Consultation on proposals to change how the Office for Students regulates further education colleges in England

Annex C: Matters to which we have had regard in reaching our proposals

1. This annex sets out an assessment of some of the matters to which we have had regard in formulating the proposals.

The OfS’s general duties

2. In formulating these proposals, we have had regard to our general duties as set out in section 2 of HERA.⁴⁸ These are:
   1. The need to protect the institutional autonomy of English higher education providers.
   27. The need to promote the importance of freedom of speech within the law in the provision of higher education by English higher education providers.
   28. The need to protect the academic freedom of academic staff at English higher education providers.
   2. The need to promote quality, and greater choice and opportunities for students, in the provision of higher education by English higher education providers.
   3. The need to encourage competition between English higher education providers in connection with the provision of higher education where that competition is in the interests of students and employers, while also having regard to the benefits for students and employers resulting from collaboration between such providers.
   4. The need to promote value for money in the provision of higher education by English higher education providers.
   5. The need to promote equality of opportunity in connection with access to and participation in higher education provided by English higher education providers.
   6. The need to use the OfS's resources in an efficient, effective and economic way, and
   7. so far as relevant, the principles of best regulatory practice, including the principles that regulatory activities should be—
      1. (transparent, accountable, proportionate and consistent, and
      2. targeted only at cases in which action is needed.
3. In formulating these proposals, we have given particular consideration to (aa), (ab) (b), (d), (e), (f) and (g), which are set out below.

Freedom of speech and academic freedom

4. In developing these proposals, we have considered our general duties, including our general duties to have regard to the need to: (aa) promote the importance of freedom of speech within the law in English higher education; and (ab) protect the academic freedom of academic staff at English higher education providers.
5. We have considered the consequences of disapplying ongoing conditions E1 and E2 (the OfS’s existing requirements which regulate in relation to freedom of speech and academic freedom) for further education colleges that do not have, and have not applied for, DAPs. In practical terms, this would mean that the OfS would not have, in respect of this category of further education colleges, the regulatory tools of conditions E1 and E2 (by reference to the relevant public interest governance principles), to regulate in relation to freedom of speech and academic freedom. However, the OfS would have the ability to regulate these matters via a specific ongoing condition of registration as necessary and appropriate.
6. The Higher Education (Freedom of Speech) Act 2023 (HEFSA) introduced into HERA new statutory duties on the governing bodies of all registered higher education providers in respect of freedom of speech and academic freedom.⁴⁹ These statutory duties require registered providers to:
   1. promote the importance of freedom of speech within the law and academic freedom
   2. take steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for them to take in order to secure freedom of speech within the law for their staff, students, members and visiting speakers
   3. maintain a code of practice setting out, amongst other things, the provider’s values relating to freedom of speech and an explanation of how those values uphold freedom of speech.
7. These duties came into force on 1 August 2025. These duties will continue to apply directly to further education colleges that are registered higher education providers.
8. If the OfS has concerns that any provider, including further education colleges that do not have and have not applied for DAPs, are not discharging these duties, it is able to impose a specific ongoing condition of registration under section 6 of HERA.
9. Currently, section 6 of HEFSA requires the OfS to ensure that it has in place initial and ongoing conditions of registration applicable to registered providers which require that
   1. providers’ governing documents are consistent with compliance with the statutory duties mentioned at paragraph 6 above
   2. providers have in place adequate and effective management and governance arrangements to secure compliance with those statutory duties.
10. Section 6 has not yet been commenced and so is not yet in force. If it is commenced, there will be a statutory requirement on the OfS to introduce initial and ongoing conditions to this effect, applicable to all registered providers, including further education colleges.
11. However, the government has indicated in its June 2025 policy paper on ‘The future of the Higher Education (Freedom of Speech) Act 2023’ that it plans to seek to amend section 6 of HEFSA and give the OfS a power rather than a duty. The government’s policy paper states:
    
    ‘Section 6 of the act [HEFSA], subject to securing an appropriate legislative vehicle and to its Parliamentary process, will be amended to give the OfS a power, rather than a duty, to put in place initial and ongoing conditions of registration on providers requiring all or any of the following:
    
    
    • that HE [higher education] providers’ governing documents are consistent with compliance by the governing body of the provider with its duties under new sections A1 to A3 of the 2017 act [HERA]
    • that HE providers have in place adequate and effective management and governance arrangements to secure compliance by the governing body with those duties
    • that HE providers comply with their duties under new sections A1 to A3 of the 2017 act [HERA].’⁵⁰
12. In any event, this means that it is possible that new, additional, and/or revised regulatory requirements in respect of freedom of speech and academic freedom may, in the future, apply to further education colleges that do not have, and have not applied for, DAPs.

