OfS consultation on a new approach to regulating equality of opportunity in English higher education

The EPC has responded to the Office for Students consultation on a new approach to regulating equality of opportunity in English higher education.

As part of this consultation, OfS published as annexes to the main document:

the proposed Regulatory notice 1: Access and participation plan guidance
the proposed template for an access and participation plan and accessible summary
information about the proposed Equality of Opportunity Risk Register (EORR)
fictional examples of meeting OfS expectations

The full response is outlined below.

EPC response (November 2022)

Proposal 1: risks to equality of opportunity

• Providers APPs should be focused on risks to equality of opportunity
• Providers should have regard to the OfS Equality of Opportunity Risk Register when identifying its risk to equality of opportunity.

• To what extent do you agree with our proposals relating to risks to equality of opportunity? Please provide an explanation for your answer.
• If you consider our approach should differ, please explain how and the reasons for your view.

1. Discipline level concerns

The EPC, the representative body of Engineering academics at UK universities, broadly welcomes the new strategy in that it seeks to adopt a more nuanced approach and devolves decision-making about targets and activities to providers, enabling them to be sensitive to their diverse strengths and missions.

However, it is important that the EORR itself recognises the nuance of risks to equality of opportunity from the viewpoint of different disciplines as well as demographic, institutional and perhaps regional perspectives.

The different risks associated with equality opportunity in different disciplines are pertinent to individual students and to the national interest. For example, at a national level, gender is not presently one of the more significant barriers to entry (although it is the case that males are less likely to be admitted into higher education, especially so in the context of lower attainment and intersectionality with other underrepresented groups).

However, in Engineering, based on the proportions of students, being female would appear to be a significant risk to equality of opportunity. (The opposite in true in subjects such as Nursing.) This might be dismissed as a gender preference, but ethnic and socioeconomic disparities once might have been similarly dismissed. Such gender imbalances in certain disciplines are about more than choice, they are about pathways and opportunities. Other imbalances exist at a discipline level relating to a range of characteristics.

Failure to recognise these risks will lead to unintended consequences and gaming to meet targets. In order to meet B3 conditions and access and participation targets, providers may be incentivised to expand or decrease the size and range of their courses.

To use the Engineering and gender example again, if an institution chooses to expand its Engineering courses (while shrinking some other courses) without due effort to mitigate gender risks, the provider will attract students who, being more likely to be male and being Engineers, will have a tendency to earn more than other graduates. However, this will do nothing to address female underrepresentation in engineering. Also the apparent social mobility gains will reflect the higher average earnings of males and of Engineers rather than reflecting any real improvement for underrepresented students. Moreover, unless the provider has actively encouraged wider participation in Engineering courses, even these apparent gains are likely to be at the expense of the intake at a competitor provider where those students would otherwise have studied. The balance of courses on offer should not be used as a way to tackle demographic risks.

2. Gaming, unintended consequences and the need for collaboration

The OfS should also consider what protections exist for providers that tackle risks for the right reasons against the advantages that providers may gain by using gaming strategies. With this in mind, when considering the suitability and ambition of an APP, the OfS should recognise the different challenges facing different providers – especially in the context of recruiting or selecting institutions and the fact that, historically, recruiting institutions have been more successful in addressing many of the challenges of fair access. The OfS consultation rightly acknowledges that different providers should adopt different approaches according to their broader context and mission. However, the counterweight to this is that OfS must not let institutions off the hook of their access responsibilities because historically their efforts to widen access have had less impact than other providers.

The most likely form of gaming the data and outcomes will be through inter-institutional competition (admitting more of certain types of students, not by attracting a wider number into higher education but by successfully influence institutional choice). NNCO (the National Network of Collaborative Outreach) was established in 2014 was established to overcome this issue which had undermined attempts to genuinely widen access. This was further developed in the form of NCOP and then UniConnect. We believe that more collaboration rather than less is critical to addressing risks strategically across the sector.

