Securing student success: Regulatory framework for higher education in England

The reference to higher education provided ‘in any manner or form’ includes any higher education course (whether or not that course is recognised for OfS funding purposes, or any other purpose), at any level, and with any volume of learning. This means, for example, that postgraduate research courses, the study of modules or courses leading to microcredentials, and apprenticeships are included within the scope of this condition. It also includes courses provided face-to-face, by distance learning, or a combination of delivery approaches.

This condition applies to any higher education provided ‘by, or on behalf of, a provider’. This includes higher education provided to students who are registered with a registered provider, taught by a registered provider or studying for an award of a registered provider (or where these services are provided on a registered provider’s behalf). This includes UK-based and non-UK-based students, and courses delivered through partnership arrangements both within the UK and internationally.

The reference to ‘including, but not limited to, circumstances where a provider is responsible only for granting awards for students registered with another provider’ means that a provider is required to comply with the provisions of this condition where it is the awarding body for a course, whether or not that provider has any other role in the design or delivery of that course.

Where a provider is not the awarding body for a course, this condition applies to a course the provider itself delivers, or which is delivered on its behalf, regardless of the identity of the awarding body, whether or not that awarding body is registered with the OfS, or the nature of any partnership agreement. For the avoidance of doubt, this means for example, that a provider delivering, or allowing another provider to deliver, courses leading to a qualification awarded by Pearson is responsible for compliance with this condition in relation to those courses. Similarly, a provider delivering, or allowing another provider to deliver, courses leading to a qualification awarded by another higher education provider, whether that awarding provider is located in England or elsewhere, is responsible for compliance with this condition in relation to those courses.

In practice, these provisions may result in more than one registered provider being responsible for compliance with this condition in relation to the same course.

While this condition, in principle, applies to any higher education within the scope of B3.1, the scope of a provider’s obligations under the condition is set by B3.3 and B3.4. The effect of B3.3 and B3.4 is that a provider is required to deliver positive outcomes only in the areas covered by the ‘indicators’ and ‘split indicators’ (which are defined by the OfS in technical documents from time to time). By way of a hypothetical example, if the OfS defined the indicators and split indicators so as not to cover students on courses delivered through transnational education, a provider would not be required by the condition to deliver positive outcomes for those students. The OfS may decide to make changes to the definitions of the indicators and split indicators in the future, and this would have the effect of changing the scope of a provider’s obligations under the condition.

A provider applying for registration with the OfS would only need to satisfy condition B3 as an initial condition if it is a ‘relevant provider’.

A provider is a ‘relevant provider’ if, in the judgement of the OfS, data showing the provider’s performance against the indicators or split indicators exists, and that data relates to any time during the five-year period preceding the date of the provider’s application for registration. This data could relate to higher education provided in any manner or form by, or on behalf of, that provider. This would cover, for example, data about a provider teaching courses under a subcontractual arrangement with a lead provider, where that data was collected from the lead provider rather than the delivery provider. It could also cover data collected from an entity which no longer exists, for example where a provider has merged with, or divided from, another provider or where a provider has changed its legal name.

Where a provider is not a ‘relevant provider’, the initial condition would not apply and the OfS would conduct its usual registration process without assessing the provider in relation to initial condition B3.

All registered providers are subject to condition B3 as a general ongoing condition.

  This paragraph sets out the overall requirement of condition B3, which is that a provider must deliver positive outcomes for students on its higher education courses.

  The reference to ‘higher education courses’ in this condition is to be understood in accordance with the Higher Education and Research Act 2017.

  This paragraph explains the meaning of the overall requirement set out in B3.3, namely that a provider must ‘deliver positive outcomes’ for students on its higher education courses.

  The OfS will consider a provider to be ‘delivering positive outcomes’ if it is performing at or above each of the numerical thresholds that the OfS has set in relation to the ‘indicators’ and ‘split indicators’. The indicators and split indicators are measures of the extent to which a provider is achieving positive outcomes for its students in a range of areas. The OfS will assess a provider against the numerical thresholds using data it considers is appropriate, including but not limited to data sourced from the designated data body and/or the Education and Skills Funding Agency. In making this assessment, the OfS will consider whether there is sufficient statistical evidence to support a view that a provider’s performance is at or above a relevant numerical threshold.

  Where the OfS cannot be satisfied that a provider is performing at or above a relevant numerical threshold on the basis of the data, the OfS will consider whether the context in which the provider is operating nevertheless justifies the provider’s outcomes, in that they nevertheless represent positive outcomes for its students. Paragraphs x-x below contain an illustrative non-exhaustive list of examples to demonstrate how the OfS might reach a judgement about a provider’s context.

  Where the OfS does not hold any data on a provider’s performance against an indicator or split indicator, or where the OfS does hold data but it refers to fewer students than the minimum number set in technical documents published by the OfS, the OfS will not assess the provider’s performance against that indicator or split indicator and this will not prevent the provider from satisfying the condition. The minimum number set out in the technical documents is set by the OfS with the primary aim of preventing individual students from being identified from a provider’s data.

  The OfS will publish a document which contains detail about the definitions of the indicators and split indicators. Where the OfS decides that it is likely to be necessary to add, amend or remove one or more indicators or split indicators, it will consult on those changes.

