Higher Education Act 2004

2004 c. 8

An Act to make provision about research in the arts and humanities and about complaints by students against institutions providing higher education; to make provision about fees payable by students in higher education; to provide for the appointment of a Director of Fair Access to Higher Education; to make provision about grants and loans to students in higher or further education; to limit the jurisdiction of visitors of institutions providing higher education; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—C1C2C3

Annotations:
Modifications etc. (not altering text)

Part 1Research in Arts and Humanities

F431Arts and Humanities Research Council

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F432Transfer to Council of property etc of Arts and Humanities Research Board

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F433Expenses of Council

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F434Returns, reports etc. by Council to Secretary of State

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F435Pensions

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F436Accounts and records of Council

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F437Northern Ireland: reserved matters

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F438Activities outside United Kingdom

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F439Charter of Council

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10Research in arts and humanities

I1011

The Secretary of State may—

a

carry out or support research in the arts and humanities,

b

disseminate the results of research in the arts and humanities,

c

further the practical application of the results of research in the arts and humanities,

d

establish advisory bodies for the purpose of assisting the Secretary of State in matters connected with research in the arts and humanities, and

e

if the Secretary of State establishes such a body, appoint its members on terms which include the payment of remuneration, allowances or pension benefits to or in respect of them.

I1212

The National Assembly for Wales (in this Act referred to as “the Assembly”) may, in relation to Wales,—

a

carry out or support research in the arts and humanities,

b

disseminate the results of research in the arts and humanities,

c

further the practical application of the results of research in the arts and humanities,

d

establish advisory bodies for the purpose of assisting the Assembly in matters connected with research in the arts and humanities, and

e

if the Assembly establishes such a body, appoint its members on terms which include the payment of remuneration, allowances or pension benefits to or in respect of them.

I1163

The Scottish Ministers may, in relation to Scotland,—

a

carry out or support research in the arts and humanities,

b

disseminate the results of research in the arts and humanities,

c

further the practical application of the results of research in the arts and humanities,

d

establish advisory bodies for the purpose of assisting the Scottish Ministers in matters connected with research in the arts and humanities, and

e

if the Scottish Ministers establish such a body, appoint its members on terms which include the payment of remuneration, allowances or pension benefits to or in respect of them.

I1014

The Northern Ireland Department having responsibility for higher education may, in relation to Northern Ireland,—

a

carry out or support research in the arts and humanities,

b

disseminate the results of research in the arts and humanities,

c

further the practical application of the results of research in the arts and humanities,

d

establish advisory bodies for the purpose of assisting the Department in matters connected with research in the arts and humanities, and

e

if the Department establishes such a body, appoint its members on terms which include the payment of remuneration, allowances or pension benefits to or in respect of them.

F135

The powers under this section to give financial support include, in particular, power to make a grant, loan or other payment, on such terms and conditions as the relevant authority considers appropriate.

6

The terms and conditions may, in particular—

a

enable the relevant authority to require the repayment, in whole or in part, of sums paid by it if any of the terms and conditions subject to which the sums were paid is not complied with,

b

require the payment of interest in respect of any period during which a sum due to the relevant authority in accordance with any of the terms and conditions remains unpaid, and

c

require a person to whom financial support is given to provide the relevant authority with any information it requests for the purpose of the exercise of any of its functions.

7

In subsections (5) and (6), “the relevant authority” means—

a

in the case of the power under subsection (1)(a), the Secretary of State;

b

in the case of the power under subsection (2)(a), the Welsh Ministers;

c

in the case of the power under subsection (3)(a), the Scottish Ministers;

d

in the case of the power under subsection (4)(a), the Northern Ireland Department having responsibility for higher education.

Part 2Review of student complaints

I4I5311Qualifying institutions

In this Part “qualifying institution” means any of the following institutions F17...—

a

a university F22in England or Wales (whether or not receiving financial support under section 65 of the 1992 Act F23or section 39 or 93 of the Higher Education and Research Act 2017 (“the 2017 Act”)) whose entitlement to grant awards is conferred or confirmed by—

i

an Act of Parliament,

ii

a Royal Charter, or

iii

an order under section 76 of the 1992 Act F24or section 42 or 45 of the 2017 Act;

b

a constituent college, school or hall or other institution F25in England or Wales of a university falling within paragraph (a);

c

an institution F26in England or Wales conducted by a higher education corporation;

d

F27an institution in Wales which is a designated institution, as defined by section 72(3) of the 1992 Act.

F18da

an institution in England which is a registered higher education provider as defined by section 85 of the 2017 Act (other than one within paragraph (a), (b), (c) or (d) of this section);

F7e

an institution F20in England or Wales (other than one within F21any of the preceding paragraphs of this section) which provides higher education courses which are designated for the purposes of section 22 of the 1998 Act by or under regulations under that section;

F19ea

an institution in England (other than one within any of the preceding paragraphs of this section) which provides higher education courses leading to the grant of an award by or on behalf of—

i

another institution in England within another paragraph of this section, or

ii

the Office for Students where the grant is authorised by regulations under section 51(1) of the 2017 Act;

f

an institution F28in England or Wales (other than one within another paragraph of this section) whose entitlement to grant awards is conferred by an order under section 76(1) of the 1992 Act F29or section 42 or 45 of the 2017 Act.

