Securing student success: Regulatory framework for higher education in England
Last updated: 24 November 2022
Scope
B5.1 This condition relates to the standards applied to higher education provided in any manner or form by, or on behalf of, a provider (including, but not limited to, circumstances where a provider is responsible only for granting awards for students registered with another provider).
Requirement
B5.2 Without prejudice to the principles and requirements provided for by any other condition of registration and the scope of B5.1, the provider must ensure that, in respect of any relevant awards granted to students who complete a higher education course provided by, or on behalf of, the provider (whether or not the provider is the awarding body):
- any standards set appropriately reflect any applicable sector-recognised standards; and
- awards are only granted to students whose knowledge and skills appropriately reflect any applicable sector-recognised standards.
Definitions
B5.3 For the purposes of this condition B5:
- “higher education course” is to be interpreted:
- in accordance with the Higher Education and Research Act 2017; and
- so as to include, for the avoidance of doubt:
- a course of study;
- a programme of research;
- any further education course that forms an integrated part of a higher education course; and
- any module that forms part of a higher education course, whether or not that module is delivered as an integrated part of the course.
- “relevant award” means:
- research award;
- a taught award; and/or
- any other type of award or qualification in respect of a higher education course, including an award of credit granted in respect of a module that may form part of a larger higher education course,
whether or not granted pursuant to an authorisation given by or under the Higher Education and Research Act 2017, another Act of Parliament or Royal Charter.
- “research award” and “taught award” have the meanings given in section 42(3) of the Higher Education and Research Act 2017.
- “sector-recognised standards” means the standards contained in the document of that title published by the OfS from time to time.
The reference to higher education provided “in any manner or form” includes any higher education course (whether or not that course is recognised for OfS funding purposes, or any other purpose), at any level, and with any volume of learning. This means, for example, that postgraduate research courses, the study of modules or courses leading to microcredentials, and apprenticeships are included within the scope of this condition. It also includes courses provided face-to-face, by distance learning, or a combination of delivery approaches.
This condition applies to any higher education provided “by, or on behalf of, a provider”. This includes higher education provided to all of the students who are registered with a registered provider, taught by a registered provider or studying for an award of a registered provider (or where these services are provided on a registered provider’s behalf). This includes UK-based and non-UK-based students, and courses delivered through partnership arrangements both within the UK and internationally.
The reference to “including, but not limited to, circumstances where a provider is responsible only for granting awards for students registered with another provider” means that a provider is required to comply with the provisions of this condition where it is the awarding body for a course, whether or not that provider has any other role in the design or delivery of that course.
Where a provider is not the awarding body for a course, this condition applies to a course the provider itself delivers, or which is delivered on its behalf, regardless of the identity of the awarding body, whether or not that awarding body is registered with the OfS, or the nature of any partnership agreement. For the avoidance of doubt, this means for example, that a provider delivering, or allowing another provider to deliver, courses leading to a qualification awarded by Pearson is responsible for compliance with this condition in relation to those courses. Similarly, a provider delivering, or allowing another provider to deliver, courses leading to a qualification awarded by another higher education provider, whether that awarding provider is located in England or elsewhere, is responsible for compliance with this condition in relation to those courses.
In practice, these provisions may result in more than one registered provider being responsible for compliance with this condition in relation to the same course.
Condition B5.2
“Relevant award” includes, but is not limited to, the awards made by a provider in relation to an apprenticeship.
The OfS will use its general risk-based approach to monitoring as set out in the regulatory framework.
Where monitoring activity produces intelligence or evidence that suggests there may be compliance concerns for an individual provider, the OfS may adopt one or more of the following approaches in any order:
Engage with a provider to ensure it is aware of the issues.
Gather further information it considers relevant to the scope of the potential concerns, from a provider or from elsewhere on a voluntary basis, to facilitate an assessment of whether there is, or has been, a breach of one or more conditions.
Use its investigatory powers where that is considered appropriate for any reason.
Where the OfS considers it appropriate to use its investigatory powers it will ask the designated quality body to gather further information it considers relevant. An investigation will normally involve a visit to the provider and interviews with relevant staff and students.
