Higher Education Today - January 2023

Happy New Year and welcome to the January 2023 edition of Higher Education Today, looking at current topics and questions facing higher education.

In each edition we feature content from key members of our Higher Education legal and regulatory team. If you would like further details about these individuals or information about the wider Higher Education team please see our Higher Education brochure.

We are delighted that in this edition the core members of our Higher Education team have shared with HE Today their predictions for key Higher Education trends, as well as considering what challenges and opportunities may lie ahead for Higher Education Institutions in 2023.

We hope you find the newsletter interesting and helpful.

Virginia and Ashley
Joint Department Heads for Higher Education

Our Higher Education team share their 2023 predictions for the sector

Elizabeth Dunford, IT and data protection higher education specialist, considered the data protection challenges for Universities in 2023

The world of Data Protection has continued to develop at lightning speed over the past few years, and 2023 will be no exception. The challenge for Universities in 2023 will be to keep up with the pace of change, in a world where both students and staff are becoming increasingly aware of their privacy rights.

In late 2022, the ICO published its much-awaited Transfer Risk Assessment guidance and associated tool, to be used alongside its International Data Transfer Agreement (“IDTA”) and International Data Transfer Addendum (“UK Addendum”) to safeguard international data transfers.  Universities will need to bake this tool into their internal governance processes, particularly those Universities with international campuses and/or transnational higher education arrangements, but also those using services incorporating international processors (for example, some SaaS solutions). Consideration will also need to be given to when Universities are also caught by the EU GDPR, and are therefore required to use the European Data Protection Board’s (“EDPB”) own guidance. My data protection colleague Ben Pumphrey discussed this in early December.  2023 may also see new frameworks for international data transfers between the EU/UK and the US, which may be particularly welcomed by Universities working regularly with US partners, although some may be sceptical as to whether such frameworks can survive the inevitable legal challenge.

Cyber security continues to prove an area of challenge for Universities. It is as important as ever for Universities to ensure that they have robust cyber security in place, particularly in light of the increasing volume of data that they hold and collect in relation to their students. On this, Universities will need to consider both the opportunities and challenges that new technologies bring in the student engagement and data analytics sphere, ensuring that appropriate impact assessments, transparency notices and safeguards are put in place to protect privacy rights.

I personally will be continuing to work with Universities UK to publicise its data sharing guidance.  In particularly, we will be looking to engage with the sector to understand how the guidance is being implemented to start to develop best-practice case studies.

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Louise Robling, construction partner, and Louise Mansfield, health and safety legal director, shared their thoughts on building safety in 2023

Many provisions of the Building Safety Act 2022 are due to come into force during 2023. That means that Universities will have to do a number of things this year specifically in relation to any higher-risk buildings (those above 7 storeys / 18 meters and with at least 2 residential units), which may capture a large amount of student accommodation. Actions include:

• registering relevant buildings with the Building Safety Regulator;
• appointing an Accountable Person to have legal responsibility for ensuring that the spread of fire and structural risks in the building are understood;
• taking appropriate steps and actions to mitigate and manage these risks are taken; and
• compiling a golden thread of information to evidence that a building is safe from these risks (providing this evidence to the Building Safety Regulator if requested).

Any building work (defined widely) undertaken in relation to such buildings will have to go through additional hard stop gateways (3 in total) - at each of which evidence of safety must be provided before building work can continue. Mandatory occurrence reporting is also likely to be implemented which will require duty holders to inform the Building Safety Regulator of structural and fire safety occurrences that could cause a significant risk to life.

Universities will also need to continue to assess their current estates and take action to remove any unsafe cladding as the Government has new powers (which it has been very vocal in saying it will use) to force those that do not take action voluntarily to do so.

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Ashley Norman, employment partner and co-head of our Higher Education team, Anne Palmer, employment legal director and Rajinder Bhambra, legal director and head of our immigration practice considered the employment and immigration challenges for Universities in 2023

Effective engagement with staff following the end of the Covid-19 pandemic is key for Universities in 2023, and it is expected that there are likely to be ongoing challenges with this. 

University staff continue to manage ever-more complex and competing demands, including increasing regulatory pressure. This has led to a growing numbers of grievances and complaints in the sector, often alleging harassment and discrimination. Complaints by students against individual staff members also need to be carefully managed by Universities. Universities will continue to be looking at ways of supporting staff, as well as student, wellbeing.

In 2023 reduced funding will lead Universities to look at ways of making efficiencies, such as reducing staff numbers and looking to manage growing numbers of staff on casual or temporary contracts. 

The UK immigration framework will continue to be hugely important in the higher education sector as universities compete for the best staff, as well as their fair share of international students, who are so vital to the global higher education experience for all students and the UK economy. Related to this, compliance with UKVI rules around sponsor licenses, record keeping duties and reporting obligations will remain a key issue in order to avoid any risk of licences being suspended or revoked.

