DRAFT - Supporting compliance and taking regulatory action - GOV.UK

Published 3 weeks ago• 65 minute read

We are a statutory body, created by the Apprenticeships, Skills, Children and Learning Act 2009, as amended by the Education Act 2011 (the Act). sets out our legal framework.

We regulate to secure the standards of, and promote public confidence in, qualifications. We also regulate to secure efficiency in the provision of qualifications and to raise awareness of the range and benefits of regulated qualifications. When things go wrong, or we anticipate they may go wrong, we take appropriate regulatory action.

We regulate academic and vocational qualifications , assessed in England. We only regulate these qualifications if they are provided by a body we have recognised to provide them. Each recognised body is known as an “awarding organisation”. The qualifications we regulate are known as “regulated qualifications”.

We also review all aspects of statutory assessment arrangements (“regulated assessment arrangements”, that is, National Curriculum and Early Years Foundation Stage assessments)^{[footnote 1]}.

This document use our statutory powers to take regulatory action From time to time we will evaluate our approach and revise this document as appropriate. We will consult when we make any changes.

This is the third version of our Taking Regulatory Action policy. It has been revised to reflect our regulatory strategy and our experience of using our powers to take regulatory action since the policy was last updated in May 2012. We now call the policy Supporting Compliance and Taking Regulatory Action.

The first version of this policy was published in June 2011 and it was amended in May 2012 mainly to reflect the changes that were made to our powers by the Education Act 2011.

For the third version, we have renamed the policy: Supporting Compliance and Taking Regulatory Action, because the focus of our work is preventing non-compliance and minimising the need to take formal regulatory action.

This policy is part of the Qualifications Regulatory Framework, which sets out how we monitor awarding organisations and enforce each awarding organisation’s compliance with its conditions of recognition.

The policy relates only to regulated qualifications (including regulated End-Point Assessment qualifications (EPAs)) and the awarding organisations that provide them. For information about regulated assessment arrangements, see the Regulatory Framework for National Assessments: National Curriculum and Early Years Foundation Stage Assessments (2018).

We follow good regulatory practice, particularly the principles of transparency, consistency, proportionality, targeted action and accountability, as well as the Macrory report Regulatory Justice: Making Sanctions Effective (November 2006)^{[footnote 2]}. In line with these principles, we target our regulatory activities according to our assessment of risks to learners, standards, efficiency and public confidence.

We hold awarding organisations accountable for the quality and standards of their regulated qualifications.

We take action when we believe it is appropriate. This may include acting to prevent something going wrong, such as to stop an awarding organisation from breaching its conditions of recognition. When things go wrong we will consider the action we should take to make sure the situation is put right. In particular, when an awarding organisation is in breach of, or likely to breach, its conditions of recognition, we act as appropriate to:

We treat like cases alike, and we recognise where differences of fact mean that cases should be treated differently. When taking decisions, we consider all the circumstances of the case in the light of available evidence.

This does not mean every decision whether to take action or what action to take will be the same, as each set of circumstances may differ. We use our professional judgment and discretion, taking account of relevant factors, which include:

We mainly direct our regulatory activity towards behaviours we consider present the greatest threats to our statutory objectives and the greatest risks to the interests of learners and others that rely on qualifications.

In relation to the breach of a condition by an awarding organisation, we take into account all relevant facts, including:

Each awarding organisation must comply with its conditions of recognition. Where it that an awarding organisation to comply with its conditions, or we judge that there is a likelihood that it will fail to comply, we will decide what action is appropriate. We can use the powers explicitly given to us in legislation (statutory powers), but there is a wider range of actions available to us, including measures we can take at an earlier stage, where we identify a risk that an awarding organisation might fail to comply. Depending upon the facts of a particular case, we may use one or more of the actions available to us in order to achieve the best outcome.

Some of the statutory powers available to us are referred to in legislation as ‘sanctions’ – to give a direction, impose a monetary penalty or withdraw recognition. We have set specific governance arrangements which reflect the gravity of those powers. When we decide whether a case should be escalated so we can consider whether to impose a sanction we apply a ‘case to answer’ test, which involves considering:

a) Non-statutory actions

Our preferred approach is to support awarding organisations to remain in or return to compliance with their conditions of recognition by encouraging them to identify risks and potential issues early and making sure they resolve weaknesses in systems and processes before adverse effects can occur.

We will often use non-statutory means, at least in the first instance, to influence an awarding organisation’s behaviour and to support compliance. We will typically use non-statutory approaches where the nature and effect of the issue does not justify formal intervention, which might include where:

There are a variety of non-statutory actions available to us, which include:

Further information about some of these non-statutory actions is given later in this document.

b) Statutory actions

We can seek to influence the way an awarding organisation behaves by using our statutory powers to:

We may also:

We can use our powers in combination. For example, we might direct an awarding organisation to take action to bring itself back into compliance with its conditions of recognition and also decide that a fine is a suitable response to that breach.

We will refer a matter to other bodies to investigate if they are better placed to do so. For example, if we were concerned about fraud we would generally refer the matter to the appropriate investigating authority; unlawful discrimination we would generally refer to the Equality and Human Rights Commission; anti-competitive practice we would generally refer to the ; and we would generally refer concerns about significant personal data infringements to the Information Commissioner.

c) Investigation

We will investigate whenever we consider this is the most appropriate way for us to understand more about an event, incident or issue which concerns an awarding organisation.

There are a variety of different ways we can investigate an issue, which range from asking a series of targeted questions or using our powers under the conditions to require an awarding organisation to provide information we specify, to commencing a formal regulatory investigation with a defined and documented scope and which may require the imposition of an Entry and Inspection Condition (set out later in this document).

d) Publication

We will be transparent in our approach and will report publicly whenever we give a direction, impose a fine or withdraw any part of an awarding organisation’s recognition. We will usually publish information about any other statutory regulatory action that we take, unless we say otherwise in this policy or there are exceptional circumstances that justify withholding publication. We consider that public confidence in regulated qualifications will be promoted by being transparent where we have taken action to resolve non-compliance, even where the non-compliance would not otherwise have become known to the public. Publication serves as a safeguard for awarding organisations and the regulator and is in the public interest^{[footnote 4]}.

We will also publish information about some forms of non-statutory regulatory action that we take, where we consider this appropriate.

Whenever we publish information about regulatory action (statutory or non-statutory), we will notify the awarding organisation in advance of the planned publication and provide details of the timing and content of the publication. In some cases, we may decide it is necessary to notify the awarding organisation only shortly before publication; we will explain why we have done so in any such case.

We may consider delaying the publication of information about statutory or non-statutory regulatory action if, for example, publication at a particular time may exacerbate existing risks to learners or to standards, or might undermine public confidence.

Where we consider it appropriate to do so, we may share relevant information and work with other public organisations including other qualifications regulators (in accordance with sections 40AA, 156 and 157 of the Act). The main organisations we share information with are the other UK qualifications regulators and any relevant government departments, bodies or agencies.

This section explains the main non-statutory actions we can take and the factors we will take into account when we are considering whether to take non-statutory action and which particular action to take.

Some of the factors which might lead us to take non-statutory regulatory action are:

In some cases we might take non-statutory action alongside formal regulatory action. For example, we might impose a monetary penalty to reflect past non-compliance and accept an undertaking from the awarding organisation which sets out its plan to prevent the incident or event from recurring.

