The last thing that students need is less regulation

A deep and fundamental conflict over the role of regulation in England’s higher education sector has resurfaced in the wake of the Lords Industry and Regulators Committee (IRC) inquiry into the Office for Students (OfS).

In its submission to the committee, Independent Higher Education (IHE) described OfS’ expansion of responsibilities since launch as “mission creep”. Universities UK’s CEO Vivienne Stern used her evidence session to argue that OfS has “accreted new responsibilities” due to a “tendency to treat the OfS as a bit like a Christmas tree”.

St Mary’s VC and Guild HE Chair Anthony McClaran looked back fondly to his days of streamlining OfS’ counterpart in Australia just a year into operation, due to “enormous concern” about “excessive complexity, regulatory burden” and a failure to “communicate adequately or consistently”.

And Blair-era Secretary of State Charles Clarke cited “unexplained grade inflation, harassment and sexual misconduct, mental health and wellbeing, freedom of speech and increasing the diversity of provision” as areas of expansion – arguing that “some of these areas are covered by the law” and so “should be dealt with by the law of the land”.

The committee bought it. Bemoaning that OfS has now become involved in the “micro-management” of issues, it argued that these matters would be better dealt with by “effective review of provider governance” and “disseminating best practice” rather than “prescriptive regulatory requirements and time-consuming processes”.

Arguing that universities are over-regulated has become cool. Earlier this year former shadow universities minister Emma Hardy used a Westminster Hall debate on the regulator to express concern that it had expanded its responsibilities to include priorities like “modular provision, transnational education, partnership and franchise provision and non-OfS-funded provision such as additional teacher training and degree apprenticeships.”

And hinting at future reform plans without any money to spend, her successor Labour shadow Matt Western used HEPI’s annual conference in June to argue that regulation has become “overly burdensome” and an “absolute horror for administrators.”

The argument is always either that the expansion is unnecessary because universities are already making great progress in area X or Y, or even in some cases that the regulation actively gets in the way of providers doing the right thing in these areas.

And hence calls to be left alone – to have the freedom to not have to do as OfS says and to not have to tell it that it is doing so – promote that idea that the growing burden is unnecessary and is one that fails to reflect students’ priorities or needs.

The problem is that the available evidence almost always points in the opposite direction.

Stuck in the middle with you

I was at a students’ union the other day, which like many I’ve met over the summer was struggling to understand why the strong partnership it has built with its university isn’t generating the student experience gains that it used to.

Like so many universities, its university is basically attempting to do everything it was doing six years ago, in the same way. There’s the same committees, the same departments, the same processes, the same assumptions, and the same vibe. But all with a very different student body, and dramatically less money to do it with.

Some of that is about not being able to lower expectations in a competitive “market” where you can never say things are going to get worse. Some of it is the sector’s penchant for copying as the dominant mode of development. Some of it, I suspect, is hoping that one day soon the money will return. But in a permacrisis, unless you stop doing some big things and take action to make the little things less complex and less stressful, all you do is make each year that little bit further away from ideal.

And people really feel it. Students feel it, and experience it as personal failure. Staff feel it as the pressure piles on. Managers feel it, not knowing which levers to press or buttons to push. So everyone muddles on in a more and more stretched and unhappy way.

OfS CEO Susan Lapworth is right to argue, for example, that while the sector would like to be left alone on “mental health, harassment and sexual misconduct and students’ consumer rights”, they are the things that students are most likely to say matter most – and that on many of these issues, it’s the lack of sufficient or timely progress that generates a “compelling case” for “sharper, more detailed regulation.”

The regulator she runs, she says, has to “find a sensible route through the middle”.

The problem is that if I look at the list above, they are all areas the sector can’t ignore. Grade inflation does deserve a more credible explanation. There are deep and pressing issues surrounding harassment and sexual misconduct amongst and between students and staff. Students’ mental health and wellbeing seems to be worsening.

Transnational education feels like a wild west, partnership and franchise provision is being sold on TikTok, and just because additional teacher training and degree apprenticeships aren’t OfS-funded doesn’t mean students’ interests can be ignored. Even the freedom of speech thing is a problem, even if it doesn’t have the characteristics that some suggest it does.

