Part 1 of a two-part blog on the Behan review of the Office for Students

This is part 1 of a two part blog looking at the recent report from Sir David Behan, the somewhat lengthily titled “Independent Review of the Office for Students. Fit for the Future: Higher Education Regulation towards 2035.”

In this blog we will take more of an overview of the big picture and then in part 2 explore some of the details relating to a number of the recommendations

Things have moved on apace following the General Election in at least one part of the higher education landscape, the regulatory domain. Within a very short period we saw the pausing of the introduction of the 2023 Higher Education (Freedom of Speech) Act, the departure of the chair of the Office for Students (OfS) and the publication of the above mentioned report of an Independent Review of the OfS by Sir David Behan. Sir David was then appointed as interim chair of the OfS pending a permanent replacement for Lord Wharton.

The government’s comments regarding Freedom of Speech were pretty direct: 

What happens next?

We committed to protecting freedom of speech on campus and the Secretary of State will confirm the government’s long-term plans in due course.  

Sir David Behan has also been appointed as the interim chair of the Office for Students (OfS) to refocus its mission.

While the OfS previously had a role in enforcing the Freedom of Speech Act, it will now focus on tackling financial security for universities and boosting outcomes for students, alongside strengthening protections against harassment and sexual misconduct on campus. 

We will work closely with Sir David Behan and the refocussed Office for Students (OfS), to achieve financial sustainability in the higher education sector and improve student outcomes. 

What this all points to, and this has to be positive news for the sector in England, is the desire to focus on addressing some of the issues around core regulatory and related activities.

A solid effort

Sir David has produced a chunky report which weighs in at 108 pages (including appendices) and contains no fewer than 32 recommendations, some of which are heftier than others. There is much in here to be positive about and one of the strongest (and most welcome) directions is for the OfS to focus on a narrower range of activities:

I recommend that it should in the short term, focus on four key priorities:

• The quality of higher education.

• The financial sustainability of higher education providers.

• Acting in the student interest.

• Protecting how public money is spent

Urging the OfS to focus seems absolutely right and proper, however, I’m not sure that following this straightforward proposal with such a broad range of recommendations helps with the delivery of this principal one.

The report does though point to the opportunity to reduce the regulatory burden, redirect the work of the Office for Students to focus on this short list of key priorities including supporting institutional sustainability and enable all HEIs to save some resource for reinvestment in core university activities. 

Beyond clarifying its core activities the report highlights that the OfS does need to change. The pointers are clear and the recommendations cover all the bases: governance structures, enhancing student involvement, risk-based regulation, addressing institutional sustainability, the approach to quality, sector relationships, efficiency, governance and accountability. All cover the need to change.

Behan addresses some key issues but in calling for OfS to focus on four main areas the report then continues at not inconsiderable length to address many other matters. All of these are important but this broad and comprehensive coverage does rather serve to distract from the core challenge in offering a total of 32 recommendations for action.

A slight modification 

As it stands though it is not clear that the OfS is yet fully equipped to deal comprehensively with all of these areas. Moreover, the author does appear to have taken at face value some of the OfS’ comments on its own performance and not addressed some of the bigger issues around regulatory burden. I would therefore offer a slightly modified list of priorities, showing the relevant recommendations from the report:

1. Supporting institutional sustainability – Recommendation 17 covers building an infrastructure to support financial sustainability of institutions. Without this there are going to be many, many more problems.
2. Addressing the regulatory burden (and OfS efficiency) – Recommendation 8 on reducing regulatory burden including Recommendation 10 an “independent academic evaluation of its practice and approach” and 11 consulting on changes and then piloting. Plus Recommendations 30-32 on OfS efficiency. These are a good starting point but do not go nearly far enough.
3. Proper oversight of institutional approach to assuring quality and maintaining academic standards – Recommendation 12 on quality assessment addresses this partly. It has to be said though that the sections in the report dealing with quality are somewhat confused in places and at some points seem to conflate the quality of the student educational experience with the maintenance of academic standards. The respective roles of the regulator and institutions are not therefore clearly articulated here and this does need to be resolved.
4. Students front and centre – Recommendation 5 on involving students properly in governance seems a good first step here.
5. Government relationship and OfS governance – Recommendations 22 to 24 on more joined up working with government to address policy asks of OfS and 26 to 29 on board evaluation, the approach to addressing board vacancies and arrangements for exec appointments are all important activities.

