Guidance

Investigations and decision making advice note (accessible)

Published 4 September 2025

Applies to England

Introduction 

This advice note provides support to awarding organisations to further understand the process through which Ofqual investigates potential non-compliance with Ofqual’s regulatory framework. It highlights some of the key features of the investigation and decision-making process and is not intended to be an exhaustive illustration of Ofqual’s end-to-end process.

This advice note is not statutory guidance and awarding organisations do not need to have regard to this document when deciding how to comply with their Conditions of Recognition.  

Ofqual’s enforcement powers   

Ofqual has powers under the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA) to: 

• impose monetary penalties
• remove an Awarding Organisation’s (AO) recognition
• impose special conditions
• issue a direction requiring the AO to take specific action
• recover the costs associated with imposing a sanction

Ofqual sets out how it will exercise those powers in the Taking Regulatory Action (TRA) policy. This document is intended to explain the process by which Ofqual investigates and makes decisions in relation to potential breaches of an AO’s Conditions of Recognition.

Investigation process 

Ofqual may become aware of potential non-compliance from a range of sources, including direct notification by an AO through the event notification process, a complaint from a member of the public, or following an engagement exercise between Ofqual and an AO (for example a technical evaluation exercise). 

When Ofqual becomes aware of potential non-compliance, it undertakes case work to understand if an AO has breached its Conditions of Recognition and, if so, how serious that breach is. When doing so, Ofqual is committed to following a fair and consistent investigation process. 

Most investigations take the form of desk-based case work following submission of an event notification by an AO. In the most serious cases, such case work may involve a more in-depth and sometimes on-site investigation by Ofqual’s Regulatory Compliance team.   

The purpose of any case work is to establish the facts (what has happened) and whether those facts indicate a potential breach of the AO’s Conditions of Recognition. This includes whether there are any aggravating or mitigating features, for example, whether the AO has been able to remedy the issue, whether any Learners were adversely affected by the incident, whether this was an isolated incident and whether it is likely to reoccur.   

The case to answer test

At the conclusion of any investigation or case work, Ofqual must consider whether there is a realistic prospect of establishing that an AO has breached its Conditions of Recognition. To do this Ofqual applies what is referred to as a case to answer (CTA) test. 

Having undertaken the fact gathering exercise, Ofqual will tell the AO if it considers that it has breached its Conditions of Recognition, identifying any relevant conditions and presenting any evidence on which Ofqual relies. The AO will then have the opportunity to respond to any allegation, presenting any evidence that it wishes to rely on.   

This is generally done through the event notification process, but it could also take the form of direct correspondence or correspondence via the Portal. 

Having considered the evidence, alongside the awarding organisation’s response to the allegation, Ofqual will then apply the CTA test to determine whether regulatory action is required. 

The CTA test requires Ofqual to consider if there is sufficient evidence to prove that there has been a breach of the Conditions, and if so, whether that breach is sufficiently serious that Ofqual needs to take some form of regulatory action.  

If the AO has presented evidence that successfully rebuts the allegation, Ofqual will determine that there is no case to answer, in turn closing the case without recording a breach of the AO’s Conditions of Recognition.  

Determining non-compliance

Where the CTA test is met, Ofqual will consider the appropriate level of regulatory action. 

Where Ofqual is satisfied as to the strength of the evidence and the seriousness of the breach, it can either choose to record the non-compliance against the AO’s regulatory history and take no further action, or it can refer the matter to an Enforcement Panel to consider the imposition of a monetary penalty, or in the most serious cases, withdrawal of recognition.

The vast majority of cases are resolved by recording the breach against the AO’s regulatory history. On some occasions that will not be appropriate because the matter is too serious for Ofqual to take no further action. In those cases, Ofqual will need to refer the matter to the Enforcement Panel to determine whether the AO has breached its Conditions of Recognition and, if so, to consider the appropriate level of regulatory action.

When presenting a case to the Enforcement Panel^{[footnote 1]}, Ofqual^{[footnote 2]} will adduce any relevant evidence to the Panel, either in writing or in person, and the AO will have an opportunity to explain its position. The Enforcement Panel will then have to make a decision as to whether the AO has breached the relevant condition(s) and, if so, what the appropriate regulatory action should be. This ensures a fair hearing process consistent with other regulators.  

Disputed cases

There may be some cases where, following the fact gathering exercise and having considered the AO’s response, a dispute of fact or law arises and it is not possible to decide whether and what regulatory action is necessary until that dispute is resolved. A dispute of fact may arise because the underlying facts of the case are unclear. A dispute as to the law may arise because there is disagreement arising from the parties’ differing interpretation of subjective terms within the Conditions. For example, Ofqual may assert that an AO has not taken ‘all reasonable steps’ to remedy an Adverse Effect, or in the case of the Principles, Ofqual may assert that the conduct of an AO was dishonest or lacking in integrity. Where that dispute cannot be resolved by agreement, Ofqual will consider if there is a case to answer based on the information that it has to date. Where Ofqual is satisfied that there is a realistic prospect of establishing that the AO has breached its Conditions of Recognition, the matter will be referred to an appropriate decision maker to resolve the dispute of fact or law and determine any regulatory action. 

That decision maker would normally be an Enforcement Panel but Ofqual has recently indicated (in its consultation on changes to the TRA policy) that it intends to allow a member of Ofqual’s senior management team to make similar decisions on disputes of fact or law where the proposal is to record non-compliance but take no further action. 

To determine such cases, Ofqual will present its evidence to the relevant decision maker, either in writing or in person, and the AO will have an opportunity to explain its position.  The relevant decision maker will then have to make a decision as to whether the AO has breached the relevant condition(s) and, if so, what the appropriate regulatory action should be. Again this ensures a fair hearing process consistent with other regulators.  

Burden of proof 

The burden of proof is always on Ofqual to establish that an AO has breached its Conditions of Recognition. 

Ofqual must prove any breach to the civil standard – that is to say that it must prove any breach ‘on the balance of probabilities’. 

AOs are required to notify Ofqual when an incident occurs, or is likely to occur, that could have an Adverse Effect. An AO normally does so through completing an ‘event notification’ on the Portal. While there is an option for an AO to offer a declaration of non-compliance, it is not obliged to do so.   

Where an AO offers a declaration of non-compliance, Ofqual will still need to consider whether it can meet its burden of proof in relation to the non-compliance. In some cases Ofqual may, at the end of the fact gathering exercise, suggest that an alternative condition has been breached. In other cases, Ofqual may determine that there has been no breach at all. Every instance of non-compliance will need to be considered and determined in accordance with Ofqual’s decision making process. 

1. The Enforcement Panel shall consist of 2 or more members, but will normally consist of 3 members. Those members are usually Ofqual Board members but may include members of Ofqual’s Executive Team. Further information can be found at - Ofqual Governance Framework. ↩

2. In this context Ofqual refers to the General Qualifications directorate or the Vocational and Technical Qualifications directorate as appropriate. ↩