Protect and survive

Originally published on Wonkhe

Higher education can be a life-changing experience. Students invest significant amounts of time, commitment and financial resources in their education, and expect to receive value for money in return. Our reforms will give students greater clarity about what they can expect from their provider, and greater consistency about what would happen if unexpected problems occur, including if their course, campus or institution were to close”

So begins a DfE briefing note on the student protection regime introduced in the Higher Education and Research Act and implemented this year. Over the past couple of weeks, I’ve read every published Student Protection Plan from a provider that’s made it onto the OfS register — as at 23rd November. I say “every” — although it’s a requirement to publish the plans, I’m up to over 65 of the 203 registered providers whose plan simply can’t be found via google or provider web search. How are students to even know they exist let alone rely on them? And If a provider actually collapsed, even if a student had the SPP in their hand — who would they brandish it at?

For those still missing, we’ve resolved not to name and shame — at least not yet — but given this is supposed to be a key bit of public information, they should be easy to find, OfS really should compile the links (as it does with Access and Participation Plans) and they ought to be on Unistats. There are so few Russell Group SPPs online that I’m starting to think that a meeting has been held at the Atheneum that resolved deliberately to not bother. Some are called something else or buried. And the provider that had no clue what one was and resolved to treat the request to look at their SPP as a “Freedom of Information Request” will, for the time being, remain nameless yet shameless. You have a month.

Heat and blast

In the aftermath of London Met losing its Tier 4 license back in 2012, significant concern was raised about the need for student protection, with NUS demanding that international students studying in the UK should be protected if their university or college lost their licence to sponsor international students.

This was, of course, a different era. Student numbers were up almost everywhere, 9k fees had been rushed through parliament, and the Lib Dem end of the coalition didn’t want HE anywhere near parliament again for a while, meaning that surrounding regulation signalled in “Students at the Heart of the System” to address the rampant marketisation that direct student funding and subsequent numbers cap-lifting had created was left to languish. David Willets was left working with sector bodies on a “regulatory partnership group”, a classic sector led crack papering exercise which spent many months keeping busy by drawing complex organograms and drawing up a HEFCE register.

It was a simpler time, when a funding council rather than a regulator could get away with publishing a quintessentially HEFCE paragraph like this:

Protecting students in the event of course, institutional or corporate failure is a complex and difficult issue. Countries such as Australia and Ireland have legislated to protect international students studying in their countries. In England the protection that is available to students is, like the constitution, uncodified, but HE providers have responsibilities to their students, which they take very seriously and they generally act accordingly”

A series of round tables had been convened by HEFCE to explore student protection, and whilst roundtable participants “generally agreed that … students should have the opportunity to continue their studies elsewhere in the country or be given refunds”, they accepted that “displaced students… would need co-ordination”. Roundtable participants also proposed that some “further work to share good practice on refunds policy, terms and conditions and student contracts would also be helpful”, naturally ruled out an NUS-proposed collective insurance and compensation scheme, and produced a long forgotten statement of best practice instead.

Civil defence

Scroll forward to the Higher Education and Research Act, and things changed. A DfE published briefing note in September 2016 on the student protection elements of the bill made clear that despite the best practice note, “coverage is not consistent across the sector”, and so Student Protection Plans were to be required by the OfS “to support continuity of study in the event of course, campus or institution closure”. These of course were still in the context of risk-based regulation — “flexibility will support the risk-based approach taken by the OfS”, said the note, “enabling it to vary requirements between different types of provider”.

The regulatory framework was then hastily developed in late 2017, making clear that an SPP would be required to cover off institutional, course, or campus closure — and in the final version early this year, the shuttering of “material components” of courses was added to the list. Guidance on developing one was hastily rushed out, most mainstream providers had one committee cycle to do consultation and development before the application deadline, and voila — students are now “protected”. Or are they?

When the current English funding system was introduced, the thought of a University going to the wall was pretty unthinkable, and even in the “hostile” immigration environment we find ourselves in, most universities will have figured out how to avoid losing their T4 license (even if compliance comes at great and unnecessary cost). But the wider risks to students feel like they’ve increased hugely. Newspaper stories about universities being desperate for “bums on seats” have morphed into “after the boom comes the bust”, and Michael Barber’s intervention on financial sustainability and ruling out bailouts at Wonkfest won’t have come from nowhere. And even if a university survives the turmoil of the current demographic dip, the prospect of course, department or component closure seems much more real. The question is whether the protection that has now been put in place for students is robust enough to cope with the environment that students are enrolling into.

