Securing student success: Regulatory framework for higher education in England

A provider that is currently authorised to grant taught awards, or research awards, or both, does not need to apply to the OfS to retain this authorisation.

The OfS may authorise a registered higher education provider to grant taught awards, or research awards, or both, under section 42 of HERA. Such an authorisation may allow a provider to grant:

Only that particular registered institution (e.g. not a subsidiary of it) may apply for the powers in question.

The OfS may authorise providers to grant different types of degrees. Providers will be able to apply for authorisation to grant:

Providers may apply for these authorisations on a subject specific basis, or covering all subjects.⁸ Providers authorised to grant taught awards of any description will be authorised to grant all taught awards that fall within the definition set out in section 42(3) of HERA.⁹

The OfS authorisation is in the form of an order which is also a statutory instrument. This order will set out the extent of the provider’s authorisation, and, for example, whether there are any restrictions. The order will also state the date on which the authorisation takes effect and, if it is time limited, the period during which it has effect. The order can also contain incidental, supplementary, transitional and saving provision (see section 42(11) of HERA).

An authorisation may include powers that enable a provider to authorise other institutions to grant awards on its behalf. Similarly, an authorisation may contain restrictions in this area. An authorisation enables providers to make awards jointly with another institution; to revoke awards; to grant honorary degrees or degrees to members of staff. However, again, such powers may be subject to restrictions.

The criteria for authorisation for DAPs are designed to ensure that a provider with DAPs has demonstrated a firm guardianship of academic standards, a firm and systematic approach to the assurance of the quality of the higher education that it provides, and the capacity to contribute to the continued good standing of English higher education.

The overarching criterion for the authorisation for DAPs:

Guidance on the underpinning criteria for the authorisation for DAPs is set out in Annex C.

A provider that has been delivering higher education for less than three years does not have a sufficient track record to apply for Full DAPs authorisation. It may instead apply for authorisation on a probationary basis. This type of authorisation is referred to as ‘New DAPs’. A provider that does have a sufficient track record to apply for Full DAPs authorisation may nevertheless apply for New DAPs if it prefers to do so.

A provider may seek authorisation for New DAPs for the following taught awards only:

Providers may apply for these authorisations on a subject-specific basis, or covering all subjects.

To apply for New DAPs authorisation, a provider must:

The OfS will adopt the following approach to calculating student numbers for this purpose: Student numbers will be calculated using data collected by the DDB or in the Individualised Learner Record (ILR). The calculation will be based on intensity of study where a full time student will typically count as one, and a part time student will be treated as a proportion of a full time student. The calculation will only take into account students who are registered with the provider, rather than students registered with another provider but taught by the provider under a subcontractual arrangement. The OfS will publish a technical specification of the way it will perform this calculation.

For providers applying for authorisation for bachelor degrees only, the OfS may adopt a more flexible approach to the normal requirement that more than 50 per cent of its students are registered on level 6 courses. In these circumstances, the OfS will consider factors including, but not limited to, the number of level 6 courses delivered by the provider; the overall number of students studying on level 6 courses; the number or proportion of higher education students who progress to level 6 courses and the views of the applicant’s validating or subcontracting partner(s) about its suitability to hold DAPs.

A provider may apply for registration and for New DAPs authorisation at the same time, but the DAPs application will automatically be unsuccessful if the provider fails to satisfy the registration requirements.

A provider will only obtain New DAPs authorisation if it can demonstrate that it has the ability to operate securely as a degree awarding body and that there can be confidence that the awards it will make conform to recognised thresholds for standards and quality.

A provider must make a correct application that contains all the required information, and includes the provider’s New DAPs plan and supporting evidence. A provider seeking foundation degree only authorisation must also include in its application:

• a statement on progression, demonstrating that it is promoting clear progression routes for learners wishing to proceed to a course of higher-level study on completion of the foundation degree.

The OfS will published guidance that sets out the information that it requires to be submitted in an application.

The OfS will consider its existing risk assessment for the provider to determine the provider’s suitability for DAPs. In particular, the OfS will consider its assessment of the provider’s financial viability and sustainability, and its management and governance arrangements to ensure that the provider has understood and planned for the resources and governance necessary to set and maintain academic standards securely.

Where a provider is subject to one or more specific ongoing conditions of registration, and the OfS considers these to be relevant, for example because they have been imposed to mitigate increased risk of a breach of an ongoing condition relating to quality, standards, financial viability and sustainability, and management or governance, an application for New DAPs may be less likely to succeed.

A registered provider must have in place a student protection plan that has been agreed with the OfS. As part of its application for New DAPs, a provider must update and resubmit its student protection plan. This is to mitigate the risk to students that the provider’s New DAPs authorisation may be revoked or not extended beyond the initial three-year authorisation.

