Closed consultation

Amending our Taking Regulatory Action policy

Published 20 February 2025

Applies to England

Proposals at a glance

This consultation sets out our proposals to complete the work we began in 2019 to update our policy ‘Taking Regulatory Action’. Completion of that work was delayed as a result of the COVID-19 pandemic.

This consultation includes a draft of the revised policy which should be read alongside this document. The changes in the revised policy reflect the decisions we made after the 2019 consultation, which we published in May 2021, as well as some additional proposals. This document summarises the changes and explains those which are new or different.

Audience

This consultation is open to anyone who may wish to make representations but may be of most interest to: 

• awarding organisations
• schools, colleges and others who deliver or take qualifications

Consultation arrangements

Duration

This consultation will be open for 12 weeks starting on 20 February 2025 and ending on 15 May 2025 at 23:45.

Respond

Please respond to this consultation by using one of the following methods:

• complete the online response
• email your response to consultations@ofqual.gov.uk – please include the consultation title in the subject line of the email and make clear who you are and in what capacity you are responding

For information on how we will use and manage your data, please see Annex A: Consultation responses and your data.

Introduction

This consultation draws together work we began before the COVID-19 pandemic, to update the policy which describes how we intend to use our monitoring and enforcement powers. The current version of that policy was published in 2012 as ‘Taking Regulatory Action’ (‘the TRA policy’).

We consulted between October and December 2019 on changes we then proposed to make to the TRA policy. We published our decisions on 28 May 2021, following a significant delay caused by the pandemic.

Between 28 May and 23 July 2021, we consulted awarding organisations on a revised TRA policy which set out how we proposed to implement the decisions from the earlier consultation as well as including some further proposals for change. Further work on reform of the TRA policy was then paused again as we refocussed our resources at the close of 2021 and during 2022.

The period since we first consulted has seen changes to the qualifications market driven by the pandemic, the wider economy and government-led reform of vocational and technical qualifications, as well as changes to our approach to regulation. We took time to evaluate the extent to which the changes we proposed previously remain appropriate and to consider how best to ensure the TRA policy reflects our intended approach. 

We know awarding organisations are interested in and affected by our approach to enforcement and it is important that any changes we make have the benefit of broad stakeholder input. Against that background and given the passage of time, we have decided further consultation is necessary, rather than making decisions based on the 2021 consultation with awarding organisations. The purpose of this further consultation is to inform the publication of a new version of the TRA policy, which will be known as ‘Supporting Compliance and Taking Regulatory Action’.

In this consultation we explain:

• further information about how we intend to implement the decisions we published in May 2021
• that we have decided not to proceed with the development of an approach to using fixed penalties
• proposals to introduce amendments to the TRA policy which were not included in the 2019 consultation, which reflect our current and intended approach

We also explain changes we are making to the way we make decisions. We are not consulting on those changes and have included them for transparency and because they form part of the context for some of the proposals.

We have incorporated some of the proposals about which we consulted awarding organisations in 2021, as well as some of the suggestions made by awarding organisations in their responses. There are certain matters we proposed in 2021 which we no longer wish to pursue. Those matters do not appear in the new version for the purposes of this consultation.

We have published the proposed revised policy with this consultation.

We are consulting on the wording of the proposed revised policy as well as the specific new proposals.

Consultation details

Context

On 28 May 2021, we explained that we had decided to go ahead with all the proposed changes to the TRA policy on which we consulted in 2019. We expressed our decisions as follows:

We will publish a new version of the Taking Regulatory Action policy (the TRA policy) which:

• is titled ‘Supporting Compliance and Taking Regulatory Action’
• explains that we will usually record instances of non-compliance even where we decide to take no further action and that we will retain these records
• explains that we might issue a rebuke in appropriate cases
• explains that we will often allow only a short period for representations where we propose to give a direction
• explains that, where we have the power to recover our costs, we will do so whenever we consider it is proportionate
• explains that we might notify awarding organisations when we have concerns about a centre

We have also decided that we should explain in the TRA policy that we might decide to develop an approach to using fixed monetary penalties.

We have subsequently identified some additional ways the TRA policy can be improved. Some of these reflect our current ways of working, which we think should be reflected in the policy and others reflect opportunities we have identified to work more efficiently, which require changes to the policy.

We have also reconsidered our decisions in relation to fixed penalties and the publication of notices where we have concerns about a centre.

The TRA policy

The TRA policy explains the key features of the way we exercise our powers to take regulatory action and illustrates some of the circumstances in which we consider it is likely we might take particular actions. Where appropriate, the policy also explains the factors we expect to take into account when we are deciding whether to take action, what action to take and, for monetary penalties, the matters we will consider when we determine the amount.

The TRA policy does not set out all the circumstances which might cause us to take regulatory action and nor does it provide an exhaustive list of factors we will take into account. This flexibility reflects the possibility that unexpected or unprecedented issues might arise, as well as the importance of considering each case on its own facts.

The policy does not explain all the operational and governance arrangements we have in place to take decisions in relation to regulatory activity. This is not the purpose of the TRA policy. We have published our Corporate Governance Framework through which our decision-makers are authorised. We have however decided to include more information about our decision-making in the new version of the TRA policy and we have explained in this consultation some of the ways in which we are changing how we make decisions in relation to regulatory action, where that change will affect awarding organisations.

The majority of the changes we propose making to the TRA policy explain the way we currently use our powers, rather than adding new powers or altering how we use those powers. We have included these sections to help awarding organisations understand more about the range of actions available to us.

A small number of our proposals would either allow us to take actions we cannot currently take or change the way we might use our existing powers. We have made these changes clear in the text. 

This consultation follows the structure of the proposed new version of the TRA policy. We have highlighted the new sections. Where we have replaced old text with new, only the new text appears (and is highlighted).

Section A – Background

This section of the policy provides high-level information about Ofqual, introduces the regulatory action we can take and provides general information about our approach.

We have amended this section to include an overview of the main non-statutory actions we can take. This reflects our decision following the 2019 consultation to include detailed information about non-statutory actions in the policy for the first time – although this is not a legal requirement.

We have added information about how we decide which cases should be escalated for consideration of regulatory action and which will be resolved with no further action. Like similar organisations, we refer to this as the ‘case to answer’ test. 

We have also included information about our overall approach to publication in connection with regulatory action, with further detail provided in subsequent sections of the policy.

When we talk about publication or sharing information in the policy, we refer to ‘other UK qualifications regulators’, this includes Qualifications Wales, CCEA Regulation in Northern Ireland and the Scottish Qualifications Agency. We have not named these organisations in the revised policy to allow for the possibility that their names might change over time. When we refer to ‘relevant government departments, bodies or agencies’ this is a broader category which will include the Department for Education, Skills England, the Office for Students and others as we consider relevant in the particular case.

Finally, we have updated or rephrased some paragraphs, so they better describe our approach.

Question 1
Is the information we have added to the ‘Background’ section clear? (yes or no)
Please provide comments if you feel the ‘Background’ section is unclear, or there is information missing.

Section B – Non-statutory action

When we published our decisions in May 2021, we explained that the new version of the TRA policy would include information about:

• our approach to making requirements under the conditions
• recording non-compliance where no further action is taken
• accepting an Undertaking
• issuing and publishing a rebuke in appropriate cases
• centre concern notices

Section B of the revised policy is a new section which includes information about each of these regulatory tools. 

In this section of the consultation, we have also explained changes we are making to how we make determinations of non-compliance, as well as new proposals about how an awarding organisation can challenge a determination and/or a decision to issue a rebuke. The approach we propose to take is reflected in the revised policy.   

Making requirements

This sub-section provides information about our approach where a condition (either a General Condition or a Special Condition) allows us to specify actions an awarding organisation must take in certain circumstances. We have given some examples of when we can intervene in this way, but this is not an exhaustive list.

We can set requirements under a relevant condition whenever we consider it is necessary to do so; we do not need to have evidence the awarding organisation has breached or is likely to breach a condition. We explain in the policy that we may give feedback and advice first and impose a requirement only where informal measures do not have the necessary impact. However, there will be some cases where we decide it is appropriate to set a requirement without first giving advice or guidance, for example where we consider a requirement is immediately necessary to protect learners or to maintain standards. We will determine the most appropriate approach on a case-by-case basis.

Restraining the issue of results

We have included this section to explain the power we have under the General Conditions to restrict an awarding organisation’s ability to issue results for its qualifications. This is a specific example of our ability to set requirements (above) but is of such potential significance to learners and awarding organisations that we consider it should be separately explained in the policy.

As well as giving examples of the circumstances in which we anticipate we might choose to restrain results, this section explains that we will look to reduce the impact on learners by acting early if we can, to avoid or minimise delay. We know that delaying results or potentially preventing an awarding organisation from issuing those results at all will have a significant impact on learners. The policy explains that we will carefully balance the prejudice caused to learners directly affected by a delay or cancellation against the risk that the proposed results might not be fit for purpose and could undermine standards in the qualification, which might devalue the qualification for all learners, and undermine the confidence of those that rely on the validity of results.

This section also makes clear that we would consider a failure to comply with a requirement in relation to restraining results as a serious and significant breach, which is likely to lead us to take statutory action, such as giving a direction.

There is no mechanism for an awarding organisation to appeal in respect of the setting of a requirement under a condition. This is because issuing a requirement is not a finding that the awarding organisation has breached a condition. There are review or appeal mechanisms for all the actions we might take if an awarding organisation fails, or refuses, to comply with the requirement. 

Question 2
Is the text about issuing requirements clear? (yes or no)
Please provide comments if you feel the text about issuing requirements is unclear, or there is information missing.

Question 3
Is the text about restraining results clear? (yes or no)
Please provide comments if you feel the text about restraining results is unclear, or there is information missing.

Recording non-compliance

The 2019 consultation set out proposals in relation to recording instances of non-compliance where we anticipated taking no further action. Those proposals and the decisions we announced in May 2021 reflected our existing practice with which awarding organisations are familiar. The new section explains our approach, includes information about for how long we will retain records and confirms that only in certain circumstances might we publish information about determinations.

Disputed cases

When we first consulted on this proposal, we explained that we had mechanisms to resolve cases where it was not possible to reach agreement with an awarding organisation in relation to an allegation that it had breached a condition. The current mechanism is to present the case to our Enforcement Panel (previously called the Enforcement Committee) for consideration of regulatory action. The Panel determines whether a condition has been breached and, if so, whether it is proportionate to take regulatory action or to simply record the breach.

It is important that we have a way to address these cases, to make sure there is clarity about our requirements and to promote consistency in recording compliance histories. However, over time it has become clear that our current approach is not an efficient way to decide disputed cases. 

We have therefore decided to change our governance arrangements so that senior members of Ofqual staff can make a reasoned determination that an awarding organisation has breached a condition where it is proposed that no further action should be taken, even where the awarding organisation does not agree with the allegation of breach. This will make our processes more efficient and reduce the risk of delay for awarding organisations which do not agree they have breached a condition.

We are not consulting on this change to our internal governance arrangements but we will delay implementing the change until we have published decisions from this consultation. We are seeking views on the clarity of the information we have provided about determinations of non-compliance generally in the draft revised policy. 

Question 4
Is the text about determinations of non-compliance clear? (yes or no)
Please provide comments if you feel the text is unclear, or there is information missing.

Appeals – determinations of non-compliance

We think an awarding organisation which disagrees with a reasoned determination of non-compliance should have the opportunity to challenge that decision.

We have considered 2 possibilities for allowing these decisions to be looked at again: internal review and appeal.

The 2 options have some key differences. In particular, when we complete an internal review – for example in relation to a decision we have made about a complaint – we look again at our file to make sure we have followed an appropriate process, considered all relevant factors and given reasons which properly explain our decision. We set out our decision in a letter. The person requesting the review will be asked to explain what they think went wrong, but they do not need to set out grounds of appeal or provide detailed reasons in support of their application, we instead complete an intensive review in every case.

Where an internal review identifies a problem with the initial decision the reviewer might recommend the case is looked at again, but only in rare cases will the reviewer substitute a new final decision of their own.

An appeal, conversely, would require the awarding organisation to set out grounds of appeal - explaining in detail why they considered the determination to be incorrect - and the appeal itself would be limited to reviewing those grounds of appeal to decide whether any should succeed. Importantly, where the appeal succeeds, the expectation would be that the decision-maker would quash the original decision and make its own determination about the case. This would bring greater finality for the awarding organisation.

We think it is appropriate that an awarding organisation which wants to challenge a decision should identify why it thinks the determination is wrong and that when Ofqual considers that challenge we should be able to focus solely on the issues raised by the awarding organisation, rather than conducting an intensive review in every case. We also think it is right that the end of the process should be a final decision, either upholding the original decision, changing it, or quashing it entirely.

One consequence of requiring the awarding organisation to identify the grounds on which it wants to challenge a decision is that it will have to carefully consider and articulate the basis of any challenge it decides to make. We think this will discourage challenges which are speculative or reactive, which in turn will allow us to focus our resources on those cases where there is a real area of dispute.

We therefore think an appeal route rather than an internal review represents the right balance. Although awarding organisations which genuinely believe we have misinterpreted the conditions should have the opportunity of challenge, the potential drain on our resources if we were to take an approach which could encourage speculative applications and which requires a proactive intensive review (for instance, an internal review) is too significant, and not in proportion to the gravity of a determination of non-compliance. 

We therefore propose that an awarding organisation which disagrees with a determination of non-compliance should be able to appeal against that decision.

This proposal would require us to put in place a new appeals process. We propose that the appeal decision-maker will be the Enforcement Panel. We propose that when it hears the appeal the panel will be able to:

• allow the appeal and set-aside or vary the determination of breach
• dismiss the appeal, confirm the determination of breach and confirm that no further action will be taken
• dismiss the appeal, confirm the determination of breach and determine that any other action set out in the revised TRA policy should be taken

Providing an appeal to the Enforcement Panel is consistent with the current arrangements, whereby a Panel decision is the only way to resolve a contested determination, but we expect only a small proportion of contested determinations will lead to an appeal. It also promotes consistency by maintaining the Panel as the final arbiter where there is sustained disagreement about the meaning of a condition.

The possibility that alternative action might be taken also reflects the existing approach, because the Panel will currently consider whether regulatory action should be taken if it determines there has been a breach. That possibility also echoes the arrangements in place for an awarding organisation to appeal to the First Tier Tribunal in respect of the imposition by Ofqual of a monetary penalty, because the Tribunal can vary the amount of any penalty or take any other step which Ofqual could have taken.

