Securing student success: Regulatory framework for higher education in England
Last updated: 24 November 2022
In this section:
PART I – The OfS’s risk-based approach
The Office for Students (OfS) is a new regulator for English higher education. It will adopt a bold, student-focused, risk-based approach, reflecting the significant changes to higher education of the last 25 years and seeking to anticipate the changes still to come.
The OfS’s primary aim is to ensure that English higher education is delivering positive outcomes for students – past, present, and future. This ambition runs through the regulatory framework and the organisation as a whole. The OfS will seek to ensure that students, from all backgrounds (particularly the most disadvantaged), can access, succeed in, and progress from higher education. The OfS is concerned with all students within its remit: from the UK and beyond; undergraduate and postgraduate; studying full time or part time and campus based or distance learners.
The OfS will focus on delivering the four primary regulatory objectives set out below.
The four primary regulatory objectives
All students, from all backgrounds, and with the ability and desire to undertake higher education:
- Are supported to access, succeed in, and progress from, higher
- Receive a high quality academic experience, and their interests are protected while they study or in the event of provider, campus or course
- Are able to progress into employment or further study, and their qualifications hold their value over
- Receive value for money.
The regulatory framework is designed to mitigate the risk that these primary objectives are not met.
In addition to seeking to ensure that students receive value for money (Objective 4), the OfS will seek to mitigate the risk that the sector does not deliver value for money for taxpayers and citizens who invest in higher education through: the allocation of public grant funding; research funding by UKRI; and the public subsidy to the student finance system.
The OfS will work with UKRI to monitor and mitigate the risk relating to the sustainability of those providers that contribute to the strength of the research base, and risks to the interests of postgraduate students.
The OfS’s regulatory approach will ensure:
A student focus: Regulation will be designed primarily to protect the interests of students, short, medium and long term (especially the most disadvantaged), rather than those of providers.
Clarity: All registered providers will be primarily regulated by one body, with a clear path for new entrants to the sector.
Accountability: The OfS will be accountable for its decisions and subject to public
Consistency: There will be a single Register so students will know the minimum baseline of provision that they can expect every registered provider to deliver, and providers will compete on a level playing field.
Proportionality and targeting: Provision that presents low risk to students will be subject to less regulatory burden, while less secure elements of provision will face greater regulatory scrutiny.
Competition: The market will be regulated so that, wherever possible, choice and competition drive innovation, diversity and improvement. Where market mechanisms are not sufficient to achieve the desired outcomes, as is the case for access and participation, there will be direct regulation of providers.
The regulatory approach is designed to be principles-based because the higher education sector is complex, and the imposition of a narrow rules-based approach would risk leading to a compliance culture that stifles diversity and innovation and prevents the sector from flourishing. This regulatory framework does not therefore set out numerical performance targets, or lists of detailed requirements for providers to meet. Instead it sets out the approach that the OfS will take as it makes judgements about individual providers on the basis of data and contextual evidence.
There will be a marked shift from the previous approach to regulation. Once the regulatory framework is established, its implementation will reduce bureaucracy and unnecessary regulatory burden for individual providers and, as a consequence, for the academic and professional staff whose work is essential to successful outcomes for students.
The OfS’s general duties
The OfS is independent from government and from providers. Its approach to regulation is underpinned by the functions, duties and powers given to it in the Higher Education and Research Act 2017 (HERA). In performing its functions, it will have regard to:
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 by English higher education providers.
The need to encourage competition between English higher education providers in connection with the provision of higher education where that competition is in the interests of students and employers, while also having regard to the benefits for students and employers resulting from collaboration between such providers.
The need to promote value for money in the provision of higher education by English higher education providers.
The need to promote equality of opportunity in connection with access to and participation in higher education provided by English higher education providers.
The need to use the OfS’s resources in an efficient, effective and economic way; and
So far as relevant, the principles of best regulatory practice, including the principles that regulatory activities should be:
Transparent, accountable, proportionate and consistent.
Targeted only at cases in which action is needed.
These are referred to as the OfS’s ‘general duties’ and are set out in section 2 of HERA.
