The Higher Education (Fee Limits and Student Support) (England) (Coronavirus) Regulations 2020 would introduce temporary student number controls for higher education providers linked to the student finance system, as part of the Government’s response to the coronavirus pandemic.
The instrument was announced on 2 June 2020 in written statements to both Houses. The Government laid the regulations under the draft affirmative procedure on 4 June 2019.
The instrument is due to be debated in the House of Lords on 2 July 2020. This In Focus article sets out background to the regulations ahead of that debate.
What would the instrument do?
According to the draft explanatory memorandum for the statutory instrument—prepared by the Department for Education— the purpose of the order is to amend:
[…] legislation in relation to England which prescribes tuition fee limits and tuition fee loan amounts. Where a higher education provider has recruited first year students starting courses in excess of a level notified to that provider by the Secretary of State in respect of an academic year commencing on or after 1st August 2020 and before 1st August 2021, reduced tuition fee limits will apply to full-time undergraduate courses applicable in an academic year commencing on or after 1st August 2021 and before 1st August 2022. Maximum tuition fee loan amounts available to English-domiciled students starting full-time courses at institutions in Scotland, Northern Ireland or Wales are also reduced in the same circumstances.
The policy background section of the explanatory memorandum provided further information on what is being done and why. It says that:
The coronavirus (COVID-19) outbreak has placed significant financial strain on the higher education sector. In order to mitigate potential financial losses caused by the risk that fewer students opt to go to university in academic year 2020/21 (particularly but not exclusively international students, who pay higher fees), some higher education providers have been adopting admissions practices (such as the mass use of unconditional offers) in order to recruit a greater share of domestic students than they had in previous years, to the detriment of other providers and potentially to the detriment of students.
Providers recruiting additional UK and EU students in this way secure the tuition fee income attached to these students, and consequently will draw down a greater share of the public funding available in academic year 2020/21. This behaviour leaves a smaller pool of prospective students for other providers to draw from and could put some providers at risk of significant financial strain. The change in recruitment practices, driven by funding concerns, also has the potential to be to the detriment of students who have been encouraged to accept an offer from a provider that is not best suited to their needs.
The Government has said that to address these concerns, it had developed provider-level student number controls (SNCs) as part of a package to stabilise the admissions system and mitigate the financial impacts of coronavirus. The Government announced this measure on 4 May 2020 and explained how it would work:
Through the plans, English higher education providers will be able to recruit full-time undergraduate UK and EU students for 2020/21 up to a temporary set level, which is based on their forecasts for the next academic year, plus an additional 5%. The Government will control these numbers through the student finance system.
The Government will also have the discretion to allocate an additional 10,000 places, with 5,000 ring-fenced for nursing, midwifery, or allied health courses to support the country’s vital public services.
Which universities and students would this apply to?
Explaining which higher education providers and students these measures would apply to, the Government said:
The SNCs apply to English higher education providers registered in the approved (fee cap) part of the register established by the Office for Students under section 3 of Higher Education and Research Act 2017. They apply, subject to specified exemptions, in relation to UK and EU students starting the first year of full-time undergraduate courses in academic year 2020/21 from 1st August 2020 onwards. The SNCs also apply in respect of England-domiciled students (those students ordinarily resident in England) starting full-time undergraduate courses provided by, or on behalf of, publicly funded institutions in Scotland, Wales or Northern Ireland or regulated institutions in Wales in academic year 2020/21 from 1st August 2020 onwards.
The explanatory memorandum sets out the consequences for providers that recruit more students in the 2020/21 academic year than their individual SNC, stating that the Government would reduce the sums available to the provider through the student finance system in the subsequent academic year.
How do the regulations affect Scotland, Wales, and Northern Ireland?
