Higher Education and Research Bill (HC Bill 4)

(b) if earlier, when the provider is removed from the register under section
18 (de-registration by the OfS) or section 22 (voluntary de-registration).

(5) The OfS may vary the excepted purposes or the remedial conditions at any
time during the suspension.

(6) 5Where it decides to vary the excepted purposes or the remedial conditions, the
OfS must notify the governing body of the provider of its decision.

(7) The notice must specify the excepted purposes, or remedial conditions, as
varied.

(8) Where the excepted purposes are varied, the OfS must update the provider’s
10entry in the register with the excepted purposes (as varied).

(9) Where the suspension of a provider’s registration ends, the OfS must enter the
date on which it ends in the provider’s entry in the register.

17 Suspension: procedure

(1) Before suspending a registered higher education provider’s registration under
15section 16, the OfS must notify the governing body of the provider of its
intention to do so.

(2) The notice must—

(a) specify the OfS’s reasons for proposing to suspend the registration,

(b) specify the proposed excepted purposes and the proposed remedial
20conditions (if any),

(c) specify the period during which the governing body of the provider
may make representations about the proposal (“the specified period”),
and

(d) specify the way in which those representations may be made.

(3) 25The specified period must not be less than 28 days beginning with the date on
which the notice is received.

(4) The OfS must have regard to any representations made by the governing body
of the provider during the specified period in deciding whether to suspend its
registration.

(5) 30Having decided whether or not to suspend the provider’s registration, the OfS
must notify the governing body of the provider of its decision.

(6) Where the decision is to suspend the provider’s registration, the notice must—

(a) specify the date on which the suspension takes effect,

(b) specify the excepted purposes,

(c) 35specify the remedial conditions (if any), and

(d) contain information as to the grounds for the suspension.

(7) The OfS may vary the date specified under subsection (6)(a) at any time before
that date by notifying the governing body of the provider.

(8) Subsections (1) to (7) do not apply where the OfS considers that a suspension
40should take effect immediately because there is an urgent need to protect
public money, including, in particular, payments made under—

(a) section 37 or 38 (financial support for providers), or

(b) section 22 of the Teaching and Higher Education Act 1998 (financial
support for students).

(9) In such a case—

(a) the OfS must notify the governing body of the provider of its decision
5to suspend the provider’s registration, and

(b) that notice must comply with the requirements of subsection (6).

18 De-registration by the OfS

(1) The OfS must remove a registered higher education provider from the register
if the OfS becomes aware that the provider no longer is, or intends to become,
10an English higher education provider.

(2) The OfS may remove a registered higher education provider from the register
if condition A or B is satisfied.

(3) Condition A is satisfied if—

(a) the OfS has previously exercised its powers under section 15 (monetary
15penalties) or section 16 (suspension) in relation to breach of one of the
provider’s ongoing registration conditions, and

(b) it appears to the OfS that—

(i) there is again a breach, or a continuing breach, of that condition,
or

(ii) 20there is or has been a breach of a different one of the provider’s
ongoing registration conditions.

(4) Condition B is satisfied if it appears to the OfS that—

(a) there is or has been a breach of one of the provider’s ongoing
registration conditions, and

(b) 25its powers under section 15 and 16 are insufficient to deal with the
failure.

(5) The OfS may make transitional or saving provision in connection with the
removal of a provider from the register under this section.

(6) That provision may include treating the provider as a registered higher
30education provider for such purposes as the OfS may specify.

(7) The OfS must—

(a) maintain a list of providers removed from the register under this
section,

(b) include in that list the details of any provision made under subsection
35(5), and

(c) make the list publicly available by such means as it considers
appropriate.

19 De-registration by the OfS: procedure

(1) Before removing a registered higher education provider from the register
40under section 18, the OfS must notify the governing body of the provider of its
intention to do so.

