Outcomes based regulation doesn’t work in a pandemic. Or a select committee.

“None of us know what’s going to be happening in the Autumn”, said OfS CEO Nicola Dandridge to the Commons Education Committee, who nevertheless added – in the same breath – that “we are requiring that universities are as clear as they can be to students so that students when they accept an offer from a university know in broad terms what they’ll be getting”.

She continued:

The important thing here is absolute clarity to students so they know what they’re getting in advance of accepting offers.”

Best of luck, everyone, with squaring that circle in university marketing departments.

Dandridge says “we’re about to publish guidance on all those issues”, which will doubtless come as a relief when it emerges at the end of the month. You know, once loads of students have already accepted their offers.

The Commons Education Committee has inevitably been focused on schools in its evidence sessions so far, but on Monday morning turned its attention to universities and students. Part one saw Zamzam Ibrahim (NUS), Jo Grady (UCU) and Debra Humphris (University Alliance) all turning in decent (if predictable) versions of their respective positions. Then we got to the main event – OfS Chair Michael Barber and CEO Nicola Dandridge delivering a rare double act.

Here we’ve picked out some of our favourite bits from the appearance so you don’t have to.

1. My number one

Prioritisation is a tough business in the virtual Nicholson House. “Access and participation has been the single top priority for the board of the office from its inception”, said Barber, and “will continue to be so”.

But did his CEO agree? “It’s actually critical …that we’re not in a situation where students find at the university college they were planning to go to is in real financial difficulties. So this is the number one priority for us”, said Dandridge. Let’s just assume both are important.

2. Financials

The good news is that right now OfS is “not identifying any university or college at immediate risk of collapse”. Even so:

We are monitoring some universities and colleges on that on a weekly basis, if not more frequently – because it’s actually critical in all of this, that we’re not in a situation where students find at the university or college they were planning to go to is in real financial difficulties.”

Recognising some of the risks, Apsana Begum (MP for Poplar and Limehouse) asked if Barber or Dandridge could explain the work OfS was doing with providers to ensure that student protection plans (SPPs) are “sufficiently detailed and robust” to address the new financial challenges that may face higher education providers. What work were they doing, if anything, on that?

Neither Barber nor Dandridge answered the question on student protection plans, but did talk about “working with [providers] behind the scenes” to help solve financial problems, working with the “ministerial working group”, and working on a “case by case basis”. It was all very HEFCE – with Barber even referring to “what we call trust based regulation” – although you got the overriding sense in the absence of clarity on SPPs or any reporting on university finances, that this mainly means we are supposed to just “trust” OfS (not least because the phrase “trust-based regulation” doesn’t appear to exist anywhere on the OfS website).

3. Please give generously

There’s an amusing moment where Ian Mearns (MP for Gateshead) clocks that the current consultation on a new, temporary condition of registration on “sector stability” might “signal a move away from competition in higher education? Even on a temporary basis?”.

Dandridge wasn’t having any of that:

Well, no, it’s not going to change [our] fundamental approach”.

Oh. So if it’s not about dampening down competition, what is it then? She went on:

It’s a way of regulating the sector to make sure that it works in the interests of students and the country.

Barber interjected:

I think of this temporary consultation or consultation or a temporary new power as the ‘generosity of spirit’ condition, where basically if universities think not just about their own interests, but about the sector more broadly, they won’t fall foul of it.

This is to encourage people to think about the sector as a whole, because our job, apart from the specifics we’ve been discussing, is a kind of stewardship function. We want to shepherd the university sector through this very difficult time and still be one of the great university sectors in the world.

It might be worth, remembering, I think, that the sector itself asked for this sort of regulatory intervention, so it wasn’t us just coming up with it”<

Maybe he’s right. Making sense of that set of answers does indeed require a “generosity of spirit”.

4. Did you threaten to overrule him?

It wasn’t quite Paxman/Howard, but committee Chair Robert Halfon had several goes at asking the same question – which was basically on whether OfS was checking on what providers are doing (or are “able to do”) during the lockdown for disadvantaged students.

Michael Barber had first go:

“Access and participation has been the single [what about financial stability?] top priority for the board of the office from its inception. We’ve talked about it on previous occasions, and we have an excellent person on Nicola’s management team, Chris Milward, who is the director of Fair Access and Participation.

“And we’ve revolutionized the way this is being thought about over the last two years. So each university has to put forward to us a five year program with goals and targets for the next five years to reduce the various – the black attainment gap, various access gaps, the one that you’ve just referred to in your question.

“And for the first time, universities have set very ambitious goals. We’ve looked at all those goals. We’ve totalled them up. We published that report in January. If those goals are met, the figure you’ve just mentioned would be massively reduced. The problem will be reduced and the benefits would be gained.

