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Apprenticeships, Skills, Children and Learning Act 2009

Part 7: Office of Qualifications and Examinations Regulation

360.This Part provides for the establishment of a new Non-Ministerial Department, Ofqual. In relation to England, the new body will regulate academic and vocational qualifications (excluding foundation, first or higher degrees) and National Curriculum (NC) and Early Years Foundation Stage (EYFS) assessment arrangements. Ofqual will also regulate vocational qualifications in Northern Ireland.

361.Ofqual will take over the regulatory functions of the Qualifications and Curriculum Authority (QCA), although with differences in the ways the functions are exercised, and with a different set of powers, principles and objectives governing their exercise. Part 8 of the Act re-names the QCA the Qualifications and Curriculum Development Agency (QCDA), with that body retaining its non-regulatory functions.

362.Regulation of qualifications is, and will remain, voluntary: there is no prohibition on any person offering a qualification without having been recognised by Ofqual. There are two key reasons why bodies will choose to seek recognition by Ofqual and so to have the qualifications they award regulated: first, because being regulated shows that the body has been checked as being fit to award trustworthy qualifications; and second, because, as a matter of policy, the Government will normally only approve qualifications for funding by maintained schools or in colleges if they are regulated.

363.In April 2008, as a first step towards the establishment of Ofqual as a statutory regulator, the Secretary of State for Children, Schools and Families directed the QCA to set up a committee for the purpose of “exercising on behalf of QCA functions and powers in relation to the regulation of qualifications and National Curriculum assessments”. In this way “Interim Ofqual” was established, operating within the parameters of the current legislation. The provisions of the Act complete the transition to having a separate regulator for qualifications and assessment arrangements by establishing Ofqual.

Chapter 1: Establishment, objectives and general duties
Section 127: The Office of Qualifications and Examinations Regulation

364.This section establishes the Office of Qualifications and Examinations Regulation as a body corporate, specifies that the body will be referred to as “Ofqual” in this Act, and gives effect to Schedule 9, which contains further detailed provisions about matters such as Ofqual’s constitution and proceedings.

Schedule 9: The Office of Qualifications and Examinations Regulation

365.This Schedule makes provision about the constitution and governance of Ofqual.

Status

366.Ofqual is to perform its functions on behalf of the Crown (paragraph 1). This provision makes Ofqual a Non-Ministerial Department.

Membership

367.The Chair of Ofqual is appointed by the Crown. The Chair will be known as the Chief Regulator of Qualifications and Examinations. The Government does not intend this title to imply that the Chair has any statutory functions in his or her own right – all the functions in Part 7 are functions of Ofqual itself – but in practice the Chief Regulator is likely to be the public face of Ofqual.

368.The “ordinary members” are appointed by the Secretary of State following consultation (in all usual circumstances) with the Chief Regulator. Paragraphs 2(5) and (6) set out the procedures to be followed if it is not practicable for the Secretary of State to consult the Chief Regulator (because, for example, there is a vacancy) and it is necessary to make the appointment before it would be practicable to do so. Ofqual may appoint one of its ordinary members as the deputy chair. One of the ordinary members must be appointed following consultation with the Department for Employment and Learning in Northern Ireland, reflecting Ofqual’s responsibilities there. The procedures relating to the removal of members or the removal of the deputy from that office are set out in paragraph 4.

369.Paragraphs 2 to 5 set out the arrangements for appointing the Chief Regulator and ordinary members, the terms of appointments, and the responsibility of the Secretary of State for determining their remuneration, allowances and expenses.

Chief executive and other staff

370.The chief executive of Ofqual is an ex-officio member of Ofqual. Paragraph 6 provides that the first chief executive will be appointed by the Secretary of State (because Ofqual will not exist at that stage, it may not appoint); thereafter the appointment will be for Ofqual. Ofqual may appoint staff; the numbers of staff and their conditions of service are to be agreed with the Secretary of State.

Committees

371.Paragraphs 7 to 11 set out the arrangements for Ofqual establishing and delegating to committees and sub-committees, and give Ofqual the power to establish a committee jointly with another body. (The latter power would, for example, allow Ofqual to set up a joint committee with other qualifications regulators in the United Kingdom.) Joint committees are allowed to regulate their own procedure. Paragraph 10 also allows Ofqual to delegate functions to a member of Ofqual or of its staff.

Supplementary powers

372.Under paragraph 14, Ofqual may do anything that it considers necessary or appropriate for the purposes of, or in connection with, its functions, but may not lend money.

Objectives and general duties
Section 128: Objectives

373.This section sets out five objectives for Ofqual in discharging its functions:

  • the qualifications standards objective,

  • the assessments standards objective,

  • the public confidence objective,

  • the awareness objective, and

  • the efficiency objective.

374.The statutory objectives in the current legislation, which apply to both QCA’s regulatory and non-regulatory functions, are much broader.

375.Ofqual’s objectives relate to “regulated qualifications”, which is a term defined in section 130 or to “regulated assessment arrangements”, as defined in section 131.

376.The qualifications standards objective – set out in section 128(2) – is for Ofqual to secure that regulated qualifications: (a) give a reliable indication of knowledge, skills and understanding; and (b) indicate a consistent level of attainment (including over time) between comparable regulated qualifications. “Reliability” here is used not in the sense used by qualifications experts, which means consistency of assessments, but rather in the broader general sense, which includes ensuring that the qualifications and the way in which they are assessed offer a valid way of measuring knowledge, skills and understanding.

377.Similarly, the assessment standards objective – set out in subsection (3) – is for Ofqual to promote the development and implementation of regulated assessment arrangements which: (a) give a reliable indication of achievement, and (b) indicate a consistent level of attainment (including over time) between comparable assessments. The ultimate responsibility for regulated assessment arrangements, which are statutory assessments, lies with the Secretary of State, so Ofqual’s role is to monitor and report on those arrangements, and in doing so to promote the maintenance of standards.

378.Ofqual must perform its functions with the aim of ensuring that comparable qualifications– whether they are contemporaneous or delivered at different times – indicate a consistent level of attainment. If the requirements of a qualification have changed over time, perhaps because the requirements of the industry to which they relate have evolved (this will be a particular issue in the IT industry, for example), it may be that a modern qualification is not comparable with its predecessor and therefore that Ofqual does not have to secure that the two qualifications indicate a consistent level of attainment. But if two qualifications are comparable, Ofqual must act to ensure that they do indicate a consistent level of attainment.

