Office for Students - lawyers for higher education providers

Registration with the Office for Students

A higher education provider in England is required to register with the OfS if it wishes to:

• Access public grant funding, and/or student support funding
• Apply to the Home Office for a tier 4 licence, or to maintain an existing licence
• Apply for degree awarding powers (DAPs) and/or university title (UT)

The OfS maintains a register containing a list of all registered higher education providers and the register is separated into two categories: ‘Approved’ and ‘Approved (fee cap)’.

What powers does the Office for Students have?

The Office for Students was given a number of intervention powers by the Higher Education and Research Act 2017 (HERA), which it can use against registered higher education providers.

The regulatory framework is set out in the document entitled ‘Securing student success: regulatory framework for higher education in England’, which was published on 28 February 2018. This document outlines that the OfS can utilise these powers where it ‘perceives there to be an increased risk of a provider breaching one or more of its ongoing conditions of registration or when such a breach has occurred’.

OfS intervention powers

Enhanced monitoring of providers

The OfS can increase the monitoring requirements of a provider, which could include the provision of information or documentation, or discussions about their compliance with a particular condition or the risk of a breach on a more frequent basis. In such circumstances, the OfS should provide a reasonable timescale for submission of any data or information requested.

The OfS may also request that a provider take certain actions by a set date and this can include providing access to specific information, documents or people to allow the OfS to carry out their investigations. A provider will be notified of the outcome of any investigation within 15 working days of the conclusion of the investigation, unless the circumstances of the case do not permit this.

Imposition of specific ongoing conditions of registration

Where the OfS considers that a provider presents a specific risk that is not addressed by a general ongoing condition, it can impose a specific ongoing condition. The OfS will do this to either mitigate an increased risk of a breach an ongoing condition of registration or to prevent or remedy a breach.

A specific ongoing condition may include a condition which:

• Requires a provider to notify the OfS before they undertake an activity
• Specifies the action required before a provider can undertake a particular activity
• Limits a provider’s activity
• Specifies the action required to ensure that a provider makes appropriate progress towards agreed targets

Before the OfS vary, remove or impose a specific condition of registration, they must notify the provider’s governing body of its intention in writing. The provider’s governing body will be given a period of at least 28 days from the date the notice of intention is received to make representations against their proposal.

The OfS will then consider any representations made and notify the provider’s governing body of its decision and the date when the condition takes effect, if appropriate.

Formal sanctions

Monetary penalties

Monetary penalties can be imposed where a provider has engaged in one of the following practices:

1. Deliberately or negligently breached its ongoing conditions of registration
2. Been dishonest and concealed information
3. Benefited financially from failing to comply with its ongoing conditions of registration (for example by failing to ensure necessary resourcing)
4. Had repeated breaches

Monetary penalties can be imposed instead of, or in addition to, other sanctions.

Before imposing a monetary penalty, the OfS will notify the provider’s governing body including the amount of, and reason for, the proposed penalty. The provider will be given a minimum of 28 days to make representations against this proposed penalty.

When issuing a penalty, the OfS must specify the amount payable and the deadline for payment.

Providers have a right of appeal against the OfS’s decision to impose the penalty, or the amount of the penalty, to the first-tier tribunal (Health, Education and Social Care Chamber). Lodging an appeal with the tribunal has the effect of suspending the requirement to pay the penalty until such time as the appeal is dealt with.

An appeal can be made on one or more of the following grounds:

• The decision is based on a factual error
• It is wrong in law
• It is unreasonable

On appeal, the first-tier tribunal may withdraw the requirement to pay the penalty; confirm the requirement; vary the requirement; or remit the decision whether to confirm the requirement to pay the penalty, or any matter relating to that decision, to the OfS.

Suspension from the register

The OfS can suspend a provider’s registration, or some elements of its registration, in the event of a breach of an ongoing condition of registration. It is expected that the provider will take remedial action during this suspension so that the suspension can be lifted once the OfS are satisfied that the breach has been remedied.

The OfS will usually notify the provider’s governing body of the intention to suspend its registration, including the remedial conditions that the provider must meet to restore their registration. A provider will usually be given at least 28 days to make representations against this proposal.

The OfS will notify the provider’s governing body of its final decision and this notification will include the date on which the suspension takes effect, the excepted purposes, the remedial conditions (if any) and confirmation as to the grounds for suspension.

Where the OfS considers there to be an urgent need to protect public money, the OfS will suspend registration with immediate effect. The suspension will remain in place for as long as is necessary to resolve the issues. This will be further investigation at this stage, which could result in further sanctions or restoration of registration.

Deregistration

The OfS can deregister a provider where:

1. A monetary penalty or suspension was previously imposed in respect of a breach of an ongoing condition of registration and the breach is repeated or continued, or there is or has been a breach of a different condition; or
2. The OfS considers that a monetary penalty or suspension is not sufficient to deal with a breach of an ongoing condition of registration

A provider will also deregister a provider where the provider no longer is, or no longer intends to become, an English higher education provider. A provider may also voluntarily request deregistration in these circumstances.

In making its decision, the OfS will consider the impact of deregistration on the students.

The OfS will notify the provider’s governing body of the intention to remove its registration in writing and the provider’s governing body will have a period of at least 28 days from receipt of the notice to make representations against this proposal. The OfS will then inform the provider’s governing body of its final decision in writing and confirm when the removal will take effect, if appropriate.

The provider’s governing body has a right to appeal against a deregistration decision and the date of removal from the Register to the first-tier tribunal (Health, Education and Social Care Chamber) on the grounds that the decision was based on an error of fact, was wrong in law and/or was unreasonable.

On appeal, the first-tier tribunal has the power to withdraw the removal, confirm the removal, vary the date on which the removal takes effect and remit the decision whether to confirm the removal, or any matter relating to that decision, to the OfS.

How can we help you?

At Stephensons, we have a team of specialist regulatory solicitors who regularly act for registered providers nationwide across a range of different sectors, including health, education and social care. If you are a registered higher education provider and require advice or assistance in relation to the use of one of the above intervention powers by the Office for Students, we have a team of specialist regulatory solicitors who would be happy to help you. You can call us now on 01616 966 229.