Some of the conditions allow us to set requirements which specify actions which an awarding organisation must take to comply with the condition. We can also set special conditions (below) which allow us to make such requirements. Where we make requirements under a condition, those requirements will specify what the awarding organisation must do and the timescale within which it must do it. We will set such requirements out in writing.

Examples of the actions we can require an awarding organisation to take under a condition include, but are not limited to:

In many cases we will provide feedback and advice to the awarding organisation before making requirements under a condition. This allows the awarding organisation to make necessary changes without the need for requirements, or to address our concerns differently, perhaps by providing more detailed information.

If we make requirements under a condition the awarding organisation must comply with those requirements. If an awarding organisation does not comply with those requirements it will breach the condition under which they are made. We will usually consider a failure to comply with requirements we have specified to be a serious breach of the conditions and will consider taking statutory regulatory action.

Where we impose requirements on an awarding organisation, we will consider whether to publish information about those requirements. We will publish information about the requirements immediately if we consider it is important those requirements promptly come to the attention of learners or other users of qualifications. In other cases, we might decide to publish requirements at a later date, which may be after the awarding organisation has completed the specified actions, or we might decide that it is not necessary to publish information about the requirements at all.

One of the specific actions we can take under the conditions is to prevent an awarding organisation from issuing results for a qualification until a particular time or until it has complied with any requirements we specify.

The circumstances in which we might consider exercising this power include, but are not limited to:

Restraining an awarding organisation from issuing results is a serious step which could cause inconvenience and distress for learners and other users of qualifications. Before taking action which might delay results, we will carefully consider the interests of the cohort of learners affected by our decision and seek to balance this with the need to maintain standards for the qualification in the longer term. Wherever possible we will aim to act early so that results can be issued on time or with a minimal delay, if the awarding organisation promptly takes the necessary remedial action.

If an awarding organisation is unable or unwilling to take the necessary action after we have given notice restraining the issue of results, we will consider escalating our approach, including by taking statutory regulatory action where we consider it appropriate.

In particular, should an awarding organisation refuse to take action we have specified then we might give a direction in accordance with this policy, which we can then enforce through the Courts. We would also consider whether we can continue properly to regulate the awarding organisation, or whether we should take action to withdraw recognition.

Where it appears to us that a significant number or proportion of results are likely to be delayed, beyond the time when centres and learners would expect to receive those results, we will carefully consider what information we need to share about the requirement. This may include publishing the requirement.

Whether or not we publish, we will usually notify the other qualifications regulators and any relevant government bodies where we issue a requirement restraining results.

Often incidents which reflect non-compliance with an awarding organisation’s conditions of recognition will be isolated and unlikely to recur, the awarding organisation will be able to resolve any underlying issues swiftly, or the impact of a longer lasting issue on learners will be minimal. In such circumstances we might decide it is not necessary to take any action, but we will usually want to record the circumstances of the non-compliance to ensure we have an accurate compliance history for the awarding organisation.

In many cases, the awarding organisation will admit the non-compliance without prompting and in most other cases the awarding organisation will agree once we explain our view.

Where the awarding organisation does not agree that non-compliance has occurred we will determine whether or not a condition has been breached and will record our decision together with the circumstances of any breach (the determination decision). We will also record the steps we have taken to allow the awarding organisation to admit any non-compliance.

Appeals

An awarding organisation which disagrees with a determination decision will have the opportunity to appeal against that decision. We have set Appeal Rules which explain the procedure for such an appeal and which are annexed to this policy. When the appeal is considered, the decision-maker(s) will be able to allow the appeal or dismiss the appeal. Where the appeal is dismissed, the decision-maker may confirm the determination decision, require further investigation of the issue or take alternative regulatory action, which may be non-statutory action or statutory action.

We will retain records of non-compliance and will use these to inform our assessment of risk, our evaluation of the framework of conditions and guidance and where relevant, any future decisions about taking regulatory action in relation to the awarding organisation. We will retain records of an awarding organisation’s past non-compliance throughout the time we regulate it, and for 7 years after we cease to regulate it. However, the relevance of past non-compliance and the weight it might be given in determining the outcome of future cases will usually decrease over time.

We will not routinely publish individual determinations of non-compliance but we might do so in an appropriate case. Where we think it will have a beneficial effect we might report on the number of determinations made in a particular period and/or the conditions commonly engaged.

We will carefully consider whether the outcome of an appeal against a determination of non-compliance should be published. In particular, we might publish information where we consider the appeal illustrated a genuine misunderstanding about the effect of a condition which might benefit other awarding organisations.

An undertaking is a commitment by an awarding organisation to take specific actions, or implement an action plan, which it has identified as necessary to secure ongoing compliance with its conditions of recognition. Undertakings are given under the conditions which means an awarding organisation must comply with any undertaking it gives.

In some cases, we might decide to accept an undertaking in circumstances where we could otherwise give a direction. In particular, an undertaking may be preferable where the awarding organisation admits the non-compliance and has put in place a credible plan to secure sustainable compliance within a reasonable period of time.

We may also accept an undertaking where there has not been any non-compliance, for example where the awarding organisation agrees to take measures to prevent an identified risk of non-compliance from materialising, or to secure assurances from an awarding organisation where there is going to be a change to its governance, financial or other relevant arrangements.

An undertaking often includes a detailed action plan, sometimes as a schedule to the undertaking. The awarding organisation must ensure its action plan will address all the issues to which the undertaking relates and should be able to explain to us how the action plan was developed and why it will deliver the necessary outcomes. We will not accept an undertaking if we consider the action plan is clearly inadequate, but the responsibility for ensuring the action plan is sufficient and comprehensive remains with the awarding organisation.

We will expect an undertaking to include mechanisms to provide us with assurance that the awarding organisation is delivering its action plan effectively and that the plan is having the necessary impact. Where the awarding organisation considers its action plan is not having the intended effect, it should talk to us about how it proposes to amend the action plan.

In some cases we might decide we can only accept an undertaking if it includes a commitment by the awarding organisation to engage a third party organisation or individual to support it. This might involve the third party reviewing the awarding organisation’s systems and supporting the creation of an action plan, or providing us with assurance by auditing the implementation and impact of the awarding organisations action plan (or both).

An awarding organisation which fails to comply with an undertaking it gives will breach the condition under which it is given. We will usually regard the failure to comply with an undertaking as a serious breach of the conditions which will require statutory regulatory action. Typically, we will consider the imposition of a monetary penalty (a fine) where an awarding organisation fails to comply with its undertaking.

Undertakings will normally be published on our website. In appropriate cases we might delay publication – for example if the undertaking identifies weaknesses which could be exploited if we publish before remedial measures are in place – and we will consider redacting information which is materially commercially sensitive. Where the undertaking incorporates an action plan, we will not normally publish the action plan because it is likely to include detailed information about the awarding organisation’s systems and processes which may not be suitable for publication.

Where we consider an occurrence of non-compliance is sufficiently serious that just recording the breach would not adequately promote public confidence or deter future non-compliance, we will normally consider the imposition of a monetary penalty (a fine). In some circumstances we might instead decide to issue a rebuke to the awarding organisation.

We will only issue a rebuke where we consider this to be a proportionate response to the particular circumstances surrounding an awarding organisation’s failure to comply with its conditions of recognition.

Before issuing a rebuke, we will give the awarding organisation an opportunity to make representations in respect of the allegation that it has breached the conditions and about our proposal to issue a rebuke. Once we have considered any representations we will either confirm our decision to issue a rebuke or decide not to proceed. In exceptional cases we might decide at this stage to consider taking statutory regulatory action instead of proceeding with the rebuke.

