Apprenticeships, Skills, Children And Learning Bill - continued          House of Lords

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Regulated qualifications and regulated assessment arrangements

Clause 127: Meaning of “regulated qualifications” etc.

382.     This clause describes the types of qualifications that Ofqual has the power to regulate.

383.     For a qualification to be a “regulated qualification”, three criteria must be met:

  • it must not be a foundation, first or higher degree;

  • it must either (a) be awarded or authenticated in England, or (b) be a vocational qualification awarded or authenticated in Northern Ireland;

  • it must be awarded or authenticated by a body which is recognised by Ofqual under clause 129 in relation to that qualification.

384.     The meaning of awarding or authenticating a qualification “in England” and “in Northern Ireland” is explained in subsection (4): there must be, or may reasonably be expected to be, persons seeking to obtain the qualification who are, will be or may reasonably be expected to be assessed wholly or mainly in England or Northern Ireland.

385.     Ofqual’s role in regulating relevant vocational qualifications in Northern Ireland may be removed by order of the Secretary of State. Before making such an order he would have first to consult the Department for Employment and Learning in Northern Ireland and the order would be subject to the affirmative procedure. This is to allow for the possibility that the Northern Ireland authorities may in future wish to change the arrangements for the regulation of qualifications in Northern Ireland.

386.     In the Education Act 1997, the QCA’s regulatory responsibilities relate to external qualifications, defined as:

“any academic or vocational qualification authenticated or awarded by an outside person..” (section 24(6)(a)).

387.      The restriction to external qualifications has been removed in the Bill, which means that Ofqual may recognise bodies which both teach and award qualifications - for example, employers or colleges which have the capability to do so. This change has implications for other legislation, for example for section 96 of the Learning and Skills Act 2000, which is amended by paragraph 27 of Schedule 12.

Clause 128: Meaning of “regulated assessment arrangements”etc.

388.     This clause describes the types of assessment that Ofqual has the duty to keep under review. “Regulated assessment arrangements” means the arrangements made for assessing pupils in England in respect of each key stage of the NC; and the arrangements for assessing children in England. (This equates currently to NC tests at Key Stages 1 and 2, teacher assessment as part of Key Stages 1-3 and the EYFS Profile.) In relation both to NC and EYFS assessment, as noted above there is a new provision in the Bill for the Secretary of State to specify additional purposes by order. These defined specified purposes provide Ofqual with a policy framework within which it is to monitor and report upon regulated assessment arrangements, and it is required to “have regard to” these purposes.

389.     The NC assessment arrangements are made under the Education Act 2002, setting out the arrangements for assessing pupils at each key stage of the NC. The EYFS assessment arrangements are made under the Childcare Act 2006.

Chapter 2: Functions in relation to qualifications

390.     Under the Education Act 1997, which established the QCA as the regulator of qualifications, the QCA regulates at qualification level - in other words, it accredits individual qualifications. The Education and Skills Act 2008 amended the 1997 Act to give the QCA the additional function of recognising awarding bodies. Under the 1997 Act as so amended, only qualifications offered by recognised bodies are eligible to be accredited. Under the provisions in this Bill, the general requirement to accredit individual forms of qualifications will be removed, so that the focus of Ofqual’s regulation will be at organisational level. Provided that a body has been recognised in respect of a specific qualification or description of qualification, it will not necessarily have to obtain accreditation for a form of the qualification which it awards or authenticates. But Ofqual will still be able to require accreditation of forms of qualifications, either where it judges that this is required in relation to a particular type of qualification, or where it is concerned about the performance of a specific awarding body.

