Higher Education and Research Bill (HC Bill 4)

(5) The Secretary of State determines “the sub-level amount” for the purposes of
this paragraph, and may determine different amounts for different
descriptions of provider.

(6) Those descriptions may be by reference only to—

(a) 5whether a provider has or has not a rating given to it in accordance
with arrangements under section 25, and

(b) where it has such a rating, the level, type or other description of the
rating.

(7) Any amount determined as “the sub-level amount”—

(a) 10must not exceed the basic amount, and

(b) must be greater than the floor amount.

(8) “The floor amount” means such amount as may be prescribed for the
purposes of this paragraph as the floor amount.

(9) The “applicable” sub-level amount in relation to a provider is the sub-level
15amount determined under sub-paragraph (5) which applies to the provider.

(10) “Prescribed” means prescribed by regulations made by the Secretary of
State.

Procedure

4 (1) The Secretary of State must—

(a) 20notify the OfS of initial and subsequent determinations made
under—

(i) paragraph 2(3) (meaning of “a high level quality rating” for
the purposes of paragraph 2),

(ii) paragraph 2(6) (meaning of “the sub-level amount” for the
25purposes of paragraph 2), or

(iii) paragraph 3(5) (meaning of “the sub-level amount” for the
purposes of paragraph 3), and

(b) publish those determinations.

(2) No regulations may be made under paragraph 2 increasing the higher
30amount unless—

(a) the Secretary of State is satisfied that the increase is no greater than
is required to maintain the value of the amount in real terms, or

(b) each House of Parliament has passed a resolution that, with effect
from a date specified in the resolution, the higher amount should be
35increased to an amount specified in the resolution, and the increase
is an increase to the specified amount with effect from the specified
date.

(3) No regulations may be made under paragraph 3 increasing the basic amount
unless—

(a) 40the Secretary of State is satisfied that the increase is no greater than
is required to maintain the value of the amount in real terms, or

(b) a draft of the regulations has been laid before, and approved by a
resolution of, each House of Parliament.

(4) No regulations may be made under paragraph 2 or 3 increasing the floor
45amount for the purposes of that paragraph unless—

(a) the Secretary of State is satisfied that the increase is no greater than
is required to maintain the value of the amount in real terms, or

(b) a draft of the regulations has been laid before, and approved by a
resolution of, each House of Parliament.

(5) 5For the purposes of sub-paragraph (2)(a), (3)(a) and (4)(a), the Secretary of
State is to have regard to such index of prices as may be specified in, or
determined in accordance with, regulations made by the Secretary of State
under this sub-paragraph.

Section 15

SCHEDULE 3 10Monetary penalties: procedure, appeals and recovery

Introduction

1 This Schedule applies in relation to the imposition by the OfS of a monetary
penalty on a registered higher education provider under section 15.

Procedure

2 (1) 15Before imposing a monetary penalty on the provider under that section, the
OfS must notify the provider of its intention to do so.

(2) The notice must—

(a) specify the proposed amount of the penalty,

(b) specify the OfS’s reasons for proposing to impose the penalty,

(c) 20specify the period during which the provider may make
representations about the proposal (“the specified period”), and

(d) 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) 25The OfS must have regard to any representations made by the provider
during the specified period in deciding whether to impose a monetary
penalty on it.

(5) Having decided whether or not to impose a monetary penalty, the OfS must
notify the provider of its decision.

(6) 30Where the decision is to impose a monetary penalty, the notice must
specify—

(a) the amount of the penalty, and

(b) the period within which the penalty must be paid or the periods
within which different portions of the penalty must be paid.

(7) 35The notice must also contain information as to—

(a) the grounds for imposing the penalty,

(b) how payment may be made,

(c) rights of appeal,

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

(e) 40the consequences of non-payment.

(8) The requirement to pay the penalty is suspended at any time when an
appeal could be brought in respect of the penalty or such an appeal is
pending.

(9) But that does not prevent the requirement to pay taking effect if the provider
5notifies the OfS that it does not intend to appeal.

Appeals

3 (1) The governing body of a provider may appeal to the First-tier Tribunal
against—

(a) a decision under section 15 to impose a monetary penalty on the
10provider;

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

(2) An appeal under this paragraph 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) 15that the decision was unreasonable.

(3) On an appeal under this paragraph the Tribunal may—

(a) withdraw the requirement to pay the penalty;

(b) confirm that requirement;

(c) vary that requirement;

(d) 20remit the decision whether to confirm the requirement to pay the
penalty, or any matter relating to that decision, to the OfS.

