Consultation outcome

Proposed updates to end-point assessment qualification level guidance

Updated 26 April 2023

Applies to England

Proposals at a glance

Ofqual is seeking views on proposed updates to the End-Point Assessment Qualification Level Guidance. The proposed guidance, if adopted, is intended to help end-point assessment organisations (EPAOs) in their understanding of our regulatory framework and how it applies to end-point assessments (EPAs).

The following updates are proposed to the current EPA Qualification Level Guidance:

• terminology: amended guidance to explain and provide examples of how terms used in our Conditions apply in the context of EPAs
• arrangements with Centres: amended guidance to explain the arrangements EPAOs must have in place with Centres that deliver part of a qualification on an EPAO’s behalf
• publication of a qualification specification: amended and reordered guidance to make it clear that our Conditions require an EPAO to publish a specification for any EPA that they offer
• marking the assessment: amended guidance to explain the different forms that marking can take and clarifies that other approaches apart from numerical marks may constitute marking in this context
• Assessment Plans: new guidance to explain how Assessment Plans interact with Ofqual’s Conditions and the factors an EPAO is likely to need to consider when designing a specific EPA approach in line with the requirements set out in the Assessment Plan
• transitioning between Assessment Plans: new guidance to explain how to manage the transition to updated versions of Assessment Plans while protecting the interests of apprentices
• Third Parties: new guidance to explain how Ofqual’s third party Conditions apply where other bodies deliver aspects of an EPA on behalf of an EPAO
• Recognition of Prior Learning (RPL): new guidance to explain how Ofqual’s RPL requirements apply in the context of EPAs.

Where updates have not been proposed to the guidance currently in place, the existing guidance will continue to apply. We recommend that you read the proposed guidance, which is available in full at Annex C alongside this consultation document.

We look forward to hearing your views on the proposed updates to the guidance. The consultation will also provide you with an opportunity to tell us if there are any areas where further guidance would be helpful.

This will be a 12-week consultation, closing on Tuesday 11 October. The final version of the updated guidance will be published in autumn 2022.

Audience

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

• EPAOs and awarding organisations
• Prospective EPAOs
• Representative groups
• Apprentices
• Employers
• Training providers

Consultation arrangements

Duration

This consultation will be open for 12 weeks starting on 19 July 2022 and ending on 11 October 2022 at 23:45.

Respond

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

• complete the online response via the consultation page on our website.
• 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

About Ofqual

Ofqual is the independent qualifications regulator for England. We regulate against 5 statutory objectives, which include the need to secure the standards of qualifications, to promote public confidence in regulated qualifications, and to secure that regulated qualifications are delivered efficiently. We do this by setting rules that awarding organisations must follow and monitoring to make sure they meet these. We take action where appropriate if we discover that our rules are not being met. More detail on Ofqual’s role can be found in Annex B.

Ofqual’s regulatory approach to EPAs

The Institute for Apprenticeships and Technical Education (IfATE) has a statutory duty to secure that evaluations of the quality of apprenticeship assessments are carried out.

IfATE is moving from a system where external quality assurance is delivered by several organisations to one where the quality of apprenticeship assessments is assured by a statutory regulator – either Ofqual or, for integrated higher and degree apprenticeships, the Office for Students (OfS). Where Ofqual is the named regulator for an apprenticeship standard, any organisation that intends to offer end-point assessments against that standard must be an Ofqual-recognised awarding organisation.

Statutory guidance

Ofqual publishes statutory guidance to help awarding organisations understand how to comply with our General Conditions of Recognition and any relevant qualification level or subject level conditions. An Ofqual-regulated EPAO has a legal obligation under the Apprenticeships, Skills, Children and Learning Act 2009 to have regard to this guidance in relation to each EPA that it makes available and must comply with our General Conditions of Recognition.

In the EPA Qualification Level Guidance when we refer to the “Conditions” this means Ofqual’s General Conditions of Recognition (and associated requirements which applies to all the qualifications and organisations we regulate) and our EPA Qualification Level Conditions and Requirements – these are the rules Ofqual has set for apprenticeship end-point assessments. When we refer to awarding organisations, this means EPAOs.

