34 things to note in the May and July 2023 OfS board papers

Less than 24 hours since the last exciting drop of Office for Students (OfS) board papers, we have another two sets.

This time they cover the deliberations and accompanying papers from May and July’s encounters, and include reflections on an “existential threat to humanity”, no less.

34th meeting of the OfS board, 25 May 2023

The Higher Education (Freedom of Speech) Bill was about to become an Act, the sector was alarmed at changes to dependent visas, we got a stack of written evidence as delivered to the Industry and Regulators Committee, and the annual TRAC report came out. But what were the OfS board talking about?

Approval of minutes from 30 March 2023 board meeting

James Wharton’s introduction in March was unusually interesting, bringing news that responsibility for the OfS within DfE had passed from the superb Hannah Sheenan to the fabulous Anne Spinali. She’ll be keeping a close eye on board meetings from here on in.

But the big surprise was that Wharton had been meeting with the National Union of Students – bringing an end to the Donelan-era “no platform” policy for NUS.

A review of the board’s effectiveness – as well as drawing in the changes of formatting detailed above – suggested that there should be more detail in committee reports, and more horizon scanning and strategic discussion. There’ll be consideration on the scheduling of meetings for next year.

The provider risk committee saw an update on the University of Sussex case (drink).

This was the last board meeting of two absolute stalwarts from the OfS executive: board clerk Paula McLeod and head of governance Louisa Baker.

Chief executive’s report

Aside from the usual updates on publication, Susan Lapworth revealed that assessment visits to eleven providers (the business and management and computing investigations) were now complete, with reports about to be shared with providers for comments and representation. Over in B3 world, assessments of 12 providers are ongoing, with publication expected in “the coming months”. Credibility of awards (ie grade inflation) investigations continued at three providers, and the University of Sussex free speech investigation was at an “advanced stage” (drink).

Remember when OfS used to register providers? Well, this report suggested that progress was being made on registration (including in “long and complex cases”). This update turns up in the Provider Risk Committee report now, which is why we don’t often get to see it. There were two decisions on degree awarding powers (LIBF and NCG), plus a change of name (Newman University became Birmingham Newman University).

The consultation on regulating harassment and sexual misconduct in English higher education brought 300 responses, with 10 per cent of these from current students, former students, or representative bodies like students’ unions. Lapworth noted that this is “a more significant student response than we have seen in relation to other consultations”.

On the issue of public funding and sub-contractual arrangements it was revealed that around 5 per cent of registered students are taught via sub-contractual relationships, which is around 14 per cent of students funded by SLC. Because these arrangements may be “particularly exposed” to inappropriate payments, OfS will be amping up monitoring and oversight.

More detail on the trading standards issue from the last board meeting! The board was told about:

• An unregistered provider that is claiming in its advertising that it holds degree awarding powers and university title
• Two registered providers relying on terms and conditions which do not appear to comply with consumer protection law (unclear terms and conditions, disproportionate charges, limited liability, and an “unreasonably wide discretion” to vary course content or increase fees during a course).

You’ll be glad to hear that trading standards was on the case. More on that below.

There’s an independent review of the annual financial return on the way, with the hope that collection can be more risk focused in future.

If you work in a university you’ve probably already been engaging with the OfS B4 stipulation around keeping assessed work for five years. OfS claims that this is “broadly consistent” with previous guidance issued by a sector body – not an argument that seems to be washing (a requirement is not the same as guidance!). There’s a working group with sector representatives attempting to sort this one out.

OfS has recruited a startling 150 academics and practitioners as external assessors on quality assurance, with more to come. This makes OfS a larger employer of academics than many of the providers registered with it, and makes us wonder if said academics have started a UCU branch.

The regulator’s plans to leave Finlayson House (the London office) in mid-June saw the arms-length independent regulator move in with the Department for Education in Westminster’s Sanctuary Buildings on 7 June. It’s a smaller office, but think of those views of where the waterfall used to be. And all that independence. They will save money on the deal, and there are also plans to “rationalise” the Bristol office estate.

OfS employees took action as part of a PCS strike on 1 February, 15 March, and 28 April. Readers of these board papers are not trusted with knowing how many staff were involved.

Annex A: OfS strategic risks and Annex B: OfS media and communications overview are, as usual exempt from publication. Annex C was the external business plan 2023-24 (which has now been published).

Role of the OfS board

What is the role of the OfS board? Other than giving James Wharton somewhere to hang out that isn’t a flood-damaged office block in Blackburn, that is. Members had a long discussion spurred by the recent annual effectiveness review, and this paper can be seen as background information to support that confirmation. It is also the source of four new categories of board paper.

