Part 1: Proposals for new initial condition C5 - Treating students fairly

114. Through the proposed new initial condition, we want to test the documents a provider uses (or intends to use) in its real-world relationships with students. We think this will support our proposed move away from requirements that test whether a provider has had ‘due regard to relevant guidance’ and towards those designed to test whether the provider treats students fairly in practice.

Overarching principles

Provider intentions, if registered

115. When assessing eligibility for registration, the OfS considers a provider’s intended higher education provision if it is registered.²⁷ It is important that a provider seeking registration is sufficiently prepared to offer higher education, even if it is not yet offering such education. We therefore propose that all providers should be required to submit all the required documents, even where a provider seeking registration is not yet in operation or not yet delivering higher education.
116. Our initial view is that the proposed documents represent the minimum a provider would need to manage a consumer relationship with a student. While this may mean that a provider in the early stages of development (as a ‘startup’ or as an existing organisation diversifying into higher education) may need to develop these documents before it can apply to register, we consider that this preparation is needed for a provider to be ready to offer higher education and therefore that it is appropriate that these documents are assessed at registration. Our initial view is that this would not create additional work for providers seeking registration beyond that which would be required, in any case, in the normal operation of its future business.

Approach to providers that do not intend to charge fees or register students

117. Even where a provider does not intend, itself, to charge fees to any students or register students for whom it would deliver higher education if successfully registered, we propose it must still submit all the required documents. We suggest this may be relevant to the following providers in particular:
     • providers that intend only to provide higher education via a subcontractual partnership²⁸
     • providers that intend only to deliver higher education as part of an apprenticeship or other employer-sponsored provision.
118. Our initial view is that, to properly assess whether students are treated fairly, we need to assess all documents relevant to the higher education a provider will deliver if it is successfully registered. To meet the requirement, we therefore propose that a provider may need to submit its own documents and those of other higher education providers or organisations connected with the higher education provision that it intends to deliver. We have specified below (paragraphs 123 to 141) where we think this will be most relevant to particular documents.
119. For a provider intending to deliver higher education through a subcontractual partnership or as part of an apprenticeship (or similar), our proposals may therefore require it to liaise with other organisations to prepare its submission. Though our proposals should not directly affect registered providers, the proposed document submission requirements may have an indirect effect on those providers that have (or intend to have) partnerships with providers seeking registration.
120. Where more than one provider has a relationship with a student, we would expect both providers to ensure any information published or otherwise shared with students is consistent, particularly where this relates to each provider’s duties and responsibilities. We propose that the OfS would consider evidence of any contradictory or inconsistent information it identifies in its assessment of the condition. We are making this proposal in the context of recent investigations by the Public Accounts Committee into higher education delivered via subcontractual (or ‘franchise’) arrangements, which concluded, among other matters, that arrangements currently do not ‘give students the information they need to make well informed decisions’.²⁹
121. Where a provider does not intend to register any students when it submits its application to register (because students will register with another provider), we may require it to report a change of circumstances if this position changes following its registration. This may include a requirement to submit the contractual and other documents it would intend to use in its relationships with future students.
122. Where a provider does not register any students when it submits its application to register with the OfS but it intends to do so following its registration, we propose it would need to submit the contracts that it intends to use in these relationships.

Documents

Contracts for the provision of higher education

123. We propose to consider the relevant contracts directly rather than, for example, a narrative description of these documents or of the provider’s approach to drafting its contracts. We propose that ‘contracts’ should cover any document setting out terms and conditions for students as these relate to the provision of higher education. Where there is more than one document, we propose that all should be submitted. Where a provider applying for registration shares (or intends to share) contractual responsibility for students with other providers or organisations, we propose that it should submit all documents that would apply if it is successfully registered, regardless of whether it or another provider or organisation holds or maintains these documents.
124. We propose to assess these documents against the requirements of C5.4a (OfS prohibited behaviours list) and C5.4b (likely or actual detriment). We propose to pay particular attention to parts a. and c. of the OfS prohibited behaviours list which sets out behaviours in relation to key documents.

