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Students in quality assurance – representatives, partners, or even experts?

by Jens Jungblut & Bjørn Stensaker

Throughout Europe, students are often regular members of external quality assurance mandated to perform evaluations and accreditations in higher education. While this role has been secured through the Standards and Guidelines for Quality Assurance in the European Higher Education Area (ESG), we have little knowledge about how students participate in such panels and which roles they take up. In a paper presented at the SRHE conference in Nottingham in December 2025, we addressed this issue – both conceptually and empirically.

One could imagine that there are several roles that students could play as part in an external quality assurance panel. Students are most often seen as representatives of their fellow students. This has implications as to how students are appointed to such panels, as various student interest organizations usually have the power to nominate specific students to the task. More recently, the idea of students being partners has also gained interest, where a key assumption is that students should be involved and participate in all aspect and processes related to their own education – including quality assurance. The initiative “student partnerships in quality Scotland (sparqs)” is a well-known example of this inclusive approach (Varwell, 2021). However, one could argue that students may even take on an expertise-based role in quality assurance. This type of role is not based on experience per se but rather the ability to reflect upon the knowledge possessed and the ability to engage in systematic efforts to learn more – based on these reflections (Ericsson, 2017).

In our paper presented at the SRHE conference we argue that the role of students participating in quality assurance panels (or any other related processes in higher education) may not be static, restricting students to merely one role at a time (see also Stensaker & Matear, 2024). We rather argue – in line with Holen et al (2021) – that the roles students may take on are highly dynamic. A consequence of this would be that students may shift rapidly from one role to another, depending on, for example, the evaluation context, committee setting, or the issue that is being discussed.

To test our assumptions, we conducted a survey targeting students taking part in European quality assurance processes; to be more specific, we targeted the `Quality Assurance Student Experts Pool` within the European Students’ Union. This group was established in 2009 with the aim to improve the contribution of students in quality assurance in Europe. When included in the pool, students undergo training sessions providing them with relevant background knowledge about quality assurance processes and the ESG. The members of the pool are then called upon by quality assurance agencies throughout Europe to act as student representatives on their quality assurance panels at program, institutional, or national level, performing evaluations, accreditations and other forms of assessments. The `Quality Assurance Student Experts Pool` therefore represents a unique entity in Europe, as it is the only European structure that collects and trains students for these roles. 35 students (of a total of 90) responded to our survey.

The students responding have on average been involved in quality assurance for more than four years, and over 60 percent have participated in four or more evaluation or accreditation processes. In line with our expectations, the students indeed report that they are taking on several roles during the evaluation processes, they are representatives of students, they feel they are equal partners within the evaluation panel they are part of, and they also see themselves as experts. In our data, we could not identify a clear hierarchy between the different roles. However, our data suggest that students are often perceived as a partner, while less often as experts. A possible interpretation here is that temporality and experience matter: students may be initially viewed as a representative and as a partner when starting their work within the panel, and through the process of participating in multiple panels over time they might demonstrate expertise which is in turn recognized by their peers in the panels. An interesting feature coming out of the data is also that the students in the `Quality Assurance Student Experts Pool` regularly share knowledge among the members of the pool, and in that way contribute to continuously build the expertise of all members. Expertise is in this way not taken for granted or expected as a prerequisite for being a member, but rather nurtured, systematised and made available to newer and future members.

We want to thank all the students that bothered to respond to our small questionnaire. While our study is exploratory, we do think it provides new insights regarding student involvement and influence in a setting characterized by a high level of expertise and professionalism, and we hope that the findings can help future research to further unpack the dynamic nature of students’ roles in quality assurance panels.

Jens Jungblut is a Professor at the Department of Political Science at the University of Oslo. His main research interests include party politics, policy-making, and public governance in the knowledge policy domain (education & research), organizational change in higher education, agenda-setting research, and the role of (academic) expertise in policy advice.

