Consultation on the future approach to quality regulation

Annex D: Matters to which we have had regard in developing our proposals

The OfS’s general duties

1. In formulating these initial proposals, the OfS has had regard to its general duties as set out in Section 2 of HERA. These are:
1. The need to protect the institutional autonomy of 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 promote 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.
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.
2. Targeted only at cases in which action is needed.
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. We consider that the proposals we set out are relevant to all our general duties to varying degrees, but we have given the most weight to b, and particular weight to e, f and g in developing them.
3. Our general duty to promote quality, and greater choice and opportunities for students, underpins the changes that we are proposing to make. These changes are intended to enable us to better achieve our aims for the quality assessment system to:
1. Ensure that students benefit from high quality and continuously improving provision.
2. Provide clear information about the level of quality delivered by different providers to help inform student choice.
3. Support and incentivise providers to deliver the highest levels of quality for their students, and ensure improvements are made where quality falls short.
4. Our proposals to extend assessments to all registered providers and, in time, to other areas of provision, would increase the reach of our activity to promote quality so that more students benefit from high quality provision. We also propose strengthened incentives and interventions with the aim of pushing all providers to deliver high quality materially above our minimum requirements, and for growth in student recruitment to take place at high quality providers. Additionally, the way in which we propose to deliver assessments seeks to protect students from poor or rapidly declining quality through regular assessment of all providers alongside active monitoring of risk indicators, which would allow us to prioritise providers for assessment where we have concerns about emergent risks to quality.
5. We have taken account of the duty to support greater choice in terms of a diverse range of providers, courses and means of delivery through proposing an assessment approach that recognises the diversity of provision in the sector and the need for incentives to apply across all of this. Our proposed assessment approach seeks not only to avoid disincentivising delivery of some types of provision or courses, but to achieve improvements in quality across all types of provision thereby improving the range of high quality choices that are available to students.
6. We have carefully considered our general duty in relation to equality of opportunity and consider our proposals to support this through:
1. Explicit consideration of the experience and outcomes of different groups of students, through the continued consideration of ‘split’ indicators for groupings such as disability and combined measures of disadvantage.
2. Ratings criteria, which require that consistent levels of quality are delivered for all student groups and that the provider effectively tailors its academic support to its particular mix of students.

Providers would need to demonstrate that they are delivering among the best experience and outcomes in the sector for all their students to gain the highest rating, and this would therefore incentivise providers to improve the experience and outcomes of all student groups.

7. We have sought to develop proposals for our future assessment approach which balance consideration of our duty to use the OfS's resources in an efficient, effective and economic way with:
1. Our duty to promote quality, which is supported by the extension of assessments to all registered providers.
2. Recognition of the diversity of the sector and institutional autonomy, and the need to vary our assessment approach if we are to effectively assess all providers.
8. We have attempted to identify an efficient way to assess all providers effectively and have moved away from an initial idea of all assessments involving visits to all providers, while retaining scope for targeted action where we identify concerns and collection of alternative evidence in specific circumstances.
9. In developing our proposals for the future system, we have considered the principles of best regulatory practice, including the principles that regulatory activities should be:
• transparent, accountable, proportionate and consistent
• targeted only at cases in which action is needed.
10. This has been particularly relevant when considering the extent to which we should propose to integrate our assessment activities. Our proposals set out what we consider to be an appropriately risk-based and proportionate approach, which combines desk-based assessments of all providers with the possibility of further engagement, investigation or intervention where concerns or increased risks to quality are identified. We are also proposing to make more transparent the way we monitor risks to quality through the creation of a risk monitoring tool.
11. Throughout our proposals for integrating our assessment activities and the future TEF assessments we have considered where it may be possible to streamline the assessment approach, primarily to reduce burden for providers. For example, we expect that our proposals to simplify and integrate the assessment of the minimum required student outcomes, and rely more on available data to assess student outcomes will reduce the effort needed to monitor student outcomes and produce provider and student submissions.
12. Our consideration of the need to protect institutional autonomy is reflected in our proposals for a flexible approach to assessing student experience, which takes account of provider context, and the focus on positive outcomes without any prescriptiveness about how the provider achieves these.
13. We have also considered the need to encourage competition between providers where this is in the interests of students. This is reflected in the proposal to retain differentiated ratings, which not only help to make clear to prospective students the level of quality offered by each provider but, through their publication, also incentivise providers to make quality improvements because of the reputational and competitive advantage a high TEF rating is seen to bring.
14. We have also had regard to our general duty relating to value for money and consider that improvements in the quality of the student experience and outcomes across the higher education sector will result in better value for money for students and taxpayers. We also propose that a more rounded set of employment and further study measures should be used in the assessment. This would enable a wider set of benefits that student gain from their education to be recognised and rewarded.
15. We have also had regard to our general duties to promote freedom of speech and secure academic freedom, but consider these to be less pertinent to our proposals.

The Public Sector Equality Duty

16. We have had regard to Schedule 1, paragraph 21 of HERA, which extends the Equality Act 2010, and therefore the Public Sector Equality Duty, to the OfS. This requires the OfS to have due regard to eliminating unlawful discrimination, foster good relations between different groups and take steps to advance equality of opportunity.
17. Our proposals aim to ensure that all students, whatever their background and characteristics, receive a high quality student experience and achieve positive outcomes. By designing the ratings criteria in a way that requires providers to demonstrate consistently high levels of quality for all student groups to gain the highest ratings, we hope to incentivise improvements for groups that typically experience less good experience and outcomes. Expanding the coverage of the TEF in terms of providers and levels of study means that the incentives it creates could result in benefits for a wider range of students, including those from underrepresented groups or those with less good experience and outcomes.
18. Through this consultation we are seeking views on any unintended consequences of our proposals, for example on particular types of provider or student groups. We are also seeking views about the potential impact of our proposals on 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

19. We have had regard to guidance issued to the OfS by the Secretary of State under Section 2(3) of HERA.
20. We will have regard to any further guidance from the Secretary of State once issued.

The Regulators’ Code

21. We have had regard to the Regulators’ Code and consider Section 1 and Section 3 to be particularly relevant to our proposals:
1. Section 1 says that regulators should carry out their activities in a way that supports those they regulate to comply and grow, including using proportionate approaches and avoiding unnecessary burdens.
2. Section 3 which discusses the need to base regulatory activities on risk.
22. Our proposals for the future system represent a risk-based approach, with regulatory activity increased where risk is greatest, and we have sought to design future TEF assessments in a way that streamlines what is required of providers while maintaining the TEF as an effective mechanism to ensure and improve quality across the sector.