A rebuke will be set out in a notice explaining the circumstances of the non-compliance and why we consider those circumstances to be sufficiently serious for a rebuke. A rebuke will normally be issued by the Chief Regulator and will be known as a ‘Chief Regulator’s Rebuke’. The notice will summarise any representations which were made by the awarding organisation.

An awarding organisation which disagrees with a rebuke issued to it will have the opportunity to appeal against that decision. We have set Appeal Rules which explain the procedure for such an appeal and these are annexed to this policy. When the appeal is considered, the decision-maker(s) will be able to allow the appeal or dismiss the appeal. Where the appeal is dismissed, the decision-maker may confirm the rebuke or decide to take regulatory action, which may be non-statutory action or statutory action.

We will normally publish any rebuke we issue. We will delay publication until the time for an appeal has passed and will not publish where an appeal is brought, until the appeal has concluded. Where the appeal is dismissed, we will normally publish the outcome of the appeal as well as the rebuke.

We will usually give a copy of the rebuke to the other UK qualifications regulators where the awarding organisation is also regulated by those organisations and to any relevant government departments, bodies or agencies.

We do not regulate centres (such as schools, colleges and training providers) but most awarding organisations rely on centres to deliver their regulated qualifications.

Awarding organisations are responsible for ensuring that the centres they work with deliver qualifications in a way which allows the awarding organisation to remain compliant with its conditions of recognition. We have set specific conditions to manage some aspects of the relationship between awarding organisations and centres.

Awarding organisations must promptly notify Ofqual where there is cause to believe that an incident at a centre has occurred or is likely to occur which could affect qualification standards, undermine public confidence or which could prejudice learners.

Where we consider that circumstances at a particular centre could give rise to significant risks for other awarding organisations, we may issue a notice to some or all awarding organisations explaining our concerns and giving examples of the information we have received about the centre. This does not affect awarding organisations’ responsibility to notify appropriate persons under the conditions.

Where an awarding organisation already has arrangements in place with a centre which is the subject of such a notice, we will expect it to consider any action it may need to take to ensure it remains compliant with its conditions of recognition in light of the information we set out.

Similarly, we will expect an awarding organisation which is considering whether to work with a centre affected by such a notice to have regard to the notice as part of its decision-making process.

Should it be necessary to take regulatory action in relation to an awarding organisation as a result of subsequent events at a centre which has been the subject of such a notice, we will take into account any action, or lack of action, on the part of the awarding organisation following that notice.

Our approach to issuing notices about centres will be influenced by our assessment of the risks affecting particular segments of the qualifications market at different times as well as by our corporate priorities and our resources. If we decide it is necessary to begin issuing notices about centres, we will publish an annex to this policy setting out when and how we might issue such a notice.

When we first publish an annex, we will explain on our website that we have done so. We will keep any annex under review and may change it from time to time. If we change the annex, we will explain on our website that we have done so, and may summarise the changes we have made. We will not normally consult before publishing or amending the annex, which will not form part of the qualifications regulatory framework.

Each awarding organisation must comply with its conditions of recognition. Most of these conditions of recognition will apply to all awarding organisations (we call these the General Conditions of Recognition). However, different general conditions might also be applied to different types of awarding organisation, different qualifications or types of qualification or components of qualifications.

We may also place additional conditions on an individual awarding organisation. We call these additional conditions “special conditions”.

Two particular types of special conditions which we can impose are:

We can also impose other types of special condition on an individual awarding organisation where appropriate.

a) Setting or revising general conditions

When we set new general conditions, or revise those we have already set, we will consult on the changes we propose. We will then publish any changes we make.

b) Imposing a special condition

We may impose a special condition when we first recognise an awarding organisation, , or at any later time.

When we are considering imposing an entry and inspection condition, we will follow the procedure set out in this policy.

When we are considering imposing a special condition on an awarding organisation we will give the awarding organisation written notice of our intention. We will normally allow the awarding organisation to make representations to us. Where we do this, we will tell the awarding organisation in the notice the date by which it must make its representations. The time we allow will be determined by the urgency with which we need to put the condition in place in order for it to have the impact intended.

Special conditions (other than those imposed at the time of recognition) will normally be published on our website. In appropriate cases we might delay publication – for example if the special condition identifies weaknesses which could be exploited if we publish before remedial measures are in place – and we will consider redacting information which is genuinely commercially sensitive. We will publish special conditions imposed at the time of recognition whenever we consider it necessary to do so.

Whether or not the special conditions are published, we may give a copy of any special conditions to the other UK qualifications regulators where the awarding organisation is also regulated by those organisations as well as any relevant government departments, bodies or agencies.

c) When might we impose special conditions on an awarding organisation?

We may use a special condition to address a particular issue with the awarding organisation’s performance, behaviour or activities, and this may follow other regulatory action we have taken.

The range of circumstances in which it would be appropriate to impose a special condition is wide and might include, but is not limited to, the following:

d) Special conditions imposed at recognition

Special conditions may be imposed at the time of recognition to address relatively minor and/or discrete areas of risk or weakness that have been identified during the recognition process and which we consider the awarding organisation has the capability to resolve within a reasonable time frame.

Special conditions cannot be used to enable an application for recognition to be approved where an awarding organisation does not meet our criteria for recognition, but we can impose controls to minimise risks which might otherwise prevent us from recognising the organisation. For example, where an awarding organisation has limited resources we might restrict the number of learners it can assess in a given period or restrict the number of registered learners it can have, where we consider it would not have adequate resources to meet the criteria for recognition with larger numbers of learners.

e) Monitoring and escalation process

Special conditions imposed at recognition or later may specify requirements that an awarding organisation must demonstrate to Ofqual’s satisfaction that it has met by a specified date (the ‘evaluation date’).

If after evaluation we consider that the awarding organisation has demonstrated the requirements to our satisfaction, the relevant requirements in the special condition will be removed.

If we consider that the awarding organisation has not demonstrated the requirements to our satisfaction we may consider one or more of the following options:

These options may be used in isolation or combination, simultaneously or at different stages. The decisions we make will depend on the level of risk presented by the awarding organisation, our evaluation of the progress it has made against the requirements of the special conditions and our assessment of the likelihood of it being able to meet the requirements of the special conditions within a reasonable time.

If we intend to amend the terms of the special conditions we will give the awarding organisation notice of our intention to do so and allow it an opportunity to make representations before we decide what action we will take. If we consider the awarding organisation has breached the special conditions and/or we are contemplating taking regulatory action, we will follow the relevant process set out in this policy.

The awarding organisation may be required to provide periodic reports to us demonstrating its progress against the special conditions before the evaluation date and we may provide feedback to the awarding organisation of our monitoring. The conditions require an awarding organisation to have due regard to any feedback we provide to it, including feedback provided in relation to a special condition.

f. Removing a specified condition

We may decide that an individual awarding organisation is not to be subject to a specified general condition at the time of recognition. We may also decide that an awarding organisation is to cease to be subject to a specified general condition or to a special condition at any later time.

We will do so either on considering a request from an awarding organisation to remove a specified condition or by initiating ourselves a review of the application of a specified condition. We will review the special conditions we have in place from time to time to make sure that the burdens we are placing on awarding organisations are appropriate.

When we determine whether or not a particular condition should be removed, we will consider a range of evidence, including:

We expect that an awarding organisation will normally co-operate with any reasonable request we might make for information or documentation, or to allow us access to its premises. Each awarding organisation is subject to a general condition to respond to information requests we might make to help us in connection with performing our functions.

