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Must do better: the Office for Students and the looming crisis facing higher education Contents

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Chapter 2: The OfS’ duties and decision-making

OfS duties

19.Unlike some regulators, the OfS does not have a principal statutory objective or duty set out in legislation. Instead, HERA gives it several general duties which it must “have regard to” when performing its functions:

• the need to protect the institutional autonomy of English higher education providers;
• the need to promote quality, and greater choice and opportunities for students, in the provision of higher education in England;
• the need to encourage competition between English higher education providers where that competition is in the interests of students and employers;
• the need to promote value for money in the provision of higher education;
• the need to promote equality of opportunity in connection with access to, and participation in, higher education;
• the need to use the OfS’ own resources efficiently;
• so far as relevant, the principles of best regulatory practice.17

20.In addition to these general duties which the OfS must have regard to, the legislation also granted the OfS a number of more specific powers and functions. These include a requirement to monitor and report on the financial sustainability of most providers and the sector as a whole (discussed further in Chapter 3).18

21.There was a strong consensus among most witnesses that the OfS’ duties were clearly set out in legislation. Sir Michael Barber, the former Chair of the OfS, said he had never had concerns that the legislation was insufficiently clear on the OfS’ role.19 Vivienne Stern MBE, Chief Executive of Universities UK, agreed: “the remit of the OfS is clear. I do not think it is in dispute”.20 For Alex Proudfoot, Chief Executive of Independent Higher Education, the legislation underpinning the OfS was “fundamentally sound”.21 This was supported by numerous written submissions. 22

22.A minority of witnesses disagreed. Sir David Eastwood, former Chief Executive of HEFCE and former Vice-Chancellor of the University of Birmingham and the University of East Anglia, felt that its remit had been “too narrow” and that its focus on students rather than the wider role of universities was “conceptually flawed”.23 Conversely, Vanessa Wilson, CEO of University Alliance, said that the remit had been large to begin with and in some cases “quite ambiguous and very ambitious”, which had been worsened as the OfS had expanded its remit over time (see paras 40–46).24

23.Professor Simon Gaskell and Vicki Stott, respectively Chair and Chief Executive of the Quality Assurance Agency for Higher Education (QAA), highlighted the flexibility of HERA, which allowed for differing interpretations.25 Similarly, Universities UK said that, while the duties were clear, “there will always be complexities in how these can be interpreted and prioritised.”26

24.For the OfS, Lord Wharton said that the legislation gives the OfS “a clear job”, though not always an easy one. Susan Lapworth added: “we are clear about our role, we have appropriate flexibility and our job is clear.”27

25.Both Alex Proudfoot and Rachel Hewitt, Chief Executive of MillionPlus,28 said that, while they were supportive of the duties set out in legislation, there were challenges in how the OfS had implemented them.29 Individual providers were also critical: the University of Plymouth said that the OfS’ success in performing its duties had been “mixed”, while the University of Huddersfield said that the OfS had “strayed significantly” from its duties.30

OfS priorities

26.The OfS has a large degree of freedom to choose which of its duties it prioritises. In its written evidence to the Committee, the OfS stated that: “We take all our general duties into account as we make decisions about policy and individual cases, giving greater or lesser weight to them as we consider appropriate for that situation.”31 Susan Lapworth of the OfS also noted that the absence of a single statutory objective “means that we have quite a lot of flexibility to decide how we use our powers and what approach to take”.32

27.The OfS also emphasises that it is only required to “have regard” to its duties, rather than to achieve them: for example, in a recent briefing on freedom of speech, it stated that having regard to institutional autonomy “does not mean that the OfS is required under its general duties to protect institutional autonomy”.33

28.Several witnesses were concerned that the OfS had deprioritised its duty to have regard to institutional autonomy.34 Brunel University said that it was “difficult to see that the OfS has done anything to protect institutional autonomy”, adding, “the guidance on the publication of information, free speech, and the consultation on regulating sexual assault and harassment all arguably erode autonomy.”35 In a similar vein, GuildHE said the OfS had not got the balance right between “the need to protect institutional autonomy and to have regard to guidance from Ministers”.36 The OfS’ English language requirements were also cited by some witnesses as undermining institutional autonomy.37