379.A similar set of requirements applies to the promotion of regulated assessments standards.

380.The standards of qualifications and assessments – the benchmarks against which learners are measured, or “assessment standards” – are not the same thing as the standards of education more broadly (“performance standards”). “Standards” in this first sense are like the height of a hurdle, and Ofqual’s objective is to keep that height consistent between comparable qualifications and assessments, including over time. Whilst it is generally a policy objective of the Government to improve the quality of teaching and learning so that the number of people able to jump the hurdle increases (which is how the term “standards” is more commonly used), that is not a concern of Ofqual’s under its standards objectives.

381.The public confidence objective is set out in subsection (4) and requires Ofqual to promote public confidence in regulated qualifications and regulated assessment arrangements. This is to ensure not only that qualifications are reliable but that they are trusted.

382.The awareness objective is set out in subsection (5) and, unlike the standards and public confidence objectives, it applies only in relation to regulated qualifications. The Secretary of State has statutory responsibility for regulated assessment arrangements, so it is for him to determine how to ensure that there is sufficient awareness of them.

383.This objective is concerned with promoting awareness of the range of regulated qualifications on offer, the benefits of regulated qualifications to learners, employers and institutions within the higher education sector and the benefits to awarding bodies (including, for example, employers awarding their own qualifications) of regulation.

384.The efficiency objective is set out in subsection (6) and requires Ofqual to ensure that regulated qualifications are provided efficiently and that any relevant sums payable for the award or authentication of a regulated qualification represent value for money. This objective reflects the fact that Ofqual will have a role as an economic regulator, including a power to cap examination fees. Ofqual does not have a specific efficiency objective in relation to regulated assessments, because these are statutory assessments delivered on behalf of the Secretary of State, rather than – as with qualifications – by independent organisations operating in a regulated market.

Section 129: General duties

385.Subsection (1) requires Ofqual in carrying out its functions so far as is reasonably practicable to act in a way that is compatible with its objectives under section 128 and which it considers most appropriate for the purposes of meeting those objectives.

386.Subsection (2) sets out the matters to which Ofqual must have regard in performing its functions.

387.Subsection (2)(a) requires Ofqual to have regard to the need to ensure that the number of regulated qualifications is appropriate. Subsection (3) provides that an “appropriate” number of qualifications is based on ensuring a reasonable level of choice for learners in terms of both the number of different regulated qualifications on offer, and the number of different forms of each regulated qualification; but that the number of different qualifications in similar subject areas or serving similar functions should not be excessive. For example, it would be appropriate for there to be a choice of versions (or forms) of a qualification called “retail management”, offered by a range of different awarding bodies. However, Ofqual should seek to avoid an excessive number of qualifications that are similar to “retail management”, but with slightly different titles, which risks causing confusion.

388.Subsections (2)(b) and (c) require Ofqual to have regard to the reasonable requirements of:

  • those who are seeking to obtain or who might reasonably be expected to seek to obtain regulated qualifications, and

  • in relation to regulated assessment arrangements, pupils and children,

including in each case those with learning difficulties.

389.The terms used in these subsections are defined in subsections (9) to (11).

390.Under subsections (2)(d) and (e), Ofqual must have regard to the reasonable requirements of employers and institutions within the higher education sector (as defined in section 172(1)).

391.Under subsection (2)(f), Ofqual must have regard to information provided to it by the QCDA and Ofsted, and any bodies specified by the Secretary of State which have knowledge of or expertise in the requirements of industry, commerce, finance, the professions or other employers regarding education and training. This provision will allow the current arrangements to continue, by which the regulator must take into account the views of Sector Skills Councils in relation to qualifications in their sectors. Under a similar provision in the current legislation (section 26 of the Education Act 1997), Sector Skills Councils in England have been designated by the Secretary of State as bodies to which the regulator must have regard in regulating vocational qualifications. This is in support of the Government’s policy for improving the relevance to employers of vocational qualifications as part of its skills strategy.

392.Under subsection (2)(g), Ofqual must have regard to the desirability of facilitating innovation in connection with the provision of regulated qualifications.

393.Subsection (2)(h) requires Ofqual to have regard to the specified purposes of regulated assessment arrangements, as defined in section 131(6). The definition operates by reference to definitions in section 76(1) of the Education Act 2002 and section 41(2)(c) of the Childcare Act 2006. These make provision about the purposes respectively of National Curriculum assessment arrangements (NC assessment arrangements) and of assessment arrangements in connection with the learning and development requirements of the Early Years Foundation Stage (EYFS assessment arrangements). The purpose of NC assessment arrangements is “ascertaining what [pupils] have achieved in relation to the attainment targets for that stage”, and for the EYFS assessment arrangements “ascertaining what [children] have achieved in relation to the early learning goals”. Those provisions are amended by paragraphs 32 and 39 of Schedule 12 respectively to allow the Secretary of State to specify additional purposes of assessment arrangements to which Ofqual would then need to have regard.

394.Subsection (6) requires Ofqual to have regard to such aspects of Government policy as the Secretary of State directs. This provision is modelled on a similar provision in the legislation setting up Ofsted. The Government expects this provision to be used, for example, to specify that the Government wished to ensure that assessment were not unduly burdensome for schools. Any such direction is not intended to impinge on Ofqual’s independence – it would not require Ofqual to act in a particular way, simply to take into account the policy in question in deciding how it would be appropriate for it to act. Subsection (7) requires the Secretary of State to publish any such direction.

Regulated qualifications and regulated assessment arrangements
Section 130: Meaning of “regulated qualifications” etc.

395.This section describes the types of qualifications that Ofqual has the power to regulate.

396.For a qualification to be a “regulated qualification”, three criteria must be met:

  • it must not be a foundation, first or higher degree;

  • it must either (a) be awarded or authenticated in England, or (b) be a vocational qualification awarded or authenticated in Northern Ireland;

  • it must be awarded or authenticated by a body which is recognised by Ofqual under section 132 in relation to that qualification.

397.The meaning of awarding or authenticating a qualification “in England” and “in Northern Ireland” is explained in subsection (4): there must be, or may reasonably be expected to be, persons seeking to obtain the qualification who are, will be or may reasonably be expected to be assessed wholly or mainly in England or Northern Ireland.

