Higher Education and Research Bill (HC Bill 4)

(a) they are requirements to be met before financial support of a specified
amount or of a specified description is given by the OfS in respect of
activities carried on by an institution, and

(b) they apply to every institution, or every institution within a specified
5description, in respect of whose activities that support may be
provided.

(6) The terms and conditions under subsection (1) may, in particular—

(a) enable the Secretary of State to require the repayment, in whole or in
part, of sums paid by the Secretary of State if any of the terms and
10conditions subject to which the sums were paid is not complied with,
and

(b) require the payment of interest in respect of any period during which a
sum due to the Secretary of State in accordance with any of the terms
and conditions remains unpaid.

(7) 15In this section “specified” means specified in the terms and conditions.

Regulatory framework

67 Regulatory framework

(1) The OfS must, from time to time, prepare and publish a regulatory framework.

(2) The OfS must have regard to it when exercising its functions.

(3) 20The regulatory framework is to consist of—

(a) a statement of how it intends to perform its functions, and

(b) guidance for registered higher education providers on the general
ongoing registration conditions.

(4) The statement under subsection (3)(a) must set out how the OfS intends to
25perform its functions in relation to a registered higher education provider in
proportion to the OfS’s assessment of the regulatory risk posed by the
provider.

(5) “Regulatory risk” means the risk of a breach of the provider’s ongoing
registration conditions.

(6) 30Guidance under subsection (3)(b) must include guidance for the purpose of
helping to determine whether or not behaviour complies with the general
ongoing registration conditions.

(7) The guidance may in particular specify—

(a) descriptions of behaviour which the OfS considers compliant with, or
35not compliant with, a general ongoing registration condition;

(b) factors which the OfS will take into account in determining whether or
not behaviour is compliant with a general ongoing registration
condition.

(8) Before publishing a regulatory framework under this section the OfS must
40consult—

(a) bodies representing the interests of English higher education
providers,

(b) bodies representing the interests of students on higher education
courses provided by English higher education providers, and

(c) such other persons as it considers appropriate.

(9) Where a regulatory framework is published, the OfS must send a copy of it to
the Secretary of State who must lay it before Parliament.

(10) In this section, “academic year” means a period of 12 months beginning on 1
5August.

Supplementary functions

68 Secretary of State’s power to confer supplementary functions

(1) The Secretary of State may by regulations confer on the OfS such
supplementary functions relating to higher education as the Secretary of State
10considers appropriate.

(2) A “supplementary function” is a function which—

(a) is exercisable for the purposes of—

(i) the performance by the Secretary of State of the Secretary of
State’s functions under primary or secondary legislation, or

(ii) 15the doing by the Secretary of State of anything the Secretary of
State has power to do apart from such legislation, and

(b) relates to, or to the activities of, an institution in England which
provides, or may provide, higher education.

(3) Subsection (4) applies where—

(a) 20any land or other property is or was used or held for the purposes of an
institution, and

(b) the Secretary of State is entitled to any right or interest in respect of the
property, or would be so entitled on the occurrence of any event.

(4) If the institution is an English higher education provider—

(a) 25the Secretary of State may direct that all or any of the Secretary of
State’s functions in respect of the property are to be exercisable on the
Secretary of State’s behalf by the OfS, and

(b) the functions are to be so exercised in accordance with such directions
as the Secretary of State may give.

(5) 30This section does not affect any other powers to confer functions on, or
delegate functions to, the OfS.

Directions

69 Secretary of State’s power to give directions

(1) The Secretary of State may by regulations give the OfS general directions about
35the performance of any of its functions.

(2) In giving such directions, the Secretary of State must have regard to the need
to protect academic freedom, including, in particular, the freedom of
institutions—

(a) to determine the content of particular courses and the manner in which
40they are taught, supervised or assessed,

(b) to determine the criteria for the selection, appointment and dismissal of
academic staff and apply those criteria in particular cases, and

(c) to determine the criteria for the admission of students and apply those
criteria in particular cases.

