06/02/2025
Welcome to the winter 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 2025.
We'll also be hosting our higher education #WednesdayWebinar series in March. Look out for further details.
We hope you find the newsletter interesting and helpful.
Ashley Norman
Department Head for Higher Education
Our Higher Education team share their 2025 predictions for the sector
Ashley Norman, employment law partner and head of the higher education practice at Bevan Brittan, highlights some areas to watch for HE HR specialists
Where to start? There’s a lot going on both within HE and employment law more generally. Perhaps the two policy developments of most interest to the sector relate to the introduction of the duty placed upon employers to take steps to prevent sexual harassment in the workplace – this became law on 26 October 2024 and I know that most HEIs have taken steps to update their policies, deliver relevant training, and be more proactive in how they respond to such concerns in order to manage risk and promote improved working relations.
The other development concerns the ‘will they/won’t they’ approach of the government to freedom of speech in academia. When the Education Secretary paused the Higher Education (Freedom of Speech) Act 2023 shortly after Labour came into power in summer 2024, many of us thought that the legislation would eventually be permanently shelved. However, the announcement in January 2025 suggests that an updated version may yet become law. So, we will wait to see how that progresses.
Of course, there is plenty going on more broadly which will affect the HE sector, most particularly the Government’s Employment Rights Bill, which seeks to make a raft of significant changes to individual and collective employment law in this Country.
Amy Tschobotko, partner specialising in education law and student-related issues comments on regulatory and student-related issues for HEIs in the year ahead
The ongoing financial pressure on HEIs will lead to complex student-related issues. In scenarios involving market exit, HEIs will need to consider teach out and/or student transfers. Teach out of courses raises issues around resources, and may simply not be possible in some situations, such as an insolvency. Student transfers raise complex issues for HEIs including in relation to consumer law issues and student contracts; UKVI; information sharing and data protection; Equality Act and reasonable adjustments; and ensuring that previous credits and awards are appropriately recognised. This will of course put pressure on “receiving” HEIs. Even if we look at the comparatively less extreme end of the spectrum (for example a reduction in optional modules), difficult consumer law and reputational issues are in play. This all underlines the need to be clear on the contractual position on these issues and to ensure that communications to students are transparent and fair.
The introduction of OfS condition E6 relating to harassment and sexual misconduct in August 2025 will of course represent a step change in how HEIs are expected to deal with these issues. We know from our conversations with HEIs that there are questions over how certain of the OfS’s requirements will work in practice, and there are various thorny issues such as how to try and maintain oversight where third party partners are involved; how to ensure that processes establish the requisite principles of natural justice; and how to balance the interests of different parties to a complaint or investigation.
As Ashley mentions above, there are questions around the Government’s approach to the implementation of the Higher Education (Freedom of Speech) Act 2023. We will be looking closely at the role of the OfS in this context as the Government have now confirmed that the Act will require “robust codes of practice to ensure the protection of free speech”, which will be enforced by the OfS, and that Arif Ahmed will remain in post as Director for Freedom of Speech and Academic Freedom at the OfS, to ensure that these measures are “rigorously upheld”.
Nigel Bolton, partner and head of pensions, reflects on what the pensions landscape looks like for Universities in the year ahead
The University Superannuation Scheme has expressed support for the reforms proposed in the Chancellor’s Mansion House Speech delivered in light of the interim findings of Phase One of the Pensions Review put in motion by the Government in July 2024. The reforms set out in the interim report include the scaling and consolidation of defined contribution schemes into megafunds and the promotion of pension scheme investment in the UK. Whilst currently there are no specific details surrounding how the Government intends to encourage UK investment, there are concerns that any mandated UK investment has the possibility to negatively impact the returns for savers (other considerations can be found here). The final part of the Phase One report is expected in spring 2025, as we also await the scope of Phase Two of the Pension Review which should provide details of further reform. However, it is widely believed and now confirmed by Government that the recent pressures placed on employers will delay the publication of subsequent reviews. That being said, it is still expected that the Pension Schemes Bill will be published this year which is anticipated to deal with the proposed reforms in Phase One.
The Department for Education is consulting on proposed amendments to the Teachers’ Pensions Scheme Regulations. It is possible that the circa 80 Universities who offer TPS membership to their academic staff will be affected by this. The Department for Education wish to change the contribution structure following the scheme valuation that concluded in 2023 which estimated a lower member yield than as required (members are required to collectively contribute 9.6% and the estimated yield from the most recent valuation was 9.45%). The Department for Education’s recommendation is to retain the current 6-tier structure with an increase of 0.3 percentage points for tiers 2-6 to meet this shortfall in the member contribution yield. The contribution rate for the lowest tier (currently covering those earning up to £34,290 but which is subject to increase in April 2025) would not be increased as part of this recommendation. The draft regulations also update provisions on Fair Deal to be applicable further education establishments following a reclassification of further education colleges as public sector organisations. The consultation closes on the 23 January 2025 and the new employee contribution rate would apply from 1 April 2025.