I5I5412Qualifying complaints

1

In this Part “qualifying complaint” means, subject to F9subsections (2) and (3), a complaint about an act or omission of a qualifying institution which is made by a person—

a

as a student or former student at that institution, or

b

as a student or former student at another institution (whether or not a qualifying institution) undertaking a course of study, or programme of research, leading to the grant of one of the qualifying institution’s awards.

2

A complaint which falls within subsection (1) is not a qualifying complaint to the extent that it relates to matters of academic judgment.

F83

The designated operator may determine that a complaint within subsection (1) about an act or omission of a qualifying institution within F30paragraph (da), (e), (ea) or (f) of section 11 is a qualifying complaint only if it is made by a person who is undertaking or has undertaken a particular course or a course of a particular description.

I6I5513Designation of operator of student complaints scheme

1

The Secretary of State may, for the purposes of this Part, designate a body corporate as the designated operator for England as from a date specified in the designation.

2

The Assembly may, for the purposes of this Part, designate a body corporate as the designated operator for Wales as from a date specified in the designation.

3

The Secretary of State or the Assembly may not designate a body under subsection (1) or (2) unless he or the Assembly is satisfied that the body—

a

meets all of the conditions set out in Schedule 1,

b

is providing a scheme for the review of qualifying complaints that meets all of the conditions set out in Schedule 2, or is proposing to provide such a scheme from a date not later than the effective date,

c

has consulted interested parties about the provisions of that scheme, and

d

consents to the designation.

4

If a body is designated under subsection (1) or (2) the Secretary of State or the Assembly must, before the effective date,—

a

give the body notice of the designation, and

b

publish notice of the designation in such manner as he or the Assembly thinks fit.

5

In this Part—

a

“the effective date”, in relation to the designation of a body corporate under this section, means the date specified in the designation as the date from which the body is designated as designated operator, and

b

any reference to the designated operator is—

i

in relation to an institution in England, a reference to the body designated under subsection (1), and

ii

in relation to an institution in Wales, a reference to the body designated under subsection (2).

I7I5614Duties of designated operator

The designated operator must comply with the duties set out in Schedule 3 during the period specified in that Schedule.

I8I5715Duties of qualifying institutions

1

The governing body of every qualifying institution in England and Wales must comply with any obligation imposed upon it by a scheme for the review of qualifying complaints that is provided by the designated operator.

2

The duty imposed by subsection (1) applies from the effective date of the designation and ceases to apply only if the designation is terminated.

3

The obligations referred to in subsection (1) include any obligation to pay fees to the designated operator.

I9I5816Termination of designation

1

The designation of a body under section 13 continues until it is terminated in accordance with Schedule 4.

2

If the designation of a body is terminated, the Secretary of State or the Assembly must publish notice of the termination in such manner as he or it thinks fit.

I10I5917Privilege in relation to law of defamation

1

For the purposes of the law of defamation, any proceedings relating to the review under the scheme of a qualifying complaint are to be treated as if they were proceedings before a court.

2

For those purposes, absolute privilege attaches to the publication of—

a

any decision or recommendation made under the scheme by a person responsible for reviewing a qualifying complaint, and

b

any report under paragraph 6 or 7 of Schedule 3.

3

In this section “the scheme” means the scheme for the review of qualifying complaints provided by the designated operator.

I11I6018Provision where designation of operator to cease

1

Where—

a

an agreement to terminate a designation has been made under paragraph 2 of Schedule 4,

b

notice to terminate a designation has been given under paragraph 4 or 6 of Schedule 4, or

c

the designated operator has ceased to exist,

the Secretary of State (in relation to England) or, as the case requires, the Assembly (in relation to Wales) may by order make such provision as he or it thinks fit for, or in connection with, the review of qualifying complaints.

2

The provision that may be made under this section includes any one or more of the following—

a

provision requiring the designated operator to provide the scheme in accordance with specified requirements;

b

provision modifying, or requiring the designated operator to modify, the provisions of the scheme;

c

provision about the fees payable under the scheme, including provision requiring the repayment of fees already paid;

d

provision for a specified person to take over provision of the scheme;

e

provision for any provision of this Part that applies in relation to a scheme provided by the designated operator to apply (with or without modifications) in relation to a scheme provided by a person specified by virtue of paragraph (d);

f

provision for a specified person to review qualifying complaints, or specified descriptions of qualifying complaints, otherwise than under the scheme;

g

provision requiring the payment of fees by the governing bodies of qualifying institutions to a person specified by virtue of paragraph (f);

h

provision requiring the designated operator to provide such information and assistance as the Secretary of State or the Assembly considers necessary—

i

for the Secretary of State or the Assembly to make provision under this section; or

ii

for any person to comply with, or act under or in accordance with, provision made under this section.

3

The Secretary of State or the Assembly may be specified by virtue of subsection (2)(d), but not by virtue of subsection (2)(f).