Interest and recovery

4 (1) This paragraph applies if all or part of a monetary penalty imposed on a
provider under section 15 is unpaid by the time when it is required to be
25paid.

(2) The unpaid amount of the penalty for the time being—

(a) carries interest at the rate for the time being specified in section 17 of
the Judgments Act 1838, and

(b) does not also carry interest as a judgment debt under that section.

(3) 30The total amount of interest imposed under sub-paragraph (2) must not
exceed the amount of the penalty.

(4) The OfS may recover from the provider, as a civil debt due to it, the unpaid
amount of the penalty and any unpaid interest.

(5) Any sums received by the OfS by way of a penalty under section 15 or interest under
35this paragraph must be paid into the Consolidated Fund.

Section 26

SCHEDULE 4 Assessing higher education: designated body

Part 1 Designation

5Recommendation

1 The OfS must recommend to the Secretary of State that a body is designated
to perform either or both of the assessment functions if it considers that—

(a) the body is suitable to perform the function, and

(b) designating the body would be appropriate for securing the effective
10assessment of the quality and standards of higher education
provided by English higher education providers.

Consultation prior to recommendation

2 (1) Before recommending the designation of a body under this Schedule, the
OfS must consult in accordance with sub-paragraph (3) about whether there
15is a body that is suitable to be designated under this Schedule.

(2) The Secretary of State may direct the OfS to consult in accordance with sub-
paragraph (3) about whether there is a body that is suitable to be designated
under this Schedule.

(3) The OfS consults in accordance with this sub-paragraph if it consults—

(a) 20a number of registered higher education providers that, taken
together, appear to the OfS to comprise a broad range of the different
types of such providers,

(b) a number of persons that, taken together, appear to the OfS to
represent, or promote the interests of, a broad range of students on
25higher education courses provided in England by registered higher
education providers,

(c) a number of persons that, taken together, appear to the OfS to
represent, or promote the interests of, a broad range of employers of
graduates, and

(d) 30such other persons as the OfS considers appropriate.

(4) If the OfS consults in accordance with this paragraph, it must—

(a) decide whether to recommend the designation of a body under this
Schedule, and

(b) notify the Secretary of State of its decision.

(5) 35The OfS must publish its decision under sub-paragraph (4).

Designation

3 (1) This paragraph applies where, in accordance with paragraphs 1 and 2, the
OfS recommends that a body (“the recommended body”) be designated to
perform either or both of the assessment functions.

(2) 40The Secretary of State may designate the recommended body only if the
Secretary of State considers that—

(a) the body is suitable to perform the recommended function or
functions, and

(b) designating the body would be appropriate for securing the effective
assessment of the quality and standards of higher education
5provided by English higher education providers.

(3) If the OfS recommends the body be designated to perform one of the
assessment functions, the Secretary of State may only designate the body to
perform that function.

(4) If the OfS recommends the body be designated to perform both of the
10assessment functions, the Secretary of State may only designate the body to
perform both of those functions.

(5) If the Secretary of State decides to designate the recommended body, the
Secretary of State must—

(a) notify the body of the designation before the date on which the
15designation takes effect (“the effective date”), and

(b) publish notice of the designation before that date.

(6) The notice of the designation must state—

(a) the name of the body,

(b) the function or functions it is designated to perform, and

(c) 20the effective date.

(7) If the Secretary of State decides not to designate the recommended body, the
Secretary of State must publish the reasons for not doing so.

Bodies suitable to perform assessment functions

4 (1) A body is suitable to perform an assessment function if the body satisfies
25conditions A to D.

(2) Condition A is that the body is capable of performing the assessment
function in an effective manner.

(3) Condition B is that—

(a) the persons who determine the strategic priorities of the body
30represent a broad range of registered higher education providers,

(b) the body commands the confidence of registered higher education
providers, and

(c) the body exercises its functions independent of any particular higher
education provider.

(4) 35Condition C is that the body consents to being designated under this
Schedule.

(5) Condition D is that the body is a body corporate and is not—

(a) a servant or agent of the Crown, or

(b) a body to which the Secretary of State appoints members.

40Removal of designation

5 (1) The Secretary of State may by notice remove a designation under this
Schedule.

(2) The notice must—

(a) include reasons for the Secretary of State’s decision, and

(b) specify the date on which the designation is removed.

(3) The Secretary of State may only remove the designation if—

(a) the Secretary of State is satisfied that removing the designation
5would be appropriate for securing the effective assessment of the
quality and standards of higher education provided by English
higher education providers, or

(b) the designated body consents to the removal of the designation.