Bjørn Stensaker is a Professor at the Department of Education at the University of Oslo. He has a special research interest in governance, leadership, and organizational change in higher education – including quality assurance. He has published widely on these topics in a range of journals and book series.

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Higher education as a politicians’ playground

by Rob Cuthbert

Higher education has always been something of a playground for junior politicians; HE ministers usually serve only short terms, and many are practising for bigger jobs. (Liz Truss and Boris Johnson were both briefly shadow HE ministers.) The Coalition period was an exception, with David Willetts serving for four years and evidently deeply engaged and interested in HE. Since he left in 2014 the political game-playing has sadly degenerated, becoming ever more disconnected from the real issues facing the HE sector.

In 2024 fifty or more universities have declared or are likely to declare redundancies, as their funding position becomes ever more perilous. Student fees have been frozen at £9250 for a decade, and their real value has declined to the extent that they are now worth no more than the £6000 which applied in 2012 before the fee went to £9000. According to Mark Corver of DataHE: “… universities have lost, in real terms, around a third of their income since 2012. Most of that has happened recently. Universities have lost the equivalent of almost £3 billion from their annual UG teaching funding in just the past 18 months.”

The long-running dispute in half the sector over changes to the Universities Superannuation Scheme might have recently been resolved, but there are now major concerns about the cost of the Teachers’ Pension Scheme in the other half. UUK chief executive Vivienne Stern and UCEA chief executive Raj Jethwa wrote to Minister Robert Halfon on 18 March 2024 asking for more flexibility in whether post-92 universities must offer TPS membership to their staff, noting that 27% of post-92s had declared redundancies in 2022-2023 and 46% had done so since August 2023. TPS contributions rose sharply on 1 April 2024 as Tom Williams reported for Times Higher Education on 18 March 2024.

Pay disputes have led to repeated strikes and action short of strikes, especially marking and assessment boycotts, affecting the whole sector. This, coupled with Covid, has meant increased workloads for academic and professional staff in major and repeated reconstruction of teaching programmes, with many universities relying increasingly on a precariat of staff on short-term contracts. Negotiations between employers and staff are inevitably complicated by the wide range of institutional fortunes, which makes affordable resolution for everyone difficult to achieve. Covid and employment disputes have brought massive disruption for students, with class actions for compensation continuing as an additional looming threat to HE budgets. Problems with student mental health have reached epidemic proportions, affected not only by the pandemic and loan-driven student debt but also the spiralling cost of university and private student accommodation, which is in short supply in many places.

In 2024 we do expect a general election, but we don’t expect the massive problems for UK HE to be an election issue. Voters mostly care much more about cost of living, the energy crisis, climate change, wars in Ukraine and Gaza, the NHS … and even within education, universities rank well behind schools and nursery places as topics for political debate. As Tom Williams reported for Times Higher Education on 16 May 2023, HE Minister Robert Halfon declared that “… the sector was in a “fairly strong” position – compared with much of the economy given the current financial difficulties – and implied management may be to blame at universities faring badly, rather than his government’s funding system.” Halfon resigned unexpectedly on 26 March 2024, so after 14 years of Coalition and  Conservative government we have our ninth new HE Minister, Luke Hall. It is the eleventh such appointment, since both Jo Johnson and Chris Skidmore served twice, and only four of the 11 appointments lasted for more than a year. There is a striking contrast with appointments as Schools Minister, the role in which Nick Gibb has served for most of the last 14 years, despite being sacked and reappointed by successive prime ministers.