The OfS should be looking to enhance ways to evaluate collaborative success such that there is recognition of providers – and groups of providers – that succeed in tackling risks without themselves showing gains.

3. CEIAG

Students should be encouraged to select whatever provider is most suited to their needs, rather than becoming part of competitive gaming or finding themselves in a provider that is ill-prepared to support them. We would strongly urge the OfS to recognise the role of better careers education, information, advice and guidance in helping students to identify the best options for them. The lack of CEIAG in many schools (particularly those in disadvantaged areas) is in itself a risk to equality of opportunity.

We support the consultation’s comments regarding the use of the third sector in this regard.

The OfS also has a duty to ensure information and advice about the sector is available in an independent, authoritative and comparative form. The Uni Discover platform is part of the solution, but it is inadequate in terms of addressing the information needs of young people at most risk of inequality of opportunities.

4. Recognition of outreach at a departmental level

The access activity captured by APPs is often only part of what is actually conducted by providers, their staff and students. This is particularly true of outreach conducted on departmental level (and by student unions) which is rarely part of an institutional strategy, but rather it is based on the initiatives of individual staff or students and their relationships with schools or communities.

This outreach may well have a positive effect, especially in supporting learners’ enthusiasm for and attainment in particular disciplines. However, without this activity being captured within formal evaluative frameworks, it is hard to know whether this is the case.

OfS should consider how these efforts might best be brought into the fold of evaluation and encouraged to be part of broader strategic approaches without losing the benefit of often being based on individual relationship-building and uncomplicated arrangements.

5. Operational impact of proposals

We worry that the new risk-based approach will not filter down to operational changes. In practice APPs will be produced at a different operational level from the practitioners delivering activities in support of access and participation. OfS should consider how front-line staff may best be supported to tackle the risks identified in the EORR. OfS should have a role in convening the sharing of good practice and supporting professionalism in access and participation.

6. Clearer guidance of strategic approaches

The proposal does not make sufficiently clear what OfS would like to see from providers in response to the EORR. On one hand, it might be supposed that providers are intended to address their ‘failings’, that is to say the identified risks where their data suggests they are contributing to the challenge or at least underperforming compared to other providers. On the other hand, providers may be encouraged to identify those risks where they outperform other providers and may therefore play a more efficient and effective part in mitigating the risk.

It is worth bearing in mind that when a provider has a strong track record of tackling a risk, it should not be assumed it is necessarily easier for them. Similarly poor performance may not indicate a lack of effort or that the situation might not be worse if it weren’t for existing activities.

Some providers will take the path of least resistance and others will try to do the right thing, but without clear guidance about the approach they should adopt, the overall pattern of activity is likely to be patchy and leave significant regional and demographic gaps.

We hope that, if this were the case, OfS would encourage providers to adjust their APPs, but if each individual provider has submitted a satisfactory APP in its own terms and the problems are emergent from the whole, it is not clear how OfS would identify that there would be gaps or what it would do about them.

Proposal 2: four-year plan duration and publication of information about a provider’s delivery of a plan
• Reduce the normal maximum duration of plan approval to four years
• Plan should be written as a strategic document that is set out over a four-year period.
• OfS would normally expect to publish information about its judgement on whether a provider has appropriately delivered the commitments in its approved APP.

• To what extent do you agree with our proposals relating to a four-year plan duration and publication of information about a provider’s delivery of a plan? Please provide an explanation for your answer.
• If you consider our approach should differ, please explain how and the reasons for your view.

The OfS should give consideration to the requirements for accreditation for some courses and these have their own cycle of review and changes. Accreditation needs should be deemed suitable circumstances to trigger a request for changes to APPs. More broadly, the experience of the pandemic, the cost of living crisis, industrial action and so on suggest flexibility may need to be shown on other grounds too.

Impact on attainment (and on pathways) is best achieved over the long-term. While a reduction from 5 years to 4 years in not a significant change, targets should consider a longer time frame. While APPs may commit to a four-year plan, they should indicate a longer term strategy. We welcome to OfS’s references to the need for providers to operate according to a theory of change and the explicit statement that targets in APPs may be interim milestones rather than based on end-point outcomes.