398.Ofqual’s role in regulating relevant vocational qualifications in Northern Ireland may be removed by order of the Secretary of State. Before making such an order he would have first to consult the Department for Employment and Learning in Northern Ireland and the order would be subject to the affirmative procedure. This is to allow for the possibility that the Northern Ireland authorities may in future wish to change the arrangements for the regulation of qualifications in Northern Ireland.

399.In the Education Act 1997, the QCA’s regulatory responsibilities relate to external qualifications, defined as:

any academic or vocational qualification authenticated or awarded by an outside person… (section 24(6)(a)).

400.The restriction to external qualifications has been removed in the Act, which means that Ofqual may recognise bodies which both teach and award qualifications – for example, employers or colleges which have the capability to do so. This change has implications for other legislation, for example for section 96 of the Learning and Skills Act 2000, which is amended by paragraph 27 of Schedule 12.

Section 131: Meaning of “regulated assessment arrangements”etc.

401.This section describes the types of assessment that Ofqual has the duty to keep under review. “Regulated assessment arrangements” means the arrangements made for assessing pupils in England in respect of each key stage of the NC; and the arrangements for assessing children in England. (This equates currently to NC tests at Key Stages 1 and 2, teacher assessment as part of Key Stages 1-3 and the EYFS Profile.) As noted above the purpose of NC assessment arrangements is “ascertaining what [pupils] have achieved in relation to the attainment targets for that stage”, and for the EYFS assessment arrangements “ascertaining what [children] have achieved in relation to the early learning goals”; and there is a new provision in the Act for the Secretary of State to specify additional purposes by order. These defined specified purposes provide Ofqual with a policy framework within which it is to monitor and report upon regulated assessment arrangements, and it is required to “have regard to” these purposes.

402.The NC assessment arrangements are made under the Education Act 2002, setting out the arrangements for assessing pupils at each key stage of the NC. The EYFS assessment arrangements are made under the Childcare Act 2006.

Chapter 2: Functions in relation to qualifications

403.Under the Education Act 1997, which established the QCA as the regulator of qualifications, the QCA regulates at qualification level – in other words, it accredits individual qualifications. The Education and Skills Act 2008 amended the 1997 Act to give the QCA the additional function of recognising awarding bodies. Under the 1997 Act as so amended, only qualifications offered by recognised bodies are eligible to be accredited. Under the provisions in this Act, the general requirement to accredit individual forms of qualifications will be removed, so that the focus of Ofqual’s regulation will be at organisational level. Provided that a body has been recognised in respect of a specific qualification or description of qualification, it will not necessarily have to obtain accreditation for a form of the qualification which it awards or authenticates. But Ofqual will still be able to require accreditation of forms of qualifications, either where it judges that this is required in relation to a particular type of qualification, or where it is concerned about the performance of a specific awarding body.

404.The following table sets out the possible combinations of recognition and accreditation.

Awarding Body RecognisedAwarding Body Not Recognised
Qualifications not AccreditedThe default position for a qualification subject to regulation.The awarding body may offer qualifications provided it does not claim they are regulated by Ofqual. It is unlikely that the Secretary of State would approve such qualifications for public funding.
Qualifications Accredited

Ofqual may decide to introduce an accreditation requirement for a qualification or a description of qualification (section 138). This could be because Ofqual:

  • had decided that a particular type of qualification needed particular scrutiny, if for example it was widely used, was new or was judged to be particularly high risk; or

  • was concerned about a specific awarding body and wished to check particularly closely that any new qualifications the body developed would comply with the terms of its recognition.

Not possible
Recognition of awarding bodies
Section 132: Recognition

405.This section requires Ofqual to “recognise” awarding bodies in respect of specific qualifications or descriptions of qualification (or in respect of credits for components of qualifications). Ofqual could use a “description of qualification” in two ways. The first is to make more general provision (for example, to catch a class of qualifications, covering a number of different subject or sector areas. Examples would include ‘A-level’ or ‘National Vocational Qualification (NVQ)’). The second is to make more specific provision, for example, to limit what is caught to a particular form of a type of qualification. For example, ‘history GCSEs assessed 100% by course work’ is a description of a qualification.

406.By recognising a body Ofqual confirms that the body is fit to award or authenticate the qualifications or qualifications of a description for which it is recognised, in other words that it has the appropriate systems, expertise and organisational robustness to allow it to do so effectively. Ofqual must recognise a body to award or authenticate particular qualifications or categories of qualification (or credits in respect of components of qualifications) only where a body applies for recognition and meets Ofqual’s criteria for recognition. The terms “awarding body”, “recognised body” and “recognition” are defined at section 132(9).

407.Ofqual may not charge for recognition of an awarding body.

408.Recognition may be subject to three types of condition: general conditions, an accreditation condition, and other conditions imposed by Ofqual on individual recognitions. General conditions are dealt with in section 134 (see paragraphs 412 to 415 below). Accreditation conditions apply to recognition in respect of qualifications, or descriptions of qualifications, subject to the accreditation requirement – that is a requirement imposed by Ofqual that any form of the qualification or of qualifications of the relevant description is, or are, required to be accredited. An accreditation condition prohibits the recognised body from awarding a particular form of that qualification or of a qualification of that description, until accreditation for that form of qualification has been obtained. A recognition in respect of the award or authentication of a credit in respect of a component of a qualification cannot be subject to an accreditation condition.

409.Conditions may be imposed either when recognition is granted or at a later time. In the case of general conditions, these may be disapplied in individual cases, either at the time of recognition or later.

Section 133: Criteria for recognition

410.Ofqual will have discretion to set the criteria it will use to decide whether to recognise an awarding body. It must consult with such persons as it considers appropriate before setting or revising the criteria and must publish those criteria.

411.In exercising this function, Ofqual is to be able to set different criteria for recognition of different descriptions of awarding bodies, for recognition in respect of different qualifications (or credits in respect of different components of qualifications) or different descriptions of qualifications (or credits in respect of different descriptions of components of qualifications). Examples of criteria may include requirements as to the evidence to be provided to give adequate assurance of organisational stability; the existence of adequate processes for quality assurance; financial soundness of the organisation concerned; and the appropriateness of the processes of the awarding body for developing the qualifications for which recognition has been sought. Criteria may also cover factors such as the previous history of an awarding body prior to any application.

Section 134: General conditions of recognition

412.This section allows Ofqual to impose general conditions on recognition. Conditions are general in the sense that they are able to apply to all recognised bodies or particular descriptions of recognised body. Under subsections (3), (4) and (5), these conditions may be changed at any time, provided Ofqual publishes them following consultation with such persons that it considers appropriate.

413.The conditions in section 134 will be central to Ofqual’s regulatory role – it is through the setting of conditions (and where necessary enforcing compliance with those conditions) that Ofqual will be able to achieve its objectives in relation to qualifications.

414.Under the current regime, the QCA can impose conditions on accreditation and recognition. Under the provisions of the Act conditions will be imposed only on recognition, but in doing so Ofqual will be able to impose conditions which relate to particular qualifications or even to specific versions of a particular qualification, including conditions that flow from the accreditation process where it applies.

415.Examples of the general conditions Ofqual might impose under this power include:

  • conditions requiring those awarding bodies offering GCSEs and A-levels to work together to ensure consistency of standards, to notify Ofqual by a specified date where there are problems with agreeing the standard and to accept Ofqual’s judgment about that standard in that event;

  • broad regulatory principles, such as a condition that awarding bodies must deal with Ofqual in an open and cooperative way, including for example an obligation to disclose any information about changes to the awarding body of which Ofqual could reasonably expect notice; or

  • the specific requirements that apply in relation to the award of a particular qualification or class of qualifications – for example that vocational qualifications must meet the requirements of the relevant Sector Skills Council.

Section 135: Other conditions of recognition

416.Ofqual has a broad power to impose other conditions in relation to a recognition (see section 132(3)(d)). This section makes provision about two such types of condition:

  • conditions limiting the amount a recognised body may charge for the award or authentication of a qualification in respect of which the body is recognised or for a service provided in connection with such a qualification (a “fee capping condition”). This is one of the main mechanisms by which Ofqual may pursue its efficiency objective. A fee capping condition may in the circumstances described in section 136, be applied to any charge levied in relation to the award or authentication of a qualification or any other service provided in relation to such a qualification. It might include, for example, fees charged by the recognised body to recognise a school or college wishing to offer the qualification;

  • conditions requiring a recognised body to permit Ofqual to enter the body’s premises so far as is necessary for the purposes of inspecting and copying documents (an “entry and inspection condition”). However such a condition may be imposed only to enable Ofqual to investigate the maintenance of standards in relation to the award by a recognised body of a qualification in respect of which the body is recognised or the need for a fee capping condition.

417.Further provisions about these conditions are in sections 136 and 137.

Section 136: Fee capping conditions: supplementary

418.This section sets out the test that must be met before Ofqual can impose a fee capping condition, and the process that must be used where Ofqual proposes to do so. Ofqual can only impose such a condition limiting the amount of a particular fee if this is necessary for securing value for money. Before doing so Ofqual must give notice of its intention to impose a fee capping condition, and it must take account of any representations made by the recognised body in question before reaching a decision. Where Ofqual decides to impose a fee capping condition it must establish arrangements for an independent review of the decision if requested to do so by the relevant recognised body. In performing its functions in relation to fee capping conditions, Ofqual must have regard to any guidance from the Secretary of State, guidance that has to have been published. This provision over guidance reflects the fact that a significant proportion of the bodies which will be paying fees for many qualifications will be publicly funded. The current legislation gives the QCA a power to impose a fee capping condition, but the exercise of the power is subject to the consent of the Secretary of State.

Section 137: Entry and inspection conditions: supplementary

419.This section limits what Ofqual may require under an entry and inspection condition. Under the current legislation the QCA has a power to set a similar condition, but in the context of this legislation the safeguards in subsection (1) have been added. Subsection (3) refers to Ofqual having the power to do anything mentioned in section 58 of the Education Act 2005 in relation to the inspection of documents by an authorised person. In summary, this provision enables such a person to inspect records or other documents to which they are entitled at any reasonable time to have access, including checking the operation of any computer and associated apparatus or material relating to these records or documents. Subsection (3) will also enable an entry and inspection condition to require the user or person in charge of the computer, apparatus or material to give Ofqual any assistance that it may reasonably require.

Accreditation of certain qualifications
Section 138: Qualifications subject to the accreditation requirement

420.Under this section Ofqual may decide that a certain qualification, or qualifications falling within a certain description, is or are subject to the accreditation requirement. The effect of this is that a recognised body cannot award or authenticate any form of such a qualification unless the particular form is individually accredited. This requirement may be applied to a qualification in relation to all recognised bodies or only in relation to a specific recognised body. The requirement cannot be applied to a component of a qualification.

421.Before deciding to apply the accreditation requirement to a qualification in relation to all recognised bodies, Ofqual must consult such persons as it considers appropriate. Where the requirement it is to be applied to a qualification in relation to an individual recognised body it is that body alone that Ofqual must consult. Any decision reached by Ofqual to impose the requirement in respect of a qualification in relation to all recognised bodies must be published. Ofqual is able to revise any determination made under this section.

Section 139: Accreditation

422.This section provides for the process of accrediting particular forms of qualifications. Where a form of a qualification is submitted to Ofqual for accreditation it must be accredited if it meets the criteria for accreditation. An awarding body may award or authenticate a particular type of qualification, such as an English GCSE, in different forms. For example a version with material suitable for pre-16 students and one suitable for older students. Each form must be accredited if the qualification as a whole is subject to the accreditation requirement.

423.Ofqual may not charge for accreditation. (In contrast, the QCA currently has a power to charge for accreditation.)

Section 140: Criteria for accreditation

424.This section requires Ofqual to publish the criteria for accreditation or any subsequent revisions of those criteria. Ofqual must consult before setting or changing these criteria.

425.The criteria for accreditation are a threshold requirement – a recognised body must meet these criteria before it may award or authenticate a qualification that is subject to the accreditation requirement. Once that threshold requirement is met, satisfying the criteria is not as such an ongoing requirement of the recognised body. However, Ofqual will be able to mirror all relevant criteria in general or specific conditions in order to ensure continued compliance by the recognised body with the criteria. For example, if the initial criteria relating to a particular qualification specified that the awarding body would have to have certain quality assurance processes in place, Ofqual could make it an ongoing requirement that those processes were maintained and used through the imposition of conditions to that effect.