In making decisions, the OfS will take all of these general duties into account, weighing one against the others as it deems appropriate. Certain areas of the OfS’s activity, such as the imposition of individual ongoing conditions of registration, may focus on one or more of its general duties. For example, the general duty that relates to equality of opportunity might be delivered through the work of the Director for Fair Access and Participation and through the requirement for providers to have in place access and participation plans and statements. The OfS will also develop equality objectives and an action plan to ensure that it takes equality of opportunity into account across all of its activities and decisions, and promotes equality and diversity across all aspects of its work. Issues of equality and diversity may be taken into account as the OfS makes regulatory decisions primarily, but not exclusively, through access and participation plans.
In exercising its functions, the OfS will have regard to this regulatory framework, and to any guidance it receives from the Secretary of State. It is also required to comply with any general directions given to it by the Secretary of State, and to the terms and conditions attached to any grants it receives from the Secretary of State, that comply with the requirements of sections 77 and 74 respectively of HERA.
The OfS is committed to adopting and contributing to best regulatory practice. It will comply with the Regulators’ Code, and in developing this regulatory framework the OfS has consulted widely, drawn on best practice, and sought to learn from the latest in regulatory theory.
Overview of the regulatory approach
The OfS’s approach to regulation puts informed student choice and institutional autonomy at its heart. It sees the dynamic of providers responding to informed student choice as the best mechanism for driving quality and improvement, and will regulate at the sector level to enable this. The OfS will regulate at provider level to ensure a baseline of protection for all students and the taxpayer. Beyond that threshold the OfS will encourage and enable autonomy, diversity and innovation.
The OfS’s regulatory approach also seeks to deliver social and policy objectives in areas where market mechanisms may not succeed. For example, the improvements in access and participation that students and society require will not be delivered by the market alone. This means that the OfS will take direct regulatory action to drive improvement in this area, beyond that necessary to preserve a minimum baseline.
For more information about the OfS’s priorities in a particular strategic period, please consult the current strategy.
Sector level regulation
At sector level the OfS will focus on creating the conditions for informed choice, competition, and continuous improvement. The OfS will:
Involve students in the way that it regulates.
Work with, and have oversight of, the designated data body (DDB) to coordinate, collect and disseminate information for students, to help them make the best possible choices. It will publish student outcomes and current and future employer needs as a way of informing student choice. It will incentivise focus on student outcomes, and support mechanisms that allow student transfer.
Operate the Teaching Excellence Framework (TEF) to incentivise the improvement of the quality of teaching, learning and student outcomes across the sector and provide information to students about where excellent teaching and outcomes may be found.
Remove unnecessary barriers to entry for high quality new providers, increasing diversity and competition in the sector for the benefit of students.
Remove unnecessary regulatory barriers for all high quality providers, ensuring that providers that represent low risk to students and taxpayers experience a reduction in regulatory burden.
Regulate to enable and create space for innovation, including in teaching and learning, while ensuring that baseline requirements for quality and other areas of risk to students are met.
Champion issues and share evidence and examples of effective and innovative practice for students. It will be unafraid to speak out on behalf of students, and in particular will promote value for money for students and taxpayers, and will highlight inequalities wherever it sees them.
Use a range of indicators, qualitative intelligence and horizon scanning to understand and evaluate the health of the sector.
Use its teaching grant funding strategically, in line with government priorities, such as supporting priorities in the Industrial Strategy as well as access and successful participation for the most under-represented, and students from disadvantaged backgrounds.
Provider level regulation
At provider level, the OfS will regulate, and intervene where necessary, to protect the interests of all students.
Registration and initial risk assessment:
All registered providers will be listed on a single Register that is accessed through a single gateway. Providers will be able to choose to register in one of two categories. Each category allows access to a distinct set of benefits for providers, with regulatory requirements that are proportionate to the risks to student and taxpayer interests.
To register, providers will have to demonstrate that they satisfy a set of initial conditions of registration to ensure they are able to offer high quality higher education to students. They will be subject to a risk assessment to determine whether they will be able to continue to satisfy their conditions. The risk assessment will consider whether they can achieve particular outcomes rather than whether their processes meet a pre-determined specification.
The OfS will work with, and have oversight of, the designated quality body (DQB) to assess the quality of, and standards applied to, the higher education of providers seeking to register.
