Higher Education: slimmed down regulatory requirements during the coronavirus pandemic

Earlier this year we wrote a piece for the Association of Heads of University Administration called 'The Limits of Regulation'. This looked at a) some of the the public law issues underpinning the jurisdiction of the Office for Students (OfS) and b) the scope of the 'reportable events' requirement established by the OfS. The Office for Students is the new regulator for English Higher Education Providers and was established under provisions in the Higher Education and Research Act 2017.

On 26 March 2020, the OfS announced that it would be refocusing its regulatory requirements in the light of the coronavirus pandemic. Its stated primary focus will be on providers reporting on:

    a)    issues of acute short-term financial risk

    b)    closure or suspension of courses without providing equivalent alternative study options

    c)    an inability to award qualifications or credit as they had planned

The OfS Director of Competition and Regulation has confirmed:

"Our expectation is that providers should make all reasonable efforts to enable students to complete their studies, for achievement to be reliably assessed, for qualifications to be awarded securely, and to enable a fair and robust admissions process for 2020-21 entrants."

However it was stated in a letter dated 25 March 2020 to registered providers from the OfS that "we will return to our normal policy position and therefore expect full compliance" when institutions can return to more normal delivery of higher education courses to students.

One of the issues which the OfS has included within its regulatory jurisdiction is compliance with consumer law. Clearly the law of the land must be maintained even in these difficult times. The OfS has confirmed from a regulatory perspective that:

"During this period of disruption, we do not intend to take regulatory action in this area unless we become aware of practices that appear to us likely to constitute a significant breach of consumer protection law."

In respect of reportable events during the pandemic period, the OfS has provided new guidance on:

    a)    what should be reported (including issues of short-term financial risk as further defined)

    b)    the removal of what used to have to be reported (including 'the provider becoming aware of legal or court action')

    c)    the ongoing requirement to report some types of event (including changes of ownership or control)

The OfS also published a new statutory Notice under registration conditions F3 and F4 about what information is required to be reported by providers to OfS and to the designated data body.

It remains to be seen what regulatory and reporting requirements are considered appropriate after the UK has emerged from what will undoubtedly be recorded as an extremely challenging period in global history.

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