2012248.5-11

Session 2010 - 12
Internet Publications
Other Bills before Parliament

Lords Amendments to the Education Bill

5

“152A
Costs recovery

(1)
Ofqual may, by notice, require a recognised body on which a

sanction has been imposed to pay the costs incurred by Ofqual in

relation to imposing the sanction, up to the time it is imposed.

(2)
The references in subsection (1) to imposing a sanction are to—

(a)
giving a direction under section 151;

(b)
imposing a monetary penalty under section 151A;

(c)
withdrawing recognition under section 152.

(3)
“Costs” includes in particular—

(a)
investigation costs;

(b)
administration costs;

(c)
costs of obtaining expert advice (including legal advice).

(4)
A notice given to a recognised body under subsection (1) must

contain information as to—

(a)
the amount required to be paid,

(b)
how payment may be made,

(c)
the period within which payment is required to be made

(which must not be less than 28 days),

(d)
rights of appeal,

(e)
the period within which an appeal may be made, and

(f)
the consequences of non-payment.

(5)
The body may require Ofqual to provide a detailed breakdown of

the amount specified in the notice.

152B
Costs recovery: appeals

(1)
A recognised body may appeal to the First-tier Tribunal against—

(a)
a decision under section 152A(1) to require the body to pay

costs;

(b)
a decision as to the amount of those costs.

(2)
An appeal under this section may be made on the grounds—

(a)
that the decision was based on an error of fact;

(b)
that the decision was wrong in law;

(c)
that the decision was unreasonable.

(3)
The requirement to pay the costs is suspended pending the

determination of an appeal under this section.

(4)
On an appeal under this section the Tribunal may—

(a)
withdraw the requirement to pay the costs;

(b)
confirm that requirement;

(c)
vary that requirement;

(d)
take such steps as Ofqual could take in relation to the failure

to comply giving rise to the decision to impose the

requirement;

(e)
remit the decision whether to confirm the requirement to

pay the costs, or any matter relating to that decision, to

Ofqual.

6

152C
Costs: interest and recovery

(1)
This section applies if all or part of an amount of costs that a

recognised body is required to pay under section 152A(1) is unpaid

at the end of the period ending on the applicable date.

(2)
The applicable date is—

(a)
the last date on which the recognised body may make an

appeal under section 152B in respect of the costs, if no such

appeal is made;

(b)
if an appeal under section 152B in respect of the costs is

made—

(i)
the date on which the appeal is determined, or

(ii)
if the appeal is withdrawn before being determined,

the date on which the appeal is withdrawn.

(3)
The unpaid amount of the costs for the time being carries interest at

the rate for the time being specified in section 17 of the Judgments

Act 1838 (and does not also carry interest as a judgment debt under

that section).

(4)
The total amount of interest imposed under subsection (3) must not

exceed the amount of the costs.

(5)
Ofqual may recover from the body, as a civil debt due to it, the

unpaid amount of the costs and any unpaid interest.”

(6)
In section 153 (qualifications regulatory framework), in subsection (8)(e),

for “152” substitute “152C”.

(7)
In section 262(6) of ASCLA 2009 (orders and regulations subject to

affirmative resolution procedure), after paragraph (e) insert—

“(ea)
an order under section 151B(2);”.”
17
Insert the following new Clause—

“Enforcement powers of Welsh Ministers

(1)
Chapter 2 of Part 5 of EA 1997 (functions of Welsh Ministers: qualifications

and the school curriculum) is amended as set out in subsections (2) to (6).

(2)
In section 32A (power to give directions), for subsections (1) and (2)

substitute—

“(1)
Subsection (1A) applies if it appears to the Welsh Ministers that a

recognised person has failed or is likely to fail to comply with a

condition subject to which the recognition has effect.

(1A)
The Welsh Ministers may direct the recognised person to take or

refrain from taking specified steps with a view to securing

compliance with the conditions subject to which the recognition has

effect.

(2)
Subsection (2A) applies if it appears to the Welsh Ministers that a

recognised person who awards or authenticates a qualification

accredited by them has failed or is likely to fail to comply with a

condition subject to which the accreditation has effect.

7

(2A)
The Welsh Ministers may direct the recognised person to take or

refrain from taking specified steps with a view to securing

compliance with the conditions subject to which the accreditation

has effect.”

(3)
In section 32A(5), for “32B and” substitute “32AA to”.

(4)
After section 32A insert—

“32AA
Power of Welsh Ministers to impose monetary penalties

(1)
Subsection (2) applies if it appears to the Welsh Ministers that a

recognised person has failed to comply with a condition subject to

which the recognition has effect.

