Higher Education and Research Bill (HC Bill 78)

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(3) A person may not be appointed as a member of the OfS if the person is a civil
servant.

(4) In this Schedule, “civil servant” means a person employed in the civil service
of the State.

5The Director for Fair Access and Participation

3 (1) The Director for Fair Access and Participation (“the Director”) is responsible
for reporting to the other members of the OfS on the performance by the OfS
of its access and participation functions.

(2) The Director may also report to the other members of the OfS on the
10measures taken by the OfS to comply with its duty under section 2(1)(d)
(duty to have regard to the need to promote equality of opportunity etc) in
performing a particular function of the OfS.

(3) For the purposes of this paragraph, the OfS’s “access and participation
functions” are the functions conferred on it by or under—

(a) 15section 21 (refusal to renew an access and participation plan),

(b) sections 28 to 33 (access and participation plans),

(c) section 34 (advice on good practice),

(d) section 35 (duty to protect academic freedom in performing certain
access and participation functions), and

(e) 20section 36 (power of the Secretary of State to require a report).

Terms of appointment and tenure of members

4 (1) A person holds and vacates office as a member of the OfS in accordance with
the terms of his or her appointment.

(2) The terms and conditions of a person’s appointment as a member of the OfS
25are to be determined by the Secretary of State; but that is subject to the
following provisions of this Schedule.

(3) The matters with which the terms and conditions of a member’s
appointment may deal include, in particular—

(a) the period for which the member is to hold office;

(b) 30the member’s eligibility for re-appointment;

(c) circumstances in which membership may be suspended.

5 (1) A person may resign from office as a member of the OfS by notifying the
Secretary of State.

(2) The Secretary of State may remove a person from office as a member of the
35OfS on any of the following grounds—

(a) absence from the OfS’s meetings for a continuous period of more
than six months without the OfS’s permission,

(b) inability or unfitness to carry out the functions of the office, or

(c) such other grounds as the Secretary of State considers appropriate.

(3) 40If a person appointed as a member of the OfS becomes a civil servant, the
person ceases to be a member.

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Remuneration etc of members

6 (1) The OfS must pay to members of the OfS such remuneration, allowances and
expenses as the Secretary of State may determine.

(2) The OfS must pay, or make provision for paying, to or in respect of a person
5who is or has been a member of the OfS such sums as the Secretary of State
may determine in respect of pension, allowances, expenses or gratuities.

(3) If, where a person ceases to be a member of the OfS, the Secretary of State
determines that he or she should be compensated because of special
circumstances, the OfS must pay him or her compensation of such amount
10as the Secretary of State may determine.

Staffing of the OfS

7 (1) The OfS may—

(a) appoint employees, and

(b) make such other arrangements for the staffing of the OfS as it
15considers appropriate.

(2) The terms and conditions of appointment as employees are to be determined
by the OfS with the approval of the Secretary of State.

(3) The OfS must pay its employees such remuneration, allowances and
expenses as the OfS may determine with the approval of the Secretary of
20State.

(4) In the Superannuation Act 1972 (“the 1972 Act”), in Schedule 1 (kinds of
employment to which a scheme under section 1 of the 1972 Act can apply),
in the list of “Other Bodies”, at the appropriate place insert—

  • “Office for Students.”

(5) 25The OfS must pay to the Minister for the Civil Service, at such times as the
Minister may direct, such sums as the Minister may determine in respect of
any increase attributable to sub-paragraph (4) in the sums payable out of
money provided by Parliament under the 1972 Act.

Committees

8 (1) 30The OfS may establish committees, and any committee so established may
establish sub-committees.

(2) A committee or sub-committee so established is referred to in this Schedule
as an “OfS committee”.

(3) An OfS committee may consist of or include persons who are neither
35members, nor employees, of the OfS.

(4) The OfS must pay such allowances as the Secretary of State may determine
to any person who—

(a) is a member of an OfS committee, but

(b) is neither a member, nor an employee, of the OfS.

(5) 40The OfS must keep under review—

(a) the structure of the OfS committees, and

(b) the scope of each committee’s activities.

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Procedure

9 (1) The OfS may determine—

(a) its own procedure, and

(b) the procedure of any OfS committee;

5but that is subject to the rest of this paragraph.

(2) The quorum for a meeting of the OfS is half the number of its members.

(3) A representative of the Secretary of State is entitled—

(a) to attend any meeting of the OfS or of any OfS committee, and

(b) to take part in any deliberations (but not in decisions) at such
10meetings.

(4) The OfS must provide the Secretary of State, or a representative of the
Secretary of State, with such copies of documents distributed to its members
or to any OfS committee as the Secretary of State or representative may
require it to provide.

10 15The validity of any proceedings of the OfS, or of any OfS committee, is not
affected by a vacancy or a defective appointment.

Delegation of functions

11 (1) The OfS may delegate any of its functions to—

(a) a member of the OfS,

(b) 20an employee of the OfS authorised for that purpose, or

(c) an OfS committee.

(2) A function is delegated under this paragraph to the extent, and on the terms
that, the OfS determines.

Accounts and audit

12 (1) 25The OfS must—

(a) keep proper accounts and proper records in relation to them, and

(b) prepare a statement of accounts in respect of each financial year.

(2) Each statement of accounts must comply with any directions given by the
Secretary of State with the approval of the Treasury as to—

(a) 30its content and form;

(b) the methods and principles to be applied in preparing it;

(c) the additional information (if any) which is to be provided for the
information of Parliament.