  The OfS has determined and published an approach to setting numerical thresholds. The OfS will use that approach to determine and publish numerical thresholds that will apply in relation to each indicator and split indicator. Where the OfS proposes to change the numerical thresholds or it otherwise considers it appropriate to seek views, it will consult. For the avoidance of doubt, when the OfS reviews numerical thresholds, it expects to use the same approach to setting numerical thresholds that it has decided to adopt. The OfS does not intend to consult on that approach unless it proposes to change the approach itself or otherwise considers it appropriate to seek views on the approach.

  The OfS has published a document, Regulatory Advice 20¹⁷, setting out the approach it will take to assessing a provider’s compliance with this condition. Paragraphs 23 to 36 below provide a summary of the main features of that approach. Where the OfS decides that it is likely to be necessary to make material changes to that approach, it will consult on the revised content of that document.

  The following is an illustrative non-exhaustive list of examples to demonstrate the factors the OfS may consider, and the approach the OfS may take, in determining whether the context in which a provider is operating justifies the provider’s outcomes. These factors fall into two broad groups:

  The OfS may consider the following factors which relate to a provider’s historical performance:

  The OfS may consider the following factors which relate to actions that a provider has taken, or is planning to take, to improve its performance:

  The OfS will assess a provider’s compliance with this initial condition itself and will not commission the designated quality body to undertake assessment activity. It will undertake this assessment through the following broad steps. Further details are set out in associated regulatory advice (Regulatory advice 20).¹⁸

  The OfS will review a provider’s outcome data and consider whether it is satisfied that it has sufficient statistical evidence that the provider’s performance against each of the indicators and split indicators is at or above the relevant numerical thresholds. The provider’s outcome data will be assessed on the basis set out in a document published by the OfS which includes the OfS’s approach to statistical confidence, including the principle that the closer the OfS is to having 100 per cent statistical confidence in the evidence, the stronger it will likely judge that evidence to be. In undertaking this review, the OfS may also consider, where appropriate, other matters relating to the interpretation of statistics.

  Where the OfS is satisfied that a provider’s performance against each of the indicators and split indicators is at or above the relevant numerical thresholds, it will determine that the provider has satisfied initial condition B3.

  Where the OfS cannot be satisfied from a provider’s outcome data that its performance is at or above each relevant numerical threshold, the OfS will consider whether there is evidence available to the OfS that the provider’s context means that any outcome data that is not at or above a relevant numerical threshold is justified, in that it nevertheless represents positive outcomes for students. The OfS will seek further information about contextual factors from a provider where the OfS considers it appropriate to do so.

  If, after following the step above, the OfS is not satisfied that there is context that means a provider's performance is justified, it will inform the provider that it has taken a provisional decision that the provider has not satisfied initial condition B3. The OfS will consider representations from the provider before reaching a final decision.

  Where the OfS does not hold any data on a provider’s performance against an indicator or split indicator, the OfS will not assess the provider’s performance against that indicator or split indicator and this will not prevent the provider from satisfying the initial condition.

  Where the OfS holds data on a provider’s performance against an indicator or split indicator, but that data refers to fewer students than the minimum number set by the OfS in the technical documents, the OfS will not assess the provider’s performance against that indicator or split indicator and this will not prevent the provider from satisfying the initial condition.

  Where a provider, or another legal entity that the OfS considers to be operating substantially the same higher education business, has previously been registered, a history of non-compliance with ongoing condition B3 is likely to result in a judgement that initial condition B3 is not satisfied.

  Where the OfS considers this initial condition to be satisfied, but that there is an increased risk of a future breach of the general ongoing condition, or a relevant wider regulatory concern, it may impose one or more specific ongoing conditions of registration and will also consider whether additional monitoring requirements are appropriate, for example, a requirement to report additional matters as reportable events.

  The OfS will prioritise its assessment and enforcement activity for this ongoing condition. The OfS will publish the general approach that it will take to prioritisation in guidance. It may also choose to publish information about its specific approach in any given academic year.

  In addition to this prioritisation process, the OfS will use its general risk-based approach to monitoring as set out in the regulatory framework to identify providers for which an assessment of compliance with this condition is considered to be appropriate , whether or not that provider is, or is likely to be, selected by the prioritisation process.

  For a provider selected for assessment, the OfS will take the approach set out in Regulatory advice 20.¹⁹ The OfS will assess a provider’s compliance with this condition itself and will not commission the designated quality body to undertake assessment activity. Broadly, this approach consists of the following steps:

  Having completed its assessment, the OfS will reach a view about a provider’s previous and ongoing compliance with the condition. Where the OfS takes the view that there is or has been a breach of the condition, it will write to the provider to set out the reasons for its provisional decision and the evidence it has used to reach this view. The provider is able to submit any further information it considers relevant in a representations process and the OfS will consider this before reaching a final decision.

  Where the OfS has decided that there is, or has been, a breach of this condition, it will consider the use of the full range of its enforcement powers. This includes the imposition of a monetary penalty, suspension of elements of a provider’s registration, for example its access to student support funding or OfS public grant funding, or deregistration. The OfS is likely to require improvement, to mitigate the impact of poor performance on students, or to incentivise future compliance by this and other providers. The OfS will follow any statutory consultation process as it takes enforcement action.

  Where the OfS considers there to be an increased risk of a future breach or a relevant wider regulatory concern, it may impose one or more specific ongoing conditions of registration and will also consider whether additional monitoring requirements are appropriate, for example, a requirement to report additional matters as reportable events.

  Where there is, or has been, a breach of this condition, or the OfS has imposed a specific condition of registration, the ways in which the OfS may take this into account include, but are not limited to, the following ways: