Consultation outcome

Analysis: Supporting compliance and taking regulatory action

Updated 30 October 2025

Background

Ofqual began to update the Taking Regulatory Action (TRA) policy in 2019. Since then there have been major changes in the market, the economy and our approach to regulation. This prompted us to examine the policy again to ensure that it still reflects our intended approach to regulation.

To shape the policy we took the decision to gather stakeholder input in the form of a consultation. The consultation highlighted new text and new sections within the TRA policy and included information about changes to the way we make decisions. While the changes to the way we make decisions had been included for transparency as part of the context, this section did not form part of the consultation.

The consultation sought views on 4 main areas:

• proposals to introduce a route of appeal where we make a determination of non-compliance and where we impose a rebuke
• proposals to change the way we use the Notice of Intention in relation to fines
• a new section of the policy explaining our approach to non-statutory enforcement powers
• different or additional wording on some of the existing sections of the policy, including information about our approach to settlement in fining cases

Summary

The consultation on the revised ‘Supporting compliance and taking regulatory action’ policy ran from 20 February to 15 May 2025, receiving 28 responses from awarding organisations, representative bodies, and an individual.

The proposals policy updated the Taking Regulatory Action policy, incorporating decisions from May 2021 and reflecting our current regulatory approach.

Respondents broadly supported the changes but requested more examples and practical illustrations to clarify how regulatory tools would be applied. They stressed the importance of proportionality, particularly for smaller awarding organisations, and highlighted the need for fairness, impartiality, and independence in enforcement and appeals, including panel composition.

Opinions varied about the publication of regulatory actions; some respondents were concerned about reputational impact while others suggested greater transparency. Respondents also called for safeguards around sharing confidential information.

There was general support for tools such as undertakings, rebukes, and directions, though respondents sought clarity on their use. Questions were raised about how fines and costs would be calculated, including the appropriateness of using turnover as a factor.

Approach to analysis

The consultation published on Ofqual’s website consisted of 21 questions. Respondents were asked to complete questions using the online consultation platform or email responses to Ofqual.

Respondents to this consultation were self-selecting, and therefore the sample of those who chose to participate cannot be considered as representative of any group. Respondents were not required to answer all the questions, but many respondents raised several points in their responses. Some respondents answered a question with comments that did not relate to the question and where this has been the case, their comments have been reported against the question to which the response appears to relate. Some respondents commented on issues unrelated to the consultation.

The responses to the consultation questions set out in this document are presented in the order in which they were asked.

Who responded?

There were 28 responses, of which 2 were emailed. One of the emailed responses provided general comments about sections of the consultation rather than addressing all of the questions in the consultation.  All responses have been considered as part of this analysis.

Official organisational responses	Number of respondents
Awarding organisation	25
Other representative or interest group	1
Other	1
Total	27

There was one personal response.

Twenty-six respondents were based in England and 2 were based in Wales.

Section A: Background

Question 1

Is the information we have added to the ‘Background’ section clear?

Response	Number
Yes	22
No	5

There were 27 responses to this question. The majority of the respondents found the amendments to the background information clear. Four respondents stated that the section was clear and provided additional comments.  A total of 9 respondents provided detailed comments.  

Four respondents expressed concerns regarding the proportionality of the range of regulatory actions we can take, which are summarised in this section. They emphasised the importance of ensuring that all judgements are evidence-based and recommended that this be clearly articulated throughout the document. One respondent proposed revising the text to remove potentially subjective language, such as references to “the attitude and actions of individuals and managers”. Another respondent suggested introducing a mechanism for arbitration in cases where an awarding organisation and Ofqual disagree on whether a condition of recognition has been met. Additionally, one respondent recommended that instances where an awarding organisation self-reports non-compliance should be explicitly referenced in the section outlining the range of regulatory actions.