4

In this section—

  • “the scheme” means the scheme for the review of qualifying complaints that the designated operator provides or has been providing;

  • “specified” means specified in an order under this section.

F3I5219Extension of time for bringing discrimination proceedings

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I108I11220Exclusion of visitor’s jurisdiction in relation to student complaints

1

The visitor of a qualifying institution has no jurisdiction in respect of any complaint which falls within subsection (2) or (3).

2

A complaint falls within this subsection if it is made in respect of an application for admission to the qualifying institution as a student.

3

A complaint falls within this subsection if it is made by a person—

a

as a student or former student at the qualifying institution, or

b

as a student or former student at another institution (whether or not a qualifying institution) undertaking a course of study, or programme of research, leading to the grant of one of the qualifying institution’s awards.

20AF15Institutions that cease to be qualifying institutions

1

An institution that ceases to be a qualifying institution is a “transitional institution” during the shorter of—

a

the period of 12 months beginning with the day on which it ceases to be a qualifying institution, and

b

the period beginning with that day and ending when it becomes a qualifying institution again,

(and the shorter period is referred to in this section as “the transitional period”).

2

For the purposes of this Part, a transitional institution is to be treated as continuing to be a qualifying institution during the transitional period, subject to subsection (3).

3

A complaint is not a qualifying complaint to the extent that it is about an act or omission of a transitional institution which occurred on or after the day on which the transitional period began.

4

In section 12(3) (power of designated operator to determine when certain complaints are qualifying complaints), the reference to a qualifying institution within paragraph (da), (e), (ea) or (f) of section 11 includes a transitional institution that was a qualifying institution within the paragraph in question immediately before the beginning of the transitional period.

I12I6121Interpretation of Part 2

F311

In this Part—

  • “award” means any degree, diploma, certificate or other academic award or distinction;

  • “designated operator” has the meaning given by section 13(5)(b);

  • “the effective date” has the meaning given by section 13(5)(a);

  • F33...

  • “higher education corporation” has the meaning given by section 90(1) of the 1992 Act;

  • F34“institution” includes a training provider in England who would not otherwise be regarded as an institution;

  • “interested parties”, in relation to a scheme for the review of qualifying complaints provided or to be provided by a body corporate, means—

    1. a

      qualifying institutions in England or Wales (as the case may be), and

    2. b

      persons selected by the body corporate from amongst those it considers to represent the interests of students at qualifying institutions in England or Wales (as the case may be);

  • “qualifying complaint” has the meaning given by section 12;

  • “qualifying institution” has the meaning given by section 11.

  • F35“training provider” means a person who provides training for members of the school workforce within the meaning of Part 3 of the Education Act 2005 (see section 100 of that Act).

F322

In this Part “governing body”—

a

in relation to a training provider in England who, but for the definition of “institution” in subsection (1), would not be regarded as an institution, means any persons responsible for the provider's management;

b

in relation to a provider of higher education designated under section 84 of the Higher Education and Research Act 2017, means any persons responsible for the provider's management;

c

in relation to any other institution, has the meaning given by section 90(1) of the 1992 Act, but subject to any provision made by virtue of section 90(2) of that Act.

Part 3Student fees and fair access

Introductory

F1622Meaning of “plan” etc.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Imposition of conditions as to fees

F1623Duty of Secretary of State to impose condition as to student fees, etc.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1624Condition to be imposed by English funding bodies

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1625Transitional cases in which condition must not allow fees to exceed basic amount

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1626Regulations under section 24(6) relating to basic or higher amount

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10 27Power of National Assembly for Wales to impose conditions as to student fees, etc.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1028F1 Condition that may be required to be imposed by F4HEFCW

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1629Sections 23 to F526: supplementary provisions

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Plans authorising fees of more than basic amount

F1630Meaning of “the relevant authority”

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1631Director of Fair Access to Higher Education

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1632General duties of relevant authority

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1633Contents of plans

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F1634Approval of plans

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1635Duration of plans

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1636Variation of plans

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1637Enforcement of plansF6...

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1138Enforcement of plans: Wales

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1639Review of decisions made by relevant authority

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Supplementary

F1640Provision of information

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12 40A Provision of reports, information and advice by the relevant authority in relation to Wales

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1641Interpretation of Part 3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part 4Student support

42Effect of bankruptcy

1

In section 22 of the 1998 Act (arrangements for giving financial support to students), after subsection (3)(e) insert—

f

with respect to the effect of bankruptcy upon a borrower’s liability to make repayments in respect of such a loan (whether the repayments relate to sums which the borrower receives, or is entitled to receive, before or after the commencement of the bankruptcy).

2

In section 46(8) of the 1998 Act (provisions that extend to Northern Ireland), in the entry relating to section 22 for “(3)(e)” substitute “ (3)(e) or (f) ”.

3

Subsection (4) has effect in relation to the Education (Student Loans) Act 1990 (c. 6) to the extent that it continues in force by virtue of any savings made, in connection with its repeal by the 1998 Act, by an order under section 46(4) of the 1998 Act.

4

Schedule 2 to the Education (Student Loans) Act 1990 (loans for students) is to have effect as if in paragraph 5(2) (liabilities relating to student loans not to be included in bankruptcy debts) the reference to “any such sum” were a reference to “any sums to which this paragraph applies”.

5

Nothing in this section affects any bankruptcy commencing before this section comes into force.

I12743Other amendments of section 22 of Teaching and Higher Education Act 1998

1

Section 22 of the 1998 Act (arrangements for giving financial support to students) is amended as follows.

2

In subsection (2)(i), for “who have previously made loans of any prescribed description to those persons” substitute “ to whom those persons are liable to make payments ”.

3

Omit subsection (7) (which provides that regulations made by virtue of subsection (2)(b) of that section are to be subject to affirmative resolution procedure in certain circumstances).

44Transfer of certain functions to National Assembly for Wales

I1221

In relation to Wales, the functions of the Secretary of State under section 22 of the 1998 Act (arrangements for giving financial support to students) are hereby transferred to the Assembly, except so far as they relate to the making of any provision authorised by subsection (2)(a), (c), (j) or (k), (3)(e) or (f) or (5) of that section.

I1222

The functions of the Secretary of State under section 22 of the 1998 Act are to be exercisable concurrently with the Assembly so far as they relate to the making in relation to Wales of any provision authorised by subsection (2)(a), (c) or (k) of that section.

I1363

Regulations made under section 22 of the 1998 Act by the Secretary of State must provide that no provision made by virtue of subsection (5) of that section is to apply in relation to any loan made under that section by the Assembly unless the Assembly—

a

has determined, in relation to any loan or description of loan, that repayments are to be collected by the Commissioners of Inland Revenue, and

b

has given notice of that determination to the Secretary of State and to the person liable to make the repayments.

I1354

The functions of the Secretary of State under section 23 of the 1998 Act (transfer or delegation of functions relating to student support) are hereby transferred to the Assembly so far as they relate to functions which are exercisable by the Assembly under regulations under section 22 of that Act.

I1225

Until the commencement of subsection (4), the functions of the Secretary of State under subsections (7) and (8) of section 23 of the 1998 Act (power to make payments to body or person by whom function is exercisable by virtue of subsection (1) or (4) of that section) are to be exercisable concurrently with the Assembly so far as they relate to payments to any body or person by whom there is exercisable any function that will after the commencement of subsections (1) and (2) be exercisable by the Assembly.

I1226

For the purposes of the Government of Wales Act 1998 (c. 38)—

a

any function that is transferred to the Assembly by subsection (1) or (4) or made exercisable by the Assembly by subsection (2) or (5) is to be taken to have been transferred to, or made exercisable by, the Assembly by an Order in Council under section 22 of that Act, and

b

in relation to any function which is taken by virtue of paragraph (a) to have been transferred to the Assembly by such an Order in Council, any reference to the coming into force of the Order in Council transferring it is to be read as a reference to the commencement of the provision of this section by which the function is transferred.

I12845Supply of information held by student support authority

1

Regulations may provide that a student support authority may supply student support information of a prescribed description to a prescribed person for a prescribed purpose.

2

A person may not be prescribed under subsection (1) unless the person—

a

is the governing body of an institution with which eligible students (as defined for the purposes of the student support scheme) are undertaking courses, or

b

is a person who appears to the Secretary of State or, as the case may be, the Assembly to be exercising functions of a public nature.

3

Regulations under subsection (1) may not allow information to be supplied except with the consent of every individual to whom the information relates, given in such manner as may be prescribed.

4

Subsection (3) does not apply to the supply of information for the purposes of any civil or criminal proceedings arising out of the student support scheme.

5

Regulations under subsection (1) may provide that information may be supplied under such regulations only if prescribed conditions are met.

6

This section does not limit the circumstances in which information may be supplied apart from this section.

7

In this section “student support authority” means—

a

the Secretary of State,

b

any authority or governing body by whom any function of the Secretary of State is for the time being exercisable to any extent by virtue of section 23(1) of the 1998 Act,

c

any person acting on behalf of the Secretary of State to any extent by virtue of section 23(4) of the 1998 Act,

d

the Assembly,

e

any authority or governing body by whom any function of the Assembly is for the time being exercisable to any extent by virtue of section 23(1) of the 1998 Act, and

f

any person acting on behalf of the Assembly to any extent by virtue of section 23(4) of the 1998 Act.

8

In this section—

  • “prescribed” means prescribed by regulations;

  • “regulations” means—

    1. a

      in relation to a student support authority falling within any of paragraphs (a) to (c) of subsection (7), regulations made by the Secretary of State, and

    2. b

      in relation to a student support authority falling within any of paragraphs (d) to (f) of subsection (7), regulations made by the Assembly;

  • “student support scheme” means the provisions of regulations under section 22 of the 1998 Act;

  • “student support information”, in relation to a student support authority, means any information which the student support authority holds in connection with, or in consequence of, the exercise of any function relating to the operation of the student support scheme.

Part 5Miscellaneous and general

Staff disputes: jurisdiction of visitor

I113I10946Exclusion of visitor’s jurisdiction in relation to staff disputes

1

The visitor of a qualifying institution has no jurisdiction in respect of—

a

any dispute relating to a member of staff which concerns his appointment or employment or the termination of his appointment or employment,

b

any other dispute between a member of staff and the qualifying institution in respect of which proceedings could be brought before any court or tribunal, or

c

any dispute as to the application of the statutes or other internal laws of the institution in relation to a matter falling within paragraph (a) or (b).

2

In subsection (1) “qualifying institution” has the meaning given by section 11.

3

In determining whether a dispute falls within subsection (1)(b) it is to be assumed that the visitor does not have jurisdiction to determine the dispute.

4

Section 206 of the Education Reform Act 1988 (c. 40) (which is superseded by subsection (1)) shall cease to have effect.

General

47Orders and regulations

1

Any power—

a

of the Secretary of State or the Assembly to make an order or regulations under this Act, or

b

of the Scottish Ministers to make an order under this Act,

is exercisable by statutory instrument.

2

Any statutory instrument containing—

a

an order made by the Secretary of State under section 18, or

b

regulations made by the Secretary of State under any provision of this Act,

is subject to annulment in pursuance of a resolution of either House of Parliament.

3

Subsection (2) does not apply to—

F36a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b

regulations to which paragraph 12(3) of Schedule 2 applies, or

F37c

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F384

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

Any order or regulations under this Act may—

a

make different provision for different cases or different areas,

b

make provision generally or only in relation to specified cases, and

c

contain such incidental, supplemental, saving or transitional provisions as the person making the order or regulations thinks fit.

6

Nothing in this Act is to be regarded as affecting the generality of subsection (5).

48General interpretation

In this Act—

  • “the 1992 Act” means the Further and Higher Education Act 1992 (c. 13);

  • F2...

  • “the 1998 Act” means the Teaching and Higher Education Act 1998 (c. 30);

  • F39...

  • “the Assembly” means the National Assembly for Wales.

I1I102I117I123I129I13749Consequential amendments

Schedule 6 contains amendments related to the provisions of this Act.

I110I114I118I124I130I13850Repeals

Schedule 7 contains repeals.

51Financial provisions

1

There shall be paid out of money provided by Parliament—

a

any expenditure incurred by the Secretary of State by virtue of this Act, and

b

any increase attributable to this Act in the sums which by virtue of any other Act are payable out of money so provided.

2

There shall be paid into the Consolidated Fund any sums received by a Minister of the Crown by virtue of this Act.

52Commencement

1

The following provisions come into force on the passing of this Act—

  • section 22, so far as relating to England;

  • section 24(6), so far as enabling regulations to be made;

  • section 26;

  • section 29, so far as relating to England;

  • section 30(1), so far as relating to England;

  • section 31;

  • section 32(1);

  • sections 33 and 34, so far as relating to England;

  • sections 35 to 37, so far as enabling regulations to be made in relation to England;

  • section 39, so far as relating to England;

  • section 40;

  • section 41, so far as relating to England;

  • section 42;

  • sections 47 and 48;

  • section 51, this section and sections 53 and 54;

  • Schedule 5; and

  • paragraph 1 of Schedule 6 and, so far as relating to the Director of Fair Access to Higher Education, paragraphs 4 and 10 of that Schedule (and section 49 so far as relating to those provisions).

2

The following provisions (so far as not coming into force in accordance with subsection (1)) come into force in accordance with provision made by the Secretary of State by order—

  • Part 1, except section 10(2) and (3);

  • section 19;

  • section 23;

  • section 37;

  • section 43;

  • section 45;

  • paragraphs 2 to 6 and 9 and 10 of Schedule 6 (and section 49 so far as relating to those paragraphs); and

  • in Schedule 7, the repeals in the Superannuation Act 1972 (c. 11) and in section 22 of the 1998 Act (and section 50 so far as relating to those repeals).

3

The following provisions come into force in accordance with provision made by the Assembly by order—

  • section 10(2);

  • sections 27 and 28;

  • section 30(2) and (3);

  • section 32(4);

  • section 38; and

  • section 44.

4

The Assembly may not make an order under subsection (3) in relation to section 44 except with the agreement of the Secretary of State.

5

Section 10(3) comes into force in accordance with provision made by the Scottish Ministers by order.

6

Except as provided by subsections (1) to (5), the provisions of this Act come into force—

a

in relation to England, in accordance with provision made by the Secretary of State by order, and

b

in relation to Wales, in accordance with provision made by the Assembly by order.

53Extent

1

Subject to subsections (2) to (4), this Act extends to England and Wales only.

2

The following provisions also extend to Scotland and Northern Ireland—

a

Part 1,

b

section 45,

c

sections 47, 48, 51 and 52, and

d

this section and section 54.

3

Subsections (1), (2) and (5) of section 42 also extend to Northern Ireland.

4

Any amendment or repeal made by this Act has the same extent within the United Kingdom as the enactment to which it relates.

54Short title, etc.

1

This Act may be cited as the Higher Education Act 2004.

2

This Act is to be included in the list of Education Acts set out in section 578 of the Education Act 1996 (c. 56).

SCHEDULES

SCHEDULE 1Conditions to be met by operator of student complaints scheme

Section 13

Introduction

I13I621

This Schedule sets out the conditions referred to in section 13(3)(a) (and other provisions of Part 2 of this Act).

Suitability

I14I632

Condition A is that the body corporate is a suitable person to be the designated operator.

Capability

I15I643

Condition B is that the body corporate is capable of providing in an effective manner, on and after the effective date, a scheme for the review of qualifying complaints which meets all of the conditions set out in Schedule 2.

SCHEDULE 2Conditions to be met by student complaints scheme

Section 13

Introduction.

I16I651

This Schedule sets out the conditions referred to in section 13(3)(b) (and other provisions of Part 2 of this Act).

Qualifying institutions

I17I662

Condition A is that at any given time the scheme relates (as the case may be)—

a

to every institution in England,

b

to every institution in Wales, or

c

to every institution in England and Wales,

that is a qualifying institution at that time.

Referral of qualifying complaints

I18I673

1

Condition B is that the scheme provides that every qualifying complaint made about the qualifying institutions to which it relates is capable of being referred under the scheme.

2

A scheme does not fail to meet condition B only because it contains some or all of the following—

a

provision that qualifying complaints are to be referred under the scheme within a time limit specified in, or determined in accordance with, the scheme;

b

provision that, where a qualifying complaint is made about a qualifying institution which provides an internal procedure for the review of complaints, the complaint is not to be referred under the scheme until the complainant has exhausted the internal procedure;

c

provision that a qualifying complaint is not to be referred under the scheme if—

i

relevant proceedings have been concluded, or

ii

relevant proceedings that have not been concluded have not been stayed.

3

In sub-paragraph (2)(c) “relevant proceedings” means proceedings relating to the subject matter of the qualifying complaint that have been brought at first instance before a court or tribunal.

Individuals to review complaints

I19I684

Condition C is that the scheme requires every qualifying complaint referred under the scheme to be reviewed by an individual who—

a

is independent of the parties, and

b

is suitable to review that complaint.

Review of complaint

I20I695

1

Condition D is that the scheme requires a reviewer—

a

to make a decision as to the extent to which a qualifying complaint is justified; and

b

to make that decision as soon as reasonably practicable.

2

A scheme does not fail to meet condition D only because it contains provision that a reviewer may dismiss a qualifying complaint without consideration of the merits if the reviewer considers the complaint to be frivolous or vexatious.

Recommendation of reviewer if complaint justified

I21I706

Condition E is that the scheme provides that, in a case where a reviewer decides that a qualifying complaint is to any extent justified, the reviewer—

a

may recommend the governing body of the institution to which the complaint relates—

i

to do anything specified in the recommendation (which may include the payment of sums so specified), and

ii

to refrain from doing anything so specified, but

b

may not require any person to do, or refrain from doing, anything.

Reviewers to notify parties of decisions, recommendations etc.

I22I717

Condition F is that the scheme requires a reviewer to notify the parties to a qualifying complaint in writing of—

a

the decision the reviewer has made,

b

the reviewer’s reasons for making that decision, and

c

if the reviewer makes a recommendation—

i

that recommendation, and

ii

the reviewer’s reasons for making that recommendation.

Fees

I23I728

Condition G is that the scheme does not require complainants to pay any fees in connection with the operation of the scheme.

I24I739

Condition H is that any fees payable under the scheme by the qualifying institutions to which it relates do not exceed the amount incurred by the operator, taking one year with another, in providing the scheme in relation to those institutions.

Scheme also applying to bodies that are not qualifying institutions

I25I7410

1

A scheme does not fail to meet the conditions in this Schedule only because it also relates to bodies that are not qualifying institutions.

2

A scheme which relates to such bodies does not fail to meet the conditions in this Schedule only because the provisions of the scheme that apply to such bodies do not meet those conditions.

Interpretation

I26I7511

In this Schedule—

  • “complainant” means the person making a qualifying complaint;

  • “parties”, in relation to a qualifying complaint, means—

    1. a

      the complainant, and

    2. b

      the governing body of the institution about which the complaint is made;

  • “reviewer”, in relation to the review of a qualifying complaint under a scheme, means the individual who is reviewing the complaint.

Power to amend this Schedule

I27I7612

1

Regulations may amend the preceding provisions of this Schedule.

2

In sub-paragraph (1) “regulations” means regulations made—

a

in relation to schemes relating to qualifying institutions in England, by the Secretary of State, or

b

in relation to schemes relating to qualifying institutions in Wales, by the Assembly.

3

No regulations may be made by the Secretary of State under this paragraph unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.

SCHEDULE 3Duties of designated operator of student complaints scheme

Section 14

Introduction

I28I771

This Schedule sets out the duties referred to in section 14 and the period during which those duties must be complied with.

Provision of scheme

I29I782

The designated operator must provide a scheme for the review of qualifying complaints which meets all of the conditions set out in Schedule 2.

Publication of scheme

I30I793

The designated operator must publish the latest version of the scheme in such manner as it thinks fit.

Changes to scheme

I31I804

The designated operator must not make any change to a provision of the scheme to which a condition set out in Schedule 2 relates unless the operator has first—

a

consulted interested parties about the proposed change, and

b

notified the Secretary of State or the Assembly (as the case requires) of the proposed change.

Compliance with scheme

I32I815

The designated operator must comply with any requirements that the scheme imposes on it.

Annual report

I33I826

1

The designated operator must—

a

produce an annual report on the scheme and its operation, and

b

publish the report in such manner as it thinks fit.

2

The report must include information about—

a

complaints referred under the scheme,

b

the decisions and recommendations made by reviewers,

c

the extent to which recommendations made by reviewers have been followed, and

d

the way in which the operator has used the fees (if any) paid in connection with the scheme.

Review

I34I837

1

This paragraph applies if the Secretary of State or the Assembly requests the designated body to—

a

conduct a review of the scheme or its operation (or any aspect of either of those matters), and

b

report the results of the review to the Secretary of State or Assembly.

2

The designated body must comply with the request within such time as may be specified by the Secretary of State or the Assembly.

3

In conducting the review, the designated body must comply with any particular requirements imposed by the Secretary of State or the Assembly.

Supply of information

I35I848

The designated operator must provide the Secretary of State or the Assembly with such information about itself, and the scheme and its operation, as the Secretary of State or the Assembly may reasonably require for the purposes of his or the Assembly’s functions under Part 2 of this Act.

Period during which the designated operator must comply with duties

I36I859

1

The duties set out in this Schedule apply from the relevant date and cease to apply only if the designation is terminated.

2

The “relevant date” means—

a

in relation to the duties set out in paragraphs 3, 4, 5 and 8, the date on which notice of designation is received in accordance with section 13(4)(a), and

b

in relation to the duties set out in the other paragraphs, the effective date of the designation.

Duties to publish information: further provision

I37I8610

Where by virtue of this Schedule the designated operator is under a duty to publish information, it must, in choosing the manner in which the information is to be published, have regard to the object of making that information available to interested parties.

SCHEDULE 4Termination of designation of operator of student complaints scheme

Section 16

Part 1Circumstances in which designation terminated

Introduction

I38I871

This Part of this Schedule sets out the circumstances in which the designation of a body corporate under section 13 is terminated.

Agreement

I39I882

The designation is terminated if the designated operator and the Secretary of State or the Assembly (as the case may be) make an agreement which specifies a date when the designation is to terminate.

I40I893

In this case the designation is terminated on the date specified in the agreement.

Notice given by the designated operator

I41I904

1

The designation is terminated if the designated operator gives the Secretary of State or the Assembly (as the case may be) notice which specifies a date when the designation is to terminate.

2

Notice under this paragraph is valid only if the period between—

a

the date when the notice is given, and

b

the date specified in the notice,

is one year or longer.

I42I915

In this case the designation is terminated on the date specified in the notice.

Notice given by Secretary of State or Assembly

I43I926

1

The designation is terminated if the Secretary of State or the Assembly (as the case may be) gives the designated operator notice which specifies a date when the designation is to terminate.

2

Notice under this paragraph may not be given unless the Secretary of State or the Assembly—

a

is no longer satisfied that the designated operator meets all of the conditions in Schedule 1, or

b

is satisfied that the designated operator has failed to comply with section 14.

3

Notice under this paragraph is valid only if the period between—

a

the date when the notice is given, and

b

the date specified in the notice,

is such as the Secretary of State or the Assembly considers reasonable.

I44I937

In this case the designation is terminated on the date specified in the notice.

Operator ceases to exist

I45I948

The designation is terminated if the designated operator ceases to exist.

I46I959

In this case the designation is terminated on the date when the operator ceases to exist.

Part 2Agreement made or notice given under Part 1: supplementary provision

Introduction

I47I9610

1

This Part of this Schedule applies where—

a

the designated operator and the Secretary of State or the Assembly have made an agreement under paragraph 2,

b

the designated operator has given notice under paragraph 4, or

c

the Secretary of State or the Assembly has given notice under paragraph 6.

2

In this Part—

  • “original instrument of termination” means the agreement or notice referred to in sub-paragraph (1);

  • “termination date” means the date specified in an agreement under paragraph 2, or notice under paragraph 4 or 6, as the date when the designation in question is to terminate.

Effect of agreement or notice on provisions of Part 1 of Schedule

I48I9711

1

Where this Part of this Schedule applies—

a

the designated operator and the Secretary of State or the Assembly may not make an agreement, or a new agreement, under paragraph 2,

b

the designated operator may not give a notice, or a new notice, under paragraph 4, and

c

the Secretary of State or the Assembly may not—

i

give a notice under paragraph 6 except in accordance with sub-paragraph (2) below, or

ii

give a new notice under paragraph 6.

2

The Secretary of State or the Assembly may give a notice under paragraph 6 if—

a

the original instrument of termination is—

i

an agreement under paragraph 2, or

ii

a notice under paragraph 4, and

b

the termination date specified in the notice under paragraph 6 falls before the termination date specified in the original instrument of termination.

Circumstances in which agreement or notice superseded

I49I9812

The original instrument of termination is superseded only if—

a

notice under paragraph 6 is given in accordance with paragraph 11(2), or

b

the designation in question is terminated in accordance with paragraph 8 (operator ceases to exist).

Agreement or notice not capable of variation or cancellation or revocation

I50I9913

1

An agreement made under paragraph 2 may not be varied or cancelled.

2

Accordingly such an agreement continues in force until—

a

the designation is terminated in accordance with the agreement, or

b

the agreement is superseded in accordance with paragraph 12.

I51I10014

1

Notice given under paragraph 4 or 6 may not be varied or revoked.

2

Accordingly such notice continues in force until—

a

the designation is terminated in accordance with the notice, or

b

the notice is superseded in accordance with paragraph 12.

F14SCHEDULE 5The Director of Fair Access to Higher Education: supplementary provisions

Section 31

Annotations:
Amendments (Textual)
F14

Sch. 5 omitted (1.4.2018) by virtue of Higher Education and Research Act 2017 (c. 29), s. 124(5), Sch. 11 para. 30(2); S.I. 2018/241, reg. 2(s) (with transitional and savings provisions in S.I. 2018/245, regs. 2, 3, 13-16)

F14Status, appointment and remuneration of Director

F141

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F142

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F143

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F14Staff

F144

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F14Arrangements with Higher Education Funding Council for England

F145

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F14Finance

F146

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F14Reports

F147

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F14Accounts

F148

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 6Consequential amendments

Section 49

Public Records Act 1958 (c. 51)

F401

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Parliamentary Commissioner Act 1967 (c. 13)

I1032

In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc. subject to investigation), insert at the appropriate place “ The Arts and Humanities Research Council. ”.

Superannuation Act 1972 (c. 11)

I1203

In Schedule 1 to the Superannuation Act 1972 (which lists the kinds of employment etc. to which a scheme under that Act can apply) omit “The Arts and Humanities Research Board”.

House of Commons Disqualification Act 1975 (c. 24)

I2I1044

In Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying for membership), in Part 3 (other disqualifying offices) insert at the appropriate places— “ Chairman, Deputy Chairman or Chief Executive of the Arts and Humanities Research Council. ”, and F41...

Patents Act 1977 (c. 37)

I1075

In section 41 of the Patents Act 1977 (amount of compensation awarded to employees in relation to patent for an invention), in subsection (3) after “Science and Technology Act 1965” insert “ or the Arts and Humanities Research Council (as defined by section 1 of the Higher Education Act 2004) ”.

Further Education Act 1985 (c. 47)

I1056

In section 2 of the Further Education Act 1985 (power of local education authorities to supply goods or services through further or higher education institutions), in subsection (4)(a) after “Science and Technology Act 1965” insert “ or for the Arts and Humanities Research Council (as defined by section 1 of the Higher Education Act 2004) ”.

Teaching and Higher Education Act 1998 (c. 30)

I125I131I1397

Omit section 26 of the 1998 Act (imposition of conditions as to fees at further or higher education institutions).

I132I1408

In section 28 of the 1998 Act (interpretation of Chapter 1 of Part 2), in subsection (1) omit the definitions of “fees” and “publicly-funded institution”.

I1339

In section 42 of the 1998 Act (orders and regulations), for subsection (5) substitute—

5

That subsection also does not apply to any other regulations under section 22 a draft of which has been laid before, and approved by a resolution of, each House of Parliament.

Freedom of Information Act 2000 (c. 36)

I3I10610

In Schedule 1 to the Freedom of Information Act 2000 (public authorities for the purposes of the Act), in Part 6 (other public bodies and offices: general), insert at the appropriate places— “ The Arts and Humanities Research Council. ”, and F42...

I115I111I119I126I134I141SCHEDULE 7Repeals

Section 50

Annotations:
Commencement Information
I115

Sch. 7 in force for specified purposes for W. at 1.1.2005 by S.I. 2004/3144, Sch. Pt. 2

I111

Sch. 7 in force for specified purposes for E. at 1.1.2005 by S.I. 2004/2781, art. 4

I119

Sch. 7 in force for specified purposes at 1.4.2005 by S.I. 2005/767, art. 2

I126

Sch. 7 in force for specified purposes for W. at 7.7.2005 by S.I. 2005/1833, art. 4(f)

I134

Sch. 7 in force at 14.1.2006 for specified purposes by S.I. 2006/51, art. 2

I141

Sch. 7 in force at 31.3.2011 for specified purposes for W. by S.I. 2011/297, art. 4(i)(j)

Short title and chapter

Extent of repeal

Superannuation Act 1972 (c. 11)

In Schedule 1, the entry relating to the Arts and Humanities Research Board.

Education Reform Act 1988 (c. 40)

Section 206.

In section 207(1), paragraph (c) and the word “or” immediately preceding it.

Teaching and Higher Education Act 1998 (c. 30)

In section 22, subsection (7) and, in subsection (8), the words “or (7)(a)”.

Section 26.

In section 28(1), the definitions of “fees” and “publicly-funded institution”.

Learning and Skills Act 2000 (c. 21)

Section 146(4) and (5).

In Schedule 9, paragraphs 74 and 75.