Tijen Ahmet, legal director and head of our immigration practice comments on the immigration challenges for Universities in the year ahead
UK immigration policy changes introduced last year, prohibiting international students from bringing their family dependants to the UK, has led to the latest government published figures showing a 16% decline in sponsored student visas compared to the year before. If this downward trend continues in 2025, the loss of international tuition fees and financial impact on universities will remain a significant challenge for the sector.
Furthermore recent policy changes to maintenance requirements for students from 2 January, to align with maintenance loans available for home students, demonstrate an 11% increase in financials reserves required to cover living costs in the UK for international students. These changes are likely to act as a further deterrent to students considering the UK as their destination of study.
The financial pressures on Universities and their past reliance on international student income have forced some institutions to close courses, reduce research innovation and make redundancies to keep their heads above water however the Government has announced “major reforms” by summer this year for the higher education sector. It is imperative the government considered UK immigration policy and Universities continue to do all they can to sponsor students and adhere to the sponsorship compliance for both students and employees despite tougher measures for employers.
Learn more about our immigration services for higher education here, or find out more about our sponsor licence compliance services here.
Watch our autumn webinar on Impact of a new government on employment and immigration law in higher education.
Vicki Bowles, Partner and barrister, specialising in information and privacy law considers the data and information law challenges for Universities in 2025
AI and cybersecurity will continue to be both an opportunity and a challenge for the higher education sector in 2025. With AI, we are likely to see more attempts at regulation and an expectation that organisations will be carrying out suitable due diligence on any new tools and projects. Cyber threats continue to evolve, and the UK government has made resilience a priority with the introduction of the Cyber Security and Resilience Bill. Higher Education Institutions that work closely with partners in the EU will also have to be aware of any new EU regulation with which partners may need to comply.
In terms of information law more widely, we are seeing a continuing trend for an increase in requests for information – both under FOIA/EIRs and DSARs. With finances being under pressure, having adequate resource for this area is very likely to be a challenge for most, if not all, HEIs in 2025.
Finally, with the push by the new government for greater sharing of data by the NHS for research, we are anticipating a positive change in the research landscape, which will hopefully benefit HEIs with a research focus.
Watch our autumn webinar on Cyber security, data protection and IP for higher education institutions – practical tips to mitigate risk.
Helen Feinson, legal director in our Procurement, Subsidy Control and Competition team, reflects on the upcoming changes and challenges for Universities in the face of the implementation of the Procurement Act 2023 in February this year
The legal landscape governing public sector procurement in England and Wales is undergoing significant change. The new Procurement Act 2023 (PA 2023) is expected to come into force on 24 February 2025, and all procurements for relevant above threshold public contracts that commence on or after this date must comply with the requirements of the new regulatory regime.
The PA 2023 replaces existing procurement laws with a new consolidated set of rules. Whilst many of the underlying concepts and requirements in the PA 2023 will be familiar as they broadly replicate current procurement legislation, there are also some key differences and new obligations that Universities and other public sector bodies will need to address.
In particular, Universities and other bodies caught by PA 2023 should be mindful that the PA 2023 will widen the application of the public procurement rules to govern the full procurement lifecycle, from any pre-market engagement right through to contract management and eventual contract termination, and Universities will need to ensure they comply with the new requirements across each of these stages. Likewise, the PA 2023 will also introduce new transparency requirements, including a significantly wider range of notices which must be published at various stages of the procurement lifecycle.
Importantly, the new rules will only apply to new procurements. Any existing contracts, as well as procurements which go live before 24th February, need to remain compliant with current rules. The creation of a dual regime will no doubt prove challenging in the months (and years) to come.
Given the complexity of these changes, Universities should start preparing for the transition to the new procurement regime as soon as possible. We have produced a wealth of resources to help our clients navigate the new procurement landscape and you can find out more here, or alternatively get in touch with Emily Heard, partner and head of public procurement at Bevan Brittan.
We will also be running a free webinar to support those in the higher education sector navigate the new rules and answer key sector specific questions, and we would love to have you join us. Further information to follow.