Know the warning sounds

The theory of SPPs runs like this. First, a provider carries out a risk assessment to determine the likelihood of institutional, campus, course or “material component” closure. It then details the steps it will take to mitigate the impact on students if any of those risks crystallise, with the assumption being that providers should be more granular about the arrangements if the risk is identified as higher. All of that gets published in a plan and submitted to the OfS. Then when the registration team checks your submission in pursuit of Condition C3, it assesses your risk assessment, assesses your crystallisation mitigation steps, and if it’s happy, ticks that box on its excel sheet.

The first thing, then, is to look at institutional failure — and it won’t surprise you to learn that it’s hard to find to find a provider that judges the chances of this as anything other than vanishingly small (one provider actually describes the risk as “vanishingly small”), with the resultant commitments on crystallisation mitigation woolly at best. As one twitter observer remarked, “one or two take a position of supercilious incredulity about market exit, others think they can just ship students to another HEI with no apparent bilateral agreement in place”. And plenty I’ve seen argue that their brand and course portfolio will mean they can expand or maintain numbers in multiple markets to remain afloat, when the evidence out there suggests otherwise.

In theory to approve a plan that says this risk is low, OfS is judging that the provider is indeed financially “viable” and “sustainable” — the three and five year tests under Condition D of the regulatory framework. This means that in OfS’ judgment, all 203 providers now on have met these tests and so we shouldn’t expect much granularity in their crystallisation mitigation plans.

But that judgement at least feels odd — given the headlines, Barber’s shot across the bows on finances, the last few reports on the financial sustainability of the sector (the latest one of which is delayed til the new year) and a look at the raw numbers. And as Association of Colleges finance supremo Julian Gravatt commented recently on the site,

The fact that OFS hasn’t issued a Condition D financial warning is some comfort but it’s worth remembering that anyone outside an institution can only rely on financial statements and forecasts presented by those within the institution. Any institution that has taken on a bank loan will have signed up to terms and conditions which it may breach. When this happens (eg when the financial statements are completed), the bank may take a decision which could push the institution into difficulty quite quickly”

In OfS’ defence, they would argue that in some cases they may have approved C3 and D but put in place enhanced monitoring — particularly where plans rely on expansion — and it could be that the moderately more granular crystallisation mitigation arrangements I’ve seen are a clue. But we don’t know the detailed criteria being used in Bristol to assess viability and sustainability (How much borrowing is too much? How many days liquidity is too few?) and in some cases the confident self-assessment in the SPP appears to be wildly out of kilter with those of us that have seen the realities of HESA’s financial security index.

There’s also an interesting mix of approaches to even identifying the risk. In some cases the risk assessment looks the risk of financial difficulty and judges it low. In others it looks at the risk to continuation of study from financial difficulty and judges that low. See the difference? Doubt that students will.

In any event the whole set of arrangements underlines a central tension. OfS stresses that it’s not a funding council and is committed to being open, objective and consistent about its interventions, but also needs to avoid a “run on the bank” scenario that could be caused if it was to go public about individual concerns, or enhanced monitoring outside of the formal registration condition decision. The resultant message to students is — we’ve got this, but you’ll just have to trust us. That’s a risky place for the regulator to be in if something goes wrong.

Plan a fall-out room

The next issue is course or campus closure. Across the SPPs I’ve read, there is at least more of a recognition that the market conditions we face right now might mean the risk crystallising — although I can barely find anyone admitting to having plans to close a course, which given the market conditions is either collective denial or collective deception. There’s little evidence of risk assessment that differentiates between likelihood and seriousness, and that differentiates between types of provision, or subjects, or campuses within in a particular institution. It’s not immediately clear that OfS would have the internal intel on a provider to assess differentiated risks within a provider even if an SPP highlighted them, but it is very easy to imagine that a provider with 500 students could be institutionally rated as risky whereas 500 students on peripheral provision within a 40k student provider to just be lost. And in the majority of cases the mitigation on offer is therefore woolly — with vague commitments to “teach out” or move institution the most common approaches.

