The Coalition Government has unveiled its response to the Browne Review on Higher Education Funding and Student Finance, demonstrating a progressive focus on widening access for disadvantaged students. In this connection, those universities and colleges which wish to charge high fees (up to £9,000 per annum) will be obliged to fulfil the strict conditions to be imposed on them by the Office for Fair Access (OFFA). Given that many higher education institutions are structured as charities, the Government's approach reveals an interesting parallel to the Charity Commission's approach on widening participation and access to charities which charge high fees, as shown in the Commission's guidance on charities and the public benefit requirement.
The law provides that charities must be for the public benefit, meaning that the purposes which they exist to carry out must be for the public benefit. The Charities Act 2006 tasked the Commission to issue guidance on the public benefit requirement. The Commission's interpretation of the law, as propounded in its guidance, requires charities charging high fees (such as universities and independent schools) to take tangible steps to widen participation and access to those unable to afford the fees. Such steps could include, for example, free or subsidised access through bursary provision and availability of facilities and staff to those who cannot pay the fees. The controversial and now much-debated guidance is currently the subject of judicial review proceedings brought by the Independent Schools Council, such proceedings to be heard simultaneously with those resulting from a reference made by the Attorney General on the operation of charity law in the context of fee charging schools.
OFFA was established under the Labour administration, following the introduction of higher tuition fees in 2006-2007. It promotes and monitors access to higher education by means of access agreements with higher education institutions. Such agreements cover fees charged, provision of financial support and details of outreach work, for example schools programmes. Under the current administration's plans, OFFA's strength will increase, as it will oblige universities charging up to £9,000 to adhere to tougher conditions regarding wider participation and fair access. OFFA will also be empowered to apply sanctions where universities fail to honour the commitments described in their access agreements, which could mean that OFFA withdraws the right of a university to charge more than £6,000.
During OFFA's lifetime, fee-charging charities, including higher education institutions, have been faced with compliance with the Commission's guidance on the public benefit requirement. If the Commission's guidance correctly interprets the law, it is not clear why the the Government should consider it necessary for OFFA to impose the same aim of widening participation and fair access.
Perhaps the Government's decision to pursue this approach suggests its disagreement with the legality of the Commission's approach to the same point?