Three respondents commented on the publication of information about statutory and non-statutory actions. One raised concerns about the potential impact on awarding organisations if insufficient notice is given prior to the publication of information. Another sought clarification on whether decisions not to take regulatory action would also be published. A third respondent cautioned that a broad interpretation of patterns of non-compliance could disproportionately affect awarding organisations, particularly where incidents are unrelated.

Two respondents welcomed the introduction of the ‘case to answer’ test as a useful filtering mechanism. However, they requested illustrative examples of borderline cases to clarify how the test would be applied. They also sought further detail on how Ofqual would determine whether a case was likely to be in the public interest. One respondent suggested including a diagram or summary to illustrate the pathway from initial intervention to formal regulatory action, including the thresholds for the ‘case to answer’ test.

Two respondents wanted to know how the new regulatory principles would be reflected in the Supporting Compliance and Taking Regulatory Action policy, particularly in the following areas:

• supporting the decision about the honesty of an awarding organisation
• whether breaches of principles would be treated as aggravated factors
• how they would influence sanctions or penalties

One respondent sought assurances that confidential information would only be shared with other government departments or third parties where necessary for regulatory purposes. They went on to request transparency about which parties would receive this information.

One respondent requested clarification on which policy would take precedence where an incident related to multiple regulators.

One respondent made comments that were unrelated to the question, including queries about geographical jurisdiction and liability.

Section B: Non-statutory action

Question 2

Is the text about issuing requirements clear?

Response	Number
Yes	21
No	6

There were 27 responses to this question, with 6 of the respondents providing comments. Of these, 2 had indicated that the requirements were clear.  The majority of respondents agreed that the section relating to issuing requirements was clear.

Several respondents suggested further information could be given in the section:  

• to explain the process from informal feedback to setting requirements to statutory regulatory action
• to highlight the difference between requirements, determinations of non-compliance and undertakings
• examples to illustrate where requirements might be used and where there might be a good reason to take more formal enforcement action instead

Another suggested greater consistency in the use of terminology throughout the document, particularly in relation to the terms “making”, “issuing”, and “setting” requirements.

Two respondents questioned whether there was an appropriate statutory basis for Ofqual to issue requirements. Another was concerned that there should be safeguards to prevent Ofqual setting unrealistic or unworkable timeframes in relation to requirements. One respondent queried whether Ofqual intended to issue requirements under the new regulatory principles introduced into the General Conditions of Recognition (GCR).

One respondent provided comments that were not directly related to the question.

Question 3

Is the text about restraining results clear?

Response	Number
Yes	19
No	8

There were 27 responses to this question, with 11 comments. The respondents providing comments included 3 who had indicated that the section in relation to restraining results was clear. The majority of the respondents agreed that the text about restraining results was clear.

The majority of the respondents who made comments highlighted the potential operational and reputational impact of a decision to restrain results and argued there should be a route to challenge or review that decision.

Respondents also suggested that further information should be included in the policy:

• explaining the process of engagement before setting these requirements and the safeguards that would be in place to ensure any decision to restrain results would be fair and proportionate
• explaining how restraining results would apply to assessments that generate immediate outcomes, such as knowledge tests used in apprenticeship programmes
• giving examples of the types of circumstances or evidence that might lead Ofqual to restrain the issue of results and the actions an awarding organisation could take to avoid that outcome

There was one comment on the impact of restraining results in different countries and territories and another respondent made a comment regarding geographical jurisdiction and liability, which did not relate directly to the question.

Question 4

Is the text about determinations of non-compliance clear?

Response	Number
Yes	23
No	4

There were 27 responses to this question with 10 comments. The respondents providing comments included 6 who had indicated that the text about determinations of non-compliance was clear. The majority of respondents agreed that the text was clear.

Most of the comments were about the retention of records in relation to determinations, including the duration of retention and the level of detail we would retain.  Specifically:

• that indefinite retention of non-compliance determinations could potentially influence future regulatory or enforcement decisions
• whether determinations where no sanctions were imposed would be subject to review

Four respondents raised concerns about the impartiality of having one person determine whether a breach had occurred. They suggested that a panel-based approach may offer greater transparency and fairness in decision-making.

Three respondents suggested that Ofqual could include more information about how determinations would be made, including the burden and standard of proof, as well as more detailed information about the criteria which might lead to the publication of non-compliance findings.

Question 5

Do you agree with our proposals in respect of appeals for determinations of non-compliance?

Response	Number
Yes	22
No	5

There were 27 responses to this question including 10 comments, 2 of which were not directly related to the question. The majority of the respondents agreed with the proposals.

The comments included a suggestion that as well as the appeal Ofqual could include a peer review or internal audit of determinations, to provide a degree of oversight and reassurance.

Two respondents expressed concern that awarding organisations may be disadvantaged in appeals if they do not have access to all the evidence gathered by Ofqual. One respondent sought clarification on whether an alternative route of appeal would be available if a subsequent, potentially more serious, regulatory action were taken following an appeal. Another respondent proposed that the policy should acknowledge situations where a genuine misunderstanding has occurred, and that such cases should be resolved without publishing the appeal outcome.

Additional suggestions included:

• publishing statistical data on appeals to support transparency
• clarifying the meaning of “good faith” in the context of bringing an appeal
• ensuring that stakeholders are consulted on any future changes to the appeals process

Two respondents emphasised the importance of ensuring that the Enforcement Panel is independent from the original decision-making process. One of these respondents also asked how Ofqual would ensure objectivity and consistency in appeal outcomes.

Three respondents requested further clarity on the governance arrangements and safeguards in place to ensure fair adjudication of appeals. They also sought information on how the outcome of an appeal might affect the ongoing regulatory relationship between Ofqual and the awarding organisation.

Question 6

Do you have any comments on the draft appeal rules?

Response	Number
Yes	12
No	15

There were 27 responses to this question. Of the 12 respondents indicating that they had comments about the draft appeal rules, only 9 left a comment.

A number of respondents requested that several areas needed clarification, including:

• six respondents requested clear timelines, as well as criteria for initiating and managing appeals
• one respondent questioned the costs of the appeals process
• three respondents wanted assurances about the independence and expertise of the Enforcement Panel
• others questioned why the regulated party should have to set out the summary of the factual background on which the determination was made

One respondent proposed expanding the grounds for appeal to include issues such as misinterpretation or the emergence of new evidence. They also suggested that the appeals process should allow for the possibility of resolving the matter through agreement between Ofqual and the awarding organisation before a final determination is made.

One respondent suggested that every determination of non-compliance be accompanied by a clear statement of reasons to support transparency and understanding of the decision.

Question 7

Is the text of this section (accepting an undertaking) clear?

Response	Number
Yes	25
No	2

There were 27 responses to this question, including 6 comments. Only 2 of the respondents stated that the text in the ‘accepting an undertaking’ section was unclear.

Four respondents were concerned about when Ofqual might publish an undertaking.  Three respondents suggested there may be circumstances where publishing an undertaking may be detrimental to public confidence or otherwise inappropriate due to the sensitivity of an issue.

One respondent asked for clarification about how compliance with an undertaking is monitored, as well as the consequences of failing to comply and 2 suggested that additional guidance was needed on what influences the decision to accept an undertaking rather than issuing a direction.

One respondent noted the potential increased burden if an awarding organisation had to engage a third party organisation to support an action plan. Others were concerned about the potential use of undertakings in response to risks, rather than actual or potential non-compliance.

Question 8

Is the text about the rebuke clear?

Response	Number
Yes	15
No	12
Not answered	1

There were 28 responses to this question, one of which was emailed. The emailed response requested clarification about how a rebuke differed from recording a breach and requested additional guidance when the non-statutory action would be used.

Question 9

Do you agree with our proposals in respect of appeals (for the rebuke)?

Response	Number
Yes	18
No	8

There were 26 responses to this question.

Question 10

If you think this section (rebuke) is unclear, there is information missing, or you would like to explain your answer to Question 8 or 9, please provide comments.

There were 18 responses to this question, including one emailed response. The majority of the respondents agreed with the proposals relating to rebukes and the associated appeals process. Two respondents questioned the use of the term “rebuke”, one describing it as outdated and the other noted that the term may imply a reprimand, which it perceived to be inconsistent with Ofqual’s regulatory role.

Most respondents who made comments suggested that Ofqual should give more information about the types of cases in which a rebuke may be issued rather than recording a determination of non-compliance. Respondents also called for greater clarity about how decisions were made and how consistency would be maintained across cases.

Four respondents, including one representative or interest group, expressed concern about the concentration of decision-making authority in a senior member of Ofqual’s staff. They requested more information about internal controls and how consistency would be maintained. One respondent asked for clarification on who, other than the Chief Regulator, might issue a rebuke.

Respondents also asked for further information on when the intention to issue a rebuke would be communicated to the awarding organisation, how a rebuke would be recorded and used in future compliance assessments and where it would be published.

Five respondents, including one representative or interest group, raised concerns about the independence of the Enforcement Panel when it considered appeals. They emphasised the need for a clear separation between those involved in investigating a case and those responsible for determining or reviewing its outcome. Two respondents also requested further detail on how objectivity and consistency in appeal outcomes would be assured.

Three respondents, including a representative or interest group, requested that Ofqual adhere to clear timelines for responding to appeals, similar to those required of awarding organisations. One respondent raised concerns about the potential consequences of unsuccessful appeals and wanted reassurances that any escalation in penalties would only occur in exceptional circumstances.

Question 11

Is the text of this section (centre concern notices) clear?

Response	Number
Yes	23
No	3

There were 27 responses to this question, although one respondent made a comment without giving a yes or no response. The majority of the respondents agreed that the text in relation to centre concern notices was clear. There were 8 comments, including 4 comments from respondents who had indicated that the text relating to centre concern notices was clear.

The comments covered 3 general themes:

• questioning whether it was necessary to include the section in the policy
• suggesting that Ofqual could usefully provide more information about what might lead to issuing such a notice and what an awarding organisation might need to do in response to the notice
• seeking more information about the safeguards Ofqual would put in place to ensure fairness for centres

Additional comments related to:

• whether there would be a consultation before finalising any annex relating to Centre Concern Notices
• requesting clarification about the difference between a portal notification and notices about centres
• whether the issuance of a Centre Concern Notice would require awarding organisations to take specific actions beyond conducting an investigation
• raising concerns about the timeliness of issuing Centre Concern Notices, emphasising the importance of ensuring that such notices are both valid and reliable at the point of issue

Section C: Statutory action

Question 12

Is the text of this section (imposing conditions of recognition) clear?

Response	Number
Yes	23
No	4

There were 27 responses to this question. The majority of the respondents agreed that the text in relation to imposing conditions of recognition was clear. There were 6 comments.

The comments concerned:

• the way in which Ofqual would engage with awarding organisations to avoid the need for special conditions and to ensure fairness and proportionality when imposing special conditions
• the need for further information about publication, including when awarding organisations would be notified and for clarity as to whether special conditions imposed at recognition would be published
• the need for a summary of the monitoring and escalation process

There were specific requests for:

• an indicative timeframe for reviewing and potentially lifting special conditions
• the section to be more explicit about the process for making representations

Question 13

Is the text of this section (entry and inspection conditions) clear?

Response	Number
Yes	26
No	1

There were 27 responses to this question. The majority of respondents agreed that the text within the ‘statutory action’ subsection was clear. There were 8 comments.

Five respondents, including one representative or interest group, raised concerns about the practical challenges posed by increased hybrid working arrangements. Specifically, they highlighted potential difficulties in gaining access to premises and obtaining relevant documentation. One respondent asked whether Ofqual intends to establish a dedicated inspection team and sought further detail on how such a team would operate in practice.

Two respondents focused on the rights of the inspected party and the procedural safeguards that should be in place. One suggested that powers of entry should be limited to exceptional circumstances or exercised only with prior approval from the Enforcement Committee. Two respondents requested further clarification and examples for the following areas:

• when it is appropriate to publish a notice of entry
• what would be published and under what circumstances

Question 14

Is the text of this section (accreditation requirements) clear?

Response	Number
Yes	23
No	4

There were 27 responses to this question, which included 6 comments. The majority of respondents agreed that the section on accreditation requirements was clear. 

The majority of the comments suggested we might include clarification and examples in relation to:

• how changes in accreditation requirements will be communicated
• under what circumstances would accreditation details be published
• when confidential information may be shared with third parties

One respondent requested definitions, or a glossary of key terms used within the document, such as: accredited qualification level conditions and technical evaluation review.

One respondent made a comment about geographical jurisdiction, which did not relate directly to the question.

Question 15

Is the text of this section (giving a direction) clear?

Response	Number
Yes	24
No	3

There were 27 responses to this question, which included 8 comments. The majority of respondents agreed that the section on giving a direction was clear.

Three respondents were concerned about the short period for representations.  One noted that a reduced timeframe may prevent awarding organisations from providing meaningful input. Another highlighted the potential difficulty for smaller organisations if key staff were unavailable, such as due to illness. One respondent recommended that the term “shortened period” be clearly defined, along with the circumstances under which it would apply.

One respondent reiterated concerns about the sharing of confidential information, requesting assurances that such information would only be disclosed to government departments or third parties where necessary for Ofqual’s regulatory duties. Another respondent asked for clarification on the timeframe and method by which information would be shared with other regulators or relevant bodies.

Two respondents sought clarity on the criteria used to determine whether a direction would still be issued if the awarding organisation agreed with Ofqual’s analysis. Both also requested examples to illustrate how such decisions are made in practice.

One respondent suggested that the policy should explicitly state that awarding organisations have the right to make representations prior to receiving formal notice of Ofqual’s intention to issue a direction.

One respondent made a comment about geographical jurisdiction, which did not relate directly to the question.

Question 16

Do you agree with our proposals in respect of (changes to how we use) the notice of intention (to impose a fine)?

Response	Number
Yes	24
No	3

There were 27 responses to this question, which included 13 comments. The majority of the respondents agreed with the proposals in respect of the Notice of Intention to impose a fine.

Nine respondents, including one representative body, made comments which expanded on their agreement with the proposals.

Some comments identified advantages of allowing for a penalty range in the notice rather than a fixed amount, while others cautioned that this could introduce confusion or delay, which may be contrary to the consultation’s stated aim of improving clarity and efficiency.

Three respondents suggested that Ofqual could include more information about the starting point(s) for the setting of a fine, how proportionality would be ensured and what factors might lead to a reduction in the level of the proposed fine.

Those respondents who commented on the proposal not to always to publish the notice of intention suggested including more information about how the decision whether or not to publish would be made as well as assurances that awarding organisations would be able to review the statement of case before a notice was issued.

Question 17

Is the text of this section (imposing a fine (in contested cases)) clear?

Response	Number
Yes	21
No	6

There were 27 responses to this question and there were 7 comments. The majority of the respondents agreed that the section on imposing a fine was clear.

Most of the comments requested further detail on how fines would be calculated, with several referencing models used by other regulators, such as the Financial Conduct Authority.

Two respondents sought confirmation that awarding organisations would have the opportunity to submit mitigating factors before a fine was formally imposed or published.

Two respondents raised concerns about the role of prior regulatory breaches in determining the level of a fine. They requested clarification on how frequently past breaches would be considered and whether the nature of the breach, such as whether it was deliberate or reckless, would carry additional weight.