(3) 5The directions may, in particular, be framed by reference to particular courses
of study but they must not relate to—

(a) particular parts of courses of study,

(b) the content of such courses,

(c) the manner in which they are taught, supervised or assessed,

(d) 10the criteria for the selection, appointment or dismissal of academic
staff, or how they are applied, or

(e) the criteria for the admission of students, or how they are applied.

(4) The Secretary of State may also by regulations give the OfS financial support
directions in relation to a particular registered higher education provider.

(5) 15Financial support directions may be given only if—

(a) it appears to the Secretary of State that the financial affairs of the
provider have been or are being mismanaged, and

(b) the OfS and the provider are consulted by the Secretary of State before
the directions are given.

(6) 20“Financial support directions” are such directions about the provision of
financial support under section 37 or 38 in respect of activities carried on by the
provider as the Secretary of State considers necessary or expedient because of
the mismanagement.

(7) The OfS must comply with any directions given under this section.

25Powers of Secretary of State to obtain information or advice

70 Power to require information or advice from the OfS

(1) The OfS must provide the Secretary of State with—

(a) such information regarding any of its functions, or obtained in the
performance of any of its functions, as the Secretary of State may
30require it to provide, or

(b) such advice regarding any of its functions as the Secretary of State may
require it to provide.

(2) The OfS must provide information or advice under subsection (1) in such form
as the Secretary of State may require.

71 35Power to require application-to-acceptance data

(1) The Secretary of State may, by notice, require a body within subsection (2) to
provide such application-to-acceptance information as may be described in the
notice for use in qualifying research.

(2) A body is within this subsection if it provides services to one or more English
40higher education providers relating to applications for admission on to higher
education courses provided by them.

(3) “Application-to-acceptance information” means information relating to—

(a) applying for admission on to higher education courses provided by
English higher education providers (including predicted grades),

(b) offers and rejections regarding which individuals are admitted on to
those courses, or

(c) 5the acceptance of such offers.

(4) “Qualifying research” means—

(a) research into the choices available to individuals who are—

(i) applying for admission on to higher education courses
provided by English higher education providers, or

(ii) 10considering whether to accept an offer for admission on such a
course from such a provider;

(b) research into equality of opportunity;

(c) research into any other topic approved by the Secretary of State.

(5) The notice under subsection (1) may require the information to be provided—

(a) 15by a time specified in the notice, and

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

(6) If a body fails to comply with a notice under subsection (1) and does not satisfy
the Secretary of State that it is unable to provide the information, the Secretary
of State may enforce the duty to comply with the notice in civil proceedings for
20an injunction or (in Scotland) an interdict.

(7) In this section, “equality of opportunity” means equality of opportunity in
connection with access to and participation in higher education provided by
English higher education providers.

(8) See section 72 regarding the use of information obtained under this section.

72 25Use of application-to-acceptance data for research purposes

(1) The Secretary of State may—

(a) use information obtained under section 71 for use for qualifying
research, and

(b) provide information obtained under section 71 to an approved person
30for use for qualifying research.

(2) The Secretary of State or an approved person may publish the product of
research conducted using information obtained under section 71 so long as—

(a) a purpose of the Secretary of State or the approved person in publishing
it is to provide statistical information,

(b) 35no individual to whom the information obtained under section 71
relates may be identified from the publication, and

(c) the publication does not include information obtained under section 71
that may be regarded as commercially sensitive.

(3) “Approved person” means—

(a) 40a body approved by the Secretary of State for the purposes of this
section that uses or disseminates information for the purpose of
research (“an approved body”), or

(b) an individual approved by the Secretary of State or an approved body
for the purposes of this section (“an approved researcher”).

(4) An approved body may provide information obtained under section 71 to an
approved researcher, but an approved researcher may not provide that
information to—

(a) another approved researcher, or

(b) 5another approved body.

(5) The Secretary of State must publish guidance regarding factors that will be
taken into account in deciding whether to approve a body or individual for the
purposes of this section.

(6) “Qualifying research” has the same meaning as in section 71.