The OfS will ask the DQB to undertake an initial assessment (the ‘New DAPs test’) when the OfS is satisfied that the provider:

The purpose of the New DAPs test is to:

The New DAPs test will involve a visit to the provider and meetings with its governors and senior managers and with staff and students (where students are already registered). As a result of the New DAPs test, the DQB may require changes to the New DAPs plan to ensure that it provides a suitable basis for monitoring and assessment.

The outcome of the New DAPs test will be advice provided by the DQB to the OfS which will be one of:

In each case, the DQB will provide reasons and evidence for its advice.

The OfS will have regard to the advice and the supporting reasons and evidence provided by the DQB. Where the OfS accepts advice that a provider is ‘ready now’, it will make an order granting authorisation on a probationary basis for a three-year period. The provider will be required to implement its agreed probationary plan and to engage in monitoring and scrutiny activities during the probationary period. The OfS may impose specific conditions of registration in relation to the section 42 order.

Where the OfS accepts advice that a provider is ‘not ready now’, it will not make an order under section 42 of HERA and will provide the reasons for this decision. A provider may reapply for New DAPs and must set out in its new application the changes that it has made to address the reasons for its previous unsuccessful application. The OfS will determine whether or not it will accept an application in these circumstances.

A provider authorised by New DAPs will be subject to certain restrictions during the probationary period, in particular:

The OfS will exercise its functions so as to require a provider to always ensure that prospective and current students are aware of the status of the provider’s New DAPs authorisation. The OfS Register will be clear that powers are held on a probationary basis.

The OfS will issue guidance on the way that the process for the authorisation and monitoring of New DAPs will operate.

From the date on which the New DAPs order takes effect, a provider is considered to be in its probationary period. During this period it is subject to monitoring by the OfS and by the DQB. The purpose of such monitoring is to:

As part of this monitoring process, the provider will be required to provide regular reports, at least on a quarterly basis, on its progress in implementing its New DAPs plan to the DQB. The provider is also required to report to the DQB any issues that arise that may prevent it from implementing its plan as agreed. The DQB will undertake visits to the provider to verify the information it receives.

The DQB will provide a quarterly update to the OfS about the provider’s progress during its probationary period. The OfS will take this information into account as it undertakes its routine monitoring activities for the provider. It will consider the use of its intervention powers, including the revocation of the New DAPs authorisation, if it considers that this is desirable in light of any of its primary regulatory objectives.

Before the end of the probationary period, the DQB will undertake an assessment of the provider’s arrangements against the Full DAPs criteria. The assessment will be designed to provide the same degree of confidence as the assessment of a provider seeking Full DAPs. The DQB will provide this assessment in its advice to the OfS together with its view about whether the provider has the ability:

The OfS will have regard to the advice provided by the DQB. It may also seek, and have regard to, advice from others in relation to quality or standards. It will also consider its own risk assessment for the provider and will decide whether or not the provider meets the criteria for Full DAPs. The OfS may decide:

Where the OfS decides that the provider does not meet the DAPs criteria it will provide the reasons for this decision. The OfS would, on request, review that it had followed its procedures correctly. A provider may reapply for New DAPs but it must set out in its new application the changes that it has made to address the reasons for its previous unsuccessful application. The OfS will determine whether or not it will accept an application in these circumstances.

A provider that has been delivering higher education for three or more years may apply for full authorisation, with a time limit of three years. This type of authorisation is referred to as ‘Full DAPs’. At the end of that period, the provider will be able to apply for an authorisation to grant awards without a time limit (‘indefinite DAPs’). A provider may seek authorisation for Full DAPs for the following awards:

Providers may apply for these authorisations on a subject-specific basis, or covering all subjects.

To apply for Full DAPs authorisation, a provider must:

The OfS will adopt the following approach to calculating student numbers for this purpose: Student numbers will be calculated using data collected by the DDB or in the Individualised Learner Record (ILR). The calculation will be based on intensity of study where a full time student will typically count as 1, and a part time student will be treated a proportion of a full time student. The calculation will only take into account students who are registered with the provider, rather than students registered with another provider but taught by the provider under a subcontractual arrangement. The OfS will publish a technical specification of the way it will perform this calculation.

For providers applying for authorisation for bachelor degrees, the OfS may adopt a more flexible approach to the normal requirement that more than 50 per cent of its students are registered on level 6 courses. In these circumstances, the OfS will consider factors including, but not limited to, the number of level 6 courses delivered by the provider; the overall number of students studying on level 6 courses; the number or proportion of higher education students who progress to level 6 courses and the views of the applicant’s validating or subcontracting partner(s) about its suitability to hold DAPs.

