Securing student success: Regulatory framework for higher education in England

When the OfS grants an application for registration for a provider, it will apply:

To remain registered, a provider must continue to meet the definition of ‘an English higher education provider’ and must demonstrate that it satisfies the ongoing general conditions of registration applicable to the category of the Register in which it is registered. It must also satisfy any specific ongoing conditions that have been applied. Likewise, the OfS will have regard to its general duties in applying any ongoing specific condition of registration.

In developing the general ongoing conditions of registration, the OfS has had regard to its general duties as set out in section 2 of HERA.

The general ongoing conditions of registration, and the categories of the Register to which they apply, are set out in Annex A.

As with the initial conditions of registration, the general conditions in each of the approved categories are the same, with the exceptions of the requirements for access and participation and for receipt of public grant funding.

HERA allows the OfS to decide that one or more of the general ongoing conditions of registration may be disapplied for an individual provider when the provider is first registered or thereafter. In determining whether this would be appropriate, the OfS will give due consideration to those conditions that are fundamental to ensuring that student outcomes and interests are protected and that allow the OfS to carry out its regulatory functions effectively. The expectation is that ongoing conditions will seldom be dis-applied, as they are all closely aligned with protecting students.

HERA requires the OfS to perform its functions in relation to a registered higher education provider in proportion to the OfS’s assessment of the regulatory risk posed by the provider. The OfS’s assessment of a provider’s risk is therefore a critical component of its regulatory approach.

The sections that follow set out the OfS’s approach to risk assessment and the way that this will operate for registered providers. In developing this approach the need to identify and respond to increased risk, before it crystallises and conditions of registration are breached, has been taken into account.

Underpinning this approach to risk assessment is an expectation that registered providers will behave responsibly, transparently and collaboratively. They will be expected to provide sufficient and reliable data and information on an ongoing basis (or as requested by the OfS to follow up on changes in a provider’s risk profile). The OfS’s approach will be based on cooperation with regulated providers, in the best interests of students.

Individual providers, that become aware of areas of increased risk, will be expected to bring these to the attention of the OfS before it becomes aware of these through its own monitoring processes. This includes the requirement to notify the OfS of particular ‘reportable events’ but also extends to any area in which the risk of a breach of an ongoing condition of registration has increased. The provider would not be expected to highlight all risks but to demonstrate sound judgement about when it considers that mitigation may not be sufficient to prevent a breach of an ongoing general or specific condition. If a provider fails to behave transparently the OfS will take the provider’s behaviour into account in the context of the provider’s ongoing management and governance condition.

The formal risk assessment carried out for a provider when it is first registered will be expressed in a risk profile covering each of the general ongoing conditions applicable to that provider. The risk profile will be updated as necessary as a result of ongoing monitoring activity. Through this mechanism, the OfS will maintain an audit trail of its evolving assessment of risk for an individual provider and the actions taken in response to any increase or decrease in risk.

The individual risk profile will ensure that the OfS is able to focus its monitoring activity on any areas of increased risk and apply specific conditions of registration where these are deemed desirable to mitigate particular areas of risk. It will ensure that the OfS has a view of risk across all of the ongoing conditions that apply to an individual provider.

The OfS will pay particular attention to providers with a risk profile that suggests one or more of the following:

Such providers are likely to be subject to significant intervention by the OfS, until such time as increased risk has effectively been mitigated and/or a breach resolved.

OfS will not assign an overall summative ‘risk rating’ or classification for an individual provider (i.e. it will not divide providers into high risk/medium risk/low risk, or apply RAG ratings). Such an approach would artificially group providers with diverse types of risks and differing probability of a breach of conditions and would therefore not be a useful comparative tool.

The OfS does not intend to publish its risk assessments or the risk profiles for individual providers. Such information could be erroneously treated as equivalent to judgements on a provider’s quality and have an unnecessary reputational impact. Publication could in fact be harmful to the OfS’s ability to carry out its regulatory functions, for example, by creating confusion, giving providers insights that allow them a commercial advantage, or affecting the OfS’s ongoing relationships with providers.

The OfS will monitor registered providers to ensure that any increased risk of a breach of one or more ongoing conditions of registration can be identified and decisive action taken before the risk crystallises into a breach, allowing the OfS to limit the exposure of students and taxpayers.

There are two levels of monitoring activity to allow the OfS to respond proportionately to the regulatory risks posed by regulated providers and enable early identification of changes in risk levels:

In addition, the OfS will use findings from its activities to monitor the higher education sector more broadly to inform its risk assessment for an individual provider or groups of providers.

Table 6 provides an overview of the range of measures which will inform the OfS’s monitoring of risk for registered providers.