10HEFCE and the DFA

73 Higher Education Funding Council for England

The Higher Education Funding Council for England ceases to exist.

74 The Director of Fair Access to Higher Education

The office of Director of Fair Access to Higher Education ceases to exist.

15Interpretation

75 Meaning of “English higher education provider” etc

(1) In this Part—

• “English higher education provider” means a higher education provider
  whose activities are carried on, or principally carried on, in England;

• 20“higher education provider” means an institution which provides higher
  education;

• “institution” includes any training provider (whether or not the training
  provider would otherwise be regarded as an institution);

• “higher education” means education provided by means of a higher
  25education course;

• “higher education course” means a course of any description mentioned
  in Schedule 6 to the Education Reform Act 1988;

• “training provider” means a person who provides training for members
  of the school workforce within the meaning of Part 3 of the Education
  30Act 2005 (see section 100 of that Act).

(2) In this Part—

(a) “English further education provider” means an institution in England
within the further education sector, and

(b) references to an institution within the further education sector have the
35same meaning as in the Further and Higher Education Act 1992 (see
section 91(3) of that Act).

(3) In this Part references to a higher education course provided in England are to
a higher education course which is provided wholly, or principally, in
England.

(4) In this Part references to an institution in a part of the United Kingdom are to
an institution whose activities are carried on, or principally carried on, in that
part.

76 Designation of other providers of higher education

(1) 5The Secretary of State may, on the application of a provider of higher education
within subsection (2), designate the provider for the purposes of this section.

(2) A provider of higher education is within this subsection if—

(a) it provides higher education,

(b) its activities are carried on, or principally carried on, in England, and

(c) 10but for the designation it would not be regarded as an institution for the
purposes of this Part.

(3) A provider of higher education designated under this section is, unless the
designation is withdrawn, to be treated for the purposes of any provision made
by or under this Part as being an institution.

(4) 15The Secretary of State may, by regulations, make provision about—

(a) the making of applications for designation;

(b) the making of designations under this section (including provision
about matters to be taken into account in determining whether to make
a designation);

(c) 20the withdrawal of a designation (including provision about matters to
be taken into account in determining whether to withdraw a
designation);

(d) the effect of a withdrawal of a designation (including provision for a
provider whose designation is withdrawn to continue to be treated as
25an institution for purposes prescribed in the regulations).

(5) Subsection (3) is subject to any provision made under subsection (4)(d).

77 Other definitions

(1) In this Part—

• “an access and participation plan condition” has the meaning given by
  30section 12(3);

• “a fee limit condition” has the meaning given by section 10(2);

• “foundation degree” has the meaning given by section 40(3);

• “governing body”—

  (a)

  in relation to a training provider who, but for the definition of
  35“institution” in section 75(1), would not be regarded as an
  institution, means any persons responsible for the provider’s
  management;

  (b)

  in relation to a provider designated under section 76 means any
  persons responsible for the provider’s management;

  (c)

  40in relation to any other institution, has the meaning given by
  section 90(1) of the Further and Higher Education Act 1992, but
  subject to any provision made by virtue of section 90(2) of that
  Act;

• “the register” has the meaning given by section 3(1);

Higher Education and Research BillPage 46

• “registered higher education provider” has the meaning given by section
  3(10);

• “registration” has the meaning given by section 3(10);

• “research award” has the meaning given by section 40(3);

• 5“taught award” has the meaning given by section 40(3).

(2) In this Part, “fees” in relation to undertaking a course, means fees in respect of,
or otherwise in connection with, undertaking the course, including admission,
registration, tuition and graduation fees and fees payable for awarding or
accrediting a qualification in respect of the course, but excluding—

(a) 10fees payable for board or lodging,

(b) fees payable for field trips (including any tuition element of such fees),

(c) fees payable for attending any graduation or other ceremony, and

(d) such other fees as may be prescribed by regulations made by the
Secretary of State.

(3) 15References in this Part to the ongoing registration conditions of a provider have
the meaning given by section 3(8).

