Introduction to Higher Education Law
Introduction to Higher Education Law
1. “Higher Education law” refers to the legal framework which governs institutions like universities and colleges. It is made up of public law and regulatory, company law, consumer rights, institutional governance, freedom of speech, and human rights.
Regulatory
2. Providers of higher education services (HEPs) in England are regulated by the Office for Students (OfS), which was created in 2018 as a non-departmental public body of the Department for Education (DfE). That means that while the OfS is not part of central government, it reports to Parliament through the DfE.
3. The OfS was created and is governed by the Higher Education & Research Act 2017 (HERA). It covers all students, whether undergraduate or postgraduate, national or international, young or mature, full-time or part-time, etc. The OfS does not have a principal objective, unlike other regulators. Rather, it has a series of duties to which it must have regard to when exercising its functions. These include: the need protect HEPs’ institutional autonomy, and to promote equality and choice for students.
4. The main function of the OfS is to administer a registration regime for English HEPs. While registration is not compulsory, registered HEPs obtain several key benefits, such as: (a) access to the student loans regime for their students; (b) various types of public funding and grants; and (c) tier 4 sponsorship licence for students outside the EEA or Switzerland. Further, only registered providers can award official degrees and apply to have “university” in their title. The OfS is obliged to register a HEP that satisfies its conditions of registration. This ensures that certain quality standards are maintained for registered HEPs, as well as greater transparency for prospective students so that they get value for money.
5. The OfS has extensive monitoring powers, which it uses as a means of gathering evidence before the exercising its enforcement powers, ensuring compliance with the registration conditions. Where a HEP has breached their registration conditions, the OfS can: (a) impose specific ongoing conditions on them, (b) impose a financial penalty, (c) suspend registration, (d) de-register, or (e) vary and revoke its degree-awarding powers or the university’s title. Further, the OfS is a “monitoring authority” under section 32 of the Counter Terrorism and Security Act 2015, which requires it to monitor what providers are doing to prevent people being drawn into terrorism. This obligation is known as the “prevent duty”. Ofsted is the monitoring authority for further education (sixth-form colleges) and below
Public law
6. There are limited grounds on which to appeal decisions of the OfS. Such decisions are usually challenged by judicial review, either to the High Court or to the First-Tier Tribunal (depending on the type of decision). The grounds are where the decision was (a) based on an error of fact, (b) wrong in law, or (c) unreasonable.
7. The OfS is subject to the public sector equality duty (PSED), which requires public bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities: section 149 of the Equality Act 2010. The OfS has a specific statutory duty under section 2(1)(e) of HERA, to have regard to the need to promote equality of opportunity in connection with access to and participation in higher education provided by HEPs.
8. As a public body, the OfS is subject to the duty to consult where failing to do so would be unfair on its regulatory subjects. In doing so, it is required to comply with the Gunning criteria, which provide that in order for a consultation to be lawful and valid, they must be made when:
(a) proposals are still at a formative stage and no final decision has been made,
(b) there is sufficient information for consultees to give ‘intelligent consideration’ to the proposals,
(c) there is adequate time for consideration and response by consultees, and
(d) the authority has given conscientious consideration to the responses before a final decision is made.
Consumer protection law
9. The Consumer Rights Act 2015 is relevant to the OfS’s work, as a general condition of registration requires HEPs to show that in developing and implementing their policies, they have considered the guidance about how to comply with consumer protection law.
10. The CRA 2015 applies to business to consumer contracts made on or after 1st Oct 2015, regardless of whether they are negotiated by the consumer or not. The Act will apply to contracts entered into between a HEP and a student on or after that date.
11. The principles underpinning the CRA 2015 derive from contract law, specifically the Unfair Contract Terms Act 1977. For instance, a term in a student contract will be “unfair” if it causes significant imbalance in the parties’ rights and obligations under the contract to the student’s detriment. This is determined by taking into account the contract’s subject matter and all the facts existing when the term was agreed. Further, all contractual terms should be expressed in plain and intelligible language.
Charities law
12. To be a charity, an organisation must have proper purposes or “aims” which are exclusively charitable within the Charities Act 2011 (CA 2011). It must also operate for the public benefit. Operating as a charity gives an organisation tax benefits.
13. Some charitable organisations are “exempt” from being registered with the Charity Commission, according to s.23 and Schedule 3 of the CA 2011. This is because they are subject to the regulation of their “principal regulator”. Most “traditional” HEPs are exempt charities, because they are incorporated as charities and are regulated by the OfS.
14. The OfS is required to do all it can to promote compliance by exempt charities under its purview to comply with their legal obligations.
Human rights
15. S.6(1) of the Human Rights Act 1998 (HRA) provides that it is unlawful for a public authority to act incompatibly with a Convention Right. The OfS’s decisions may thus have human rights implications, e.g. regarding Article 1 of Protocol 1 (“every natural or legal person is entitled to the peaceful enjoyment of his possessions”); Article 14 (no discrimination in the securing of Convention rights); and Article 2 of Protocol 1 (“right to education”).
Freedom of speech
16. The OfS has recently been given the power to regulate freedom of speech and academic freedom in higher education institutions and student unions. Under the Higher Education (Freedom of Speech) Act 2023, new sections have been inserted into HERA dealing with the regulation of freedom of speech and academic freedom. Broadly speaking, these cover new duties on HEPs and other parties, the OfS’s functions in regulating this area and a new complaints scheme.
17. A duty will be imposed on HEPs to take steps to secure freedom of speech within the law for staff, students, members of the provider and visiting speakers. This duty also extends to securing academic freedom for staff. HEPs must maintain a code of practice setting out the way in which they will secure freedom of speech and academic freedom. These new duties also apply to “constituent institutions” of a higher education provider. This covers any constituent colleges, schools, halls or other institutions of the provider.
18. The Act obliges the OfS to operate a free speech complaints scheme. A free speech condition of registration will also come into force following future legislation. The new complaints scheme will:
• Be open to staff and visiting speakers, not students. Students will continue to have access to the existing Office of the Independent Adjudicator (OIA) complaints scheme for their unresolved complaints;
• Cover complaints about providers or ‘constituent institutions’ (e.g. colleges within a collegiate university), but not students’ unions; and
• Give the OfS the power to consider complaints at our discretion, rather than an obligation to consider every complaint.