391.     The following table sets out the possible combinations of recognition and accreditation.

Awarding Body RecognisedAwarding Body Not Recognised
Qualifications not AccreditedThe default position for a qualification subject to regulation.The awarding body may offer qualifications provided it does not claim they are regulated by Ofqual. It is unlikely that the Secretary of State would approve such qualifications for public funding.
Qualifications AccreditedOfqual may decide to introduce an accreditation requirement for a qualification or a description of qualification (clause 135). This could be because Ofqual:
- had decided that a particular type of qualification needed particular scrutiny, if for example it was widely used, was new or was judged to be particularly high risk; or
- was concerned about a specific awarding body and wished to check particularly closely that any new qualifications the body developed would comply with the terms of its recognition.
Not possible

Recognition of awarding bodies

Clause 129: Recognition

392.     This clause requires Ofqual to “recognise” awarding bodies in respect of specific qualifications or descriptions of qualification (or in respect of credits for components of qualifications). Ofqual could use “a description of a qualification” in two ways. The first is to make more general provision (for example, to catch a class of qualifications, covering a number of different subject or sector areas. Examples would include ‘A-level’ or ‘National Vocational Qualification (NVQ)’). The second is to make more specific provision, for example, to limit what is caught to a particular form of a type of qualification. For example, ‘history GCSEs assessed 100% by course work’ is a description of a qualification.

393.     By recognising a body Ofqual confirms that the body is fit to award or authenticate the qualifications or qualifications of a description 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) only 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(9).

394.     Ofqual may not charge for recognition of an awarding body.

395.     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 399 to 402 below). Accreditation conditions apply to recognition in respect of qualifications, or descriptions of qualifications, subject to the accreditation requirement - that is a requirement imposed by Ofqual that any form of the qualification or of qualifications of the relevant description is, or are, required to be accredited. An accreditation condition prohibits the recognised body from awarding a particular form of that qualification or of a qualification of that description, until accreditation for that form of qualification has been obtained. A recognition in respect of the award or authentication of a credit in respect of a component of a qualification cannot be subject to an accreditation condition.

396.     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

397.     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 or revising the criteria and must publish those criteria.

398.     In exercising this function, Ofqual is to be able to set different criteria for recognition of different descriptions of awarding bodies, for recognition in respect of different qualifications (or credits in respect of different components of qualifications) or different descriptions of qualifications (or credits in respect of different descriptions 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 the appropriateness of the processes of the awarding body for developing the qualifications for which recognition has been sought. Criteria may also cover factors such as the previous history of an awarding body prior to any application.

Clause 131: General conditions of recognition

399.     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 descriptions 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.

400.     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.

401.     Under the current regime, the QCA can impose conditions on accreditation and 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.

402.     Examples of the general conditions Ofqual might impose under this power include:

  • conditions requiring those awarding bodies offering GCSEs and A-levels to work together to ensure consistency of standards, to notify Ofqual by a specified date where there are problems with agreeing the standard and to accept Ofqual’s judgment about that standard in that event;

  • 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 qualifications or classes of qualifications - for example that vocational qualifications must meet the requirements of the relevant Sector Skills Council.

Clause 132: Other conditions of recognition

403.     Ofqual has a broad power to impose other conditions in relation to a recognition (see clause 129(3)(d)). This clause makes provision about two such types of condition:

  • conditions limiting the amount a recognised body may charge for the award or authentication of a qualification in respect of which the body is recognised or for a service provided in connection with such a qualification (a “fee capping condition”). This is one of the main mechanisms 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, 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 so far as is necessary 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 qualification in respect of which the body is recognised or the need for a fee capping condition.

404.     Further provisions about these conditions are in clauses 133 and 134.

Clause 133: Fee capping conditions: supplementary

405.     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 Secretary of State might, for example, wish to give guidance about the average increases in funding available to publicly-funded schools and colleges in a particular year, for Ofqual to consider against the increases in fees proposed by awarding bodies. 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

406.     This clause limits 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 by an authorised person. In summary, this provision enables such a person to inspect records or other documents to which they are entitled at any reasonable time to have access, 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

407.     Under this clause Ofqual may decide that a certain qualification, or qualifications falling within a certain description, is or are subject to the accreditation requirement. The effect of this is that a recognised body cannot award or authenticate any form of such a qualification unless the particular form is individually accredited. This requirement may be applied to a qualification in relation to all recognised bodies or only in relation to a specific recognised body. The requirement cannot be applied in to a component of a qualification.

408.     Before deciding to apply the accreditation requirement to a qualification in relation to all recognised bodies, Ofqual must consult such persons as it considers appropriate. Where the requirement it is to be applied to a qualification in relation to an individual recognised body it is that body alone that Ofqual must consult. Any decision reached by Ofqual to impose the requirement in respect of a qualification in relation to all recognised bodies must be published. Ofqual is able to revise any determination made under this clause.