29.Under HERA, the OfS should also have regard to best regulatory practice, including the principles that regulatory activities should be transparent, accountable, proportionate, consistent, and targeted only where action is needed.38 However, witnesses felt that the OfS had fallen short here too. The Russell Group said that in practice, “regulatory activities continue to expand, adding unnecessary and unintended burden on low-risk providers”.39

30.Most regulators are required to comply with the Regulator’s Code, and the OfS has stated in its regulatory framework that it will do so.40 However, in its written evidence submission, it emphasised that this is an obligation “to ‘have regard’ to relevant matters rather than to seek to achieve them in practice”.41 Shakespeare Martineau LLP, a law firm which focuses on higher education, said that this approach “demonstrates the OfS’ unwillingness to observe principles of good regulation that other regulators appear to embrace”.42 The Russell Group also called for the OfS to seek “closer alignment with the Code” by taking a more proportionate and evidence-based approach to regulation.43

31.Some witnesses also argued that the OfS had not adhered to the duty to use its resources efficiently. GuildHE said that its members “consistently raise issues with a lack of communication and timely action”, while the Russell Group said that, despite increases in provider fees, it was “unclear how the OfS is scrutinising its own costs and using its resources in an efficient and effective way”.44 We discuss this further in Chapter 7.

32.Shakespeare Martineau LLP felt that these shortcomings were symptomatic of wider issues with the OfS’ approach:

“The problem is that if the OfS does not appear to consider itself obliged to demonstrate that it is achieving the statutory objectives in practice, but merely to think about the importance of doing so, there is no framework within which to judge whether the OfS is appropriately complying with its statutory duties. All it has to do is to say that it has taken the duties into account, even while adopting regulatory measures that appear not to meet the duties.”45

33.For the OfS, Susan Lapworth argued that there was “no hierarchy” between its different duties: “It is not the case that one is more important than any of the others. Our job is to consider them in turn and balance them as we think appropriate”. She cited two examples in support of this view, arguing that when the OfS updated its requirements for quality it had given “more weight to quality and choice than we did to institutional autonomy”, whereas she argued it had prioritised institutional autonomy when it implemented its condition of registration during the pandemic.46

34.It is claimed that the OfS’ statutory duties are clearly set out in legislation, but they have been applied inconsistently and unequally. Given that the OfS’ duties are “have regard to” duties, with no sense of priorities, the regulator, and by extension the Government, have a large degree of freedom in choosing what to focus on. In our view, this creates confusion over the OfS’ objectives.

35.In particular, the OfS does not appear to have prioritised its duties to protect the institutional autonomy of providers or to have regard to the principles of best regulatory practice, causing friction between the regulator and the sector.

36.Moreover, the OfS appears to believe that having regard to its duties does not require it to demonstrate that it has given weight to the underlying objectives of those duties. This makes it more difficult for the OfS to be held accountable for its compliance with its duties.

37.When making changes to its regulatory framework, the OfS should make clear how it has taken its statutory duties into account, and where it has not done so, explain why. It is particularly important that clear reasons are given for any limitation of institutional autonomy.

38.The OfS should improve its adherence to best regulatory practice through closer alignment with the Regulators’ Code. It should do so with respect to how it implements its policies and procedures, as well as how it develops them.

39.The Government should consider whether the OfS should be required to demonstrate that it has taken account of particular objectives, rather than merely stating that it has regard to them.

Additional OfS activities

40.In addition to its statutory duties, the OfS has become increasingly active in regulating the sector in other areas, including protecting freedom of speech and tackling sexual harassment. The OfS’ actions in these areas are set out in the boxes below.

