Enforcement and sanctions

Summary

18.1We will act if it appears that an awarding organisation is not complying with a condition. We will act proportionately, in line with the principles of good regulation.There are a number of actions we could take. Our approach would be determined by the seriousness of the non compliance and the urgency of the matter. Our priority will be to protect learners, standards and public confidence in regulated qualifications as per our objectives.

Our approach to enforcement

18.2We intend that our approach to enforcement and sanctions should be guided by good practice in this area. In particular, that we will have regard to the principles and characteristics for regulatory non compliance set out in Regulatory Justice: Making Sanctions Effective, November 2006. Namely:

A sanction should:

1. aim to change the behaviour of the offender
2. aim to eliminate any financial gain or benefit from non-compliance
3. be responsive and consider what is appropriate for the particular offender and regulatory issue
4. be proportionate to the nature of the offence and the harm caused
5. aim to restore the harm caused by the regulatory non-compliance, where appropriate
6. aim to deter future non-compliance.

The regulator should:

1. publish an enforcement policy
2. measure outcomes not just outputs
3. justify their choice of enforcement actions year on year to stakeholders, Ministers and Parliament
4. follow-up enforcement actions where appropriate
5. enforce in a transparent manner
6. be transparent in the way in which it applies and determines administrative penalties
7. avoid perverse incentives that might influence the choice of sanctioning response.

Proposed approach to enforcement

18.3 We expect that most awarding organisations will meet the conditions placed on them: they will recognise the value of regulation and want to act within it. Their own quality assurance arrangements should make sure that they do not inadvertently fail to meet the conditions. However from time to time we might identify instances of non-compliance. This might arise from, for example, our monitoring, standards or comparability activities, or as a result of a complaint. An awarding organisation might also bring a problem to our attention.

18.4 The type of action we will take will depend on the impact and risks associated with the problem. We will consider, for example:

• the impact of the breach of a condition on learners and on public confidence in regulated qualifications
• whether the breach applies to just one qualification or if it affects a range of the awarding organisation’s qualifications
• whether the awarding organisation had itself identified the problem and has taken steps to address it
• whether there is a history of non-compliance.

18.5The following table illustrates the approaches we propose to take in response to incidents of non compliance.

Enforcement action	Examples of incidents when this type of action might be appropriate1	Follow up action
Require an awarding organisation to prepare an action plan setting out how it will address an incidence of non compliance within a timescale	The awarding organisation: is not complying with the condition to minimise the administrative burden it places on others does not have an up to date business continuity plan has not given us complaints information when required	We will seek evidence that the awarding organisation has taken the actions set out in its action plan by the due date. If it fails to do so we will consider whether a condition or a direction would be an appropriate and proportionate response
Impose an 'other' condition of recognition, requiring the awarding organisation to comply with the condition by a given date.	The awarding organisation: has offered qualifications that do not comply with the qualification design or assessment delivery conditions has not published appropriate information about its fees and other charges	We will seek evidence of compliance with the condition by the given date. If the awarding organisation does not comply we will consider whether a direction would be an appropriate and proportionate response. Alternatively we might consider whether withdrawal of recognition would be an appropriate and proportionate response.
Direct the awarding organisation to take specific steps or refrain from doing certain things	The awarding organisation: has refused to comply with qualification specific requirements in place to promote consistency of standards between awarding organisations continues to publish learner support materials that undermine the integrity of its qualifications, despite being asked to refrain from doing so has refused to consider requests for reasonable adjustments from learners	We will seek evidence that the direction has been followed. If the organisation does not follow the direction we could seek a court order to ensure compliance.
Withdraw recognition in respect of some or all of the awarding organisation’s qualifications	The awarding organisation: has failed to comply with a direction and there is a high risk to learners, standards or public confidence has promoted malpractice that has seriously compromised the integrity of the assessment process	We will take steps to protect the interests of learners if recognition is withdrawn

18.6In addition, we may publicly criticise the behaviour of an awarding organisation, where appropriate. The credibility of its qualifications, and therefore of the awarding organisation, depend on its reputation, so public criticism by the regulatory is a potentially significant sanction.

Making a direction

18.7We may direct an awarding organisation to take or refrain from taking specified steps if it fails or is likely to fail to comply with any condition to which recognition is subject, and if that failure prejudices or is likely to prejudice:

• the proper award or authentication by the organisation of any qualification in respect of which the organisation is recognised or
• learners who might reasonably be expected to seek to obtain such a qualification.

We will first give notice of our intention to give a direction.

18.8A decision to give notice of our intention to make a direction will be taken by a member of Ofqual’s staff authorised by the Chair of Ofqual’s Board to take such a decision. The decision may be taken in consultation with colleagues from Ofqual or from the regulators in other parts of the UK, Ofqual’s Chair, and other experts including members of Ofqual’s Board. Such a decision will be informed by consideration of the following:

• evidence that a recognition condition(s) has been breached
• whether the breach has or is likely to prejudice:
• the proper award or authentication by the organisation of any qualification in respect of which the organisation is recognised or
• learners who might reasonably be expected to seek to obtain such a qualification
• whether the awarding organisation accepts that the condition(s) has been breached
• actions already taken to encourage the awarding organisation to comply with the condition(s)
• actions taken by the awarding organisation to comply with the condition
• whether any steps proposed by the awarding organisation will secure compliance with the condition(s), and
• whether the timescale proposed for compliance is reasonable, taking into account the nature of the steps required and the risks to the qualification/learners.

18.9A record will be kept of the evidence considered. If we decide to give a direction the awarding organisation’s accountable officer will be sent:

• formal notice of the reasons why it is proposed that a direction should be given, the nature of the proposed direction and of the period during which representations about the proposed direction may be made by the awarding organisation
• information about the procedure to be followed to make representations
• information about the steps that will be taken to enforce the direction, if it is given.