Proposal 3: format and content of an APP
• A provider should include an accessible summary in its APP
• A provider’s APP should include intervention strategies which are linked to named objectives and address the provider’s risks to equality of opportunity
• A provider should follow a standard format for its APP including: introduction and strategic aims, risks to equality of opportunity, objectives, intervention strategies, whole provider approach, student consultation and provision of information to students.
• Plans should not exceed 30 pages with no minimum length. Limit excludes annexes.

• To what extent do you agree with our proposals related to the format and content of an APP? Please provide an explanation for your answer.
• If you consider our approach should differ, please explain how and the reasons for your view.

We are disappointed by the absence of any reference to admissions policies. We believe that providers should recruit on the basis of potential to succeed and that prior attainment is not the only indicator of the potential. Well supported contextual admissions are an important component of ensuring equality of opportunity and are likely to remain so even if providers outperform all expectations in raising attainment in schools.

While we can see some purpose in a clear and simple summary of APPs, we do not believe that prospective students – particularly those for whom higher education is a marginal likelihood – will realistically use them in decision-making. The only element of an APP that might be of practical use in this regard would be a clear and simple statement of admissions policy including whether contextual admissions will be used, on what grounds, to what extent and for what courses.

We have concerns about the inclusion of associate colleges and satellite institutions in APPs. We would encourage the OfS to consider clearer guidance about how different – and sometimes unique – institutions should approach the consistent format for APPs.

As previously stated, we would like to see guidance that as well as describing a whole provider approach, the APPs should consider whether there should be different types and levels of activity in different disciplines (better capturing existing departmental-level activity).

Proposal 4: targets
• Objectives should be translated into numerical targets with measurable outcomes-based milestones set over the duration of the plan.
• Targets should be captured in a targets and investment plan.

• To what extent do you agree with our proposals related to targets? Please provide an explanation for your answer.
• If you consider our approach should differ, please explain how and the reason for your answer.

We welcome the effort to contextualise, but there will need to be a focus on interim targets. If a provider’s intervention is designed to raise attainment of local students but only some of them choose that provider, how can it be evidenced that the provider has helped address risks in general?

This issue again raises concerns about the lack of explicit measures to support collaboration. Collaborative networks are critical to deliver this as is collective tracking of data.

While we are supportive of the devolved approach, this needs to be balanced by drivers to ensure a greater upward force for collaboration from the bottom. Collaborative networks can be self-organising and based on more than regional common interest. For example, the Russell Group has a successful mission-based collaboration and it would be good to see support for more discipline-based collaborations as, in schools, this may be a more effective way of delivering attainment-raising activities as well as outlining career pathways through higher education.

We welcome the refence to interim targets. These should always be based on the added value to students and finding ways to assess whether those students are progressing in their attainment and self-efficacy.

Schools have a far better track record than HE providers when it comes to measuring progression and providers should learn from them in establishing targets. We are not comfortable with some of the language in the consultation that many in schools would regard as patronising, suggesting that theoretical expertise from higher education is what is needed to raise attainment in schools.

The Graduate Opportunities survey and in particular its questions relating to students’ perceived career fulfilment should be legitimate for use as targets in the long term.

Proposal 5: evaluation
• Each provider should be expected to increase the volume and quality of evaluation significantly across its access and participation activity.
• Providers should be expected to supply more information about what it will evaluate and when.
• Providers should be expected to set out how and when it intends to publish its evaluation results.

• To what extent do you agree with our proposal related to evaluation? Please provide an explanation for your answer.
• If you consider our approach should differ, please explain how and the reason for your answer.

There is an expectation to significantly increase the volume of evaluation. This will lead to an increased burden and potentially it may produce a lot of costly data about small experiments that may show marginal gains with confidence intervals that undermine the usefulness of the data. Intersections and external factors will always make the data noisy and causal links will be near impossible to prove.