A provider may apply for registration and for Full DAPs authorisation at the same time, but the DAPs application will automatically be unsuccessful if the provider fails to satisfy the registration requirements.

A provider must make a correct application that contains all the required information, and includes the provider’s self-assessment against the DAPs criteria and supporting evidence. The provider must also provide evidence that it meets the three-year track record requirement for Full DAPs, for example by providing evidence of a validation agreement.

A provider seeking foundation degree only authorisation must also include in its application:

• a statement on progression, demonstrating that it is promoting clear progression routes for learners wishing to proceed to a course of higher level study on completion of the foundation degree.

The OfS has published guidance that sets out the information that it requires to be submitted in an application in ‘Regulatory Advice 2: Registration of current providers for 2019-20’, and ‘Regulatory Advice 3: Registration of new providers for 2019-20’.

The OfS will consider its existing risk assessment for the provider to determine the their suitability for DAPs. In particular, the OfS will consider its assessment of the provider’s financial viability and sustainability, and its management and governance arrangements to ensure that the provider has understood and planned for the resources and governance necessary to set and maintain academic standards securely.

Where a provider is subject to one or more specific ongoing conditions of registration, and the OfS considers these to be relevant, for example because they have been imposed to mitigate increased risk of a breach of an ongoing condition relating to quality, standards, financial viability and sustainability, and management or governance, an application for Full DAPs may be less likely to succeed.

The OfS will ask the DQB to undertake an initial assessment when the OfS is satisfied that the provider:

The purpose of the DQB’s initial assessment is to assess the credibility of the provider’s self-assessment as the basis for the scrutiny process. The initial assessment will not normally involve a visit to the provider.

Where the DQB determines that the provider’s self-assessment is suitable, it will notify the OfS that it intends to begin the scrutiny process.

Where the DQB determines that the provider’s self-assessment is not suitable, it will provide such advice to the OfS and provide the reasons for this. The OfS will have regard to the advice from the DQB and, if agrees with the advice, will inform the provider that its application for Full DAPs has been unsuccessful. A provider may reapply for Full DAPs. If it does so within one year of the OfS’s decision that an application was unsuccessful, it must set out in its new application the changes that it has made to address the reasons for its previous unsuccessful application. The OfS will determine whether or not it will accept an application in these circumstances.

The DQB will conduct a scrutiny process to assess the extent to which the provider’s arrangements meet the DAPs criteria. The scrutiny process will extend over a number of months and will include visits to the provider and meetings with its governors and senior managers and with staff and students.

A provider that is already authorised to grant taught awards, including where such authorisation was not granted under section 42 of HERA, and that applies for RDAPs is required to provide evidence through the scrutiny process that it satisfies all the criteria for authorisation to grant taught awards and that it continues to meet these criteria. In the event, for example, that a provider that was authorised to make taught awards in specific subjects was to apply for authorisation to grant unrestricted research awards, the OfS would need to be satisfied that the applicant could satisfy the DAPs criteria for unrestricted taught awards as part of its consideration of an application for authorisation to grant unrestricted research awards.

The OfS will continue to undertake its routine monitoring activities in relation to the provider during the scrutiny process to ensure that the provider’s ongoing conditions of registration and any specific conditions of registration imposed by the OfS are satisfied.

The DQB will notify the OfS of any issues that may arise during the scrutiny process that may affect the OfS’s assessment of the risk of a breach of one or more of the provider’s ongoing conditions of registration.

At the end of the scrutiny process, the DQB will undertake an assessment of the provider’s arrangements against the Full DAPs criteria. As it does so for applicants for authorisation for research degrees, its assessment will be informed by the views of UKRI. It will provide this assessment in its advice to the OfS together with its view about whether the provider has the ability:

The OfS will have regard to the advice provided by the DQB. It may also seek, and have regard to, advice from others in relation to quality or standards. It will also consider its own risk assessment for the provider and will decide whether or not the provider meets the criteria for DAPs. The OfS may decide:

Where the OfS makes a decision that a provider does not meet the relevant Full DAPs criteria, the provider may re-apply for Full DAPs but it must set out in its new application the changes that it has made to address the reasons for its previous unsuccessful application. The OfS will determine whether or not it will accept an application in these circumstances.

Under HERA, the OfS has express powers to vary or revoke DAPs to grant taught awards or research awards for an individual provider. These powers include the ability to vary or revoke DAPs where authorisation was originally made under Acts or Royal Charters.

This power might be used positively, for example, to make time-limited DAPs indefinite. The variation powers may also be used as a regulatory intervention where the OfS considers it appropriate, i.e. for the benefits of students to limit the scope of a provider’s DAPs, for instance to bachelor only DAPs, or limit a provider’s ability to validate provision elsewhere.