We think it is important that decision-makers have the flexibility to make a different decision at the appeal stage if they disagree with the initial decision-maker about the seriousness of the case. This might be because the Enforcement Panel has the opportunity to consider the factual background in more detail, or because the initial decision was made on pragmatic grounds with which the Panel disagrees, or which are no longer considered appropriate. 

The Enforcement Panel will be aware of the need to avoid appearing to penalise awarding organisations which bring appeals in good faith because they believe the first decision-maker has misunderstood the relevant facts or misinterpreted a condition. We do not anticipate that unsuccessful appeals will lead to a more severe outcome very often. 

If the Enforcement Panel considers that a more serious outcome should be substituted, it will follow the procedure set out in the revised TRA policy which applies to that outcome, including issuing a notice of intention where applicable. Should the Enforcement Panel impose a monetary penalty following an appeal, the awarding organisation will have the opportunity to challenge that decision at the First Tier Tribunal, as with any other monetary penalty.

Although we hope appeals against determinations of non-compliance will be relatively rare it will be important to have a consistent process to manage the appeal, both so the awarding organisation knows what to expect and to support the Enforcement Panel’s work. We think the best way to do this is to have a set of Appeal Rules which will exist as an Annex to the TRA policy. 

We have prepared draft Appeal Rules which we have included with the proposed new policy. We are seeking views on the draft Appeal Rules alongside views on our proposals for appeals generally. We will not necessarily consult if we make amendments to the Appeal Rules in future, and if we decide to consult we might restrict that consultation, for example we might consult with awarding organisations only.

Question 5
Do you agree with our proposals in respect of appeals for determinance of non-compliance? (yes or no)
Please provide comments if you feel the section is unclear, there is information missing or you wish to explain your answer.

Question 6
Do you have any comments on the draft Appeal Rules? (yes or no)
If yes, please provide your comments.

Accepting an Undertaking

An undertaking is a commitment by an awarding organisation to take certain actions to resolve non-compliance, potential non-compliance or a risk or issue. The conditions require an awarding organisation to comply with any undertaking it gives to Ofqual. This section of the revised policy explains our current approach to accepting an undertaking from an awarding organisation.

When we first explained our proposal to include information about undertakings in the TRA policy, in the 2019 consultation, we said that we use undertakings where an awarding organisation has breached or is likely to breach its conditions (as an alternative to a direction). We now think this description is too restrictive and does not reflect our current approach. The wording in the proposed new version of the policy gives 2 examples of other circumstances in which we might accept an undertaking, although this is not an exhaustive list.

Question 7
Is the text of this section clear? (yes or no)
Please provide comments if you feel the section is unclear or there is information missing.

Issuing a rebuke

We explained in the May 2021 decisions document that we had decided to implement our proposal to add issuing a ‘rebuke’ to the non-statutory actions available to us. This section of the revised policy sets out how we intend to operationalise our decision to add the rebuke to the outcomes available to us.

The rebuke will be available only where we have first made a determination that an awarding organisation has failed to comply with one or more of its Conditions of Recognition and where we consider the incident or occurrence is sufficiently serious that some action should be taken, but not so serious that a monetary penalty should be imposed. Both the determination and the rebuke will reflect a specific set of circumstances that will be included in the reasons for the rebuke. The awarding organisation will be able to make representations in relation to the proposed determination and the proposal to issue a rebuke.  

We expect the range of cases where we will contemplate the use of a rebuke to be broad so we have not given any specific examples of the circumstances in which we anticipate a rebuke is likely to be the most appropriate outcome. In each case, we will record why the circumstances are too serious for a determination of non-compliance and why it is not necessary to consider a monetary penalty.

We anticipate that a rebuke may be issued by any of the senior members of our staff who will determine whether an awarding organisation has breached a condition in a disputed case. 

Appeals – following a rebuke

When we consulted awarding organisations in 2021 about the arrangements we proposed to put in place for using the rebuke, the feedback we received included questions about how an awarding organisation which disagreed with the rebuke could challenge the decision.

We think it is right that an awarding organisation which genuinely disagrees with our decision to issue a rebuke should be able to appeal against that decision. As with a determination of non-compliance, we have considered the relative merits of an internal review and an appeal.

We think the same factors are relevant here as were relevant to our consideration of the most appropriate route for an awarding organisation to challenge a determination of non-compliance. We also consider the balance is the same – we believe an appeal to an Enforcement Panel is the most appropriate mechanism having weighed the relevant considerations.

We propose that the Enforcement Panel will be able to:

• allow the appeal against the rebuke, confirm the determination of breach and substitute a decision that no further action will be taken following that breach
• allow the appeal and set aside both the determination of breach and the rebuke
• dismiss the appeal, confirm the determination of breach and confirm the rebuke
• dismiss the appeal, confirm the determination of breach and decide that any other action set out in the revised TRA policy should be taken

As with an appeal against a determination of non-compliance, we do not anticipate unsuccessful appeals will often lead to the imposition of a more severe sanction. However, we think it is important our decision-makers should have that flexibility, for the same reasons as we explained in that earlier section. The Panel will follow the procedure set out in the revised TRA policy which applies to the outcome it considers most likely to be appropriate.

The Appeal Rules, which are introduced in the earlier section, will also apply to appeals in respect of a rebuke.

Question 8
Is the text about the rebuke clear? (yes or no)

Question 9
Do you agree with our proposals in respect of appeals? (yes or no) 

Question 10
If you think this section is unclear, there is information missing, or you would like to explain your answers, please provide comments.

Concerns about a centre

In the 2019 consultation, we proposed that we might issue a notice to awarding organisations where we receive evidence which causes us to have concerns about a centre which we consider should be brought to the attention of one or more awarding organisations.

In May 2021, we explained our decision to proceed with this proposal only at a level of principle, with the detail to be worked out later:

At a level of principle, we think we should implement this proposal. However, we think we should do further work to make sure any notice we issue is as effective as possible. We also consider that our approach to issuing notices about centres might change over time. We have therefore decided that although the possibility that we might issue notices about centres will be included in the next version of the TRA policy, the detail of how and when we might do so will be published later, an as annex to the policy.

When we published our decisions in May 2021, we anticipated that we would develop an approach to issuing notices about centres in the relatively short term. However, we have not been able to identify any recent incidents in connection with which we might have issued a notice had the option been included in the TRA policy already, and our work with awarding organisations to support the elimination of malpractice has not brought to light any instances where our issuing a notice might have made a critical difference. Separately, we are currently working with awarding organisations to support them in their approach to notifying each other about cases of proven malpractice. Accordingly, we do not now consider that there is any immediate need to develop an approach to using such notices.

Although there is no current need, we do not dismiss the possibility that we might identify a need to revisit issuing such notices in the future. Doing so will be simplified if the possibility is preserved in the policy. On balance, therefore, we have decided this section should remain in the policy as something we might do in the future by publishing an annex to the policy.    

Question 11
Is the text of this section clear? (yes or no)
Please provide comments if you feel this section is unclear, or there is information missing.

Redundant qualifications

When we consulted with awarding organisations in 2021, we proposed including information in this section of the policy about removing qualifications from the Register of Regulated Qualifications where we determined those qualifications to be redundant. We have decided not to proceed with that proposal. We will instead separately consider whether to introduce further conditions in relation to the way awarding organisations manage and maintain entries on the Register. Our decision not to include information about removing qualifications in the TRA policy does not prevent us from removing redundant qualifications where this is appropriate, but we do not anticipate needing to do so other than in rare circumstances.

Section C – Statutory Action

Imposing conditions of recognition

This sub-section describes our approach to setting the conditions of recognition with which an awarding organisation must comply. We have added some new information to specific parts of this section which we describe below and have also made some minor changes to update other parts of the text. The minor changes are highlighted in the proposed revised policy and do not require further explanation.

Special conditions

We have included information in this part to clarify that the process of giving notice of our intention to impose a special condition does not apply where that condition is imposed alongside a decision to recognise an awarding organisation, whether for the first time or for an additional qualification or description of qualifications. 

We have also provided information about our approach to publication, which makes clear that we do not routinely publish special conditions we impose at the point of recognition. This is because the majority of the special conditions we impose at this stage reflect measures to manage risks we have identified through the recognition process. In some instances, publication of those special conditions could increase the risk of malpractice and in other instances the circumstances we are concerned about are commercially confidential. Overall, we think there is a risk that routinely publishing these particular special conditions could create an artificial basis for users of qualifications incorrectly to differentiate between awarding organisations.

Where we set special conditions at recognition because we have identified a particular risk even though the awarding organisation meets our recognition criteria, we will often set out what the awarding organisation must do and by when, to mitigate the risk. The draft revised text explains the monitoring and escalation process we will use in connection with conditions which set such requirements.

Question 12
Is the text of this section clear? (yes or no)
Please provide comments if you feel this section is unclear, or there is information missing.

Entry and inspection conditions

We have made small changes to this section: to clarify our approach to publication and to make clear that we would regard any failure to comply with an entry and inspection condition as a serious breach. In practice, the breach of such a condition is likely to be one of the circumstances which would lead us to consider withdrawal of recognition, because the breach would undermine our confidence that we can effectively regulate the awarding organisation.

Question 13
Is the text of this section clear? (yes or no)
Please provide comments if you feel this section is unclear, or there is information missing.

Accreditation requirements

We have edited this sub-section to make the text clearer. The only substantive change we have made to this section is to specify that although we will not usually publish information about accreditation requirements we impose in respect of an individual awarding organisation’s qualifications, we will usually notify the other UK qualifications regulators and, where relevant, any relevant government departments, bodies or agencies, such as Skills England and the Department for Education (DfE).

Question 14
Is the text of this section clear?(yes or no)
Please provide comments if you feel this section is unclear, or there is information missing.

Giving a direction

The substantive change in this sub-section implements the decision we explained in May 2021, in relation to the time we will allow an awarding organisation to make representations where we give notice that we intend to give a direction. This confirms that most of the cases where we propose to use the direction power will be urgent, which means we might allow only a very short period for representations.