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Virginia Cooper, partner and co-head of our Higher Education team, and Amy Tschobotko, partner, reflected on regulatory and student related issues in the year ahead

From a student perspective, Universities will continue to navigate various considerations associated with blended learning. Whilst Universities have of course been delivering teaching in this way for some time, there is a growing emphasis on delivering quality as we move away from the ‘emergency pivot’ to online delivery created by the situation at the outset of the Covid-19 pandemic.

Following its blending learning review, the Office for Students (OfS) has called on Universities to review their approaches to ensure that courses comply with the OfS’s conditions of registration. As ever, Universities must remain live to their consumer law obligations, and provide students with clear information about the approach to teaching they can expect. This is key to reducing the risk of complaints and disputes.  Linked to this is the need to ensure that Universities are complying with the Equality Act 2010 and are dealing appropriately with requests for reasonable adjustments – which may require new thinking where teaching is being delivered in evolving ways.

The focus on handling allegations of sexual misconduct either by or against students will continue: with the OfS planning a consultation on a new condition of registration to tackle this; and additional new guidance from Universities UK, with further new guidance expected.

The Higher Education (Freedom of Speech) Bill has returned to the Commons and is now in the final stages. The new complaints scheme and potential tortious liability created by the Bill may place additional burdens on Universities

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Rachel Soundy, corporate higher education partner, shared her thoughts on the national and international higher education landscape in 2023

The financial pressures currently faced by many UK Universities is likely to result in an increase in teaching and research collaborations and, quite possibly, a merger between higher education institutions. Transnational higher education partnerships will remain attractive to those Universities seeking to establish and scale-up their global networks, although there will continue to be a move away from establishing traditional branch campuses. Recent political questions about international student visa numbers may well increase offshore study for UK degrees.

The OfS’s recent requirement for registered providers to deliver successful outcomes for students (registration condition B3) will result in greater engagement between Universities, their careers advisory teams and local employers to support the development of graduate skills and employment prospects. For Higher Education Institutions offering online and blended learning, condition B3 will bring greater focus on the use of data analytics to monitor student attendance and predict continuation and completion rates. 2023 may also see Universities that act as validators seeking more visibility and assurance from their teaching partners about the quality and standards of delivery and student progression.

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Mark Paget Skelin, property partner, and Niamh Batterton, construction legal director, considered the property and construction challenges facing Universities in 2023

From a property perspective, the year ahead for University estates teams is likely to focus on ongoing commitments to reach net zero emissions by 2050 or earlier through reduced carbon emissions, such as reducing dependency on existing gas boilers, which has now gathered added momentum with the increase in fuel prices over the last six months.

Many Universities will also be facing increased pressures on their student accommodation, and so will be reviewing their accommodation portfolio and existing arrangements with accommodation providers, which had perhaps been less of a priority during the COVID-19 pandemic and associated periods of lockdown.

From a construction perspective, the impact of inflation will continue to result in more and more contractors are asking for fluctuation provisions in their contracts. In 2023 we will see an increasing number of Universities having to consider and negotiate a variety of contract options designed to deal with inflation and pricing mechanisms. Higher Education Institutions will need to think carefully how best to protect themselves – be this via Bonds, PCGs, Advance Payment Bonds and Vesting Certificates.

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Harriet Murray Jones, renewable energy and property law partner, shared her thoughts on what lay ahead for Universities’ energy and resource management teams in 2023

Many Universities and Higher Education Institutions have now made pledges net zero and carbon reduction commitments. The Higher Education sector will continue to play a critical role in the UK’s transition to net zero and are ideally placed to be leaders in the field, having been at the forefront of research into climate change and technological advances.  

Funding as ever is a challenge for the sector, but with a wide stakeholder base that is strongly engaged with the climate agenda the Higher Education sector will benefit from being at the forefront in leading the way and finding the right strategy of renewable resource, energy efficiency measures and sustainability. That said, one size won’t fit all and 2023 should be the year that Higher Education Institutions look to find the right solution tailored to their estate, energy use and the best route to reduce emissions.

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Nigel Bolton, partner and head of pensions, reflected on what the pensions landscape looks like for Universities in the year ahead

Many Universities will be aware that the Pensions Schemes Act 2021 introduces new duties for those involved in running defined benefit pension schemes. In particular, there are now extensive obligations to reflect and report on events that may impact pension schemes, including routine major projects, refinancing, restructuring activities and investments such as spin outs.

Failure to comply with the pension regulations can result in fines up to £1million and could attract prison sentences of up to 7 years and/or unlimited fines. At a time when many Universities are already grappling with financial pressures and the rising costs of borrowing, this threat of significant fines could act as an impediment to legitimate restructuring and investment activities.