(2) The notice must—

(a) specify the OfS’s reasons for proposing to remove the provider from
the register,

(b) specify the period during which the governing body of the provider
may make representations about the proposal (“the specified period”),
5and

(c) specify the way in which those representations may be made.

(3) The specified period must not be less than 28 days beginning with the date on
which the notice is received.

(4) The OfS must have regard to any representations made by the governing body
10of the provider during the specified period in deciding whether to remove it
from the register.

(5) Having decided whether or not to remove the provider from the register, the
OfS must notify the governing body of the provider of its decision.

(6) Where the decision is to remove the provider from the register, the notice must
15specify the date on which the removal takes effect.

(7) The notice must also contain information as to—

(a) the grounds for the removal,

(b) rights of appeal, and

(c) the period within which an appeal may be made.

(8) 20The OfS may vary the date specified under subsection (6) at any time before
that date by notifying the governing body of the provider.

(9) A removal under section 18 may not take effect at any time when an appeal
could be brought against the decision to remove or such an appeal is pending.

(10) But that does not prevent a removal taking effect if the governing body of the
25provider notifies the OfS that it does not intend to appeal.

20 De-registration: appeals

(1) The governing body of an institution may appeal to the First-tier Tribunal
against a decision of the OfS to remove it from the register under section 18.

(2) An appeal may be on the grounds—

(a) 30that the decision was based on an error of fact;

(b) that the decision was wrong in law;

(c) that the decision was unreasonable.

(3) On an appeal, the Tribunal may—

(a) withdraw the removal;

(b) 35confirm the removal;

(c) vary the date on which the removal takes effect;

(d) remit the decision whether to confirm the removal, or any matter
relating to that decision, to the OfS.

21 Refusal to renew an access and participation plan

(1) 40This section applies where—

(a) an access and participation plan condition is one of the ongoing
registration conditions of a registered higher education provider, and

(b) it appears to the OfS that there is or has been a failure by the governing
body of the provider to comply with—

(i) the requirement of that condition mentioned in section 12(3)(b)
(failure to comply with general provisions of access and
5participation plan), or

(ii) a fee limit condition which is one of its ongoing registration
conditions.

(2) The OfS may notify the governing body of the provider that, on the expiry of
the access and participation plan in relation to the provider which is currently
10in force, it will refuse to approve a new plan under section 28 during such
period as the OfS may specify in the notice.

(3) The Secretary of State may by regulations make provision about—

(a) matters to which the OfS must, or must not, have regard in exercising
its powers under subsection (2);

(b) 15the procedure to be followed in connection with the giving of
notification under subsection (2);

(c) the effect of such a notification.

(4) The regulations must include provision—

(a) requiring any decision of the OfS under subsection (2) affecting the
20governing body of a provider to have effect in the first instance as a
provisional decision,

(b) enabling the governing body to apply for a review of the provisional
decision to a person, or panel of persons, appointed by the Secretary of
State in accordance with the regulations,

(c) 25enabling the Secretary of State to pay remuneration and allowances to
any person so appointed,

(d) prescribing the grounds on which an application for the review of a
provisional decision may be made, and

(e) requiring the OfS to reconsider its provisional decision, and make a
30final decision, having regard to any recommendation of the person or
panel.

(5) The OfS’s powers in sections 15 to 19 (penalties, suspension and de-
registration) are also available in the event of the breach of a condition
described in subsection (1)(b).

35Voluntary de-registration

22 Voluntary de-registration

(1) The OfS must remove a registered higher education provider from the register
if—

(a) the governing body of the provider applies to the OfS for the provider
40to be removed from the register, and

(b) the application complies with any requirements imposed under
subsection (2).

(2) The OfS may determine—

(a) the form of an application under subsection (1),

(b) 45the information to be contained in it or provided with it, and

(c) the manner in which an application is to be submitted.

(3) The OfS must notify the governing body of the provider of the date on which
the provider is removed from the register (“the removal date”).