However, in appropriate cases we will impose an entry and inspection condition. This is a type of special condition.

a. Entry and inspection conditions

An entry and inspection condition requires an awarding organisation to allow us to enter premises it controls so that we can inspect and copy documents.

We are subject to certain statutory limitations relating to the situations in which an awarding organisation would be required to allow us entry under an entry and inspection condition.

These are that:

b) Setting of an entry and inspection condition

We will use a risk-based approach when considering whether to set an entry and inspection condition for an awarding organisation. We might set such a condition where, for example:

c) When we will seek to exercise entry and inspection powers

In appropriate cases, we will seek to exercise our powers under an entry and inspection condition, so far as is necessary to satisfy ourselves that the appropriate standards are being maintained by an awarding organisation in relation to the award of any of its regulated qualifications.

Appropriate cases may, for example, include those in which:

d) Procedure for exercise of an entry and inspection condition

Before we seek to exercise our powers under an entry and inspection condition, we will consider the:

e) Notice

Where we require information, we will give an awarding organisation reasonable notice and, where possible, details of the information required.

The urgency with which we need to visit will determine how we deliver the notice. The notice will set out the reasons for entry. If entry is required specifically in order to access computer systems, we will normally give notice of the need to provide suitably trained personnel to enable us to access records.

Entry to an awarding organisation’s premises must be by an authorised person. An “authorised person” is defined as being a member of our staff who is authorised (generally or specifically) for this purpose.

We will maintain a record of all staff who are authorised to enter awarding organisations’ premises. Authorisation will normally be restricted to staff who are routinely engaged in regulatory or complaint investigation activities. All staff visiting an awarding organisation will have information on the purpose of the visit. The awarding organisation can contact us for confirmation that the members of staff are authorised by us to enter premises under an entry and inspection condition.

g) Reasonable notice

The amount of notice we give to an awarding organisation of our intention to enter and inspect depends on the reasons why we wish to do so.

When we give an awarding organisation notice that we wish to enter its premises, we have to balance the awarding organisation’s interests against the need to preserve the integrity of the information or evidence being sought and the urgency of any subsequent action that may need to be taken.

This will be particularly important in cases where we may have grounds to believe that there is a significant risk that an awarding organisation will remove, amend or destroy the information or documentation that we may wish to inspect and copy.

We would normally ensure that the awarding organisation is given a minimum of 2 working days’ notice of the arrangements for the visit, but this may need to be reduced if we urgently need to access information.

In instances where we need to enter premises urgently, for example in response to allegations of serious malpractice, we may need to give as little as one hour’s notice.

h) Reasonable hours

We would normally expect to be given access whenever an awarding organisation is conducting its business. We would expect to have access during office hours, but we would also expect to be given access when an awarding organisation is holding meetings or undertaking other activities earlier or later in the day or at the weekend.

i) Access to other premises

Where an entry and inspection condition exists, we will expect to have access to any premises where an awarding organisation conducts its business, but not to a private dwelling. If we are unable to access premises because the awarding organisation is operating out of a private dwelling, we will consider whether we should use other regulatory actions available to us.

Where the information or documentation that we require is held by a centre or a third party contracted by the awarding organisation to support the delivery of qualifications, we would expect the awarding organisation to obtain the necessary information or documentation from these parties.

Under General Condition C2.3(b) and (c), to enable us to carry out our normal monitoring and enforcement functions, and to enable an awarding organisation to carry out its review and quality assurance activities, the awarding organisation must ensure that each centre agrees to co-operate with both the awarding organisation and with us. The awarding organisation must also ensure that each centre agrees to provide both it and us with access to premises, people and records.

j) Publication

We will not routinely publish an entry and inspection condition, but we may do so in an appropriate case.

Whether or not we publish, we will usually give a copy of the entry and inspection condition to the other UK qualifications regulators where the awarding organisation is also regulated by those organisations and may notify any relevant government departments, bodies or agencies.

k) Failure to comply

An awarding organisation that fails to comply with an entry and inspection condition will breach that condition. We are likely to regard breaching such a condition as a serious breach and a significant failing by the awarding organisation which adversely affects our ability to regulate it going forward. It is likely that we will take further regulatory action in response to such a breach.

a) Making a qualification subject to an accreditation requirement

We can impose an accreditation

We can impose an accreditation requirement:

As well as explaining the process of accreditation, this policy sets out how we will determine which qualifications will be subject to an accreditation requirement.

Where an accreditation requirement applies, an awarding organisation is subject to a , which states that the awarding organisation can only award a form of the specified qualification if we have first accredited it.

The general or special conditions on an awarding organisation will continue to apply when a qualification is subject to an accreditation requirement.

b) Process of accreditation

An awarding organisation that is subject to an accreditation condition for a qualification must first submit to us for accreditation the form of the qualification it wishes to provide. We will review the qualification before it can be entered on the Register and offered or awarded to learners.

We will accredit the qualification only where the form of the qualification submitted meets the criteria for accreditation we have set and published for that qualification. Once it has been accredited, we will allow the qualification to be entered onto the Register. An accredited qualification can be offered to learners from the date we specify.

If we refuse an application for accreditation of a qualification we will inform the applicant awarding organisation in writing of the reasons for that refusal. The awarding organisation cannot make that form of the qualification available.

c) When might we impose an accreditation requirement?

We will impose an accreditation requirement to reduce a risk connected with either the qualification or the awarding organisation.

We may apply an accreditation requirement to a specific qualification because of its complex nature, particular characteristics, or because of the wider impact if the qualification is not well designed, delivered and assessed.

We may also apply an accreditation requirement where we do not have full confidence in an awarding organisation’s own qualification design, development, approval or quality assurance arrangements.

d) Consulting with the awarding organisation(s) awarding the relevant qualification(s)

Where we are considering applying an accreditation requirement to a specific qualification, or description of qualifications, we will consult publicly on our intention to do so.

Where we intend to impose an accreditation requirement only to a specific awarding organisation’s qualifications – either to all or some of its qualifications – we will consult the awarding organisation in question. We will explain the reasons why we intend to make one or more of its qualifications subject to an accreditation requirement and invite the awarding organisation to make any representations to us, giving it reasonable time to do so.

At this point in time we will also consult with the awarding organisation on the accreditation criteria that we propose to apply to the relevant qualification(s).

e) Publishing use of an accreditation requirement and accreditation criteria

Where we decide that all forms of a qualification or of a description of qualifications are subject to an accreditation requirement, we will publish details of our decision.

We will not usually publish details of where an accreditation requirement is applied in respect of an individual awarding organisation’s qualifications. However, we may do so in an appropriate case and/or we may include in our public reports the fact that we have applied an accreditation requirement to specified awarding organisations’ qualifications.

If we impose an accreditation requirement on an awarding organisation which is also regulated by the other UK qualifications regulators, we will explain the requirement to the other regulator(s). We may also notify any relevant government departments, bodies or agencies.

We will also publish our accreditation criteria.

f) Revising the accreditation criteria

We may revise accreditation criteria. Before we do so, we will consult with the relevant awarding organisation(s).

Where we revise the accreditation criteria, the accreditation of an existing form of the relevant qualification ceases to have effect on a date specified by us. After this date the form of the qualification will be removed from the Register. The awarding organisation must submit a new form of the qualification, which meets the revised criteria, and seek re-accreditation if it wishes to continue to provide the qualification. However, in appropriate cases, we may make and publish:

g) The duration of the accreditation requirement

We will review, from time to time, the application of an accreditation requirement that is applied to a qualification or a description of qualifications, taking into account responses to a public consultation.