Louise Mansfield, health and safety legal director, shared her thoughts on building safety considerations for Universities in 2025
The key challenge for universities over the next year from a health and safety perspective is likely to be around ensuring that its buildings, both student accommodation but also the rest of the estate, are safe from fire and collapse. There has been increased focus on these areas since the Grenfell Tower fire in 2017. Attention and regulation is likely to increase further this year after the Grenfell Tower Inquiry published its final report in September 2024. The Government are considering the 58 recommendations made in that report. It was debated in the House of Commons in mid-September 2024 and again in late November 2024 and the Prime Minister committed to formally responding within 6 months of publication, so by March 2025. The inquiry report concluded that “the simple truth is that the deaths that occurred were all avoidable…….and that those who lived in the tower were badly failed over a number of years and in a number of different ways”.
Part of the criticism was directed towards the Government and its failure to learn lessons from previous fires, failure to follow previous recommendations and it failure to regulate risks it was fully aware of (in the case of Grenfell, the use of combustible cladding). Those responsible for the tower were also criticised over their management of fire safety (particularly the attitude and openness of senior management to fire safety), their failure to act on recommendations made in audits and fire risk assessments (leading to a large backlog of outstanding actions and a fire strategy recommended in 2009 never being finalised), fire prevention measures not meeting the required standard, poor and inconsistent inspection and maintenance regimes, an emergency plan that was incomplete and not reflective of changes made to the building and their recruitment of incompetent advisor / assessors (leading to fire risk assessments that had serious shortcomings), as well as their management of the refurbishment (including its failures around public tenders and its focus on cutting cost at the expense of safety).
The recommendations which are likely to impact the way Universities manage fire safety on a day to day basis and also how universities can carry out construction work include the recommendations for:
- A new single construction regulator, responsible for regulating construction products, including testing and certification, accrediting fire risk assessors and oversight of building control
- Consideration of a single national building control authority.
- An expanded definition of a higher-risk building, which has duties for ongoing management as well as increased scrutiny for any building work (currently only buildings at or above 18m/7storeys with at least two residential units are covered)
- A requirement that fire strategies for higher-risk buildings have to be produced by a registered fire engineer.
- A requirement for mandatory accreditation for fire risk assessors (which should improve quality but may lead to a lack of assessors).
- Changes to the government guidance on fire safety during building work (Approved Document B)
- A requirement for specific personal emergency evacuation plans for any students in student accommodation whose ability to evacuate the building may be compromised (this could be due to physical reasons but also mental health reasons).
The scrutiny and enforcement of fire safety management is now higher than ever before. Universities should take into account the criticisms made of those responsible for Grenfell Tower and ensure that their management of fire safety is compliant and that all reasonable steps have been taken to ensure people are safe.
Rebecca Pendlebury and Mark Paget Skelin, both property partners in our Higher Education Team, comment on the property and construction challenges facing Universities in 2025
This year will see universities continuing to balance the need for investment in student accommodation and state of the art-facilities to attract top students and faculty against the need to find savings due to the freezing of tuition fees and reduction in foreign students (amongst other things).
Due to the continued demand for remote and hybrid learning, universities are still rethinking the need for traditional lecture halls and classrooms. There's a growing demand for flexible spaces that can accommodate a mix of in-person and virtual learning formats. Combined with this is the growing emphasis on sustainability in all sectors. Universities are rightly focusing on reducing their carbon footprints by adopting green building standards, energy-efficient designs, and renewable energy sources. However, this often requires significant investment and renovation of older buildings
With rising construction costs, it is becoming more difficult to fund capital projects, with universities becoming more reliant on government grants or donations. This economic strain caused by inflation and the uncertain financial landscape may limit the ability to pursue large-scale property developments or renovations unless the government brings forward an alternative funding model sooner rather than later
Harriet Murray Jones, renewable energy and property law partner, shares her thoughts on what lies ahead for Universities’ energy and resource management teams in 2025
Sustainability remains high on the agenda for higher education institutions. As such some institutions are developing their own clean power generation project, either involving connecting to the National Grid, or by direct wire into buildings. The grid connection reform will have an impact on any project proposing to connect to the grid.
It has been well documented that there are problems in the length of time that it takes to get energy generation projects connected to the grid. It has been said that delays in getting such projects connected to the grid is holding back investment in the UK and local economies. As a consequence we are in the midst of the National Grid’s grid connection reform, which is an overhaul of the way in which projects are added to the queue of projects awaiting connection to the grid.
Whereas, under the previous grid connections protocol, projects were added to the connections queue in the order that applications were received by the NESO (National Energy System Operator) or DNO, and remained moving up the queue even if the projects in the queue lacked the necessary property rights and/or funding; in the new system developers are required to demonstrate the viability of a project before progressing in the queue. Effectively NESO will transition from the first-come first-served process towards a first-ready, first-connected queuing system.