Box 2: The OfS and freedom of speech

The OfS’ regulatory framework sets out that providers should uphold “public interest governance principles”. These may include, among other matters, “support for freedom of speech or academic freedom”.47 According to the OfS’ website, this means that “when a university or college registers with us, we will make sure its governing documents uphold freedom of speech” and that the regulator can “intervene and apply sanctions” if a provider is not meeting these standards.48 The Higher Education (Freedom of Speech) Act 2023, which received Royal Assent on 11 May 2023, is expected to49 enhance the role of the OfS in this area by: Adding additional duties to “promote the importance of freedom of speech within the law in the provision of higher education” and to “protect the academic freedom of academic staff”;50 Giving the Secretary of State the power to require the OfS to report on these matters;51 Adding new mandatory registration conditions for providers relating to freedom of speech and academic freedom;52 Allowing the OfS to regulate students’ unions in relation to freedom of speech;53 Establishing a complaints system for freedom of speech;54 Creating the role of Director for Freedom of Speech and Academic Freedom at the OfS, as a member of the OfS Board.55 On 1 June 2023, Professor Arif Ahmed was appointed the first Director for Freedom of Speech and Academic Freedom at the OfS.56

Box 3: The OfS and sexual harassment

The OfS has recently consulted on a new approach to regulating harassment and sexual misconduct at higher education providers. It proposed imposing a new condition of registration, including requiring providers to publish their approach to protecting students from harassment and their arrangements for handling such incidents, as well as regulatory requirements in relation to personal relationships between students and staff. The consultation ran from 24 February 2023 to 4 May 2023 and the results will be published “later this year”.

Source: OfS, Consultation on a new approach to regulating harassment and sexual misconduct in English higher education: (23 February 2023): https://www.officeforstudents.org.uk/media/292f4ba4-0938-4bf3-a9b8-bde76f663185/harassment-and-sexual-misconduct-consultation-2023-final.pdf [accessed 11 July 2023]

41.Giving examples of the OfS’ expanding responsibilities, Rt Hon Charles Clarke, a former Secretary of State for Education, cited “unexplained grade inflation, harassment and sexual misconduct, mental health and wellbeing, freedom of speech and increasing the diversity of provision”. He argued that some of these areas are covered by the law “and should be dealt with by the law of the land”.57 Independent Higher Education described this expansion of responsibilities as “mission creep”.58

42.Similarly, the Royal Veterinary College said that some of the additions to the OfS’ remit “are much wider societal and political issues and are not solvable by monitoring and regulation”, adding that they “detract” from the core mission of the OfS and “spread resources too thinly”.59 For Vivienne Stern, the OfS has “accreted new responsibilities” due to a “tendency to treat the OfS as a bit like a Christmas tree”. In particular, Stern felt that freedom of speech “should not be the core remit of the regulator”.60

43.Anthony McClaran, Vice-Chancellor of St Mary’s University, Twickenham and Chair of GuildHE, said that the Australian regulator, the Tertiary Education Quality and Standards Agency (TEQSA), was reviewed within a year of its establishment due to “enormous concern about excessive complexity, regulatory burden, and failure to communicate adequately or consistently” with providers, noting that many of the concerns of the sector about the OfS “are quite similar”. The review led “to a very significant cutting back of TEQSA’s duties”, with a refocus on “those that were really important”.61

44.Anthony McClaran felt that “there was a legitimate role” for the regulator in relation to issues like sexual harassment and freedom of speech, arguing that “it is legitimate for the regulator to take a sector-wide view of some of the sector-wide problems”. He argued that “the answer is not necessarily always to … approach the matter purely in punitive terms”, suggesting that the regulator could instead “draw together good practice”.62

45.For the OfS, Susan Lapworth acknowledged that the sector feels the regulator should “not work on things like mental health, harassment and sexual misconduct and students’ consumer rights”. She argued, however, that “those are the things that students are most likely to tell us matter most to them” and argued that the OfS has to “find a sensible route through the middle”. She explained that the OfS had published a “voluntary statement of expectations” on harassment and sexual misconduct and asked the sector to self-regulate, and that progress had “not been sufficient or fast enough”, meaning that there is a “compelling case” for “sharper, more detailed regulation”.63