Conditions of registration are the primary tool that the OfS will use to regulate individual providers, and the OfS will decide, based on its risk assessment, which general and specific ongoing conditions should apply to the provider. Conditions will, in the main, be used to ensure that providers continue to meet baseline requirements, rather than to drive continuous improvement. An exception to this will be access and participation for providers in the Approved (fee cap) category, where the baseline requirement is that a provider must have an agreed access and participation plan which will deliver continuous improvement.
The OfS will use its risk assessment to decide if any enhanced monitoring is needed as further mitigation of the risks posed by an individual provider.
On the Register:
All providers will be monitored using lead indicators, reportable events and other intelligence such as complaints. These will be used to identify early, and close to real-time warnings that a provider risks not meeting each of its ongoing conditions of registration. Regulatory decisions will not normally be taken solely on the basis of these indicators, but they will identify areas for the OfS to assess further. The OfS will respond swiftly with interventions (which may include sanctions) if deemed necessary.
The OfS will also use random sampling to identify a small proportion of providers each year (e.g. 5 per cent) for a more extensive assessment of whether they continue to meet the general ongoing conditions of registration. This approach will be used to confirm the effectiveness of the OfS’s monitoring system, and to act as a further incentive for providers to meet their ongoing conditions of registration.
Interventions and sanctions:
If a risk of a breach of one or more conditions of registration is identified, the OfS will consider whether it should impose additional specific ongoing conditions of registration for the provider, to protect the interests of students and taxpayers. It will also consider whether to enhance monitoring.
If a breach of a specific or general ongoing condition is identified, the OfS will consider the use of formal sanctions – monetary penalties, suspension or deregistration. Where appropriate, these will be applied decisively, but always proportionately. Which sanctions it uses will depend on a range of factors.
The OfS’s relationship with students
The OfS’s regulatory framework is designed to deliver the four primary regulatory objectives that are designed to protect the interests of students. The OfS will use its regulatory tools at sector and provider level to ensure that higher education in England works in practice for students from all backgrounds before, during and after their studies.
The OfS will engage with students to ensure that their voice is heard. The OfS’s Student Panel will operate with a clear link to the formal governance structure of the OfS, and will support the ability of the student representative on the main board in ensuring that students’ views on regulation and other issues are taken into account.
Alongside the student representation on the board and Student Panel, the OfS will seek the input of individual students and their representative bodies, including student unions. The main regulator of student unions is the Charity Commission. However, student unions can play an important part in the academic and wider experience of students, and form a significant element of the overall student experience. The OfS will therefore want to work with student unions, taking account of their role and contribution.
The OfS’s relationship with providers
The OfS’s risk-based approach is central to how it will interact with providers. The OfS’s engagement with an individual provider is intended to allow the OfS to make appropriate regulatory decisions about managing risks associated with that provider. It is not to provide support for improvement activities, or to require the provider to take actions the OfS would like to see, unless there is a risk of the provider breaching its conditions of registration.
The OfS will seek open and trusting relationships with providers, because this is the mechanism best able to achieve effective regulation in the interests of students. This will not preclude immediate and decisive interventions where there is a risk of a breach of a condition of registration.
Dialogue will focus on specific regulatory issues rather than the general circumstances and activities of the provider. The OfS may alert a provider where there may be issues with the provider’s compliance with a condition of registration, but it will not provide advice to providers about how they should run their organisation. Providers should look to other sources, for example to sector bodies, for such advice and support.
A provider will be expected to inform the OfS of an actual or potential breach of its conditions of registration, or a serious risk of such a breach occurring.
The OfS’s information duties
The use of information, including data and qualitative intelligence, will underpin how the OfS undertakes its regulatory functions. The OfS will take an information-led and proportionate approach to monitoring individual providers, ensuring that students can access reliable information to inform their decisions.
The Secretary of State, on the recommendation of the OfS, has designated the Higher Education Statistics Agency (HESA) to perform specific data duties as the DDB. Schedule 6 of HERA sets out the framework for the relationship between the OfS and the DDB. The DDB will collect, make available, and publish appropriate information on behalf of the OfS, and the OfS will be responsible for holding the DDB to account for the performance of those functions. The parameters within which the OfS will require the DDB to operate will be set out in a designation agreement between the two organisations.