For most of the Coalition period the Universities Minister was David (now Lord) Willetts, who was perhaps the main architect of the Higher Education and Research Act (HERA) 2017, eventually steered into law by Jo (now Lord) Johnson. HERA legislated for the HE ‘market’ and created a new regulator, the Office for Students (OfS). The policy sought to drive up quality through competition, with an influx of new ‘alternative’ providers; the Act made extensive provision for failing HE institutions to go out of business. Willetts’ special adviser, Nick Hillman, later became an effective Director of HEPI, but his HEPI blog of 14 February 2024 asked ‘Whatever happened to all those alternative providers?’,  while still defending the policy to which he contributed. A more plausible view is that the HERA version of the ‘market’ in HE had been tried and comprehensively failed. Against the success of a few new providers like the Dyson Institute there have been many more seeking to provide mostly lower-level courses, mostly in business, mostly in London. Operating an HE institution is a complex, difficult and long-term activity, and after relaxing requirements for entry to the higher education ‘market’, government was forced to crack down on the more egregious excesses of some of the new alternative providers. ‘Driving up quality through competition’ has been shown up as a fantasy; what always worked much better was relying on the intrinsic motivation of people in HE to do the best for their students, in what has always been vigorous competition with other institutions. Self-regulation is of course inadequate: HE institutions need external quality assurance and control, but the OfS chose to do away with the QAA, the designated quality body, by setting conditions which jeopardised QAA’s international credibility and forcing QAA to step down. Instead the OfS has set up its own quality arrangements in an apparently long-term plan which goes against all the expectations when HERA was enacted. 

That was the good news. A new government was entitled to try a new policy for HE, as it did. It didn’t work, so what happened next? Not repeal, of course, but neither was it, as we might have hoped, adaptation of the new policy to make it work better. In the chaos and increasingly rapid turnover of the post-Brexit administrations, politicians in the DfE and elsewhere became obsessed with culture wars. They brought forward a major new piece of legislation which had nothing to do with HE finance, staffing issues, student problems, or even the supposed focus of ‘levelling up’. Obsessed by immigration numbers, government even doubled down on HE’s financial problems with visa restrictions seriously affecting international student recruitment, especially for postgraduate recruitment which for many years had underpinned the viability of STEM disciplines. It was convenient for government that the OfS continued to give reassurances about HE finance, but it was hardly surprising, since government had installed a Conservative peer as the OfS chair.

The new legislation was the Higher Education (Freedom of Speech) Act 2023, education’s contribution to armaments in the culture wars. There were, of course, problems in some, perhaps even many, HE institutions over what might and might not be said in different contexts. A HEPI blog by Josh Freeman on 13 October 2022 argued that there was a problem with self-censorship and ‘quiet’ no-platforming. In the US some prominent university presidents lost their jobs arguing with politicians about the need to protect diversity in HE debate. The war on woke has not perhaps reached that pitch in the UK yet. But the Act required OfS to appoint a free speech ‘tsar’, as it did, and OfS issued proposals on 14 December 2023 on how the free speech regime will operate, launching a consultation on 26 March 2024. The results are unconvincing to those on the ground in the institutions. Jim Dickinson blogged for Wonkhe on 6 March 2024 about the shambles which government has created with its free speech legislation: “We are literally less than six months away from OfS opening a complaints scheme under which one group of students will say another’s actions amount to antisemitism, while the other will say they are threatening their right to express legally protected anti-Zionist beliefs – both saying their free speech is threatened as a result, both arguing they are being harassed, and both reasonable in asserting that they were assured their free speech and protection from harassment was assured.” The Act may even rival the Hate Crime and Public Order (Scotland) Act 2021 for its unworkability in practice.

The principal cheerleader for the new Act was Education Minister (and for two chaotic days in the fall of Boris Johnson, Secretary of State for Education) Michele Donelan, who continued to champion it even as she moved to become Secretary of State for Science, Innovation and Technology in the Sunak administration. Donelan relied on a press release from right wing think tank Policy Exchange to pick a fight with UKRI about the members of its Equality, Diversity and Inclusion Committee. The release was written by Donelan’s former special adviser Iain Mansfield. UKRI suspended its Committee and their membership pending an inquiry, which exonerated the members, one of whom sued Donelan for libel and won £15000 damages, as Faye Brown reported for Sky News on 12 March 2024. The damages were paid by the government, prompting widespread disbelief; Leader of the House Penny Mordaunt even suggested that we should cut Donelan some slack because she had not taken the £16000 redundancy payment to which she was entitled  from her two days as Secretary of State for Education. It would all be deeply embarrassing, if government ministers were still capable of feeling shame.

