OfS bans ‘conditional unconditional’ offers until September 2021

Several commentators think this decision spells the end for the controversial offer-making practice

Universities in England could be fined £500,000 for breaching a new ban on ‘conditional unconditional’ offers, the Office for Students (OfS) has said today, as it announced a nationwide prohibition until September 2021.

The watchdog announced that it was seeking new powers to regulate admissions and marketing in May, but the rules announced today are a watered-down version of those originally proposed.

The OfS has published Condition Z3, which details its new regulatory framework, following a three-week consultation with the higher education sector.

The new rules prohibit universities from making ‘conditional unconditional’ offers and “false or misleading statements” about another university.

The OfS defines ‘conditional unconditional’ offers as ones that only become conditional once an applicant accepts them as their firm choice; the practice has attracted the ire of successive education ministers since 2016.

Education secretary Gavin Williamson used his first speech to vice-chancellors in September 2019 to call for an end to ‘conditional unconditional’ offer-making. After a reported spike of 30,000 ‘conditional unconditionals’ in the first few days of the coronavirius outbreak, universities minister Michelle Donelan announced a temporary moratorium to “maintain the stability of university admissions”.

‘Necessary and proportionate’

Nicola Dandridge, chief executive of the OfS, said today: “The condition is a necessary and proportionate means to ensure the stability and integrity of the English higher education sector, to protect students’ interests and to preserve a diversity of choice for students into the future.”

“Students can also be reassured that they should not expect to have any offers that they have already received withdrawn, and where there are good reasons for them to receive an unconditional or contextual offer in future, there is no reason that this cannot go ahead,” she added.

The new rules will expire at 23:59 on 30 September 2021. This deadline would, Ms Dandridge said, “allay concerns that [the OfS] wanted to extend [its] powers permanently, which [it has] no intention of doing”.

Critics said the OfS’s plan to regulate admissions lacked detail and clarity and was disproportionate and unnecessary.

In response, the regulator said it had “narrowed the scope of Condition Z3 to relate to certain offer-making and marketing activities only; the activities which we consider pose the greatest risk to the stability and/or integrity of the sector and to the student interest”. The OfS has also rowed back on its heavily criticised proposal to retrospectively regulate conduct that occurred on or after 11 March.

The new rules do not ban all types of unconditional offer, which the OfS said are appropriate for creative courses where portfolios and auditions matter more than predicted grades. The OfS also said universities should not be discouraged from offering contextual or unconditional offers to students from disadvantaged or underrepresented backgrounds.

The consultation closed on 26 May 2020. The OfS received 191 responses.

I do think imposition of even the more restricted condition gives us a glimpse into the future regulation of the sector. It shows that the OfS is willing to become directly interventionist where it feels it is necessary in a way the sector hasn’t had to face before
–  Smita Jamdar, Shakespeare Martineau

‘Glimpse into the future’

Smita Jamdar, partner and head of education at Shakespeare Martineau, told University Business: “Given that the condition is now much narrower in scope, many of the objections about its more egregious legal consequences fall away.

“I do think imposition of even the more restricted condition gives us a glimpse into the future regulation of the sector. It shows that the OfS is willing to become directly interventionist where it feels it is necessary in a way the sector hasn’t had to face before.” Ms Jamdar suggested this interventionist approach could become more significant as the government moves to clamp down on ‘low-value’ courses.

Ms Jamdar predicted that today’s announcement would spell the end of conditional unconditional offers “even after the condition lapses”.

“The OfS may have therefore achieved quite a sign constraint on admissions decision-making,” she concluded.

An anonymous senior figure in an English university responded to today’s announcement in a blog for the Higher Education Policy Institute (Hepi).

“One cannot help feeling that the bucket of ordure that was poured over the OfS in response to their original consultation so staggered them that it has taken this long to think of a face-saving way to rescue something from a poorly-argued consultation. Even with grade inflation, it would have warranted no more than a 3rd.

“Still, one should not be ungenerous. The OfS may have done the sector a great favour. Unconditional offers are very much a collective action problem – if one university offers them, so must others. So, a centrally imposed rule is almost certainly the right approach.

“However, one can still legitimately worry about the consultation outcome. The OfS was not consulting on the acceptability of unconditional offers; it was consulting on pandemic-specific conduct. The OfS seems to have used the exercise as cover to do something it has wanted to do for a long time.”

An NUS spokesperson welcomed the announcement because ‘conditional unconditional’ offers “put pressure on students and prevent them from making the right choices”.

The University and College Union said the sector should join “the rest of the world” and move to a post-qualification admissions system because it would be fairer for students.

Read more: Students ‘taken advantage of’ by low-value degrees – Donelan

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