What the legislation says

Ofqual’s objective is to promote the development and implementation of regulated assessments which give a reliable indication of achievement and indicate a consistent level of attainment (including over time) between comparable assessments. We must also promote public confidence in regulated assessment arrangements.

Ofqual must keep under review all aspects of statutory national curriculum and EYFS assessment arrangements.

Ofqual has the power to require, at any time, information which it considers necessary for the performance of its functions from specified persons, including the Secretary of State for Children, Schools and Families and national curriculum / EYFS responsible bodies¹

Ofqual has a duty to notify the Secretary of State and national curriculum and EYFS responsible bodies, where appropriate, if it appears that there is or is likely to be significant failings in the assessment arrangements.

Ofqual must produce assessment regulatory frameworks relating to national curriculum and EYFS assessment arrangements and responsible bodies must have regard to these frameworks when performing their functions.

Roles and responsibilities in relation to national curriculum Assessments

22.1There are a number of bodies who have a role in national curriculum and EYFS assessments. These are set out below.

22.2Local authorities have a statutory duty to monitor the administration of national curriculum assessments in their schools in line with the statutory requirements, and moderate teacher assessments at key stage 1.

22.3Head teachers and governing bodies are responsible for ensuring that the statutory national curriculum assessments are administered to all eligible pupils. Head teachers are responsible for ensuring that the tests are administered according to the published statutory assessment arrangements.

22.4QCDA will be responsible, under a remit given to it by the Department for Children, Schools and Families, for producing national curriculum assessments and for setting in place procedures to ensure that the standards defined by QCDA are maintained in each core subject assessment, across key stages and from year to year. QCDA is also required to ensure that schools receive timely information and materials to administer the national curriculum assessments.

22.5Department for Children, Schools and Families sets arrangements for assessment and testing. It also receives data from QCDA on how the national cohort of pupils has performed in the national curriculum assessments at the end of each key stage, and uses this for the publication of Achievement and Attainment tables.

22.6Ofsted uses the aggregated attainment and progress data which is generated by end of key stage tests and teacher assessment as a key evidence base for its inspection judgements.

Roles and responsibilities in relation to the EYFS

22.7Local authorities are responsible for ensuring their schools and private, voluntary and independent settings (PVI settings) administer the statutory framework and reporting arrangements appropriately. They must ensure their schools and PVI settings understand and follow the requirements. Local authorities have a statutory responsibility for moderating EYFS profile judgements to secure consistent standards in the assessment.

22.8Head teachers and heads of EYFS settings must make sure that their schools comply with all aspects of the EYFS. All foundation schools and PVI settings must provide parents/guardians with a written summary of a child’s progress against the early learning goals and assessment scales.

22.9Practitioners have the responsibility of ensuring the consistency and accuracy of their EYFS profile assessments through:

• participating in internal moderation with practitioners in their own school/setting
• attendance at implementation and moderation training where appropriate
• attendance at moderation events at least annually.

22.10QCDA is responsible for monitoring the local authorities’ moderation process and providing local authorities with guidance and examples of good practice.

22.11Ofsted inspects the quality of the delivery of the EYFS and how well providers are meeting the welfare, learning and development requirements. Ofsted also checks that arrangements are in hand for completion of the EYFS profile for children in the final year of EYFS.

22.12The Children’s Workforce Development Council (CWDC) is responsible for defining qualifications and training requirements acceptable for registration as an early years practitioner and for regulatory purposes.

22.13The Department for Children, Schools and Families is responsible for determining the nature and extent of the assessment arrangements and collects EYFS profile achievement. These data are used to gain an overview of improvements in young children’s achievements to meet national targets and how children are performing against the early learning goals.

Promoting the development and implementation of regulated assessment arrangements which maintain standards

22.14The Secretary of State for Children, Schools and Families is responsible for specifying in statutory regulations the arrangements for pupil assessments in relation to each of the key stages of the national curriculum, and the arrangements required for assessing the achievements of children in relation to the learning and development requirements of the EYFS.

22.15We are required to keep under review all aspects of the national curriculum and EYFS assessment arrangements that have been specified by the Secretary of State in statutory orders.²

22.16We have a statutory objective to promote the development and implementation of assessment arrangements which give a reliable indication of achievement, and indicate a consistent level of attainment (including over time) between comparable assessments. We will achieve this by adopting a regulatory approach in line with the principles of good regulation.

22.17We will work closely with stakeholders who share our agenda to ensure the development and implementation of high quality assessments. We will share and promote the good practice that we identify.

