Response of the Equality and Human Rights Commission to the Consultation:
Consultation details
Title:
Source of consultation:
Date:
Fulfilling our potential. Teaching Excellence, Social
Mobility and Student Choice
Department for Business, Innovation & Skills (BIS)
Deadline for response: 15 January 2016
About the Equality and Human Rights Commission
The Equality and Human Rights Commission is a statutory body established under
the Equality Act 2006. It operates independently to encourage equality and diversity,
eliminate unlawful discrimination, and protect and promote human rights. It
contributes to making and keeping Britain a fair society in which everyone,
regardless of background, has an equal opportunity to fulfil their potential. The
Commission enforces equality legislation on age, disability, gender reassignment,
marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex
and sexual orientation. It encourages compliance with the Human Rights Act 1998
and is accredited by the UN as an ‘A status’ National Human Rights Institution. Find
out more at www.equalityhumanrights.com.
Consultation response
The Commission welcomes the opportunity to comment on the Government’s
proposals to reshape the higher education landscape, including plans to further
improve access and outcomes for students from disadvantaged and underrepresented groups. Our response focuses on the questions most relevant to
equality and human rights in the consultation paper, namely questions 1, 12, 13 and
23.
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1. Widening participation and improving outcomes
Overall, the Commission supports the proposals put forward by the Department for
Business, Innovation & Skills (BIS) to further improve access and success for
students from disadvantaged backgrounds and from ethnic minority groups. The
Commission is particularly concerned by the fact that White school leavers are less
likely to go on to study at a Higher Education Institution (HEI) than those from ethnic
minorities, and that pupils from some ethnic minorities are less likely than others to
study at a higher-ranked HEI.1
There are other groups we think BIS should consider as part of its strategy to
improve access, participation and success in higher education. These include:
 disabled people, including those with learning difficulties, given that they
continue to be less likely to go onto universities than non-disabled people2
and because the forthcoming changes to the Disabled Students’ Allowances
could have a negative impact on how disabled students access and succeed
in higher education3
 students who have been in care, given that they are severely underrepresented in higher education4
 mature students, given that their number continues to decline and now stands
at just 29.5% of all students compared to 40.5% in 2003/4,5 and
 young adult carers (who are mainly women), particularly given their
disproportionate drop-out rate.6
EHRC (2015), ‘Is Britain Fairer?’ Available at: http://www.equalityhumanrights.com/about-us/ourwork/key-projects/britain-fairer/great-britain-report (accessed: 12 January 2016)
2 Department for Education (2015), Destinations of key stage 4 and key stage 5 students, 2012/13.
Available at: https://www.gov.uk/government/statistics/destinations-of-key-stage-4-and-key-stage-5pupils-2012-to-2013 (accessed: 12 January 2016)
3 EHRC (2015), Response to the Department for Business, Innovation & Skills (BIS): Consultation on
targeting funding for disabled students in higher education from 2016/17 onwards. Available at:
http://www.equalityhumanrights.com/legal-and-policy/our-legal-work/consultation-responses
(accessed: 12 January 2016)
4 Department for Education (2014), Children looked after in England, including adoption. National
Tables SFR36/2014. Available at: https://www.gov.uk/government/statistics/children-looked-after-inengland-including-adoption--2 (accessed: 12 January 2016)
5 Equality Challenge Unit (2015), Equality in higher education: statistical report 2015. Key findings in
the report. Available at: http://www.ecu.ac.uk/news/equality-higher-education-latest-reports-highlightgender-inequality-importance-disabled-students-allowance/ (accessed: 12 January 2016)
6 Carers Trust (2014), Research shows young adult carers struggling to cope in higher education.
Available at: https://www.carers.org/news/research-shows-young-adult-carers-struggling-cope-highereducation (accessible: 15 January 2016).
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2. Improving transparency and accountability
We support the proposal for a power to require all bodies delivering a service
connected with the provision of higher education (e.g. UCAS) to 'provide relevant
data and information to help better target efforts on widening access and success'.
