3.The Education Act makes three main changes to our powers. Firstly, it removes the limitations on our powers to direct an awarding organisation that has or is likely to breach one or more of its conditions of recognition or to withdraw the recognition from an awarding organisation that has breached its conditions. Currently, before we can exercise these powers, we have to show how the action the awarding organisation is taking ‘prejudices’ standards or learners. Second, it gives us a new power to recover the costs of our action carried out as part of our statutory enforcement activities.

4.Finally, it allows us to impose a monetary penalty (fine) on an awarding organisation that has breached its conditions of recognition. The power to fine given to us is in line with that granted to most regulators that have this power. In accordance with common practice, we have to give notice of our decision to fine and the reasons for it; there is a cap on the maximum fine that we can levy (10 per cent of the organisation’s turnover), and there is a power to recover unpaid fines and interest on them through the courts. When we exercise this power, the awarding organisation has the right of appeal to the First Tier Tribunal. The changes to our powers are all reflected in the changes we have proposed in Taking Regulatory Action, Version 2.

5.The Act provides for secondary legislation to set out how an awarding organisation’s turnover is calculated (to determine the cap on fines of 10 per cent of turnover which is specified the legislation).  The Department for Education (DfE) is leading on introducing this secondary legislation. The DfE started a consultation on its proposals in December and details of it are available here: www.education.gov.uk/consultations. The DfE’s consultation is separate from this one, and any views on this matter should be expressed to them.

6.We are liaising with the Department for Education and Skills (DfES), the regulator in Wales, on the development of our policy and procedures, since similar powers have also been given to Welsh Ministers for the regulation of qualifications in Wales. DfES is conducting a separate consultation on the use of its new powers, which covers fining arrangements only. This consultation is available at: http://wales.gov.uk/consultations/education/?lang=en. We will attempt to align our policies, as appropriate, as part of our response to the outcomes of our consultations.

7.As we are inviting comment on only those parts of Taking Regulatory Action, version 2 that are new or have been substantively revised from the first version, we are seeking views on sections 1, 5, 6, 7 and 8. We are not consulting on changes to the other sections of the document at this time.