“Similarly, on the black achievement gap that would be halved over the five year period, if the universities are held to account for the goals they’ve submitted to us – and we’re now monitoring their progress against those goals.

“Of course, when that was done, we had no idea we were going to be in the middle of a Covid-19 crisis. And the way we’re thinking about that is we’re saying there’s no change, no let up on the goals, the goals for five years. We’re going to hold you to account for that.

“There can be flexibility in the short term as we go through this crisis about how you handle that, that we will be holding universities to account. To be fair, they’re saying to us they think this is an important agenda. So we’re on the case. We’re really hoping this will be a transformative opportunity to transform social mobility, social justice right across the university sector.

“And we’re supporting that through the kind of partnerships that you just mentioned, to best practice sharing, to our Centre for Transforming Access and Student Outcomes and through enhanced mental health services. We’ve also got particular programs for particular groups like care leavers, estranged students, disabled students.”

You get the distinct impression that Halfon wasn’t hugely impressed with that answer. He replied with:

My question was, what universities are realistically able to do during the lockdown to meet their outreach targets – and how you’re monitoring it”.

5. Did you threaten to overrule him?

Dandridge chimed in next with words on access funding. So Halfon tried again with a fresh tack:

You’ll have heard my questions in the session before about whether or not surveys are being done as to how many university students are accessing online education. Are you doing that now? Are you looking at the individual quality of online education provided by those universities and how they’re helping disadvantaged students?”

He got back assertions of “acute awareness”, a bizarre example of a bus company “taking wifi out to disadvantaged communities” and (drink, 2 fingers) “publishing examples of good practice”. He had another go:

But in a nutshell, are you actually looking at each individual university to see what they’re doing?”

Dandridge shot back with something that – in a nutshell – isn’t really true:

Yeah. Well, we’re monitoring each individual university.”

Oh really? Let’s try again, Halfon must have been muttering under his breath:

So how much work is being done to provide disadvantaged individuals with specific, tailored support under lockdown? And can you provide examples of this?”

6. Did you threaten to overrule him?

This time he was told by Michael Barber that universities are “really thinking hard” about all these challenges that he was raising and looking at “specific groups of students”. Halfon started to sound annoyed now, or at least as annoyed as Halfon ever does:

But what is holding to account? I mean, because what I’m not clear about from your answers is how you are literally holding the institutions to account in this regard, specifically in terms of disadvantaged students.

Barber fired back:

So as I mentioned, [there are] goals for five years out”.

Halfon had one last go:

But that’s the general, that is the general thing. I’m asking specifically about Covid.”

He got back stuff about “not relenting on the goal” but “understanding the pressures on universities”, “working with them”, “showing them what other universities are doing and doing well, helping them learn fast from each other”. Looking baffled and dejected, Halfon moved on.

What we really witnessed of course was a strange tussle between a man keen to know about the quality and accessibility of university emergency outputs, and a regulator that is still, apparently, wedded to regulating through historical outcomes. How are universities helping the worst off through the pandemic? Well Robert, we reckon they’re trying, no we can’t prove it, and we’ll let you know if what they’re doing was any good in 18 months time. With a dashboard.

7. Can I have a refund

It was bound to happen. Jonathan Gullis (Stoke-on-Trent North) asked the refunds question. Cleverly, he framed it by asking how OfS would “evaluate” student requests to have all or part of their tuition fees reimbursed for the disruptions this year.

Nicola Dandridge fielded this one, after briefly disappearing (the joys of zoom committees…)

Perhaps I can try to answer that very important question … so far as possible, all universities and colleges [should be] making every reasonable effort to ensure that students continue to learn and continue with their studies, are supported to receive good outcomes, and that the quality of that teaching is robust.

“Now, clearly, it’s different. It’s not face-to-face learning, it’s online learning. But we have made it very clear that we expect universities and colleges to make all reasonable efforts to secure as good quality provision as they can. Now, in addition, of course, students have got contractual rights and they’ve got rights under consumer protection regulation. And we’re about to publish guidance on all those issues. If students feel that they haven’t had the quality of teaching that they expected, then they do have rights to complain to the ombudsman – the Office of the Independent Adjudicator. And of course, they’ve got legal rights as well.”

Both Halfon and others tried follow ups – you know, for absolute clarity – but got little other than a testy exchange where Michael Barber (that’s the Chair of the Office for “Students”) reminding them that the taxpayer subsidises student loans. Unless, Michael, they don’t take one out. Or they are an international student. Or they pay off in full. Etc…

8. Picked in a jar

Nicola Dandridge’s response highlights the pickle OfS is in. She should know all too well that consumer law (and indeed in part OIA’s interpretation of it) is all about delivering what students were promised – not something else, even if that something else is of “good quality”. We know this because in her answer about September, we got:

The important thing here is absolute clarity to students so they know what they’re getting in advance of accepting offers.”