(4) For the purposes of this Part an appeal is “pending” during the period—

(a) beginning when it is instituted, and

(b) ending when it is determined, withdrawn or abandoned.

20Part 2 Other education measures

Financial support for students

78 Power to make alternative payments

(1) Section 22 of the Teaching and Higher Education Act 1998 (power to give financial
25support to students) is amended in accordance with subsections (2) to (7).

(2) In subsection (1), for “or loans” substitute “, loans or alternative payments”.

(3) In subsection (2)—

(a) in paragraphs (a), (b) and (c), for “or loan” substitute “, loan or
alternative payment”,

(b) 30in paragraph (g)—

(i) after “repayment” insert “, the making of contributions”,

(ii) after “loans”, in each place, insert “or alternative payments”,

(c) in paragraph (i), after “loans” insert “or as part of alternative
payments”,

(d) 35in paragraph (j), for “or loans”, in each place, substitute “, loans or
alternative payments”.

(4) After subsection (4) insert—

“(4A) Regulations under this section may not provide for alternative
payments to bear any interest.

(4B) 40The provision which may be made by virtue of subsection (2)(g) in
relation to alternative payments under this section includes
provision—

(a) for a recipient of an alternative payment (an “AP recipient”) to
be required to make, in such manner, at such times, and to such
person or body as may be prescribed from time to time,
contributions which together are equal to the aggregate of—

(i) 5the amount of the alternative payment, and

(ii) the amounts which would be required to be paid by
virtue of subsection (3)(a) if the alternative payment
were a loan;

(b) for the payment, in respect of amounts overpaid by an AP
10recipient, of amounts which are the same as the amounts which
would be required to be paid by virtue of subsection (3)(c) if the
alternative payment were a loan;

(c) for an AP recipient not to be liable to make any contribution in
respect of an alternative payment—

(i) 15during such period as may be prescribed from time to
time, or

(ii) in such circumstances as may be so prescribed,

including provision for the cancellation of any further such
liability of the recipient in any such circumstances;

(d) 20with respect to sums which an AP recipient receives, or is
entitled to receive, as part of an alternative payment after the
commencement of the recipient’s bankruptcy or the date of the
sequestration of the recipient’s estate;

(e) with respect to the effect of bankruptcy upon an AP recipient’s
25liability to make contributions in respect of an alternative
payment (whether the contributions relate to sums which the
recipient receives, or is entitled to receive, before or after the
commencement of the bankruptcy);

(f) with respect to sums which an AP recipient receives, or is
30entitled to receive, as part of an alternative payment before or
after a voluntary arrangement under Part 8 of the Insolvency
Act 1986 or Part 8 of the Insolvency (Northern Ireland) Order
1989 (individual voluntary arrangements) takes effect in respect
of the recipient;

(g) 35excluding or modifying the application of Part 8 of that Act, or
Part 8 of that Order, in relation to liability to make contributions
in respect of an alternative payment (whether the contributions
relate to sums which the AP recipient receives, or is entitled to
receive, before or after a voluntary arrangement takes effect in
40respect of the recipient);

(h) for contributions made in respect of an alternative payment to
be dealt with otherwise than by payment into the Consolidated
Fund.””

(5) In subsection (5)—

(a) 45in the opening words, after “loans” insert “or from AP recipients in
respect of alternative payments”,

(b) in paragraphs (a)(i) and (c), after “borrowers” insert “or AP recipients”,

(c) in paragraph (d)(ii), at the end insert “or, in the case of requirements
imposed on AP recipients, additional contributions in respect of such
50periods of the same amounts as the payments which would be required
by virtue of this paragraph if the AP recipient were a borrower”,

(d) after paragraph (e) insert—

“(ea) requiring the making by AP recipients, in respect of
periods when any contributions due in respect of their
alternative payments have not been made, of—

(i) 5additional contributions of the same amounts as
the payments which would be required by virtue
of paragraph (e)(i) if the alternative payments
were loans, or

(ii) both such additional contributions and one or
10more surcharges (together with further
additional contributions in respect of periods
when such surcharges are due but unpaid),”,”

(e) in paragraph (f)—

(i) after “borrowers” insert “or AP recipients”,

(ii) 15at end insert “or contributions”,

(f) in paragraph (h), after “borrowers” insert “or AP recipients”.