This is where things get interesting from a student perspective. I’ve seen countless cases over the years where a teach-out commitment is made in good faith, but then the academics required to carry that out inevitably jump ship. I’ve seen students offered alternative institutions that are hundreds of miles away, when even tens of miles away can be impossible for carers, day-trippers and disabled students. And crucially — given OfS is all about outcomes — you won’t find a commitment to get you onto an alternative course with comparable graduate prospects or student satisfaction.

Now the inner refuge

Then there’s “material components”. These are not defined anywhere in OfS guidance, so the majority of SPPs I’ve seen have cannily gone with a read-across from Competition and Markets Authority advice on “material information” — or to put it another way, if your optional modules all fall over, tough. They’re not “material”.

But from a student perspective this raises real problems. What if your whole career pathway (or just your educational interests) were in the optional bits? If I’m on a computing course, and all the software development modules fall over because the academics are poached by the IT industry, it’s tough luck. Not material, see. And of course there may be pathways that might be material to you but that have capacity caps.

I’ve lost count of the number of students I’ve come across over the years who were sold specialisms at Open Day but then don’t get onto the pathway they want. Maybe that’s inevitable, but it would be nice to see a commitment to a university doing all it can to avoid and fix in some way in its SPP, rather than just announcing to third year undergraduates in September that the module they chose in March won’t run because Glenda and Barry left over the summer — leaving them with the unpopular spare module capacity that’s left.

There’s lots of controversy over the CMA guidance when it comes to course changes — and in some cases overzealous interpretation seems to be stifling sensible academic innovation in the student interest. But that has to be balanced with protections for students over the promises that are made. OfS really does need to define the term “material” from the student perspective when it comes to issuing fresh guidance rather than leaving it to the CMA.

Then there’s other components. Postgraduate supervision is rarely mentioned — but it can often go wrong and is often “single person” dependent. Some SPPs cover placements, but many offering placements don’t (and there are plenty of stories of shortages of nursing placements around the sector). Some cover years abroad and TNE — but many involved in international work don’t, despite some of the obvious higher risks. Some providers detail arrangements if a work based learner is made redundant. Many offering that don’t. And OfS should probably explain why a whole bunch of approved SPPs don’t seem to mention material components at all.

Fall-out

There are plenty of other questions. Is the SPP part of the contract? In the event of collapse, where is student compensation in the financial queue? If a provider closes a campus or course and they’re let down, are we really saying that they should wander down the onerous road of complaint, appeal and OIA? Is it really OK that several of the providers hit by the USS strike in the spring don’t even mention the risk of industrial action (some do, judging it as a “high risk”)? I’ve not even begun to look at the suitability of the refund and compensation arrangements mandated at Condition C1. And given most of the sector is complaining that “tuition fees” are mis-labelled, the wholesale absence of protection commitments on the wider experience that students buy — sports facilities, buildings, space, labs, libraries, student support and students’ unions — is baffling.

These are, of course, early days for this regime. OfS has not been in operation for long, has inevitably initially focussed on the biggest and deepest risks, and there’s some evidence of plan revision from draft to publication as the registration team has done its work. There’s signs that OfS has caused some toughening up on risks to student groups, and providers getting their registration letter will all have stuff to reflect on at Governors/Council. We’re also due a wash up of the process in general and SPPs specifically this winter, and more detailed guidance on assessing risk and developing mitigation steps in the new year. Ultimately, given the legislation mandates risk-based regulation that doesn’t force the pooling of that risk (as happens in so many other markets), OfS is probably doing the best it can.

But that doesn’t mean that from a student perspective things are good enough. We can wail about bailouts and marketisation all we like on Twitter, but autonomous providers have choices — and the most common description of the SPP development process I’ve heard has seen it treated inside providers as a bureaucratic exercise (“writing just enough to get it past OfS”) — barely discussed with students, the key risk being considered was the institution not being registered. Yet in all but the richest bits of the sector, it’s the risks to students lives that are just as real and that governors and leaders both can and should focus on given the external environment. When the SPP comes up for review later this year, a proper, reflective, soul searching exercise that’s done in partnership with students and with a dose of humility and honesty is probably the very least that providers should do.