Ofqual’s approach to regulation of EPAs

Ofqual regulates EPAs against the General Conditions and EPA Qualification Level Conditions and Guidance.

In the main, EPAs are regulated in line with the regulation of other qualifications, that is against the General Conditions of Recognition. Ofqual recognises however that there are differences between EPAs and other qualifications that we regulate and as such, have tailored our regulatory approach in some aspects to reflect these differences. When the EPA Qualification Level Conditions were put in place, a small number of General Conditions that were not directly relevant to EPAs were dis-applied and a small number of EPA-specific Qualification Level Conditions, with EPA-specific statutory guidance, explaining how to comply with the Conditions were put in place.

Why is the EPA Qualification Level Guidance being updated?

The EPA Qualification Level Conditions and Guidance have been in place since 2018 and over that time we have gained more insight into EPAOs’ understanding of our regulatory framework. We have learned that there are areas where EPAOs would benefit from further support in understanding and complying with our Conditions.

Ofqual is now looking to provide that further support, through this updated EPA guidance. We are not proposing to change the Conditions or what is required of EPAOs but instead to clarify how to meet our requirements.

The proposed updated guidance addresses the main themes identified in the course of our regulatory activity and monitoring of EPA delivery and aims to:

• help EPAOs understand our Conditions and how to comply with these
• provide some practical examples to demonstrate how the Conditions apply to EPAs
• help EPAOs understand those areas where they have the flexibility to make design decisions within the requirements of the Assessment Plan and the factors to consider when making such decisions

We have done this either by introducing new sections in the guidance or by making changes to the existing wording in the guidance to provide further clarification. Where updates have not been proposed to guidance currently in place, those parts of the existing guidance will remain in place as they are.

Consultation proposals

Full details of the proposed updates to the guidance are at Annex C and described in the following sections. The updated guidance should be read alongside this consultation document.

Terminology – proposed amendment to the existing guidance

Ofqual proposes to amend the note which is included in the introduction to the guidance to explain the terminology that we use and the way in which our regulatory terms apply to EPA delivery. Our intention here is to emphasise the difference between defined and generic terms in the Conditions and the importance of applying these terms correctly.

The proposed guidance explains that Ofqual uses the same terminology in the EPA Qualification Level Conditions as in our General Conditions. This is to ensure that there is a consistent understanding and application of our Conditions across the organisations and qualifications that we regulate. Using different terms between the General Conditions and EPA Qualification Level Conditions, where the meaning is intended to be the same, risks causing confusion. However, Ofqual recognises that there are differences between the way EPAs are delivered compared to other qualifications and that the terms may not seem relevant in the context of EPAs. This has meant that in some instances EPAOs are not fully understanding or applying terms in accordance with our Conditions.

The proposed new wording explains that while most words and phrases we use take their ordinary or generic meaning as set out in Condition J1.1 – 1.7 (Interpretation) some terms are capitalised, which means they have a defined meaning within our framework as set out in Condition J1.8 (Definitions) and EPA 6.4.

Where these terms are used in either the General Conditions or EPA Qualification Level Conditions, the new wording in the guidance explains that they must be interpreted in line with the definition we provide in our rules.

The proposed new wording in the guidance provides examples of these terms and how they apply in the context of EPA delivery.

Question 1:

Do you have any comments on the proposed amendment to the existing guidance on terminology?

Guidance on Condition C2 – Arrangements with Centres – proposed amendment to the existing guidance

Ofqual proposes an amendment to the existing guidance on Condition C2, which relates to the arrangements EPAOs must have in place with Centres that deliver part of a qualification on its behalf. Based on our experience of regulating EPAs, we recognise that it would be helpful to go further in the guidance we provide, to ensure that EPAOs are clear about what constitutes a Centre and circumstances where Condition C2 would not apply.