426.If Ofqual revises accreditation criteria relating to a particular qualification, the accreditation under the old criteria of any forms of that qualification will cease to have effect on a date specified by Ofqual. This will allow Ofqual to ensure that all qualifications that are awarded are kept up to date with changes to curriculum and other requirements, and that there is no confusion created by old versions of a qualification being available. Ofqual may determine that accreditation need not cease in these circumstances (for example if a change was relatively minor, Ofqual may decide to require that qualifications already accredited be amended through imposing conditions rather than requiring the awarding bodies to seek reaccreditation). Ofqual may make saving or transitional provision about a form of a qualification ceasing to be accredited: for example, where students are already studying for qualifications under the old criteria. Ofqual may allow the accreditation temporarily to continue for those purposes only.

Minimum requirements
Section 141: Power to determine minimum requirements

427.This section allows the Secretary of State to make an order specifying the minimum requirements in respect of knowledge, skills or understanding that someone must be able to demonstrate to gain a particular qualification or a qualification of a particular description (a term explained in paragraph 405 above). This reflects the fact that, in relation to young people’s learning, the Secretary of State is accountable for the curriculum, or knowledge, skills and understanding, assessed through qualifications; but it is specified at least in part through Ofqual’s qualifications criteria. These provisions therefore establish that Ofqual is not accountable for any parts of its criteria which, in effect, specify curriculum. An order could be used, for example, to ensure that the content of GCSEs properly reflects the NC Key Stage 4 Programmes of Study, which they are intended to assess. The Secretary of State cannot specify features of the qualification other than minimum knowledge, skills or understanding, such as grading or assessment. And an order cannot remove a requirement over knowledge, skills or understanding from a qualification.

428.The Government intends that the power to specify minimum requirements will be used only in exceptional circumstances. Normally any policy requirements relating to the content of a qualification would be reflected in the recognition or accreditation criteria, without any need for an order: we would expect the criteria to be drafted by the QCDA, reflecting the Secretary of State’s policy, and adopted by Ofqual provided that it was content that the criteria were appropriate and enabled standards to be maintained. An order would only be needed where that process had failed to reach agreement about some aspects of the criteria.

429.Reflecting this, the Secretary of State may only specify minimum requirements in relation to qualifications which are, or are likely to be, approved for public funding for people under 19, under section 98 of the Learning and Skills Act 2000 (subsection (4)).

430.Additionally, the Secretary of State may make an order only if satisfied that it is necessary to do so in order to ensure that the curriculum is appropriate for the ages of the people likely to be studying for the qualification (subsection 141(2)). For qualifications likely to be taken by people under 16 (for example, GCSEs), the curriculum leading to a qualification is likely to be “appropriate” if it is consistent with the National Curriculum. If, for example, Ofqual was proposing not to adopt draft GCSE criteria that reflected a particular aspect of the National Curriculum, then that may mean that young people studying for that GCSE will not study the full National Curriculum. In that case, an order may be appropriate.

431.For qualifications likely to be studied by people between the ages of 16 and 19, where there is no National Curriculum, the curriculum leading to a qualification is likely to be appropriate if it is consistent with the Secretary of State’s policies for learning in that age group. For example, the Secretary of State may have decided that all people of that age should seek to attain functional skills (core skills in English, maths and ICT), and an order could be made were it necessary to do so to secure that.

432.The Secretary of State intends to put in place and consult on a Memorandum of Understanding with Ofqual about the use of this power, setting out a clear process to ensure that the regulator’s independence and ability to maintain standards are not compromised.

Section 142: Consultation before making determination of minimum requirements

433.Before making an order, under this section the Secretary of State must consult with Ofqual and with others as appropriate (subsection (1)). We might expect him or her to consult, for example, with awarding bodies and with subject associations and professional bodies with an interest in the subject of the qualification. The requirement to consult with Ofqual reflects the expectation that an order will only be made where it has previously been discussed with Ofqual, usually following the development of draft criteria by QCDA.

434.For the purposes of the consultation, the Secretary of State must publish a document (subsection (2)) setting out:

a)

why he or she believes that making an order is necessary to ensure that the curriculum is appropriate;

b)

the minimum requirements he or she proposes to specify; and

c)

the reasons for proposing these minimum requirements.

435.An order is subject to affirmative resolution. This means that, once the consultation has been completed, the Secretary of State must seek approval from both Houses of Parliament for the order before making it. There is no opportunity for Parliament to amend the order: it can only either approve or reject the order as proposed by the Secretary of State.

Section 143: Effect of determination of minimum requirements

436.Where an order is made specifying minimum requirements, Ofqual must then (subsection (2)) set recognition criteria, recognition conditions, and/or accreditation criteria for the qualification or description of qualification so that the minimum requirements set out in the order are met. It would then be for awarding bodies recognised to award the qualification or description of qualification to develop qualifications that met the criteria or conditions.

437.Where such an order has been made, there is an expectation that the QCDA would support the development of the criteria associated with the qualification (see section 180), which is why there is a duty on the QCDA to assist Ofqual in these circumstances where requested to do so.

438.Ofqual does not have to comply with the order if it would mean (section 143(3)) that doing so would result in the depth, or level, of knowledge, skills or understanding of the qualification or description of qualification not being consistent with comparable qualifications – i.e. those qualifications which were supposed to be at the same level. So if, in seeking to set criteria, Ofqual discovered that the content specified in the order was at a level that was inappropriate for the qualification, and therefore Ofqual could not maintain standards, it would not be required to implement the order.

Section 144: Revocation and amendment of orders specifying minimum requirements

439.The Secretary of State may by order revoke an order specifying minimum requirements, including where the qualification is no longer approved under section 98 of the Learning and Skills Act 2000 for use in a publicly funded setting. An order revoking an order containing a determination, or an order removing a qualification from the scope of such an order, is not subject to affirmative resolution and needs only to be laid before Parliament.

Guided Learning
Section 145: Assignment of numbers of hours of guided learning

440.This section is for the purposes of the Education and Skills Act 2008, which imposes a duty on people under 18 to participate in education or training, unless they have attained a level 3 qualification (the level of attainment demonstrated by obtaining A-levels in two subjects). The Government’s intention is to commence the duty in 2013.

