Fair access to higher education

“Looking back, there is much to celebrate: there have been some remarkable achievements. But substantial problems remain and improvements are required as a matter of priority. For the reasons set out in the previous chapter (Chapter 6), increasing participation in higher education is a necessary and desirable objective of national policy over the next 20 years. This must be accompanied by the objective of reducing the disparities in participation in higher education between groups and ensuring that higher education is responsive to the aspirations and distinctive abilities of individuals.”

The reasons for increasing participation given in Chapter 6 of the National Committee of Inquiry - ‘Higher Education in the Learning Society’ - included the following:

• the changing structure of the national economy
• the changing requirements of the labour market
• the economic benefits to individuals participating in higher education
• the economic benefits to society for participation in higher education

These broad reasons would appear to remain valid, although the needs of the national economy and the labour market may well be quite different in 2019 as the UK prepares to leave membership of the European Union. Perhaps one might also give greater weight now to the imperative of social justice and fairness.

Looking at the legal and regulatory landscape in 2019, we now have the Office for Students (OfS) which was established under the Higher Education and Research Act 2017. We also now have a Director of Fair Access and Participation which has replaced the previous Director of Fair Access, emphasising that it is not only about individuals from underrepresented groups getting into higher education but also about individuals achieving, progressing and succeeding in their time in higher education.

Following a consultation towards the end of 2018, the OfS has now set ambitious targets for the higher education sector which are to eliminate the gaps in access and student success within the next 20 years, namely:

• the gap in entry rates at higher tariff providers between the most and least represented groups
• the gap in non-continuation between the most and least represented groups
• the gap in degree outcomes between white and black students
• the gap in degree outcomes between disabled and non-disabled students

Each institution which is on the Register of English Higher Education Providers and wishes to charge the higher fee to under-graduate students (currently £9250 pa) must submit their Access and Participation Plan to the OfS for approval. The new approach adopted by OfS will apply to Access and Participation Plans from academic year 2020-21. A new Regulatory Notice was issued by OfS on 28 February 2019 which sets out the new regulatory landscape:

• all Access and Participation Plans are required to “demonstrate clear long-term ambitions for how providers will achieve significant reductions in the gaps in access, success and progression over five years from when the plan commences”;
• an annual impact report will need to be submitted each year to enable the OfS to monitor an institution and identify “early warning signs that there is an increased risk that a provider may not be able to satisfy its ongoing conditions of registration”.

Underrepresented groups have been defined by the OfS to include “all groups of potential or current students where the OfS can identify gaps in equality of opportunity in different parts of the student lifecycle” and, for the purposes of Access and Participations Plans, to include students with the following characteristics:

• students from areas of lower higher education participation, lower household income and/or lower socioeconomic status groups
• some black, Asian and minority ethnic (BAME) students
• mature students
• disabled students (those in receipt of disabled students allowance (DSA) and those who have declared a disability but are not in receipt of DSA)
• care leavers

The OfS goes on to note in the new Regulatory Notice:

“We aim in all our work to be evidence-based and never lose sight of the individuality of each student. Therefore the OfS expects providers to consider the way in which these characteristics combine to increase underrepresentation. For example white British men and women from lower socioeconomic backgrounds are among the most underrepresented groups in higher education. Therefore, within its definition, the OfS includes male and female students in combination with the characteristics above. In addition there is a wider set of student groups where the national data indicates there are particular equality gaps and support needs that can be addressed in access and participation plans. These are also included in the OfS definition of underrepresented groups:

• carers
• people estranged from their families
• people from Gypsy, Roma and Traveller communities
• refugees
• children of military families”

In addition to the Access and Participation Plan, institutions are required to submit to the OfS two spreadsheets which set out the institution’s a) targets and investment plan and b) fee information. These will be considered as part of the evidence when the OfS considers whether to approve an institution’s Plan. The OfS sets out its requirements in respect of targets and investment in the new Regulatory Notice.

The OfS rightly reminds higher education institutions in the Regulatory Notice that higher education institutions have duties under the Equality Act 2010. Those which are classified as ‘public authorities’ for these purposes are subject to the Public Sector Equality Duty. This legal duty is set out in section 149 of the Equality Act 2010 and requires that public authorities have due regard, in the exercise of their functions, to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act;
• advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share that characteristic;
• foster good relations between persons who share a relevant protected characteristic and persons who do not share that characteristic.

In addition to the Public Sector Equality Duty, Part 6 of the Equality Act 2010 specifically applies to the provision of education. Section 91(1), for example, requires a higher education institution not to discriminate against a person:

• in the arrangements it makes for deciding who is offered admission as a student;
• as to the terms on which it offers to admit the person as a student;
• by not admitting the person as a student.

The protected characteristics under Part 6 of the Equality Act 2010 relating to the provision of education are: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The OfS says that its ambition of enabling equal opportunity for all is “necessarily a long-term goal, but we are clear that to achieve it, the higher education sector needs to make significant progress over the five-year period for which the next round of access and participation plans (APPs) will operate, through to 2024-25.”