Fees for OfS investigations

Imagine, if you will, that some confluence of “boots on the ground” and “rip off courses” has landed you with some full-on regulatory discipline. Say a fine, a specific condition of registration, or the dreaded recruitment cap.

Hopefully you’ll get a full report – so you know what you’ve done wrong – and a clear process and set of conditions for getting back into the OfS’ good books.

You’ll also get a bill for the work OfS has done in making the decision.

House always wins

Following the publication of The Higher Education (Investigation Fees) (England) Regulations 2022 back in November of last year the Office for Students consulted on the payment of fees for investigations in March 2023. This week saw the publication of an analysis of responses and the final guidance for payment of investigation fees. Those of us who are used to OfS consultations will be unsurprised to learn that the changes to what  have been minimal – such behaviour likely explains why only 30 people bothered making a response.

The changes are eminently sensible – OfS will take account of the financial state of the provider in calculating a fee level, which would otherwise be based on the total cost of employment for the staff involved. The variable figure is the time that OfS spent on you – in terms of deciding to investigate, warning you, turning up and investigating, writing up findings, and making any decisions.

So it is likely that the £1,000 fine for Raindance (which took account of the financial situation of the provider) would have seen a fee calculation that made the same allowances.

In a further act of regulatory tidiness these rules will also apply to Section 73 (the cost of applying whatever sanction it deems appropriate in terms of suspension, removal of registration, or levying a fine) and Section 71 (anything else OfS can convince the Secretary of State to make regulations for).

Responsive

There’s probably not much to be gained from analysing 30 consultation responses, but it is not difficult to read the room here. Core OfS activity (which, one could reasonably argue, may include regulating) is already covered by the sector via mandatory subscription fees. Those who responded felt that OfS had work to do in making the case that everything that was chargeable via investigation fees is something that would not have happened anyway.

The regulatory response?:

Staff will be asked to record exact time spent on investigatory work in order to maintain an accurate record. We will carefully consider the reasonableness of the time taken in each part of an investigation, for example we would consider excluding time spent on making substantial amendments to work following quality assurance processes. If we intend to recover costs, we will tell a provider the costs at the end of an investigation. The provider will have an opportunity to make representations if it thinks the costs were not reasonably incurred.

This exactitude means that OfS would not be able to offer an estimate of costs for your investigation in advance.

All of this is to be reviewed in 18-24 months, after we’ve seen the process in action.