The playground urgently needs more grown-ups, to do higher education policy as if higher education mattered.

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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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 Office for Students and ‘successful outcomes’

by GR Evans

In March the Office for Students press release welcomed a ‘landmark victory’ which ‘sets an important precedent’ in the  recent judicial review of the Office for Students’ decision not to register Bloomsbury Institute Ltd. The OfS warns that:

The OfS will not hesitate to defend its decisions robustly where they are in the interests of students and will seek to recover its costs in doing so …

Nevertheless, it is likely that this will not be the end of the matter, with other challenges from disappointed providers in the pipeline.

What exactly has been decided and what demands further clarification? The question answered by the judgment was not  whether the decision was right. It was whether the Office for Students had acted ‘lawfully’. That depended on whether the OfS Conditions of Registration were themselves lawful and whether they had been properly applied.

The main hurdle at which Bloomsbury’s application for registration fell was its failure to satisfy OfS Condition B3, which includes the requirement to secure ‘successful outcomes for all of its students’ (‘continuation rates’). This includes an expectation that the ‘successful’ student will be one who enters into well-paid employment on graduation (‘progression rates’) and thus  arguably gets ‘value for money’ for the student fee. These were the two criteria on which Bloomsbury was deemed to have failed.

The judgment considered how OfS had actually applied condition B3. It did not attempt to explore the boundaries of the grey area in which the definition of ‘continuation’ and ‘progression’  continue to sit. It simply concentrated on what the OfS had done to set detailed rules to be applied case by case. It just asked whether they were ‘lawful’.

The problem OfS faces is that providers do not all have the same or similar ranges of students forming a typical body. Bloomsbury had made that point very energetically, explaining that 85%, of Bloomsbury’s students were mature students; 66% were BAME; 16% were disabled; 90% came  from families earning less than £25,000 per annum;  and 88% began with a Foundation year because 80% did not not have A Levels. The OfS explained that it had dealt with this problem pragmatically and that:

this had already been taken into account in the selection of the baselines, ie the baselines were lower than they might have been to take this into account.

In other words, the expectations had been set low so as to accommodate these outliers. That was potentially perfectly reasonable and unlikely to be unlawful.

But Bloomsbury argued that that the OfS erred in law because it had created secret ‘thresholds’ in ‘confidential Decision-Making Guidance’. It said these should have been  published in advance and the attention of applicants for registration should have been drawn to them. It added that they were contrary to the OfS’s published Regulatory Framework and the guidance provided by the Secretary of State for Education. Bloomsbury also pointed to the fact that these ‘thresholds’ had been ‘drawn up by the OfS’s Director of Competition and Registration’,who did not have the necessary authority under the  OfS’s scheme of delegation.

The judgment considered all this and held that the Director for Competition and Regulation had been ‘entitled to take responsibility for the drafting and circulation of the Decision-Making Guidance’, because it counted as an ‘operational decision-making function’. That leaves these ‘thresholds’ not only deemed to be lawful but open to further amendment ‘operationally’. And it does nothing to address the question whether they are satisfactory or fair, and the bigger question whether there can be accurate quantification of degrees of compliance so that setting ‘thresholds’ is appropriate.

It is not the first time quantifications of higher education performance – of students or providers – have been attempted. Under the previous rules, Bloomsbury had been ‘designated’ for Student Loan Company purposes since 2009. In 2015 it had been one of only two alternative providers commended by the QAA and the QAA had been ‘complimentary’ in 2016 and 2017. However, its failure to perform to the standard expected on the numbers of its students who ‘continued’ beyond their first year had brought it an ‘improvement notice’ in February 2106 and again in August 2018. In March 2019 the Department for Education had ‘noted’ the failure to mend Bloomsbury’s performance on continuation rates but this was merely a warning that action might be taken in future if things did not improve.

