Development etc. of regulated assessment arrangements

Clause 151: NC assessment arrangements: duty to consult Ofqual etc., Clause 152: EYFS assessment arrangements: duty to consult Ofqual etc.

415.     These clauses require the Secretary of State to consult Ofqual before making an order specifying assessment arrangements. They also require any person acting on the Secretary of State’s behalf under such an order in connection with the making of assessment arrangements to consult Ofqual before doing so. The relevant order making powers are in section 87(3)(c) of the Education Act 2002 (in relation to the NC) and section 39(1)(a) of the Childcare Act 2006 (in relation to the learning and development requirements of the EYFS). The new obligations reflect Ofqual’s status as independent regulator and particularly its interest in ensuring that the proposed assessment approaches are appropriate given the specified purposes, and can be effectively monitored.

Review etc. of regulated assessment arrangements

Clause 153: Review of regulated assessment arrangements

416.     This clause requires Ofqual to keep all aspects of these NC and EYFS assessments under review. This constitutes the principal regulatory role of Ofqual in relation to the regulated assessment arrangements (as defined in clause 128).

417.     Ofqual’s powers of review will enable it to consider all aspects of the implementation of the regulated assessment arrangements, including looking at the way in which specified bodies exercise monitoring and review functions, including functions concerned with investigating complaints about the way in which tests and other assessments have been conducted.

Clause 154: Powers to require information

418.     To enable Ofqual to carry out its review role effectively, this clause grants it powers to require certain persons to provide it with the information it considers it needs to perform this role. Those persons are the Secretary of State, NC responsible bodies and EYFS responsible bodies (as defined in the clause) and Ofsted. Subsection (2)(d) includes a power for the Secretary of State to specify in regulations (subject to the negative procedure) other persons who are to be subject to this requirement. This power is required to allow for flexibility for further organisations to be added should, for example, assessment arrangements change in the future and different bodies become involved in the process.

Clause 155: Duty to notify significant failings

419.     One of the recommendations in Lord Sutherland’s inquiry report was that Ofqual should have a duty to inform the Secretary of State and the QCA if it had concerns about the delivery and quality of NC tests. Reflecting this recommendation, these provisions impose a duty on Ofqual covering both NC and EYFS assessment arrangements. Ofqual must notify the Secretary of State and any responsible body whose act or omission appears to Ofqual to have contributed to a significant failing if it considers that there is or is likely to be a significant failing in the assessment arrangements. Such a failure is defined as a failure in a significant way to achieve one or more of the specified purposes of the assessment arrangements.

420.     Examples of circumstances in which Ofqual should notify the Secretary of State might include the following:

• if one of the Secretary of State’s specified purposes for the NC assessment arrangements was to provide information for a pupil’s secondary school on their level of attainment at the end of primary school (in other words, Key Stage 2), and it became evident to Ofqual that there was a significant risk that significant numbers of results would not be available before the pupils left primary school, this would cause the purpose not to be met and the duty would be triggered; or

• if a new type of NC test was being developed which Ofqual judged would not provide a reliable assessment of a pupil’s level of attainment.

Regulatory frameworks

Clause 156: NC assessments regulatory framework, Clause 157: EYFS assessments regulatory framework

421.     These clauses require Ofqual to publish and keep under regular review two documents: the “NC assessments regulatory framework” and the “EYFS assessments regulatory framework” in relation to NC and EYFS assessment arrangements respectively.

422.     The regulatory frameworks will give guidance to bodies with responsibilities for the development, implementation and monitoring of NC and EYFS assessment arrangements on how to perform their functions. This may also include the measures of success which Ofqual considers will demonstrate evidence of effective development and delivery of assessments. The regulatory frameworks will also set out how Ofqual will carry out its review function at all stages of the assessment process.