(2)
The Welsh Ministers may impose a monetary penalty on the

recognised person.

(3)
Subsection (4) applies if it appears to the Welsh Ministers that a

recognised person who awards or authenticates a qualification

accredited by them has failed to comply with a condition subject to

which the accreditation has effect.

(4)
The Welsh Ministers may impose a monetary penalty on the

recognised person.

(5)
A “monetary penalty” is a requirement to pay to the Welsh

Ministers a penalty of an amount determined by them in

accordance with section 32AB.

(6)
Before imposing a monetary penalty on a recognised person, the

Welsh Ministers must give notice to the person of their intention to

do so.

(7)
The notice must—

(a)
set out their reasons for proposing to impose the penalty,

and

(b)
specify the period during which, and the way in which, the

recognised person may make representations about the

proposal.

(8)
The period specified under subsection (7)(b) must not be less than

28 days beginning with the date on which the notice is received.

(9)
The Welsh Ministers must have regard to any representations made

by the recognised person during the period specified in the notice

in deciding whether to impose a monetary penalty on the person.

(10)
If the Welsh Ministers decide to impose a monetary penalty on the

person, they must give the person a notice containing information

as to—

(a)
the grounds for imposing the penalty,

(b)
how payment may be made,

(c)
the period within which payment is required to be made

(which must not be less than 28 days),

(d)
rights of appeal,

(e)
the period within which an appeal may be made, and

(f)
the consequences of non-payment.

8

32AB
Monetary penalties: amount

(1)
The amount of a monetary penalty imposed on a recognised person

under section 32AA must not exceed 10% of the person’s turnover.

(2)
The turnover of a person for the purposes of subsection (1) is to be

determined in accordance with an order made by the Welsh

Ministers.

(3)
Subject to subsection (1), the amount may be whatever the Welsh

Ministers decide is appropriate in all the circumstances of the case.

32AC
Monetary penalties: appeals

(1)
A recognised person may appeal to the First-tier Tribunal against—

(a)
a decision to impose a monetary penalty on the person

under section 32AA;

(b)
a decision as to the amount of the penalty.

(2)
An appeal under this section may be made on the grounds—

(a)
that the decision was based on an error of fact;

(b)
that the decision was wrong in law;

(c)
that the decision was unreasonable.

(3)
The requirement to pay the penalty is suspended pending the

determination of an appeal under this section.

(4)
On an appeal under this section the Tribunal may—

(a)
withdraw the requirement to pay the penalty;

(b)
confirm that requirement;

(c)
vary that requirement;

(d)
take such steps as the Welsh Ministers could take in relation

to the failure to comply giving rise to the decision to impose

the requirement;

(e)
remit the decision whether to confirm the requirement to

pay the penalty, or any matter relating to that decision, to

the Welsh Ministers.

32AD
Monetary penalties: interest and recovery

(1)
This section applies if all or part of a monetary penalty imposed on

a recognised person is unpaid at the end of the period ending on the

applicable date.

(2)
The applicable date is—

(a)
the last date on which the recognised person may make an

appeal under section 32AC in respect of the penalty, if no

such appeal is made;

(b)
if an appeal under section 32AC in respect of the penalty is

made—

(i)
the date on which the appeal is determined, or

(ii)
if the appeal is withdrawn before being determined,

the date on which the appeal is withdrawn.

(3)
The unpaid amount of the penalty for the time being carries interest

at the rate for the time being specified in section 17 of the Judgments

Act 1838 (and does not also carry interest as a judgment debt under

that section).

9

(4)
The total amount of interest imposed under subsection (3) must not

exceed the amount of the penalty.

(5)
The Welsh Ministers may recover from the person, as a civil debt

due to them, the unpaid amount of the penalty and any unpaid

interest.”

(5)
In section 32B (power to withdraw recognition)—

(a)
for subsection (2) substitute—

“(2)
The Welsh Ministers may withdraw recognition from the

recognised person in respect of the award or authentication

of—

(a)
a specified qualification or description of

qualification in respect of which the person is

recognised, or

(b)
every qualification or description of qualification in

respect of which the person is recognised.”;

(b)
for subsection (4) substitute—

“(4)
The Welsh Ministers may withdraw recognition from the

recognised person in respect of the award or authentication

of—

(a)
the qualification or a specified description of

qualification in respect of which the person is

recognised, or

(b)
every qualification or description of qualification in

respect of which the person is recognised.”

