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Recognition of awarding bodies
Clause 129: Recognition
369. This clause requires Ofqual to “recognise” awarding bodies in respect of specific qualifications or classes of qualification (or in respect of credits for components of qualifications). Recognition will enable Ofqual to confirm that a body is fit to award or authenticate the qualifications or categories of qualification for which it is recognised, in other words that it has the appropriate systems, expertise and organisational robustness to allow it to do so effectively. Ofqual must recognise a body to award or authenticate particular qualifications or categories of qualification (or credits in respect of components of qualifications) where a body applies for recognition and meets Ofqual’s criteria for recognition. The terms “awarding body”, “recognised body” and “recognition” are defined at clause 129(8).
370. Ofqual may not charge for recognition of an awarding body.
371. Recognition may be subject to three types of condition: general conditions, an accreditation condition, and other conditions imposed by Ofqual on individual recognitions. General conditions are dealt with in clause 131 (see paragraphs 375 to 378 below). Accreditation conditions apply only to qualifications, or descriptions of qualifications, subject to the accreditation requirement - that is a requirement imposed by Ofqual that the qualification or qualification of the relevant description is to be accredited. An accreditation condition prohibits the recognised body from awarding the relevant qualification, or a qualification of the relevant description, until accreditation for the qualification has been obtained.
372. Conditions may be imposed either when recognition is granted or at a later time. In the case of general conditions, these may be disapplied in individual cases, either at the time of recognition or later.
Clause 130: Criteria for recognition
373. Ofqual will have discretion to set the criteria it will use to decide whether to recognise an awarding body. It must consult with such persons as it considers appropriate before setting the criteria and must publish those criteria.
374. In exercising this function, Ofqual is to be able to set criteria that differ as between descriptions of awarding bodies, between qualifications (or credits in respect of components of qualifications) and between descriptions of qualifications (and descriptions of credits in respect of components of qualifications). Examples of criteria may include requirements as to the evidence to be provided to give adequate assurance of organisational stability; the existence of adequate processes for quality assurance; financial soundness of the organisation concerned; and evidence as to the appropriateness of the processes of the awarding body for developing qualifications. Criteria may also cover factors such as the previous history of an awarding body prior to any application.
Clause 131: General conditions of recognition
375. This clause allows Ofqual to impose general conditions on recognition. Conditions are general in the sense that they are able to apply to all recognised bodies or particular classes or types of recognised body. Under subsections (3), (4) and (5), these conditions may be changed at any time, provided Ofqual publishes them following consultation with such persons that it considers appropriate.
376. The conditions in clause 131 will be central to Ofqual’s regulatory role - it is through the setting of conditions (and where necessary enforcing compliance with
those conditions) that Ofqual will be able to achieve its objectives in relation to qualifications.
377. Under the current regime, the QCA can impose conditions on accreditation and (when the relevant provisions of the Education and Skills Act 2008 are commenced) recognition. Under the provisions of the Bill conditions will be imposed only on recognition, but in doing so Ofqual will be able to impose conditions which relate to particular qualifications or even to specific versions of a particular qualification, including conditions that flow from the accreditation process where it applies.
378. Examples of the general conditions Ofqual might impose under this power include:
- conditions requiring an awarding body to work within a specified framework for setting standards to ensure consistency with other awarding bodies offering similar qualifications;
- broad regulatory principles, such as a condition that awarding bodies must deal with Ofqual in an open and cooperative way, including for example an obligation to disclose any information about changes to the awarding body of which Ofqual could reasonably expect notice; or
- the specific requirements that apply in relation to the award of a particular qualification or type of qualifications - for example that vocational qualifications must meet the requirements of the relevant Sector Skills Council.
Clause 132: Other conditions of recognition
379. Ofqual has a broad power to impose other conditions in relation to a recognition (see clause 129(2)(c)). This clause makes provision about two such types of condition:
- conditions limiting the amount a recognised body may charge for the award of a regulated qualification or for a service provided in connection with such a qualification (a “fee capping condition”). This is the main mechanism by which Ofqual may pursue its efficiency objective. A fee capping condition may be applied to any charge levied in relation to the award or authentication of a qualification or any other service provided in relation to such a qualification. It might include, for example, any fees charged by the recognised body to recognise a school or college wishing to offer the qualification;
- conditions requiring a recognised body to permit Ofqual to enter the body’s premises for the purposes of inspecting and copying documents (an “entry and inspection condition”). However such a condition may be imposed only to enable Ofqual to investigate the maintenance of standards in relation to the
award by a recognised body of a regulated qualification or the need for a fee capping condition.