As part of its approach to assessing compliance with this condition, the OfS and the designated quality body are likely to need access to students’ assessed work, including for students who are no longer registered on a course. A provider is therefore expected to retain appropriate records of students’ assessed work for such regulatory purposes for a period of five years after the end date of a course. Where possible, a provider is expected to retain records of student assessments in an anonymised form by removing students’ personal data from the records. However, in doing so, it should ensure that removal of students’ personal data would not limit the OfS’s ability to assess the provider’s compliance with condition B5, including by ensuring that all of the work of an individual student can be identified from the records.
Where students’ personal data cannot be anonymised as described in paragraph 77, the OfS would still expect a provider to retain this data for five years after the end date of a course.
The absence of records of students’ assessed work may lead the OfS to make negative inferences about a provider’s compliance and/or may result in the OfS taking targeted regulatory action to address the risk that it is unable to monitor compliance and regulate effectively.
Having received relevant information from the designated quality body, the OfS will reach a view about a provider’s previous and ongoing compliance with the condition. Where the OfS takes the view that there is or has been a breach of the condition it will write to the provider to set out the reasons for its provisional decision and set out the evidence it has used to reach this view. The provider is able to submit any further information it considers relevant in a representations process and the OfS will consider this before reaching a final decision.
Where the OfS has decided that there is, or has been, a breach of this condition, it will consider the use of the full range of its enforcement powers. This includes the imposition of a monetary penalty, suspension of elements of a provider’s registration, for example its access to student support funding or OfS public grant funding, or deregistration. The OfS is likely to require improvement, to mitigate the impact of poor performance on students, or to incentivise future compliance by this and other providers. The OfS will follow any statutory consultation process as it takes enforcement action.
Where the OfS considers there to be an increased risk of a breach or a relevant wider regulatory concern, it may impose one or more specific ongoing conditions of registration and will also consider whether additional monitoring requirements are appropriate, for example, a requirement to report additional matters as reportable events.
Where there is, or has been, a breach of this condition, or the OfS has imposed a specific condition of registration, the ways in which the OfS may take this into account include, but are not limited to, the following:
A provider’s eligibility to participate in the TEF. The OfS will set out in its TEF guidance the way in which a provider’s current and previous compliance with this condition may be taken into account in determining its eligibility to participate in the TEF.
A provider’s existing TEF rating. The OfS will set out in its TEF guidance the way in which a provider’s current and previous compliance with this condition may affect any existing TEF rating.
Regulation of degree awarding powers. Where the OfS makes a final decision that there is, or has been, a breach of this condition, or where the OfS imposes a specific condition of registration due to regulatory concerns under this condition, it will take that into account in the following ways:
Where there is a finding that a breach of this condition has taken place or is ongoing, the OfS will consider using its power under section 16 of HERA to suspend the aspects of the provider’s registration that relate to the authorisation of DAPs and would be likely to suspend the provider’s eligibility to be authorised for new or extended degree awarding powers.
Alternatively, without using the power under section 16 of HERA, in circumstances where a finding has been made that a breach of this condition has taken place or is ongoing, the OfS may decide that the provider is not suitable to be authorised for new or extended DAPs. In a similar way, the OfS may also decide that the provider is not suitable to be authorised for new or extended DAPs where the OfS has imposed a specific condition of registration due to regulatory concerns relating to this condition.
The OfS would take this approach whether or not the authorisation sought is to gain new powers, or extend existing powers, for example by time, level or subject.
Regulation of university, and university college, title. Where the OfS makes a final decision that there is, or has been, a breach of this condition, or where the OfS imposes a specific condition of registration due to regulatory concerns under this condition, it will take that into account in the following ways:
Where there is a finding that a breach of this condition has taken place or is ongoing, the OfS will consider using its power under section 16 of HERA to suspend the aspects of the provider’s registration that relate to the authorisation of university or university college title and would be likely to suspend the provider’s eligibility to be authorised for university or university college title.
Alternatively, without using the power under section 16 of HERA, in circumstances where a finding has been made that a breach of this condition has taken place or is ongoing, the OfS may decide that the provider is not suitable to be authorised for university or university college title. In a similar way, the OfS may also decide that the provider is not suitable to be authorised for university or university college title where the OfS has imposed a specific condition of registration due to regulatory concerns relating to this condition.
The criteria for allocation of OfS public grant funding. In accordance with any separate policies on matters relating to public grant funding, the OfS may decide to take account of a provider’s current and previous compliance with this condition in determining allocations of some types of OfS public grant funding.
[Paragraphs 337-355 are not used.]
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