Provider guide to coronavirus

Time-limited condition of registration

Following a consultation on proposed measures to protect the integrity and stability of the higher education sector in England, we have introduced a new time-limited condition, Z3.

The condition allows us to take action against higher education providers that use offer-making practices which would not be in the interests of students and the wider higher education sector in these exceptional circumstances.

What activities does the condition cover?

The condition prohibits:

the use of ‘conditional unconditional’ offers, where an offer is only unconditional if the applicant makes that university or college their firm choice
a university or college making false or misleading statements about other higher education providers in order to discourage prospective or current students from accepting offers or registering with them.

Other unconditional offers to UK students that could materially affect the stability and integrity of the English Higher education sector could also be found to breach the condition.

To provide clarity to providers and students, the condition also sets out conduct that is permitted under the condition.

Read the condition Read our analysis of the responses to the consultation and equality impact assessment

Frequently asked questions

Why has the OfS imposed a new condition of registration?

Condition Z3 is a new, time-limited, ongoing condition of registration. We consider that it is a necessary measure to protect the stability and integrity of the English higher education sector during the coronavirus pandemic.

We have framed condition Z3 so that it relates only to certain offer-making and advertising and marketing activities, which we consider pose the greatest risk to the stability and integrity of the sector and to the student interest in these exceptional times of the coronavirus pandemic.

We consider that our existing regulatory powers, and other existing measures, are not sufficient to address the risks that we have identified. The reasons for this are set out in our summary of responses to the consultation document.

Is condition Z3 different to the proposals that the OfS consulted on?

Many respondents to the consultation raised concerns about the broad scope of the proposals and requested greater clarity about the conduct that may potentially breach the condition.

We have framed condition Z3 so that it relates only to certain offer-making and advertising and marketing activities, which we consider pose the greatest risk to the stability and integrity of the sector and to the student interest, in these exceptional times of the coronavirus pandemic.

Many of those who responded to the consultation also asked for greater clarity about our regulatory expectations under this condition. In framing condition Z3, we have therefore taken a more rules-based approach than we would normally take; we have set out within the condition, conduct that is prohibited in all circumstances and conduct that is permitted in all circumstances. The condition is also clear that other types of unconditional offers are within the scope of the condition if the OfS judges them to have a material negative impact on the stability and integrity of the sector

However, this more rules-based approach is not an indication of the approach we would be likely to take in more normal times. The OfS’s regulatory approach is purposefully designed to be principles-based because the higher education sector is complex and diverse, and the imposition of a narrow rules-based approach would risk leading to a compliance culture that stifles diversity and innovation.

What about institutional autonomy? Does the OfS have the power to regulate admissions practices at universities and colleges?

The OfS has a number of general duties in law (set out in section 2 of the Higher Education and Research Act 2017 (HERA)), which we are required to ‘have regard’ to.

The ‘have regard’ wording is of critical importance as it means that we have to consider each duty when we decide whether and how to act. We must weigh each of the duties against one another and decide how to balance any tensions that exist between the different duties.

In the exceptional circumstances of the coronavirus pandemic, our judgement is that the interests of students outweigh the autonomy of universities and colleges, including in relation to certain admissions matters, in a way that in more usual times might not be the case. However, we also consider that condition Z3, when compared to the original proposals set out in the consultation, has significantly less of an impact on the autonomy of universities and colleges.

Can universities and colleges still make unconditional offers to UK-domiciled applicants?

Condition Z3 regulates unconditional offer-making activity for UK-domiciled applicants (that is, for applicants who are ordinarily resident in England, Wales, Scotland or Northern Ireland).

Under condition Z3, an ‘unconditional offer’ is an offer that is not subject to any A-level (or equivalent) grade requirements or is subject to grade requirements but those requirements are so low as to be tantamount to not having any requirements at all.

Condition Z3 expressly prohibits:

the making of ‘conditional’ unconditional offers to UK-domiciled applicants in all circumstances. For these purposes, a ‘conditional unconditional’ offer is an unconditional offer where the ‘unconditional’ element is conditional on the applicant making the university or college their first (or only) choice.

Condition Z3 expressly permits:

the making of unconditional offers in certain specified circumstances, including for applicants who already have A-levels (or other equivalent Level 3 qualifications) or are able to show evidence of prior (experiential) learning, and applicants to creative courses, such as art, music and drama, where their aptitude and potential is assessed by audition or portfolio, or similar.
universities and colleges to use unconditional offers (to adjust the terms of existing offers) for private A-level (or equivalent) candidates who will not receive calculated grades in summer 2020, following the cancellation of examinations, but want to go to university or college before 1 September 2021.

For all other types of unconditional offer made to UK-domiciled applicants – any unconditional offers that are not expressly set out in the ‘prohibited’ and ‘permitted’ lists in the condition – we would consider whether they could be expected to have a material negative effect on the stability and/or integrity of the English higher education sector.

Can universities and colleges still make unconditional offers to international applicants?

Yes. Only unconditional offers made to UK-domiciled applicants fall within the scope of condition Z3.