The existing guidance already covers the definition of a Centre which is a defined term in our rules and means:

An organisation undertaking the delivery of an assessment (and potentially other activities) to Learners on behalf of an EPAO. Centres are typically educational institutions, training providers, or employers.

We were aiming to convey through this definition that the key consideration is whether an organisation is delivering a part of the EPA on behalf of the EPAO and the role it is fulfilling, not what type of organisation it is. To that end we are proposing to amend the guidance in the following areas to:

1. Make clear that within EPA delivery, there are a number of roles that an organisation could be fulfilling, which mean that for the purposes of the General Conditions and EPA Qualification Level Conditions, they are considered to be a Centre. Where this is the case, an EPAO must ensure that it meets the requirements of Condition C2.
2. Explain that although Condition C2 usually refers to when a Centre delivers assessments on behalf of an EPAO, there could be other activities, beyond delivery of the actual assessment, which would mean another organisation is performing the function of a Centre meaning that Condition C2 would apply.
3. Explain circumstances when the definition of a Centre and Condition C2 would not apply, for example, where an assessment takes place on an employer’s premises, but the employer takes no part in the delivery of the assessment

Question 2:

Do you have any comments on the proposed amendment to the existing guidance on Condition C2 (Arrangements with Centres)?

Guidance on Condition E3 – Publication of a qualification specification – proposed amendment to the existing guidance

Ofqual proposes an amendment to and reordering of this section of the existing guidance to make it clear that our Conditions require an EPAO to publish a specification for any EPA that they offer in accordance with Condition E3.1. The specification is an important tool for apprentices and other users as it is intended to provide clear information about the EPAO’s approach to the EPA. We are therefore proposing an amendment to the existing guidance to ensure specifications are as helpful as possible for users.

The proposed amendment to the guidance sets out that:

1. The specification is a document which provides information to users about the EPA. Condition E3.2 sets out minimum requirements which the specification must include.
2. Many items which Condition E3.2 requires to be included in the specification may also be found in the relevant Apprenticeship Standard and Assessment Plan for an EPA.
3. The Assessment Plan sets out the approach that must be followed by all EPAOs offering EPAs for a particular standard. However, the Assessment Plan does not necessarily include all the information, in the necessary level of detail, that a user needs to know about an individual EPAO’s approach. Therefore, the proposed guidance highlights that it is important that the specification provides any additional detail users might need about any variation in the approach taken by the EPAO.
4. An EPAO can decide to provide additional detail to help users understand its own approach to implementing the requirements of the Assessment Plan.
5. Where the Assessment Plan does not include all of the information set out in Condition E3.2, and where this is relevant to the EPA, the EPAO must provide this information in its specification.
6. While an EPAO is required to follow the Assessment Plan, it remains responsible for the delivery of the EPAs it offers, and the information it makes available about these.

Question 3:

Do you have any comments on the proposed amendment to the existing guidance on Condition E3 (Publication of a qualification specification)?

Guidance on Condition H1 – Marking the assessment – proposed amendment to the existing guidance

Ofqual proposes an amendment to the existing guidance to Condition H1. The proposed amendment explains the different forms that marking can take and clarifies that other approaches apart from numerical marks may be appropriate depending on the assessment method and the knowledge, skills and behaviours in scope.

This amended guidance aims to make it clear that ‘marking’ refers not only to assigning a numerical mark to any evidence generated by an apprentice in an assessment. It could also involve the use of assessment criteria, without numerical marks, with an apprentice either being graded on individual criteria, or their grade being a product of their attainment across the criteria.

Question 4:

Do you have any comments on the proposed amendment to the existing guidance on Condition H1 (Marking the assessment)?

Guidance on Condition EPA1 – Compliance with Assessment Plans – new guidance

IfATE approves Assessment Plans. Awarding organisations must comply with any requirements set out by IfATE in an Assessment Plan.

Ofqual proposes new guidance which aims to support EPAOs in understanding how Assessment Plans should be used alongside our Conditions. This is because we want to ensure there is a consistent approach across all EPAOs that we regulate.

