In a recent piece in Times Higher Education, former government special adviser Iain Mansfield expressed concerns that universities were not willing to submit to regulation. Instead, he argued, they were turning to legal challenge, thwarting the aims of a transparent, fair and accountable regulatory system and wreathing the regulator’s work in “unhelpful mystery”.
In fact, the Office for Students’ published approach to monitoring the risk of breaches of registration conditions demonstrates that it lacks basic safeguards around transparency, fairness and accountability. The approach relies on “lead indicators” drawn from “regularly obtained reliable data” from providers and others, alongside “reportable events” from providers and wider strategic intelligence, including whistleblowing and student complaints – and, it appears, press reports.
When monitoring suggests there might be compliance concerns regarding quality and standards, the OfS reserves the right to “engage with the provider to ensure it is aware of the issues”, “gather further information from the provider or from elsewhere” or “use its investigatory powers” – in any order. So it may choose to discuss the issues with the provider or it may not: there is no assurance of transparency. A decision to investigate will be based on interpretation and intelligence of which the provider is completely unaware and which will, by definition, relate to matters that have already occurred and therefore might no longer represent the current state of affairs.
By contrast, the Competition and Markets Authority states that its first step in identifying compliance concerns is usually to discuss them with the business in question, except when this would prejudice the investigation or there is extreme urgency.
The OfS also has the power to publish the fact that it has started an investigation. It will normally ask the provider’s views on publication, but without any obligation to abide by those views. It gives no guarantee that it will be fair to the provider in reaching a publication decision; indeed, its starting position is that it normally will publish the identity of the provider and a summary of the matters being investigated.
Is it any wonder, then, that some providers look to legal advice to protect their positions? However much it is made clear that there is not yet any finding of guilt, it is self-evident that being named as the subject of an investigation is damaging to the reputation not just of the provider but also of its students, staff and graduates.
Moreover, the investigation will usually involve a visit and interviews with staff and students. The OfS might therefore be discussing concerns with many people, increasing the risk of rumours and leaks without ever having told the provider exactly what the concerns are or establishing whether there is any relevant context or developments that should inform interpretation of data or intelligence.
After its investigation, the OfS will write to the provider to set out the reasons for its provisional decision about compliance and the evidence it relied on. Only then is the provider able to submit any further information it considers relevant. However, before it considers whether those submissions should affect its decision, the OfS states that it will normally publish its provisional decision and rationale, including detailed assessment of the relevant issues and evidence. This is hardly in accordance with the principles of fairness and natural justice.
Worse, providers are able to settle disputes early to save themselves and the OfS the resources required to produce and respond to a provisional decision about a breach of a regulatory condition. To avail itself of the settlement discount on any potential financial penalty, the provider must publicly admit to the breach exactly as the OfS describes it. But the process described above entails that it would have to do so before the OfS has explained in any meaningful way what the issues are.
Fair enough, some might say: it is up to the provider to decide whether to settle on these terms. But to decide on the appropriate penalty, to which any discount will relate, the OfS says that it will take into account the “nature, seriousness and impact of the breach”, any mitigating or aggravating circumstances, the “provider’s track record of compliance and the likelihood that a breach could happen again”, and “any other relevant factors”. Quite how the OfS can properly consider these matters without hearing the provider’s representations is indeed an unhelpful mystery.
More fundamentally, it cannot be considered good regulatory practice to adopt a settlement process that requires the provider to admit breaches without having a chance to put forward any relevant contextual considerations. The energy regulator Ofgem expressly states that it will seek the provider’s representations on its initial findings as part of the settlement procedure.
The same individual could both make the decision to open an investigation and reach the provisional and final decisions on breach of condition (and presumably to offer a settlement). Yet there is no readily accessible right to review or appeal their judgements. Judgements must take into account but not necessarily follow the academic assessors’ report, and it seems that the report’s conclusions cannot be reviewed or appealed. By contrast, the schools inspector Ofsted has published mechanisms through which complaints can be made about the inspection and the report.
Faced with this degree of lack of transparency and accountability, and potential unfairness, it is not surprising that institutions seek to protect their positions. It is also difficult to have much confidence in any resultant regulatory findings. The OfS must urgently change its approach.
Smita Jamdar is a partner and head of education at Shakespeare Martineau.
