Eight years is a long time to leave a basic question unanswered. The Office for Students (OfS) has regulated higher education in England since January 2018, and yet the sector remains unable to say with any confidence why the regulator makes the decisions it makes. The reasoning sits somewhere between the conditions of registration and the published regulatory actions, and the gap between those two things is wider than it ought to be.
The question feels particularly pointed this week. A new chief executive is being recruited, Susan Lapworth having announced her departure at Easter. The judicial review brought by the University of Sussex, heard at the Royal Courts of Justice in February, still awaits judgment. And an analysis of the OfS regulatory record published on Wonkhe concludes that the evidence base for the regulator’s decisions is, in many cases, simply not accessible. That is not a comfortable combination of circumstances in which to hand over the keys.
To be clear at the outset: the concern here is not about whether individual OfS decisions are right or wrong. The Sussex case raises genuinely difficult questions about the scope of regulatory powers, the interpretation of freedom of speech obligations, and whether a fine thirteen times larger than any previous penalty was proportionate. Those arguments will be assessed in due course. What is at issue is something more durable: whether the reasoning behind regulatory decisions is legible to the sector at all.
The transparency promise that didn’t quite arrive
Concern about OfS decision-making opacity is not new. It has been a recurring theme in sector commentary since the regulator’s earliest years, and found its way into the 2023 House of Lords Industry and Regulators Committee report, whose title, ‘Must do better,’ offered its own editorial judgment. The 2024 independent review of the OfS noted that some in the sector believed the regulator had taken an unnecessarily adversarial and arm’s-length approach to working with providers, and that transparency was among the concerns raised.
In 2022, there was a legislative change intended to help. Legal barriers that had previously discouraged OfS from publishing the detail of its reasoning, over concern about defamation risk, were addressed. A consultation on what the regulator would generally expect to publish followed. But, as this week’s analysis suggests, the promised transparency has yet to fully materialise. The conditions of registration and regulatory actions that appear on the OfS website are difficult to locate and harder still to read as a coherent account of how and why decisions have been made. The law changed. The practice has been slower to follow.
The consistency problem
Perhaps the most troubling aspect of the opacity is what it does to institutional confidence. When two providers show similar non-continuation data, and one becomes the subject of an investigation whilst the other does not, the sector is entitled to ask why. That question cannot currently be answered with any confidence. The reasoning, the thresholds, the weighting of different factors: these are not consistently or accessibly in the public domain.
This matters for reasons beyond institutional comfort. A risk-based regulator should, in principle, be able to explain its risk assessments. The claim that regulatory action is proportionate and evidence-led requires, at minimum, that the evidence and the proportionality reasoning are visible to those being regulated. Without that, proportionality becomes an assertion rather than a demonstrable property of the system. And assertions, however sincerely made, do not build institutional trust.
The handling of student complaints intelligence illustrates the same difficulty from a different angle. Student complaints represent one of the most direct forms of intelligence available to any regulator: accounts from those the system is designed to serve. Yet the gap between what complaints tell the OfS and what the regulator does with that intelligence is, it appears, difficult to close from the outside.
What transparency would actually require
It would be tempting to conclude that more publication would resolve the problem. It would not, at least not on its own. Publishing more decisions in the same form would produce a larger volume of material that is equally difficult to interpret. The more substantive shift would be in the philosophy of regulatory communication: a move from publication as legal compliance towards publication as a genuine account of reasoning.
That requires regulators to articulate not just what they have decided but why, including why a particular set of facts crossed whatever threshold triggered action, and why a comparable set of facts elsewhere apparently did not. It requires consistency frameworks that can be explained to the sector, not merely applied to it. None of this implies bad faith in individual decisions. It is entirely possible to have well-reasoned regulatory conclusions that are simply not communicated in ways the sector can access or interrogate. The effect on sector confidence is the same either way.
The incoming chief executive will inherit a regulator that has, by most accounts, improved its sector engagement over the past year. The appointment process signals an intention to move towards a less confrontational relationship. Whether that shift extends to the transparency of regulatory reasoning, rather than simply to the tone of stakeholder relations, is the question worth watching. Tone matters, but it is not the same as accountability.
Questions worth sitting with
What would a genuinely legible account of OfS decision-making look like in practice, and what would it require institutions to be able to do with that information? Is the current approach to publishing regulatory decisions adequate for a system that claims to be risk-based and evidence-led? And if the sector cannot understand why particular decisions are made, what does that suggest about the accountability architecture of English higher education regulation more broadly?
These are not questions that will be resolved by a new appointment, however well chosen. They are structural questions that will require structural thinking. Whether that thinking is on the incoming leadership’s agenda, or on the agenda of a government simultaneously tasking the OfS with new powers and responsibilities, is something the sector might reasonably want to understand before the next phase begins.