Part 2 of a two-part blog on the Behan review of the Office for Students

In the first part of this blog looking at the recent report from Sir David Behan on his review of the Office for Students we looked at the proposals for focusing the OfS on core activities. In this second part I want to pick out a few areas of the report and some of the detail in the (many) recommendations.

In broad terms though it is worth noting one of Behan’s early observations that the imperfect HE market has not delivered the hoped for residuals. Indeed, we are far from it, and it is for government, working with the sector and the OfS to “develop a model of regulation which is fit for the future.” 

In sorting that regulatory regime then Behan offers a series of comments and recommendations covering, among other things:

• The student interest
• Autonomy, Accountability and Quality assurance
• Financial sustainability
• Sector relationships
• Regulatory burden

One of the principal recommendations is that the OfS should focus on a smaller number of key priority areas. This is eminently sensible advice which I will endeavour to follow here by limiting comments to the five areas above. 

The Student Interest

Behan observes: 

The primary purpose of regulators in most sectors is to protect the public. Higher education regulation must ensure that it protects and promotes the student interest and that students receive a high-quality education as measured by outputs, outcomes, and experience.

I’d very much agree with the need to protect the student interest and the OfS was set up and given the name it has to signal this. It is arguable that the historical approach to regulating quality and standards before the advent of the OfS in fact treated students as secondary participants. The model was designed to ensure that standards of awards were maintained and a quality educational experience provided but the judgements about the former and much of the latter were made by university staff rather than students. They may have been asked for views about  different aspects of the quality of their learning experiences but students in general could not be said to have been central to quality assurance in higher education.

Despite the high level signalling (including the title of the 2011 government White Paper ‘Students at the Heart of the System’) and agency naming though it seems pretty clear that students have remained at best some distance from the heart of the system. Whilst it is a very long way from the OfS boardroom to the lived experience of the student in the classroom the starting point for addressing the student interest has to be ensuring proper representation of students in the agency’s governance structures, starting at the top. Recommendation 5 offers a slightly different approach:

5. That the OfS seeks opportunities to involve students directly in its formal governance and regulatory activity, by constituting the student panel as a formal committee to the board and including students in quality assessments and investigations.

Behan also notes that among the sector stakeholders who were interviewed for the report there was “broad consensus that student voice and perspective was noticeably absent from the OfS.” He further observes that students really do not recognise the office that bears their name:

A range of stakeholders highlighted that the OfS’s stated student-centred purpose was not clear in its operation. Most students welcomed the idea of an external body to champion their consumer rights, but it was clear that they did not currently see the OfS occupying this position…At focus groups across the country with domestic, international, undergraduate, and postgraduate students, the OfS was largely unknown as an entity. Students were unfamiliar with its brand, identity, or purpose…

 Recommendation 5 does not seem to me to go far enough if the OfS is genuinely to regulate in the student interest. Before exploring how institutions should do more in their governance structures (which, although not perfect, are still in general more advanced than the OfS), as per recommendation 6, the OfS really does need to focus on its approach to student engagement. I also noted the following positive comment in the report:

It is a credit to providers and student unions that most students interviewed had strong awareness of, and high confidence in the internal mechanisms for seeking support in the event of a challenge with their higher education experience.

Another argument for parking recommendation 6 for the time being it seems to me.

 Autonomy, Accountability and Quality Assurance

There is no arguing with this:

The institutional autonomy of higher education providers is a defining characteristic of the English system, but autonomy does not come without accountability. The review strongly believes that effective regulation by an independent body is an essential part of the accountability framework for the English higher education system. 

Ensuring that regulation is indeed effective though is the critical issue here and at the heart of Behan’s report. There are welcome messages to about ensuring the independence of the agency from political interference and that appropriate appointments are made, both to the board and executive positions.

 I fear though that some of the comments around academic standards and quality assurance are rather unclear and at times these two very distinct terms are conflated and indeed viewed as synonymous with the much wider range of higher education regulatory activities. For example:

The aim of higher education regulation is to provide independent assurance of the quality of education when assessed against quality standards, to ensure accountability for the delivery of quality by providers and to contribute to encouraging and supporting improvement.

There is this unhelpful conflation of quality (of education and experience) and standards (normally of awards) in here but the point about accountability is a key one and the assumption that assuring the quality of provision and of the maintenance of academic standards inevitably goes hand in hand with the improvement of both is a common one. However, there is no necessary linkage between effective regulation and the improvement of educational provision. You can’t inspect quality into a course or enhance provision by describing it, even by using what Behan describes as “improvement science techniques” or, more crudely, publication of reports. You don’t fatten a pig by weighing it as the saying goes.

 In theory, you can sanction or eliminate poor quality provision but you can’t improve it just through the operation of a regulatory apparatus. It has to be said though that the linkage between the operation of the current OfS quality assurance operation and the impact of findings on an institution’s compliance with conditions of registrations remains somewhat unclear at present. Indeed there are observations noted in the report from institutions which have been investigated that they remain unclear why they were subject to investigation in the first place. 