So I can see both sides of this argument. OfS certainly seems to have been dancing faster to the tunes of ministers (which in and of themselves reflect the priorities of the Telegraph and the Times) than it does of the student leaders I spend time with each week.

And I can see why providers of all sizes and shapes might yearn for a cosier past, where the producer-interest style of a funding council’s regional oppo pops in to agree that everyone’s doing their best in challenging circumstances – and should be freed up to do more of it.

But anyone suggesting that benign providers would be better at upholding students’ rights to get what they were promised if left alone when the unit of resource is in freefall, or that they will somehow default to considering students’ interests when their reputation is at stake in a complex harassment case, is ignoring a much bigger problem.

Because as long as everyone in England plays along with the idea that 424 autonomous providers of higher education can be exclusively and solely responsible for everything to do with undergraduate and postgraduate students’ lives is as long as we’ll need a regulator to ensure that they uphold the responsibilities that are subconsciously allocated to them.

As such, the debate over the role of regulation in higher education masks a much bigger one. And while I usually hope to avoid being that person in the audience that puts their hand up to argue that before we address the issue at hand we need to decide what universities are for, we do need to recognise that the sprawling set of expectations that we have over universities as big [boarding] schools is a big part of the problem.

It won’t all fit

If we think of the Office for Students as a kind of funnel into which ministers, parents, the press and students pour in expectations that students will be looked after, it’s bad enough that it is both necessarily narrow given its legislative remit and resourcing, and will suffer from suspicion over anything it does given its Chair takes the Conservative whip.

But if something more fundamental fails to change, the reason that it will continue to accrete responsibilities is that the providers it regulates accretes them too.

It’s absolutely the case that spreading responsibilities amongst too many people can lead to nobody being accountable for failure. But it’s also true that concentrating too many responsibilities onto the board of OfS, or by association the governors of a higher provider, represents a real risk too – a potential single point of failure with a profound democratic deficit that can always argue that something that’s gone wrong can’t possibly be its fault because it has so many other things to do.

Take student accommodation, for example. This isn’t the first time I’ve used this site to argue that students being recruited to study away from home deserve the right to somewhere to live that they can afford, that is of a reasonable (and in any case minimum) standard, and is of a reasonable distance from campus. But who can fix it?

Universities facing local accommodation shortages practise learned helplessness over the issue, throwing their arms in the air over how popular their locale has become. And in England the Department for Education joins in too – trotting out the same line that stresses that the department “plays no direct role in the provision of student residential accommodation, whether the accommodation is managed by universities or private sector organisations” over and over again.

On one level, it’s a fair point. Expecting universities to be responsible for a wider housing crisis is some ask. Giving universities the task of fixing a youth mental health crisis feels unfair. Higher education providers just don’t have the dollar to alleviate the impacts of a biting inflation crisis alone. Despite John Blake’s assertions, it can’t be for higher education to fix the unfair distribution of grades in a part of the education system that it doesn’t control. And HEPI’s Rose Stephensen sounds logical to some when she argues that:

If universities were being expected to investigate murder, everyone would accept that was completely ridiculous, but now they are regularly expected to investigate serious cases that equate to rape.

Higher education is expected to do all of this – as well as all the other little things that everyone asserts that higher education has to do – on the thinnest of resource. The idea that universities can even get close to meeting the expectations that everyone has of it on £9,250 a go is wild. That the state invests so little in students each is an outrage. That much of that then has to be “paid back” on top of tax to a state which routinely abdicates its responsibilities to over 2 million student citizens by dumping everything on the sector to do is even worse.

It ends in a never ending cycle of disappointment – a culture where nobody and no body can ever succeed – a sector and its regulator feted to spend its days pretending it can through consultation exercises that however comprehensive, will always disappoint the students whose issues are not prioritised for action.

Imagine if OfS takes up the Lords’ recommendation that it should conduct detailed scoping work on how it defines “the student interest” and how this informs its work. Even if that work is “informed by engagement” with students, and even if its results are “published in a transparent manner”, there’s just too many students and too many issues for the result to be anything other than a profound disappointment. Ditto if providers were made to do it. Ditto when we imagine that a set of students’ union officers with a skeleton staff are somehow expected to do it too.