(4) Before removing the designation the Secretary of State must consult—

(a) 10the OfS,

(b) a number of registered higher education providers that, taken
together, appear to the Secretary of State to comprise a broad range
of the different types of such providers,

(c) a number of persons that, taken together, appear to the Secretary of
15State to represent, or promote the interests of, a broad range of
students on higher education courses provided in England by
registered higher education providers,

(d) a number of persons that, taken together, appear to the Secretary of
State to represent, or promote the interests of, a broad range of
20employers of graduates, and

(e) such other persons as the Secretary of State considers appropriate.

(5) In determining whether a designation under this Schedule should be
removed, the Secretary of State must have regard to any relevant
information that the OfS has provided to the Secretary of State.

(6) 25The Secretary of State must publish a notice under this paragraph.

Part 2 Oversight by the OfS

Application

6 This Part applies if there is a body designated under this Schedule to
30perform an assessment function.

Oversight arrangements

7 The OfS must make arrangements for holding the designated body to
account for the performance of the designated function.

Annual report by the designated body

8 (1) 35As soon as possible after the end of each annual reporting period, the
designated body must prepare and send to the OfS a report about the
performance of the designated function during the period.

(2) “Annual reporting period”, in relation to a designated body, means—

(a) the period of 12 months beginning with the effective date, and

(b) 40each successive period of 12 months.

Triennial report by the OfS

9 (1) As soon as possible after the end of each triennial reporting period, the OfS
must prepare and send to the Secretary of State a triennial report about—

(a) how the designated body has performed the designated functions
5during the period,

(b) whether the designated body should continue to be designated
under Part 1 of this Schedule,

(c) the appropriateness of any fees charged by the designated body
under section 27, and

(d) 10any other matters that the OfS considers relevant.

(2) In preparing a triennial report, the OfS must have regard to any views
provided to the OfS by a person listed in sub-paragraph (3) about—

(a) the matters listed in sub-paragraph (1)(a) to (c), and

(b) what other matters, if any, should be dealt with in the report.

(3) 15Those persons are—

(a) registered higher education providers,

(b) persons representing, or promoting the interests of, students on
higher education courses provided in England by registered higher
education providers,

(c) 20persons representing, or promoting the interests of, employers of
graduates, and

(d) such other persons as the OfS considers appropriate.

(4) “Triennial reporting period”, in relation to a designated body, means—

(a) the period of 3 years beginning with the effective date, and

(b) 25each successive period of 3 years.

Duty of the OfS to inform the Secretary of State about significant concerns

10 The OfS must inform the Secretary of State if it has significant concerns
about—

(a) how the designated body is performing the designated function, or

(b) 30the continued suitability of the designated body to carry out that
function.

Part 3 Interpretation

11 (1) In this Schedule—

• 35“assessment functions” has the meaning given in section 26;

• “designated body” means a body for the time being designated under
  this Schedule;

• “the effective date”, in relation to a designated body, has the meaning
  given in paragraph 3;

• 40“graduate” means a graduate of a higher education course provided by
  a registered higher education provider;

• “standards” has the meaning given in section 13.

(2) References in this Schedule to a body that is suitable to perform an
assessment function are to be read in accordance with paragraph 4.

Section 56

SCHEDULE 5 Powers of entry and search etc

5Power to issue search warrant

1 (1) A justice of the peace who is satisfied that the requirements in sub-
paragraph (3) are met in relation to relevant higher education premises may
issue a warrant under this paragraph (a “search warrant”) in respect of the
premises.

(2) 10“Relevant higher education premises” means premises in England which—

(a) are occupied by a supported higher education provider, and

(b) are used for, or in connection with, the provision of higher education
courses by such a provider,

but does not include premises which are used wholly or mainly as a private
15dwelling.

(3) The requirements of this sub-paragraph are met in relation to premises
occupied by a supported higher education provider if—

(a) there are reasonable grounds for suspecting that there is, or has been,
a breach of a registration condition or funding condition of the
20provider,

(b) the suspected breach is sufficiently serious to justify entering the
premises,

(c) entry to the premises is necessary to determine whether the
suspected breach is taking place or has taken place, and

(d) 25either of the requirements in sub-paragraph (4) is met.

(4) The requirements referred to in sub-paragraph (3)(d) are—

(a) that entry to the premises has been, or it is likely to be, refused;

(b) that requesting entry may frustrate or seriously prejudice the
purpose of entry.