The Government has explained that for eligible students domiciled in England who study on courses provided by, or on behalf of, Scottish, Welsh or Northern Irish institutions, tuition fee policy is in the hands of the respective devolved administrations. It said that a different approach is required in relation to such students:
This instrument provides for lower maximum fee loans in the Student Support Regulations for full-time undergraduate courses offered by, or on behalf of, publicly funded institutions in Scotland, Wales or Northern Ireland and regulated institutions in Wales. Maximum fee loans are reduced in the first academic year of a course commencing between 1st August 2021 and before 1st August 2022 where the number of students exceeds the SNC for that institution in the academic year from 1st August 2020, at the same percentages as set out at paragraph 7.7 above, and for the same reasons.
How long will the regulations apply?
The Government explained that the reduction in fee limits and fee loans set out in this instrument are temporary and only apply to academic year 2021/22 from 1st August 2020 onwards.
Parliamentary scrutiny to date
The House of Lords Secondary Legislation Scrutiny Committee reported on the instrument in its 18th report of session 2019–21:
This instrument proposes temporary changes to tuition fee limits and tuition fee loan amounts in England. The Department for Education (DfE) explains that the pandemic has placed a significant financial strain on the higher education sector and that, to mitigate the financial losses caused by potentially fewer students wishing to go to university in the next academic year, some higher education providers have adopted admissions practices, such as the large-scale use of unconditional offers, to recruit a greater share of domestic students than in previous years. Such practices allow providers to secure the tuition fee income attached to these students and to draw down a greater share of the public funding available in the next academic year, but, according to DfE, leave a smaller pool of prospective students for other providers which are put under financial pressure.
The proposed changes seek to ensure that where a provider has recruited first year students starting courses above the level that the Department has allocated to that provider for the academic year 2020–21 (through temporary student number controls or SNC), reduced tuition fee limits will apply to that provider’s full-time undergraduate courses in the following academic year 2021–22. This is to ensure that if providers exceed their allocated SNC, the sums available to them through the student finance system in the subsequent academic year will be reduced proportionately. The instrument also proposes a proportionate reduction of the maximum tuition fee loan amounts available to English-domiciled students starting full-time courses at institutions in Scotland, Wales or Northern Ireland in the academic year 2021–22 where the number of students exceeds the SNC for that institution in the academic year 2020–21.
However, the committee did not draw it to the special attention of the House.
The Joint Committee on Statutory Instruments also considered the regulations, but did not raise any concerns.
What has the reaction been to the regulations?
Setting a cap on the number of students is a measure proposed by Universities UK. It said its intention is to ensure that all places remain available while “avoiding volatility that would otherwise arise from some institutions embarking on large, unplanned expansion of UK student numbers to offset any reduction in non-EU student numbers”.
However, several commentators from higher education and associated institutions have criticised the proposals. For example, Mary Curnock Cook, a former chief executive of UCAS, has said that “a cap on student numbers is a cap on student choice” and will “probably lead to lower overall domestic recruitment this year”. Other commentators have also argued that the measure, as it stands, would not prevent more prestigious and wealthier universities from “expanding their domestic student base at the expense of other more locally focused institutions”.
Universities and ministers in the devolved administrations have said that the measures were brought in without consultation and that it was punishing them for problems caused by the coronavirus outbreak in England. Commenting on the situation, Richard Lochhead, Scotland’s higher education minister, said the plan was “deeply distressing” and could add further damage to the sector”. In addition, Kirsty Williams, the Welsh education minister, said that she “disagree[d] strongly with England’s approach on this matter”.
- House of Commons Library, Coronavirus: Easing Lockdown Restrictions in FE and HE in England, 24 June 2020
- Sutton Trust, Covid-19 Impacts: University Access, 4 May 2020
A copy of the draft is available on the legislation.gov.uk website:
Information about the statutory instrument’s completed stages is available on the UK Parliament website:
- UK Parliament, ‘Higher Education (Fee Limits and Student Support) (England) (Coronavirus) Regulations 2020’, accessed 30 June 2020
Photo by Joshua Hoehne from Unsplash.