(4) The OfS may vary the removal date at any time before that date by notifying
the governing body of the provider.

(5) 5The OfS may make transitional or saving provision in connection with the
removal of a provider from the register under this section.

(6) That provision may include treating the provider as a registered higher
education provider for such purposes as the OfS may specify.

(7) The OfS must—

(a) 10maintain a list of providers removed from the register under this
section,

(b) include in that list the details of any provision made under subsection
(5), and

(c) make the list publicly available by such means as it considers
15appropriate.

Quality and standards

23 Assessing the quality and standards of higher education

(1) The OfS may assess, or make arrangements for the assessment of, the quality
of, and the standards applied to, higher education provided by English higher
20education providers.

(2) But the OfS must assess, or make arrangements for the assessment of, the
quality of, and the standards applied to, higher education provided by—

(a) institutions who have applied to be registered in the register for the
purposes of determining whether they satisfy any initial registration
25condition applicable to them relating to the quality of, or standards
applied to, higher education provided by them (see section 13(1)(a)),
and

(b) registered higher education providers for the purposes of determining
whether they satisfy any ongoing registration condition of theirs
30relating to the quality of, or standards applied to, higher education
provided by them (see section 13(1)(a)).

(3) “Standards” has the same meaning as in section 13(1)(a).

24 Quality Assessment Committee

(1) The OfS must establish a committee called the “Quality Assessment
35Committee”.

(2) The Committee has—

(a) the function of giving the OfS advice on the exercise of its functions
under section 23, and

(b) such other functions that the OfS may confer on it.

(3) 40While a body is designated under Schedule 4 to perform the OfS’s functions
under section 23, the Committee also has the function of giving to the OfS
advice on the exercise by the designated body of those functions.

(4) The majority of the members of the Committee must be individuals who
appear to the OfS to have experience of providing higher education on behalf
of an English higher education provider or being responsible for the provision
of higher education by such a provider.

(5) 5In appointing members of the Committee who meet those criteria, the OfS
must have regard to the desirability of their being currently engaged at the
time of their appointment in the provision of higher education or in being
responsible for such provision.

(6) The majority of the members of the Committee must be individuals who are
10not members of the OfS.

(7) Schedule 1 applies to the Quality Assessment Committee as it applies to
committees established under paragraph 8 of that Schedule.

25 Rating the quality and standards of higher education

(1) The OfS may make arrangements for a scheme to give ratings to English higher
15education providers regarding the quality of, and standards applied to, the
higher education that they provide where they apply for such a rating.

(2) “Standards” has the same meaning as in section 13(1)(a).

26 Performance of assessment functions by a designated body

(1) In Schedule 4—

(a) 20Part 1 makes provision about the designation of a body to perform
either or both of the assessment functions, and

(b) Part 2 makes provision about oversight of the designated body by the
OfS.

(2) The assessment functions are—

(a) 25the functions of the OfS under section 23, and

(b) the functions of the OfS under section 25.

(3) Where a body has been designated under Schedule 4 to perform an assessment
function, the function does not cease to be exercisable by the OfS.

(4) The OfS may by notice require a body for the time being designated under
30Schedule 4 (a “designated body”) to provide the OfS with information which is
held by the designated body for the purposes of the performance of the
assessment functions.

(5) The OfS may give notice under subsection (4) only in respect of information
which is required by the OfS for the purposes of the performance of any of its
35functions.

(6) A notice under subsection (4) may require the information to be provided—

(a) by a time specified in the notice, and

(b) in a form and manner specified in the notice.

(7) If a designated body fails to comply with a notice under subsection (4) and
40does not satisfy the OfS that it is unable to provide the information, the OfS
may enforce the duty to comply with the notice in civil proceedings for an
injunction.

27 Power of designated body to charge fees

(1) In this section “designated body” means a body for the time being designated
under Schedule 4.