We will also review, from time to time, the application of any accreditation requirement where it applies to a specific awarding organisation’s qualifications. We will take into account:

If an accreditation requirement has been applied to a specific awarding organisation’s qualifications and we are confident that the awarding organisation’s own arrangements will ensure that its qualifications meet the appropriate regulatory requirements, without the need for further scrutiny by us, we will lift the accreditation requirement.

a) Power to give a direction

We may direct an awarding organisation to take, or not to take, specified steps if it appears, on the evidence available to us, that the awarding organisation has failed or is likely to fail to comply with a condition of its recognition.

We impose directions in order to try to secure compliance with the relevant condition, or to prevent non-compliance.

A direction is enforceable in the courts.

b) When might we give a direction?

In deciding whether to use our power to give a direction, we may consider the following:

We will keep a record of the evidence considered.

We might consider giving an awarding organisation a direction in a wide range of scenarios. These scenarios might include, but are not limited to, directions to:

Giving notice of our intention to give a direction

. We will send to the awarding organisation’s responsible officer:

We will send the notice in writing. Where we send the notice by email , we will assume that the notice was received on the date the email or was sent, unless there is evidence to the contrary.

We may, in appropriate cases, publish the notice of intention and consult with other interested parties.

d) Representations by the awarding organisation

We will give the awarding organisation an opportunity to make written representations to us, addressed to the relevant officer. We will include in the notice the date by which representations must be received by us.

Most of the directions we propose to give are urgent directions, because less urgent cases are often resolved by agreement and/or with an undertaking. In these urgent cases we may specify a short, and sometimes very short, period of time for the awarding organisation to make representations, in particular in order to protect the interests of learners and to maintain standards. For example, where an awarding organisation has failed to confirm it will comply with a requirement restraining the issue of results, or a requirement to make adjustments to a specified level of attainment, the period which we allow for representations is likely to be very short.

If it is not urgent for action to be taken, representations must normally be received by us no later than 14 days from our issue of the notice.

The awarding organisation’s representations should address the reasons for the proposed direction included in the notice, the accuracy of our summary of the facts, the reasonableness of the nature of the proposed direction and/or the timescale proposed for compliance.

e) Response to representations by the awarding organisation

We will consider any representations received from an awarding organisation.

We may decide that:

In some cases, an awarding organisation might respond to a notice of intention by agreeing to take the actions we specified in the proposed direction. We will decide in each case whether the awarding organisation’s proposal means we no longer need to give the direction. Agreeing to take the actions we have specified will not prevent us from imposing the direction and we will decide whether to do so depending on the facts of the particular case.

We will publish any decision to impose a direction

f) Enforcing compliance with a direction

Where we use our power to direct an awarding organisation and the awarding organisation fails to comply with the direction, we may apply to the court for an order stating that it must do so. A failure to comply with a court order compelling the awarding organisation to comply with a direction may result in it being in contempt of court.

g) Amendment or revocation of a direction

We may amend or revoke a direction after it is given. , we will follow the same process as for giving a direction, in particular:

We will publish any decision to amend or revoke a direction.

a) Power to fine

We can impose a monetary penalty (a fine) on an awarding organisation if it appears, on the evidence available to us, that it has breached a condition of its recognition. A fine may be for an amount up to 10 per cent of an awarding organisation’s annual turnover. This limit applies to each fine we decide to impose and is not a cumulative limit for a financial year. We will decide what the appropriate amount of the fine should be taking into account all the circumstances of the case.

We will impose a fine on an awarding organisation when this represents a suitable response to non-compliance with one or more of its conditions of recognition.

We will always provide an opportunity for an awarding organisation to make proposals for a fining case to be resolved by agreement and have set out our approach to settlement in fining cases in the next section of this document.

b) Approach to using the fining power

We will follow a 4-stage approach in considering whether to impose a fine:

We do not expect awarding organisations to pass the costs of fines onto their customers. In a competitive market there should be an incentive for awarding organisations not to do so, as this would make them less competitive. After imposing a fine on an awarding organisation, we will, if appropriate, monitor the fees that it charges for qualifications to see if they represent value for money.

c) Decision to impose a fine

When we are deciding whether to impose a fine, we will consider a number of factors, including:

We will also consider any financial sanctions that have been imposed in relation to the breach by another regulatory body, such as Qualification Wales, as a factor in determining whether to impose a fine.

d) When might we use our power to fine?

We might consider imposing a fine on an awarding organisation in a wide range of scenarios in which the awarding organisation has breached one or more of its conditions of recognition. These scenarios might include, but are not limited to, cases in which an awarding organisation has:

In instances where no breach of its conditions of recognition has taken place but we are concerned that a breach is likely, we cannot impose a fine on an awarding organisation. In such cases, we may choose to issue a direction requiring an awarding organisation to take or not to take specified steps.

In certain circumstances we may decide not to impose a fine because we consider an alternative action to be more appropriate. For example, in a situation in which, in our judgement, an awarding organisation does not have the resources and expertise to continue to offer some or all of the qualifications for which it is recognised, we may instead seek to withdraw its recognition in respect of those qualifications.

In circumstances where another body, such as Qualification Wales, has used its power to fine in relation to the same breach, we may decide that the action taken by that regulator is sufficient and no further action by us is needed.

e) Determining the amount of a fine

Any fines we impose cannot exceed 10% of the annual turnover of the awarding organisation, as defined in secondary legislation. Providing fines are within this limit, we are not required to determine the amount of a fine by reference to a percentage of an awarding organisation’s annual turnover. We will determine an amount we judge is appropriate, and then check that it is within the 10% limit.

When we decide the amount of the fine, we will take into account all the circumstances of the case. The factors we will take into account will include all those set out above under ‘Decision to impose a fine’.

We will also take into account all other relevant factors, which could be aggravating factors, which may lead us to decide to increase the amount of the fine, or mitigating factors, which may lead us to decide to reduce the amount of the fine. Further factors that we will consider in determining the amount of a fine include:

We will also take into account any financial sanctions that have been imposed in relation to the breach by another regulatory body.

All money received in payment of a fine is paid into the Government’s Consolidated Fund. There is no financial incentive on us to impose a fine.

f) Imposing a fine

Preliminary decision

When we seek to impose a fine on an awarding organisation, we will first make a preliminary decision to impose a fine and the amount the fine should be. We will keep a record of the evidence considered.

At this point, we will serve a written notice on the awarding organisation, stating the amount of the fine we intend to impose.

We will set out in the notice the reasons for fine and the way in which the awarding organisation may make representations to us. Where we send the notice by email or through the Portal, we will assume that the notice was received on the date the message was sent, unless there is evidence to the contrary.

We will specify a period in which the awarding organisation may make written representations to us. This will be at least 28 days from the date of the issue of the notice.

We will publish the notice if we consider there is a good reason to do so. This includes where we think it is important to allow interested parties to make representations. Where we decide to publish the notice we will do so on our website and will usually allow an interval between serving the notice on the awarding organisation and publishing the notice. We will specify a period for interested parties to make representations which will usually be less than the period we allow the awarding organisation.

Whether or not it is published, we will send a copy of the notice to the other UK qualifications regulators where the awarding organisation is also regulated by those organisations. We will also notify any relevant government departments, bodies or agencies.