Later the Times says that OfS followed up her comments, saying that universities should ideally tell applicants what is on offer by June 18 – the UCAS deadline for accepting firm and insurance places – and “certainly before” A-level grades come out on August 13. It also said that if universities have to change what is on offer after new students have accepted a place, students should be allowed to “change their minds” and be released – and we were told guidance is coming by the end of the month.

It will therefore be fascinating to see whether this forthcoming OfS guidance changes expectations around the “material information” that students should get in light of the pandemic; whether it will include the stuff students are usually “sold” but take for granted that could be rationed in a socially distant autumn; what non-course aspects should be in there; how continuing students will be treated; and if anyone is going to try to prevent the coming accommodation problem.

What is this now? It’s all very well being able to change your mind on your course come mid-September. It’s not much help if your landlord is chasing you for rent that became due on July, August or September 1st.

9. You won’t get me I’m a part of a union

Maybe there are bodies around that could advocate for students and provide some intel to OfS in the event of an issue. That would help. Dandridge had an idea:

I mean, we haven’t seen mention of students’ unions [though Zamzam Ibrahim had put in a credible performance in the earlier session], but they’re playing a really important role in all of this. So if there are problems in real time delivery, then students or students’ unions will let us know. But we don’t have an inspection based regulatory system. That’s not how we work.”

We’ve seen this before – this idea OfS has (that was also reflected in its student engagement strategy) that SUs will grass their university up if something is wrong. Maybe that is OfS’ expectation, but it’s not immediately clear why it would be. OfS knows all too well that there isn’t an SU in the majority of the providers on its register, and repeatedly refuses to countenance requiring or supporting anything in the student advocacy space beyond a vague student engagement expectation.

And where there is an SU, OfS has never – as far as we know, either before or during the pandemic – written to SUs about its notifications scheme, made clear what it might be used for and on what basis, or offered assurances to SUs either about the confidentiality of the scheme or its attitude to universities – most of whom are currently threating SU grant cuts – taking a dim view of their SU using the scheme.

10. There’s been a pivot

When it comes to the autumn, let’s say that we accept that this is about the “quality” of teaching that students expected, and their associated right to complain to the ombudsman.

Noting that there’s a “very big difference” in just “bringing stuff online” and “having the interaction and the years of knowledge that the Open University has in terms of doing this”, the committee was keen to know about quality.

Nicola Dandridge explained:

I think what we’re likely to see this autumn is much greater and more sophisticated use of blended learning. So that’s face to face plus online. And I entirely agree that that cannot be just putting lectures online. It’s got to be more sophisticated than that. And I suspect that’s something we are going to be seeing much more of over the course of the next year.”

The committee reasonably asked – can you see a theme developing here? – will you be monitoring that? Dandridge responded with:

Yes, we’ll be monitoring the outcomes from that. And also we run the National Student Survey, which asks a whole range of questions, including on the quality of teaching and assessments and feedback.”

And what if the quality isn’t good enough? Michael Barber:

They should complain, as Nicola said, to the Office of the Independent Adjudicator, which is the correct place to take a complaint…”

(this was asserted three times, even though in the first instance, it isn’t – you should only contact the OIAHE after you’ve exhausted your institution’s complaints mechanism).

But hold on, sniffed one committee member. Surely you have some way of assuring students that what’s on offer in terms of this rapid September pivot will be any good?

I mean, we have seen quite a number of advertisements on TV etc from many universities now touting their wares in terms of online learning programs. What are you doing in particular to make sure that those online learning programs are quality assured? Because, you know, some of them will be coming from a relatively standing start compared to long term competitors.”

Dandridge replied:

Well, we will be regulating all courses, whether they’re delivered online or face to face. So that absolutely falls within our remit and we approach our regulation responsibilities in terms of outcomes.”

But hold on, said the committee:

It won’t be until students have already spent money and engaged in these courses that they find out they’re not. Maybe what the Office for Students should be involved in mystery shopping. In this respect, in order to try and find out, you know, if if these new courses being provided by universities are actually up to scratch.

Dandridge tried one last time to sell outcomes-based regulation:

If we find that students are starting online, don’t get the graduate outcomes and they’re not getting the jobs, then we will intervene because these are really important indicators which inform our regulators. And so we will see how this works out. But we’re not prejudging online is good or bad. I think we just need to assess it [in the future, once we have the data]

So there you go, kids. It’s important you get what you were promised and that universities don’t promise what they can’t deliver even though none of us know what’s going to be happening in the autumn and it was OK for you not to get what you were promised earlier this year as long as it was of comparable quality. We’ll judge that quality via outcomes measures that have an at least 18 month time lag in the middle of a recession. But sure, if you want to complain about the quality you absolutely should, although there’s no basis on which to do so, and you’ll have to submit a complaint now. To the OIA.