Clause 136: Accreditation

409.     This clause provides for the process of accrediting particular forms of qualifications. Where a form of a qualification is submitted to Ofqual for accreditation it must be accredited if it meets the criteria for accreditation. An awarding body may award or authenticate a particular type of qualification, such as an English GCSE, in different forms. For example a version with material suitable for pre-16 students and one suitable for older students. Each form must be accredited if the qualification as a whole is subject to the accreditation requirement.

410.     Ofqual may not charge for accreditation. (In contrast, the QCA currently has a power to charge for accreditation.)

Clause 137: Criteria for accreditation

411.     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.

412.     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. For example, if the initial criteria relating to a particular qualification specified that the awarding body would have to have certain quality assurance processes in place, Ofqual could make it an ongoing requirement that those processes were maintained and used through the imposition of conditions to that effect.

413.     If Ofqual revises accreditation criteria relating to a particular qualification, the accreditation under the old criteria of any forms of that qualification will cease to have effect on a date specified by Ofqual. This will allow Ofqual to ensure that all qualifications that are awarded are kept up to date with changes to curriculum and other requirements, and that there is no confusion created by old versions of a qualification being available. Ofqual may determine that accreditation need not cease in these circumstances (for example if a change was relatively minor, Ofqual may decide to require that qualifications already accredited be amended through imposing conditions rather than requiring the awarding bodies to seek reaccreditation). Ofqual may make saving or transitional provision about a form of a qualification ceasing to be accredited: for example, where students are already studying for qualifications under the old criteria. Ofqual may allow the accreditation temporarily to continue for those purposes only.

Recognition and accreditation: supplementary

Clause 138: Power of Secretary of State to determine minimum requirements

414.     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 a qualification of a particular description (a term explained in paragraph 392 above). For example, it could be used to ensure that the content of GCSEs properly reflects the NC Key Stage 4 Programmes of Study, which they are intended to assess. 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, and where appropriate the conditions on recognition.. Where such a determination has been made, there is an expectation that the QCDA would support the development of the criteria associated with the qualification (see clause 173), which is why there is a duty on the QCDA to assist Ofqual in these circumstances where requested to do so. Clause 138 restricts the Secretary of State to specifying minimum requirements relating, in effect, to the content of a qualification. In this it mirrors the Secretary of State’s responsibility for determining the content of the National Curriculum. The clause does not allow the Secretary of State to make determinations relating to features of the qualification such as grading or assessment. Such matters remain solely for Ofqual to determine.

415.     The Government intends that the power in clause 138 to determine minimum requirements will 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 and consult on 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 (7).

Clause 139: Assignment of numbers of hours of guided learning

416.     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.

417.     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 form of 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 (whether or not in combination with other qualifications) 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 (9) 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 form of qualification. This will allow Ofqual to ensure, for example, that there is consistency between awarding bodies in how they assign guided learning hours to comparable forms of qualifications.

418.     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(7).

Clause 140: Criteria for assignment of numbers of hours of guided learning

419.     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 to a form of the qualification. 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 criteria then in force 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 a particular form of the qualification. Recognised bodies are obliged to review their determinations under clause 139 when Ofqual revises the criteria set under this clause.

Clause 141: Surrender of recognition

420.     This clause allows a recognised body to surrender recognition by giving notice to Ofqual. There are no explicit arrangements for such surrender in the current legislation. Ofqual has the power to decide the date on which surrender takes effect (acting in accordance with the requirements of subsections (2) and (3)) and may make saving or transitional provision (such as allowing a qualification to continue to be treated as regulated where students are taking resits of exams beyond the date on which recognition has otherwise expired). In determining the surrender date, Ofqual must aim to ensure that those learners seeking or who might reasonably be expected to be seeking the qualification are not prejudiced.

Clause 142: Register

421.     This clause sets out Ofqual’s obligation to maintain a register of recognised bodies, the details of the qualifications in respect of which they are recognised and forms of those qualifications that they offer, including the number of guided learning hours assigned to the forms of qualification where appropriate. The register may include other information that Ofqual considers appropriate, so it could for example choose to 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.

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