Bloomsbury argued that the OfS should not have relied on these thresholds without consulting the Quality Assurance Agency for Higher or taking into account the outcomes of reviews and investigations by the QAA in its previous incarnation before it became the OfS Designated Body under Higher Education and Research Act 2017 s.27. It said that it had been unreasonable of the OfS to refuse to grant registraton when it ‘had been granted on previous occasions on the basis of essentially the same data’.

Here the court relied on an important OfS paper which had considered whether the OfS ought to rely on previous QAA assessments.  This had drawn a key distinction. The OfS’s ‘primary aim is to ensure providers are delivering positive outcomes for students’. The task of the OfS  was to form a ‘regulatory judgment’ about that. By contrast, ‘previous QAA review activity’ was considered ‘not relevant to the assessment of student outcomes for condition B3’ because it  had a different purpose. It did not ask about ‘outcomes achieved by the provider’s students’ but ‘focused on the design and operation of a provider’s systems and processes.

The court thought that was clearly correct from the point of view of ‘lawfulness’ in being faithful to the OfS conditions in the decision-making, providing the thresholds were themselves lawful.  In any case, Condition B3 is excluded from the list of conditions on which the OfS is to consult its Designated Quality Body. The Regulatory Framework makes it clear that the OfS itself is alone responsible for assessing Condition B3.

In this connection the judgment makes a clear separation of responsibility for ‘quality’ and for ‘standards’:

The effect of [HERA] section 27 is that when a body is designated as the DQB, only that body can be responsible for assessment of standards. The OfS is, therefore, not responsible for standards. However, section 27(3)(b) makes clear that the OfS is still responsible for the exercise of assessment functions which do not relate to standards. Condition B3 is concerned with quality of education, not with standards, and so the effect of section 27 is not that only the QAA can assess compliance with Condition B3. There was no requirement in section 27, or anywhere else in HERA, for the QAA to play a part in the OfS’s assessment of quality criteria.

Here too there seem to be points which need to be returned to, not in litigation, which cannot easily address them, but in policy-discussion and wider consultation. If there is to be a ladder of quantification of provider performance in setting which the QAA can have no say its existence and the placing of its rungs demand as much. Otherwise how can those ‘successful outcomes’ ultimately be defined?

SRHE member GR Evans is Emerita Professor of Medieval Theology and Intellectual History in the University of Cambridge, and CEO of the Independent Dispute Resolution Advisory Service for HE (www.idras.ac.uk).

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The Thirty Years Quality War

By Rob Cuthbert

Ten years ago David Watson[1] (2006 p2) said that in England since the 1980s: “the audit society and the accountability culture have collided (apparently) with academic freedom and institutional autonomy”. He called this clash between accountability and autonomy the ‘Quality Wars’ and identified five major casualties: the shrinking of higher education’s sectoral responsibilities; truth – managers mistaking criticism for resistance, staff mistaking resistance for criticism; solidarity – because of the rise of the ‘gangs’ – the Russell Group and others; students, as quality assurance became ever less effective at delivering enhancement; and the reputation of UK HE abroad, as our determination to label things unsatisfactory advertised the few deficiencies of our sector and obscured our strengths.

Ten years on, the hostilities continue and the casualties mount. Continue reading →

Paul Temple


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‘Alternative’ they may be, but ‘providers’ …?

By Paul Temple

Not that many SRHE members – I’m guessing here – will have called in on the London College of Business Sciences in Dock Road, E14. If you were planning a visit, you’d need to be sure that you hadn’t confused it with the London College of Business Management. Other traps for the unwary could be the London College of International Business Studies, not to mention the London College of Business Management and IT. Or indeed any one of a long list of for-profit colleges with the words ‘London’, ‘College’ and ‘Business’ in the title. The QAA has the thankless (and it seems to me pointless) task of inspecting these places. The London College of Business Sciences, to make a random choice, was established in 2010 and has changed ownership every year since then. It’s not then particularly surprising that the QAA in a report this year found that ‘The College’s…management of academic standards…is not fully effective’.

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