Governance fans will be thrilled to learn that each paper is now marked with which of the four hats of the Board it is supposed to wear over the content – set strategy, set risk appetite, oversee performance or understand context.

The only other nugget in here concerns the horizon scanning work – back in Michael Barber’s day this was a “panel” that gazed into the Office for Students branded crystal ball and reported back to the board. Though this “experiment” was disbanded after two years as ”not conducive to the task” (we wonder if they saw that coming) it apparently “proved the use case” for horizon scanning at OfS and it is something that will return.

Managing conflicts of interest

It would be far too easy to start this paragraph with another James Wharton example, but let us not bring that particular Conservative peer into what is a policy document aimed at OfS staff who may be unsure when and how to declare and manage conflicts of interests. It’s important stuff:

If conflicts of interest are not declared and properly managed, there is a credible risk that any decisions tainted by the conflict of interest could be successfully challenged before the courts on public law or common law fairness grounds, or complaints against the OfS are upheld by the Parliamentary and Health Services Ombudsman. This could therefore lead to OfS decisions being overturned (and therefore needing to be retaken), the OfS having to pay legal costs or compensation, and damage to the public trust in the OfS.

Clearly OfS don’t want to risk the wrath of the Parliamentary and Health Services Ombudsman, so staff are urged to follow this policy so the Parliamentary and Health Services Ombudsman (0345 015 4033) doesn’t get involved.

Subcontractual relationships between partners

A very timely and important item, that is exempt from publication due to commercial sensitivities. This was a test case for getting the board to do “strategic” stuff, as per paper 4.1.

Financial sustainability of registered providers

The board saw a presentation on what became the report published on 18 May 2023.

Report from the Provider Risk Committee

Annex A: After action review of the first monetary penalty

All exempt from publication. Fascinatingly, DfE’s Anne Spinali – along with all the OfS board members who work at providers – left the meeting before this item (concerning, in part, the £1,000 fine levied on the University of Buckingham) was discussed.

35th meeting of the OfS board, 4 July 2023

July brought the summer recess, complaints about delays to the publication of the National Student survey, and ministerial frustration about the marking and assessment boycott. The OfS Board, meanwhile, had another meeting.

Approval of minutes from 25 May 2023 board meeting

Remember Anne Spinali, who was new to looking after the OfS last time. She’s moving on in June – the new person is Patrick Curry, who is new to DfE having previously been at DCMS.

The chair had been chatting with Baroness Barran and Robert Halfon – but he was shortly off to see the Matrix College of Counselling and Psychotherapy, and the Norwich University of the Arts as part of the latest “refreshed” approach to provider engagement.

The board clearly wants to do more strategic and longer term thinking on longer term structural risks to the sector – and this will become a part of the “oversee performance” responsibility. It also noted that when members join the board or its committees they should have their attention drawn to the stuff in the appointment letter about declaring and managing conflicts of interest.

The board is also keen to discuss sub-contractual relationships between providers at a future board meeting – noting that not every instance of such relationships advanced student interests, that managing a relationship like this needs “particular capabilities”, and that OfS needs to regulate in a way that addresses the interests of students in this situation. All very welcome.

Another senior member of the OfS executive bids farewell to the regulator – the board offered thanks to Conor Ryan as Director of External Relations. And that restricted paper last time is apparently interesting enough for a further discussion at the 4 July meeting.

Chief executive’s report

We can pretty much summarise this one as “ongoing”. Work was continuing to finalise assessment reports for its business and management and computing investigations, work was continuing to progress its B3 assessments, and six further cases were being progressed – all of which sounds pretty leisurely when compared with the government’s rhetoric about “crackdowns” that appeared just weeks later.

There’s a fairly detailed summary of its data on Prevent – which takes care to remind readers that might have been upset not to find a bunch of “no platforming” going on that although most events and speakers went ahead as planned, “the data does not capture decisions not to invite speakers in the first place or voluntary withdrawal of requests for approval.” Its seemingly endless Sussex (Stock) investigation was still marked as “advanced” (drink).

Mental health, financial sustainability and provider engagement all got an “ongoing” too – and on the partnership with National Trading Standards (NTS), Lapworth noted that OfS had referred a further provider to it over concerns that its contract with students included terms which “required clarification” and further detail. One provider already referred had agreed to amend its terms and conditions, and was discussing with trading standards how those changes might be communicated to different cohorts of students. Some kind of lessons learned communique is to follow.

Students might have imagined that given the previous referrals featured concerns about providers attempting to limit their liability by defining industrial action as uncontrollable and unpredictable, that the next section on industrial action might make the link. Alas, we’re merely reminded that OfS recognised the significant disruption this kind of action can have on students, and had written a letter to providers about it.

