OfS presses on with plan to bill universities for investigations

The English sector regulator is pushing ahead with plans to charge universities for the costs of regulatory investigations, despite criticism of the proposals in a consultation.

However, the Office for Students said that it accepted that a provider’s ability to pay should be considered before a final bill is issued.

The charges will be levied on institutions that have been found to have breached a registration condition or have conditions imposed on their registration following an investigation.

In a document outlining consultation responses, published on 20 July, the OfS writes that the majority of respondents “considered that the definition of investigation and the activities that fell within it, and would therefore be included in the calculation of costs, was too broad” – in many cases representing “business as usual” for a regulator.

Some respondents also “recommended that there should be a cap on potential costs incurred, including reduced costs for smaller providers”.

“Many respondents commented on the proportionality of costs and thought it would be unreasonable for the OfS to recover all costs where only minor issues were found,” the report says.

In response, the OfS says the “principle of cost recovery is that the OfS should be able to fully fund investigatory activity and that in a risk-based system those costs should be borne by the individual provider”.

“However,” it continues, “we agree that a provider’s ability to pay for costs (rather than its size) should be considered before final decisions are taken on the costs that are payable to the OfS.

“We have therefore decided that the fee charged for an investigation should take account of the impact that paying the fee would have on the financial viability and sustainability of the provider and whether payment of the fee would be appropriate where a provider is in financial difficulty. We will consider this as a separate step after we determine the total of our costs reasonably incurred.”

The OfS says that it will consider “proportionality” when it comes to recovering costs, adding that “this could, depending on the circumstances, result in a decision that it would not be appropriate to recover all the costs that have been reasonably incurred.

“An example of circumstances in which we might determine that it would not be appropriate to recover all of our reasonably incurred costs may be if only very minor issues are found at the end of an investigation. However, our starting point is that we would normally expect to recover all of our reasonably incurred costs.”

Staff “will be asked to record exact time spent on investigatory work in order to maintain an accurate record”, the response says.

The finalised guidance applies to investigations initiated after December 2022 and will be reviewed in 18 to 24 months.

It was issued amid continuing concern among English universities about the costs of the OfS regime. The annual OfS registration fee is likely to exceed £200,000 for the largest universities next year if a proposed 13 per cent increase is approved by ministers.

chris.havergal@timeshighereducation.com