18.10Notice will be sent by email and by post and it will be assumed that the notice was received on the date the email was sent, unless there is evidence to the contrary. Representations will need to be made in writing to Ofqual and submitted by email and by post to the designated officer named in the notice. Representations will normally need to be received by us within 30 working days of receipt of the notice. This period may be reduced where there is an urgent need to bring about action in order to protect the interests of learners or secure that standards are maintained. The representations should address the reasons for the proposed direction included in the notice, the reasonableness of the proposed direction(s) and the timescale given for compliance.

18.11Any representation received from an awarding organisation will be considered by the person who made the decision to issue the notice, in consultation with the Chair of Ofqual’s Board, other experts, including board members, colleagues from Ofqual or from regulators in other parts of the UK.

18.12It may be decided that:

• the proposed direction should be given or
• an amended direction should be given, without further notice or
• no direction should be given or
• further information should be requested from the awarding organisation, within a given time period, to support its representations, following consideration of which a decision will be taken to give the proposed or an alternative direction
• the decision to give a direction should be substituted with a decision to give notice of an intention to withdraw recognition.

18.13Where we exercise our power to direct an awarding organisation to take or refrain from certain action, and the organisation fails to do so in accordance with the direction, we may apply to the court for an order stating that it must comply. A failure to comply with a court order compelling the awarding organisation to do as directed may result in contempt of court.

Giving notice of intention to withdraw recognition from an awarding organisation

18.14If an awarding organisation has failed to comply with any condition to which recognition is subject, and that failure prejudices or is likely to prejudice:

• the proper award or authentication by the awarding organisation of any qualification in respect of which it is recognised or
• learners who might reasonably be expected to seek to obtain such a qualification. We may withdraw recognition from the awarding organisation in full or in respect of specified qualifications or a description of qualifications. We will first need to give notice of our intention to do so.

18.15A decision to give notice of our intention to withdraw recognition will be taken by a member of Ofqual’s staff authorised by the Chair of Ofqual’s Board to take such a decision. The decision may be taken in consultation with colleagues from Ofqual or from the regulators in other parts of the UK, the Chair of Ofqual’s Board, and other experts including members of Ofqual’s Board. The following will be considered before any decision is taken:

• the evidence that a recognition condition(s) has been breached
• whether the breach has or is likely to prejudice:
• the proper award or authentication by the awarding organisation of any qualification in respect of which the awarding organisation is recognised or
• learners who might reasonably be expected to seek to obtain such a qualification

• whether the awarding organisation accepts that the condition(s) has been breached
• actions taken to encourage the awarding organisation to comply with the condition(s), including whether a direction has been given and, if so, actions to taken to ensure compliance
• what steps have been taken by the awarding organisation to ensure compliance with the condition(s)
• the impact withdrawal of recognition would have on learners
• the nature of any saving or transitional provisions to be made to protect the interests of learners or for any other reason.

18.16A record will be kept of the evidence considered. If a decision is taken to withdraw recognition, notice of this decision will be sent to the awarding organisation’s chair (or equivalent) and to its accountable officer. This will provide:

• formal notice of the reasons why it is proposed that recognition should be withdrawn, the date of the proposed withdrawal, whether the proposed withdrawal is in respect of all or particular qualifications or types of qualification only, and the period during which representations about the proposal may be made by the awarding organisation
• any saving or transitional provisions that we intend to make to protect the interests of learners or otherwise
• information about the procedure to be followed to make representations.

18.17Notice will be sent by email and by post and it will be assumed that the notice was received on the date the email was sent, unless there is evidence to the contrary. Representations will need to be made in writing to Ofqual and submitted by email and by post to the designated officer named in the notice. Representations must normally be made within 30 working days of receipt of the notice. This may be reduced if it is considered that there is an urgent need, in the interests of learners or the security of standards of regulated qualifications, to expedite the timetable for a final decision to be made. The representations should address the reasons for the proposed withdrawal of recognition included in the notice.

18.18Any representation received from an awarding organisation will be considered by the person who made the decision to issue the notice, in consultation with the Chair of Ofqual’s Board, other experts, including board members, colleagues from Ofqual or from regulators in other parts of the UK.

18.19The following decisions may be made:

• the withdrawal should proceed as proposed in the notice
• the withdrawal should proceed subject to an amendment to the timing of the withdrawal and/or the scope of the withdrawal
• the notice should be rescinded and replaced with a notice of an intention to give a direction
• further efforts should be made to ensure compliance with a direction previously given
• the notice should be rescinded
• that further information to support its representations should be sought from the awarding organisation, within a given time period, following consideration of which the post holder will decide which of the actions above should be taken.

Independent review of a decision to withdraw recognition

18.20 An awarding organisation may request a review of a decision to withdraw recognition. If such a request is made, we are required under the Act to appoint an independent person to undertake the review.

18.21 The independent reviewer will 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.

18.22 A request for a review must be submitted by the awarding organisation in writing no more than 30 working days after receipt of the confirmed decision to withdraw recognition. The review of the decision would normally be completed within 60 working days of the receipt from the awarding organisation of a request for a review of the decision.

18.23 The independent reviewer will consider whether:

• the process used to make the original decision to withdraw recognition was fair and reasonable
• the decision was unreasonable in light of the information available at the time the decision was taken.

18.24 The independent reviewer may:

• confirm the process by which the original decision 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.

Questions:

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1. The examples are illustrative only and they are not mutually exclusive. The examples included are not exhaustive. Reference is made in some of the examples to proposed conditions of recognition. The draft conditions of recognition are the subject of consultation and therefore subject to revision. Specific conditions may also be imposed on an individual awarding organisation’s recognition at the time of recognition or subsequently. [↩]