Filling the Gaps

In beginning to address these priority areas the OfS will need to make some fairly significant changes it would seem.

• With institutional sustainability the OfS has recognised that it needs more support and is seeking to contract with an external partner to support this activity. This is sensible it seems to me but will still require both active DfE involvement and sector-based expertise I would suggest to support a fully rounded support infrastructure. As reported in the Times:

Last month the OfS launched a tender worth up to £4 million for auditors to “undertake financial risk and transformation planning assessments” of universities in England, with the regulator preparing for what the tender described as “potential market exits” or closures.

• In terms of reducing the regulatory burden I would suggest that the starting point has to be (following the welcome demise of the Higher Education (Freedom of Speech) Act) the revision of the OfS requirement, often called the B4 condition, for the retention of assessed work (or an “appropriate” sample, which is the modified approach welcomed in the report but which really makes not a huge difference in practice) for all students for five years post-graduation. It is unnecessary, does not achieve its ostensible purpose in terms of addressing grade inflation and will be extraordinarily costly to implement at significantly more than £500m in set up and running costs over the next five years, even allowing for a slightly reduced scope whereby only a sample of the millions of items of assessed work produced by students each year needs to be stored and organised. Beyond this, the TEF should also be discontinued; it is costly to prepare and undertake and in reality is of very little interest to most prospective students, very few of whom ever cite it as a factor in their decision-making. Additionally, it carries no funding implications but rather it is a costly and unnecessary exercise.

• With quality and standards, the recommendations here are not wholly convincing and somewhat confusing. The starting point for the development of a large part of the current regulatory landscape was the essential requirement to ensure that all stakeholders are assured as to the standard of university awards and the quality of the education provided. A fresh view is required of the best way to ensure proper oversight of quality and standards in the areas of highest risk. It may yet be that the QAA has a part to play in this despite Behan calling for legislative change to eliminate the HERA requirement for a Designated Quality Body.

• Regarding student involvement, this should start with serious and positive engagement with the governance structures of the OfS and build out from there. Positive student influence in the governance of the OfS will help drive the right behaviours in terms of involving students in the different aspects of the regulatory regime.

• We need to reduce government involvement in the routine operation of the regulatory framework and return to the principle of just a single directive letter a year from government setting priorities but in the meantime ongoing positive engagement, as Behan suggests, and reducing the additional policy demands would be a good start. However, I am not sure that the various suggestions for additional legal powers for the OfS and legislative changes to its remit are ones which there is any merit in pursuing at this time. Behan’s recommendations on governance overhaul are a good start and as interim chair he is well placed to advance them. The OfS board should now be charged by the Secretary of State with developing a fresh mission for the OfS focused on these five priorities. It will also need to address the agency’s overall approach to its role, its key performance indicators and the relationship with universities. 

Finally

In looking to address these key priorities there is also a need to rebuild trust in those most closely involved in the delivery of high quality education. A revised approach needs to feature renewed recognition of the professionalism of academic staff involved in teaching, learning and assessment. This professionalism is the foundation on which quality and standards in higher education are built and re-emphasising it is a key part of addressing the need to re-establish public confidence in the sector. There also needs to be a look at UK-wide issues and how we bring together the regulators in all four nations to find ways to identify opportunities for convergence.

A change of approach will save some money, desperately needed resource for institutions, and help to re-establish the confidence of all stakeholders in the quality of the UK’s higher education. Higher trust and lower costs mean that everyone gains. It is also essential when looking to address those critical issues around institutional sustainability. The focus in the Behan report on a small number of key issues is therefore extremely welcome. Now we all need to get on with the job and get a truly fit for purpose regulatory regime.

In Part 2 of this blog we will look at some of the other recommendations in the Behan report.