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The challenge of regulatory burden
Whenever people raise the topic of regulation within the English higher education sector, the phrase ‘regulatory burden’ is never far from people’s lips. It was a repeated message in evidence submitted to the House of Lords Industry and Regulators Committee, including in the evidence from UUK. But what is regulatory burden and what can we do about it?
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What is regulatory burden and why is it a problem?
Regulatory burden covers all those activities that higher education providers must to do – and to show that they are doing – if they want to stay registered with the OfS. These activities will normally be in addition to what universities consider their ‘business as usual’ activities and the things they will be doing already to pursue their own strategy and mission. They are also activities they cannot avoid. Registration with the OfS, and therefore meeting all the OfS’s requirements, is needed if a university wants to sponsor international student visas, have degree awarding powers, hold a university title, and give their students access to the student loans system.
We commissioned Moorhouse Consulting to improve our understanding of the experience of regulatory burden among our members in England, all of which are registered with the OfS.
Moorhouse research results
Moorhouse research estimates that:
- A university, on average, has a full-time equivalent (FTE) of 17.6 dedicated solely to regulatory compliance.
- Across all 116 UUK members in England, the total could be as much as 128 FTE at executive level, 638 FTE at manager/director, and 1,289 at officer/coordinator level.
- 45% of universities feel that regulation takes up a significant or major proportion of governing body time.
- 41% of universities feel that the costs of regulation outweigh the benefits and 34% saying the costs and benefits were only balanced.
This activity will, in many cases, be needed for the OfS to do its job and it can be beneficial where it is contributing to collective efforts to improve the sector. For example, where we can see the direct impact of regulation in helping to achieve better outcomes and experiences for students. Similarly, where it is helping to uphold the sector’s reputation and maintaining a level playing field by tackling unacceptable behaviours and poor quality, even if these are rare.
But there is growing concern that too much staff time and attention is needed to tick all the necessary boxes, to update internal processes with every new requirement, and to understand all the detailed regulatory guidance. This includes being asked to respond to more than 30 formal consultations in just five years, and a recent new requirement to retain 5-years’ worth of all assessment, to an estimated cost of £270,000 to £1,000,000 per institution.
If universities are focused on meeting these requirements, it risks moving their focus and resources away from supporting students – ironically, the thing the regulation is supposed to be achieving.
How well is this being addressed?
The OfS has made a public commitment to reducing unnecessary regulatory burden. In their 2022-2025 strategy it forms part of their work towards ‘enabling regulation’, and already there has been a reduction in enhanced monitoring requirements and in their data and information requests. In its 2023-24 business plan it has set out plans to include more consideration of burden when consulting on future changes to the regulatory framework and to consider whether all its current regulation remains necessary.
However, the research we commissioned suggests there are still parts of the OfS’s regulatory approach – the regulation itself and the way in which regulation is done – that are not working as well as they could.
We think this strengthens the case for thinking again about how the legislation that created the OfS, the 2017 Higher Education and Research Act (HERA), is being interpreted and what changes might be needed.
Reviewing the burden of the OfS
The research from Moorhouse engaged as many as 62 UUK members in England, but we know the sector is both much larger and more diverse than UUK’s membership, while the data Moorhouse collected was self-reported. There is also ongoing expansion of the regulatory framework happening, which is creating more OfS activity. This means there are further aspects of burden to be explored.
We are calling for a full review of the OfS to take place under the Public Bodies Review process that draws on the experiences of those being regulated, to understand the impact the OfS is having on the sector. This needs to include the extent to which the costs of its activities and burden are outweighing or being outweighed by the benefits.
Reducing the current regulatory burden
While it is important to understand the issues in more detail and have a full public bodies review, we think there are things that we can be doing already to help reduce the current burden. Informed by the research, we have developed several proposals, set out in our briefing ‘Addressing the challenge of regulatory burden’ for consideration by the sector, the regulator, and the government.
These include:
- The OfS publishes a transparent regulatory burden impact assessment ahead of stipulating any new – and changes to - expectations of providers.
- The OfS setting out how it will decide which regulatory requirements it wants to change or remove from the regulatory framework, following its recent commitment to doing this.
- The OfS initiating a ‘relationship reset’, working with providers to review its engagement strategy and rebuild trust and understanding between them and the sector.
- The OfS working with the sector to revisit its approach to risk-based regulation to make sure it is genuinely targeted towards areas of high risk and more transparent, to help universities to respond to regulatory requirements in a proportionate way.
- The DfE reconvening the Higher Education Data Reduction Taskforce to assess and address data burden across OfS and other relevant regulators.
- The OfS publishing an annual timetable of consultations and expectations for sector engagement, to allow universities to plan their responses.
- UUK facilitating more sharing of good practice among its members on how best to manage regulatory burden.
