Developments in the regulation of FE colleges delivering higher education

Recent developments suggest some movement in the relationship between those frameworks. The HE regulator, the OfS, has reduced a number of requirements for eligible FE colleges where it considers that the DfE already provides sufficient oversight. At the same time, the OfS has introduced its new free speech complaints scheme, creating an additional route for regulatory scrutiny in HE provision.

VWV advises both FE and HE providers on governance, regulation and compliance. We are watching developments from both regulators with interest, particularly where they affect colleges operating in the intersection of both the FE and HE sectors.

The July 2026 OfS reforms

In July 2026, the OfS announced reforms to its regulation of FE colleges. Following its earlier consultation, a number of registration conditions were disapplied for colleges where the regulator considered there was overlap with DfE oversight. The changes affect areas including financial sustainability, governance and access and participation statements.

While the removal of the access and participation statement requirement applies to all FE colleges registered with the OfS, the more substantial changes relating to financial sustainability and governance apply only to colleges that do not hold, and are not applying for, degree-awarding powers (DAPs). Colleges with DAPs remain subject to these requirements.

The OfS's rationale was that colleges without DAPs are subject not only to DfE oversight but also to validation or awarding arrangements with another higher education provider, providing an additional layer of external assurance. By contrast, colleges with DAPs are directly responsible for matters such as academic standards, academic governance and the award of qualifications.

The OfS acknowledges that FE colleges can face a complex regulatory framework and that duplication may act as a barrier to colleges seeking to expand their higher education provision. It explained that by streamlining registration for FE colleges without DAPs, one of its aims is to "reduce barriers for these providers to enter the regulated higher education sector – increasing student choice and access to diverse provision."

This seemingly reflects a wider policy objective of enabling FE colleges to participate more easily in the HE sector, which the OfS has recognised as an important source of higher education provision.

Overall, the OfS reforms may be seen less as deregulation and more as an attempt to avoid duplicate regulation where another public body is already undertaking a similar role, therefore reducing the regulatory burden without lowering standards.

Freedom of speech

While the OfS has reduced some requirements for FE colleges, it has also introduced its new free speech complaints scheme, which came into force on 1 September 2026. The scheme allows certain individuals, including staff, applicants for academic posts and visiting speakers, to bring complaints directly to the regulator where they believe an institution has failed to comply with its free speech duties.

For FE colleges with higher education provision, the implications of the scheme may extend beyond the HE offering itself. Complaints are directed at the OFS-registered provider and its governing body, and many of the policies that may be relevant to a free speech complaint operate at institutional rather than departmental level.

However, the OfS' Regulatory Advice 24, which contains guidance on free speech, recognises that providers are often required to balance free speech obligations with other legal and regulatory responsibilities.

One example given by the OfS is that it would not generally be "reasonably practicable" for a provider, such as a further education college, to secure free speech in such a way that breaches statutory safeguarding requirements applicable to students under the age of 18. (The concept of what is "reasonably practicable" sits at the heart of the OfS's free speech framework and requires providers to balance free speech obligations against other relevant legal duties.)

The example acknowledges that many colleges educate a diverse student population and are subject to a range of wider statutory duties that may not apply in the same way to a traditional university. Decisions relating to freedom of speech may also need to take into account safeguarding obligations, equality duties, learner welfare and other regulatory requirements that apply to the institution as a whole.

In that respect, the free speech guidance provides a useful illustration of a broader theme. While the OfS regulates higher education provision, it recognises that colleges remain subject to a wider legal and regulatory framework. The interaction between those different obligations is likely to be an increasingly important area of governance for colleges operating across both the FE and HE sectors.

Long-term view

The July 2026 reforms are not without potential points of tension. Some consultation respondents expressed concern that disapplying conditions for certain FE colleges could create a distinction between providers with and without DAPs. Others questioned whether the reforms sufficiently address the wider issue of overlapping regulation across the tertiary sector.

More fundamentally, while the OfS has chosen to step back from a number of areas where it considers that the DfE already provides adequate oversight, it has at the same time introduced the new wide-reaching free speech complaints scheme.

So, while recent reforms may indicate a greater willingness by the OfS to avoid duplicating DfE oversight in some areas, colleges operating across the FE and HE sectors must still navigate overlapping frameworks. It is even conceivable that a college may be answerable to more than one regulator in relation to the same underlying issue, for example, if its financial position or governance deteriorates to the point of impacting the HE provision.

Whether the reforms result in a simpler regulatory environment will become clearer over time, but for now they do at least demonstrate a clear willingness to pursue that objective.

For more information or support for your FE college, please contact Liz Smillie in our Regulatory Compliance team.