One respondent was concerned that linking fines to turnover could disproportionately disadvantage those awarding organisations that spend large sums on delivery of regulated qualifications. This respondent went on to pose several detailed questions, including:

• what constitutes co-operation during an investigation
• whether the standard of proof for imposing fines is based on civil or criminal thresholds
• whether written representations would be shared with the Enforcement Panel

Question 18

Is the text of this section (settlement (in fining cases)) clear?

Response	Number
Yes	23
No	4

There were 27 responses to this question, one of which was emailed. There were 8 comments. The majority of the respondents agreed with the text set out in the section on settlement in fining cases.

Two respondents commented positively on the clarity of the text and did not raise further concerns.

Six respondents raised questions or concerns about the costs associated with the settlement process. Key areas included:

• process clarity: Two respondents suggested Ofqual sets out a clear and structured process for entering into settlement discussions, including timelines and procedural steps
• cost calculation and communication: Two respondents asked for further detail on how enforcement costs would be calculated and communicated, particularly in cases where delays may be outside the control of the awarding organisation
• impact on future enforcement: One respondent requested information on how entering into a settlement might affect future enforcement decisions or regulatory relationships
• discount levels: One respondent asked for an indication of the likely level of discount available at different stages of the settlement process

One respondent sought clarification on who would be responsible for ratifying the settlement agreement and what criteria would be used to determine whether a notice of intention should be published in cases resolved through settlement.

Question 19

Is the text of this section (withdrawing recognition) clear?

Response	Number
Yes	24
No	3

There were 27 responses to this question. There were 5 comments. The majority of the respondents agreed that the section on withdrawing recognition was clear.

One respondent specifically noted that the distinction between full and partial withdrawal of recognition was clearly explained. However, another respondent found the wording of the section to be complicated.

One respondent requested additional information about the transitional arrangements that would be put in place for learners in the event that recognition is withdrawn.

One respondent sought clarification on the review process, including:

• whether the review would be conducted by one individual or a panel
• the source or composition of the panel or representatives involved in the review

One respondent asked whether details of unsuccessful negotiations would be made public or whether such information would be restricted to the enforcement panel or other decision-makers.

Section D: Recovering the costs of enforcement action

Question 20

Is the text of this section clear?

Response	Number
Yes	24
No	3

There were 27 responses to this question, including 6 comments. The majority of respondents agreed that the section on recovering costs was clear, with 3 respondents explicitly stating this in their feedback.

One respondent raised concerns about the potential challenges of attaching costs to a direction when the window for representation or appeal is limited. They noted that a short timeframe may restrict the ability of awarding organisations to respond meaningfully, particularly in complex cases.

Two respondents requested further information on how proportionality would be assessed in the recovery of costs and the imposition of fines. They emphasised that awarding organisations vary significantly in size and capacity, and that safeguards should be in place to ensure that cost recovery does not disproportionately impact smaller organisations.

Question 21

Is the text of this section clear?

Response	Number
Yes	27
No	0

There were 27 responses to this question about appeals to the first-tier tribunal, including 2 comments seeking clarification. All the respondents agreed that the section relating to appeals to the first-tier tribunal was clear.

One respondent requested additional information on the procedural aspects of appeals, specifically:

• timelines involved
• documentation expected from the appellant
• how urgent appeals would be managed

Another respondent sought clarification on what constitutes a settlement agreement within the context of the appeals process. They also requested examples of scenarios in which an appeal request would be upheld or denied.

Annex A: List of organisational respondents

The organisations that submitted a non-confidential response to the consultation are listed below:

ACCA

AQA Education

Associated Board of the Royal Schools of Music

BCS, The Chartered Institute for IT

Cambridge English

Chartered Management Institute

CICM

CILEX

City & Guilds

CPCAB

DNA Awarding

Education for Industry Awards

Federation of Awarding Bodies

ICM

International Baccalaureate

LIBF/Walbrook

NCFE

NOCN

Pearson Education

RLSS UK Qualifications

UAL Awarding Body

VTCT Skills

WJEC-CBAC