Ofqual’s enforcement powers
451.Ofqual has the ability to safeguard standards through the imposition of recognition and accreditation criteria (the “hurdle” that awarding bodies must initially clear). It may then impose general and specific conditions to ensure continued compliance with these requirements. Underpinning the conditions are the enforcement powers conferred by the Act: the power to direct compliance with a condition and ultimately a power to withdraw recognition for breach of a condition.
Section 151: Power to give directions
452.This section confers power on Ofqual to direct a recognised body in order to secure compliance with a condition imposed on its recognition. There are however limits on the circumstances in which this power may be exercised. Subsection (1) specifies the circumstances in which a direction may be made. These are that the recognised body has not complied (or is likely to fail to comply) with a condition, and that this would or would be likely to prejudice either the proper award or authentication of a qualification or someone who might reasonably be expected to seek to obtain such a qualification. In these circumstances, Ofqual may give a formal direction to the awarding body. The direction may specify steps the body must or must not take.
453.An example of when a direction might be given is where an awarding body had failed to comply with a condition requiring those awarding bodies offering a specified type of qualification to take a particular approach to setting and maintaining standards, and to seek to work together with other such awarding bodies to ensure consistency of standards between them. In such cases, Ofqual would be able to direct the awarding body to comply with the condition, if it considered the failure would compromise the comparability of standards between similar qualifications offered by different awarding bodies and in this way prejudice the proper award of the qualification or someone seeking to obtain the qualification.
454.Subsections (3) to (5) set out the steps that Ofqual must take before giving or revising a direction, including giving notice of its intention to do so and taking account of representations from the recognised body. The length of the notice period is not specified, and could vary depending on the urgency of the need to address the non-compliance. An awarding body is required to comply with the direction. Subsection (7) sets out the means by which Ofqual may enforce its directions through the courts.
455.The QCA currently has a similar power, but without the explicit requirements over process set out in subsections (3) to (5).
Section 152: Power to withdraw recognition
456.This section confers a power on Ofqual to withdraw recognition in respect of some or all of the qualifications in respect of which a body is recognised, if the body has breached a condition of recognition. The power may be exercised only if the recognised body has actually failed to comply with a condition and if this failure prejudices or would be likely to prejudice either the proper award or authentication of a qualification or someone who might reasonably be expected to seek to obtain such a qualification.
457.Subsections (3) to (9) set out the steps that Ofqual must take before withdrawing recognition, including giving notice of its intentions, taking account of representations from the awarding body, and arranging for the decision to be reviewed.
458.If it withdraws a recognition, Ofqual may make saving or transitional provision to deal with the impact of the withdrawal. For example, it may be appropriate to provide for the qualification not to be recognised other than to the extent that it is taken by those who began studying for the qualification before the decision to withdraw recognition was made. In deciding whether to make such provision, Ofqual will need to comply with its general duties, including the need to have regard to the reasonable requirements of relevant learners.
459.The power for the QCA to withdraw accreditation or recognition is currently implicit in the Education Act 1997 as amended by the Education and Skills Act 2008.
Section 153: Qualifications regulatory framework
460.This section requires Ofqual to publish:
a statement on how it will perform its monitoring and enforcement functions (including its functions in relation to the setting of conditions), and
guidance to recognised bodies in relation to the award and authentication of qualifications.
461.Together these are known as the qualifications regulatory framework. Ofqual must consult on, and may revise, the framework.
462.Subsections (3) and (4) set out in more detail what the guidance must include. In particular, it must include guidance which helps determine whether or not particular behaviour complies with the general conditions of recognition. Recognised bodies are obliged to have regard to the guidance given by Ofqual when they award or authenticate qualifications in respect of which they are recognised.
