Inspection of further education or training etc.
Section 57: Duty of the Chief Inspector to inspect and report
187.Subsection (1) sets out different kinds of education and training that must be inspected by Her Majesty’s Chief Inspector of Education and Training for Wales.
188.The Chief Inspector, the other inspectors appointed by Her Majesty to form part of the inspectorate with the Chief Inspector, the Chief Inspector’s staff and additional inspectors appointed by the Chief Inspector form a body known as ‘Estyn’.
189.Estyn is not a body corporate with legal personality, which is why statutory functions are conferred on the office of Chief Inspector. Although the functions are conferred on the Chief Inspector by the Act, the functions may be exercised in practice by other inspectors and staff at Estyn by virtue of provision in paragraph 5 of Schedule 2 to the Education Act 2005, which is why these notes refer to ‘Estyn’.
190.Estyn must inspect:
further education or training funded or secured by the Commission (this would include further education in colleges and apprenticeship training);
further education or training funded or secured by the Welsh Ministers;
further education or training funded by a local authority in Wales (this would include mainstream sixth form provision in maintained schools and community-based adult learning partnership provision);
further education or training where the Commission or a local authority in Wales is contemplating giving funding to the provider of the further education or training;
education or training for compulsory school age learners in a further education or higher education provider in Wales;
any education or training provided in Wales that is specified by the Welsh Ministers in regulations.
191.The requirement to inspect under subsection (1) does not apply to education inspected under Part 1 of the Education Act 2005, or if the funding is given for a specific purpose, to education or training at which that support is not directed (subsection (2)).
192.Estyn must publish a report for each inspection to include, but not limited to, views on:
the quality of the education or training inspected;
the standards achieved by the learners receiving the education and training;
whether the financial resources given to the provider are managed efficiently and used in a way which provides value for money (subsection (3)).
193.The Welsh Ministers may, by regulations, require inspections to be carried out at specified intervals and require reports to be completed within a specified period (subsection (4)). Before making such regulations, the Welsh Ministers must consult the Commission and Estyn (subsection (5)).
Section 58: Power of the Chief Inspector to inspect and report
194.Subsection (1) gives Estyn the power to inspect and report on any education and training described in section 57(1). If it does undertake such an inspection, it must publish a report (by virtue of the application of section 57(3) by subsection (4) of this section).
195.Estyn also has the power to inspect and report on any education or training which is not described in section 57(1), but the provision would be if it was funded by the Commission or the Welsh Ministers, if the provider asks Estyn to do so (subsection (2)). In the latter case, Estyn may charge the provider for the cost of the inspection and may publish the report (subsection (3)).
Section 59: Duty to provide information and advice to the Commission
196.Estyn must keep the Commission informed about inspections and reports carried out under section 57(1) in relation to provision funded or secured by the Commission (subsections (1) and (2)). When asked to do so by the Commission, Estyn must give the Commission advice on matters relating to education or training under section 57, inspect such provision and report on the result of inspections conducted under this section (subsections (1) and (3)).
Section 60: Duty to provide information and advice to the Welsh Ministers
197.Estyn must keep the Welsh Ministers informed about inspections and reports carried out under section 57(1) in relation to provision that is not funded or otherwise secured by the Commission (subsections (1) and (2)). When asked to do so by the Welsh Ministers, Estyn must give the Welsh Ministers advice on matters relating to education or training under section 57, inspect such provision and report on the result of inspections conducted under this section (subsections (1) and (2)).
Section 61: Additional functions of the Chief Inspector
198.Through regulations, the Welsh Ministers may confer additional functions on Estyn in relation to the education or training described in section 57(1) (subsection (1)). These may, amongst other things, include inspection functions related to training for teachers, lecturers, trainers or others providing such education or training (subsection (2)).
Section 62: Action plans following inspections by the Chief Inspector
199.Following the publication of an inspection report, the provider must prepare a written statement of the planned actions it will take in response to the report and the timescales to address those planned actions (subsection (3)). The provider must publish the action plan statement (subsection (4)). This section does not apply to those inspections conducted as a result of a request under section 58(2) or an area inspection under section 63 (subsection (2)).
200.Compliance with the duty to prepare an action plan statement is a requirement of the terms and conditions of funding by the Commission or the Welsh Ministers under this Act (subsections (7) and (8)).
201.Compliance with the duty to prepare and publish and action plan statement is to be treated as an ongoing registration condition for registered providers who provide education or training described in section 57(1) for the purpose of section 39 (directions) and section 41 (de-registration).
Section 63: Area inspections
202.Estyn must carry out an area inspection if requested to do so by the Commission or the Welsh Ministers and publish a report for each area inspection (subsection (2)). It may also conduct such an inspection without being asked (subsection (1)).
203.An area inspection is an inspection of:
the quality and availability of an aspect of education or training in a specified area of Wales for learners aged 15 or over;
the standards achieved by the learners receiving the education or training;
whether the financial resources made available to those providing that education or training are managed efficiently and used in a way which provides value for money.
204.The aspect of education or training to be inspected through an area inspection is any education or training described in section 57 or within Estyn’s remit as provided for in any other primary or subordinate legislation (subsection (3)).
205.The power to require Estyn to carry out an area inspection may only be used by the Commission with regard to any education or training it funds or secures (subsection (4)(a)). The Welsh Ministers may require Estyn to carry out an area inspection in regard to any other provision which meets the definitions set out in this section (subsection (4)(b)).
206.The focus of an area inspection may extend to the manner in which financial resources have been allocated to the education or training being inspected by Estyn, and whether this provides value for money, if funding has been applied by the Commission or a local authority in Wales (subsection (5)).
207.Information related to the area inspection must be provided to Estyn by any provider of education or training who is subject to the area inspection, any local authority in Wales within the area that is the focus of the area inspection, the Commission, and the Welsh Ministers (subsection (7)).
208.The Welsh Ministers may, by regulations, make further provision in regard to the requirement to provide information and the time scales in which the reports of area inspections must be published (subsection (9)).
Section 64: Rights of entry and offences
209.When conducting inspections under Chapter 2 of the Act, Estyn has a right of entry at all reasonable times to premises on which the education or training being inspected is provided; and to premises of a provider of education and training used in connection with the provision (subsections (1)(a) and (b)).
210.Estyn also has a right to inspect and take copies of any records and documents containing information relating to education or training, which the inspector requires for the purposes of the inspection (subsection (1)(c)).
211.The right of entry for Estyn to premises for education or training provided by an employer in the workplace may only be used if the employer has been given reasonable notice in writing (subsection (2)). The powers under this section do not include the right to enter premises that are a dwelling without the consent of the occupier (subsection (7)). And “
212.The right to inspect and take copies includes having access to computers and any other device used to access records or documents, and assistance as reasonably required from those who use or have charge of the equipment (subsection (3)).
213.It is a criminal offence to wilfully obstruct Estyn when conducting inspections, and anyone found guilty of this offence is liable to be fined up to level 4 on the standard scale (subsections (4) and (5)).
Section 65: Surveys and studies
214.The Commission may direct Estyn to carry out a survey related to further education or training policy for Wales or for a specified area of Wales (subsection (1)(a)). The Commission may also direct Estyn to carry out a comparative study of education or training outside of Wales (subsection (1)(b)). