Regulator bans controversial ‘conditional unconditional’ offers during pandemic

Making any of these so-called ‘conditional unconditional’ offers would put a university in breach of a new regulatory condition and could result in a fine of up to – or in some cases beyond – £500,000 per breach.

The condition is designed to prevent the use of unconditional offers and advertising practices which could have serious negative consequences for students or for the stability or integrity of England’s higher education sector. It expressly prohibits any university from giving out ‘conditional unconditional’ offers and making false or misleading statements about others with the intention of discouraging students from attending those universities. The condition is a temporary response to the coronavirus pandemic, with a fixed end date.

The new condition has been introduced following a consultation exercise with the higher education sector and others.

Respondents to the consultation asked for more clarity about the kind of conduct the condition covered. The scope of the condition has now been narrowed to focus on unconditional offers and marketing activity, with examples of acceptable and unacceptable practice specified. 

Consultation responses also expressed concern that the OfS would be able to take enforcement action in relation to conduct that predated the consultation. Given these concerns and the fact that offer-making has been stable during the consultation period, this retrospectivity has now been removed.

Unconditional offers are a normal part of the admissions cycle when it comes to applicants who already have their qualifications, creative courses where portfolios and auditions are deemed more important than predicted grades, and adult learners who can demonstrate relevant prior learning that may not take the form of academic qualifications. Unconditional offers for any of these purposes – as well as for private A level candidates who will not receive calculated grades this year – are still permitted under the new regulations.

However, a sharp increase in conditional unconditional offers in recent years has prompted concerns that these offers could destabilise the system, and put undue pressure on students to accept an easy offer that may not be in their best interests.

The new condition also expressly permits universities to make contextual offers – where students from disadvantaged or underrepresented groups are admitted with lower grades than the advertised entry requirements, in recognition of the varying contexts in which results are achieved. This could be even more important amid changes to exams this year, which may disproportionately affect the most disadvantaged students. Financial support for the most disadvantaged students – including for IT resources – and outreach to support their transition into higher education do not fall within the scope of the new condition and are therefore not subject to any new OfS regulation.

Nicola Dandridge, Chief Executive of the OfS, said:

‘We have previously highlighted that unconditional offers which are conditional on students accepting a university or college as their first choice put pressure on students and distort their decision making. Widespread use of unconditional offers also risks destabilising the system. Our concerns are even more acute in these exceptional times with the shape of the next few months and years still very unpredictable, and information, advice and guidance less readily available than it may normally be.

‘However, we have ensured that the condition explicitly permits unconditional and contextual offers that are clearly in students’ interests, and which support the transition into higher education for the most disadvantaged students.

‘Students can also be reassured that they should not expect to have any offers that they have already received withdrawn, and where there are good reasons for them to receive an unconditional or contextual offer in future, there is no reason that this cannot go ahead.

‘This condition is designed to avoid instability during the current uncertainty, and to protect students and the higher education sector in these extraordinary circumstances: it will not continue past September 2021. This should allay concerns that we wanted to extend our powers permanently, which we have no intention of doing.

‘The condition is a necessary and proportionate means to ensure the stability and integrity of the English higher education sector, to protect students’ interests and to preserve a diversity of choice for students into the future.’

For further information contact Aislinn Keogh on 07342 025 423 or [email protected]

Notes

1. The Office for Students is the independent regulator for higher education in England. Our aim is to ensure that every student, whatever their background, has a fulfilling experience of higher education that enriches their lives and careers.
2. The OfS’s usual regulatory approach is purposefully designed to be based on principles rather than hard tick-box rules. However, responses to this consultation called for greater specificity about what is and is not acceptable conduct during the pandemic. The new condition therefore sets outs an overarching, principles-based prohibition on conduct that could have a material negative effect on the stability or integrity of the English higher education sector, and also highlights a number of particular types of conduct that are specifically prohibited or permitted. This is not an indication of the approach we would be likely to take in more normal times.
3. The condition will cease to apply on 30 September 2021, but the OfS will still have the ability to take enforcement action for any breaches while the condition was in force, even if these breaches are only identified after the condition is removed.
4. ‘The Higher Education (Monetary Penalties and Refusal to Renew an Access and Participation Plan) (England) Regulations 2019’ allow the OfS to impose fines of up to £500,000 or two per cent of ‘qualifying income’, whichever is higher. See more information on ‘qualifying income’.