We welcome the comments around the needs for theories of change and we think it is important that the OfS (perhaps through TASO) should play a leading role in helping to develop, articulate, disseminate and design tests of those theories. Evaluation should be about testing the theory rather than collecting vast amounts of data.

It should be possible to learn from failed results as well as positive ones and the OfS has a role in supporting that learning in the sector. While the consultation makes helpful comments about the importance of experimental activities that fail, it is not clear how such work would be encouraged and supported, especially given the behavioural tendencies to downplay perceived failure.

Again, it is important to stress the need for collaboration and collective data gathering in the context of evaluation. The consultation is not sufficiently clear about the mechanisms of support for and encouragement of collaboration.

As mentioned previously, in certain discipline areas and Engineering in particular, there is a lot of local outreach – not least aimed to raise awareness of engineering as a discipline – which has traditionally not been reflected in APPs. At least some of this departmental activity on outreach should be bought into the evaluative fold so that we can learn what is and is not effective.

Proposal 6: investment
• Each provider should be expected to include information on how much it is investing in each intervention strategy.
• Providers will no longer be asked for information on access investment in the targets and investment plan document
• Providers will continue to be asked for information on financial support and research and evaluation investment in the targets and investment plan document.

• To what extent do you agree with our proposals related to investment? Please provide an explanation for your answer.
• If you consider our approach should differ, please explain how and the reason for your answer.

We would like more clarity about the role of investment in assessing APPs. Will the overall level of investment be regarded as a test of ambition or will cost-effectiveness be considered? Certain investment, such as bursaries, which are very costly compared to outreach activities have been shown to have almost no effect on access although they are likely to play a role in participation. Will this be considered in the context of appropriate spending on different risks and targets?

What will be the consequences if investment levels are not reached, but targets are – and vice versa?

Proposal 7: raising attainment in schools and collaboration
• It is expected that key sector-levels priorities in EORR would be reflected in the majority of APPs, in particular raising pre-16 attainment through strategic partnerships with schools.
• Invite feedback on how the OfS could support providers to develop strategic partnerships to raise attainment in schools.
• Invite feedback on how the OfS might use other tools – funding, evidence of effective practice and convening powers – to support collaboration and partnership to address core risks to equality of opportunity.

• To what extent do you agree with our proposals related to raising attainment in schools and collaboration? Please provide an explanation for your answer.
• How might the OfS support providers to develop strategic partnerships to raise attainment in schools?
• What support would help foster collaboration between higher education providers, schools and colleges around information advice and guidance, outreach and attainment raising and why?
• If you consider our approach should differ, please explain how and the reasons for your view.

As mentioned previously, we find the implication that higher education providers might know better than schools how best to deliver school-level education to be unhelpful to schools and an unrealistic expectation to place on higher education providers whose own resources are already stretched to deliver a high-quality education to students who have provided that fee income.

That said, we recognise that there is much to be gained from working in closer partnership with schools and colleges to support learning, particularly in STEM. However, the consultation should be more explicit about the multiplicity of pathways into higher education. This is particularly true in Engineering where students may enter with a classic set of high-scoring A levels, but they may also have a mixed set of achievement in certain subjects and underperformance in others (English, for example). More widely, students may enter Engineering with BTECs or T levels, from an apprenticeship or professional pathway.

The potential for providers to get involved in attainment-raising in schools is likely to be focused on traditional academic pathways and very focused on success in tests, rather than the acquisition of the skills and habits of mind that often make a good Engineer (problem-solving, teamwork, communication, enterprise, etc).

The scale of the challenge of attainment raising in thousands of schools (whether through trying to tackle deficits or by raising standards across the board) is so ambitious that the efforts of HE providers may not achieve widespread or lasting change. It may be that the gains made will be so marginal as to be hard to establish through the data. For these reasons, while attainment-raising is unarguably a desirable goal, we would argue that HE providers may make more difference to equality of opportunity – and do so more cost effectively – by focusing activities on admitting applicants on the basis of their future rather than their past, and on helping them to realise their full potential through being well taught and well supported.

