Regulator warns of penalties for recruitment practices that undermine student interests and stability of higher education

The higher education regulator for England is consulting on a new regulatory condition that would allow it to intervene where universities and colleges act in ways that undermine students’ interests or threaten the stability of England’s higher education sector during the crisis.

The OfS made clear that it expects all universities and colleges to demonstrate high standards of good governance and integrity during this summer’s admissions cycle.

Under proposals set out today, the OfS would introduce a new regulatory condition which would be in force for up to one year – and would expire at that stage unless it was actively renewed. This condition would apply in addition to the existing conditions universities must meet on an ongoing basis to remain registered with the OfS. If a university were found to be in breach of this condition, it could be fined up to – or in some cases beyond – £500,000 per breach.

The condition would prevent universities from taking action that could have serious negative consequences for students or the higher education sector during the current crisis. This could include:

• changing student recruitment practices in an effort to increase student intake beyond normal levels, for example by converting existing conditional offers to unconditional, lowering academic or language requirements for international applicants, offering incentives for students to accept offers, or engaging in aggressive marketing activity designed to attract students away from other choices
• making misleading statements about other universities in an attempt to discourage students from attending them, for example by claiming that other universities are failing to support or provide tuition to their students during the pandemic
• making decisions that do not demonstrate high standards of good governance and could undermine public trust and confidence in higher education, for example by using government financial assistance for purposes that do not serve the interests of students or the public
• failing to comply with public commitments, for example by publicly agreeing to abide by voluntary requirements (such as a code of practice) and then failing to do so
• bypassing UCAS admissions processes where they would normally use them.

The OfS would judge the seriousness of any potential breach of this condition not only by the direct consequence of a higher education provider’s actions, but also by the potential cumulative effect if multiple providers acted in the same way. For example, while one university making several hundred unconditional offers may not, by itself, threaten the stability or integrity of the whole higher education sector, it may encourage others to do so, and widespread, indiscriminate use of unconditional offers could be seriously detrimental to student choice and the stability of the sector.

Sir Michael Barber, Chair of the OfS, said:

‘In this challenging time, many universities are contributing brilliantly to tackling the Covid-19 crisis. This condition would make sure that everyone puts students' interests first and that a few don't undermine the best efforts of the many.’

Nicola Dandridge, Chief Executive of the OfS, said:

‘During the coronavirus crisis, all organisations will be judged by how they demonstrate a sense of wider social responsibility, and this is as true of universities and colleges as anyone else. We are confident that universities and colleges will want to do right by their students and the wider community in these difficult circumstances. This new temporary regulatory condition is designed to reinforce the socially responsible approach that so many in the sector have already shown.

‘Universities and colleges are currently dealing with a range of unprecedented challenges as a result of the pandemic, and it is entirely understandable that they will be concerned about the potential loss of income. But there are limits to what would be considered a reasonable response to these concerns.

‘Applicants need to have confidence that the admissions process will be conducted as fairly and transparently this year as it would be in any other year. Current students need to know that their university will be able to continue delivering high quality courses. And potential future students will be best served by a higher education system that continues to offer a wide range of course options. We are especially concerned that any unfair practices during this crisis could particularly harm the chances of those who are already more vulnerable, at a time when information, advice and guidance is less readily available than might normally be the case.

‘This new condition would allow us to impose penalties that would cancel out any financial benefit to universities of acting inappropriately, significantly reducing the likelihood of such behaviour occurring in the first place, but allowing us to intervene in a manner befitting the consequences if it did.

‘We are alive to the concern that our proposals may overstep the mark in curtailing universities’ autonomy. But in these extraordinary circumstances, it is clear to me that the need to protect students’ interests and the stability of the sector is more important, and our strictly time-limited proposals are a necessary and proportionate means to do this.

‘I know most universities and colleges are committed to upholding the highest standards of probity and good governance during this crisis, and to act with good will to safeguard not only their own interests, but those of the whole higher education sector and students in all parts of it. This new regulatory condition will support that collective effort.’

For further information contact [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 proposed new ongoing condition of registration would apply retrospectively to conduct taking place on or after 11 March 2020, where that conduct forms part of a continuum of events continuing beyond the date on which the condition takes effect.
3. The condition would apply for a period of one year unless the OfS provides notice that it will be extended (subject to further consultation and impact assessment) or cease to apply sooner. The OfS would have the ability to take enforcement action for any breaches while the condition was in force, even if these breaches were only identified after the condition was lifted.
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’.
5. Responses to the consultation need to be submitted by noon on 26 May 2020. The OfS intends to make a decision on whether to amend the regulatory framework to insert a new condition as set out in these proposals in early June, and the new condition would come into effect on the date of publication of that decision. The urgency of this timetable reflects the extent of risk to students’ decision-making and the integrity and stability of higher education providers. We consider this departure from our normal approach to consultation and the speed with which we would expect to introduce new regulatory requirements to be reasonable in the current extraordinary circumstances.
6. The OfS is working to ensure applicants understand changes to the admissions process during the current crisis and address gaps in information, advice and guidance support, both through the Discover Uni site, and by working with key partners such as the Uni Connect partnerships, UCAS and other information providers. It is especially important in the circumstances that information, advice and guidance is adapted to be available online through platforms every student can access, such as their mobile phones.
7. The Department for Education has announced measures to support the higher education sector.