441.Where people are in full time employment, the 2008 Act duty means they need to be undertaking sufficient relevant education or training, which is defined as the equivalent of 280 hours in a year. This section requires a recognised body which is offering a form of a relevant qualification to assign to it a number of hours of guided learning, for the purposes of determining whether a person studying for the qualification (whether or not in combination with other qualifications) is able to meet this requirement. The duty on a recognised body applies in relation to a qualification if the body considers that there are, or may reasonably be expected to be, persons seeking to obtain it for the purposes of discharging their duty under section 2(1)(c) of the 2008 Act to participate in sufficient relevant education and training (see subsection (9)). Ofqual may review any determination made by an awarding body as to whether a qualification needs to have guided learning hours assigned to it and, if necessary, require it to revise the determination. Ofqual may also review, and require a recognised body to revise, any determination of the number of hours of guided learning to be assigned to a particular form of qualification. This will allow Ofqual to ensure, for example, that there is consistency between awarding bodies in how they assign guided learning hours to comparable forms of qualifications.

442.The duty on awarding bodies to assign guided learning hours does not extend to qualifications that are “Northern Ireland-only qualifications”, as defined in section 158(1).

Section 146: Criteria for assignment of number of hours of guided learning

443.This section requires Ofqual to publish the criteria which recognised bodies must apply in order to determine whether they need to assign guided learning hours to a qualification, and if so the number of hours they should assign to a form of the qualification. The section allows Ofqual to revise its criteria and so to take account of changing circumstances. The duty of recognised bodies under section 145 is to apply the criteria then in force in deciding whether a qualification is relevant for the purposes of the duty under section 2(1)(c) of the 2008 Act and, if so, the number of hours of guided learning to be assigned to a particular form of the qualification. Recognised bodies are obliged to review their determinations under section 145 when Ofqual revises the criteria set under this section.

Surrender
Section 147: Surrender of recognition

444.This section allows a recognised body to surrender recognition by giving notice to Ofqual. There are no explicit arrangements for such surrender in the current legislation. Ofqual has the power to decide the date on which surrender takes effect (acting in accordance with the requirements of subsections (2) and (3)) and may make saving or transitional provision (such as allowing a qualification to continue to be treated as regulated where students are taking resits of exams beyond the date on which recognition has otherwise expired). In determining the surrender date, Ofqual must aim to ensure that those learners seeking or who might reasonably be expected to be seeking the qualification are not prejudiced.

Register
Section 148: Register

445.This section sets out Ofqual’s obligation to maintain a register of recognised bodies, the details of the qualifications in respect of which they are recognised and forms of those qualifications that they offer, including the number of guided learning hours assigned to the forms of qualification where appropriate. The register may include other information that Ofqual considers appropriate, so it could for example choose to include details of qualifications that are regulated in other parts of the UK should the authorities there decide to work alongside Ofqual in this way.

Recognised bodies: monitoring and enforcement
Section 149: Review of activities of recognised bodies

446.This section allows Ofqual to keep under review any “connected” activities of a recognised awarding body as defined in subsection (2) of the section. This will allow it to keep under review any activities which may, for example, impact on the credibility of the qualifications offered or the effective or fair operation of the qualifications system. This may include, for example, any awarding activities overseas in relation to qualifications that are similar to those that Ofqual is regulating, or any arrangements made for the publication of textbooks relating to an Ofqual-regulated qualification. Ofqual must exercise this function in a way that is compatible with, and most appropriate for achieving, its objectives. It would also need to have regard to its general duties in performing this function. This will necessarily affect the scope of what Ofqual can do in reviewing the activities of recognised bodies.

Section 150: Investigation of complaints

447.Ofqual may investigate complaints in respect of the award or authentication of a regulated qualification, or arrange for an independent party to do so.

448.Ofqual’s complaint mechanisms will replace those that are currently in place through the Examinations Appeals Board (in relation to GCSEs and A-levels for example) and the QCA (in relation to vocational qualifications).

449.Ofqual will be free to work jointly with its counterparts in other parts of the UK in relation to the investigation of complaints should it and they so wish.

450.Ofqual’s powers of redress in the event of its upholding a complaint are those that it has generally. Where the complaint led to a finding that the recognised body had acted in breach of a condition of recognition it would be for Ofqual to consider what action to take to ensure compliance with the condition. As under the existing arrangements of the Examinations Appeals Board, the Government would expect any complaints that are upheld about, for example, the marking of an exam, to be referred in the first instance back to the awarding body concerned for review.

Ofqual’s enforcement powers

451.Ofqual has the ability to safeguard standards through the imposition of recognition and accreditation criteria (the “hurdle” that awarding bodies must initially clear). It may then impose general and specific conditions to ensure continued compliance with these requirements. Underpinning the conditions are the enforcement powers conferred by the Act: the power to direct compliance with a condition and ultimately a power to withdraw recognition for breach of a condition.

Section 151: Power to give directions

452.This section confers power on Ofqual to direct a recognised body in order to secure compliance with a condition imposed on its recognition. There are however limits on the circumstances in which this power may be exercised. Subsection (1) specifies the circumstances in which a direction may be made. These are that the recognised body has not complied (or is likely to fail to comply) with a condition, and that this would or would be likely to prejudice either the proper award or authentication of a qualification or someone who might reasonably be expected to seek to obtain such a qualification. In these circumstances, Ofqual may give a formal direction to the awarding body. The direction may specify steps the body must or must not take.

453.An example of when a direction might be given is where an awarding body had failed to comply with a condition requiring those awarding bodies offering a specified type of qualification to take a particular approach to setting and maintaining standards, and to seek to work together with other such awarding bodies to ensure consistency of standards between them. In such cases, Ofqual would be able to direct the awarding body to comply with the condition, if it considered the failure would compromise the comparability of standards between similar qualifications offered by different awarding bodies and in this way prejudice the proper award of the qualification or someone seeking to obtain the qualification.

454.Subsections (3) to (5) set out the steps that Ofqual must take before giving or revising a direction, including giving notice of its intention to do so and taking account of representations from the recognised body. The length of the notice period is not specified, and could vary depending on the urgency of the need to address the non-compliance. An awarding body is required to comply with the direction. Subsection (7) sets out the means by which Ofqual may enforce its directions through the courts.

455.The QCA currently has a similar power, but without the explicit requirements over process set out in subsections (3) to (5).