EPAOs are required under Condition EPA1.1 to comply with any requirements, and have regard to any guidance, contained in a relevant Assessment Plan. In doing so, they must interpret the Assessment Plan in accordance with any requirements Ofqual set and have regard to any guidance Ofqual has published.

The new guidance sets out:

1. Where EPAOs have the flexibility to take decisions in interpreting Assessment Plans within the parameters of that plan.
2. When they might need to go beyond the requirements of an Assessment Plan to ensure compliance with our Conditions.
3. Other guidance or any other requirements which apply to an Apprenticeship Standard or an Assessment Plan.
4. How to use Assessment Plans to develop EPAs that are also in line with our General Conditions and Qualification Level Conditions.

Flexibility to make decisions

Ofqual has found some inconsistency across different EPAOs where Assessment Plans allow for a level of flexibility in implementation.

The new guidance explains that aspects of some Assessment Plans set absolute requirements, stating that an EPAO must, or must not do something. In such instances these requirements must be met in full. Alternatively, when an Assessment Plan allows flexibility or is silent on certain aspects, the guidance is intended to help EPAOs to understand where and how they can use their discretion to decide on the appropriate approach. Ofqual’s intention here is to clarify to EPAOs that in using their discretion, they must ensure the approach they put in place meets the requirements of the General Conditions and EPA Qualification Level Conditions.

Going beyond the requirements of Assessment Plans

The new guidance explains what steps an EPAO may need to take where an Assessment Plan may not cover everything that an EPAO needs to do to deliver an assessment that is also in line with our General Conditions and EPA Qualification Level Conditions.

For example, many Assessment Plans set out grading criteria which must be used for grading the EPA. The Assessment Plan may not however set out the precise arrangements for EPAOs to ensure that these criteria are understood by Assessors and applied accurately and consistently, which is a requirement in General Condition H1. An EPAO would need to consider whether following the Assessment Plan is sufficient to ensure this, or whether it is necessary to provide additional guidance for Assessors to make sure they understand these requirements in order to also meet General Condition H1.

The new guidance explains that in this instance, an EPAO would be meeting the requirements of the Assessment Plan by following the grading criteria set out there, but by going beyond this and, by providing additional guidance to make sure Assessors understand and can apply the grading criteria, it would be meeting Ofqual’s General Conditions.

Other guidance or requirements which apply to an Apprenticeship Standard or an Assessment Plan

The new guidance also explains how an EPAO should take account of any other additional requirements or guidance in respect of an Apprenticeship Standard or Assessment Plan. It explains that an EPAO should consider what status they have (for example whether they are requirements or guidance), and how it can meet these alongside meeting the requirements of the Assessment Plan and the General Conditions and EPA Qualification Level Conditions.

How to use Assessment Plans to develop EPAs

Ofqual wants to ensure there is a consistent approach taken by all EPAOs particularly where the Assessment Plan allows for flexibility in design decisions and implementation. To facilitate this, the new guidance aims to support EPAOs where they have the option to take design decisions in developing EPAs. It is not intended to prescribe what they do.

For example, in terms of grading criteria we have explained how approaches to developing the criteria that meet the requirement of the Assessment Plan may also meet the General Conditions and EPA Qualification Level Conditions. We have also included detailed guidance on developing assessments and examples of what could be considered in relation to different assessment methods.

Question 5:

Do you have any comments on the proposed new guidance on Condition EPA 1 (Compliance with Assessment Plans)?

Guidance on Condition EPA1 Transitioning between Assessment Plans – new guidance

This new guidance aims to help EPAOs understand what to consider when transitioning between different versions of Assessment Plans.

The new guidance on Condition EPA1.1 aims to help EPAOs understand what they need to consider when an Assessment Plan changes. This is because, where an Assessment Plan changes, the EPAO will need to decide how to manage the transition from one version of the Assessment Plan to another. They will need to consider, for example, at what point apprentices should transfer from one version of the Assessment Plan to the new version, while ensuring that as far as is possible, apprentices are not advantaged or disadvantaged as a result of the EPAO’s approach.

The proposed guidance aims to help EPAOs make these decisions in a consistent way.