(2) A designated body which is designated under that Schedule to perform the functions of
5the OfS under section 23 may—

(a) charge an institution a fee for any activity undertaken, or service
provided, by the body in assessing the institution in the performance
by the body of functions under section 23(2)(a) (assessments to
determine if initial registration condition relating to quality or
10standards is met), and

(b) charge an annual fee to any registered higher education provider in respect of
costs incurred, or to be incurred, by the body in the performance by the body of
functions under section 23(2)(b) (assessments to determine if ongoing
registration condition relating to quality or standards is met).

(3) 15A designated body which is designated under Schedule 4 to perform the
functions of the OfS under section 25 may charge an English higher education
provider a fee for any activity undertaken, or service provided, by the body in
assessing the provider in the performance by the body of functions under
section 25.

(4) 20The amount of a fee payable under subsection (2)(a) or (3) by an institution or
provider may be calculated—

(a) in the case of subsection (2)(a), by reference to costs incurred by the
designated body in the performance by the body of functions under
section 23(2)(a) in relation to a different institution or of its general
25functions;

(b) in the case of subsection (3), by reference to costs incurred by the
designated body in the performance by the body of functions under
section 25 in relation to a different provider or of its general functions;

and the amount of a fee payable under subsection (2)(a) or (3) may not be
30calculated by reference to costs incurred by the designated body in the
performance of any other functions.

(5) The total fees payable under subsection (2)(a) or (3) must not exceed in any
period of 12 months—

(a) in the case of subsection (2)(a), the total costs incurred by the body in
35that period in the performance by the body of the functions under
section 23(2)(a) and of its general functions;

(b) in the case of subsection (3), the total costs incurred by the body in the
period in the performance by the body of the functions under section 25
and of its general functions.

(6) 40The amount of a fee payable under subsection (2)(b) may be calculated by
reference to costs incurred, or to be incurred, by the body in the performance
by the body of functions under section 23(2)(b) which are unconnected with the
provider or of its general functions.

(7) The total fees payable under subsection (2)(b) in any period of 12 months must
45not exceed the total costs incurred by the body in that period in the
performance by the body of the functions under section 23(2)(b) and of its
general functions.

(8) A designated body must publish—

(a) a statement of the amount of the fees which it charges under this section
and the basis on which they are calculated, and

(b) revised statements where the amount of the fees or the basis on which
they are calculated changes.

(9) 5In this section, “the general functions” of a designated body are its functions
under section 26(4) or paragraph 8(1) of Schedule 4 (duty to provide
information and an annual report).

Access and participation

28 Power to approve an access and participation plan

(1) 10The governing body of an institution may apply to the OfS for the OfS’s
approval of a proposed access and participation plan relating to the institution
for the purposes of satisfying an access and participation plan condition.

(2) An access and participation plan is a plan that complies with sections 29 to 31.

(3) The OfS may, if it thinks fit, approve the plan.

(4) 15The OfS may issue guidance as to the matters to which the OfS will have regard
in deciding whether to approve plans.

(5) The Secretary of State may by regulations make provision about the procedure
to be followed in connection with the giving of approval under this section.

(6) The regulations may, in particular, specify matters to which the OfS is, or is not,
20to have regard in making any determination relating to approval.

(7) The regulations may require the institution to which any plan approved under
this section relates to publish the plan in the manner prescribed by the
regulations.

29 Duration of a plan

(1) 25An access and participation plan must specify the period during which it is to
be in force.

(2) The length of that period must not exceed such maximum as may be prescribed
by regulations made by the Secretary of State.

(3) Subsections (1) and (2) do not prevent the approval of a new plan taking effect
30on the expiry of a previous plan.

30 Content of a plan: fees

(1) An access and participation plan relating to an institution must, in relation to
each qualifying course in connection with which fees are to be payable to the
institution by qualifying persons and in respect of each relevant academic year,
35specify or provide for the determination of a limit which those fees are not
permitted to exceed.