Universities receiving financial support under section 65 of the Further and Higher
Education Act 1992 and institutions conducted by higher education corporations are
subject to the Public Sector Equality Duty (PSED),7 which requires them to:
 have due regard to the need to eliminate discrimination, advance equality of
opportunity and foster good relations (the general duty), and
 publish information demonstrating their compliance with the general duty, as
well as specific and measurable equality objectives to progress the general
duty (the specific duties).
The Green Paper proposes to provide the new Office for Students (OfS) with powers
to:
 set targets where HEIs are failing to make progress on widening participation
goals they set themselves in their access agreements, or where the outcomes
for specific groups are below expectations, and
 refuse to approve an access agreement when HEIs fail to achieve their
targets without good reason.
The Commission believes this proposal will complement the requirements of the
PSED, enabling the OfS to challenge failing HEIs and to encourage better practice
across the sector. To ensure this happens it will be important for BIS to monitor OfS’
performance of this role.
3. Public body requirements
As well as being subject to the PSED, HEIs are also ‘public authorities’ for the
purpose of the Human Rights Act 1998.
The scope of the proposed deregulatory measures in the Green Paper is not entirely
clear but, in the Commission’s analysis, it is important that HEIs remain subject to
the general and specific equality duties and the Human Rights Act.
The PSED ensures that public bodies consider the equality implications of their
activities and are transparent and accountable to their service users and the public.
The PSED acts as a positive driver for HEIs to contribute to the objectives of the
Green Paper in relation to disadvantaged and under-represented groups, providing
prospective students, and others with an interest in inclusive education, with better
access to robust, timely and objective information regarding the quality of teaching
7Section
149 of the Equality Act 2010. Available at:
http://www.legislation.gov.uk/ukpga/2010/15/section/149 (accessed: 15 January 2016). Governing
bodies of institutions in England within the higher education sector (within the meaning of section
91(5) of the Further and Higher Education Act 1992) are listed as public authorities in Schedule 19 to
the Equality Act 2010.
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and outcomes, and enabling them to better understand the links between
educational outcomes and employment and pay gaps.
The good relations duty in the PSED and the Human Rights Act 1998 are of
particular relevance to HEIs in light of the new Prevent duty.8 They should help HEIs
to implement Prevent in ways which reflect their responsibility to support freedom of
expression, thought, conscience and religion, freedom of association and the right to
respect for private and family life and correspondence, together with freedom from
discrimination in enjoyment of these rights.9 They will encourage HEIs to give active
consideration to risks of unintentional discrimination against some groups of students
or permitting an environment which damages relations between groups of students
and/or staff from different religious and/or ethnic backgrounds.
4. Equality analysis
We welcome the commitment of BIS to the PSED and the work already conducted to
assess the equality impact of its proposals. We comment below on some particular
aspects of the analysis.
4.1. Teaching Excellence Framework (TEF)
We generally welcome the proposal for teaching to have 'equal status with research
within and across HE institutions'. We think that this is particularly important given
the reported unbalanced distribution of research funding in the UK and because the
institutions which receive the majority of the research funds are those with more
socially exclusive student profiles in terms of background, including ethnicity and
age.10
We agree that the TEF could provide a reputational incentive to some HEIs to do
more to improve access and success of disadvantaged and under-represented
groups. We also agree that the TEF could benefit all students by providing them with
better quality information to understand the quality of teaching offered at different
institutions in order to inform their choice.
The design of the TEF is still very much in draft form and it is not yet clear what
tuition fee increases HEIs meeting the different levels of TEF will be able to
implement. In 2014, UCAS saw the largest recorded increase in university entry
rates among young people living in the most disadvantaged 20% of areas, narrowing
8
HM Government (2015), Revised Prevent Duty guidance for England and Wales. Available at:
https://www.gov.uk/government/publications/prevent-duty-guidance (accessed: 12 January 2016)
9 The Commission has produced information on how public bodies should balance the right of
freedom of expression, the PSED and the wider requirements of the Equality Act 2010 to protect
people from unlawful discrimination and harassment. This can be found here:
http://www.equalityhumanrights.com/publication/freedom-expression-legal-framework (accessed: 12
January 2016)
10 Tatlow, P. (2015), ‘Participation of BME Students in UK Higher Education’ in Alexander, C. and
Arday, J. (eds.) Aiming Higher: Race, Inequality and Diversity in the Academy, Runnymede Trust, pp.