More means worse after all

One solution might be to dream that one day, the sector will be resourced to do all of the things that we want it to do.

But even if that day came – and it doesn’t feel like it’s coming any day soon – that would leave the fate of a huge section of our population in the hands of university governing bodies and HE regulators. With the greatest of respect, I’m just not convinced that VCs make great landlords, civic planners, health service managers or welfare state strategists. Even being great at leading institutions that do teaching, research and a bit of knowledge exchange is a challenge.

Another might be to dream of the days when higher education was less “marketised”. But too many of the critiques of the way the sector is run are barely concealed pleas for teaching fewer students who are less diverse and present fewer challenges. And too few of the critiques address who will do or worry about X or Y if the sector and its academics were just left alone to do the old A or B for the student body of 1973.

As well as a creaking state with a confused devolution settlement and a media obsessed with nostalgia, the particular problem I think is a combination of functional diversity and student diversity.

You can argue that doing all sorts of different things for a small, residential and fundamentally similar group of people makes sense. You can also argue that doing a couple of things for a large and increasingly diverse group of people makes sense too. But doing both – funnelled through the financing of tuition fees and the governance of higher education providers and their (and their staff’s) penchant for autonomy – is by design and by definition doomed to be a complete disaster.

As so as such, finding a way forward involves something much more dramatic than Susan Lapworth’s “sensible route through the middle”, which sounds a lot like muddling through to me. In fact, I think we really need three big things to happen.

First, the sector needs to start saying “no” every time someone suggests that it fixes something that isn’t about its core role. Then it needs to demand that the rest of the state stops treating students like someone else’s problem.

But crucially, the sector also needs to play its part in the creation of new structures – that better organise the interests of students where those interests are distinct yet separate from the student academic experience.

It’s bigger than us

On that first one, it’s tempting when the “sun is shining” to take a cheque – it’s always nice to be asked to do something, and it makes sense if you’re just back from a trip to the US where there’s campus wellness centres or your own campus police force. But in a hybrid public-private system, either the money never lasts, or where it does the number of students it’s expected to stretch to grows and grows.

Imagine if – more of a thought exercise than anything else – tuition fee income was only allowed to be spent by universities on teaching, the research underpinning it, academic support and a basic estate to deliver it from. That would still be quite a stretch in an age of complex and diverse student needs and an Artificial Intelligence agenda that appears to be tearing up all of our assumptions about assessment and academic skills – but at least it would mean a bit of focus.

Where competition to deliver more on the £9,000 fee once might have meant innovation and creativity, it now means competing to tell the biggest porky pies about what someone might get for almost nothing without being taken to court. It has to stop.

This will be hard, and will run counter to almost every instinct that many around the sector (including me) hold. No, universities shouldn’t be running counselling. No, there’s almost nothing that universities can do over spiking in city centre nightclubs. No, universities won’t ensure that students are warned about gambling harms, they won’t ensure that students aren’t drawn into extremism, they won’t wean incel boys off hardcore pornography and they won’t provide somewhere to have a nap between lectures either. But someone has to.

Saying no will run counter to the public sector and the press’ instincts too. Every time a question comes in about student housing, officials in Parliament ask DfE for an answer. Every time students are identified as taking drugs or needing healthcare, VCs are taken to task. We almost need a dedicated unit, relentlessly asking why everyone except the sector gets to hide under some coats until the latest “student” problem goes away.

There are so many examples of this that I’ve stopped counting. Why do disabled people deserve less support just because they’re in full-time education? Why do people who are parents have to compete with other students’ educational interests for childcare funding just because they’re studying? Imagine working in the Business, Energy & Industrial Strategy department last year and being asked to work up separate strategies over energy costs support for care home residents, people in park homes, those in house boats at residential moorings, travellers on authorised fixed sites, and energy consumers who live off the grid – while being told you can ignore students. And so on.