There was also an update on pilot visits to providers, and the hike in registration fees, which OfS reckons will generate over £5m in additional income in 2023-24 to allow it to deliver its new freedom of speech functions and its work on quality and standards.

Annex B: the OfS media and communications overview, is restricted as usual.

Restricted paper – legally privileged

A paper so secret we can’t even know the title, much less the content.

Review of strategic risks

Revised strategic risks and Annex A

Annex C: Risk update

Annex D: Current strategic risks and principal corporate risks – detailed update

All exempt from publication as usual.

OfS people update 2023

Annex A – Organisational charts

It’s exempt from publication.

Refreshed approach to student engagement

Sounds fascinating and timely, but exempt from publication as policy in development.

Artificial intelligence and the regulation of higher education

This one’s marked “understand context” – although it’s hard to believe that the Board really did understand the context and potential implications off the back of a fairly thin 1,300 words.

Having invited readers to reflect on evidence of significant productivity improvements in mid-level professional writing tasks, significant developments in image generation using artificial intelligence and the government’s white paper setting out a “pro-innovation” approach to AI, the discussion of risks and opportunities first pivots to the “ongoing debate” about the “existential threat that artificial intelligence may pose to humanity”, which even for OfS is a pretty ambitious grab.

But on the assumption that the “existential risks are mitigated”, readers were invited to conceptualise further risks and opportunities into four categories:

• “Artificial intelligence and regulatory theory” is discussed as the rate of change in the technology becoming faster than the rate at which regulation can be introduced and applied to that new technology.
• “Artificial intelligence and regulatory practice” notes that attempts to regulate artificial intelligence could bring forward the point at which regulation becomes ineffective, or weaken already struggling systems. Amusingly, here a highlighted worry is that to the extent that regulators use paper-based compliance as a proxy for substantive compliance, the use of artificial intelligence will reduce that proxy’s value to nil over time. See also… written assessments and students.
• “Artificial intelligence changing the world around education” discusses economic growth, the potential to significantly alter labour markets, changes to the nature of work, and a sci-fi-esque discussion that includes a line from a film trailer to be read out in a deep voice:

Risk based regulation is predicated on a dynamic system – a repeating game where regulatees learn from and anticipate future actions from other agents. Assumptions and collapse this into a finite stage or one shot game. The optimal regulatory approach in this environment may differ from that in the dynamic systems we typically operate within.

Eventually, the paper gets onto artificial intelligence within higher education – which it says is mainly about concerns over academic misconduct. “There are reports of students using these tools to cheat”, notes the paper, “and a recent study suggests detection tools are ineffective and are biased against non-native English writers.” This was the July board, you’ll note.

We might have expected some detailed reflections on, or urgent proposals on the regulatory framework given there’s whole sections on the teaching and learning that leads to assessment, and assessment itself – but instead the paper both-sides the opportunities and threats, and then rather hopefully says that:

…while the rate of change in artificial intelligence is rapid and difficult to predict… we believe our current regulatory approach will remain appropriate for at least the next 18 months as technologies continue to improve.

Maybe Sussex will be done by then.

Report from the Quality Assessment Committee

First up here the Director of Quality updated the committee on preparations for the second cycle of B3 “boots on the ground” assessments – where data was presented to

inform discussion about prioritisation

which continues to be an opaque bone of contention around the sector. Naturally the discussion is redacted here.

We also learn that the committee was presented with information about how OfS operates the application process getting degree awarding powers (DAPs) – which generated some concern around staff and committee workload.

There was also some chat around the committee’s new role in providing advice to OfS about the DAPs now that there’s no separate DQB, and a noting of progress on implementing OfS’ fee regime over quality assessments.

Interestingly, members asked whether the level of fees to be charged would be comparable with the fees previously charged by the QAA. The Director of Quality explained that while OfS aimed to keep costs broadly comparable, it had also had committed to paying academic assessors more for their work than the QAA had done “in order to attract high quality assessors”, which appears to suggest that the Director of Quality though the last lot weren’t up to sniff.

Report from the Risk and Audit Committee

There’s lots of “exempt from publication” material in here, but we do learn that while the overall picture on data futures is “more positive than in the past”, the committee will continue to receive an update at future meetings and advise the board accordingly.

Later the Head of Internal Audit assured everyone that a positive formal opinion had been given again this year, there was additional assurance on value for money, and the committee was suitably assured the accountable individual (director of resources and finance) for counter fraud in OfS had discharged their responsibilities in respect of the government functional standards for counter fraud. Phew.

11 Report from the Remuneration and Nominations Committee

Oh, it’s exempt from publication of course.

12 Restricted paper

Another super secret exemption. We may well wonder.