Providers must submit to regulation – and the OfS to proportionality

The recent call from four mission groups for a parliamentary inquiry into England’s Office for Students marks a new low in relations between the sector and its regulator. While it is not the job of a regulator to be popular, the best are seen as trusted, transparent and authoritative by those they regulate.

It has to be said that the mission groups have a point. The OfS has thus far failed to live up to the ambition of its creators to be light-touch and proportionate. Despite repeated urgings from ministers to reduce bureaucracy, it has not significantly done so. It appears to interpret “risk-based” as referring only to investigations or other formal inquiries, not to data collection. Hence, it routinely requires the same information from all providers, regardless of their risk in the particular area – and despite this being the major source of bureaucracy and burden.

Neither does the OfS operate nimbly or swiftly. Although I have been a long-time critic of the prior Quality Assurance Agency Higher Education Review process, both for passing (almost) everyone and for being highly burdensome, the QAA did at least manage to conduct several dozen reviews every year. In contrast, almost three and a half years since gaining its full powers, the OfS has yet to complete an investigation into any provider with university title on a significant issue, such as quality, grade inflation or free speech (notwithstanding a small number of successful investigations into financial matters, such as at the universities of Hertfordshire and Buckingham).

One of the principal intended benefits of the regime introduced by the 2017 Higher Education and Research Act was a much more flexible regulatory approach. Rather than having only the nuclear option of removing all eligibility for grant (or, in the new era, deregistration), the OfS was to have access to a wide range of sanctions. Yet, from the outside, it appears that every investigation is still carried out as if it might lead to deregistration – when what is often needed is just a requirement for an action plan or some other condition of registration.

Given that the OfS has yet to deliver completed investigations or sanctions in any areas of government priority, it will be interesting to see the government’s approach to the rumoured inflation-busting rise in the subscriptions that providers are required to pay. The OfS already has a budget of £30 million and employs more than 350 staff: it is hard to see what they all do. By comparison, Ofsted used its £140 million budget and 1,800 staff last year to carry out over 27,000 inspections, including into 4,620 state-funded schools, 510 further education providers and a large number of early-years and childcare providers. Of course, a university is more complex than a school, but it would be reasonable for the government to ask what, precisely, it is getting for its money.

Equally, though, universities must take their share of responsibility. Despite being part of a mass participation system, receiving significant taxpayer funding, too many do not accept the basic fact that they should be regulated. Although the mission groups’ letter pays lip service to the need for proportionate regulation, nowhere does it accept that too many universities have for years fallen far short of expectations, whether on student outcomes, in-person contact time or galloping grade inflation – including in the Russell Group.

We can see this from the fact that the OfS regularly faces threats of legal challenge to routine activities. Despite recent legislation explicitly enabling it to publish the names of providers being investigated, the OfS has still not done so. This is because legal challenge was threatened by some providers that were identified in the first round of “boots-on-the ground” investigations. This works against transparency, fairness and accountability, and it wreathes the regulator’s work in unhelpful mystery.

Autonomy is vital in the sector, but the other side of the coin is accountability. It is, frankly, absurd for universities to be resisting the basic need to be investigated. Schools are regularly inspected by Ofsted – and again if a particular concern is found. Investigations are not secret. Similarly, hospitals and care homes are investigated by the Care Quality Commission.

If the regulator sought to wrongly deregister a provider or close a department on poor evidence, legal challenge would not be unreasonable. But it should not be being used to frustrate day-to-day regulatory operation. An aim of risk-based regulation was to lift the burden of cyclical review from all providers, but this can work only if the regulator can operate swiftly and nimbly, opening investigations where needed and promptly bringing them to a close.

Higher education regulation is at a tipping point. The sector finds the OfS bureaucratic, heavy-handed and overbearing – but it is difficult to see that the government is getting anything out of the arrangement, either. Unless this can be resolved, the easiest solution for a new government might be to simply sweep the OfS away and give the job to Ofsted. And that would make no one happy.

Iain Mansfield is director of research and head of education and science at Policy Exchange.