In summary, the new guidance explains:

1. Where the List of Assessment Plans is updated, what action is required of EPAOs to ensure they remain compliant with Condition EPA1. This action could include determining that the extent of the change means that consideration should be given to amending the EPA.
2. The point at which Apprentices should transfer from one version of the Assessment Plan to the new version. For example, an EPAO in making this decision should consider, among other aspects, any guidance or requirements set by IfATE and other relevant organisations such as trailblazers, other regulators, or industry or sector bodies.

The new guidance emphasises that in all cases, the EPAO must ensure that in delivering the EPA, it continues to meet the requirements of the General Conditions and EPA Qualification Level Conditions and must also consider whether the EPA listed on the Register remains appropriate.

Question 6:

Do you have any comments on the proposed new guidance on Condition EPA1 (Transitioning between Assessment Plans)?

Guidance on Condition C1 – Arrangements with third parties – new guidance

The new guidance addresses circumstances where an EPAO arranges for a different organisation (the third party) to carry out any part of the development, delivery or award of an EPA on its behalf. It aims to support EPAOs in mitigating any risks that could arise when part of an EPA is delivered by a different organisation.

Under Condition C1, an EPAO must ensure that the arrangements which it establishes with third parties enable it to develop, deliver and award qualifications in a way that complies with its Conditions of Recognition, and that these arrangements can be monitored.

Some Assessment Plans include approaches where an on-programme qualification, delivered by an EPAO or a different organisation, is integrated into the EPA. This could, for example, be where the final unit of the on-programme qualification is taken as part of the EPA, meaning the apprentice completes both the qualification and the EPA at the same time, on completion of this unit. We consider that this type of approach is likely to fall under third party arrangements and is therefore subject to the requirement of Condition C1.

The new guidance is intended to clarify what is required under C1, i.e., that if this approach is taken, it is the EPAO who is recognised to deliver the EPA and who has ultimate responsibility for ensuring all aspects of its EPA meet the General Conditions and EPA Qualification Level Condition requirements. It is incumbent on the EPAO to ensure that its arrangements with third parties delivering part of the end-point assessment enable it to do this.

The new guidance includes information on the benefit of contractual arrangements with third parties that sets out expectations in line with the General Conditions, as well as on the importance of ongoing monitoring to ensure that these expectations are met.

Question 7:

Do you have any comments on the proposed new guidance on Condition C1 (Arrangements with third parties)?

Guidance on Condition E10 – Recognition of prior learning – new guidance

The new guidance explains how Ofqual’s requirements relating to recognition of prior learning in the General Conditions may apply in relation to EPAs. Ofqual’s General Conditions do not require an EPAO to recognise prior learning but do require it to have a policy setting out whether or not it does.

Condition E10.1 requires EPAOs to establish, maintain, publish and comply with a policy which specifies whether or not it will recognise prior learning. The new guidance sets out the type of circumstances where an EPAO may decide to recognise prior learning, for example, where an EPAO has ceased to offer an EPA on which the apprentice is registered. The new guidance also describes the criteria which could be used when making a decision about the appropriateness of recognising prior learning. For example, whether the knowledge, skills and behaviours are transferable from an EPA the apprentice has previously studied to that which they are now studying.

Question 8:

Do you have any comments on the proposed new guidance on Condition E10 (Recognition of prior learning)?

Further views

Ofqual has drafted these proposed amendments to the existing guidance and the new guidance in response to information we have gathered over the time that we have been regulating EPAs. The proposed updates aim to address those areas that we have found would benefit from guidance to better support EPAOs in the delivery of EPAs.

We are keen to understand whether there are any other aspects of Ofqual’s regulatory framework for EPAs where EPAOs consider additional guidance or changes to the existing guidance would be beneficial. While we are not at this stage proposing further updates, any information you provide will help us understand the effectiveness of our framework and to plan any future work.

Question 9:

Are there any other aspects of the existing EPA Conditions and the General Conditions, where guidance on their application would be helpful? Please provide details.