Proposal 8: assessment process
• OfS will use the published access and participation data dashboard and other contextual provider data to analyse providers’ data to understand a provider’s context.

• To what extent do you agree with our proposal related to the assessment process? Please provide an explanation for your answer.

• If you consider our approach should differ, please explain how and the reasons for your view.

Blank,

General questions
• Do you have any feedback on the whole proposed approach to regulating equality of opportunity in English higher education, including regulation of access and participant plans as described in the draft Regulatory notice 1?
• Do you foresee any unintended consequences resulting from the approach set out in this consultation? If so, please indicate what you think these are and the reasons for your view.
• Are there aspects of the proposals you found unclear? If so, please specify which, and tell us why.
• Do you have any comments about the potential impact of these proposals on individuals on the basis of their protected characteristics?

Metrics
We are concerned that the metrics used for assessment may be insufficient proxies and they may, as a result, support gaming rather than authentic impact. Until more detail is provided about the risk and the metrics being used to assess those risks, it is hard to say the extent to which gaming be revealed. If the risks identified are too broad, the exercise of identifying them may be meaningless in terms of influencing what activities take place because nothing will be outside the scope of the broad risks. But, if the risks are too granular, the approach may end up as too prescriptive and the aim of a nuanced approach will be undermined. Getting the right balance will be a difficult feat for OfS to achieve and bad faith metric players may be the winners.

Lifelong learning and part-time courses
We are concerned about the interrelation between this approach and the Government’s plans for increased lifelong learning and short courses. How will this approach support access to these courses? Short course and CPD staff have more experience in a range of qualifications and come from a wider cross-section of society.

Many of the gains in wider access in the past few decades were made through the expansion of part-time courses. Then the collapse of part-time student numbers in the past decade dealt the heaviest blow to the admission of students from underrepresented backgrounds. There is no clear strategy in the consultation to address this situation which has a greater potential to address equality of opportunity that almost any other measure.

Admissions criteria
To detect potential rather than attainment is a lot more difficult. Openness to other qualifications is critical to equality of opportunity, and this consultation does not address that. One the contrary, it encourages the risks to be mitigated by universities helping everyone to get 3 good A levels. In Engineering, academics have to recognise the difference between learners. We are disappointed that the word “admissions” only appears five times throughout the whole consultation (four of those are in case studies and the final one in a reference to duties under HERA). We would like to see a requirement that providers are
clear and open about their admissions policy, which may be supportive of the risks that the providers chose to address.

Some providers are reluctant to embrace contextual offers because they limit league table performance, but this becomes a circular mechanism to ever greater exclusivity. Contextual admissions may be extremely relevant to Engineering as potential for success in the area can be assessed in a variety of ways.

Our members have found that A level success is not a reliable predictor in Engineering of a students’ future success. Students from more challenging backgrounds with lower attainment my experience a more difficult first year, but their learning is often accelerated by Level 6.

Outcomes
We are concerned about the conflict between the stated goals in the consultation and the B3 conditions which tend to drive in the other direction, acting as an encouragement to providers to be as selective as possible in their admissions in order to ensure the most straightforward pathways to positive outcomes metrics. OfS should reconsider whether this conflict is likely to achieve a harmonious balance or set up a conflict that undermines both the B3 and equality of opportunity goals (probably to the greater detriment of the latter). A more consistent message from the regulator would be appreciated.

Foundation Years
We are disappointed by the lack of focus on Foundation Years. Funding changes have made provision of this pathway in higher education more challenging for providers to offer. We would have liked to have seen an explicit steer from the regulator that these would be recognised as an effective way of tackling risk to equality of opportunity. We remain hopeful that the EORR may be clearer on this as we would consider the loss of such pathways to be a risk that would be worth identifying in the register.

Foundation Year courses have an excellent track record of success in delivering access to Engineering degrees and progress to positive outcomes in the long term.

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