Fears raised over scope of OfS’ crisis regulatory powers

University leaders and experts in higher education policy and law have warned that the proposals put forward by England’s regulator to stabilise the sector during the coronavirus pandemic are “alarmingly broad” and threaten the autonomy of institutions.

On 4 May, the Office for Students (OfS) announced that it was consulting on a new regulatory condition, allowing it to intervene where universities “act in ways that undermine students’ interests or threaten the stability of England’s higher education sector during the crisis”.

The interventions include “substantial financial penalties” for universities that alter their admissions strategies because of financial pressures caused by the pandemic. “For example, if a provider switched existing conditional to unconditional offers in a way that increased its student numbers and destabilised other providers,” according to the consultation.

This would be time-limited for one year from the condition’s coming into effect, which is expected to be June 2020. However, subject to consultation, this could be extended.

Nick Hillman, director of the Higher Education Policy Institute, said he recognised that the OfS “had a difficult challenge on their hands”, but the catch-all powers and the indefinite time frame “give me some concerns”.

“When it comes to policy, it’s much harder to undo something than it is to put it in place,” he said.

Although Times Higher Education understands that the OfS may have tactically made the proposals more drastic than it wanted, with a view that the consultation responses would result in it being diluted, the proposals have resulted in concerns about their scope.

David Green, vice-chancellor of the University of Worcester, said they were “the equivalent of taking police state powers” and a “serious assault” on university independence. “What counts as threatening the integrity of the sector? My university deliberately keeps its [admissions] offers low to be more inclusive – does this count? It could strangle innovation in the sector,” he said.

The autonomy of universities in admissions is enshrined in the 2017 Higher Education and Research Act, but, according to the OfS, the “exceptional circumstances” caused by the coronavirus pandemic “outweigh the autonomy of providers, including in relation to admissions matters, in a way that in more usual times might not be the case”.

At the same time, the OfS is conducting a review of university admissions, which could be informed by the success or failure of the new condition and potentially act as a way to extend it, one sector leader told THE.

The OfS has made it clear in the past that it wants to tackle some of the practices it does not like in the sector, particularly the overuse of unconditional offers.

Another sticking point is that that the condition would be backdated to 11 March, the date that the World Health Organisation declared a pandemic, as this “ties the condition to actions a provider took in response to the coronavirus pandemic, which is the purpose of the condition”, the OfS said.

According to Dean Machin, strategic policy adviser at the University of Portsmouth, “retrospective rules are morally and legally problematic” because universities could be fined for doing something that was not a breach at the time they acted.

“There is evidence that a minority of universities engaged in egregious unconditional offer-making”, but the OfS has not presented any evidence the problem is more widespread than that, he said, adding that the government put a moratorium on unconditional offer-making on 23 March.

“The proposals are intellectually incoherent. The OfS says they are pandemic-specific, but there is no rational connection between the powers the OfS wants and the problems it seeks to solve. It raises the question, what is the real purpose of this condition?” he told THE.

Smita Jamdar, head of education at the law firm Shakespeare Martineau, said she was “concerned by the sheer breadth and ambiguity” of the proposals. “As it is drafted, it’s not limited to admissions decisions, it’s any kind of decision an institution has taken since 11 March that could affect the integrity of the English system…You need to be clear what conduct could result in regulatory scrutiny, and this is alarmingly broad,” she said.

The way the regulator is planning to judge the need for intervention is “extraordinary”, she added. The OfS said it would also assess “indirect effects, including the potential cumulative effect of multiple providers adopting the same approach”.

“How can institutions make decisions if they are trying to guess what would happen if others did the same?” Ms Jamdar said.

Gordon McKenzie, chief executive of GuildHE, agreed that there was “a considerable lack of clarity about what’s OK and what’s not OK”.

“I understand the context, as the number cap will not be enough to stabilise the sector…but we are being asked to place a lot of trust in the OfS to make decisions with potentially far-reaching consequences for institutions,” he said.

A spokeswoman for the OfS said the regulator had nothing further to add beyond what was in the consultation.

anna.mckie@timeshighereducation.com