(6) In subsection (10), after “Interest” insert “or contributions”.

(7) After subsection (10) insert—

“(11) In this section—

(a) 20references to an alternative payment are to a payment which, in
the Secretary of State’s opinion, achieves a similar effect to a
loan under this section without including provision for the
payment of interest, and

(b) references to a borrower are to a person to whom a loan is
25made.””

(8) In section 46 of the Teaching and Higher Education Act 1998 (extent etc)—

(a) in subsection (7)(a), after “(3)(e)” insert “, (4B)(d)”,

(b) in subsection (8)(a), after “or (h)” insert “, (4B)(d), (e), (f) or (g)”.

(9) The functions of making any provision authorised by the new subsection
30(4B)(d) and (e) of section 22 of the Teaching and Higher Education Act 1998 (as
inserted by subsection (4)) are exercisable in relation to Wales by the Secretary
of State (rather than by the Welsh Ministers).

(10) See section 44 of the Higher Education Act 2004 for provision about the
exercise in relation to Wales of the other functions under section 22 of the Act
35of 1998 (including other functions conferred by virtue of this section).

79 Section 78: consequential amendments

(1) In section 73E of the Education (Scotland) Act 1980 (supply of information in
connection with student loans)—

(a) in subsections (2) and (3)(b), after “loans” insert “and alternative
40payments”,

(b) in subsection (6)(c)—

(i) in the opening words, after “loans” insert “and alternative
payments”,

(ii) in sub-paragraph (ii), after “loans” insert “or alternative
45payments”.

(2) In section 23(7)(a)(i) of the Teaching and Higher Education Act 1998 (functions
in respect of which payments are to be made) for “or loans” substitute “, loans
or alternative payments”.

(3) In section 24 of that Act (supply of information in connection with student
5support)—

(a) in subsections (2) and (3)(i), after “loans” insert “and alternative
payments”,

(b) in subsection (6)(c)—

(i) in the opening words, after “loans” insert “and alternative
10payments”,

(ii) in sub-paragraph (i), after “loans” insert “or alternative
payments”,

(c) in subsection (10), for “or loans” substitute “loans, or alternative
payments”.

(4) 15In paragraph 15 of Schedule 2 to the Commissioners for Revenue and Customs
Act 2005 (restrictions on functions of Commissioners for Revenue and
Customs) for “loan scheme” substitute “support”.

(5) In Article 5 of the Education (Student Support) (Northern Ireland) Order 1998
(S.I. 1998/1760 (N.I. 14)S.I. 1998/1760 (N.I. 14) (supply of information in connection with student
20loans)—

(a) in paragraphs (2) and (3)(b), after “loans” insert “and alternative
payments”,

(b) in paragraph (6)(c)—

(i) in the opening words, after “loans” insert “and alternative
25payments”,

(ii) in paragraph (ii), after “loans” insert “or alternative payments”.

80 Power to determine the maximum amount of loan etc

(1) Section 22 of the Teaching and Higher Education Act 1998 (power to give
financial support for students) is amended as follows.

(2) 30After subsection (2) insert—

“(2A) The provision which may be made by virtue of subsection (2)(b) in
relation to England in respect of higher education courses includes
provision prescribing the maximum amount by reference to matters
determined or published by the Secretary of State or other persons.””

35Student complaints regime

81 Qualifying institutions for purposes of student complaints scheme

(1) Part 2 of the Higher Education Act 2004 (review of student complaints) is
amended in accordance with subsections (2) to (4).

(2) In section 11 (qualifying institutions for purposes of student complaints
40scheme)—

(a) in paragraph (a)(iii), after “the 1992 Act” insert “or section 40 of the
Higher Education and Research Act 2016 (“the 2016 Act”)”,