We recognise that offer-making practices for international applicants (including those from the EU) may be different to those used for UK-domiciled applicants, reflecting the diversity of international applicants. We also recognise the important contribution that international students make to the English higher education sector and that it is essential for universities and colleges to be able to attract suitably qualified international students to study in England. In implementing condition Z3, we have balanced the need for universities and colleges to remain competitive in attracting international students with the need to protect the interests of international applicants and students.

What about unconditional offers that were made before condition Z3 was published? What does sub-paragraph 6(a)(i) of condition Z3 mean?

Condition Z3 only takes effect from the date that it was published (3 July 2020).

We have not included in the condition provisions that would allow us to take action in relation to conduct that occurred before the imposition of the condition on 3 July.

We are, however, able to take action in relation to future conduct, even where that relates to an offer or contract that has already been made. For example, this would mean that, for an offer made in April 2020 that was changed to an unconditional offer on or after 3 July 2020, the condition would apply to the unconditional offer.

It remains the case that, should a university or college make an offer that is prohibited after the condition comes into effect (on 3 July 2020), we would consider whether it would be appropriate to require that offer to be withdrawn.

Can universities and colleges still make contextual offers to applicants?

Yes. Condition Z3 expressly permits the continued use of contextual offer-making practices, where entry requirements are adjusted for applicants from underrepresented groups.

Other activities such as providing financial or IT support to existing or prospective students from underrepresented or vulnerable groups, are not within scope of the condition.

More information about the OfS’s approach to access and participation is available on our website.

Can universities and colleges accept students who have not met the conditions of a conditional offer?

Universities and colleges that decide to accept students who have not met the conditions of a conditional offer because their results have fallen short of their predicted A-level grades can do so without risk of any penalty from the Office for Students.

If a university or college is satisfied that a student has the potential to succeed on a course, it does not have to wait for the results of an appeal by the student to confirm their place.

As is always the case, universities can make admissions decisions on the basis of the available evidence for individual applicants, regardless of the outcomes of any appeal that applicants may make. Our temporary condition of registration on offer-making practices would not prevent such decisions – provided that there are no requirements that students make the university their only choice for the offer to stand.

The Office for Students is working closely with providers to ensure that the admissions process supports vulnerable students and students from disadvantaged backgrounds, in line with their access and participation plans.

Besides unconditional offers, what else does condition Z3 cover?

Condition Z3 expressly prohibits universities and colleges from making false and misleading statements about other universities and colleges. Although this type of conduct would not be acceptable in any event, in our view the uncertainties created by the pandemic, increase the risk of it occurring. By including this conduct on the face of condition Z3, we have clearly set out our regulatory expectations and have obvious regulatory levers to act quickly, should such conduct occur.

In relation to other forms of advertising or marketing for the provision of higher education, we would consider whether they could be expected to have a material negative effect on the stability and/or integrity of the English higher education sector.

How will the OfS monitor compliance with condition Z3?

Our approach to monitoring universities’ and colleges’ compliance against the conditions of registration is set out in our regulatory framework. We use a range of information including from universities and colleges themselves through reportable events and data submissions, from third party notifications and from information shared by other bodies. We will take the same approach in relation to the monitoring of condition Z3.

Where we become aware of an increased risk of a particular university or college acting in a way that may not be compliant with the condition, we are likely to impose targeted requirements for information.

What do I do if I want to tell the OfS that I think a provider is acting in breach of condition Z3?

As ever, we welcome students, staff and other people and organisations notifying us of matters that may be of regulatory interest to us. We will consider this information in line with our normal monitoring approach.

To notify us about an issue at a provider that we regulate, please contact: [email protected].

Please note, we do not have a direct role in dealing with individual disputes between students and higher education providers. See our notifications pages for further information.

How long will condition Z3 be in effect for?

Condition Z3 will be in effect until 30 September 2021. The OfS may consider whether it is appropriate to remove the condition before 30 September 2021. Respondents to our consultation raised concerns that removing the condition mid-way through a recruitment cycle could impact stability. If we were minded to do so, we would consult first.

Can the OfS extend condition Z3 beyond 30 September 2021?

Condition Z3 does not include any provisions to allow the OfS to extend its effect beyond 30 September 2021. If we want the condition, or something similar, to continue beyond 30 September 2021 we would consult the sector and others.

The OfS will be able to investigate and, if necessary, take regulatory action in respect of non-compliant conduct (whether or not it is still ongoing) which took place whilst the condition was in effect.

What is the OfS’s role in the student number controls announced by DfE for 2020-21?

The policy for the use of student number controls in 2020-21 is being developed and imposed by the government and not the OfS.

You can read the Department for Education’s guidance for higher education providers in England on the introduction of temporary student number controls on GOV.UK.

Published 04 May 2020
Last updated 17 August 2020 + show all updates

17 August 2020: Question on whether universities and colleges can accept students who have not met the conditions of a conditional offer added
03 July 2020: Details of the new condition have been added after the analysis of responses to the consultation.
22 June 2020: Added link to the DfE’s guidance for higher education providers in England on temporary student number controls
18 June 2020: Minor amend to the answer to 'When would the condition consulted on come into force?'
27 May 2020: Consultation closed
19 May 2020: New FAQs added

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Provider guide to coronavirus

Time-limited condition of registration

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