423.     Those bodies with responsibility for developing, implementing and monitoring NC and EYFS assessment arrangements (the NC and EYFS responsible bodies) must have regard to the relevant regulatory framework document in doing so. Ofqual must consult on a regulatory framework document before publishing it or revising it. The persons Ofqual must consult are the Secretary of State, such of the NC responsible bodies or, as the case may be, EYFS responsible bodies and any other persons as Ofqual considers appropriate. Ofqual may revise a regulatory framework document at any time.

Chapter 4: Other Functions

Clause 159: Provision of services

424.     This clause gives Ofqual the power to provide services to other persons in connection with any of its functions. Ofqual may charge for its services. Ofqual would be able, for example, to provide services to qualifications regulators in other countries if Ofqual considered that such services would also benefit its ability to regulate qualifications in England or Northern Ireland.

Clause 160: Provision of information or advice

425.     This clause requires Ofqual to provide the Secretary of State with information or advice relating to its functions where the Secretary of State requests it. Where requested, Ofqual must also provide information or advice on its functions (so far as they relate to Northern Ireland) to the Department for Employment and Learning in Northern Ireland. This is a similar relationship to that between the Secretary of State and Ofsted.

Clause 161: Research and development

426.     This clause provides Ofqual with the power to carry out research in relation to qualifications that would be eligible for regulation or regulated assessment arrangements; and to commission, co-ordinate or facilitate such research.

Clause 162: Annual and other reports

427.     This clause requires Ofqual to publish an annual report, which must state how Ofqual has performed its functions during the reporting period. Ofqual has flexibility to determine when during its first year of life its reporting period should end, after which the annual reporting period will be set: it may be, for example, that it would decide that the reporting period should end in the autumn, in order that it can report on the previous summer’s exams and tests. Ofqual may also prepare and publish other reports.

428.     Ofqual must lay its annual reports before Parliament and (so far as it relates to Northern Ireland) the Northern Ireland Assembly. It may choose to publish a single document or separate documents in relation to England and Northern Ireland.

429.     If Ofqual has established arrangements for the referral of complaints about regulated qualifications to an independent party (under clause 143(2)), the annual report must describe the activities of the independent party during the reporting period.

Chapter 5: General

Clause 163: Interpretation of Part

430.     This clause sets out the definitions of various terms used in Part 7. It also provides that a reference to the award or authentication of a qualification throughout the Part includes a reference to the award or authentication of credits in respect of components of a qualification. This reflects the launch of the Qualifications and Credit Framework, through which students are able to build up composite qualifications through the obtaining of components.

Clause 164: Transfer schemes

431.     The clause gives effect to Schedule 10.

Schedule 10: Ofqual: transfer schemes

432.     This Schedule gives power to the Secretary of State to make a scheme to enable the transfer of staff and property from the QCA to Ofqual.

Clause 165: Minor and consequential amendments

433.     This clause, with clause 183, gives effect to Schedule 12. That Schedule makes minor and consequential amendments in connection with the provisions about Ofqual and the QCDA. It is discussed below in the commentary on the QCDA.

PART 8: THE QUALIFICATIONS AND CURRICULUM DEVELOPMENT AGENCY

Chapter 1: The QCDA, objective and general duties

The QCDA

Clause 166: The Qualifications and Curriculum Development Agency

434.     This clause provides for the renaming of the QCA, which was established under the Education Act 1997 and will now be known as the Qualifications and Curriculum Development Agency. The clause also gives effect to Schedule 11, which contains detailed provisions with respect to the constitution and proceedings of the QCDA. The QCDA will remain a Non-Departmental Public Body (NDPB), accountable to Ministers.

435.     The QCDA will retain the QCA’s non-regulatory functions, including supporting Ministers on developing the curriculum and related qualifications and delivering National Curriculum tests. Regulatory functions will instead be exercised by Ofqual, established under Part 7.

Schedule 11: The Qualifications and Curriculum Development Agency

436.     This Schedule makes detailed provisions relating to the QCDA, particularly in relation to its constitution and proceedings.

437.     Paragraph 1 provides that the QCDA is not to be regarded as a servant or agent of the Crown, and that its property is not to be regarded as property of the Crown. There is no change in this regard to the status of the QCA.

438.     Paragraph 2 sets out the membership of the QCDA. Members are appointed by the Secretary of State, who must appoint one as the chair and may appoint another as the deputy chair. Paragraph 5 makes provision for the tenure of office of the members, and how they may be removed or resign from membership. Paragraph 6 allows the Secretary to require that members be remunerated and that expenses and allowances be paid, with the amounts to be determined by the Secretary of State. Paragraphs 12 to 15 provide for the QCDA to regulate its own proceedings, and for the Secretary of State or his representatives (which in practice can mean a representative of both the DCSF and DIUS), Ofsted and any other body directed by the Secretary of State to attend meetings of the QCDA.

439.     Paragraph 3 provides for a chief officer who is appointed by the QCDA subject to the approval of the Secretary of State. The chief officer is an ex-officio member of the QCDA. Under paragraph 4, the Secretary of State may confer functions on the chair, but any such functions must not duplicate functions conferred on the chief officer.

440.     Paragraphs 7 and 8 provide for the QCDA to have staff, and for their continued membership of the relevant pension scheme.

441.     Paragraph 9 allows the QCDA to establish committees, and for the committees to establish sub-committees. It also allows the Secretary of State to direct it to set up a committee for a specified purpose. The committee structure must be reviewed by the QCDA at least once every five years. A committee must include at least one member of the QCDA or its staff. Under paragraph 13, the QCDA may delegate any of its functions to a committee or a member of the QCDA or its staff. Paragraph 14 allows the QCDA to establish joint committees with other bodies.

442.     Paragraphs 14 and 15 provide respectively for a committee to delegate its functions to a sub-committee, and for the Secretary of State to authorise a committee established under a direction to perform functions of the QCDA.

443.     Paragraph 16 requires the QCDA to prepare an annual report for each financial year, setting out how it has performed its functions in that year. The QCDA must publish the report and the Secretary of State must lay a copy before Parliament.

444.     Paragraph 17 requires the QCDA to keep and prepare accounts in line with Directions of the Secretary of State.

445.     Paragraph 18 makes provisions about the application of the QCDA’s seal: the references to “members” in this context includes the chief officer

446.     Paragraph 20 allows the Secretary of State to make grants to the QCDA and attach conditions to those grants. This will be central to the relationship between the QCDA and the Secretary of State — it is the way in which the Secretary of State will give a remit to the QCDA over particular pieces of work he requires it do.

447.     Paragraph 21 of the Schedule confers on the QCDA wide supplementary powers to do anything that it considers necessary or appropriate for the purposes of, or in connection with, its functions. But the QCDA may not form companies or other bodies or enter into joint ventures without the Secretary of State’s consent. The powers are also subject to restrictions provided for elsewhere in the clauses (for example, the QCDA may not lend money).

Objective and general duties

Clause 167: Objective

448.     This clause sets out the QCDA’s objective: to promote quality and coherence in education and training in England. For the purposes of the QCDA’s functions, education includes learning by, and development of, young children pursuant to the Early Years Foundation Stage, which was established under the Childcare Act 2006.

449.     The QCA has somewhat broader objectives and has roles in Wales and Northern Ireland. The QCDA will have no responsibilities outside England.

Clause 168: General duties

450.     This clause sets out the matters to which the QCDA must have regard in exercising its functions and pursuing its overall objective. There is some equivalent material in section 26 of the Education Act 1997 setting out requirements to which the QCA must have regard. The duties under clause 168 differ in some respects to those under the 1997 Act as described below.

451.     The QCDA must have regard to the reasonable requirements of all learners, as defined in subsection (6) (this includes young children). The 1997 Act specified a duty to have regard to only learners with special learning needs.

452.     The clause adopts a new definition of “persons with learning difficulties” (as defined in clause 126) to replace the concept of “learners with special learning needs” in the 1997 Act. The only difference of substance is that the new definition provides that a person is not to be taken to have a learning difficulty solely because of a difference in the language in which he or she is to be taught and the language which he or she speaks at home.