HERA provides that the OfS may revoke DAPs if certain conditions are met. There are three conditions, of which at least one must be met for the OfS to take the step of revocation. In the vast majority of scenarios, the OfS would expect to have made use of its other intervention powers before taking the step of revocation.

The OfS will exercise its functions so as to require a provider to ensure that where DAPs are varied or revoked, it must ensure that this is reflected in any advertising material, governing documents or other instances where these powers were set out or referred to, or where the authorisation was used. This means that where a provider has its powers set out in a Royal Charter or Private Act, it must amend these accordingly. If a provider fails to do so, the Secretary of State has powers under section 116 of HERA to make consequential changes.¹⁴

The OfS expects providers that already hold DAPs to be registered because having organisations with such powers operating outside of the regulated system could be a risk for students and the reputation of English degrees and universities. The OfS may therefore revoke DAPs if a provider does not register, or is deregistered.

The conditions for revocation of DAPs are set out in sections 44 and 45 of HERA together with a detailed statutory process that the OfS must follow if it intends to vary or revoke DAPs, including requirements to:

A provider may appeal to the First Tier Tribunal against any decision to vary or revoke DAPs.

Where an appeal relates to a decision to vary DAPs, or against the date at which a revocation of comes into effect, then the grounds for appeal are:

If the appeal is against a decision to revoke DAPs, the grounds for appeal are not specified, and the First Tier Tribunal must consider the decision afresh, and may take into account evidence that was not available to the OfS.

A provider that is granted DAPs of any type by the OfS will hold its award on a time-limited basis in the first instance. After three years of operating with an authorisation for Full DAPs, the provider will be subject to a review, which, if passed, would enable authorisation with no time limit. This is referred to as ‘indefinite DAPs’.

The OfS will ask the DQB to undertake an assessment of the provider’s arrangements against the Full DAPs criteria. This would not replicate the detailed scrutiny carried out when DAPs are first awarded, but is intended to confirm that the powers in question had been exercised securely during the preceding three years. As it does so for applicants for authorisation for research degrees, its assessment will be informed by the views of UKRI. The DQB will provide this assessment in its advice to the OfS together with its view about whether the provider continues:

The OfS will have regard to the advice provided by the DQB. It may also seek, and have regard to advice from others in relation to quality or standards. It will also consider its own risk assessment for the provider and will decide whether or not the provider continues to meet the criteria for DAPs. The OfS may decide:

A provider with time limited DAPs that has already successfully operated with DAPs for three years or more at 1 August 2019 will be able to seek indefinite DAPs on the same basis as providers that obtained their powers from the OfS. A provider that has successfully operated with DAPs for a period of less than three years at 1 August 2019 will be able to seek indefinite DAPs once it has completed the required three-year period.

A registered provider is required to notify the OfS of a ‘reportable event’ under ongoing condition of registration F3, the OfS will consider the implications of the reported event for the provider’s DAPs authorisation. As part of its consideration of the reported event, the OfS will consider whether a review of DAPs is necessary. In particular, the OfS will determine whether the provider still meets the DAPs criteria and whether the institution holding DAPs is the same as that originally assessed and awarded DAPs.

  Where the OfS makes a final decision that there is, or has been, a breach of ongoing quality and standards conditions B1, B2, B3, B4 and/or B5,^14A the OfS will consider using its power under section 16 of HERA to suspend the aspects of the provider’s registration that relate to the authorisation of DAPs. The OfS would be likely to suspend the provider’s eligibility to be authorised for new^14B or extended^14C DAPs.

  Alternatively, where the OfS makes a final decision that there is, or has been, a breach of ongoing quality and standards conditions B1, B2, B3, B4 and/or B5^14D or where the OfS has imposed a specific condition of registration due to regulatory concerns relating to one or more of those conditions, the OfS may decide that the provider is not suitable to be authorised for new^14E or extended^14F DAPs.

  For information about how the OfS will treat a provider’s compliance history in respect of conditions B1, B2, B4 and B5 in the context of DAPs decisions where a merger, acquisition or other corporate change occurs, see paragraph 372 of the ‘Consultation on quality and standards conditions: Analysis of responses to consultation and decision’ document.^14G In respect of condition B3, see paragraph 643 of the ‘Consultation on a new approach to regulating student outcomes: Analysis of responses to consultation and decisions’ document.^14H

All awards made by a provider authorised to grant such awards by the OfS will be considered as recognised awards for the purposes of section 214 of the Education Reform Act 1988 and will not be subject to the offence of offering unrecognised degrees as set out in section 214. Under this section, as amended by section 53 of HERA, the OfS will be the appropriate authority in England, and as such, it will be responsible for the making of the recognised and listed bodies orders.