Quality, choice and opportunities

13. These proposals seek to ensure that students can choose from a range of providers that are able to deliver high quality higher education:
    1. Maintaining quality. We are not proposing to disapply conditions relating to academic experience, student outcomes or sector-recognised standards. This ensures consistency in our approach to quality and ensures that students studying higher education courses at a further education college continue to receive high quality education regardless of the provider’s regulatory pathway.
    2. Supporting innovation and diversity. By streamlining registration for further education colleges without DAPs, one of our aims is to reduce barriers for these providers to enter the regulated higher education sector – increasing student choice and access to diverse provision.
    3. Protecting students’ interests. The proposals ensure that quality and student protection remain central to our regulatory approach by retaining the ability to intervene where risks to students arise, including through a specific condition of registration.
14. Our provisional view is that these proposals will have a positive effect on the higher education options available for students by making it easier for high quality further education colleges not seeking DAPs to enter and remain in the regulated HE sector.

Value for money

15. Value for money in the provision of higher education is important for students and taxpayers. Students normally pay significant sums for their higher education and incur debt for tuition fees and maintenance costs, and student loans are taxpayer-backed. We think that our proposals will reduce duplication of regulatory burden allowing further education colleges to focus more of their resources on delivering high quality teaching and student support, rather than duplicative compliance activities. This is especially important in a financially constrained environment.

Equality of opportunity

16. Our overall approach to regulation is designed to promote equality of opportunity in connection with access to, and participation in, higher education. This means that we are concerned with ensuring that students from disadvantaged or underrepresented backgrounds can access higher education and succeed on and beyond their courses.
17. Our Equality of Opportunity Risk Register identifies the risk that students may not have equal opportunity to access a sufficiently wide variety of higher education course types.⁵¹ This may result in restricted choice for students with certain characteristics, which may in turn lead to lower rates of progression to higher education, reduced continuation rates, and lower course attainment for these students. We consider that further education colleges, including those located in different regions or offering diverse modes of delivery, can play an important role in expanding the range of higher education options available to students. Our proposals aim to offer a more streamlined registration process that is appropriate and proportionate to regulatory risk for eligible further education colleges seeking OfS registration, helping to increase access to flexible and locally relevant provision across England.
18. We acknowledge that proposal 1, to disapply initial and ongoing condition A2 for all further education colleges may be perceived as placing less importance on equality of opportunity for students at further education colleges. Our proposals are not intended to deprioritise equality of opportunity, rather they are intended to minimise duplication and burden while continuing to protect the interests of students and taxpayers. Our initial view is that this can be achieved as further education colleges are subject to a similar reporting requirement to the DfE.

Efficient, effective and economic use of the OfS’s resources

19. We have considered the need to use our resources in an efficient and effective way by:
    1. Streamlining regulatory processes. The proposals reduce burden for the relevant further education colleges and the OfS.
    2. Focusing OfS resource on higher-risk areas. The proposals enable us to allocate our resources where risks to students or public funds are highest.
    3. Aligning with strategic priorities. The proposals support the OfS 2025 to 2030 strategy, particularly the priority of sector resilience, by ensuring that regulation is proportionate and risk-based.⁵²
20. In developing these proposals, we have taken a balanced and evidence-based approach, ensuring that our general duties under HERA are met. The consultation reflects our commitment to minimise unnecessary regulatory burden, maintain high standards and accountability, promote equality and access, and use public resources wisely.

The principles of best regulatory practice

21. We have considered the principles of best regulatory practice, in particular of proportionality. Our proposals seek to ensure that the OfS can protect the interests of students and taxpayers, while balancing this with the interests of providers. We have also set out the alternative options we’ve considered and why we consider the proposed approach to be proportionate and risk-based.
22. We have also considered the principle that regulatory activities should be consistent. We acknowledge that there is a risk of the proposals being perceived as creating inconsistency of regulation across different types of registered providers. We consider that if the proposals were implemented this risk would be mitigated by ensuring published documents and guidance are amended to reflect the changes to the regulation of further education colleges.

The public sector equality duty

23. We have had due regard to the public sector equality duty set out in section 149 of the Equality Act 2010.⁵³ This requires the OfS to have due regard to the need to eliminate unlawful discrimination, foster good relations between groups and advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.
24. We consider that the proposals in this consultation may particularly impact current and prospective students of unregistered providers that may in future seek to register with the OfS. In general, we have sought to design our proposed regulatory requirements to have a positive impact on all students, including students with protected characteristics. We consider that these proposals may increase the range of positive higher education choices for students by enabling a streamlined registration process for further education colleges without DAPs, supporting timely access to LLE funding.
25. This will have positive impacts for some groups of students with protected characteristics because we know that at a national level these students may not have equal opportunity to access a sufficiently wide variety of higher education course types. They may also be less likely to succeed on courses where the course type or delivery style is not suited to their situation.⁵⁴
26. This consultation gives stakeholders an opportunity to inform the development of our proposals. Through this consultation we are seeking views on any unintended consequences of our proposals, for example for particular types of providers or groups of students, or for individuals on the basis of their protected characteristics. Responses to this consultation will inform our assessment of the impact of our proposals on different groups.