Regarding the TEF, which remains for me a hugely costly exercise with limited verifiable benefit, it is noted that “the review heard several positive reflections on the TEF.” Given the scale of the activity I think we could expect just a little more justification for this major enterprise. In addition, it is stated that “the TEF is currently the primary tool the OfS uses for incentivising improvement; it is regarded as a well-run exercise and is broadly welcomed by the sector.” I would be surprised if many in the sector would genuinely agree with that final statement.

Notwithstanding the earlier observations about definitional confusion and the burdensome place of the TEF in all of this I do think this comment does merit consideration:

Interactions between these strands of work are unclear and seemingly minimal. The OfS’s quality initiatives and activity need to be brought together to form a more coherent and integrated assessment of quality. 

The report does go on to say there is no role for the Designated Quality Body function identified within HERA which was previously fulfilled by the QAA and more recently has been taken on by the OfS itself. I’m not sure it is worth legislating to address this but it remains surprising to many that with all of its expertise in the quality assurance domain the QAA continues to play no formal part in England’s regulatory framework. 

Financial sustainability

Unsurprisingly perhaps the review heard significant concerns about the sector’s future financial sustainability, an area where everyone, including the OfS, was on the same page.

The review believes that open and honest dialogue between the sector and the OfS is essential to build a better picture about financial risk in the system and protect the interests of students from the potentially damaging effects of a market exit, disorderly or otherwise. The OfS should consider how it can continue the work it has been doing to build confidence to facilitate such discussion, and the sector must adopt a pragmatic approach to such engagement.

This approach is an important one to develop but it does require progress on two of the recommendations Behan makes, essentially the new(ish) government’s clarification of its position on market exit of institutions but also the OfS building a supportive infrastructure which will “offer advice, guidance and support” for those facing financial challenges. We are some way I suspect from the OfS being in a position to provide this but their intentions to do so are clear. 

Behan also notes that there some significant weaknesses in current student protection plans which, according to the review, do not appear “to adequately consider or mitigate the risk of market exit to students, nor protect their interests.” This issue clearly has to be addressed along with the wider supportive infrastructure.

The balancing of this and the other dimensions of the work of the OfS in responding to the Behan recommendations are really important for ensuring that the sector has full confidence in the work of the agency.

Sector relationships

The Lords report ‘Must do better’ urged the OfS to do more to develop relationships with sector. Behan in his report says there “were several positive comments” about OfS efforts to develop these relationships. Moreover:

There were also a range of more positive views, noting that there has been a step change in interactions between the sector and the OfS in recent months. There has also been increased stakeholder engagement and a new schedule of provider visits, which have been well received. 

I think this is true, to an extent, but I’m not wholly sure most institutions would concur with the view that this really represents a ‘step change’ as suggested here. Furthermore, the implication that OfS has done its bit and therefore it now falls to the sector 

to accept its responsibility and demonstrate through its attitudes and behaviour, that it accepts regulation and works productively with the OfS

does really overstate the position.

Many in the sector have had positive, cordial and collegial engagements with the Ofs and the agency employs many capable individuals with good sector knowledge but the agency’s remit and approach still needs to be addressed and the relationship development approach does need to go a lot further.

The Regulatory Burden

 Recommendation 8 is a particularly important one:

8. That DfE and the OfS engage the sector in an ongoing, constructive dialogue with a view to reducing unnecessary regulatory burden, including data burden, and to seek to embed the Regulators’ Code principle of ‘collect once, use many times.’

Furthermore, in recommending an independent academic evaluation of the OfS  approach it is recommended that this include an “evaluation of the effectiveness of its regulatory intervention.” 

The report notes the sector concern that the OfS’s interpretation of risk-based regulation:

has led to a ‘one size fits all’ approach, which was not working. For well-established providers, many felt that regulation was neither proportionate nor risk-based and failed to reflect that they believed they had been consistently assessed as low risk.

There is a clear steer to the OfS then to look to differentiate between low risk institutions with a strong track record and those where there were greater concerns.

Part one of this blog identified some significant areas for immediate action following the welcome deferral of the Higher Education (Freedom of Speech) Act, principally the revision of the OfS requirement, often called the B4 condition, for the retention of all (or a sample) of assessed work for all students for five years post-graduation. Plus the ending of the TEF, an unnecessary and burdensome element of the quality framework.

I am sure we are all looking forward to the ongoing, constructive dialogue on reducing the burden as proposed in recommendation 8. 

Conclusion 

In part 1 we looked at some of the headline issues in here. In this second blog there has been a bit more diving into detail but it has to be said that there is an awful lot more to explore in here for those with an appetite for it. With over 100 pages and 32 recommendations there is a lot for the OfS and the sector to chew over.

I think it is important to stress that in criticising aspects of the current regime none of this represents nostalgia for some kind of golden age under the previous regulator and funder, HEFCE. All we need to do is remember what happened in 2016 when, approaching end of its life, HEFCE proposed a huge new overbearing quality assessment regime which in many ways would have been even more problematic and burdensome as where we are now.

Anyway, it will be interesting to see how Sir David, in his position as Interim chair, drives some of these issues forward. Whatever he chooses to focus on from among these recommendations though I think we can all be certain that there is going to be some change on the way. And that has to be welcome news for all.