(6)
After section 32B insert—

“32BA
Costs recovery

(1)
The Welsh Ministers may, by notice, require a recognised person on

whom a sanction has been imposed to pay the costs incurred by the

Welsh Ministers in relation to imposing the sanction, up to the time

it is imposed.

(2)
The references in subsection (1) to imposing a sanction are to—

(a)
giving a direction under section 32A;

(b)
imposing a monetary penalty under section 32AA;

(c)
withdrawing recognition under section 32B.

(3)
“Costs” includes in particular—

(a)
investigation costs;

(b)
administration costs;

(c)
costs of obtaining expert advice (including legal advice).

(4)
A notice given to a recognised person under subsection (1) must

contain information as to—

(a)
the amount required to be paid,

(b)
how payment may be made,

(c)
the period within which payment is required to be made

(which must not be less than 28 days),

(d)
rights of appeal,

(e)
the period within which an appeal may be made, and

10

(f)
the consequences of non-payment.

(5)
The person may require the Welsh Ministers to provide a detailed

breakdown of the amount specified in the notice.

32BB
Costs recovery: appeals

(1)
A recognised person may appeal to the First-tier Tribunal against—

(a)
a decision under section 32BA(1) to require the person to

pay costs;

(b)
a decision as to the amount of those costs.

(2)
An appeal under this section may be made on the grounds—

(a)
that the decision was based on an error of fact;

(b)
that the decision was wrong in law;

(c)
that the decision was unreasonable.

(3)
The requirement to pay the costs is suspended pending the

determination of an appeal under this section.

(4)
On an appeal under this section the Tribunal may—

(a)
withdraw the requirement to pay the costs;

(b)
confirm that requirement;

(c)
vary that requirement;

(d)
take such steps as the Welsh Ministers could take in relation

to the failure to comply giving rise to the decision to impose

the requirement;

(e)
remit the decision whether to confirm the requirement to

pay the costs, or any matter relating to that decision, to the

Welsh Ministers.

32BC
Costs: interest and recovery

(1)
This section applies if all or part of an amount of costs that a

recognised person is required to pay under section 32BA(1) is

unpaid at the end of the period ending on the applicable date.

(2)
The applicable date is—

(a)
the last date on which the recognised person may make an

appeal under section 32BB in respect of the costs, if no such

appeal is made;

(b)
if an appeal under section 32BB in respect of the costs is

made—

(i)
the date on which the appeal is determined, or

(ii)
if the appeal is withdrawn before being determined,

the date on which the appeal is withdrawn.

(3)
The unpaid amount of the costs for the time being carries interest at

the rate for the time being specified in section 17 of the Judgments

Act 1838 (and does not also carry interest as a judgment debt under

that section).

(4)
The total amount of interest imposed under subsection (3) must not

exceed the amount of the costs.

(5)
The Welsh Ministers may recover from the person, as a civil debt

due to them, the unpaid amount of the costs and any unpaid

interest.”

11

(7)
In section 54 of EA 1997 (orders and regulations)—

(a)
in subsection (2), after “section” insert “32AB(2) or”;

(b)
after subsection (2) insert—

“(2A)
A statutory instrument which contains (whether alone or

with other provision) an order under section 32AB(2) may

not be made unless a draft of the instrument has been laid

before, and approved by a resolution of, the National

Assembly for Wales.””
Clause 30
18
Leave out Clause 30
Clause 31
19
Leave out Clause 31
Clause 34
20
Page 33, line 24, at end insert—

“( )
In section 88I (other functions of adjudicator relating to admission

arrangements), in subsection (3), omit paragraph (b) (and the “or”

preceding it).”
21
Page 33, line 29, leave out sub-paragraph (i)
22
Page 33, line 33, leave out paragraph (c)
After Clause 35
23
Insert the following new Clause—

“Objections to admission arrangements

(1)
Section 88H of SSFA 1998 (reference of objections to adjudicator) is

amended as set out in subsections (2) to (6).

(2)
In subsection (2)—

(a)
in paragraph (a), for “an appropriate person” substitute “a body or

person”;

(b)
after “that” insert “body or”.

(3)
Omit subsection (3).

(4)
In subsection (4) omit “or (3)”.

(5)
In subsection (5)—

(a)
in paragraph (a)(i) omit “or (3)”;

(b)
in paragraph (a)(ii) for “(3)” substitute “(2)”;

(c)
in paragraph (c) omit “or (3)”;

(d)
in paragraph (d) omit “or (3)”.

(6)
Omit subsection (6).