Other contracts

125. While the proposed scope of ancillary services does not limit our potential consideration of these services, we propose to limit document submission requirements to those contracts identified in Table 2. Our initial view is that this is a proportionate approach, which would allow us to assess, as standard, contracts for the provision of those services we think are likely to be most important to students, while not requiring submission of contracts for every service offered by a provider. In line with the proposed scope of the condition, this would not include contracts for services offered by a third party.
126. We are proposing that the submission of documents would be required only where there is a separate contract. For example, a provider’s terms and conditions for library services may be incorporated into its contract for the provision of higher education and, where this is the case, a provider would not be required to create a separate contract for library services solely for the purpose of OfS registration.
127. We propose to assess these documents against the requirements of C5.4a (OfS prohibited behaviours list) and C5.4b (likely or actual detriment). We propose to pay particular attention to parts a. and c. of the OfS prohibited behaviours list which sets out behaviours in relation to key documents.

Policies setting out conditions under which changes can be made

128. Our initial view is that the circumstances under which a provider may make changes to courses, qualifications, modes of study, teaching location, facilities and fees are important to our assessment, as they describe the circumstances in which students may not receive the services they expect, and are necessary to explain for students how the provider would intend to manage these situations fairly.
129. We propose that the provider would need to submit a policy (policies) detailing the circumstances in which it may make changes to all of the following:
     1. Courses (including changes to material components or content of a course, changes to subjects offered and course closure).
     2. Qualifications to be awarded (including circumstances where a validating partner has withdrawn validation).
     3. Mode of study (including full-time, part-time, online and hybrid provision, and including measures to address the needs of specific student groups, including accessibility needs).
     4. Teaching location and facilities (including closure of a campus, building or other facilities and including measures to address the needs of specific student groups, including accessibility needs).
130. This would not need to include information about the provider’s plans in the event that it is at risk of fully or substantially ceasing the provision of higher education. As explained further below under Proposal 7 (paragraph 147) and Proposal 9 (paragraph 165), through existing ongoing condition of registration C4 (Student protection directions) we can compel a provider to produce a detailed market exit plan in these circumstances. In our experience of working with providers at risk of closure, this greater level of detailed planning is necessary.
131. We propose that a provider’s policies should include measures to address the needs of specific student groups, including accessibility needs. We have drafted the submission requirement to reflect our initial view that this may be particularly important where a provider makes changes to modes of study, teaching location or facilities. For example, where a provider ceases to deliver part-time provision, this may have a significant impact on students who have registered for this mode of study because it fits with their existing caring responsibilities, working patterns and other commitments. Where a provider moves its teaching from one geographical location or building to another, there may be accessibility issues for a range of students and for a number of reasons, including but not limited to access for disabled students.
132. As set out in the OfS prohibited behaviours list in Annex D (part d.), we propose that the provider’s policies would not meet the requirements of the condition where they do not contain provisions that would ensure all students are treated fairly in practice.
133. We propose to assess the provider’s policy (or policies) against the requirements of C5.4a (OfS prohibited behaviours list) and C5.4b (likely or actual detriment). We propose to pay particular attention to parts a., c. and d. of the OfS prohibited behaviours list which set out behaviours in relation to key documents generally (parts a. and c.) and policies for the circumstances in which a provider may make changes to its courses specifically (part d.).
134. We propose that any provider applying to register would be required to submit its own policy or policies setting out the circumstances in which it may make changes to courses, qualifications, modes of study, teaching location or facilities. We recognise that the content of these policies would need to be tailored to a provider’s circumstances, including where there is shared contractual responsibility for the provision of higher education. For this reason, we propose that a provider’s policies may refer, where relevant, to the roles and responsibilities of other providers or organisations. For example, a teaching provider in a subcontractual partnership may refer to its partner, and a provider delivering an apprenticeship or other employer-sponsored course may refer to the role of a student’s employer, according to the terms set out in the contract between the provider and the employer (and between the employer and student).

Complaints processes

135. Rather than through a narrative about a provider’s approach to complaints as is currently required for initial condition C1, we would want to be able to assess these aspects of a provider’s practices directly. Where a provider has different complaints processes for different categories of student (for example, for applicants compared with registered or enrolled students), we propose that the provider should submit all its complaints processes.
136. We propose to assess the provider’s complaints processes against the requirements of C5.4a (OfS prohibited behaviours list) and C5.4b (likely or actual detriment). We propose to pay particular attention to part a., part c. and part e. of the OfS prohibited behaviours list which set out behaviours in relation to key documents generally (parts a. and c.) and complaints process specifically (part e.).
137. We propose that each provider would be required to submit its own complaints processes. We recognise that the content of these processes would need to be tailored to a provider’s circumstances, including where there is shared contractual responsibility for the provision of higher education. For this reason, we propose that a provider’s processes may refer, where relevant, to the roles and responsibilities of other providers or organisations. For example, a delivery provider in a subcontractual partnership may refer to its partner, and a provider delivering an apprenticeship or other employer-sponsored course may refer to the role of the student’s employer, according to the terms set out in the contract between the provider and the employer (and between the employer and student).

Refund and compensation policies

138. Our initial view is that a provider’s financial recompense and redress policies are important in assessing whether it treats students fairly in practice. We suggest that this is closely connected to a provider’s complaints process, in particular where it is unable to deliver courses as advertised. Rather than referencing its refunds and compensation policy as supporting evidence, as is currently the case for initial condition C1, we would want to be able to assess these aspects of a provider’s practices directly.
139. We propose to assess the provider’s refund and compensation policies against the requirements of C5.4a (OfS prohibited behaviours list) and C5.4b (likely or actual detriment). We propose to pay particular attention to parts a., c. and f. of the OfS prohibited behaviours list which set out behaviours in relation to key documents generally (parts a. and c.) and refund and compensation policies specifically (part f.).
140. We recognise that some providers may not charge tuition fees to students including, for example, where a student’s employer pays these fees to the provider on their behalf, or where students are liable to pay tuition fees to another provider (as may be the case in a subcontractual partnership). In circumstances where the provider applying to register does not intend, if registered, to charge tuition fees to students, we propose that it may submit a combination of its own documents and those of other providers or organisations, in order to satisfy this submission requirement.
141. We note that, even where students are not charged tuition fees by their teaching provider, they may be liable for other types of fees or payments that the teaching provider charges them directly. For the avoidance of doubt, we are proposing that the documentation submitted should reflect the entirety of the refund and compensation arrangements that apply for the responsibilities the provider would have towards students, if successfully registered.

Initial condition C5 declaration form

142. We have provided a template in Annex A (Appendix 1) of Part 3 (Proposed changes to registration application requirements) that we propose a provider would need to complete and submit. To inform the assessment of C5.5 and C5.6, we propose that a provider would be required to declare:
     1. Any findings of non-compliance with consumer protection law.
     2. Any findings of wrongdoing provided for in sections:
     1. 214(1) of the Education Reform Act 1988 (unrecognised degrees).³⁰
     2. 76(6) of the Companies Act 2006 (failure to comply with a Secretary of State direction to change a company name).³¹
     3. 1198 of the Companies Act 2006 (name giving misleading indication of activities).³²
     3. Whether an undertaking has been accepted by an enforcement body in connection with behaviour that relates to the provision of education or ancillary services.
     4. Whether there is an outstanding application for an enforcement order made by an enforcement body that relates to the provision of education or ancillary services.

Submission checklist

143. We have provided a template in Annex A (Appendix 2) of Part 3 (Proposed changes to registration application requirements) that we propose a provider would need to complete and submit. The purpose of this would be twofold:

• to assist the provider in submitting a complete application
• to assist the OfS in determining whether the provider has submitted a complete application, including understanding any relevant context to the documents submitted.

27 ‘Only a provider that is, or intends to become, an English higher education provider, as defined in section 83 of [the Higher Education and Research Act 2017], can apply to register with the OfS. (OfS’s Regulatory framework paragraph 74).

28 In the OfS’s Regulatory framework paragraph 64, we define a course to be part of a subcontractual arrangement if, typically:

1. ‘There is a written, legally binding agreement in place between the lead provider and the delivery provider that sets out the conditions of the arrangement.
2. The student has a contractual relationship with the lead provider.
3. The fee and/or fee loan is paid to the lead provider.
4. The student is registered as a student of the lead provider and is included in its data returns.’

29 See UK Parliament, ‘Student loans issued to those studying at franchised higher education providers’, page 5, paragraph 1.

30 See Gov.UK, ‘Education Reform Act 1988 Part IV Section 214’.

31 See Gov.UK, ‘Companies Act 2006 Part 5 Chapter 4 Section 76’.

32 See Gov.UK, ‘Companies Act 2006 Part 41 Chapter 1 Section 1198A’.

144. We have included alternative options that we have considered in Annex B. These are to:
     1. Require a narrative submission (as well as student-facing documents).
     2. Consider only a provider’s current position (rather than its stated intentions, if registered).
     3. Set out different submission requirements for different types of provider (to distinguish between providers that intend to charge tuition fees to students if successfully registered and those that do not or those that share contractual responsibility for the provision of higher education to students and those that have sole responsibility).
     4. Require all providers to submit their own documents regardless of future intentions (requiring a provider to produce and submit documents that it may never need, solely for the purpose of registering with the OfS).