We have added a paragraph to make clear that we will give a copy of any notice of intention to give a direction to the other qualifications regulators and will notify any relevant government departments, bodies or agencies if we think this is appropriate.

We have also added information about our approach where an awarding organisation responds to the notice of intention by agreeing to take the steps we have specified. In summary, although it will always be better for an awarding organisation which agrees with our analysis to say so, this will not necessarily mean we decide not to give the direction. This is something we will determine on a case-by-case basis.

Question 15
Is the text of this section clear? (yes or no)
Please provide comments if you feel this section is unclear, or there is information missing.

Imposing a fine

This section of the policy now reflects our experience that most of the monetary penalties (fines) we impose reflect a settlement we have negotiated with the awarding organisation. The policy now separately explains the process we will adopt where an outcome cannot be agreed and the process in those cases which are settled.

Contested cases

The existing policy describes the main features of our approach in contested cases and we have made only relatively small changes to this part of the section. The main changes we have made concern the notice of intention, which we must issue before we can impose a fine.

The new wording reflects 2 changes to the way we use the notice of intention:

Firstly, we propose that we should decide on a case-by-case basis whether or not the notice of intention is published – to allow stakeholders other than the affected awarding organisation to make representations - rather than (as now) stipulating in the policy that the notice will always be published.

This reflects our experience that stakeholders almost never make representations in relation to our proposal to impose a fine on an awarding organisation. Conversely, the publication of a notice of intention frequently attracts media attention even though this is not a final decision. We think in most cases it will be more effective to issue the notice of intention only to the awarding organisation and to publish only the final decision. Making this change will also mean our approach to publication is consistent across the 3 sanction powers (giving a direction, imposing a fine and withdrawing recognition).

The second change is to allow us greater flexibility in how we use the notice of intention. At present the notice forms the first part of a 2-stage decision process and is issued by the Enforcement Panel which we expect will make the final decision. The awarding organisation then has the opportunity to make representations in relation to the Panel’s preliminary decision. 

This means before a final decision is made, an awarding organisation is invited to make representations at several stages. This includes when we investigate, when we frame allegations of non-compliance, when we issue a statement of case as part of the enforcement process and in response to the preliminary decision in the notice of intention.

It is important that an awarding organisation has sufficient opportunity to participate in the enforcement process but we do not think it is necessary for there to be as many opportunities to do so, which in some cases could be burdensome.

We propose that for the majority of fining cases we should reposition the notice of intention as the final part of our enforcement process. Instead of issuing a statement of case explaining why we consider a should be imposed, we will issue a notice of intention setting out a preliminary decision that a penalty will be imposed. The awarding organisation will have the opportunity to make representations which will then be considered by the Enforcement Panel which will make the final decision.

This proposed approach reflects the process used by some other regulators, for example the Gambling Commission. The benefit of this change will be that our Enforcement Panel will usually only consider each case once, rather than twice, which will improve the efficiency of our process, reduce the risk of delay and decrease the overall time it takes to resolve cases.  

The new version of the policy reflects that making this change means the amount of the fine proposed in our notice of intention may be less specific than is currently the case. We will propose a penalty which we think is consistent with that the final decision maker is likely to consider appropriate. In many cases this will mean we will express the penalty as a range (for example ‘between £150,000 and £225,000’) and the purpose of the notice will be to allow the awarding organisation to make representations about: whether a penalty should be imposed, the proposed range and where on the proposed range any penalty should be. 

Including a range will not prevent the Enforcement Panel from deciding the range is wrong and that a different penalty should be imposed. In some cases, this might lead the Enforcement Panel to issue a revised notice of intention and allow a further opportunity for representations, but we do not think this will happen often.

In addition to the proposed changes to the policy, we will make changes to our Governance Framework to allow the notice of intention to be issued by a senior member of staff in our legal team.

Question 16
Do you agree with our proposals in respect of the notice of intention? (yes or no)
Please provide any comments you have about the proposals.

Question 17
Is the text of this section (imposing a fine) clear? (yes or no)
Please provide comments here, if you feel this section is unclear, or there is information missing.

Settlement

This new sub-section explains our approach to settlement in cases where we consider a fine is likely to be the most appropriate outcome. Including this sub-section reflects the decisions we took after the 2019 consultation, which in turn reflect our preference to secure a negotiated settlement whenever this is realistic.

One of the benefits of settlement is that it reduces our costs. This helps the awarding organisation as well as Ofqual, because we will usually seek to recover our costs whenever we impose a fine. We have explained in the draft text that agreeing a settlement will be of most benefit at the beginning of the case. An awarding organisation can reduce its potential liability for costs by conceding a case at any stage before the final decision is made, though the savings will be smaller the later this happens. 

As with contested cases, we propose that the decision whether or not to publish the notice of intention in a settled case should be determined on a case-by-case basis, rather than the policy stipulating all notices must be published, as now.

Alongside the new section of the policy, we have made changes to our governance arrangements which allow settled cases to be decided by a single decision-maker rather than by our Enforcement Panel. The Chief Regulator will determine the appropriate route to review and ratify each proposed settlement. We are not consulting on this change to our governance arrangements, which will have immediate effect.

Question 18
Is the text of this section (settlement) clear? (yes or no)
Please provide comments if you feel this section is unclear, or there is information missing.

Fixed penalties

In the 2019 consultation we set out proposals to develop an approach to the use of fixed monetary penalties. In May 2021 we explained that we would include high-level information about fixed penalties in the TRA policy with the detail to be included later in an annex, following further consultation. 

One of the benefits we had identified was to reduce the resource and time costs associated with issuing a fine in cases where the level of the fine was likely to be relatively small and the evidence of the breach was overwhelming. However, the disadvantage of fixed penalties is a significant loss of flexibility – any deliverable approach relies on our being able to identify in advance the type of breaches which would be suitable for a fixed penalty and the level of any penalty.

In 2021, we considered that loss of flexibility to be acceptable because fixed penalties was the only way we had identified to increase our ability to use the fining power in lower-value cases. However, we now consider the changes we have made to our governance in respect of settled cases, together with the proposed changes to the way we use the notice of intention in fining cases, will support the more effective use the of the fining power without the disadvantages associated with fixed penalties.

In light of this development, we have decided not to proceed with using fixed penalties and that option does not appear in the revised version of the TRA policy.

Withdrawing recognition

We have the power to withdraw recognition from an awarding organisation where it has failed to comply with its conditions of recognition. The current version of the policy explains the type of breaches which are more likely to lead us to take that action and reflects that this is a serious and significant sanction.

Our power to withdraw recognition is flexible. As well as withdrawing recognition in full we can instead withdraw recognition for particular descriptions of qualifications or for specific qualifications. This flexibility means a decision to use the withdrawal power may not always be the most serious sanction we could impose, as the current version of the policy suggests. 

For example, where an awarding organisation is responsible for a malpractice incident caused by a failure to comply with its conditions in respect of Centre Assessment Standards Scrutiny, we might look at the range of qualifications the awarding organisation is recognised to award as part of our response to the failure to comply. 

If the awarding organisation has unused recognition for sectors where there are significant risks associated with centre assessment, for example private security qualifications, the action we take might include withdrawing that unused recognition to manage future risks. 

Alternatively, if the breaches reflect serious and repeated issues with an awarding organisation’s assessments or awarding for a particular qualification, such that we do not have confidence it has the expertise or resources to resolve those issues and safely deliver qualifications of that description, we might consider withdrawing the relevant parts of its recognition.

In the second scenario, the partial withdrawal of recognition would have an immediate impact on the awarding organisation’s business, unlike the first scenario where we would be removing only ‘unused’ recognition, but both would be less serious than withdrawing recognition in full.

We propose making changes to this section to distinguish more clearly between our power to withdraw recognition in full and our power to withdraw recognition in part. We have included some examples of circumstances which might lead us to decide that partial withdrawal of recognition is appropriate. We have also made minor additional changes to the text.

We have explained that we will always publish a final decision to withdraw any part of an awarding organisation’s recognition.

Question 19
Is the text of this section clear? (yes or no)
Please provide comments if you feel this section is unclear, or there is information missing.

Section D

Recovering our costs

We have amended this section to remove the statement that we would recover our costs only where those costs exceed £10,000. We explained in the 2019 consultation and the 2021 decisions document why we did not think it was appropriate to restrict the circumstances in which we might recover costs. 

We have made other minor changes to update and clarify this section.

Question 20
Is the text of this section clear? (yes or no)
Please provide comments if you feel this section is unclear, or there is information missing.

Appeals to the First Tier Tribunal

This section explains the way in which an awarding organisation can appeal to the First Tier Tribunal when we impose a fine or recover our costs.

We have added a paragraph to this section to make clear that we would not expect an awarding organisation to appeal against a fine, or a costs order, which is made in accordance with a settlement agreement. In these circumstances, we would be likely to ask the tribunal to require the awarding organisation to pay our costs associated with the appeal on the basis that bringing the appeal would be unreasonable. Whether to make that order would be for the Tribunal to determine.

Question 21
Is the text of this section clear? (yes or no)
Please provide comments if you feel this section is unclear, or there is information missing.

Annex A: Consultation responses and your data

Why we collect your personal data

As part of our consultation process, you are not required to provide your name or any personal information that will identify you. However, we are aware that some respondents would like to provide contact information. If you or your organisation are happy to provide personal data, with regard to this consultation, please complete the details below. We would like to hear as many views as possible and ensure that we are reaching as many people as possible. In order for us to monitor this, understand views of different groups and take steps to reach specific groups, we may ask for sensitive data such as ethnicity and disability to understand the reach of this consultation and views of specific groups. You do not have to provide this information and it is entirely optional.

If there is any part of your response that you wish to remain confidential, please indicate at the appropriate point in the survey.