Final decision

When we have considered any representations, we will decide whether to withdraw, vary or confirm the

If we confirm our decision to impose a fine (including where the amount is varied), we will serve a written notice on the awarding organisation. This will state the grounds for imposing the fine, how payment should be made and the consequences of non-payment. The notice will explain the awarding organisation’s right of appeal and specify the period within which it must lodge any appeal. This will normally be 28 days from the date of our decision. The notice will also state when payment is due, which will be no later than 28 days from receipt of the notice unless we decide that exceptional circumstances mean that a longer time for payment should be given or unless an appeal is made. Where we send the notice by email or through the Portal, we will assume that the notice was received on the date the message was sent, unless there is evidence to the contrary. We will publish the final notice on our website.

Awarding organisations may appeal against our decisions to impose fines to the First-tier Tribunal. If an awarding organisation appeals to the Tribunal, the fine is suspended pending the appeal. The appeal may relate to the imposition of a fine, the amount of the fine, or both. Full details of how to make an appeal to the First-tier Tribunal are provided in the appeals section of this policy.

The Tribunal may withdraw, vary (increase or decrease) or confirm the fine. It may also impose a different or additional sanction (available to us) on the awarding organisation, or remit the decision on any matter relating to the fining decision back to us to consider. If the Tribunal decides to withdraw or vary a fine, we will publish this decision on our website.

If an organisation does not pay a fine, it becomes liable for interest on the debt and we will recover the debt with interest through the courts, if appropriate.

a). The benefits of settlement

Most awarding organisations recognise when they have breached their conditions of recognition. When we think the imposition of a fine might be a suitable response to an incident or to our findings following a regulatory investigation or other review, we will first explain this to the awarding organisation as early as we reasonably can and offer an opportunity for the awarding organisation to make proposals for a negotiated settlement.

Negotiating a settlement with an awarding organisation allows us to focus our resources more effectively, which helps us to deliver our priorities on behalf of learners and society. For awarding organisations, settlement means any fine will be less than it would be following a contested case and our costs which we will usually recover from the awarding organisation, will be lower. In appropriate cases, settlement might also allow an awarding organisation to pay some of the money it would have paid as a fine in the form of compensation, where we consider this is a better way to protect learners.

b) Suitability for settlement

Not all cases will be suitable for a negotiated settlement. Those which are likely to be suitable will have the following features:

If attempts to reach a negotiated settlement are unsuccessful, the case will proceed using the normal (contested) procedure set out in the preceding section of this document. Details of the unsuccessful negotiations will remain confidential apart from where we seek to recover our costs at the end of the case.

c)Settlement discount

The amount of any fine determined using the settlement procedure will depend on the facts of the particular case. There is no fixed discount amount or proportion, just as we do not have a fixed tariff or starting point for fines in contested cases. The fine will always be lower than it would have been in a comparable case without a settlement.

We want to encourage settlement as early as possible because this helps us to manage our resources most effectively. This means a fine agreed early in the process will be lower than where the awarding organisation enters discussions only at a later stage.

This is because in general the earlier an admission and an offer of settlement is made, the greater the impact the admission will have as a factor in mitigation.

Where admissions are made at a very late stage those admissions are likely to have very little impact on the level of the fine, but might have an impact on any costs payable.

d) Costs

Where we reach a settlement agreement, we will expect the awarding organisation to agree to pay an amount towards our costs. Our power to recover the costs associated with regulatory action from an awarding organisation is explained later in this policy.

Reaching a settlement agreement reduces the costs we need to recover from the awarding organisation because it reduces the amount of time we spend preparing and presenting the case. The earlier a settlement agreement is reached, the greater the impact on our overall costs.

Although early settlement will have the greatest impact, an awarding organisation which decides to stop contesting a case later in the process will reduce its potential liability for costs to some extent, even where it makes that decision at a late stage.

e) Ratifying the settlement

Every settlement agreement must be ratified in accordance with the governance arrangements we have in place at the relevant time. If the agreement is not ratified, we will first seek to agree a revised proposal with the awarding organisation. If a suitable proposal cannot be agreed the case might need to proceed on a contested basis.

f) Imposing the fine

The process of imposing a fine after a settlement agreement has been ratified follows the same stages as any other fine; we must issue a written notice explaining our preliminary decision, allow a period for representations and issue a final notice imposing the fine.

The notice explaining the preliminary decision will be shorter where that decision reflects a settlement agreement and will explain the decision by reference to agreed facts. Although we must allow the awarding organisation a 28-day period in which to make representations from receipt of the notice, we will expect the awarding organisation promptly to confirm that it has no representations to make. In some cases, with the agreement of the awarding organisation, we expect to be able to make the preliminary decision and final decision on the same day.

We will decide on a case-by-case basis whether instead of making the final decision straightaway, we should publish information explaining the preliminary decision. We will publish this information where we think there is a good reason to allow interested parties an opportunity to make representations about the proposed settlement. We do not expect regularly to publish information about preliminary decisions made in settled cases.

If we intend to publish information about the preliminary decision, we will first explain that intention to the awarding organisation and share the information we propose to publish. The published information will explain why we intend to impose the fine and that the amount of the fine reflects a settlement agreement. We will specify the period of time for interested parties to make representations.

We will take into account any representations received from interested parties and either confirm the fine or vary it. If we think it may be appropriate to vary the fine we will disclose the representations to the awarding organisation and may decide to reopen the settlement discussions.

We will publish the final decision explaining the amount of the fine we imposed together with our reasons.

Before we publish either an initial decision or a final decision we will first give a copy of the decision to the other UK qualifications regulators where the awarding organisation is also regulated by those organisations and notify any relevant government departments, bodies or agencies.

a) Decision to withdraw recognition from an awarding organisation

We may withdraw recognition from an awarding organisation – if the awarding organisation has failed to comply with any of its conditions of recognition.

Withdrawing recognition from an awarding , is the most significant regulatory action we can take. We do not expect to use the power often.

Withdrawing recognition for specified qualifications or descriptions of qualifications, so the awarding organisation remains able to operate in the regulated sector, but in a more restricted way, is a less serious sanction. This approach may more often be a proportionate response to manage risks we identify in connection with an awarding organisation’s failure to comply with a condition of its recognition.

b) Decision to give a notice of intention to withdraw recognition

We will first give notice to the awarding organisation of our intention to withdraw recognition.

The factors we consider when we are deciding whether to take action will include:

We will keep a record of the evidence considered.

c) When might we withdraw recognition from an awarding organisation?

The situations in which withdrawal of recognition in full might be a proportionate response to a breach by an awarding organisation of one or more of its conditions of recognition might include, but are not limited to those in which there is:

Where the condition that is breached is a condition that reflects a recognition criterion (something that a person or body who is applying for recognition must demonstrate in order to become recognised by us), withdrawal of recognition is likely to be much more strongly indicated as the appropriate action.

The circumstances in which withdrawal of recognition for specific qualifications or descriptions of qualifications may be a proportionate response are broader and include, but are not limited to:

d) Giving the notice of intention to withdraw recognition

Before we take a decision to withdraw recognition, we will give the awarding organisation notice of our intention to do so. We will send this notice of intention to the awarding organisation’s chair (or equivalent) and to its responsible officer.

The notice of intention to withdraw recognition will include:

We will send the notice in writing. Where we send the notice by email, we will assume the notice was received on the date the email was sent, unless there is evidence to the contrary.

