Higher Education and Research Bill (HC Bill 78)

Higher Education and Research BillPage 40

64 Other fees

(1) The OfS may, in accordance with regulations made by the Secretary of State,
charge a fee for—

(a) any activity undertaken by the OfS in the performance of its functions
5which is specified in the regulations;

(b) any service provided by it in the performance of its functions which is
specified in the regulations.

(2) The regulations may, in particular, make provision—

(a) about the persons required to pay the fees (“payees”);

(b) 10about the amounts which may be charged, including different amounts
for different payees;

(c) about the charging of proportions of those amounts in certain
circumstances;

(d) about when a fee is payable, including about payment by instalments;

(e) 15about the consequences of non-payment;

(f) about notification of payees of the fees payable, when they are payable
and the consequences of non-payment;

(g) about the recovery of fees and of costs in recovering those fees;

(h) about the imposition of financial penalties for late payment of fees;

(i) 20about rights of appeal in respect of the imposition of such penalties;

(j) about the charging of interest;

(k) about the waiving or refunding of fees.

(3) The regulations may provide for the amounts of fees to be calculated by
reference to costs incurred by the OfS in the performance of the activity or
25service in question in relation to a person other than the payee.

(4) If costs incurred by the OfS are costs by reference to which fees under section
63 are calculated as a result of regulations made under that section, fees
calculated by reference to those costs may not be charged under this section.

(5) Regulations under this section may be made only with the consent of the
30Treasury.

65 Retention of fee related income

(1) The OfS must pay its fee income to the Secretary of State except to the extent
that the Secretary of State, with the consent of the Treasury, directs otherwise.

(2) “Fee income” means the sums received by the OfS by way of—

(a) 35fees charged under section 63 (registration fees) or 64 (other fees), or

(b) costs recovered by virtue of regulations made under section 63(2)(f) or
64(2)(g).

(3) The OfS must pay its other fee related income to the Secretary of State.

(4) “Other fee related income” means the sums received by the OfS by way of—

(a) 40penalties imposed by virtue of regulations made under section 63(2)(g)
or 64(2)(h), or

(b) interest charged by virtue of regulations made under section 63(2)(i) or
64(2)(j).

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66 Costs recovery

(1) The OfS may, by notice, require the governing body of a provider in relation to
which a sanction has been imposed to pay the costs incurred by the OfS in
relation to imposing the sanction up to the date of notification.

(2) 5The references in subsection (1) to imposing a sanction are to—

(a) imposing a monetary penalty under section 15;

(b) suspending a provider’s registration under section 16;

(c) removing a provider from the register under section 18.

(3) “Costs” includes, in particular, investigation costs, administration costs and
10costs of obtaining expert advice (including legal advice).

(4) “The date of notification” means the date on which the OfS notified the
provider of its decision—

(a) in the case of a monetary penalty, under paragraph 2(5) of Schedule 3;

(b) in the case of suspension, under section 17(5);

(c) 15in the case of removal, under section 19(5).

(5) Schedule 7 contains provision about—

(a) the procedure for imposing a requirement to pay costs,

(b) rights of appeal,

(c) the recovery of the amount required to be paid and interest, and

(d) 20the retention of sums received.

67 Grants from the Secretary of State

(1) The Secretary of State may make grants to the OfS of such amounts, and subject
to such terms and conditions, as the Secretary of State considers appropriate.

(2) The terms and conditions under subsection (1) may, in particular, be framed by
25reference to particular courses of study.

(3) But in determining the terms and conditions under subsection (1), 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
30they are taught, supervised and 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.

(4) 35So the terms and conditions under subsection (1) 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) the criteria for the selection, appointment or dismissal of academic
40staff, or how they are applied, or

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

(5) Terms and conditions under subsection (1) relating to the provision of financial
support by the OfS under section 37 or 38 (financial support to registered
higher education providers and others) may be imposed only if—

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(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

68 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

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(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.

Supplementary functions

69 5Secretary 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
considers appropriate.

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

(a) 10is 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) the doing by the Secretary of State of anything the Secretary of
State has power to do apart from such legislation, and

(b) 15relates to, or to the activities of, an institution in England which
provides, or may provide, higher education.

(3) Subsection (4) applies where—

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

(b) 20the 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) the 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
25Secretary 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) This section does not affect any other powers to confer functions on, or
delegate functions to, the OfS.