Where you have requested that your response or any part remains confidential, we will not include your details in any published list of respondents, however, we may quote from the response anonymously in order to illustrate the kind of feedback we have received.

Your data

Your personal data:

• will not be sent outside of the UK unless there are appropriate safeguards in place to protect your personal data
• will not be used for any automated decision making
• will be kept secure

We implement appropriate technical and organisational measures in order to protect your personal data against accidental or unlawful destruction, accidental loss or alteration, unauthorised disclosure or access and any other unlawful forms of processing.

Your rights: access, rectification and erasure

As a data subject, you have the legal right to:

• access personal data relating to you
• object to the processing of your personal data
• have all or some of your data deleted or corrected
• prevent your personal data being processed in some circumstances
• ask us to stop using your data, but keep it on record

If you would like to exercise your rights, please contact us using the details below. You can also find out more about Ofqual’s privacy information.

Freedom of Information Act and your response

Please note that information in response to this consultation may be subject to release to the public or other parties in accordance with access to information law, primarily the Freedom of Information Act 2000 (FOIA). We have obligations to disclose information to particular recipients including members of the public in certain circumstances. Your explanation of your reasons for requesting confidentiality for all or part of your response would help us balance requests for disclosure against any obligation of confidentiality. If we receive a request for the information that you have provided in your response to this consultation, we will take full account of your reasons for requesting confidentiality of your response and assess this in accordance with applicable data protection rules. 

Members of the public are entitled to ask for information we hold under the Freedom of Information Act 2000. On such occasions, we will usually anonymise responses, or ask for consent from those who have responded, but please be aware that we cannot guarantee confidentiality.

If you choose ‘no’ in response to the question asking if you would like anything in your response to be kept confidential, we will be able to release the content of your response to the public, but we won’t make your personal name and private contact details publicly available.

How we will use your response

We will use your response to help us shape our policies and regulatory activity. If you provide your personal details, we may contact you in relation to your response. We will analyse all responses and produce reports of consultation responses. In the course of analysis, we will where possible avoid using your name and contact details. We will only process the body of your response, but we are aware that in some cases, this may contain information that could identify you.

Sharing your response

We may share your response, in full, with The Department for Education (DfE) and The Institute for Apprenticeships & Technical Education (IFATE) where the consultation is part of work involving those organisations. We may need to share responses with them to ensure that our approach aligns with the wider process. Where possible, if we share a response, we will not include any personal data (if you have provided any). Where we have received a response to the consultation from an organisation, we will provide the DfE and IFATE with the name of the organisation that has provided the response, although we will consider requests for confidentiality.

Where we share data, we ensure that adequate safeguards are in place to ensure that your rights and freedoms are not affected. 

We use Citizen Space, which is part of Delib Limited, to collect consultation responses and they act as our data processor. You can view Citizen Space’s privacy notice.

Your response will also be shared internally within Ofqual in order to analyse the responses and shape our policies and regulatory activity. We use third party software to produce analysis reports, which may require hosting of data outside the UK, specifically the US. Please note that limited personal information is shared. All personal contact information is removed during this process. Where we transfer any personal data outside the UK, we make sure that appropriate safeguards are in place to ensure that the personal data is protected and kept secure. 

Following the end of the consultation, we will publish an analysis of responses on our website. We will not include personal details in the responses that we publish. 

We may also publish an annex to the analysis listing all organisations that responded but will not include personal names or other contact details.

How long will we keep your personal data?

Unless otherwise stated, Ofqual will keep your personal data (if provided) for a period of 2 years after the consultation closing date.

Our legal basis for processing your personal data

Where you provide personal data for this consultation, we are relying upon the public task basis as set out in Article 6(1)(e) of UK GDPR to process personal data which allows processing of personal data when this is necessary for the performance of our public tasks. We will consult where there is a statutory duty to consult or where there is a legitimate expectation that a process of consultation will take place. Where you provide special category data, we process sensitive personal data such as ethnicity and disability, we rely on Article 9(2)(g) of UK GDPR as processing is necessary for reasons of substantial public interest.

The identity of the data controller and contact details of our Data Protection Officer

This privacy notice is provided by The Office of Qualifications and Examinations Regulation (Ofqual). The relevant data protection regime that applies to our processing is the UK GDPR and Data Protection Act 2018 (‘Data Protection Laws’). We ask that you read this privacy notice carefully as it contains important information about our processing of consultation responses and your rights.

How to contact us

If you have any questions about this privacy notice, how we handle your personal data, or want to exercise any of your rights, please contact our data protection officer at dp.requests@ofqual.gov.uk.

We will respond to any rights that you exercise within a month of receiving your request, unless the request is particularly complex, in which case we will respond within 3 months.

Please note that exceptions apply to some of these rights which we will apply in accordance with the law.

You also have the right to lodge a complaint with the Information Commissioner (ICO) if you think we are not handling your data fairly or in accordance with the law. You can contact the ICO at:

ICO,
Wycliffe House,
Water Lane,
Wilmslow,
Cheshire,
SK9 5AF


Tel: 0303 123 1113