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 all of the 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.

  The requirement of condition B4 is expressed as a principle that can be satisfied in different ways. To assist providers in understanding how the OfS may interpret this principles-based requirement in practice, the following paragraphs provide a small number of illustrative examples. These examples are not exhaustive; nor are they provided as rules that, if followed, would constitute compliance with the condition.

  “Academic misconduct” includes presenting work for assessment that is not the work of the student being assessed and includes but is not limited to the use of services offered by an essay mill.

  In relation to “assessed effectively”, the following is an illustrative non-exhaustive list of examples to demonstrate the approach the OfS may take to the interpretation of this condition:

A course that is accredited by a PSRB and does not meet the requirements for assessment set by that body would likely be of concern.

  In relation to “valid” and “reliable”, the following is an illustrative non-exhaustive list of examples to demonstrate the approach the OfS may take to the interpretation of this condition:

  In relation to “credible”, the following is an illustrative non-exhaustive list of examples to demonstrate the approach the OfS may take to the interpretation of this condition, and to identifying circumstances in which it is likely to be concerned about the credibility of a provider’s qualifications:

  Where a provider has an evidenced explanation of the reasons for an increase in awards or the classifications of awards, the OfS is more likely to place weight on this evidence if it pre-dates the OfS’s interest and demonstrates that the provider has routinely satisfied itself that its approach has not resulted in increased awards or classifications, regardless of whether or not the achievement of students has increased. An absence of rigorous evidence and evaluation in advance of changes a provider makes, or has made, to it academic regulations or assessment practices, is likely to cause concern.

  In order to successfully rely on the exception in B4.3(b), the nature of the evidence a provider would need to put forward would go beyond articulating potential legal concerns or matters to which it has had regard in its decision-making and would require compelling evidence and reasoning on matters of law. As the exception in B4.3(b) only applies ‘to the extent’ that a provider can demonstrate a conflict with the Equality Act 2010, it would not be sufficient for a provider to put forward evidence and reasoning about its academic regulations in general terms; rather, a provider would need to address the particular aspects of its academic regulations which it is seeking to justify under the exception, and the particular courses and assessments to which these aspects relate.

  To give an example, citing this exception, a provider could seek to demonstrate that it is obliged, in order to avoid discrimination under the Equality Act 2010, to design its academic regulations in a manner which makes certain allowances for students with dyslexia or other learning disabilities on some courses. If this was the case, the OfS would expect the provider to demonstrate, in the context of the particular courses and assessments at issue, that any allowances made were strictly necessary to avoid discrimination under the Equality Act 2010, with reference to compelling evidence and reasoning which supports this. The OfS expects that potential conflicts between requirements relating to English language proficiency and the Equality Act 2010 will only arise in rare cases, and therefore that this exception is likely to be invoked only in limited circumstances, for example in relation to students with particular learning disabilities.

  The OfS will use its general risk-based approach to monitoring as set out in the regulatory framework.

  Where monitoring activity produces intelligence or evidence that suggests there may be compliance concerns for an individual provider, the OfS may adopt one or more of the following approaches in any order:

  Where the OfS considers it appropriate to use its investigatory powers it may conduct an investigation itself, or may ask the designated quality body, or another appropriate body or individual, to gather further information it considers relevant. An investigation will normally involve a visit to the provider and interviews with relevant staff and students.

  As part of its approach to assessing compliance with this condition, the OfS is likely to need access to students’ assessed work, including for students who are no longer registered on a course. A provider is therefore expected to retain appropriate records of students’ assessed work for such regulatory purposes for a period of five years after the end date of a course. Where possible, a provider is expected to retain records of student assessments in an anonymised form by removing students’ personal data from the records. However, in doing so, it should ensure that removal of students’ personal data would not limit the OfS’s ability to assess the provider’s compliance with condition B4, including by ensuring that all of the work of an individual student can be identified from the records.

  Where students’ personal data cannot be anonymised as described in paragraph 61, the OfS would still expect a provider to retain this data for five years after the end date of a course.

  The absence of records of students’ assessed work may lead the OfS to make negative inferences about a provider’s compliance and/or may result in the OfS taking targeted regulatory action to address the risk that it is unable to monitor compliance and regulate effectively.

  Having gathered further relevant information as necessary, 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 set out 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 breach or a 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:

  The criteria for allocation of OfS public grant funding. In accordance with any separate OfS policies on matters relating to public grant funding, the OfS may decide to take account of a provider’s current and previous compliance with this condition in determining allocations of some types of OfS public grant funding.