10-12: Available at: http://www.runnymedetrust.org/uploads/Aiming%20Higher.pdf (accessed: 12
January 2016)
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the gap with those from more advantaged areas.11 However, it does not follow from
this that higher fees have not affected university participation, nor does it follow that
further fee increases in the future would not affect participation.
This is of even more concern if certain groups of students, such as those from more
disadvantaged backgrounds, were disproportionately deterred. It is also worth noting
that the Independent Commission on Fees has linked the 2012 tuition fees increase
with the significant and sustainable fall in mature and part-time student numbers and
has recommended for Government to ‘be extremely wary of substantive increases in
fees or removing the cap on fees completely’.12 More detail and analysis of the
proposals is required.
It is important for BIS to consider the impact of further increases in tuition fees as
part of its equality analysis, including ways to mitigate the impact on particular
groups of students.
4.2. Social mobility and widening participation
We agree that the plans to further improve access to and success in higher
education are likely to have a positive impact on students with various protected
characteristics under the Equality Act 2010. As explained in section 1.2, we think that
the proposals will complement the requirements of the PSED by increasing
accountability across the sector and by providing an effective and proportionate
mechanism to deal with failing HEIs.
We would encourage BIS to focus particularly on how the new system can improve
the access and success of students from under-represented groups in the most
selective HEIs. This may include ensuring that these HEIs have admission policies
that cater for the needs of those students who need to study part-time or that enable
those with alternative qualifications to A-level to apply.13
We would also suggest that actions to further improve access and success of underrepresented and disadvantaged students cannot entirely be disassociated from
actions to improve diversity of staff across the HE sector. As such, it may be useful
for the OfS to also be given a power to set targets for HEIs in relation to staff
diversity, including by encouraging them to use more positive action measures such
as ‘tie-break’ provisions to recruit and promote staff from under-represented groups.
EHRC (2015), ‘Is Britain Fairer?’ Available at: http://www.equalityhumanrights.com/about-us/ourwork/key-projects/britain-fairer/great-britain-report (accessed: 12 January 2016)
12 Independent Commission on Fees (2015), Final Report. Available at:
http://www.suttontrust.com/wp-content/uploads/2015/07/ICOF-REPORT-2015.pdf (accessed: 12
January 2016)
13 Data from 2012/13 shows that 14.5% of ‘BTEC students’ who attended 1994 Group institutions had
a disability, 13.6% in Universities Alliance and 11.5% in Million Plus institutions compared to only
8.2% of those in Russell Group institutions. It also shows that the proportion of ethnic minority ‘BTEC
students’ in Russell Group institutions stood at 17.7% in 2012/13 compared to 26.3% in 1994 Group
institutions. See Western Vocational Progression Consortium (2014), Vocational Progression to
Selecting Universities, Comparisons and Trends 2010-2013. Available at:
http://www.careerpilot.org.uk/upload/Final_BTEC_Research_2014.pdf (accessed: 12 January 2016)
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4.3. Opening the sector to new providers
The Green Paper acknowledges that the number of people studying at alternative
providers has grown from 6,600 in 2010/11 to around 60,000 today. The equality
analysis shows that these students tend to be older, more likely to be male, from low
income households and from an ethnic minority background. The data also shows
that 5% of students at alternative providers have declared a disability. In this context,
the plans to make it easier for alternative providers to enter the HE sector could be
positive, particularly if a large proportion of them apply for model 2b whereby they
will have to sign up to an access agreement to attract and retain disadvantaged
students in higher education and to be regulated by the OfS in the same ways as
other HEIs.
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