The OfS will develop a data strategy in 2018. This will set out how it intends to fulfil its responsibilities in relation to data; the data requirements it will place on providers; how it will work with the DDB; and the mechanisms it will use to ensure it takes account of the data needs of other organisations, including the sector itself and the DDB’s statutory customers.
The information and data the OfS requires to fulfil its functions will be wide-ranging. It will need to be sufficient to support the OfS to:
Establish and monitor a set of lead indicators to understand provider performance and regulate in a proportionate and risk-based way.
Target, evaluate and improve access and participation, and equality and diversity activities.
Monitor the sector as a whole, to understand trends and emerging risks at a sector level and work with the sector to address them.
Ensure students can access reliable and appropriate information to inform their decisions about whether to study for a higher education qualification and, if so, identify which provider and course is most likely to meet their needs and aspirations.
Work with employers and with regional and national industry representatives to ensure that student choices are aligned with current and future needs for higher level skills.
Operate the TEF.
Support registered higher education providers in meeting their transparency conditions.
Support the Department for Education, given its overall responsibility for the policy and funding framework in which the sector operates, and other public bodies such as UKRI in the delivery of their prescribed functions.
It is envisaged that reliable information and data will be collected, as now, through a combination of data returns from the sector, annual surveys, data sharing with other bodies and bespoke requests.
The OfS’s quality and standards functions
The Secretary of State, on the advice of the OfS, has designated the Quality Assurance Agency for Higher Education to carry out the quality and standards assessment functions set out in section 23 of HERA and to provide advice to the OfS under section 46 of HERA. Schedule 4 of HERA sets out the framework for the relationship between the OfS and the DQB. The DQB will be under a duty to perform assessment functions on behalf of the OfS. It is the responsibility of the OfS to ensure that the arrangements that are made to undertake these assessments are fit for purpose and consistent with the OfS’s approach to regulation. The parameters within which the OfS requires its designated body to operate will be set out in a designation agreement between the two organisations.
The OfS’s relationship with other regulators and bodies
Section 63 of HERA gives the OfS powers to cooperate and share information with other bodies. Section 112 gives the OfS a more specific power to cooperate and share information with UKRI, and section 113 empowers the OfS to work with the devolved administrations and their funding bodies, and with UKRI. The OfS may wish to use its powers under sections 63, 112 and 113 in a range of circumstances and, where necessary, will put in place collaboration agreements to achieve this.
Co-operation and sharing of information with UKRI will be essential across a range of areas of shared interest, for example in relation to: skills, capability and progression; knowledge exchange; infrastructure funding; building robust evidence and intelligence; and ensuring that the Research Excellence Framework and TEF are mutually reinforcing. The OfS and UKRI will work together to protect the interests of postgraduate students and to secure the research careers pipeline. UKRI will rely on the OfS’s regulation of English higher education providers receiving research funding from Research England and UKRI and its Councils. The OfS will wish to be aware of any concerns identified by UKRI in relation to research funding or research ethics and/or where there are significant changes in this funding that could increase the risk of a provider breaching a condition of registration.
The OfS will seek active and constructive engagement with the devolved administrations and their funding bodies, and with other regulators and funding bodies in England, such as the Charity Commission, the Competition and Markets Authority, the Advertising Standards Authority, the Education and Skills Funding Agency, the Institute for Apprenticeships and the Office of the Independent Adjudicator. The OfS may use information from, and the views of, other regulators or funding bodies to inform its decisions about initial registration and ongoing monitoring of providers, where this is consistent with HERA.
The OfS’s engagement with other bodies will be underpinned by the following principles:
Cooperation by supporting and reflecting each other’s duties and giving notice when there are changes to regulatory powers.
Clarity on roles and responsibilities and how they work together where other bodies have responsibility for quality and regulation.
Appropriate burden by working intelligently, openly and accountably to ensure that duplication of regulatory requirements is avoided when possible and there is the minimum regulation needed to deliver required outcomes.
Mutual understanding of regulatory processes to enable confidence in and reliance on each other’s processes and oversight.
Mutual assurance, when it is needed, to ensure support on relevant emerging issues and risks.
Information sharing of relevant and accurate data in a timely manner, where legally permissible, to minimise the data collection burden.
Transparency on how data and information will be used, with whom it will be shared, under what circumstances and for what purposes, as determined by the Data Protection Act and other applicable legislation (including HERA).
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