Guidance issued by the Secretary of State

27. We have had regard to guidance issued to the OfS by the Secretary of State under section 2(3) of HERA,⁵⁵ including the following guidance:
    1. Guidance to the OfS from the Secretary of State for Education on the allocation of Strategic Priorities Grant capital funding for the 2025-26 (issued May 2025).
    2. Guidance to the OfS on the Higher Education Strategic Priorities Grant for the 2023-24 Financial Year (issued March 2023).
    3. Statutory guidance to the OfS on freedom of speech commencement (issued June 2025).⁵⁶
28. The guidance issued by the Secretary of State to the OfS in May 2025 sets out that ‘our commitment that opportunity is available for all remains unwavering, and we will achieve this by addressing gaps in access and outcomes faced by underrepresented groups’. The consultation proposes to disapply condition A2 (access and participation statement) for all further education colleges because as a prerequisite of receiving public funding, further education colleges must set objectives on how they will meet the local needs duty. This ensures that gaps in access and outcomes continue to be addressed through existing, evidence-based mechanisms, rather than duplicative reporting.
29. The same guidance sets out that ‘we will need an even more determined focus on high impact, evidence-based interventions, as well as innovative approaches to make higher education more accessible’. This consultation supports innovative approaches to regulation by proposing to streamline the registration for further education colleges without DAPs, many of which serve non-traditional and local learners. The proposed approach also supports high-impact, evidence-based regulation by focusing OfS resources where they are most needed, while avoiding unnecessary duplication.
30. We have had regard to the statutory guidance issued by the Secretary of State in June 2025 concerning the commencement of freedom of speech provisions. This guidance emphasises the importance of upholding freedom of speech and academic freedom within higher education.
31. As explained in paragraph 5 above, the consequence of disapplying ongoing conditions E1 and E2 for further education colleges without DAPs and that do not intend to seek DAPs, would be that the OfS would not have, in respect of this category of further education colleges, the regulatory tools of ongoing condition E1 and E2, to regulate freedom of speech and academic freedom. However, the OfS would retain the ability to regulate these matters via a specific ongoing condition of registration as necessary and appropriate.
32. In addition, as explained above, statutory duties in respect of freedom of speech and academic freedom, applicable to all registered higher education providers, came into force on 1 August 2025. Similarly, if the OfS has concerns that any provider, including further education colleges that do not have, and have not applied for, DAPs, are not discharging these statutory duties, the OfS is able to impose a specific ongoing condition of registration under section 6 of HERA.
33. Further, as also explained above, we note that it is possible that section 6 of HEFSA, if brought into force in its current form, will require the OfS to put in place initial and ongoing conditions of registration pertaining to freedom of speech and academic freedom, which would be applicable to all registered higher education providers, including further education colleges. Alternatively, if section 6 of HEFSA is brought into force in line with the government’s June 2025 proposed amendments, this will give the OfS a power in this regard. In any event, these conditions (if subsequently put in place either via an OfS duty or power) will provide the OfS with new, further (or revised) regulatory tools by which to regulate these issues for all registered providers including further education colleges in the future.

The Regulators’ Code

34. We have had regard to the Regulators’ Code, which sets out principles for how regulators should engage with those they regulate.⁵⁷ Section 1 of the code is particularly relevant and sets out that regulators should carry out their activities in a way that supports compliance and growth. Paragraph 1.1 states that ‘regulators should avoid imposing unnecessary regulatory burdens…and assess whether similar outcomes could be achieved by less burdensome means.’ The proposals in this consultation to disapply certain conditions of registration for further education colleges without DAPs (where robust DfE oversight already exists) reduces duplication and supports these providers to comply more easily, while still protecting students and public funds.
35. Paragraph 2.1 sets out that ‘regulators should have mechanisms in place to consult those they regulate…’ This document is a formal consultation with stakeholders to gather views on proposed changes. It includes clear instructions for submitting responses and acknowledges sector feedback from previous engagement.
36. Paragraph 3.1 sets out that ‘regulators should ensure that the allocation of their regulatory efforts is proportionate to the risk presented...’ The proposals in this consultation are explicitly risk-based, targeting regulatory effort where OfS oversight adds the most value. Further education colleges without DAPs are considered lower risk due to existing DfE regulation, and the OfS retains powers to intervene where risks arise.

Notes

48. See Higher Education and Research Act 2017 - Section 2.
49. See Higher Education (Freedom of Speech) Act 2023.
50. See page 18 of ‘The future of the Higher Education (Freedom of Speech) Act 2023’, available at The future of the Higher Education (Freedom of Speech) Act 2023 - GOV.UK.
51. See Risk 5, Equality of Opportunity Risk Register - Office for Students.
52. See The OfS strategy 2025 to 2030 - Office for Students.
53. See Equality Act 2010 - Section 149.
54. See Risk 5: Limited choice of course type and delivery mode.
55. See Higher Education and Research Act 2017 - Section 2.
56. All statutory guidance cited is available at Guidance from government.
57. See Regulators' Code - GOV.UK.