Put simply, the rest of civil society and our decaying state has to step up to the plate. The DWP can’t keep palming off students on DfE and its devolved counterparts when it thinks about our worst-off citizens. The Department for Transport has to have a strategy that thinks about how students will get to the buildings we educate them in. The Foreign Office and the Home Office asking universities and OfS to handle all sorts of issues relating to foreign powers is just daft. Local authorities would do well to be required to not consider students as tourists they can ignore. DCMS needs to stop students being cyberbullied, and the Cabinet Office needs to get them on the electoral register. And the DoH and its NHS really does need a dedicated student health strategy.

There’s a never ending set of devolution complexities here that I’m not ignoring, just parking. The point is that when Parliament devolved “education” to the nations, I just don’t think it ever intended that the chances of a student being able to afford to heat their house were to be determined by a beleaguered VC or even a devolved HE minister.

DULHC needs to take a passing interest in where a big chunk of people are living and the way in which landlords might exploit them. And like all the others, it needs to change the way it sees universities too. Even if Michael Gove’s renters reform Bill hadn’t been put on ice, its draft documents were set to exempt university-run halls from an external ombudsperson because of erroneous assumptions that universities are great and benign landlords. Why?

The same is true for the arm’s length bodies, of course. Much of what we might ask universities to do in their consumer protection, governance or safeguarding roles is accompanied by unforgivable silence or indifference from the Competition and Markets Authority, the Charity Commission or the Health and Safety Executive.

In fact when you have this many people undertaking full-time education, I can barely think of a government department or arm’s length body that shouldn’t have a dedicated strand of its strategy that delivers for this group of citizens. Should they all work closely with students, higher education providers and the relevant nation’s education department? Of course. Should they assume that those things have that bit of their stretched remit covered? Absolutely not.

And yes, much of this is about the way public policy has come to ignore the “young” in general. But we won’t fix that by allocating more and more responsibility to the 50 per cent that end up in HE.

I should say, by the way, that I don’t think that means that universities should no longer worry about harassment, or mental health or even cost of living. But I do think it should enable them to worry in a more focussed way – considering the way in which their rules of conduct, curriculum or course timetables make those problems better or worse.

Of course, even while I was typing the above paragraphs, I was overcome with a wave of better the devil you know, and vivid images of how much worse things might be if students’ interests were being handled by a complex patchwork of state actors that do need to get things off their desk to deliver for their myriad “stakeholders”. And that’s why I don’t think this is “just” a choice between the state and the sector.

Closer alignment and looser responsibilities

I talk a lot about what I’ve seen in Europe because so much of what I’ve seen does something else. The Finnish Student Health Service – albeit in a system of health insurance rather than the mega monolith of the NHS – is genuinely impressive. That Swedish universities are not even allowed to own buildings doesn’t rob them of academic excellence.

When Belgian student services are operated through distinct governance and funding routes from that of the education and research, they look and sound more responsive. When more of what we might think is for professional services to do is done by city-based student associations in the Netherlands, I see a society more focussed on co-operation and citizens.

And when I think of Norway’s cooperatively owned regional student welfare organisations (and associated regionally run student welfare representative organisations) – covering housing, mental health, careers support and even the renting of mobile sauna units to students – maybe I’m missing how high the tax burden is, or not noticing how helpful it is that such things are linked closely to academic mission here.

But I also think I’m noticing that not everything to do with students is decided by or planned by the latest universities minister or the local head of provider, who everyone else thinks can do everything with a budget that’s plainly insufficient.

I’d even take some of this on a stage. I think the OIA in England and Wales works because it’s neither the government nor OfS nor providers themselves. For a student in a small arts-based provider considering making a complaint about a predatory lecturer, choosing between the police or a provider-level complaint is a Hobson’s choice. Being able to approach some kind of alternative body with a role in resolving their issues that isn’t tied to the reputation (legal advice or insurance) of the provider would help. See also provider and region-level independent ombudspeople, and a new professional standards body for staff.

It’s hard to believe it now, but some day soon the UK will need to embark on a new debate about how it organises itself. When that happens, the old playbooks for higher education – of talking up the value of the outcomes while slipping across the table a note on the growing costs of the outputs – couldn’t be further from what’s really needed.

There are over 2 million students in this country. They don’t need “less regulation”. What they do need is for more people than their SU President, their VC, their universities minister and their national regulator to be charged with worrying about them.