(2) The limit must not exceed—

(a) the higher amount, if the institution has a high level quality rating at the
time the plan is approved, or

(b) 40in any other case, the applicable sub-level amount.

(3) In this section—

• “the applicable sub-level amount” in relation to an institution means the
  amount determined from time to time under paragraph 2 of Schedule
  2 as the sub-level amount applicable to that institution;

• 5“high level quality rating” has the same meaning as in that paragraph;

• “the higher amount” means the amount from time to time prescribed as
  the higher amount under that paragraph;

• “qualifying course” and “qualifying person” have the same meaning as in
  section 10;

• 10“relevant academic year”, in relation to a qualifying course, is an academic
  year—

  (a)

  which is applicable to the course,

  (b)

  in respect of which fees are payable to the institution, and

  (c)

  which begins when the plan comes into force or while it is in
  15force.

31 Content of a plan: equality of opportunity

(1) An access and participation plan relating to an institution—

(a) must also include such provisions relating to the promotion of equality
of opportunity as are required by regulations made by the Secretary of
20State to be included in the plan, and

(b) may also include further provisions relating to the promotion of
equality of opportunity.

(2) In this section, any reference to the “general provisions” of an access and
participation plan is a reference to the provisions included in the plan by virtue
25of subsection (1).

(3) The general provisions that may be required by regulations made under
subsection (1) include, in particular, provisions—

(a) requiring the governing body of the institution to take, or secure the
taking of, measures to attract applications from prospective students
30who are members of groups which, at the time when the plan is
approved, are under-represented in higher education,

(b) requiring the governing body of the institution to provide, or secure the
provision of, financial assistance to students,

(c) requiring the governing body of the institution to make available to
35students and prospective students information about financial
assistance available to students from any source,

(d) setting out objectives relating to the promotion of equality of
opportunity,

(e) relating to the monitoring by the governing body of the institution of—

(i) 40its compliance with the provisions of the plan, and

(ii) its progress in achieving any objectives set out in the plan by
virtue of paragraph (d), and

(f) requiring the provision of information to the OfS.

(4) Regulations under subsection (1) may not require a plan—

(a) 45to include among the general provisions of the plan any provision
referring to particular courses or to the manner in which courses are
taught, supervised or assessed, or

(b) to include any provision relating to the criteria for the admission of
students.

(5) In this section—

(a) “equality of opportunity” means equality of opportunity in connection
5with access to and participation in higher education provided by
English higher education providers, and

(b) references to higher education do not include any postgraduate course
other than a course of initial teacher training.

32 Variation of a plan

(1) 10The Secretary of State may, by regulations, make provision enabling an access
and participation plan which has been approved by the OfS under section 28
to be varied.

(2) The regulations must provide for a variation to take effect only if approved by
the OfS.

33 15Review of decisions on approval or variation

Regulations made by virtue of section 28 or 32 must include provision—

(a) requiring any decision of the OfS under section 28 or 32 affecting the
governing body of an institution to have effect in the first instance as a
provisional decision,

(b) 20enabling the governing body to apply for a review of the provisional
decision to a person, or panel of persons, appointed by the Secretary of
State in accordance with the regulations,

(c) enabling the Secretary of State to pay remuneration and allowances to
any person so appointed,

(d) 25prescribing the grounds on which an application for the review of a
provisional decision may be made, and

(e) requiring the OfS to reconsider its provisional decision, and make a
final decision, having regard to any recommendation of the person or
panel.

34 30Advice on good practice

(1) The OfS may—

(a) identify good practice relating to the promotion of equality of
opportunity, and

(b) give advice about such practice to registered higher education
35providers.

(2) “Equality of opportunity” has the same meaning as in section 31.

35 Duty to protect academic freedom

(1) In performing its access and participation functions, the OfS has a duty to
protect academic freedom including, in particular, the freedom of
40institutions—

(a) to determine the contents of particular courses and the manner in
which they are taught, supervised and assessed,