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).