453.     The QCDA must (like the QCA) have regard to the requirements of section 78 of the Education Act 2002 in relation to curriculum. That section provides-

“The curriculum for a maintained school or maintained nursery school satisfies the requirements of this section if it is a balanced and broadly based curriculum which-

(a) promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society, and

(b) prepares pupils at the school for the opportunities, responsibilities and experiences of later life.”

454.     The QCDA must have regard to the reasonable requirements of all employers (rather than just to those of various sectors thereof, as is the case with the QCA) and of higher education institutions.

455.     The QCDA must have regard to the desirability of facilitating innovation.

456.     There is an explicit requirement for the QCDA to perform its functions efficiently and effectively.

457.     The QCDA must also have regard to such aspects of Government policy as the Secretary of State may direct.

458.     As is the case with the QCA at present, the QCDA will also have to have regard to information provided by Ofqual, Ofsted and any other bodies specified by the Secretary of State.

Chapter 2: Functions in relation to qualifications

Clause 169: Qualifications within the QCDA’s remit

459.     This clause defines which qualifications fall within the QCDA’s remit. This remit is very similar to that of Ofqual and covers all qualifications awarded or authenticated in England other than those which are both (a) at foundation degree level or equivalent or first degree level or above, and (b) awarded or authenticated by a higher education institution. As with Ofqual, the QCDA’s remit is no longer restricted to qualifications awarded by an external body (so, for example, a qualification awarded by an employer following completion of its own training would fall within the QCDA’s remit).

460.     The Secretary of State is given the power by order to exclude qualifications from QCDA’s remit. The order-making power is subject to the negative procedure. This provision is designed to allow for any future changes to the QCDA’s role. The intention is that this power could be used in particular to remove the QCDA’s functions in relation to vocational qualifications, if the Department for Innovation, Universities and Skills were to conclude at a later date that it did not wish the QCDA to have advice and review functions with respect to these qualifications. Any such decision would not affect Ofqual's role in regulating these qualifications.

Clause 170: Qualifications: general functions

461.     This clause sets out the QCDA’s duties and powers in relation to qualifications within its remit (see above). These include its duty to keep all aspects of qualifications under review, its duty to provide advice or carry out research at the request of the Secretary of State and its power to conduct independent research. It may also publish information relating to qualifications.

462.     Subsection (5) provides the QCDA with the power to make arrangements to develop, set or administer tests which are taken with a view to obtaining a qualification and are of a description prescribed in regulations made (subject to the negative procedure) by the Secretary of State. Qualifications which are assessed under regulated assessment arrangements are excluded, to avoid any possible overlap with the QCDA’s functions in relation to National Curriculum assessment arrangements. This provision is intended to allow the QCDA to work with awarding bodies to develop key and basic skills qualifications, a role currently undertaken by the QCA.

Clause 171: Assistance etc. in relation to recognition and accreditation

463.     This clause creates the power for the QCDA to provide information, advice or other assistance in connection with Ofqual’s functions in relation qualifications and in particular to assist Ofqual in developing “the qualifications criteria”. These are the criteria for recognition of awarding bodies, for accreditation of individual qualifications and for the assignment of a number of guided learning hours to a qualification. The Government intends that this provision will be used principally to enable the QCDA to develop criteria for qualifications whose content is determined as a matter of policy by Ministers, for example, GCSEs or A-levels. The criteria would then be considered for adoption by Ofqual, and provided it was content to adopt them, it would then regulate the qualifications developed against them. This process will allow Ofqual to avoid the conflict of interest inherent in the QCA’s current set of functions, whereby it both develops the criteria and is responsible for providing assurance that the qualifications developed against those criteria are of a high standard. This process is supported by clause 138, which allows the Secretary of State to determine the minimum requirements for specified qualifications or descriptions of qualifications in terms of the skills, knowledge or understanding a person must demonstrate to obtain the qualification in question.