380. Further provisions about these conditions are in clauses 133 and 134.
Clause 133: Fee capping conditions: supplementary
381. This clause sets out the process that must be used where Ofqual proposes to apply a fee capping condition. It must give notice of its intention to impose a fee capping condition, and it must take account of any representations made by the recognised body in question before reaching a decision. Where Ofqual decides to impose a fee capping condition it must establish arrangements for reviewing the decision if requested to do so by the relevant recognised body. In performing its functions in relation to fee capping conditions, Ofqual must have regard to guidance from the Secretary of State. This latter provision reflects the fact that a significant proportion of the bodies which will be paying fees for many qualifications will be publicly funded. The current legislation gives the QCA a power to impose a fee capping condition, but the exercise of the power is subject to the consent of the Secretary of State.
Clause 134: Entry and inspection conditions: supplementary
382. This clause sets out the limits on what Ofqual may require under an entry and inspection condition. Under the current legislation the QCA has a power to set a similar condition, but in the context of this legislation the safeguards in subsection (1) have been added. Subsection (3) refers to Ofqual having the power to do anything mentioned in section 58 of the Education Act 2005 in relation to the inspection of documents. In summary, this provision enables a person to inspect records or other documents that they are entitled at any reasonable time to have access to, including checking the operation of any computer and associated apparatus or material relating to these records or documents. Subsection (3) will also enable an entry and inspection condition to require the user or person in charge of the computer, apparatus or material to give Ofqual any assistance that it may reasonably require.
Accreditation of certain qualifications
Clause 135: Qualifications subject to the accreditation requirement
383. Under this clause Ofqual may decide that a certain qualification, or qualifications falling within a certain description, must be individually accredited. This requirement may be applied to all recognised bodies or a specific recognised body.
384. Before deciding to apply the accreditation requirement to all recognised bodies, Ofqual must consult such persons as it considers appropriate. Where the requirement it is to be applied to an individual recognised body it is that body alone that Ofqual must consult. Any decision reached by Ofqual to impose the requirement
in relation to all recognised bodies must be published. Ofqual is given the power to revise any determination made under this clause.
Clause 136: Accreditation
385. This clause provides for the process of accrediting qualifications. Where a qualification is submitted to Ofqual for accreditation it must be accredited if it meets the criteria for accreditation. Ofqual may not charge for accreditation. (In contrast, the QCA currently has a power to charge for accreditation.)
Clause 137: Criteria for accreditation
386. This clause requires Ofqual to publish the criteria for accreditation or any subsequent revisions of those criteria. Ofqual must consult before setting or changing these criteria.
387. The criteria for accreditation are a threshold requirement - a recognised body must meet these criteria before it may award or authenticate a qualification that is subject to the accreditation requirement. Once that threshold requirement is met, satisfying the criteria is not as such an ongoing requirement of the recognised body. However, Ofqual will be able to mirror all relevant criteria in general or specific conditions in order to ensure continued compliance by the recognised body with the criteria.
Recognition and accreditation: supplementary
Clause 138: Power of Secretary of State to determine minimum requirements
388. This clause allows the Secretary of State to determine the minimum requirements in respect of skills, knowledge, or understanding that someone must be able to demonstrate to gain a particular qualification or type of qualification. For example, it could be used to ensure that the content of GCSEs properly reflects the NC Key Stage 4 Programmes of Study, such as specifying which authors’ works needed to be studied for someone to gain a GCSE in English. Any such determination would have to be published and notified to Ofqual. Ofqual then has to ensure that these minimum requirements are delivered through the criteria for recognition and/or accreditation. As in other cases, it would be open for Ofqual to request help from the QCDA in developing the relevant criteria (see clause 171), which would then be considered for adoption by Ofqual. (In such circumstances, where the QCDA has consulted on draft criteria, it may be that Ofqual will consider it unnecessary to consult as well.) The clause restricts the Secretary of State to specifying minimum requirements relating, in effect, to the content of a qualification. It does not allow the Secretary of State to make determinations relating to parts of the qualification such as grading or assessment. Such matters remain solely for Ofqual to determine.
389. The Government intends that this power would be used only in exceptional circumstances. It envisages that normally any policy requirements relating to the content of a qualification would be reflected in the criteria by agreement, without any need for a determination. The Secretary of State intends to put in place a Memorandum of Understanding with Ofqual about the use of this power, setting out a clear process to ensure that the regulator’s independence and ability to maintain standards are not compromised. The Secretary of State’s power does not extend to qualifications that are “Northern Ireland-only qualifications”, as defined in subsection (6).
