OfS looks at enforcement action over unconditional offers but experts criticise lack of clarity
Higher education specialists have queried the Office for Students’ “bluster” on possible action over unconditional offers.
The regulator is exploring what powers it has against universities making unconditional offers after the government extended a two-week freeze from 6 April to 20 April. OfS chief executive Nicola Dandridge said clarity on how this year’s A level grades will be awarded meant there was “no reason for universities to make unconditional offers” and it would be “wholly inappropriate”, despite universities’ concerns over how the coronavirus pandemic will affect student recruitment—and therefore their financial stability.
Dandridge’s intervention came after universities minister Michelle Donelan wrote to vice-chancellors on 3 April, stressing the moratorium on unconditional offers had been extended to “halt a potentially dangerous scramble” by some universities to recruit students in a way that risks students’ “ability to make informed choice” on where to study.
The exams body Ofqual has now set out plans for how A level and other exam results will be assessed this year.
But Nick Hillman, director of the Higher Education Policy Institute think tank, told Research Professional News the regulator must “be careful that it has the powers to carry through any threats that it is making” given there was “a lot of bluster and not much clarity” in the “defensible” approach taken by the OfS and the government. On social media, Hillman previously pointed out that any action over the unconditional offers ban “could end up as a legal row” partly because universities have autonomy on offers guaranteed by the 2017 Higher Education and Research Act.
Hillman also said it was “grimly ironic” that the regulator had been set up to encourage competition and was now trying to stop it. “The more that the sector can control themselves and can show that they are controlling themselves, all within the confines of things like competition law, the better,” Hillman said, adding that what starts as a ministerial moratorium on unconditional offers “could quickly become a new permanent student numbers cap imposed on the sector from outside, and just as the number of 18 year olds starts rising again.”
Mike Shattock, visiting professor at University College London’s Institute of Education, and former registrar at the University of Warwick, said that while the government “could impose restrictions on student numbers”, the OfS was “bluffing” on enforcement action.
But Smita Jamdar, director of education at law firm Shakespeare Martineau, explained that although the regulator does have to take institutional autonomy into account, it also has to ensure choice is maintained for students and it could argue that unconditional offers damage student choice and breach consumer protection conditions.
However, Jamdar said the OfS was walking “a bit of a tightrope” as any financial penalty it hands out would need to be “hefty” to discourage other institutions from making unconditional offers, but universities are trying to recruit more students because they are worried about their finances.
Jamdar asked whether the OfS can “really justify imposing a big fine”, as it potentially puts all other students at the university “at risk”. “It’s not something they want to do,” she said.
A spokesperson for the OfS said: “HERA requires us to have regard to institutional autonomy over admissions, but autonomy is not absolute where providers’ behaviour is blatantly not in students’ interests.
“Our job as the higher education regulator is to ensure that students’ interests are protected first and foremost, and to safeguard the long-term stability of the sector. In these extraordinary times, this means that we do have to look at what powers we might need to take action if providers behave in ways that could jeopardise either of these objectives.”
On 26 March the regulator wrote to universities to say it would be suspending the full regulatory framework as a result of the coronavirus crisis and that providers are expected to report “short-term threats to [their] financial viability”, especially problems with liquidity.