OfS promises ‘no surprises’ approach after Sussex ruling

England’s higher education regulator has promised universities a “no surprises” approach to regulation following its High Court defeat against the University of Sussex.

In a report setting out the “lessons learned” from the judicial review – called after the regulator tried to fine the university over free speech breaches – the Office for Students said it would “engage early, communicate openly and use enforcement only where the OfS considers that it is necessary” under its new approach.

“We made mistakes in the University of Sussex case, and we regret this. We did not therefore appeal the judgment; instead, we promised to consider its findings with honesty and humility, so that they could inform our future approach to regulation,” say the OfS chair Edward Peck and chief executives Ruth Hannant and Polly Payne in a foreword. 

“We were already making changes in response to the lessons from the House of Lords and Behan Reviews, seen in our new strategy, but the judgment prompted further reflection and change.”

The report comes days after the regulator launched its new freedom of speech complaints scheme.

The High Court ruled in April that the OfS had acted unlawfully when it fined the University of Sussex £585,000 over its handling of freedom of speech and academic freedom in a case concerning the university’s policy on trans and non-binary equality, which the regulator had concluded could have a “chilling effect” on lawful speech. 

The 23-page report is the result of an internal review carried out by consultancy firm KPMG and feedback from the sector. It sets out five lessons that the OfS said would underpin its “no surprises” approach to providers.

These include building respectful relationships with institutions, improving communication and transparency during investigations, considering “alternative forms of intervention” before enforcement action, strengthening internal structures and processes, and reviewing its culture to “encourage challenge and agility”.

The regulator said enforcement action would be used only where necessary. “Typically this will occur in response to significant or escalating concerns, or where concerns have not been addressed through earlier engagement,” it says.

“This approach will not prevent us from taking robust and swift action to protect students and taxpayers where this is warranted.”

Separately, the regulator has also commissioned independent research consultancy Ecorys to examine the impact of OfS regulation on the quality of students’ education.

The survey will be open to staff responsible for curriculum development and strategic decision-making on academic quality at every registered university and college. The findings are expected to be published in spring 2027. 

Jean Arnold, interim director of quality and access at the OfS, said the research was intended to help the regulator “better understand how the current system is working in practice and identify areas for improvement as we develop our proposed new approach to quality assessment through the revised Teaching Excellence Framework”.

seher.asaf@timeshighereducation.com