The changing assessment landscape

22.18The regulation of assessment arrangements has previously focused on the end of key stage statutory national curriculum tests. However, with the ending of all national tests at key stage 3 and science tests at key stage 2, coupled with the move towards facilitating reliable formative and summative teacher assessments, the assessment landscape has changed markedly in recent years.

22.19Although the Secretary of State is responsible for specifying the assessment arrangements, reflecting his/her policy objectives, he/she must now consult Ofqual before making any changes to them. When responding to such consultation requests, we will evaluate the proposed changes in terms of whether they are likely to allow for assessments which are valid, reliable, comparable, manageable and minimise bias. Our responses will be evidence-based, informed by our monitoring and stakeholder engagement activities.

Expert Group on Assessment

22.20We have a duty to have regard to the specified purposes of regulated assessment arrangements when we review the arrangements. Formally, there is only one purpose for national curriculum assessment, which is to ascertain what pupils have achieved in relation to attainment targets for the relevant key stage. Under the Act, the Secretary of State may specify additional purposes. However, we note that the Secretary of State’s Expert Group on Assessment report http://publications.dcsf.gov.uk/eOrderingDownload/Expert-Group-Report.pdf, published in May 2009, identified the purposes of national curriculum assessments as being:

• to optimise the effectiveness of pupils’ learning and teachers’ teaching
• to hold individual schools accountable for their performance
• to provide parents with information about the child’s progress
• to provide reliable information about national standards over time.

20.21The focus of the Expert Group’s recommendations is on bringing about reliable and consistent assessments which support learning and can command public confidence. To achieve this objective, a wide range of summative and formative assessment is proposed. We will need to consider carefully, given resources available to us, which aspects of statutory assessment we should focus on.

Assessment regulatory frameworks

22.22The Act requires us to develop and publish regulatory frameworks for national curriculum and EYFS assessments which:

• describe how Ofqual intends to keep under review all aspects of national curriculum and EYFS assessment arrangements and
• provide guidance to those bodies that have responsibility for the development, implementation and monitoring of national curriculum and EYFS on how to perform their functions; those bodies are required to have regard to the frameworks.

22.23To meet our assessments standards objective, our approach needs to secure that:

• assessment approaches used are valid, reliable and manageable
• assessments are designed and delivered in a way that is capable of delivering the statutory purposes of assessments
• the content of assessments (knowledge, skills and understanding) accurately reflect the subject criteria which are set for each statutory assessment by Ofqual and agreed with QCDA
• surveys indicate that teachers, parents, pupils, local authorities and other stakeholders have confidence in the outcomes of national curriculum and EYFS assessments
• there is comparability in the assessment outcomes between institutions and year-on-year
• no pupil working at the level of the assessment is disadvantaged or excluded because of their social background, culture, race, gender, ability or disability.

Criteria for national curriculum and EYFS assessments

22.24To ensure our approach is consistent and transparent, we will apply the following criteria when reviewing the development, delivery, marking and reporting of externally assessed tests, internally assessed tasks, and the moderation of teacher assessment and EYFS profile judgements where these are statutory all aspects of national curriculum and EYFS assessment arrangements:

•  Validity –  the assessments must generate results that provide a valid measure of pupils’ knowledge, skills and understanding as defined by the national curriculum and subject criteria.
• Reliability – the assessments must generate results that provide a reliable measure of pupils’ performance.
• Comparability – the assessments must generate results that provide comparability of standards.
• Manageability – the assessment system must be manageable.
• Minimise bias – the assessments must generate outcomes that minimise bias differentiating on the basis of pupils’ ability to meet the requirements.

A fuller explanation of the criteria is included in Annexe B of this document.

Subject criteria

22.25Ofqual will review the subject criteria for each statutory assessment, including:

We will expect assessments to meet both the common and subject criteria.

• the structure of the assessment
• how achievement will be recognised within the assessment
• curriculum coverage and balance across the programme of study
• question or task types and contexts
• permitted equipment and information.

We will expect assessments to meet both the common and subject criteria.

Keeping national curriculum and EYFS assessment arrangements under review

22.26We will adopt an approach to keeping assessment arrangements under review whereby we consider:

• the development and implementation of assessment arrangements against our criteria of validity, reliability, comparability, manageability and minimising bias
• the objectives of the assessment arrangement
• the role that parents, practitioners, teaching assistants and other bodies play in the conduct and quality assurance of the assessment arrangements
• how the outcomes of the assessments are used
• how the sharing of good practice which encourages high quality assessment can be promoted
• how regulation can add value and avoid regulatory burden.

Monitoring

22.27We will undertake specific monitoring activities based on those areas where our risk assessment indicates there is most concern. The risk assessment would be used to determine the nature, scope and frequency of our review activities and will be informed by consideration of the following factors:

• changes to how the assessment arrangements are conducted
• changes to the processes and systems in relation to the assessment arrangement
• the issue of new national guidance and support material, which is designed to ensure assessments are reliable and consistent
• analysis of assessment outcomes data and how data is used
• outcomes of self assessment exercises undertaken by responsible bodies and our previous monitoring
• complaints we have received concerning the assessment arrangements and feedback from Ofsted and other relevant bodies
• the need to ensure our monitoring activities are appropriately targeted and add value
• feedback from parents and practitioners.

Monitoring activities

22.28Informed by our risk assessment we would undertake one or more of the following monitoring activities:

 Systems audit

• reviewing the fitness for purpose of the systems and processes that are intended to ensure the implementation of assessment arrangements which are valid, reliable, comparable, manageable and minimise bias.

 Guidance and training materials

• evaluating the quality of national guidance and training materials intended to help practitioners and teachers make reliable and consistent assessments
• reviewing materials against our common criteria
• providing feedback to responsible bodies.

Moderation

• evaluating the effectiveness of arrangements for monitoring local authority assessment moderation arrangements
• observing the local authority moderation process in a sample of areas in order to validate the effectiveness of the moderation model
• evaluating the effectiveness of the delivery of moderation training to practitioners, for example, review of the training in a variety of EYFS settings including private, voluntary, independent and school-based settings
• consulting on improvements to existing processes.

Assessment outcomes data

Analysing nationally collected data to:

• establish whether assessment outcomes are being used in a way which meets the intended purposes of the assessment arrangements
• understand how the use of assessment outcomes data by local authorities, heads of settings, practitioners, DCSF and Ofsted impacts on assessment practice, and the validity and reliability of the assessment arrangements.

22.29We will publish our annual programme of monitoring. Over time this programme will cover all the stages of the assessment process including the development and delivery of the assessment, suppliers’ delivery systems, teacher and practitioner assessment and moderation

22.30We may re-focus our published programme of monitoring if risks have been identified that threaten the quality or delivery of assessments, or if issues have arisen during a review or health check of a responsible body, its suppliers or their systems.

Guidance for national curriculum and EYFS responsible bodies

22.31We will produce guidance which reflects the purpose of the assessment arrangements and how they are implemented. We will have due regard to the guidance which is produced by other bodies. We will work in partnership with responsible bodies and public authorities to ensure the guidance we produce is consistent and that we do not create an unnecessary burden by, for example, duplicating existing guidance.

22.32The guidance we produce will be designed to allow flexibility in approach to ensure it does not become out of date too quickly, for example by failing to facilitate the transition between bodies that have responsibility for developing or delivering national curriculum tests. The guidance will define the roles and responsibilities of all those involved in the assessment arrangements and the outcomes expected, rather than prescribing a particular process.

Information requirements

22.33To enable us to carry out our role effectively we have the power to require the Secretary of State, national curriculum and EYFS responsible bodies and Ofsted to provide specific information.

22.34When we request information we require we will:

• provide a clear rationale for the information being requested
• provide reasonable notice/timetable to the body from which the information is being requested
• avoid creating unnecessary burden by duplicating information that is already requested or collected by other bodies
• work with responsible bodies to establish effective ways of sharing information
• have due regard to the quality of data and the organisation’s data collection process
• have due regard to the views of teachers, practitioners and other stakeholders when evaluating nationally collected information.

Notification of significant failings

22.35One of the recommendations in Lord Sutherland’s inquiry report³ into the problems with the delivery of national curriculum tests in 2008 was that Ofqual should have a duty to inform the DCSF if it had concerns about the delivery and quality of national curriculum tests. Reflecting this recommendation, the Act requires us to notify the Secretary of State, and the responsible bodies, of a significant failing in the assessment arrangements when we judge there is sufficient evidence to indicate there is, or is likely to be, a failure to achieve one or more of the specified purposes of the assessment arrangements. We will, of course, provide feedback and information to the Secretary of State even when there is not a significant failing, as appropriate.

22.36We propose to consider the following when we assess the likelihood of a significant failing occurring:

• the potential impact on pupils and public confidence in the assessment arrangements
• evidence that responsible bodies are unable to demonstrate that the requirements of the regulatory framework are being satisfactorily met
• any failure of a responsible body to provide information requested by Ofqual in line with the provisions of the Act
• evidence from stakeholder engagement activities indicates the purposes of the assessment arrangements are not being met
• any significant changes to the assessment model and associated quality assurance/moderation arrangements
• substantiated complaints received
• concerns based on relevant and objective information provided by Ofsted. 

22.37Examples of circumstances in which we might notify the Secretary of State and the responsible body of a significant failing in relation to national curriculum assessments include:

• if it became evident to us that there was a risk that significant numbers of test results would be delayed, and that the results would not therefore provide pupils, schools or the government with timely information about the attainment and progress of pupils, where the provision of this information is one of the specified purposes of the assessment; or
• if a new type of national curriculum assessment was being developed which we judged would not provide a reliable assessment of a pupil’s level of attainment.

22.38Examples of circumstances in which we might notify the Secretary of State and the responsible body of a significant failing in EYFS assessments include:

• moderation arrangements do not ensure EYFS assessments give a reliable indication of achievement
• there are shortcomings in the guidance and materials provided to settings which could result in significant variances in the way assessment arrangements are implemented between local authorities, and in turn call into question the consistency of assessments
• stakeholder feedback indicates a lack of confidence in the validity and reliability of assessment outcomes.

Involving stakeholders

22.39The successful delivery of national curriculum and EYFS assessments depends on the involvement of a range of organisations and individuals.  Good regulation depends on putting those who are involved in developing, implementing and receiving the outcomes of the assessment process at the centre of the regulatory process. This approach involves working closely with stakeholders to help identify the focus of our monitoring activities, as well as facilitating the promotion of assessments that meet our criteria. The diagram below illustrates this proposed approach.

22.40We propose to have regular contact with stakeholders (such as QCDA, DCSF, local authorities, Children’s Workforce Development Council, Ofsted, teacher associations, Chartered Institute of Educational Assessors) to:

• gather evidence and feedback on the development and implementation of national curriculum and EYFS assessment arrangements. We would evaluate this evidence against the common criteria of validity, reliability, comparability, manageability and minimising bias, and use it to inform the focus of our monitoring activities
• encourage responsible bodies to develop effective self-assessment mechanisms
• review how the assessment arrangements work in practice against our common criteria and achieve their intended purposes and outcomes
• identify where improvements to existing assessment arrangements could be made
• provide feedback on the outcome of our regulatory activities and share good practice
• identify areas to focus our monitoring for future years.

Parental engagement

22.41One of the key purposes of assessment identified by the Secretary of State’s Expert Group on Assessment is to provide parents with information about their child’s progress.  The views and experiences of parents/guardians/carers will therefore be important to us when we make judgements about the validity and reliability of national curriculum and EYFS assessment arrangements. We will:

• engage with parents through a suitable range of mechanisms (focus groups, questionnaires etc) to generate evidence concerning their experience of the implementation of national curriculum and EYFS assessment arrangements
• seek opinions of practitioners and teachers
• evaluate the extent of parental understanding and engagement with the outcomes of the assessments
• evaluate the level of public confidence in the assessment arrangements and their outcomes.

22.42We will also establish a network of specialists which will be used to:

• inform and validate the focus of our monitoring activities and approach
• provide a link to practitioner and teacher networks
• review and validate the outcomes of our regulatory activities prior to dissemination.

Developing our proposals

22.43The assessment regulatory framework will be finalised in light of responses to both this consultation and further more specific consultations we will undertake.  We will also need to consult on our role in relation to complaints and appeals about assessments.

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1. ‘NC responsible body’ means a person who under or by virtue of an order made under section 87(3)(c) of the Education Act 2002 has functions in relation to the development, implementation or monitoring of NC assessment arrangements. ‘EYFS responsible body’ means a person who under or by virtue of an order made under section 39(1)(a) of the Childcare Act 2006 has functions in relation to the development, implementation or monitoring of EYFS assessment arrangements.
2. The assessment arrangements that fall within Ofqual’s scope are those which are specified by or by virtue of section 87 of the Education Act 2002 and sections 39 to 42 of the Childcare Act 2006.
3. Lord Sutherland (2008), The Sutherland Inquiry: An independent report into the delivery of national curriculum tests in 2008, London: The Stationary Office

How to respond

This consultation closed to respondents at 23:59 on the 8th March 2010.

A PDF version of this consultation is also available to download.

This consultation has now closed to responses.

23.1We would prefer you to respond using the online forms provided within each section or the full listing of all questions.

We will also accept responses by email sent to: consultationresponses@ofqual.gov.uk or by post to Regulatory Policy Team, Spring Place, Coventry Business Park, Herald Avenue, Coventry, CV5 6UB.

The last date for responses is 8 March 2010.

23.2We do not expect everyone who responds to answer every question. You are welcome to respond only to those questions that are most relevant to your interests.

What happens next

23.3The responses will be analysed by an independent body. The report on the responses will be published.

23.4Our Board, which is due to be appointed as from 1 April 2010, will consider the responses and decide how to proceed with the introduction of our new ways of working.

Confidentiality

23.5If you do not wish your response to be published you must indicate clearly that you are submitting your response on a confidential basis. All responses will, however, be made available to the external organisation appointed to analyse the responses.

What the legislation says

It is Ofqual’s objective to promote awareness and understanding of:

• the range of regulated qualifications available
• the benefits of regulated qualifications
• the benefits of recognition to awarding organisations.

It is Ofqual’s objective to promote public confidence in regulated qualifications and regulated assessment arrangements.

Ofqual will be required to publish:

• a register of recognised awarding organisations and the qualifications they offer
• a qualifications regulatory framework setting out how it will perform its monitoring and enforcement duties
• an annual report setting out how it has performed its functions that year.

21.1 Effective and transparent regulation of qualifications and assessments will underpin our efforts to promote understanding of the benefits of, and confidence in, regulated qualifications and assessments. Learners and those who make use of regulated qualifications should be confident that an awarding organisation has been judged to be fit to offer trustworthy qualifications.

21.2We will build on the work we have already undertaken to explain the structure and regulation of certain qualifications, to open up discussions about standards and reliability and to learn more about learners’ concerns and interests.¹ We will target information through a communication strategy. Our use of media such a Youtube and Twitter will be developed further.

We will continue to undertake research and surveys into levels of understanding and public confidence in regulated qualifications and assessments and respond accordingly.

21.3We propose that we should use surveys of, among others, learners, parents, carers, teachers, employers and higher education institutions to help us measure our success in achieving our objectives. We will refine the approaches we have taken in response to the findings from such studies. We will continue to learn from panels of representative groups who have views on regulated qualifications and assessments. We will develop a plan for spreading awareness amongst employers of the benefits of regulation, including the opportunities provided by recognition as an awarding organisation within the QCF.

The register of awarding organisations

21.4We will publish a register of recognised awarding organisations. For each organisation this will include:

• the qualifications in respect of which it is recognised
• the forms of those qualifications which are being awarded
• where appropriate, the number of guided learning hours attached to those qualifications.

21.5We may include other information on the register and we seek views on this.

21.6We intend that the register should be maintained online, be readily accessible to learners and the public, and be capable of interrogation by users so that they can find the information that they require. The register should provide links to awarding organisations so that individuals are able to find out more information about a qualification in which they are interested. It could include search facilities and tools to allow comparisons.

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1. See for example, our guides to qualifications, our animation on our reliability project and videos of meetings with learner panels.

What the legislation says

One of Ofqual’s objectives is to secure the efficient provision of regulated qualifications and in particular that payments to awarding organisations for awarding or authenticating qualifications represent value for money.

The legislation allows Ofqual to impose a fee capping condition on an awarding organisation. It can only do so if it is satisfied this is necessary to secure value for money. A fee-cap can limit the amount of a fee chargeable by an awarding organisation in respect of:

• the award of a qualification it is recognised to offer and
• the provision of any service in connection with such a qualification.

Before imposing such a condition Ofqual must give an awarding organisation notice setting out:

• its reasons for proposing to impose such a condition
• how and when the organisation can make representations.

Ofqual must have regard to the representations made by the awarding organisation.

An awarding organisation can request a review of a decision to impose a fee-cap. Ofqual must arrange for such a review to be undertaken by an independent person who has appropriate skills to do so.

In performing its functions in relation to fee capping Ofqual must have regard to any guidance published by the Secretary of State.

Introduction

20.1We propose that the steps we take to fulfil the efficiency objective should be informed by an understanding of:

• how choices are made between regulated qualifications
• how efficient purchasing and funding decisions can be encouraged
• the impact on awarding organisations’ costs of our own activities and the decisions of policy makers; and
• the competitiveness of the qualifications markets.

20.2A fee-capping condition will be used only where we are satisfied this is necessary to ensure value for money. Such a decision would be evidence based.

Promoting efficient purchasing decisions

20.3We propose that centres and employers should have ready access to information on the costs they would incur and the services they would receive in respect of a qualification awarded by a particular awarding organisation. We have commissioned a study on the costs and benefits of requiring awarding organisations to provide information on prices and services in a specified format and to a specified timetable. If the benefits of awarding organisations providing transparent information on fees and other charges outweigh the costs we propose that we should make this a general condition of the recognition of an awarding organisation. We will publish the report of this study.

The impact of regulatory requirements and policy decisions

20.4The requirements we place on an awarding organisation could have an impact on its costs. Where our requirements could significantly change an awarding organisation’s costs we propose that a regulatory impact assessment should be undertaken.

20.5Similarly, we propose that we should explore and comment on the impact of Government policy decisions on the efficiency of the qualifications market.

Monitoring the market for signs of a lack of competition

20.6Recent guidance¹ from the Office of Fair Trading sets out the principle that effective competition in properly regulated markets can deliver lower prices, better quality goods and services and greater choice for consumers. We start from the presumption that a competitive market is more likely to be efficient and one in which fees and other charges are fair and reasonable. We will therefore monitor the market for signs of a lack of competition.

20.7We will use a range of information to inform this monitoring, including publicly available information, complaints and expressions of concerns. We will consider other information where we are satisfied that the costs of providing the information will not outweigh the benefits of collecting it.

20.8We propose to monitor the market shares of individual awarding organisations, as this is an important factor in assessing dominance. Data that will inform this monitoring is already being collected by us. In order to work out market shares it is first necessary to define the market. This is not a simple matter. We have engaged consultants to investigate the definition of the qualifications market and hope to use their work in our future market reports and calculations of market shares.

20.9The level of fees and charges might be an indicator of an uncompetitive market, for example if fees or charges increased markedly or if they changed up or down in response to entry into or exit from the market. We will therefore monitor fees and charges and how they change.

20.10High profits sustained over a lengthy period might also signal a lack of competition. Many awarding organisations do not seek to maximise their profits. It does not necessarily follow that they will be offering value for money, as they might not be operating efficiently and their costs might therefore be high. We propose to review awarding organisations’ published accounts or the published accounts of the entities of which an awarding organisation is part. These accounts might not always reveal the costs or profitability of providing qualifications. Where this is the case for a large or potentially dominant organisation we may require the provision of disaggregated accounting data.

20.11We have commissioned a study into the costs and benefits of the provision of disaggregated accounting data. This study will be published and will inform our decision about the information we require awarding organisations to provide.

20.12The behaviour of those who are deciding which qualifications to purchase might also affect the degree of competition. Compared with many other markets, purchasers of qualifications may be less price sensitive and more concerned about perceived and actual quality. This may be partly because the choice of qualification may be taken by a person who is not directly linked to the purchasing organisation’s system of financial control. The competitiveness of a market might also be affected by the costs of switching awarding organisations, for example because of the need to buy new teaching and learning resources.

Further analysis of the market

20.13If we have concerns about the operation of the market we propose that we should undertake a detailed economic analysis, or market study. We would either undertake the study ourselves or appoint an external and appropriately qualified body to do so.

20.14Before deciding to undertake a market study we would consider:

• the likely costs of doing so, to awarding organisations, ourselves and others
• the possible benefits that we might obtain
• the extent to which the outcome of the study might promote our ability to achieve the efficiency objective.

20.15We propose that any awarding organisation that would be affected by a decision to undertake a market study should be notified of our intention to do so. We propose that we would publish our reasons. Any representations made would be considered before a final decision was taken.

20.16We would give notice to the awarding organisation of the information we would need and the timetable for its provision. This would be backed up by conditions if necessary.

20.17The market study would involve an evidence-based investigation to determine whether there was sufficient competition in the market and whether the fees and other charges in question were fair and reasonable. Fees and charges would be judged to be fair and reasonable if they enabled the awarding organisation(s) to recover the efficiently incurred costs of providing the qualifications, including the cost of capital.

20.18We propose that market study reports should be published.

Promoting competition

20.19If we found evidence of a lack of competition within the market we would seek to implement the least intrusive regulatory mechanism to achieve our objectives.

20.20We could attempt to promote competition; this could take a number of forms. We could make efforts to make purchasers more aware of the options open to them and highlight the benefits of encouraging those responsible for purchasing decisions to be more responsive to costs. Associated with this would be the improvements we could require to enhance the quality and accessibility of information available to centres and training providers.

20.21Barriers to entry to the market could be assessed and, where possible, removed. This may involve consideration of issues such as the cost of regulation, the impact of cross subsidy or the existence of anti-competitive practices.

20.22A dominant organisation could be restricted by further conditions which would limit its actions or place on it new obligations. For example, Ofqual could require it to provide more detailed accounting information or financially to ring-fence its awarding activities, or a sub-set of them, in areas in which it was dominant. We could also refer it to the Office of Fair Trading, if appropriate.

Fee-capping

20.23A fee-cap condition can only be used if we are satisfied this is necessary to secure value for money. We propose that we should consider the use of a fee-cap condition if we have evidence that an awarding organisation’s fees are not ‘fair and reasonable’ for the service provided. The power to cap fees is the type of power other regulators have in markets where there is a potential for market failure.

20.24We will take into account:

• the competitiveness of the market
• the trend in fee levels over time
• an assessment of the efficient costs of providing the qualification on offer, including the cost of capital
• how the awarding organisation allocates its common costs to its range of qualifications
• the models an awarding organisation might adopt for recovering costs across a range of subjects.

20.25We propose that if we were concerned that an awarding organisation was not delivering value for money we would conduct an investigation to inform a decision on the level, form and term of the fee-cap(s) to be applied. The investigation would consider, for example:

• whether fees should be capped for individual qualifications or components of qualifications
• whether there should be a cap on the rate of increase (or decrease) in a weighted basket of fees for qualifications or components of qualifications
• for what period fees should be capped
• other approaches on the form of the fee-cap to the extent permitted under the legislation.

20.26We would also consider the time for which the cap would apply.

The proposed process for fee-capping

20.27Where our market studies suggest that a fee-cap is the appropriate remedy to address a concern about value for money we must comply with the provisions of the Act which require us to:

• give notice to an awarding organisation of our proposals and explain our reasons
• allow a period for representations from the awarding organisation
• have regard to those representations
• arrange for the review of the decision by an independent and suitably skilled person, should the awarding organisation request one; and
• have regard to any guidance published by the Secretary of State.

20.28A detailed timetable would be given to the awarding organisation when notice was given. A decision to impose a fee-cap could not take effect until the expiry of the period in which a review could be requested and any review had been undertaken.

Independent review of a decision to apply a fee-capping decision

20.29If an awarding organisation requests a review of a decision to impose a fee capping condition we must appoint an independent person, who has the appropriate skills, to undertake the review.

20.30It is proposed that the independent reviewer should consider the evidence that informed the original decision and any representations made by the awarding organisation. The independent reviewer may also seek advice from experts, but the decision would be taken by the reviewer alone.

20.31We propose that a request for a review would have to be submitted in writing no more than 30 working days after receipt of the decision to impose a fee-capping condition. The review of the decision would normally be completed within 60 working days of receipt from the awarding organisation of a request for a review of the decision.

20.32We propose that the independent reviewer would consider whether:

• the process used to make the original decision to impose a fee-cap was fair and reasonable
• the decision was unreasonable in light of the information available at the time the decision was taken.

20.33We propose that the independent reviewer should be able to:

• confirm that the process by which the original decisions was taken was fair and reasonable
• direct that the matter be reconsidered by Ofqual and make any specific directions to Ofqual to consider particular evidence or remedy any defects in its process.

Next steps

20.34We are building on previous work undertaken by the QCA to develop our understanding of the qualifications market(s). This preparatory work will enable the Ofqual Board to give early consideration to the efficiency of the market(s) and whether there is a need to take regulatory action to secure value for money.

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1. Government in markets: Why competition matters – a guide for policy makers September 2009.

What the legislation says

The legislation will also allow Ofqual to impose an entry and inspection condition requiring permission to enter an awarding organisation’s premises to inspect and copy documents if Ofqual deems it necessary in order to:

• satisfy itself that appropriate standards are being maintained in the award of a qualification or
• determine whether or not to impose a fee capping condition.

However, permission need only be granted by the awarding organisation if:

• the premises are not used as a private dwelling
• entry is by an authorised person
• reasonable notice has been given to the awarding organisation and
• entry is at a reasonable time.

Entry and inspection

19.1Cooperation from awarding organisations is normally expected; it is proposed that all awarding organisations should be subject to a general condition to cooperate with Ofqual. However, the Act allows us to set an entry and inspection condition to enable us to enter premises to inspect and copy documents when cooperation is not otherwise forthcoming. Such a condition may be used to allow us to seek assurances that standards are being maintained or to secure information that will help us determine whether a fee capping condition should be imposed, and, if so, what that condition should be.

19.2The legislation places certain limits on the situations in which an awarding organisation would be required to permit entry under an entry and inspection condition. These include:

• the premises must be used by an awarding organisation and not be used as a private dwelling
• entry must be by an authorised person
• reasonable notice has been given to the awarding organisation
• entry must be at a reasonable time.

Situations when an entry and inspection condition may be set

19.3We would normally expect to obtain the information we need with the agreement of the awarding organisation and without having to impose an entry and inspection condition. We would aim to give awarding organisations sufficient notice and details of the information that we require, and ensure our monitoring activities are planned with awarding organisations being notified in advance. Where we need to visit premises, for example to observe a meeting, view learners’ work or inspect documents, this would normally be arranged in agreement with the awarding organisation.

19.4Where agreement cannot be reached, and entry and inspection is needed for specific purposes, it may be necessary for us to impose an entry and inspection condition. Potential situations may include those where:

1. we have grounds to believe that an awarding organisation has been involved in malpractice or maladministration in relation to the award or authentication of a regulated qualification and it is important for us to preserve the integrity of evidence
2. we need to inspect or copy documents which have previously been requested but the awarding organisation has been unable or has refused to supply¹
3. we have not otherwise been able to obtain information needed to inform a decision to impose a fee-capping condition
4. we are responding to incidents, for example security breaches with live question papers, which could affect the maintenance of standards and undermine public confidence. We may wish to visit at short notice to inspect an awarding organisation’s arrangements for the storage of live question papers
5. we need to gain access to computer records that are key to the maintenance of standards of a regulated qualification and that can only be accessed at the awarding organisation’s premises.

Arrangements for approving the setting of an entry and inspection condition

19.5We propose to put in place a process for approving the setting of an entry and inspection condition on an awarding organisation. A decision to set an entry and inspection condition will only be taken:

• where there are reasonable grounds to believe there is an on-going risk to the maintenance of standards in relation to the award or authentication of a qualification and in connection with the potential need to cap fees and
• after reasonable attempts to gather the information voluntarily have been exhausted.

19.6We propose that a decision to impose an entry and inspection condition should be made by a member of our staff who is authorised by the Chair of Ofqual’s Board to impose such a condition. That person would consider the information being sought, a justification as to why the setting of an entry and inspection condition is necessary, details of any previous attempts to obtain the information by agreement and the amount of notice that is proposed to be given to the awarding organisation.

19.7If it is agreed that an entry and inspection condition would be appropriate, a copy of the signed permission would be sent to the awarding organisation in advance of the entry and inspection condition being imposed. The method of delivery of the notice will be determined by the urgency of visit and the notice that is therefore being given. The notice will set out the reasons for entry and the information/documentation/process which we wish to inspect. If entry is required in order to access computer systems, notice of the need to provide suitably trained personnel to enable us to access records will be given.

19.8We would expect to have access to any premises where an awarding organisation conducts its business but not to a private dwelling house.

Access to centres

19.9The purpose of the entry and inspection condition is to enable us to inspect and copy documents held by the awarding organisation. Where the information/documents which we require are held by a centre or a third party contracted by the awarding organisation to support the delivery of qualifications, we would expect the awarding organisation to cooperate and obtain the necessary information/documents from these parties.

19.10To enable us to carry out our normal monitoring and enforcement functions, an awarding organisation will need to ensure that each centre agrees to provide both it and us with access to premises, people and records, and to cooperate with the awarding organisation’s own monitoring activities and ours. We propose that this should be covered by a general recognition condition.

19.11As we will not have the authority to access private dwellings it is proposed that it should be a condition of recognition that awarding organisations must operate out of business, that is, non residential premises.

Authorised persons

19.12Entry to premises must be by an authorised person. An ‘authorised person’ is defined as being a member of Ofqual’s staff who is authorised (generally or specifically) for this purpose.

19.13We will maintain a record of all staff who are authorised to enter awarding organisations’ premises. Authorisation will normally be restricted to staff who are routinely engaged in monitoring or complaint investigation activities. All staff visiting an awarding organisation will have information on the purpose of the visit. The awarding organisation should be able to contact us for confirmation that the member of staff is authorised by Ofqual to enter premises under an entry and inspection condition.

Reasonable notice

19.14The amount of notice that we would give an awarding organisation may depend on the nature and potential impact of the issue. In giving an awarding organisation notice that we wish to enter its premises, we would have to balance the requirement to act reasonably with the need to preserve the integrity of the information/evidence being sought and the urgency of any remedial action. This will be particularly important in cases where we may have grounds to believe an awarding organisation has been involved in malpractice in relation to the award of a regulated qualification.

19.15We would normally ensure the awarding organisation is given a minimum of five working days’ notice of the arrangements for the visit, but this may need to be reduced if there is an urgent need to access information in order to ensure the maintenance of standards or public confidence in the qualification arrangements.

19.16The period of notice that entry will be required that we will consider reasonable will depend on, and be relative to, the urgency of gaining entry to carry out an inspection. In instances where we need to enter premises at short notice, for example in response to allegations of serious malpractice, we propose that a minimum of 24 hours’ notice will normally be given.

Reasonable hours

19.17We would normally expect to be permitted to have access whenever an awarding organisation is conducting its business. We would expect to have access during office hours, but would also expect access when an organisation is holding meetings or undertaking other activities later in the day or at the weekend.

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1. An awarding organisation would be able to exclude from inspection any documents that were subject to legal privilege, that is, communications with its lawyers.