Consultation outcome

Decisions: Supporting compliance and taking regulatory action

Updated 30 October 2025

Introduction

Ofqual consulted between 20 February and 15 May 2025 on proposed changes to our policy ‘Taking Regulatory Action’ which was last revised in 2012. This consultation built on changes we first proposed in 2019 and decisions we made in 2020, shortly before the COVID-19 pandemic, which we published in May 2021.

This recent consultation included a draft version of the revised policy and sought views both on the way the draft policy implemented our earlier decisions and on some further proposals which we outlined in the consultation. We also explained some changes we were making to our internal governance, which provided the context for some of our proposals.

We received 28 responses to the consultation. Overall, the majority of respondents found the draft revised policy to be clear in the way it explains how we might use the regulatory powers it describes. Where we proposed additional changes to the policy, the majority of respondents both agreed with the proposals and found the relevant sections of the draft policy to be clear. Several respondents also made additional comments, suggesting ways in which they considered the information in the policy could be further improved.

We have produced a separate analysis document which provides more information about the responses and which accompanies the decisions we set out below.

Summary of decisions

There was broad support for our proposals and we have decided to adopt the revised policy on which we consulted. We have made a number of minor edits to improve the clarity of the policy alongside some more notable changes in response to the feedback we received. The substantive changes we have made are set out in this document.

This decisions document explains:

1. a. our final decisions to implement the 2 new proposals in the consultation:

   1. i. creating an appeal route for determinations of non-compliance and the imposition of a rebuke

   2. ii. changing the way we use the Notice of Intention in fining cases

2. b. the more significant changes we have decided to make to the policy, informed by the responses we received:

   1. i. simplifying the information about when we might publish information about regulatory action and about sharing information with other regulators and third parties

   2. ii. removing the section on notices about centres

3. c. some of the main themes from the feedback and our reasons for deciding not to make further changes to the policy in response to those themes

We have published the revised policy, which is now titled ‘Supporting Compliance and Taking Regulatory Action’ LINK. The policy has immediate effect.

Detailed decisions

The new proposals

The majority of the changes we proposed to make to the policy reflected the decisions we published in May 2021, which followed the public consultation in 2019. However, there were 2 areas in which we made new proposals:

1. a. putting in place arrangements for an awarding organisation to appeal to Ofqual’s Enforcement Panel where it disagrees with a decision to record a determination of non-compliance or to issue a rebuke

2. b. to alter our approach to the Notice of Intention in a fining case:

   1. i. to publish the notice only where the decision maker considers publication appropriate,

   2. ii. to allow that the notice might be issued by a Legal Director instead of the final decision maker

   3. iii. to allow that the notice might explain a penalty range rather than a specific sum

We have decided to implement these proposals.

Appeals

The majority of respondents agreed with our proposals in respect of appeals. We invited comments about the proposals and about the draft procedural rules for appeals, which forms an annex to the policy. A minority of respondents made comments, from which there were 3 themes:

a. suggesting the independence of the Enforcement Panel might be reinforced by the addition of members who are entirely independent of Ofqual

b. suggesting the procedural rules favoured Ofqual at the expense of awarding organisations

c. questioning the provision for a more severe enforcement outcome to be imposed at the appeal stage.

Having carefully considered the consultation responses, we do not think it is necessary to make any changes to the arrangements we proposed to put in place in relation to appeals. In particular:

a. The Enforcement Panel is a committee of Ofqual’s Board and (other than exceptionally) must include at least one non-executive board member who is also a member of our Strategic Enforcement Committee (which has oversight of all enforcement activity). In practice, the Enforcement Panel almost always comprises a majority of non-executive board members and we do not see any reason for this to change when the panel is convened to determine appeals. Given it is the role of the non-executive board to hold the Executive to account, the Enforcement Panel is well placed to consider appeals against decisions made by senior members of staff. Against that background, we do not think it is necessary or proportionate to look to appoint additional decision-makers, as some respondents suggested. Ofqual’s approach to this type of decision is similar to that of other regulators.

b. We have determined that the proposed Appeal Rules strike the right balance between allowing an appeal route for awarding organisations that disagree with our decisions and ensuring appeals are brought only where there is a serious dispute. We think the balance is proportionate given the nature of the decisions that can be appealed using this route. In practice, although the awarding organisation will need to set out the background information about the decision in its application for an appeal, in most cases it will be possible to take this from existing information – for example records created by Ofqual and the awarding organisation in the Portal – rather than creating wholly new information. Drawing the information together in the application will assist the Enforcement Panel in its determination of the appeal and help to make the process more efficient.

c. We do not think it is necessary explicitly to restrict the Enforcement Panel’s ability to impose a more severe sanction after an appeal to exceptional cases, as some respondents suggested. We explained in the consultation that we do not expect the Enforcement Panel to exercise this power often, and it will do so only where it considers the earlier decision to impose the lesser sanction was wrong and a more severe outcome is both necessary and proportionate. Where the Enforcement Panel is contemplating changing the outcome, the awarding organisation will have the opportunity to make representations as to why that is inappropriate in the particular case, and where the escalation leads to the imposition of a fine, the awarding organisation would have the option to appeal that fine to the First-Tier Tribunal. We explained in the consultation that giving the Enforcement Panel this ability echoes the powers the First-Tier Tribunal has when it is considering an appeal against a fine imposed by Ofqual, to substitute any outcome Ofqual could have imposed in the case.

Notice of Intention

Most respondents agreed with our proposals to change the way we use the Notice of Intention in fining cases, and we have decided to adopt the greater flexibility we proposed in the new policy. Making this change will allow us to streamline our processes, particularly for cases which are concluded by agreement with the awarding organisation (settlement), which will improve our capacity to take action in the interests of students and other users of qualifications. In particular, rather than publishing a Notice of Intention and final decision, as now, with a delay between the two, we will in future be able to decide that only the final decision needs to be published.

As well as the changes to the policy, we will make changes to our governance arrangements to implement our decisions to allow some settlement decisions to be agreed by a single member of our Strategic Enforcement Committee; to allow the Notice of Intention to be issued by a director in our Legal team in some cases; and to provide that the notice might include a range for the proposed fine, rather than a specific amount. We explained in the consultation that these changes will help to streamline our processes and reduce burden for awarding organisations, by allowing us to position the Notice of Intention as final stage of the enforcement casework process, when the awarding organisation has the opportunity make representations on the case against it, rather than asking the awarding organisation to do this twice – first in response to a statement of case and then in response to the notice. We agree with some of the comments, which suggested the new arrangements might not be appropriate in every case. The new arrangements do not prevent us taking a more staged approach in an appropriate case. In practice, we will decide on a case-by-case basis who issues the notice, whether it includes a specific fining amount or a range and whether or not it is published.

Changes to the content of the policy

The consultation asked 16 questions about the clarity of the proposed revised policy and the majority of respondents agreed the proposed wording of the policy was clear. We have therefore decided to implement the policy without making substantial further changes to it.

For the published version of the policy, we have made minor changes to some of the wording  and 2 further changes, in relation to how we explain our approach to publication and sharing information with other regulators and government bodies, and in relation to notices about centres. These are explained below.

Publication and information sharing

A number of the comments respondents made concerned the clarity of the information we included in the draft policy about the publication of regulatory action and our approach to sharing information with other regulators and government bodies. Other comments expressed concern about our explanation of the fact that we might publish or share information about both statutory and non-statutory action and suggested that safeguards should be set out in the policy.

To reduce repetition within the policy and make things clearer, we have created a new sub-section: ‘Publication and Sharing Information’ in the opening ‘Background’ section of the policy. In this section we explain that our approach to publication of non-statutory regulatory action will depend on the facts of the case, although we will always publish a rebuke and usually publish an undertaking. Different publication arrangements apply where we take statutory action and these continue to be described in the relevant sections of the policy.

The sub-section also explains that we may share information with other regulators and government agencies where we consider it appropriate to do so. This may be where we have taken action (which may be statutory or non-statutory) but is not limited to those circumstances. In practice, we carefully consider in each instance what information we should share and when we should share it. We only share information where there is a proper legal basis and we are satisfied it is appropriate to do so. However, it is legitimate for us to share information where we judge there are good reasons to do so, and we do not agree that we should set any overarching restrictions on our ability to do so in the policy, as some respondents suggested.

We have, however, decided to make clear in the policy that where we issue a rebuke, as well as delaying publication of the rebuke until after the time for any appeal has passed or the appeal has been determined, as we explained in the consultation, we will similarly delay sharing the rebuke with other regulators or government agencies. This does not mean we will necessarily refrain from sharing information about the case generally, just that we will not disclose the fact that we have issued a rebuke until the time for an appeal has passed, or any appeal has been determined.

Notices about Centres

The consultation version of the policy included general information about the considerations for awarding organisations should Ofqual issue a notice explaining that it had become aware of particular concerns at a centre^{[footnote 1]}. This reflected the decision we took in 2021, that we would look to develop an approach to centre notices, which would be published as an annex to the policy.

We have now decided that it is not necessary to include information about this in the policy. We continue to think there might be times when it would be useful for Ofqual to notify awarding organisations about concerns with a particular centre, and that the reasons we gave for this in the 2019 consultation remain valid. However, we do not think it is necessary to include information about this in the ‘Supporting compliance and taking regulatory action’ policy. We will instead publish information about our approach separately, if we develop such an approach.

Themes from the feedback

Although most respondents agreed with our proposals and thought the way we set out the information in the revised policy was clear, a number of observations and suggestions were made by respondents. We have read all of the responses, some of which concerned issues which were beyond the scope of the consultation, and have considered carefully whether we should make any further changes. We have made revisions to the text which reflect some of the comments received and have explained some, although not all, of those changes in this document. It is not necessary and would not be proportionate to set out responses to each point that was made, explaining why we did not think further change was required, but we have identified 4 main themes from the feedback and set out the primary reasons we have decided not to make further changes in line with those suggestions.

Examples

The clearest theme from the responses was the suggestion that the policy could usefully include further information about and examples of the circumstances in which Ofqual might take particular actions. This was particularly the case in relation to the rebuke but extended to all the enforcement actions we describe in the policy.

We recognise that awarding organisations will value any information Ofqual can provide about the circumstances in which particular enforcement tools might be used. However, the varied nature and broad number of factors that are relevant to the decision about which tool should be used in relation to a particular event or incident means we do not think we can give useful example scenarios which go beyond the information currently in the policy. This is because any such scenarios would necessarily focus on circumstances that are unlikely to arise – for example where there are no competing factors – and where the action we would take would be clear.

Rather, we consider the best examples of the circumstances in which we might use particular enforcement tools are the cases we have published reflecting decisions to accept an undertaking, to impose special conditions, to give a direction, to impose a fine and to withdraw recognition. Although we have not published information about some other measures, for example setting requirements under a condition, we will keep under review whether high level information about the use of these tools could be published in future.

In respect of the rebuke, we have added wording to make clear that we will use a rebuke where we think there is a need to publicise the fact that we are aware of an incident, that it has been managed but that the occurrence of that incident was unacceptable. We do not think there is any more information we can usefully add to the policy this stage, given the nature of the rebuke and the wide variety of cases in which it could be appropriate.

Similarly, while we recognise that some other regulators publish very detailed information about how they determine fines, like several other regulators Ofqual has not developed guidelines of that type. Rather, Ofqual determines fines on a case-by-case basis, taking into account the high-level factors set out in the policy, which explain why some incidents are considered to be more serious than others.

Governance

Some respondents asked for more information about our governance arrangements in relation to the actions described in the policy and the safeguards that would be in place where decisions can be taken by a senior member of Ofqual staff, rather than by the Enforcement Panel.

The policy sets out the procedural safeguards in place for the most serious actions we can take and explains for other actions that it is our practice to allow awarding organisations the opportunity to engage informally, to make representations before we take formal action, or both. However, the purpose of the policy is to describe the tools we have and the broad circumstances in which we will generally consider using those tools. The policy is not intended to describe our internal governance arrangements and we do not think it is appropriate to add further information in that connection. In practice, whenever a decision is made to take enforcement action, we will set out who has made that decision as well as the reasons for the decision itself, along with information about any internal review or appeal which is available.

In addition, we have recently (since the consultation closed) published 2 advice notes, concerning Ofqual’s principles and investigations and decision making. The Investigations and decision making advice note includes information about our internal governance which is relevant to a number of the comments made in response to the consultation. We will keep under review the possibility of publishing further advice notes relevant to our enforcement work.

Case-specific considerations

Some respondents raised detailed concerns about the revised policy’s potential impact on certain awarding organisations or in specific circumstances. This included comments beyond the consultation’s scope and suggestions for clarifying how we might handle particular scenarios – such as when a third-party audit might be required or when certain information might not be published.

We recognise that some of the actions we can take will have a different impact on different types of qualification, on learners in different jurisdictions and on different types of awarding organisation. In some cases, the existence of particular factors might mean it is not appropriate to take a particular action which might otherwise be indicated, perhaps based on action we have taken in similar cases. This is something we will consider on a case-by-case basis, using the evidence we have collected about the particular scenario and informed by any representations from by the awarding organisation.

Taking relevant factors into account, considering each case individually and tailoring the action we take to ensure the impact is proportionate is good regulatory practice, as we describe in the introductory sections of the policy. Where we take action, the issues we have considered and how we have balanced the relevant factors will be set out in our reasons. We do not think it is necessary to make any further changes to the policy which could restrict the actions we might take, because in practice we will use our enforcement powers only where this is targeted, proportionate and we judge it will be effective and in the best interests of learners, those that rely on qualifications, their role in a productive economy and society at large.

Retaining information

A number of respondents expressed concerns about our explanation that we would retain records of determinations of non-compliance for 7 years after we ceased to regulate an awarding organisation. Although set out in response to a question about determinations of non-compliance, some respondents went on to raise broader concerns about the retention and use of information in relation to past enforcement activity generally.

We did not consult on our approach to retaining information about determinations of non-compliance or other enforcement action, which is not a new approach. The information was included in the revised policy for transparency. For completeness, we think it is important that we have records about an awarding organisation’s compliance history throughout the time we regulate it and it is relevant to retain those records where the organisation leaves regulation so they are available to us if any issues arise. Our approach is similar to that of other regulators.

The relevance of incidents of past non-compliance to the way we view future incidents will depend on the circumstances of the case, including the extent of the similarity between the earlier incidents and that under consideration, as well as the passage of time. As we have set out above, the balancing of case-specific factors is a matter for the decision maker in the particular case, which will be reflected in the reasons we give for the decision. It follows that we do not think it is appropriate to include information in the policy that might restrict the way we use an awarding organisation’s compliance history.

Impact analysis

The Supporting compliance and taking regulatory action policy describes actions Ofqual might take in certain circumstances. The changes we have made to the policy allow us to make changes to our processes which, overall, we think will reduce burden for awarding organisations, for example by changing the way we use the Notice of Intention in fining cases. Ofqual evaluates the impact of its proposed action whenever it proposes to take enforcement action and seeks representations from the awarding organisation in relation to that evaluation. That assessment includes analysis of any impact on persons with protected characteristics (equality impact), the impact on the awarding organisation in terms of regulatory burden and the impact on economic growth, in accordance with the growth duty.

In that context, Ofqual does not consider publishing a new version of the policy of itself has any equality impacts nor does it have any impact on economic growth. Similarly, the policy does not create any compliance requirements and, as such, revising the policy does not create any additional regulatory burden for awarding organisations. To the extent that there is an administrative burden from time spent by awarding organisations familiarising themselves with the revised policy, that burden is minimal and proportionate to the legitimate aim of ensuring the published policy is current.

Next steps

The Supporting compliance and taking regulatory action policy does not set any requirements for awarding organisations to meet and the majority of the changes we have made reflect the way we currently approach enforcement activity. This means we do not think there is any need to delay bringing the changes into effect, as we did when we imposed the Principles Condition.

However, we recognise that the introduction of the Chief Regulator’s Rebuke is a new enforcement outcome that is available only now we have published the revised policy. We see the distinction between incidents that came to our attention before the rebuke was available and those that come to our attention following publication of the revised policy.

We do not think this distinction prevents us from issuing a rebuke in relation to an incident reported to us before the rebuke became available, but we agree this – and the date the incident occurred – is a relevant factor for us to consider on a case-by-case basis, along with other relevant factors. We will take these matters into consideration whenever we are considering issuing a rebuke in relation to older cases.

1. A centre is defined in Ofqual’s General Conditions of Recognition as an organisation undertaking the delivery of an assessment (and potentially other activities) to Learners on behalf of an awarding organisation. Centres are typically educational institutions, training providers, or employers. ↩