Section 152: Power to withdraw recognition

456.This section confers a power on Ofqual to withdraw recognition in respect of some or all of the qualifications in respect of which a body is recognised, if the body has breached a condition of recognition. The power may be exercised only if the recognised body has actually failed to comply with a condition and if this failure prejudices or would be likely to prejudice either the proper award or authentication of a qualification or someone who might reasonably be expected to seek to obtain such a qualification.

457.Subsections (3) to (9) set out the steps that Ofqual must take before withdrawing recognition, including giving notice of its intentions, taking account of representations from the awarding body, and arranging for the decision to be reviewed.

458.If it withdraws a recognition, Ofqual may make saving or transitional provision to deal with the impact of the withdrawal. For example, it may be appropriate to provide for the qualification not to be recognised other than to the extent that it is taken by those who began studying for the qualification before the decision to withdraw recognition was made. In deciding whether to make such provision, Ofqual will need to comply with its general duties, including the need to have regard to the reasonable requirements of relevant learners.

459.The power for the QCA to withdraw accreditation or recognition is currently implicit in the Education Act 1997 as amended by the Education and Skills Act 2008.

Section 153: Qualifications regulatory framework

460.This section requires Ofqual to publish:

  • a statement on how it will perform its monitoring and enforcement functions (including its functions in relation to the setting of conditions), and

  • guidance to recognised bodies in relation to the award and authentication of qualifications.

461.Together these are known as the qualifications regulatory framework. Ofqual must consult on, and may revise, the framework.

462.Subsections (3) and (4) set out in more detail what the guidance must include. In particular, it must include guidance which helps determine whether or not particular behaviour complies with the general conditions of recognition. Recognised bodies are obliged to have regard to the guidance given by Ofqual when they award or authenticate qualifications in respect of which they are recognised.

Other
Section 154: Review of qualifications to which Part applies

463.A “regulated qualification” is a qualification awarded or authenticated by a body which is recognised in respect of that qualification. This section gives Ofqual the power to keep under review all aspects of qualifications to which Part 7 applies irrespective of whether or not they are regulated qualifications. This would allow Ofqual, for example, to review why some awarding bodies were choosing not to seek recognition for their qualifications and whether that was detrimental to the interests of learners.

Section 155: Review of system for allocating values to qualifications

464.This section requires Ofqual to keep under review any system used by the Secretary of State which is:

a)

for allocating values to qualifications to which this Part applies by reference to the level of attainment indicated by the qualifications; and

b)

for the purposes of a qualifications-based performance management system.

465.For example, the Secretary of State’s Achievement and Attainment Tables currently measure the performance of schools with reference to qualifications obtained by pupils at the schools. In future, the School Report Card will provide similar information. The preparation of these reporting mechanisms requires the allocation of values to the qualifications to which they refer, so that the qualifications can be compared fairly and accurately. Ofqual will need to keep under review whether these values accurately reflect the level of attainment indicated by the qualifications – which includes both the depth of the knowledge etc. that needs to be demonstrated to attain each qualification, and how much study would typically be required to attain it. Ofqual is also given powers to collect from the Secretary of State the information it needs to discharge this duty. It will be able to use its powers under section 171(7) to publish a report on its findings (and if it wishes lay this before Parliament), notably whether it thinks that the allocation of values is appropriate.

Section 156: Co-operation and joint working

466.This section allows Ofqual to co-operate or work jointly with another public authority where it is appropriate to do so for the efficient and effective performance of any of its functions in connection with qualifications. This would allow it, for example, to work with other UK regulators of qualifications or with the UK Commission for Employment and Skills on the arrangements for overseeing Sector Skills Councils’ work on vocational qualifications, or with the competition authorities if it had concerns about the effective operation of the qualifications market.

Section 157: Power to provide information to qualifications regulators

467.This section allows Ofqual to provide information to qualifications regulators elsewhere in the UK to support the qualifications functions of the other regulator. This will enable the continued operation of the three-country framework, whereby the qualifications regulators in England, Wales and Northern Ireland work together on the regulation of qualifications across the three countries. Such co-operation will remain subject to restrictions in other legislation relating to the sharing of information, such as the Data Protection Act 1998.

Chapter 3: Functions in relation to assessment arrangements

468.The Secretary of State is responsible for specifying the arrangements for pupil assessments in relation to each of the key stages of the NC (see section 87 of the Education Act 2002). The Secretary of State is also responsible for specifying the arrangements which are required for assessing the achievements of children in relation to the learning and development requirements of the EYFS (see sections 39 to 42 of the Childcare Act 2006). In this context, the Secretary of State may impose functions on other bodies in relation to developing, implementing or monitoring assessment arrangements. Ofqual’s role, under the new arrangements delivered through this Act, is to keep these assessment arrangements under review and to report to Parliament on the assessment arrangements and how well they are achieving their purposes. The arrangements are intended to strengthen the assessment system, and to help improve public confidence following the problems with delivery of NC tests in 2008. The Government asked Lord Sutherland to investigate what went wrong with NC test delivery in 2008, the reasons for the problems experienced and what should be done to avoid a recurrence in future years. The Government accepted all the recommendations in his report(1), and the provisions in this Act reflect those recommendations.

Development etc. of regulated assessment arrangements
Section 159: NC assessment arrangements: duty to consult Ofqual etc., Section 160: EYFS assessment arrangements: duty to consult Ofqual etc.

469.These sections require the Secretary of State to consult Ofqual before making an order specifying assessment arrangements. They also require any person acting on the Secretary of State’s behalf under such an order in connection with the making of assessment arrangements to consult Ofqual before doing so. The relevant order making powers are in section 87(3)(c) of the Education Act 2002 (in relation to the NC) and section 39(1)(a) of the Childcare Act 2006 (in relation to the learning and development requirements of the EYFS). The new obligations reflect Ofqual’s status as independent regulator and particularly its interest in ensuring that the proposed assessment approaches are appropriate given the specified purposes, and can be effectively monitored.

Review etc. of regulated assessment arrangements
Section 161: Review of regulated assessment arrangements

470.This section requires Ofqual to keep all aspects of these NC and EYFS assessments arrangements under review. This constitutes the principal regulatory role of Ofqual in relation to the regulated assessment arrangements (as defined in section 131).

471.Ofqual’s powers of review will enable it to consider all aspects of the implementation of the regulated assessment arrangements, such as looking at the way in which specified bodies exercise monitoring and review functions, including functions concerned with investigating complaints about the way in which tests and other assessments have been conducted.

Section 162: Powers to require information

472.To enable Ofqual to carry out its review role effectively, this section grants it powers to require certain persons to provide it with the information it considers it needs to perform this role. Those persons are the Secretary of State, NC responsible bodies and EYFS responsible bodies (as defined in the section) and Ofsted. Subsection (2)(d) includes a power for the Secretary of State to specify in regulations (subject to the negative procedure) other persons who are to be subject to this requirement. This power is required to allow for flexibility for further organisations to be added in case, for example, assessment arrangements change in the future and different bodies become involved in the process.

Section 163: Duty to notify significant failings

473.One of the recommendations in Lord Sutherland’s inquiry report was that Ofqual should have a duty to inform the Secretary of State and the QCA if it had concerns about the delivery and quality of NC tests. Reflecting this recommendation, these provisions impose a duty on Ofqual covering both NC and EYFS assessment arrangements. Ofqual must notify the Secretary of State and any responsible body whose act or omission appears to Ofqual to have contributed to a significant failing if it considers that there is or is likely to be a significant failing in the assessment arrangements. Such a failure is defined as a failure in a significant way to achieve one or more of the specified purposes of the assessment arrangements.

474.Examples of circumstances in which Ofqual should notify the Secretary of State might include the following:

  • if it became evident to Ofqual that there was a significant 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, assuming that the provision of this information was one of the specified purposes of the assessment; or

  • if a new type of NC test was being developed which Ofqual judged would not provide a reliable assessment of a pupil’s level of attainment.

Regulatory frameworks
Section 164: NC assessments regulatory framework, Section 165: EYFS assessments regulatory framework

475.These sections require Ofqual to publish and keep under regular review two documents: the “NC assessments regulatory framework” and the “EYFS assessments regulatory framework” in relation to NC and EYFS assessment arrangements respectively.

476.The regulatory frameworks will give guidance to bodies with responsibilities for the development, implementation and monitoring of NC and EYFS assessment arrangements on how to perform their functions. This may include the measures of success which Ofqual considers will demonstrate evidence of effective development and delivery of assessments. The regulatory frameworks will also set out how Ofqual will carry out its review function at all stages of the assessment process.

477.Those bodies with responsibility for developing, implementing and monitoring NC and EYFS assessment arrangements (the NC and EYFS responsible bodies) must have regard to the relevant regulatory framework document in doing so. Ofqual must consult on a regulatory framework document before publishing it or revising it. The persons Ofqual must consult are the Secretary of State, such of the NC responsible bodies or, as the case may be, EYFS responsible bodies and any other persons as Ofqual considers appropriate. Ofqual may revise a regulatory framework document at any time.

Chapter 4: Other functions
Section 167: Provision of services

478.This section gives Ofqual the power to provide services to other persons in connection with any of its functions. Ofqual may charge for its services. Ofqual would be able, for example, to provide services to qualifications regulators in other countries.

Section 168: Provision of information or advice

479.This section requires Ofqual to provide the Secretary of State with information or advice relating to its functions where the Secretary of State requests it. This is a similar relationship to that between the Secretary of State and Ofsted. Where requested, Ofqual must also provide information or advice on its functions (so far as they relate to Northern Ireland) to the Department for Employment and Learning in Northern Ireland.

Section 169: Research and development

480.This section provides Ofqual with the power to carry out research in relation to qualifications that would be eligible for regulation or in relation to regulated assessment arrangements; and to commission, co-ordinate or facilitate such research.

Section 170: Duty not to impose or maintain unnecessary burdens

481.This section imposes a duty on Ofqual not to impose or maintain unnecessary regulatory burdens. The section is similar in effect to section 72 of the Regulatory Enforcement and Sanctions Act 2008, which imposes almost identical duties on a range of other regulators. Ofqual must monitor its regulatory functions (in relation to recognised bodies or accredited qualifications for example); and must also publish an annual statement explaining how it plans to review its regulatory functions and to secure that they do not impose or maintain unnecessary burdens.

Section 171: Annual and other reports

482.This section requires Ofqual to publish an annual report. Ofqual has flexibility to determine when during its first year of life its reporting period should end, which will set the annual reporting period thereafter: it may be, for example, that Ofqual would decide that the reporting period in the first year should end in the autumn, in order that it can report on the previous summer’s exams and tests. Each subsequent reporting period would then end in the autumn. Ofqual may also prepare and publish other reports.

483.Ofqual must lay its annual reports before Parliament and (so far as the report relates to Northern Ireland, where Ofqual regulates vocational qualifications) the Northern Ireland Assembly. It may choose to publish a single document or separate documents in relation to England and Northern Ireland.

484.There are four things that Ofqual must include in its annual report:

a)

A statement of what Ofqual has done in performing its functions in the reporting period.

b)

An assessment of the extent to which it has met its objectives in the period. In relation to the qualifications standards objective, this assessment must take account of any information detailed in section 171(2)(c) about the attainment of relevant pupils in England.

c)

Details of information on the levels of attainment in regulated qualifications which are wholly or mainly taken in schools – for example GCSEs. Ofqual may fulfil this by describing the information it has obtained, or actually publishing the information: for example, if it had the information available, it might publish information about the proportions of GCSE candidates in particular subjects getting particular grades.

d)

If Ofqual has established arrangements for the referral of complaints about regulated qualifications to an independent party (under section 150(2)), the annual report must describe the activities of the independent party during the reporting period.

Chapter 5: General
Section 172: Interpretation of Part

485.This section sets out the definitions of various terms used in Part 7. It also provides that a reference to the award or authentication of a qualification throughout the Part includes a reference to the award or authentication of credits in respect of components of a qualification. This reflects the launch of the Qualifications and Credit Framework, through which students are able to build up composite qualifications through the obtaining of components.

Section 173: Transfer schemes

486.The section gives effect to Schedule 10.

Schedule 10: transfer schemes

487.This Schedule gives power to the Secretary of State to make a scheme to enable the transfer of staff and property from the QCA to Ofqual.

Section 174: Minor and consequential amendments

488.This section, with section 192, gives effect to Schedule 12. That Schedule makes minor and consequential amendments in connection with the provisions about Ofqual and the QCDA. It is discussed below in the commentary on Part 8 of the Act.

1

Lord Sutherland (2008), The Sutherland Inquiry: An independent report into the delivery of National Curriculum tests in 2008, London: The Stationery Office

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