Clause 139: Assignment of numbers of hours of guided learning
390. This clause is for the purposes of the Education and Skills Act 2008, which imposes a duty on people under 18 to participate in education or training, unless they have attained a level 3 qualification (the level of attainment demonstrated by obtaining A levels in two subjects). The Government’s intention is to commence the duty in 2013.
391. Where people are in full time employment, the 2008 Act duty means they need to be undertaking sufficient relevant education or training, which is defined as the equivalent of 280 hours in a year. This clause requires a recognised body which is offering a relevant qualification to assign to it a number of hours of guided learning, for the purposes of determining whether a person studying for the qualification is able to meet this requirement. The duty on a recognised body applies in relation to a qualification if the body considers that there are, or may reasonably be expected to be, persons seeking to obtain it for the purposes of discharging their duty under section 2(1)(c) of the 2008 Act to participate in sufficient relevant education and training (see subsection (8) of the clause). Ofqual may review any determination made by an awarding body as to whether a qualification needs to have guided learning hours assigned to it and, if necessary, require it to revise the determination. Ofqual may also review, and require a recognised body to revise, any determination of the number of hours of guided learning to be assigned to a particular qualification. This will allow Ofqual to ensure, for example, that there was consistency between awarding bodies in how they assigned guided learning hours to comparable qualifications.
392. The duty on awarding bodies to assign guided learning hours does not extend to qualifications that are “Northern Ireland-only qualifications”, as defined in clause 138(6).
Clause 140: Criteria for assignment of numbers of hours of guided learning
393. This clause requires Ofqual to publish the criteria which recognised bodies must apply in order to determine whether they need to assign guided learning hours to a qualification, and if so the number of hours they should assign. The clause allows Ofqual to revise its criteria and so to take account of changing circumstances. The duty of recognised bodies under clause 139 is to apply the most recently published criteria in deciding whether a qualification is relevant for the purposes of the duty under section 2(1)(c) of the 2008 Act and, if so, the number of hours of guided learning to be assigned to the qualification. Recognised bodies are obliged to review
their determinations under clause 139 when Ofqual revises the criteria set under this clause.
Clause 141: Register
394. This clause sets out Ofqual’s obligation to maintain a register of recognised bodies and the details of the qualifications they offer, including the guided learning hours assigned to the qualification where appropriate. The register may include other information that Ofqual considers appropriate, so it could for example include details of qualifications that are regulated in other parts of the UK should the authorities there decide to work alongside Ofqual in this way.
Recognised bodies: monitoring and enforcement
Clause 142: Review of activities of recognised bodies
395. This clause allows Ofqual to keep under review any “connected” activities of a recognised awarding body as defined in subsection (2) of the clause. This will allow it to keep under review any activities which may, for example, impact on the credibility of the qualifications offered or the effective or fair operation of the qualifications system. This may include, for example, any awarding activities overseas in relation to qualifications that are similar to those that Ofqual is regulating, or any arrangements made for the publication of textbooks relating to an Ofqual-regulated qualification.
Clause 143: Investigation of complaints
396. Ofqual may investigate complaints in respect of a regulated qualification, or arrange for an independent party to do so.
397. Ofqual’s complaint mechanisms will replace those that are currently in place through the Examinations Appeals Board (in relation to GCSEs, A-levels for example) and the QCA (in relation to vocational qualifications).
398. Ofqual will be free to work jointly with its counterparts in other parts of the UK in relation to the investigation of complaints should it and they so wish.
399. Ofqual’s powers of redress in the event of its upholding a complaint are those that it has generally. Where the complaint suggested that the recognised body had acted in breach of a condition of recognition it would be for Ofqual to consider what action to take to ensure compliance with the condition. As under the existing arrangements of the Examinations Appeals Board, the Government would expect any complaints that are upheld about, for example, the marking of an exam, in the first instance to be referred back to the awarding body concerned for review.
Ofqual’s enforcement powers
400. Ofqual has the ability to safeguard standards through the imposition of recognition and accreditation criteria (the “hurdle” that awarding bodies must initially clear). It may then impose general and specific conditions to ensure continued compliance with these requirements. Underpinning the conditions are the enforcement powers conferred by the Bill: the power to direct compliance with a condition and ultimately a power to withdraw recognition for breach of a condition.
Clause 144: Power to give directions
401. This clause confers power on Ofqual to direct a recognised body in order to secure compliance with a condition imposed on its recognition. There are however limits on the circumstances in which this power may be exercised. Subsection (1) specifies the circumstances in which a direction may be made. These are that the recognised body has not complied (or is likely to fail to comply) with a condition, and that this would or would be likely to prejudice either the proper award or authentication of a qualification or someone who might reasonably be expected to seek to obtain such a qualification. In these circumstances, Ofqual may give a formal direction to the awarding body. The direction may specify steps the body must or must not take.