We may, in appropriate cases, publish the notice of intention and consult with other interested parties. Whether or not we to the other UK qualifications regulators where the awarding organisation is also regulated by those organisations .

e) Representations by the awarding organisation

When an awarding organisation chooses to make representations to us, these representations must be made in writing to the appropriate officer. The representations should address the reasons for the proposed withdrawal of recognition included in the notice, the accuracy of our summary of the facts, the reasonableness of the proposal and any potential saving or transitional provisions, and/or the date for the proposed withdrawal.

Representations must normally be received by us no later than 30 days from receipt of the notice. If we judge that there is an urgent need to take action, this period may be reduced to a length of time we will set out in the notice. We may need to reduce the time for representations for a variety of reasons, in particular to protect the interests of learners and/or to secure that the standard of, and public confidence in, qualifications is maintained. In such cases the time allowed for the awarding organisation to make representations might be very limited.

f) Response to representations by the awarding organisation

We will consider any representations received from an awarding organisation.

We may make the following decisions:

g) Final decision notice

If we decide to withdraw recognition from an awarding organisation, we will give notice in writing to the awarding organisation of our decision, of the date on which withdrawal is to take effect, and of any saving or transitional provision we have decided to make.

We can make saving or transitional provisions for a wide range of purposes, which include but are not limited to protecting learners and maintaining standards, for example by:

By giving further notice, we may vary the date on which the decision is to take effect.

An awarding organisation may request a review of a decision to withdraw recognition. If such a request is made, an independent reviewer, appointed by us, will undertake the review. The reviewer may be a single person, a body or a panel of people.

A request for a review must be submitted by the awarding organisation in writing to the designated officer no later than 30 days after receipt of the confirmed decision to withdraw recognition. The review of the decision would normally be completed within 60 days of the receipt from the awarding organisation of a request for a review of the decision. Once a decision to withdraw recognition has taken effect, unless we decide otherwise, that decision will continue to have effect while the independent review is taking place.

The independent reviewer will consider the evidence that informed the original decision, and any representations made by the awarding organisation. The independent reviewer may also decide to consider new evidence, if that evidence could not reasonably have been provided to us before our decision to withdraw recognition.

The independent reviewer may also seek advice from other experts with skills relevant to the review, but the final recommendation would be made by the reviewer alone.

The independent reviewer will consider whether:

The independent reviewer may:

We can require an awarding organisation to pay the costs we incur in relation to statutory sanctions we have imposed on it. This is where we have:

Although we have the power to recover our costs in every case in which we undertake statutory enforcement actions, we will

The costs that we will seek to recover are those we have incurred in taking statutory enforcement action against an awarding organisation. This includes, in particular, investigation costs, administration costs and the costs of obtaining expert advice (including legal advice).

Although we will not disclose information about any unsuccessful settlement discussions to a decision-maker during a contested case, we will usually expect to recover our costs in connection with such discussions where this is possible. Information about the confidential discussions will therefore be disclosed to the decision-maker at the costs-recovery stage.

When we decide to recover enforcement costs, we will serve written notice on the awarding organisation, specifying the of the costs we require the awarding organisation to pay. The notice will include a detailed breakdown of those costs, state how payment should be made and set out the consequences of non-payment. Where we send the notice by email, we will assume that the notice was received on the date the email was sent, unless there is evidence to the contrary. We will publish the notice on our website.

The notice will also explain the awarding organisation’s right of appeal and specify the period within which it must lodge any appeal.

Awarding organisations may appeal against our decisions to recover costs to the First-tier Tribunal. If an awarding organisation appeals to the Tribunal, the payment of costs is suspended pending the appeal. The appeal may relate to the imposition of a requirement to pay costs, the amount of. the costs, or both.

The will normally be 28 days from the date of our decision. The notice will also state when payment is due, which will be no later than 28 days from receipt of the notice unless we decide that exceptional circumstances mean that a longer time for payment should be given or unless an appeal is made. Full details of how to make an appeal to the First-tier Tribunal are provided in .

The Tribunal may withdraw, vary or confirm the amount of costs an awarding organisation should pay. It may also take such other action as we could take in relation to the breach that led to the enforcement action (including imposing a sanction on the awarding organisation) or remit the decision on any matter relating to the decision to recover enforcement costs back to us to consider. If the Tribunal decides to withdraw or vary the amount of the costs an awarding organisation should pay, we will publish this decision on our website.

If an organisation does not pay its costs it becomes liable for interest on the debt and we will recover the debt with interest through the courts, if necessary.

Where we have imposed a monetary penalty or required an awarding organisation to pay our costs, an appeal may be made to the General Regulatory Chamber of the First-tier Tribunal. Appeals should be made by sending a notice of appeal to the Tribunal so that it is received within 28 days of the date on which the notice of the sanction or other decision was sent to the awarding organisation. The First-tier Tribunal’s address is:

The First-tier Tribunal (General Regulatory Chamber) Rules, together with any practice directions given by the Senior President of Tribunals or the Chamber President, govern the practice and procedure to be followed by the Tribunal. The overriding objective of the Rules is to enable the Tribunal to deal with cases in the interest of justice and minimising parties’ costs, which includes dealing with cases in ways that are proportionate to the importance of the case and the complexity of the issues.

Section 151C of the Apprenticeships, Skills, Children and Learning Act 2009 (the Act) confers a right of appeal against:

There is no right of appeal against a notice of intent to impose a monetary penalty.

Section 152B of the Act confers a right of appeal against:

If the question of whether a breach of a condition of recognition has or has not been committed is one that the Tribunal needs to determine in any appeal, we will carry the burden of proof. This means that it will not be for the awarding organisation to prove that it did not breach a condition upon which it is recognised. Instead, we will need to prove on the balance of probabilities that the awarding organisation did breach such a condition.

The grounds on which an appeal can be brought against any particular decision, as set out in the Act, are:

The Rules give the Tribunal judge wide case management powers, which include the power to strike out proceedings if they consider that there is no reasonable prospect of the appellant’s case, or any part of it, succeeding. The Rules also allow the Tribunal to award costs against a party, but only where a party has acted unreasonably in bringing, defending or conducting the appeal.

We do not expect an awarding organisation that has entered into a settlement agreement to appeal against a fine or a requirement to pay our costs which is contemplated in the settlement agreement. In the unlikely event of such an appeal, we will produce the settlement agreement as evidence of the agreement and will carefully consider making an application that the awarding organisation should pay our costs in connection with the appeal.

The Lord Chancellor has the capacity to charge fees for appeals to the First-tier Tribunal, for example an application fee. Where he is proposing to introduce fees, he is required to consult the Senior President of Tribunals and the Administrative Justice and Tribunals Council, and must conduct a public consultation. Any decision to charge fees could then only take effect if contained in secondary legislation approved by both Houses of Parliament. At the date of this Guidance no formal proposal to charge fees for appeals relating to the imposition of monetary penalties under the Act has been made by the Lord Chancellor.

Either party can ask for permission to appeal against the decision of the Tribunal but only on a point of law arising from the Tribunal’s decision. Such an application for permission must be provided to the Tribunal within 28 days of the date on which the Tribunal gave its decision in writing.

The Tribunal will consider the application, and may also undertake a review of its own decision. If, on undertaking such a review, it is satisfied that there was an error in law in the Tribunal’s decision, the Tribunal will notify the parties. Alternatively, the Tribunal can give permission to appeal to the Upper Tribunal or refuse to give permission.

Where permission is given, the further appeal would be heard by the Administrative Appeals Chamber of the Upper Tribunal.