Chapter 3: Functions in relation to curriculum, Early Years Foundation Stage and assessment

464.     The functions of the QCA in relation to curriculum and assessment were established under section 23 of the Education Act 1997. The functions included: keeping under review all aspects of the curriculum, school examinations and assessment; advising the Secretary of State on these matters, and on research and development connected with them, and helping him to carry out research and development if requested to do so; and publishing and disseminating information about them. The QCA also has a range of function relating to National Curriculum assessments as a result of orders made under section 87 of the Education Act 2002.

465.     Similar functions have been conferred on the QCA in relation to the EYFS learning and development requirements by the Qualifications and Curriculum Authority (Additional Functions) Order 2008 (S.I. 2008/1744).

466.     Under the provisions of this Chapter, the QCDA will continue much of the QCA’s role in relation to these functions, such as advising and supporting Ministers in the monitoring and development of curriculum and assessments.

Clause 172: Curriculum

467.     This clause sets out the QCDA’s duties and powers with respect to the curriculum in maintained schools in England for pupils who are of compulsory school age, and pupils in maintained nursery schools. The requirements for the curriculum in such schools are set out in section 78 of the Education Act 2002. It must be a balanced and broadly based curriculum which promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society, and which prepares pupils at the school for the opportunities, responsibilities and experiences of later life. The role of the QCDA in relation to the curriculum is similar to its general role in relation to qualifications within its remit and includes a duty to keep all aspects of the curriculum under review, a duty to provide advice or carry out research at the request of the Secretary of State and a power to conduct independent research. It may also publish information relating to the curriculum.

Clause 173: Early learning goals and educational programmes

468.     This clause sets out the QCDA’s duties and powers with respect to early learning goals and educational programmes, which mirror those in clause 172 relating to the curriculum. They include its duty to keep all aspects of these under review, its duty to provide advice or carry out research at the request of the Secretary of State and its power to conduct independent research. It may also publish information relating to the early learning goals and educational programmes.

469.     The early learning goals establish learning and development expectations for most children to reach by the end of the Early Years Foundation Stage. They are established by order made under section 39(1)(a) of the Childcare Act 2006 and are defined in section 41(2) of that Act as “the knowledge, skills and understanding which young children of different abilities and maturities are expected to have before the 1st September next following the day on which they attain the age of five”. Educational programmes are also established by such an order and are defined in section 41(2) of the 2006 Act as “the matters, skills and processes which are required to be taught to young children of different abilities and maturities”.

Clause 174: Assessment arrangements

470.     This clause sets out the QCDA’s duties and powers with respect to assessment arrangements within its remit. These include National Curriculum assessment arrangements for each key stage and assessment arrangements under the EYFS learning and development requirements (together referred to as “the regulated assessment arrangements”). It also includes any other testing and assessment arrangements for pupils of compulsory school age at maintained schools and for pupils at maintained nursery schools. The QCDA’s duties and powers broadly mirror those relating to curriculum, including its duty to provide advice or carry out research at the request of the Secretary of State, its power to conduct independent research and its power to publish information relating to assessment. It has a duty to only keep under review all assessment arrangements within its remit that are not regulated assessment arrangements. This is because the review of regulated assessment arrangements becomes the responsibility of Ofqual, which has a general duty to keep those arrangements under review (see clause 153), and report to Parliament. However, the QCDA will have a role advising the Secretary of State on how regulated assessment arrangements can support the Government’s policy objectives, which is a distinct role from the regulatory purposes for which Ofqual will be conducting reviews. The Government expects that the QCDA will also keep under review any assessment arrangements which it delivers, to ensure they are fit for purpose and meeting their objectives.

471.     Paragraphs 28(3) and 33(2) of Schedule 12 allow the QCDA (and any other body designated by the Secretary of State) to be given specific functions in relation to National Curriculum and EYFS assessment arrangements respectively.