30Directions

70 Secretary of State’s power to give directions

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

(2) In giving such directions, the Secretary of State must have regard to the need
35to protect academic freedom, including, in particular, the freedom of
institutions—

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

(b) to determine the criteria for the selection, appointment and dismissal of
40academic 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.

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(3) The 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) 5the manner in which they are taught, supervised or assessed,

(d) the 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
10directions in relation to a particular registered higher education provider.

(5) Financial 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
15the directions are given.

(6) “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) 20The OfS must comply with any directions given under this section.

Powers of Secretary of State to obtain information or advice

71 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
25performance of any of its functions, as the Secretary of State may
require 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
30as the Secretary of State may require.

72 Power to require application-to-acceptance information

(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 for qualifying research.

(2) 35A body is within this subsection if it provides services to one or more English
higher 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
40English higher education providers (including predicted grades),

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

(c) the acceptance of such offers.

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(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) 5considering 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) 10by 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
15an 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 73 regarding the use of information obtained under this section.

73 20Use of application-to-acceptance information for research purposes

(1) The Secretary of State may—

(a) use information obtained under section 72 for use for qualifying
research, and

(b) provide information obtained under section 72 to an approved person
25for 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 72 so long as—

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

(b) 30no individual to whom the information obtained under section 72
relates may be identified from the publication, and

(c) the publication does not include information obtained under section 72
that may be regarded as commercially sensitive.

(3) “Approved person” means—

(a) 35a 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) 40An approved body may provide information obtained under section 72 to an
approved researcher, but an approved researcher may not provide that
information to—

(a) another approved researcher, or

(b) another approved body.

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(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 72.

5HEFCE and the DFA

74 Higher Education Funding Council for England

The Higher Education Funding Council for England ceases to exist.

75 The Director of Fair Access to Higher Education

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

10Interpretation

76 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;

  • 15“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
    20education 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
    25Act 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
30same 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) 35In 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.

(5) Subsection (1) is subject to express provision to the contrary, see section 25(4)
and (6) (rating the quality of, and the standards applied to, higher education).

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77 Designation of other providers of higher education

(1) The 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) 5it provides higher education,

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

(c) but 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
10designation is withdrawn, to be treated for the purposes of any provision made
by or under this Part as being an institution.

(4) The 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
15about matters to be taken into account in determining whether to make
a designation);

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

(d) 20the effect of a withdrawal of a designation (including provision for a
provider whose designation is withdrawn to continue to be treated as
an institution for purposes prescribed in the regulations).

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

78 Other definitions

(1) 25In this Part—

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

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

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

  • 30“governing body”—

    (a)

    in relation to a training provider who, but for the definition of
    “institution” in section 76(1), would not be regarded as an
    institution, means any persons responsible for the provider’s
    management;

    (b)

    35in relation to a provider designated under section 77 means any
    persons responsible for the provider’s management;

    (c)

    in 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
    40Act;

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

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

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

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

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

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(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) 5fees 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) 10References 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.

15Part 2 Other education measures

Financial support for students

79 Power to make alternative payments

(1) Section 22 of the Teaching and Higher Education Act 1998 (power to give
20financial support 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
25alternative payment”,

(b) in paragraph (g)—

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

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

(c) in paragraph (i), after “loans” insert “or as part of alternative
30payments”, and

(d) in 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
35payments to bear any interest.

(4B) The 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
40be 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—

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(i) the 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) 5for the payment, in respect of amounts overpaid by an AP
recipient, 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
10respect of an alternative payment—

(i) during 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
15liability of the recipient in any such circumstances;

(d) in the case of alternative payments in connection with a higher
education course, for the cancellation of the entitlement of an
AP recipient to receive a sum as part of an alternative payment
in such circumstances as may be prescribed by, or determined
20by the person making the regulations under, the regulations,
where the payment of the sum has been suspended;

(e) with 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
25sequestration of the recipient’s estate;

(f) with respect to the effect of bankruptcy upon an AP recipient’s
liability 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
30commencement of the bankruptcy);

(g) with respect to sums which an AP recipient receives, or is
entitled 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
351989 (individual voluntary arrangements) takes effect in respect
of the recipient;

(h) excluding 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
40relate to sums which the AP recipient receives, or is entitled to
receive, before or after a voluntary arrangement takes effect in
respect of the recipient);

(i) for contributions made in respect of an alternative payment to
be dealt with otherwise than by payment into the Consolidated
45Fund.”

(5) In subsection (5)—

(a) in 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) 50in paragraph (d)(ii), at the end insert “or, in the case of requirements
imposed on AP recipients, additional contributions in respect of such