If an appeal against a decision of the Tribunal reaches the Upper Tribunal, the latter can set aside that decision and give a new decision, or it can refer the case back to the Tribunal for re-hearing.

More information about the First-tier and Upper Tribunals can be found here.

First–tier Tribunal
General Regulatory Chamber (Exam Boards) PO BOX 9300
Leicester
Leicestershire
LE1 8DJ
Tel: 0300 1234 504
Email: [email protected]

The First-tier Tribunal (General Regulatory Chamber) Rules^{[footnote 5]}, together with any practice directions given by the Senior President of Tribunals or the Chamber President, govern the practice and procedure to be followed by the Tribunal. The overriding objective of the Rules is to enable the Tribunal to deal with cases in the interest of justice and minimising parties’ costs, which includes dealing with cases in ways that are proportionate to the importance of the case and the complexity of the issues.

Section 151C of the Apprenticeships, Skills, Children and Learning Act 2009 (the Act)

confers a right of appeal against:

a decision as to the amount of the penalty

There is no right of appeal against a notice of intent to impose a monetary penalty. Section 152B of the Act confers a right of appeal against:

a requirement to pay enforcement costs
the amount of the costs

The grounds on which an appeal can be brought against any particular decision, as set out in the Act, are:

that the decision was based on an error of fact
that the decision was wrong in law
that the decision was unreasonable

The Lord Chancellor has the capacity to charge fees for appeals to the First-tier Tribunal, for example an application fee. Where he is proposing to introduce fees, he is required to consult the Senior President of Tribunals and the Administrative Justice and Tribunals Council, and must conduct a public consultation. Any decision to charge fees could then only take effect if contained in secondary legislation approved by both Houses of Parliament. At the date of this policy no formal proposal to charge fees for appeals relating to the imposition of monetary penalties under the Act has been made by the Lord Chancellor.

Either party can ask for permission to appeal against the decision of the Tribunal but only on a point of law arising from the Tribunal’s decision. Such an application for permission must

be provided to the Tribunal within 28 days of the date on which the Tribunal gave its decision in writing.

Where permission is given, the further appeal would be heard by the Administrative Appeals

Chamber of the Upper Tribunal. If an appeal against a decision of the Tribunal reaches the Upper Tribunal, the latter can set aside that decision and give a new decision, or it can refer the case back to the Tribunal for re-hearing.

More information about the First-tier and Upper Tribunals can be found here.

1. An Awarding Organisation (AO) may appeal to the Enforcement Panel in respect of:

a. A Determination of Non-Compliance,

b. A decision to issue a Rebuke.

2. For the purposes of these Rules, a Determination of Non-Compliance (a Determination) is a decision that the AO has failed to comply with a Condition of its Recognition in circumstances where:

a. The AO did not declare that non-compliance or make any relevant admission, and

b. The Determination was made in the context of a decision either that no further action should be taken if the breach was made out or that a Rebuke would be issued if the breach was made out.

3. Where a Rebuke is issued following a Determination, the AO may appeal in respect of the Determination, the Rebuke, or both elements.

4. The AO must submit the appeal [through the Portal or by email [TBC] using a document with the title ‘Application for Appeal’ (the application). The application must include the following sections, in the order set out below:

a. The decision: a summary of the decision being appealed, specifying the date of the Determination (or admission of non-compliance where relevant), the date of the Rebuke (where relevant) and the condition(s) found to have been breached,

b. The facts: a summary of the factual background on which the Determination subject to appeal was made, together with a summary of the representations made by the AO before the Determination,

c. The grounds: why the AO considers the initial decision was wrong, specifying as relevant: how the AO considers the relevant condition(s) should be interpreted, any facts which the AO considers the decision-maker failed adequately to take into account, why the AO considers the decision to issue a Rebuke to be unreasonable,

d. The remedy: the outcome the AO seeks should the appeal be successful.

5. The application must be submitted by the AO’s Responsible Officer and must be accompanied by a declaration that the contents are true and accurate, in accordance with Condition B1.4. 2.

6. The application must be received by Ofqual no more than 14 days after the relevant decision was issued.

7. All applications will first be considered by a Director in Ofqual’s legal team. The application will be rejected if the Director considers the application to be incomplete, or inaccurate as regards any assertion of fact. A rejected application may be revised and resubmitted on no more than two further occasions.

8. The Director may, at their absolute discretion, invite the initial decision-maker to review or reconsider the Determination if on consideration of the application, the Director considers such reconsideration may be appropriate.

9. All applications which proceed after the triage stage will be listed for consideration by the Enforcement Panel. Applications will be listed as soon as practicable, having regard to:

a. The availability of appropriate Panel members,

b. Whether it may be beneficial for particular cases to be considered together,

c. Any particular urgency affecting the case.

10. Where necessary, priority will be given to listing appeals concerning the issue of a Rebuke.

11. Unless otherwise determined, all applications for appeal will be considered at a Meeting of the Enforcement Panel on the basis of written submissions - the AO will not be invited to address the Enforcement Panel in person.

12. Directions concerning the management of an application for appeal, including directions for a Hearing of the Enforcement Panel with the AO in attendance, may be given at any time by a Director in Ofqual’s legal team or by the Enforcement Panel.

13. At the conclusion of an appeal in relation to a Determination, the Enforcement Panel will either:

a. Allow the appeal and set-aside or vary the Determination,

b. Dismiss the appeal, confirm the Determination and confirm that no further action will be taken, or

c. Dismiss the appeal, confirm the breach and determine that any other action set out in the [Supporting Compliance and] Taking Regulatory Action policy should be taken.

14. At the conclusion of an appeal in relation to the issue of a Rebuke, the Enforcement Panel will either:

a. Allow the appeal against the Rebuke and substitute a decision that no further action will be taken in relation to the breach,

b. Dismiss the appeal and confirm the Rebuke, or

c. Dismiss the appeal and determine that any other action set out in the [Supporting Compliance and] Taking Regulatory Action policy should be taken in place of the Rebuke.

15. Where the appeal concerns a Determination and the issue of a Rebuke, the Enforcement Panel may make such order from the preceding paragraphs, as it sees fit.

16. Where the Enforcement Panel considers an alternative action should be taken in place of the Determination or Rebuke, it will follow the relevant process set out in the [Supporting Compliance and] Taking Regulatory Action policy.

17. The Enforcement Panel will allow the appeal where it considers:

a. The Determination relies on an interpretation of a condition which cannot be sustained,

b. The Determination relies on an interpretation of the factual matrix known at the relevant time which cannot be sustained,

c. The Determination overlooked evidence which was available to the decision-maker at the material time and which would inevitably have affected the Determination had it been taken into account,

d. The decision to issue a Rebuke was unreasonable in all of the circumstances of the case.

18. The Enforcement Panel will dismiss the appeal in all other circumstances. The Enforcement Panel will give summary reasons for its decision to dismiss the appeal.

19. The Enforcement Panel may substitute an outcome set out in the [Supporting Compliance and] Taking Regulatory Action policy where it considers on the available facts the initial decision to take no further action or to issue a Rebuke was wrong. The Enforcement Panel will give a statement of its reasons in all such cases, which will specify the revised outcome and where necessary will constitute Notice of Intention in accordance with the [Supporting Compliance and] Taking Regulatory Action policy.

20. The Strategic Enforcement Committee will keep these Rules under review and may revise the rules where it considers such revisions to be appropriate. The Strategic Enforcement Committee will consider whether any such revisions require consultation and the extent of any such consultation.

Origin: