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Skills And Post-16 Education Act 2022

Contents

Part 4: Miscellaneous and General

Chapter 1: Cheating Services Provided for Post-16 Students at English Institutions

  1. This Chapter contains provisions relating to new offences in England and Wales. This criminalises individuals and organisations who provide or arrange for another person to provide (in commercial circumstances) contract cheating services for students at post-16 institutions, sixth forms and higher education providers in England and any other person over compulsory school age who has been entered to take an examination relating to a regulated qualification at a place in England. The provisions also criminalise the advertising by those individuals or organisations of the services.

Section 26: Meaning of "relevant service" and other key expressions

  1. Subsection (1) confirms that the definitions in this section apply throughout the chapter, in relation to the offence.
  2. Subsection (2) defines "relevant service". In order for an individual or body to be liable under the offence, they must complete all or some of the student’s work such that the work would not be considered the work of the student. This excludes generally accepted study support such as tutors, proof-reading and ordinary teaching practices from being covered by the offence, as even with the provision of such services the work would generally still be considered to have been completed by the student personally (taking into account the ordinary meaning of that phrase – see the extended meaning in relation to a relevant assignment at subsection (8)).
  3. Subsection (3) sets out what completing all or part of an assignment on behalf of a student includes. This includes circumstances where a student is provided with material in connection with the assignment which the student could use in completing the assignment or part of it (subsection (3)(a)) which has either been prepared specifically in connection with the assignment (subsection 3(b)(i)) or has not been published generally (subsection 3(b)(ii)). This covers: bespoke pieces of work and stock essays; and work which is written, dictated or copied.
  4. Subsection (4)(a) creates a presumption that where a student seeks the provision of a "relevant service", material provided as a result will be viewed as being provided in connection with the assignment (which is relevant for the purposes of subsection (3)). This means that, for example, where a student chooses an essay from a menu of available stock essays, this would be caught (provided the essays are not published generally (see subsection (4)(b) below). So, the provider need not in fact know about the assignment or what it is in order to meet the test in subsection (3).
  5. Subsection (4)(b) sets out what is considered to be "material published generally" (which is not covered by the offence). This is material which is available publicly and free of charge, for example study aids on websites such as BBC Bitesize; also material that is published widely for purchase and educational use, and which includes other educational or training material, such as revision guides. The offering of a menu of available essays which must be paid for, for example, would not be considered "‘material published generally’" since it does not include other educational or training material.
  6. In order for the offence to be committed, the relevant service must be provided, or arranged, "in commercial circumstances". Subsection (5) sets out the conditions in which "commercial circumstances" apply. This covers: an organisation or individual which is providing or arranging the cheating services in the course of their business; and an individual who works independently who has been commissioned to provide the cheating services, by a person acting in the course of their own business or by a person acting in the course of their employer’s business. This allows for freelancers to be captured as well as employees and owners of companies providing cheating services.
  7. Subsection (6) defines the "student" to whom it is an offence to provide the services. That is those undertaking a relevant course at a post-16 institution or sixth form in England. Section 33 defines "post-16 institution" as a higher education provider, an institution within the further education sector, a 16-19 academy and any other institution or person, other than a school, that is principally concerned with the provision of education or training suitable to the requirements of pupils who are over compulsory school age. Sixth form is also defined in section 33. Subsection (6)(b) makes clear that the offence also applies to services provided to private candidates who are entered for a regulated qualification in England.
  8. Subsection (7) defines "relevant assignment" for the purposes of the offence. For an assignment to be in scope, it needs to be one that the student is required to complete by themselves as part of either the course they are on (for example a module in a chosen university course) or as part of a piece of work that leads to their overall final qualification. This drafting allows for homework to be in scope of the offence but excludes pieces of work that students have proactively decided to undertake themselves. It also allows for an assignment to be in scope of the offence where the assignment has been chosen by the student from a range of assignments set.
  9. Subsection (8) makes clear what is meant by the requirement that the student must complete a relevant assignment "personally". It includes the ordinary meaning, which is completing the assignment with assistance which is generally permitted, such as tutoring and legitimate proof-reading or copy-editing. It also has the extended meaning which is to include the circumstance where the assignment is completed with any assistance which is specifically permitted as part of the assignment (for example, where in relation to a specific assignment, a student is allowed assistance with writing due to injury or where a dissertation specifically allows for input by a tutor on a first draft). It further sets out that for the purposes of this chapter, that specific assistance is "permitted assistance".
  10. Subsection (9) explains that further definitions can be found in section 30.

Section 27: Offence of providing or arranging a relevant service

  1. Subsection (1) provides that it is an offence for a person to provide or arrange for another person to provide, in commercial circumstances, contract cheating services for a student in relation to a relevant assignment. The definitions in section 29 make clear who exactly falls within scope of the offence and the circumstances that need to be fulfilled for it to be committed. It is for the prosecution to prove the elements of the offence beyond reasonable doubt.
  2. Subsection (2) provides that the offence is summary only and punishable by a fine. The appropriate fine will be determined by the courts in line with the sentencing guidelines. Subsections (3) and (4) set out the defence that applies to this offence. The burden of proving, in relation to any of the matters in subsection (4), that they did not know and could not with reasonable diligence have known of the matter, is on the defendant. For example, depending on the facts of the case, the defendant may need to be able to prove that they did not know, and could not with reasonable diligence have known, that the student was required to complete this work personally. Similarly, they might need to prove that they did not know and could not with reasonable diligence have known, that the service provided was not specifically permitted.
  3. Subsection (5) sets out that a statement set out in a standard term in a written contract or arrangement, whereby a student commits to not using the work provided in a way that amounts to the offence, or about the circumstances of the assignment, is not sufficient to establish the defence.
  4. Subsection (6) makes clear that a student who commissions a provider to complete work in a way that falls under the offence will not be liable for an offence of encouraging, assisting, aiding or abetting the substantive offence.

Section 28: Offence of advertising a relevant service

  1. Subsection (1) provides that an offence is committed if a person advertises the relevant service to students.
  2. Subsection (2) makes clear that, in order for the offence to be committed, the advertisement does not need to be advertised solely to its target audience. The advertisement might not be seen by its target demographic, but the offence lies in the fact of advertising the relevant service.
  3. Subsection (3) sets out the exact circumstances that must be fulfilled for the advertising offence to be committed. The offence is only committed if the person who makes the arrangements for the advertisement of the relevant service is either offering the service, describing or presenting themselves as capable of providing it or capable of arranging for another to provide the service.
  4. Subsection (4) provides that this is a summary only offence punishable by a fine. The appropriate fine will be determined by the courts in line with the sentencing guidelines.

Section 29: Offences: bodies corporate and unincorporated associations

  1. Subsections (1) and (2) enable certain individuals to be prosecuted in limited circumstances where offences are committed by bodies corporate.
  2. Subsection (3) provides that where an offence is alleged to have been committed by an unincorporated body, proceedings for offences should be brought in the name of the body and not its members. It also makes provision for rules relating to the service of documents
  3. Subsection (4) provides that any fine imposed on conviction of an unincorporated body should be paid out of the funds of the body.
  4. Subsection (5) provides that if an unincorporated body is charged with an offence under these provisions, certain procedural rules apply in the same way as they do to incorporated bodies.
  5. Subsection (6) enables certain individuals to be prosecuted in limited circumstances where offences are committed by unincorporated bodies which are not partnerships.
  6. Subsection (7) enables partners to be prosecuted in limited circumstances where offences are committed by partnerships.

Section 30: Interpretation of Chapter

  1. This section sets out the definition of certain terms which are used in this Chapter.

Chapter 2: Miscellaneous Provisions

  1. This Chapter contains four miscellaneous provisions. The first provides the Secretary of State with an order making power to enable the designation of 16-19 academies as having a religious character. It also provides for the Secretary of State to make regulations about the procedures relating to the designation. The second is a technical amendment that shortens and increases the flexibility of the process by which institutions can be designated as being within the statutory further education sector. The third gives the OfS an explicit power to publish information about its compliance and enforcement activity in relation to higher education providers. The fourth corrects an anomaly relating to when a provider has to have a high-quality rating to charge the Teaching Excellence Framework (TEF) tuition fee uplift.

16 to 19 Academies: designation as having a religious character

Section 31: 16 to 19 Academy: designation as having a religious character

  1. This section inserts new sections 8A and 8B into the Academies Act 2010.
  2. For new inserted section 8A, "Designation of a 16 to 19 academy as having a religious character":
    1. Subsection (1) allows the Secretary of State to designate by order a 16 to 19 academy as having a religious character.
    2. Subsection (2) sets out that the Secretary of State may only designate the academy where the academy proprietor meets the requirements set out in section 12(2) of the Academies Act 2010.
    3. Subsection (3) requires that the order designating a 16-19 academy with a religious character specifies the religion or religious denomination with which the academy is to be designated.
    4. Subsection (4) provides for the Secretary of State to make regulations which set out the procedure to be followed in designating 16-19 academies with a religious character and specifying the religious denomination.
    5. Subsection (5) states that an order designating a 16 to 19 academy as having a religious character under this section is to be made by a statutory instrument which is not subject to parliamentary procedure.
  3. For new inserted section 8B, "Constitution of Academy proprietor, collective worship and religious education":
    1. Subsection (1) makes clear that the articles of association for a 16-19 academy designated as having a religious character must enable a majority of directors of the academy proprietor to be appointed for the purposes of securing the designated religious character of the institution and, where a trust deed is in place, ensuring that the academy follows it.
    2. Subsection (2) provides for the academy proprietor to conduct the 16-19 academy designated as having a religious character in a way which reflects the specified religion or religious denomination and in accordance with a relevant trust deed.
    3. Subsections (3) and (4) require an academy proprietor running a 16-19 academy designated with a religious character to ensure it provides at least one open act of collective worship a week which pupils attending the academy are free to attend. This act of collective worship must follow the practices of the specified religion or religious denomination and comply with any relevant trust deed.
    4. Subsections (5) and (6) require the academy proprietor running a 16-19 academy designated with a religious character to ensure that it provides religious education for all pupils who wish to receive it at a time or times which are convenient for a majority of full-time pupils to attend.
    5. Subsection (7) sets out that the religious education provided can take the form of a course of lectures or classes or single lectures or classes occurring regularly. They may also include courses or study which leads to an examination or a qualification.
    6. Subsection (8) sets out that the religious education provided must reflect the requirements of any trust deed and not be contrary to the traditions of the specified religion or religious denomination.
    7. Subsection (9) makes clear that the references to pupil in this section means a person receiving education at the 16-19 academy. It also sets out that references to "trust deed" including any document (other than the articles of association) which regulates the constitution, maintenance, management or conduct of the academy.

Institutions within the further education sector: procedure for designation

Section 32: Institutions within the further education sector: designation

  1. This section amends sections 28 and 89 of the Further and Higher Education Act 1992 to change the mechanism by which the Secretary of State can designate educational institutions in England as being within the statutory further education sector. It would allow the Secretary of State to designate an institution by means of an administrative order that must be published, rather than by statutory instrument as is currently required.   
  2. Subsection (2) makes provision to clarify the appropriate authority to make designation orders in relation to educational institutions in each of Wales and England, as this is a devolved matter. 
  3. Subsection (3)(a) makes provision to allow the Secretary of State to make designation orders under section 28 of the Further and Higher Education Act 1992 by administrative order rather than by statutory instrument. It also makes the same provision regarding the existing power under section 29(1)(b) of the Further and Higher Education Act 1992 to exempt certain institutions from the requirements of section 29 of said Act, which regulates the governance and conduct of designated institutions. This is because any exemption under section 29 (1)(b) must be included in any designation order made under section 28. 
  4. Subsection (3)(b) makes provision to require any such administrative orders be published.  
  5. Subsection (3)(c) makes provision for transitional arrangements. These arrangements would mean existing orders under section 28 and 29(1)(b), made by statutory instrument prior to this legislation coming into force, could not be revoked or amended by administrative order. A further statutory instrument would need to be made to revoke or amend these designation orders.  

Section 33: Office for Students: publication and protection from defamation

  1. This section inserts new sections 67A to 67C into HERA 2017.
  2. Section 67A gives a general power to the OfS to publish notices, decisions and reports given or made in the performance of its functions. For new inserted section 67A:
    1. Subsection (2) provides that this power does not affect any other power of the OfS to publish such a matter.
    2. Subsection (3) provides that publication under this power does not breach any duty of confidence or other restriction on publication or disclosure of information.
    3. Subsection (4) provides that the OfS is not authorised to publish information under this power where doing so would contravene data protection legislation.
    4. Subsection (5) provides that, before deciding whether to publish, the OfS must consider various specified factors.
    5. Subsection (6) makes provision about the meaning of references to decisions for the purposes of this section and sections 67B and 67C.
  3. Section 67B concerns the publication by the OfS of a decision to conduct an investigation. For this inserted section:
    1. Subsection (2) provides that, if a publication identifies a provider or other body or individual whose activities are being investigated and then the OfS subsequently makes no finding or takes no action, then the OfS must publish a notice stating that fact.
    2. Subsection (3) provides that defamation protection is given where specified information is included in the publication.
  4. Section 67C provides that a publication of a notice, decision or report is privileged unless it is shown to have been made with malice (qualified defamation privilege).

Higher education course fee limits: administration

Section 34: Relevant date for purposes of fee limit for certain higher education courses

  1. This section amends paragraph 3(3) of Schedule 2 to HERA 2017. Certain tuition fee limits for academic years of higher education courses depend on whether the provider had a high-level quality rating (currently a Teaching Excellence and Student Outcomes Framework rating) on a particular date.
  2. This section corrects an error in the existing legislation. Previously, the legislation was written such that the particular date, in relation to higher education providers without an access and participation plan, was 1 January in the calendar year before that academic year began. For example, for academic year 2022/23, the relevant date would have been 1 January 2021.
  3. This section changes the date to 1 January in the calendar year in which the academic year begins. This means that, in the case of the example above, the date would be 1 January 2022. This is closer in time to the actual provision and so more accurately reflects the access and participation plan status.

Chapter 3: General Provisions

Section 35: Extent  

  1. This section states the territorial extent of the provisions of the Act. 
  2. Subsection (1) states that the Act extends to England and Wales. 
  3. Subsections (2) and (3) state that the following sections extend also to Scotland and Northern Ireland: sections 11, 16 subsection (3), 35–37 and section 15 in so far as it modifies sections 22 and 23 of the Teaching and Higher Education Act 1998 as those sections extend to Scotland and Northern Ireland respectively. Section 10 extends to Northern Ireland also but not to Scotland.

Section 36: Commencement  

  1. This section states when the provisions of the Act will come into effect.  
  2. Subsection (1) lists the provisions that come into force on the day on which the Act is passed. 
  3. Subsection (2) lists the provisions that come into force two months after the Act is passed. 
  4. Subsections (3) and (4) state that, other than the sections listed in subsections (1) and (2), the Act comes into force on such day (or days) as appointed by regulations made by the Secretary of State and different days may be appointed for different purposes. 
  5. Subsection (5) states that the Secretary of State may make transitional or saving provision in connection with the coming into force of any provision of this Act by way of regulations. 
  6. Subsection (6) states that the power to make regulations under subsection (5) includes power to make different provision for different purposes. 
  7. Subsection (7) states that the regulations made under this section are to be made by statutory instrument. 

Section 37: Short Title  

  1. This section states that the Act may be cited as the Skills and Post-16 Education Act 2022. 

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