Next steps

The final version of the revised guidance will be published later this year and will come into force at the point that it is published.

Equality impact assessment

Ofqual is a public body, and therefore the public sector equality duty in the Equality Act 2010 applies. We explain in Annex B how this duty interacts with our statutory objectives and other duties. Within this consultation, the impacts on apprentices (positive and negative) have been considered in relation to the proposals, including on those apprentices who share a particular protected characteristic.

The proposed guidance, if adopted, is intended to help EPAOs in their understanding of our regulatory framework and how it applies to EPAs. This will support a consistent approach to the delivery of EPAs which will benefit all apprentices including those with protected characteristics. We have outlined below those aspects of the guidance that we consider could have positive impacts on apprentices with protected characteristics.

New Guidance on Condition EPA1 – Compliance with Assessment Plans

In relation to Assessment Plans, the new guidance explains that EPAOs must interpret an Assessment Plan in accordance with any requirements we set and have regard to any guidance we have published. We consider that this new guidance will have a positive equalities impact. EPAOs would be required to have particular regard to the General Conditions which relate to the need to ensure the validity of assessments, in particular Conditions D1 (fitness for purpose of qualifications), E4 (ensuring an assessment is fit for purpose and can be delivered) and G1 (setting the assessment). Condition E4 states that an awarding organisation must, in designing an assessment, ensure that it permits Reasonable Adjustments to be made, while minimising the need for them.

New Guidance on Condition EPA1 – Transitioning between Assessment Plans

This new guidance describes how EPAOs should manage the transition to updated versions of Assessment Plans while protecting the interests of students. We consider that this will have a positive equalities impact as the guidance makes clear that it will be necessary for EPAOs to consider at what point students should transfer from one version of an Assessment Plan to the other, while ensuring that as far as is possible, they are not advantaged or disadvantaged as a result. An EPAO would be expected to take account of the needs of apprentices, including those with particular protected characteristics, to ensure that they are not disadvantaged as a result of sharing that particular protected characteristic.

We have not identified any negative impacts on apprentices arising from the proposed changes to the guidance. We would welcome views on this however, and if there are equalities impacts that we have not identified, we would like to hear how these might be mitigated.

Question 10:

Are there any potential positive or negative equality impacts that we have not identified arising from our consultation proposals?

Question 11:

If yes, are there any additional steps we could take to mitigate any negative impact resulting from these proposals on persons who share a protected characteristic?

Regulatory impact assessment

Ofqual has considered the regulatory impact of making these updates to the guidance and we have sought to balance the benefit of any changes against any disruption caused.

The proposed guidance, if adopted, is intended to help EPAOs in their understanding of our regulatory framework and how it applies to the delivery of EPAs. We are not changing what is required of EPAOs through our Conditions.

Although the proposed guidance will increase the overall impact of our requirements because EPAOs will need to have regard to additional information, we anticipate the burden of familiarisation with the guidance will be minimal. This is because the additional information could prove time efficient for EPAOs as it is intended to help them understand our Conditions and what they need to do to comply with these. The guidance also contains a number of practical examples that will support EPAOs in their decision making which may mean less time is spent having to contact Ofqual or IfATE for further information and clarification.

We would welcome views on this however, and if there are further regulatory impacts that we have not identified, we would like to hear how these might be mitigated.

Question 12:

Are there any regulatory impacts that we have not identified arising from our proposals? If yes, what are the impacts and are there any additional steps we could take to minimise the regulatory impact of our proposals?

Question 13:

Are there any costs, savings or other benefits associated with our proposals which we have not identified? Please provide estimated figures where possible.

Question 14:

Is there any additional information we should consider when evaluating the costs and benefits of our proposals?

Question 15:

Do you have any comments on the impact of the proposals on innovation by EPAOs?

