratic language, with chapter headings including: “… making judgments about compliance with condition B3 … Addressing statistical uncertainty in the assessment of condition B3 … Taking regulatory action when a breach is identified …”. There could have been headings like: “How do we know how good the performance is?” or “What if something goes wrong?”. But that would have exposed the deeper questions, for which answers have already been decided. Instead we are drowned with bureaucratic detail. Details are always necessary, but we should be reminded of why they are needed. Instead these documents do their best to obscure the fait accompli which is their starting point, with a grinding remorseless pseudo-rationality which encourages you to lose sight of purposes and values.

In 699 pages of consultation the OfS has done its bureaucratic best to profess transparency, openness and rigour, while diverting our energies and attention from what an experienced ministerial adviser called the ‘assault on the values which our HE sector holds dear’. The consultations amount to a detailed enquiry about how exactly these values should be assaulted. We are in a consultation tunnel with only one track. What we can see is probably not the light at the end of the tunnel, it may be the lights from an oncoming train.

Rob Cuthbert, editor of SRHE News and Blog, is emeritus professor of higher education management, Fellow of the Academy of Social Sciences and Fellow of SRHE. He is an independent academic consultant whose previous roles include deputy vice-chancellor at the University of the West of England, editor of Higher Education Review, Chair of the Society for Research into Higher Education, and government policy adviser and consultant in the UK/Europe, North America, Africa, and China.

Email rob.cuthbert@uwe.ac.uk, Twitter @RobCuthbert.

[1] Covered elsewhere in this issue of SRHE News. SRHE members can read this and previous editions of SRHE News via https://srhe.ac.uk/my-account/