(3) The OfS must send a copy of each statement of accounts to the Secretary of
35State and the Comptroller and Auditor General before the end of August
next following the financial year to which the statement relates.

(4) The Comptroller and Auditor General must—

(a) examine, certify and report on each statement of accounts, and

(b) send a copy of each report and certified statement to the Secretary of
40State.

(5) The Secretary of State must lay before Parliament a copy of each such report
and certified statement.

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(6) In this Schedule “financial year” means—

(a) the period beginning with the date on which the OfS is established
and ending with the second 31 March following that date, and

(b) each successive period of 12 months.

5Annual report

13 (1) The OfS must prepare a report on the performance of its functions during
each financial year.

(2) The report must include the statement of accounts in respect of that year.

(3) The report relating to a financial year must be prepared as soon as possible
10after the end of the financial year.

(4) The OfS must send the report to the Secretary of State.

(5) The Secretary of State must lay the report before Parliament.

Seal and evidence

14 (1) The application of the OfS’s seal must be authenticated by the signature of—

(a) 15the chair or some other person authorised for that purpose by the
OfS, and

(b) one other member of the OfS.

(2) A document purporting to be duly executed under the OfS’s seal or signed
on its behalf—

(a) 20is to be received in evidence, and

(b) is to be taken to be executed or signed in that way, unless the
contrary is shown.

Supplementary powers

15 (1) The OfS may do anything (except borrow money) which appears to it to be
25necessary or expedient for the purpose of, or in connection with, the
performance of its functions.

(2) In particular, the OfS may—

(a) acquire and dispose of land and other property,

(b) enter into contracts,

(c) 30invest sums, and

(d) accept gifts of money, land or other property.

Public records

16 In Part 2 of the Table in paragraph 3 of Schedule 1 to the Public Records Act
1958 (definition of public records), at the appropriate place insert—

  • 35“Office for Students.”

Investigation by the Parliamentary Commissioner

17 In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc
subject to investigation), at the appropriate place insert—

  • “Office for Students.”

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House of Commons disqualification

18 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975
(bodies of which all members are disqualified), at the appropriate place
insert—

  • 5“The Office for Students.”

Northern Ireland Assembly disqualification

19 In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification
Act 1975 (bodies of which all members are disqualified), at the appropriate
place insert—

  • 10“The Office for Students.”

Freedom of information

20 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public
authorities to which that Act applies), at the appropriate place insert—

  • “The Office for Students.”

15Public sector equality duty

21 In Part 1 of Schedule 19 to the Equality Act 2010 (authorities subject to the
public sector equality duty), in the group of entries under the heading
“Other educational bodies”, at the appropriate place insert—

  • “The Office for Students.”

Section 10

20SCHEDULE 2 The fee limit

Introduction

1 (1) This Schedule is about determining the amount of “the fee limit” where a fee
limit condition is an ongoing registration condition of a registered higher
25education provider.

(2) The amount of “the fee limit” for the purposes of applying that condition to
fees in connection with a qualifying course and in respect of an academic
year is determined in as follows.

(3) References to “the relevant course” and “the relevant academic year” are to
30that course and year.

The fee limit where the provider has an access and participation plan

2 (1) This paragraph applies if an access and participation plan approved by the
OfS under section 28 in relation to the provider is in force, or comes into
force, when the relevant academic year begins.

(2) 35If the provider—

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(a) had a high level quality rating at the relevant time, the fee limit is
such limit, not exceeding the higher amount, as is provided by the
plan for the relevant course and for the relevant academic year, and

(b) in any other case, the fee limit is such limit, not exceeding the
5applicable sub-level amount, as is provided by the plan for the
relevant course and for the relevant academic year.

(3) “A high level quality rating” means such rating or ratings given in
accordance with arrangements made under section 25 (rating the quality of,
and the standards applied to, higher education) as the Secretary of State
10determines to be a high level quality rating for the purposes of this
paragraph.

(4) “The relevant time” means at the time when the access and participation
plan is approved.

(5) “The higher amount” means such amount as may be prescribed for the
15purposes of this paragraph as the higher amount.

(6) 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.

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

(a) 20whether 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.

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

(a) 25must not exceed the higher amount, and

(b) must be greater than the floor amount.

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

(10) The “applicable” sub-level amount in relation to a provider is the sub-level
30amount determined under sub-paragraph (6) which applies to the provider.

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

The fee limit where the provider has no access and participation plan

3 (1) This paragraph applies if an access and participation plan approved by the
35OfS under section 28 in relation to the provider is not in force, and does not
come into force, when the relevant academic year begins.

(2) If the provider—

(a) had a high level quality rating within the meaning of paragraph 2 at
the relevant time, the fee limit is the basic amount, and

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

(3) “The relevant time” means on 1 January in the calendar year before the
calendar year in which the relevant academic year begins.

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

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(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—

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(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.

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(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.

Retention of sums received

5 35The OfS must pay the sums received by it by way of a penalty under section
15 or interest under paragraph 4 to the Secretary of State.

5 The OfS must pay the sums received by it by way of a penalty under section
15 or interest under paragraph 4 to the Secretary of State.

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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 the assessment functions if it considers that—

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

(b) designating the body would be appropriate for securing the effective
10assessment of the quality of, and the standards applied to, 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 perform the assessment functions.

(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 perform the
assessment functions.

(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 the assessment functions.

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