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Education briefing: The Higher Education and Research Act 2017

  • United Kingdom
  • Education - Briefings


Key points from the consultation exercise on the new regulatory framework for higher education

Last year the Government enacted the Higher Education and Research Act 2017 (the Act) – described as the most important legislation in the sector for 25 years. Whilst most of the Act’s provisions have yet to come into force, this has been brought a step closer by the various consultation exercises issued by the Department for Education, including those on the proposed new regulatory framework and changes to Degree Awarding Powers and University Title which closed on 22 December 2017.

In advance of the outcome of the consultation, this briefing highlights the key issues for higher education providers anticipated by the contents of the consultation. In future briefings we will focus on a number of these areas in more detail as well as examine the outcome of the consultation exercise.

The Office for Students (OfS)

The Act establishes the OfS as the regulator of the higher education sector. The OfS came into being on 1 January 2018 and with effect from 1 April 2018 will take over the functions of the Higher Education Funding Council for England (HEFCE) and the Office for Fair Access (OFFA).

The OfS has four primary objectives – that all students, from all backgrounds:

  • are supported to access, succeed in, and progress from, higher education;
  • receive a high quality academic experience, and their qualifications hold their value over time in line with sector-recognised standards;
  • have their interests as consumers protected while they study, including in the event of provider, campus, or course closure; and
  • receive value for money.

The OfS is required under the Act to establish a single register of all English higher education providers recognised by the OfS and to set out the initial and ongoing conditions required to be on the register.

The register

This will be split into three distinct categories:

Registered: this category is for providers that simply wish to be registered as a higher education provider. Providers in this category will not be entitled to receive grant/research funding or student support and will not be able to apply for Degree Awarding Powers/University Title, or retain/obtain a Tier 4 licence.

Approved: this category is for institutions that are eligible for student loans at the lower amount. Providers in this category will be able to retain/apply for Degree Awarding Powers/University Title and retain/obtain a Tier 4 licence.

Approved (fee cap): this category is for institutions that are eligible for student loans at the basic or higher amount (subject to meeting the respective conditions for an access and participation statement or plan – see later), to apply for OfS grant funding and for research funding. Providers in this category will also be to retain/apply for Degree Awarding Powers/University Title and retain/obtain a Tier 4 licence.

Only providers that are (or intend to become) English higher education providers, as defined in section 83 of the Act, can register with the OfS. There are three factors to consider when determining whether a provider is an English higher education provider:

  • provision of higher education - this is defined as delivering a course of any description set out in Schedule 6 of the Education Reform Act 1988;
  • being an English provider - meaning that over 50% of the provider's activities are carried out in England; and
  • being an institution providing higher education.

The intention is that the OfS will consider responses from the consultation and in February/March 2018 publish a statement on how it intends to exercise its functions accompanied by guidance on registration and the ongoing registration conditions. In April 2018, providers will be able to apply for registration and decisions on applications will be made with the register being published by mid-September 2018.

Initial and ongoing registration conditions

Providers wishing to join the register will need to meet a series of conditions – initial conditions. To remain on the register providers will then have to comply with a number of ongoing conditions (including, but not limited to, the initial conditions). The relevant initial and ongoing conditions will depend on which category the provider wishes to be registered in. Alongside the consultation documentation, the DfE has issued guidelines on the proposed initial and ongoing registration conditions.

The initial conditions will ensure that providers meet the minimum required standards before even making it onto the register. These include conditions such as delivering courses that match the academic standards as set out in the Framework for Higher Education Qualifications (FHEQ) and, for approved and approved (fee cap) providers:

  • ensuring that a student’s qualification holds its value over time;
  • ensuring that the governing body abides by its obligations to protect freedom of speech and academic freedom;
  • demonstrating that, in developing their policies and procedures governing their contractual and other relationships with students, they have given due regard to relevant guidance about how to comply with consumer law;
  • having in force a student protection plan, approved by the OfS, setting out actions they would take to minimise the impact on students should the course, subject or discipline be discontinued or the provider exit the market;
  • having an access and participation statement in place (where the provider intends to charge fees up to the basic amount) or, for approved (fee cap) providers who wish to charge above the basic amount, an access and participation plan approved by the OfS.

Once a provider has satisfied the initial conditions and is registered, it will still have to comply with a number of ongoing conditions (as well as the relevant initial conditions). These include cooperating with the requirements of the student complaints scheme run by the Office of the Independent Adjudicator for Higher Education (OIA) and, for approved and approved (fee cap) providers, publishing the number of their staff earning a basic salary of over £100,000 per annum as well as specified information on staff paid more than £150,000 per annum. In addition it is proposed that all English providers with a headcount of more than 500 will be obliged to participate in the Teaching Excellence and Student Outcomes Framework (TEF) if they wish to remain on the register as an approved or approved (fee cap) provider.

Degree Awarding Powers

The OfS is aiming to make it simpler and quicker for providers to enter the higher education market and for institutions to obtain Degree Awarding Powers by removing some of the barriers. Under the new regulatory regime the OfS will have the ability to grant Degree Awarding Powers via two different routes:

Taught Degree Awarding Powers ("TDAPs") which can be awarded where a provider has a three-year track record; or

New Degree Awarding Powers ("NDAPs") which may be awarded where a provider has little or no track record, but with restrictions and a time limit of three years at the end of which the provider can potentially progress to TDAPs.

As mentioned, regardless of whether a provider is applying for TDAPs or NDAPs, it must be registered as an Approved or Approved (fee cap) provider.

Research Degree Awarding Powers ("RDAPs") may also be granted by the OfS, however the OfS will need to seek advice from the Designated Quality Body (DQB) (QAA have been appointed to this role from 1 April 2018) and will have to be informed by the views of United Kingdom Research and Innovation (UKRI).

University Title

Under the new framework, the OfS will be able to grant University Title. All applicants must be registered in the Approved or Approved (fee cap) category and be compliant with all ongoing conditions. The OfS will have to consider the factors set out in the guidance given by the Secretary of State when determining whether to grant University Title. It will also consider whether granting University Title would impact the appropriateness of the provider's governance arrangements and may require the provider to make changes so that compliance with the ongoing conditions is not affected.

There will be new requirements for University or University College Title such as that a provider must have had obtained TDAPs or RDAPs which are not time limited and (for University Title) that the student body must consist of over 55% higher education students.

Providers with time-limited Degree Awarding Powers, NDAPs or foundation Degree Awarding Powers only will not be eligible to apply for University Title.

Risk assessment and OfS intervention

The OfS has stated that it aims to approach risk assessment in a proactive basis, preferring to provide support and work with providers rather than needing to use its regulatory powers. The approach of the OfS will be risk-based and proportionate and will seek to identify and respond to emerging risks early on. Therefore, the OfS will focus primarily on the providers that look to be failing or struggling.

Despite the OfS expressing its preference for an open and honest dialogue with providers, it does have a significant range of intervention powers and sanctions, including enhanced monitoring and/or investigation; powers of entry and search; monetary penalties; suspension of registration and de-registration.

Future briefings will explore some the above issues in more detail.