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 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 we will 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

Annex B – Ofqual’s objectives and duties

The Apprenticeship, Skills, Children and Learning Act 2009

Ofqual has 5 statutory objectives, set out in the Apprenticeship, Skills, Children and Learning Act 2009;

1. 1) The qualification standards objective, which is to secure that the qualifications we regulate:

   1. a) give a reliable indication of knowledge, skills and understanding

   2. b) indicate

      1. i) a consistent level of attainment (including over time) between comparable regulated qualifications

      2. ii) a consistent level of attainment (but not over time) between qualifications we regulate and comparable qualifications (including those awarded outside of the UK) that we do not regulate

1. 2) The assessment standards objective, which is to promote the development and implementation of regulated assessment arrangements which:

   1. a) give a reliable indication of achievement

   2. b) indicate a consistent level of attainment (including over time) between comparable assessments

1. 3) The public confidence objective, which is to promote public confidence in regulated qualifications and regulated assessment arrangements

1. 4) The awareness objective, which is to promote awareness and understanding of:

   1. a) the range of regulated qualifications available

   2. b) the benefits of regulated qualifications to apprentices, employers and institutions within the higher education sector

   3. c) the benefits of recognition to bodies awarding or authenticating qualifications

1. 5) The efficiency objective, which is to secure that regulated qualifications are provided efficiently, and that any relevant sums payable to a body awarding or authenticating a qualification represent value for money.

We must therefore regulate so that qualifications properly differentiate between apprentices who have demonstrated that they have the knowledge, skills and understanding required to attain the qualification and those who have not.

We also have a duty under the Apprenticeship, Skills, Children and Learning Act 2009 to have regard to the reasonable requirements of relevant apprentices, including those with special educational needs and disabilities, of employers and of the higher education sector, and to aspects of government policy when so directed by the Secretary of State.

The Equality Act 2010

As a public body, we are subject to the public sector equality duty. This duty requires us to have due regard to the need to:

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited under the Equality Act 2010

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it

The awarding organisations that design, deliver and award qualifications are required by the Equality Act, among other things, to make reasonable adjustments for disabled people taking their qualifications, except where we have specified that such adjustments should not be made.

When we decide whether such adjustments should not be made, we must have regard to:

(a) the need to minimise the extent to which disabled persons are disadvantaged in attaining the qualification because of their disabilities

(b) the need to secure that the qualification gives a reliable indication of the knowledge, skills and understanding of a person upon whom it is conferred

(c) the need to maintain public confidence in the qualification

We are subject to a number of duties and we must aim to achieve a number of objectives. These different duties and objectives can, sometimes conflict with each other. For example, if we regulate to secure that a qualification gives a reliable indication of a apprentice’s knowledge, skills and understanding, a apprentice who has not been able to demonstrate the required knowledge, skills and/or understanding will not be awarded the qualification.

A person may find it more difficult, or impossible, to demonstrate the required knowledge, skills and/or understanding because they have a protected characteristic. This could put them at a disadvantage relative to others who have been awarded the qualification.

It is not always possible for us to regulate so that qualifications give a reliable indication of knowledge, skills and understanding and advance equality between people who share a protected characteristic and those who do not. We must review all the available evidence and actively consider all the available options before coming to a final, justifiable decision.

Qualifications cannot mitigate inequalities or unfairness in the education system or in society more widely that might affect, for example, apprentices’ preparedness to take the qualification and the assessments within it. While a wide range of factors can have an impact on a apprentice’s ability to achieve a particular assessment, our influence is limited to the qualification design and assessment.

We require awarding bodies to design qualifications that give a reliable indication of the knowledge, skills and understanding of the apprentices that take them. We also require awarding organisations to avoid, where possible, features of a qualification that could, without justification, make a qualification more difficult for a apprentice to achieve because they have a particular protected characteristic. We require awarding organisations to monitor whether any features of their qualifications have this effect.

In setting the overall framework within which awarding organisations will design, assess and award reformed Functional Skills Qualifications (FSQs), we want to understand the possible impacts of the proposals on apprentices who share a protected characteristic.

The protected characteristics under the Equality Act 2010 are:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnerships
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

With respect to the public sector equality duty under section 149 of the Equality Act, we are not required to have due regard to impacts on those who are married or in a civil partnership.