(5) 30References in this Schedule to a registration condition of a supported higher
education provider are to—

(a) an initial registration condition applicable to the provider (see
section 5), or

(b) an ongoing registration condition of the provider (see section 3(8)).

(6) 35References in this Schedule to a funding condition of a supported higher
education provider are to—

(a) a term or condition subject to which a grant, loan or other payment
under section 37 or 38 (financial support for providers) was paid to
the provider, or

(b) 40a condition imposed on the provider by or under regulations made
under section 22 of the Teaching and Higher Education Act 1998
(financial support for students) in connection with the designation of
a course for the purposes of that section.

Application for search warrant by an authorised person

2 (1) A search warrant may be issued only on the application of a person
authorised in writing by the OfS or the Secretary of State to exercise the
powers conferred by a search warrant (an “authorised person”).

(2) 5An application for a search warrant in respect of premises may be made
without notice being given to—

(a) the supported higher education provider occupying the premises, or

(b) any other persons who may be affected by it.

(3) An application for a search warrant in respect of premises must be
10supported by an information in writing.

(4) An authorised person applying for a search warrant must answer on oath
any question that the justice of the peace hearing the application asks the
person.

Search warrant

3 (1) 15A search warrant must—

(a) specify the name of the authorised person who applied for it,

(b) specify the date on which it is issued,

(c) state that it is issued under this Schedule,

(d) specify the premises to be searched,

(e) 20specify the supported higher education provider occupying the
premises, and

(f) identify, so far as is possible, the suspected breach of a registration
condition or funding condition of the provider.

(2) A search warrant may permit or require a constable to accompany an
25authorised person who is executing it.

(3) A search warrant authorises an authorised person to enter each set of
premises specified in the warrant on one occasion only unless it specifies
that it authorises multiple entries.

(4) If a search warrant specifies that it authorises multiple entries, it must also
30specify whether the number of entries authorised is unlimited or limited to
a specified maximum.

(5) Two copies must be made of a search warrant that specifies only one set of
premises and does not authorise multiple entries.

(6) As many copies as are reasonably required may be made of any other kind
35of search warrant.

(7) The copies made under sub-paragraphs (5) and (6) must be clearly certified
as copies.

Powers conferred by search warrant

4 (1) A search warrant authorises an authorised person—

(a) 40to enter the premises specified in the warrant at a reasonable hour,

(b) to search the premises to the extent that is reasonably required for the
purpose of determining whether there is, or has been, a breach of a

registration condition or funding condition of the supported higher
education provider occupying the premises,

(c) for that purpose, to inspect items found on the premises,

(d) for that purpose, to copy documents found on the premises, and

(e) 5to seize and retain items found on the premises which the authorised
person reasonably believes are evidence of a breach of a registration
condition or a funding condition of the supported higher education
provider occupying the premises.

(2) A search warrant may be executed by any authorised person.

(3) 10A constable accompanying an authorised person under paragraph 3(2) may,
if necessary, use reasonable force to enable the exercise of the powers
conferred by the warrant.

(4) An authorised person entering premises under a search warrant may—

(a) be accompanied by such other persons as the authorised person
15considers necessary, and

(b) take onto the premises such equipment as the authorised person
considers necessary.

Entering and searching premises

5 (1) Where the occupier of the premises to be entered and searched is present at
20the time when an authorised person seeks to execute a search warrant, the
authorised person must—

(a) identify himself or herself to the occupier,

(b) produce to the occupier documentary evidence that he or she is an
authorised person,

(c) 25produce the search warrant to the occupier, and

(d) supply the occupier with a certified copy of it.

(2) Where the occupier of the premises is not present at the time when an
authorised person seeks to execute a search warrant—

(a) if another person who appears to the authorised person to be in
30charge of the premises is present, sub-paragraph (1) has effect as if
references to the occupier were references to the other person;

(b) if there is no such person present, the authorised person must leave
a certified copy of the warrant in a prominent place on the premises.

(3) An authorised person who enters premises under a search warrant must
35take reasonable steps to ensure that, when the authorised person leaves the
premises, they are as secure as they were before the authorised person
entered them.

(4) Entry and search under a search warrant may not take place after the end of
the period of one month beginning with the date on which it is issued.

40Inspecting, copying, seizing and retaining items

6 (1) The powers conferred by a search warrant to inspect, copy, seize and retain
items found on premises include—

(a) power to require a person on the premises who is holding or
accountable for items that are on the premises to produce them,