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Governance news: New guidance issued by the Office for Students

16 Oct 2019 | The Office for Students (OfS) has issued two notices of regulatory advice. The publications cover monitoring and intervention and reportable events. Each offers additional information on how the OfS intends to operate and the expectations it is placing on governing bodies and accountable officers.

The Office for Students (OfS) has issued two new notices of regulatory advice for registered providers of higher education:

  • Regulatory advice 16 (RA16) – Reportable events (13 pages). Accompanying the main text; Annex B offers additional guidance on the submission of information on specific types of reportable event.

The two regulatory advice documents are intended to provide additional information on how particular sections of the OfS’ regulatory framework (RF) will operate in practice, and what providers need to do in order to demonstrate they are complying with the OfS’ conditions of registration. Each of the new regulatory advice notices contains extracts from the RF.

RA15

The note “is intended to assist registered providers in understanding how the OfS will monitor compliance with the ongoing conditions of registration.” (para.7) The document has three sections:

  • Section I:  how the OfS will interact with registered providers.
  • Section II: how the OfS will monitor and assess compliance with the ongoing conditions of registration.
  • Section III: additional guidance about regulatory requirements for registered providers.

Section 1 highlights the role of the accounting officers (normally the head of institution), confirming that they are “responsible for ensuring that the governing body understands its regulatory responsibilities and acts on them.” (para.22c)

RA15 reminds the governing body that a mandatory and ongoing condition of registration “requires the governing body of a provider to provide information to the OfS, or to a body acting on behalf of the OfS.” (para.23). The OfS extensive statutory powers in respect of this requirement are detailed in RA15.

Government bodies must provide information requested by the OfS, “at a time and in the manner and form specified.” (para.27) Failure to do so is likely to viewed as a breach of a condition F3 of registration (provision of information to the OfS). The OfS also states that it does not offer extensions to the deadlines for information requested under F3. (para 28)

Section II of RA15 discusses how the OfS will monitor and assess compliance with the conditions of registration. The use of lead indicators, including student data; financial data; reportable events; and the role of notifications are all discussed.

Actions to remedy a breach or mitigate an increased risk in relation to failing to comply with the conditions of registration are discussed in paragraphs 69 to 71, and the use of sanctions by the OfS in paragraphs 72 to 75.

RA16

RA16 details OfS’s expectations with regard to reporting events.

Providers are reminded of OfS’s definition of a reportable event and materiality. In addition, to listed events in the RF (see para. 494, reproduced as Annex to RA16) the OfS cites examples of other events in RA16 deemed to reportable, including “major governance events, such as a governance review that recommends significant changes to governance structures.” (para. 14, examples)

In regard to materiality the OfS states, “a provider must report any event which has, or could, materially affect its ability or willingness to comply with any condition of registration, even when the event may not have an impact on its legal form or business model. Providers should consider the direct and indirect effects of an event on its compliance with conditions of registration.” (para.15)

Examples of direct and indirect effects are offered on pages 4 to 5.

Further, the OfS reminds leaders that “the regulatory framework states that the OfS, not the provider, will determine whether an event is reportable or not reportable under condition F3. This means that only the OfS can ultimately determine whether an event should have been reported.” (para.18)

The regulatory note goes on to state “providers should note that paragraph 451 of the regulatory framework identifies that, where a provider seeks to abdicate responsibility for decision making and seeks steers from the OfS, this behaviour may indicate non-compliance with condition E2 (management and governance).” If a provider is uncertain, OfS suggest they seek independent advice. (para.19)

Reportable events are expected to be reported to the OfS “within five days of the date that the event is identified or, if that is not possible due to exceptional circumstances beyond the control of the provider, as soon as reasonably practicable thereafter and without undue delay’.” (para. 22)

In the first instance responsibility for reporting events lies with the accountable officer or who they have delegated responsibility, but ultimately rests with the governing body who have overall responsibility for the “interaction between the OfS and the provider.” (para. 23)

Concluding remarks

The two regulatory advice notices seek to clarify aspects of OfS thinking with regard to monitoring and intervention and reportable events. Accounting officers and governing bodies will need to mindful of the points detailed by the OfS and the actions expected of them.

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