402. Subsections (3) to (5) set out the steps that Ofqual must take before giving a direction, including giving notice of its intention to do so and taking account of representations from the recognised body. The length of the notice period is not specified, and could vary depending on the urgency of the need to address the non-compliance. An awarding body is required to comply with the direction. Subsection (7) sets out the means by which Ofqual may enforce its directions through the courts.
403. The QCA has a similar power, but without the explicit requirements over process set out in subsections (3) to (5).
Clause 145: Power to withdraw recognition
404. This clause confers a power on Ofqual to withdraw recognition in respect of some or all of the qualifications in respect of which a body is recognised, if the body has breached a condition of recognition. The power may be exercised only if the recognised body has actually failed to comply with a condition and if this failure prejudices or would be likely to prejudice either the proper award or authentication of a qualification or someone who might reasonably be expected to seek to obtain such a qualification.
405. Subsections (3) to (8) set out the steps that Ofqual must take before withdrawing recognition, including giving notice of its intentions, taking account of representations from the awarding body, and arranging for the decision to be reviewed.
406. If it withdraws a recognition, Ofqual may make saving or transitional provision to deal with impact of the withdrawal. For example, it may be appropriate to provide for the qualification not to be recognised other than to the extent that it is taken by those who began studying for the qualification before the decision to withdraw recognition was made.
407. The power for the QCA to withdraw accreditation or recognition is currently implicit in the Education Act 1997 as amended by the Education and Skills Act 2008.
Clause 146: Qualifications regulatory framework
408. This clause requires Ofqual to publish:
- a statement on how it will perform its monitoring and enforcement functions (including its functions in relation to the setting of conditions), and
- guidance to recognised bodies in relation to the award and authentication of qualifications.
409. Together these are known as the qualifications regulatory framework. Ofqual must consult on, and may revise, the framework.
410. Subsections (3) and (4) set out in more detail what the guidance must include. In particular, it must include guidance which helps determine whether or not particular behaviour complies with the general conditions. Recognised bodies are obliged to have regard to the guidance given by Ofqual when they award regulated qualifications.
Other
Clause 147: Review of other qualifications to which this Part applies
411. A “regulated qualification” is a qualification awarded or authenticated by a body which is recognised in respect of that qualification. This clause gives Ofqual the power to keep under review all aspects of qualifications to which Part 7 applies irrespective of whether or not they are regulated qualifications. This would allow Ofqual, for example, to review why some awarding bodies were choosing not to seek recognition for their qualifications and whether that was detrimental to the interests of learners.
Clause 148: Co-operation and joint working
412. This clause allows Ofqual to co-operate or work jointly with another public authority where it is appropriate to do so for the efficient and effective performance of its functions in connection with any qualifications. This would allow it, for example, to work with other UK regulators of qualifications or with the UK Commission for Employment and Skills on the arrangements for overseeing Sector Skills Councils’ work on vocational qualifications, or with the competition authorities if it had concerns about the effective operation of the qualifications market.
Clause 149: Power to provide information to other qualifications regulators
413. This clause allows Ofqual to provide information to qualifications regulators elsewhere in the UK to support the qualifications functions of the other regulator. This will enable the continued operation of the three-country framework, whereby the qualifications regulators in England, Wales and Northern Ireland work together on the regulation of qualifications across the three countries. Such co-operation will remain subject to restrictions in other legislation relating to the sharing of information, such as the Data Protection Act 1998.
Chapter 3: Functions in Relation to Assessment Arrangements
414. The Secretary of State is responsible for specifying the arrangements for pupil assessments in relation to each of the key stages of the NC (see section 87 of the Education Act 2002). The Secretary of State is also responsible for specifying the arrangements which are required for assessing the achievements of children in relation to the learning and development requirements of the EYFS (see sections 39 to 42 of the Childcare Act 2006). In this context, the Secretary of State may impose functions on other bodies in relation to developing, implementing or monitoring assessment arrangements. Ofqual’s role, under the new arrangements delivered through this Bill, is to keep these assessment arrangements under review and to report to Parliament on the assessment arrangements and how well they are achieving their purposes. The arrangements are intended to strengthen the assessment system, and to help improve public confidence following the problems with delivery of NC tests in 2008. The Government asked Lord Sutherland to investigate what went wrong with NC test delivery in 2008, the reasons for the problems experienced and what should be done to avoid a recurrence in future years. The Government accepted all the recommendations in his report 1, and the provisions in this Bill reflect those recommendations.
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