46.Universities UK pointed out that the OfS will be subject to a Public Bodies Review in 2023–2464 as part of the Cabinet Office’s Public Bodies Review Programme, launched in April 2022.65 Public Bodies Reviews aim to provide reassurance that a public body’s work remains useful and necessary, that its relationship with the sponsoring department is appropriate, and that it “is operating with a clear purpose and using an appropriate delivery model”.66

47.The OfS has now become involved in the micro-management of issues such as freedom of speech and sexual harassment. While undoubtedly important, these matters would be better dealt with by effective review of provider governance and disseminating best practice rather than through prescriptive regulatory requirements and time-consuming processes.

48.We note that the Government is committed to a public body review of the OfS. As well as considering whether the OfS’ work remains useful and necessary, the Government should review the activities of the OfS with a view to focusing on the strategic issues facing the sector.

Cooperation with other regulators

49.As set out in Chapter 1, the OfS is not the only regulator in the higher education sector. Providers also have to comply with other regulators, in particular:

• The Office of the Independent Adjudicator for Higher Education (OIA), an independent body set up to review student complaints about higher education providers in England and Wales.
• The Education and Skills Funding Agency (ESFA), which has overall accountability for the quality of apprenticeships.
• The Office for Standards in Education, Children’s Services and Skills (Ofsted). Although traditionally associated with children and schools, in 2021 Ofsted also became responsible for the inspection of apprenticeship provision at all levels, including at universities and other OfS-registered providers, on behalf of ESFA.67
• The Institute for Apprenticeships and Technical Education (IfATE), which is responsible for apprenticeship standards development, review and approval.
• The Office of Qualifications and Examination Regulation (Ofqual), which regulates qualifications, examinations and assessments in England, including vocational and technical qualifications and apprenticeship end-point assessments.

50.In addition, providers often have to work with other, cross-cutting regulators, including the Competition and Markets Authority (CMA), UK Visas and Immigration (UKVI), the Information Commissioner’s Office (ICO), and the Health and Safety Executive (HSE).68 For example, on 31 May 2023, the CMA issued updated guidance to higher education providers on complying with consumer protection law.69

51.GuildHE told the Committee that its members “routinely raise the complexity and regulatory duplication”, adding that “the Regulators Code outlines the principle that ‘Regulators should collectively follow the principle of collect once, use many times’. This is not happening.”70 Similarly, University Alliance called for “a co-regulatory approach between OfS and other regulators” to reduce “unnecessary duplication and red tape”.71 Dr Lavinia Mitton, a Senior Lecturer in Social Policy at the University of Kent, argued that there was a particular problem with apprenticeships, where “regulation has become fragmented and duplicated with responsibilities lying between multiple bodies”.72

52.Anthony McClaran highlighted obstacles to cooperation between regulation: “the frameworks that the respective regulators are asked to work to are so different in their approach … that it is very difficult to dovetail requirements”.73

53.The Minister was clear that he shared these concerns, saying he had an issue with “the preponderance of regulators … it is a cast of thousands”. He told the Committee that he was “doing a lot of work on that because I would like a much more streamlined system”, describing this process as “Operation Machete”.74

54.The proliferation of regulators in the higher education sector has caused duplication and red tape, increasing the burdens on providers—particularly in the area of graduate apprenticeships, where at least four other regulators have responsibilities in addition to the OfS. This issue is exacerbated by the apparent lack of effective collaboration between regulators.

55.We welcome the Minister’s recognition of the problems created by regulatory duplication in the higher education sector and his willingness to address this issue. In its response to this report, the Department for Education should set out in further detail the steps it is taking to streamline regulatory responsibilities within the sector, including its proposed timetable for this.

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