Introduction
Introduction question: Do you agree or disagree with the proposals for the implementation of the new initial conditions and new requirements for registration? If you disagree, do you have alternative suggestions?
London Higher’s members support the goals of this consultation around fairness to students and effective, transparent, high-quality governance. As a group of providers already registered with the Office for Students (OfS), their primary concern is about whether the OfS aims to have all currently-registered providers continue with their current conditions of registration indefinitely or whether they will be brought round to the new system in time. If the former, it may become complicated to have some providers registered under one set of conditions and some under others. While they are broadly happy with the new conditions (see detail below), they ask that attention be paid to the future logistical difficulties of having providers registered under two sets of conditions. Currently-registered providers would like to know the timeline on which they can expect to be brought into alignment with the new conditions.
Part 1 Questions
Question 1: Do you agree or disagree with the proposal to introduce a new initial condition to replace initial condition C1? If you disagree, please give reasons for your answer.
London Higher’s member institutions agree with the introduction of a new initial condition to replace initial condition C1.
Question 2a: With reference to the concept of fairness: Do you agree or disagree with our proposal to focus initial condition C5 on this concept? If you disagree, please give reasons for your answer.
Building the new condition around fairness and the centrality of fair treatment to students is a positive development. In the implementation stage, though, there are some areas in which greater clarity would be useful. Some institutions have expressed concern that testing fairness in the cases of individual institutions could result in too much of a guessing game where it is unclear how the definition of ‘fairness’ will be applied.
Our members also expressed concern that one concept of fairness may be hard to apply uniformly across all students. Student groups including part-time and distance-learning students may benefit from being treated differently to traditional full-time residential students and not feel it has been unfair if they are treated differently. Clarification is needed on what the baseline for fair treatment would be, and how far treatment would have to differ from that baseline to be considered ‘unfair’.
Question 3: Do you agree or disagree with our proposal to focus on negative indicators (or the absence of negative indicators)? (I.e. if there is evidence that a provider does not treat students fairly, it would not satisfy proposed initial condition C5. If there is no such evidence, the provider would satisfy the condition). If you disagree, please give reasons for your answer.
We are satisfied with the proposal to measure fairness by tracking incidents of unfairness.
Question 4a: What are your views on: The proposed OfS prohibited behaviours list (including the way we are proposing to use consumer protection legislation and CMA guidance to inform it)?
The indicative list of prohibited behaviours included in the consultation seems difficult to interpret and apply. For example, the language around ‘advertising, promoting or otherwise offering courses, course content, material components, features or elements of a course, other services or facilities, without disclosing the existence of any reasonable grounds the provider may have for believing it may be unable to provide these’ could be interpreted differently by different providers.
London Higher’s members also query whether it is reasonable for the proposal to go beyond consumer protection law. There are valid questions related to whether it is fair to expect higher education providers to maintain standards that go beyond current consumer protection law, when other institutions do not have to do this.
Question 7: Do you agree or disagree with our proposal to remove initial condition C3 (student protection plan) and replace it with the requirements of proposed initial condition C5? If you disagree, please give reasons for your answer.
London Higher members agree with proposed changes to the requirement for a student protection plan, as they feel that student protection plans have not been able to fulfil their role as originally intended. We hope that the new documents required by initial condition C5 will be adaptable and able to work in unforeseen circumstances. For example, many student protection plans were not adaptable enough to be fit for purpose in the unforeseen Covid-19 pandemic. Whatever replaces the original student protection plan documents should learn from this and be designed with flexibility in the case of unforeseeable circumstances in mind.
Question 13: Are there any aspects of these proposals you found unclear? If so, please specify which, and tell us why.
Greater detail will be needed for providers to understand how these proposals around fairness and unfairness will be applied. While the material provided in the proposals and annexes is detailed, it is impossible to understand how fairness and unfairness will be viewed in practice. To better understand how the proposals will affect universities in practice, it would be helpful to see worked examples that consider how different types of institutions would be affected. Specifically, it would be useful to see how the proposals would affect small and specialist institutions differently from large multi-faculty institutions.
Part 2 Questions
Question 1a: Do you agree with the proposal to introduce a new initial condition that would require a provider to have effective governance arrangements for the purpose of being a registered higher education provider?
Introducing a condition on effective governance arrangements is a positive change. However, there are several points on which institutions will need clarification to understand how the new conditions will affect them. These include understanding the value judgments that will be applied to their original governance documents compared to previous self-assessment write-ups of governance documents.
Question 1b: Do you agree that this new initial condition should replace the current initial conditions E1 (public interest governance) and E2 (management and governance)?
We agree in principle with new condition replacing current initial conditions E1 and E2. For small institutions specifically, it is important to bear in mind the disproportionate impact of new administrative conditions and the additional workload they cause for small teams. The consultation’s focus on minimizing bureaucratic load and volumes of paperwork is welcome. We hope replacing two conditions with one condition will result in lower administrative loads for higher education providers, so they have more capacity to focus on providing education and support services to students. We hope the implementation of these conditions will continue to consider the capacity of teams at small institutions.
Question 2a: Do you agree with the proposal that initial condition E7 should include a requirement for a provider to have a business plan which describes the provider’s business, sets out its objectives over the medium term, and its strategy for achieving them?
It is important for higher education providers to understand which standards will be applied to judging the business plans in the evaluation process. It is important for higher education providers to understand how their business plans will be viewed and what standards will be applied to them.
Question 3a: Do you agree with the proposal that initial condition E7 should include a requirement for key individuals to have sufficient knowledge and expertise to ensure the provider, if registered, would be able to:
1. deliver its business plan,
2. comply with the OfS’s conditions of registration, and
3. deliver its arrangements for preventing fraud and protecting public money.
Please give reasons for your answer.
London Higher members agree with the goals behind this proposal but question how it can be put into practice. If the goal of the proposal is to interview key individuals to check their knowledge and understanding, this seems like it would generate a huge volume of work for the Office for Students and not be a sustainable system at high volumes. While our member institutions agree that it is important for key individuals to have the skills and knowledge described in the proposal, a long and involved assessment process could send a message of distrust towards the higher education sector.
Question 4a: Do you agree that the overarching test should be based on an assessment of relevant individuals’ track record in relation to the protection of public money, the maintenance of the good reputation of the higher education sector and the protection of the interests of students? If you agree, please explain why. If you disagree, please explain why and any alternative approach you would
recommend.
We support the proposals taking a strong, clear stance on fraud and misuse of public funds. It is crucial for the higher education sector to have robust protection against fraud. While our members see these proposals as steps in the right direction, they would benefit from being more detailed, particularly including more detail on the place of internal auditing in the new system.
