Regulation can be a blockage to making education better

Back in 2015 when the Competition and Markets Authority published guidance on the application of consumer protection law to higher education, some universities over-reacted a little.

In many providers swathes of bureaucracy were introduced to make even a minor change to a programme – preventing universities from responding positively and swiftly to student feedback or course level student representation.

The role that external regulation that plays in both strengthening and weakening student representation ought to interest us.

In an ideal world it would enable students and their representatives to refer to the rules to secure positive changes to their experience, given the way it tends to set out (or at least imply) important rights on their side of the educational partnership.

But there’s a danger that that sort of external regulation can also act as a barrier to change – as fearful (or egotistical) university managers gatekeep the interpretation of and risk assessment in relation to the external rules.

And those dangers, like so many other issues in higher education, were exacerbated during the pandemic.

Powerful and effective student reps don’t just give feedback on an issue presented to them – they identify issues to be tackled, analyse problems facing students and take part in the development of solutions to those problems. It’s what makes student representation – rather than just surveys and focus groups – so important.

In my chapter in Advancing Student Engagement in Higher Education – a terrific new collection of critical pieces on the key challenges and debates in student engagement in higher education edited by Tom Lowe – I draw on my notes from endless Zoom calls with SU officers (and the staff that support them) to identify how student representation worked during the pandemic.

Issue identification, problem analysis and solution development all imply close working, trust and partnership. But did the presence of and interventions of the Office for Students in England assist in helping student leaders to influence how universities responded, or get in the way?

Plenty of detriment

The idea that students are able to ask their higher education provider to take into account unexpected events or issues that are beyond their control when considering their performance in assessment is well established. It is also accepted that such policies and associated mitigations should give students a fair opportunity to show that they can reach standards, not lower them.

Generally such arrangements are designed for individual students with individual sets of circumstances. But when, in the early days of Covid-19, students began to collectively advocate for mitigation on an “almost industrial scale” to ensure that students did not experience academic detriment from those circumstances, the principle came under real stress.

One barrier was related to the diversity of provision in a provider insofar as it represented an undocumented diversity of purposes of or approaches to assessment, differences in the acceptance of concepts like “exit velocity” and/or a diversity of external requirements imposed by professional, statutory and regulatory bodies.

But at least at first, the bigger barrier to getting “no detriment” or “safety net” policies agreed appeared to be perceived regulatory risk – with some senior figures privately accepting the principle of mass mitigations early on, but expressing concern at the way those mitigations may be viewed particularly in the event of grade inflation:

They said that the risk of grade inflation was potentially too high, and implied that the reason was that OfS was already ‘breathing down their neck’, although that was the first we’d heard of it.

Oh they were like, if we offer more support to some students that’s one thing, but even if it gave students confidence changing the degree algorithm would be a step too far in OfS’ eyes.

Arguably, the failure of the regulator to set out how it would approach its judgements on grade inflation in the context of the need for mass mitigations was only overcome when a “pack mentality” gave individual providers enough cover and bravery to do what was clearly the right thing.

What they said was that they’d rather we didn’t update students on what we were discussing in case OfS found out, which did make it harder to keep the conversation going with students who were getting more and more impatient.

Blender Jackson

Later, as it became clear that there would likely need to be restrictions on the use of space on campus in the new academic year, discussion between SU and universities turned to the nature of provision that would be available to students in the Autumn – partly resulting from pressure from OfS to give “absolute clarity” to students about what was being offered in order that they comply with consumer protection law.

Here competing pressures to not vary too far from that which had promised, not put off students where the perception was there could be significant deferrals, and not overpromise in case of a further lockdown meant that discussion was hampered by the relative confidence that the university had over its recruitment and/or financial position. The view of students became a minor consideration in that balance.

By early 2021, both the “real world” implications of “in principle” decisions taken in the summer of 2020, coupled with the dawning reality of the impact of ever-changing restrictions (both in 2020 and those anticipated in 2021), led to discussions surrounding “practical loss” – where the approach to components of programmes not easily delivered online was under intense scrutiny.

OfS required all providers in England to assess their delivery against promises made from a consumer protection law perspective and notify it of any issues.

But fear about non-compliance either with consumer protection law or OfS’ regulatory interpretation of it hampered the ability of reps to engage in open discussion with universities about solving these problems caused by Covid-19 restrictions – because fixing students being let down would have involved admitting they’d been let down:

We asked about it but we were told that lawyers were doing it and it wasn’t for students to feed in on. But most of the casework we were getting was about students saying their placement was off or their labs had been postponed. It made no sense – how can you judge whether promises were kept without student feedback? We were told to feed cases in but they were always like individual issues, not for discussion.

And the extent to which the provider and its management appeared concerned that binding promises had been made about the nature of delivery also proved to be a barrier:

We were told that it was the learning outcomes that mattered and that as long as the way someone met them was robust then that would be it. But students were saying to us they were worried about not having any actual hands on experience to talk to people at job interviews.

In many cases, addressing concerns appeared to pose a risk for a provider that might have to admit there were concerns in the first place.

They kept coming back to – what did we actually promise, and if it wasn’t written down anywhere then basically the attitude was, well pandemic.

Whose power?

In the chapter I set out a number of recommendations for SUs, universities and regulators on ensuring that regulation is a help, not a hindrance, to responding positively to students.

At least in part, much of the problem relates to OfS’ continued failure to explain how it will interpret often opaque regulatory statements in practice. At the time of writing, for example, only its blended learning review has explained how it will apply its B Conditions in practice to real life situations and issues.

Commentary surrounding student number controls for “low value” courses and the relationship of that agenda to OfS’ general regulation of B conditions tends to be unaware of the contextual judgements that OfS has promised to apply before implementing restrictions – despite those being signalled over three years ago. That’s reasonable – given we still haven’t seen any results from its fabled “boots on the ground” investigations.

And as long as the application of consumer protection law remains as unclear as it does, student reps’ efforts at getting redress for their students will come down not to their papers or presentations, but a legalistic risk assessment delivered by a gatekeeping senior manager who “owns” the interpretation of the vagaries on offer.

Even if those blockages to delivering the student interest are imposed in good faith, the danger is that students interpret them either as a senior management over-egging the interpretation and then conveniently blaming OfS, or they read it as an Office for “Students” acting in direct opposition to their interests.

And no, this isn’t about abolishing regulation or asking OfS to get out of the way. It must be possible and ought to be an objective to find ways to cause regulation to enable positive and assertive discussions between Goliath providers and David students.

As such, understanding how regulation “lands” in universities, and enabling students to use it to have assertive and positive conversations about changes in their providers should be a top priority in any future OfS student engagement strategy.

That isn’t about communicating it better – although that would help. It’s about taking careful steps to understand how OfS’ interventions, edits and rules are understood, handled and communicated inside universities – so they work.

Doing so, for example, would have helped turn the TEF student submission into a painful piece of peacocking for the university in some cases, and into a genuinely helpful (and honest) lever for positive change instead.

In other words, OfS will only get its own student engagement right if it takes steps to understand how that engagement works (or doesn’t) inside the providers it regulates.