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

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Recognised bodies: monitoring and enforcement

Clause 143: Review of activities of recognised bodies

422.     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 144: Investigation of complaints

423.     Ofqual may investigate complaints in respect of the award or authentication of a regulated qualification, or arrange for an independent party to do so.

424.     Ofqual’s complaint mechanisms will replace those that are currently in place through the Examinations Appeals Board (in relation to GCSEs and A-levels for example) and the QCA (in relation to vocational qualifications).

425.     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.

426.     Ofqual’s powers of redress in the event of its upholding a complaint are those that it has generally. Where the complaint led to a finding 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, to be referred in the first instance back to the awarding body concerned for review.

Ofqual’s enforcement powers

427.     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 145: Power to give directions

428.     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.

429.     An example of when a direction might be given is where an awarding body had failed to comply with a condition requiring those awarding bodies offering a specified type of qualification to take a particular approach to setting and maintaining standards, and to seek to work together with other such awarding bodies to ensure consistency of standards between them. In such cases, Ofqual would be able to direct the awarding body to comply with the condition, if it considered the failure would compromise the comparability of standards between similar qualifications offered by different awarding bodies and in this way prejudice the proper award of the qualification or someone seeking to obtain the qualification.

430.     Subsections (3) to (5) set out the steps that Ofqual must take before giving or revising 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.

431.     The QCA currently has a similar power, but without the explicit requirements over process set out in subsections (3) to (5).

Clause 146: Power to withdraw recognition

432.     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.

433.     Subsections (3) to (9) 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.

434.     If it withdraws a recognition, Ofqual may make saving or transitional provision to deal with the 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.

435.     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 147: Qualifications regulatory framework

436.     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.

437.     Together these are known as the qualifications regulatory framework. Ofqual must consult on, and may revise, the framework.

438.     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 of recognition. Recognised bodies are obliged to have regard to the guidance given by Ofqual when they award or authenticate qualifications in respect of which they are recognised.


Clause 148: Review of qualifications to which Part applies

439.     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 149: Co-operation and joint working

440.     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 any of its functions in connection with 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 150: Power to provide information to qualifications regulators

441.     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

442.     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.

    1   Lord Sutherland (2008), The Sutherland Inquiry: An independent report into the delivery of National Curriculum tests in 2008, London: The Stationery Office

Development etc. of regulated assessment arrangements

Clause 152: NC assessment arrangements: duty to consult Ofqual etc., Clause 153: EYFS assessment arrangements: duty to consult Ofqual etc.

443.     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 154: Review of regulated assessment arrangements

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

445.     Ofqual’s powers of review will enable it to consider all aspects of the implementation of the regulated assessment arrangements, such as 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 155: Powers to require information

446.     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 in case, for example, assessment arrangements change in the future and different bodies become involved in the process.

Clause 156: Duty to notify significant failings

447.     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.

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

  • if it became evident to Ofqual that there was a significant risk that significant numbers of test results would be delayed, and that the results would not therefore provide pupils, schools or the Government with timely information about the attainment and progress of pupils, assuming that the provision of this information was one of the specified purposes of the assessment; 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 157: NC assessments regulatory framework, Clause 158: EYFS assessments regulatory framework

449.     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.

450.     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 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.

451.     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 160: Provision of services

452.     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. Clause 161: Provision of information or advice

453.     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. This is a similar relationship to that between the Secretary of State and Ofsted 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.

Clause 162: Research and development

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

Clause 163: Duty not to impose or maintain unnecessary burdens

455.     This clause imposes a duty on Ofqual not to impose or maintain unnecessary regulatory burdens. The clause is similar in effect to section 72 of the Regulatory Enforcement and Sanctions Act 2008, which imposes almost identical duties on a range of other regulators. Ofqual must monitor its regulatory functions (in relation to recognised bodies or accredited qualifications for example); and must also publish an annual statement explaining how it plans to review its regulatory functions and to secure that they do not impose or maintain unnecessary burdens.

Clause 164: Annual and other reports

456.     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.

457.     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.

458.     If Ofqual has established arrangements for the referral of complaints about regulated qualifications to an independent party (under clause 144(2)), the annual report must describe the activities of the independent party during the reporting period.

Chapter 5: General

Clause 165: Interpretation of Part

459.     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 166: Transfer schemes

460.     The clause gives effect to Schedule 10.

Schedule 10: Ofqual: transfer schemes

461.     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 167: Minor and consequential amendments

462.     This clause, with clause 185, 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 Part 8 of the Bill.


Chapter 1: The QCDA, objective and general duties


Clause 168: The Qualifications and Curriculum Development Agency

463.     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.

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

Schedule 11: The Qualifications and Curriculum Development Agency

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

(1) Status

466.     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.

(2) Membership

467.     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 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.

468.     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.

(3) Staff

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

(4) Committees and proceedings

470.     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 the QCDA 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. Paragraph 10 allows the QCDA to establish joint committees with other bodies.

471.     Paragraphs 11 and 12 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.

472.     Under paragraph 13, the QCDA may delegate any of its functions to a committee or a member of the QCDA or its staff.

473.     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.

(5) Reports and accounts

474.     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. There is no equivalent requirement currently for the QCA.

475.     Paragraph 17 requires the QCDA to keep and prepare accounts in line with any directions of the Secretary of State.

(6) Documents

476.     Paragraph 18 makes provision about the application of the QCDA’s seal: the references to “members” includes the chief officer

(7) Funding

477.     Paragraph 20 allows the Secretary of State to make grants to the QCDA and to 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.

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Prepared: 7 May 2009