The change to the connections queue mean a gate based system. Gate 1 will provide connection offers based on a co-ordinated network design connection date. Gate 2 will be used to determine queue position. Before projects will be given a firm connection date (thereby securing their position in the ‘Gate 2’ queue), they will be required to show that they ready, including having secured both necessary land rights and planning consent (whether through local planning, or the DCO process).
From 29 January 2029, the NESO has informed that it is pausing acceptance of new connection applications so as to facilitate transition to the new grid connections process.
Whilst the grid connections reform is undeniably beneficial for ensuring that projects that are ready can progress ahead of speculative projects given a connection date under the old first-come first-served system, it does present a new challenge for developers in overcoming the stringent requirements before being able to receive a firm connection date. However this challenge may of itself present an opportunity.
Surplus land could be prepared for a clean power project and packaged in such a way that may allow a project to progress quickly through to the Gate 2 queue.
There are also opportunities in developing direct wire connections supporting renewable power direct to buildings.
Adrian Neale, legal director specialising in injury, disease and insurance disputes, comments on challenges in the personal injury field for the year ahead
2025 may bring more challenges to establish the extent of any common law duty of care which HEIs owe to their students.
In Feder & McCamish v Royal Welsh College of Music and Drama (Central London County Court) a court found that a university owes a duty of care to its student to carry out reasonable investigations into allegations of sexual assault received from the student.
In 2024 Abrahart v University of Bristol, the High Court found on appeal that the university had not made reasonable adjustments for its student’s known mental health illnesses, in breach of the Equality Act 2010. The court did not need to make a finding on whether the university also owed its student a common law duty of care. However, the court recognised that this as an issue of wider significance and importance which would warrant further judicial scrutiny in the future. Campaigners are likely to continue to petition for the enactment of a broad statutory duty of care on the part of HEIs towards their students.
There have been recent press reports of increasing levels of stress-related absences from work amongst HEI employees and the potential link to high workloads. A likely concern for some HEIs is whether such employees are going to bring personal injury claims for psychiatric injury. The common law duty of care in negligence owed by an employer to its employees is well established. If an HEI’s employee takes time off with stress or complains they are stressed because of an unmanageable workload, that is relevant to whether it is reasonably foreseeable to the HEI that its employee is at a risk of developing a psychiatric injury. To trigger a duty on the HEI to take steps, the indications of impending harm to health arising from stress at work, must be plain enough for a reasonable HEI employer to realise that something should be done about it. With limited finances and resourcing concerns at the fore, it may be difficult for the HEI to easily reduce workloads, introduce more rest breaks and take other measures to ease the load on its employee. In assessing whether an HEI employer has discharged its common law duty of care to its employee, the court can take into account the resources available to the HEI. Whether the HEI acted reasonably, given the limits on its resources and competing demands, could increasingly be a relevant defence in such claims.
The personal injury discount rate (‘PIDR’) increased in England and Wales from 11 January 2025. PIDR is the assumed rate of return on the investment of a Claimant’s lump sum damages. It is relevant to awards in larger claims, being used to calculate compensation for future pecuniary losses, such as lost earnings and lost pension. The rate is reviewed by the Lord Chancellor every five years and set at a level to give Claimants an adequate return on a lump sum payment based on “less risk than would ordinarily be accepted by a prudent and properly advised individual investor”. The biggest impacts of the change will be seen on claims with the longest periods of loss.
For HEIs with sufficient employer’s and public liability claims cover, this will be more of a concern for their insurers. For HEI’s who are self-funding or only partially insured, this will be a welcome chance to reduce claim reserves on larger claims. There are ramifications in ongoing litigation. Claimants who see the value of their claims reduced could be at risk of failing to beat a Defendant’s previous offer at trial and may face adverse legal costs consequences. Defendants will need to review whether counter schedules of loss should be amended to plead the new 0.5% rate and whether unaccepted offers made to claimants are now too high and should be withdrawn.
Say hello to us
Our Higher Education team is attending and speaking at a number of in-person and online events over the next few months, please follow the link for details. If you are also at these events, please come and say hello to us.
- British Universities Finance Directors Group – virtual Annual Finance Festival, 10-12 March 2025, Tijen Ahmet is presenting a webinar.
- LUPC and SUPC conference – in-person conference, 27 March 2025 Virginia Cooper and Bethan Lloyd will be attending.
- Association of University Directors of Estates (AUDE) – in-person annual conference 28 April – 1 May 2025, Cardiff University. Niamh Batterton and Rebecca Pendlebury will be attending.
- Universities Human Resources (UHR) – virtual Annual Conference, 13-15 May 2025, Ashley Norman, Anne Palmer and Siobhan Mulrey will be presenting an online legal session.
If you would like to discuss any of these topics in more detail, or to find out how we can help your organisation, please contact our Higher Education team.
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