The proposals put forward by the Office for Students obligating higher education providers to treat students fairly

Amid the cost-of-living crisis, students are weighing up the benefits of working versus the costs of higher education. With declining student numbers and rising costs, higher education institutions are facing significant financial challenges. In these circumstances, the Office for Students (OfS), the independent body that regulates higher education institutions in England and protects students’ interests, wants to strengthen student protection. The OfS is currently consulting on proposals to bolster students’ interests by obligating higher education providers to treat students fairly. 

This article considers the OfS’s proposed reforms to its registration requirements for higher education providers in England to treat students fairly. It will review the proposals, the consultation process, the context in which the proposed reforms arise, and the likely impact of the proposed reforms if implemented. This article will not cover the OfS’s proposals on effective governance or changes to registration application requirements.

The objectives of the OfS are to support students to ensure students access, succeed in, and progress from, higher education, receive a high-quality academic experience, have their interests protected while they study, can progress to employment or further study with qualifications that hold their value, and receive value for money.

A higher education provider must register with the OfS if it wants to access funding, apply to the Home Office for a student sponsor licence to recruit international students, and apply for degree awarding powers to award their own degrees. The OfS’s funding mostly comes from registration fees from higher education providers, with some additional funding from government. As of July 2024, over 420 providers were registered with the OfS.

The proposals

To register with the OfS, higher education providers must comply with the OfS’s registration conditions. Part 1 of the OfS’s proposals involves replacing conditions C1 and C3 with new condition C5, treating students fairly. Condition C1 requires a provider to demonstrate it has given due regard to consumer protection law. Condition C3 requires a provider to have an OfS approved student protection plan. The proposed new condition C5 would test whether a provider treats students fairly by reviewing a provider’s policies and student-facing documents, such as terms and conditions, student contracts, policies relating to changes to courses, complaints processes, refund and compensation policies, and website information. 

The OfS has nine proposals for new condition C5. Proposal 1 introduces new condition C5, which would obligate a provider to treat students fairly, replacing condition C1, which requires providers to have due regard to consumer protection law. New condition C5 would be assessed through the absence of unfair behaviour as a result of the OfS reviewing the provider’s relevant policies and student-facing documents. Proposal 2 introduces a concept of fairness in the OfS’s registration requirements. Fair treatment would be assessed in Proposal 3 by identifying when a provider does not treat students fairly. The proposed requirements to determine fairness are set out in Proposal 4, which include a prohibited behaviours list, a test of detriment to the student, and a finding against a provider of non-compliance with consumer protection law. Proposal 5 defines the scope of the condition which would apply to all providers seeking registration and extend to prospective, current and former students, as well as the provision of higher education and ancillary services, including offering and marketing higher education and associated services. The documents a provider would need to submit on registration are set out in Proposal 6. 

Proposal 7 removes condition C3 regarding publishing an approved student protection plan and replaces it with condition C5 which involves, under Proposal 8, publishing relevant student-facing documents. Proposal 9 changes the applicability of ongoing condition C3. This means that registered providers must continue to publish an approved student protection plan, whereas providers registered under the proposed new condition C5 would publish relevant student-facing documents.

The consultation

The consultation on the proposed registration reforms opened on 6 February 2025 and closes on 23 April 2025. For Part 1, the OfS is seeking feedback on the clarity of proposed condition C5. The OfS is looking for a broad range of views, including from students, academic staff, professional services staff, and leaders at higher education providers. The OfS is particularly interested in feedback from unregistered providers who will be most affected by the proposed changes. Due to the consultation, the OfS is not currently accepting new registration applications until possibly August 2025.

The context

The proposals aim to strengthen student protection and ensure consistency of information for students at OfS-registered providers. Strengthening student protection is important given the current climate of financial instability in the higher education sector, which means students may be at an increased risk of being treated unfairly. According to the OfS’s financial report from November 2024, a significant number of higher education providers are operating at a deficit. Due to this heightened risk, the OfS needs to reconsider how it protects students if their provider should close.

Changes in higher education and the types and number of providers seeking registration have also necessitated the consultation. The OfS now receives more applications from organisations new to regulation or to the higher education sector. This demand may increase further depending on the outcome of the government’s current consultation on proposed changes to student finance regulations that would require franchised delivery partners with 300 or more students to register with the OfS. The OfS has also found that 40% of applications do not comply with registration guidance highlighting the need for a clearer registration process.

The impact of the proposals if implemented

The OfS anticipates that the proposals will create a smoother, streamlined, and more efficient registration process, which will be easier to understand for relevant stakeholders, including students, providers, and members of the public. 

The proposals aim to strengthen the OfS’s ability to protect student’s consumer rights and ensure students are treated fairly. The OfS believes that replacing condition C1 with condition C5 will provide more robust and consistent protections for students, as having due regard to guidance about compliance with consumer protection law does not adequately ensure that the provider’s policies and contracts are in fact fair to students. Currently a provider may satisfy condition C1, but its policies and contracts may be unfair to students. Under the proposal, the OfS will scrutinise the provider’s relevant policies and contracts directly rather than relying on the narrative description submitted by the provider. This should be a more transparent process and provide a wider scope of student protection, beyond the current focus of consumer protection law. 

The OfS holds that student protection plans are not always up-to-date and may not accurately represent the risks. The OfS believes that the new proposal, which requires the provider to publish its student-facing documents within two weeks of registration, will provide stronger protection as the information available to students would be more current and comprehensive. The OfS would continue to use the provisions of condition C4 regarding student protection directions, which the OfS believes is a more powerful tool when a provider is facing the risk of market exit. This would also reduce the burden placed on providers during the registration process, as a detailed risk assessment and a separate student protection plan would not be required. However, this places a new burden on the OfS to ensure that a provider complies with its publication obligation within two weeks of registration. The OfS is considering imposing a condition to compel publication in circumstances where a provider fails to comply. If necessary, the OfS may introduce a registration condition compelling publication for providers registered under proposed condition C5.

New condition C5 will only apply to new and paused applications. It will not apply retrospectively to providers who are currently registered with the OfS. This means there will be different arrangements in place for different groups of students depending on when a provider was registered. Changes to regulatory requirements for registered providers are not within the scope of the current consultation. In future, the OfS aims to align requirements for all registered providers and only envisions having different requirements for different providers as an interim position. Proposals to achieve this alignment would form part of a future consultation. 

Conclusion

The OfS will decide whether to adopt these proposals by August 2025. If the proposals are implemented, it remains to be seen whether they will achieve their proposed objectives of strengthening student protection and ensure that students who study at higher education providers are treated fairly.

Alison is a solicitor in the Education team at Bindmans LLP. She acts in a wide range of education cases including judicial review, discrimination claims under the Equality Act 2010 and appeals in the First-tier Tribunal (Special Educational Needs and Disability).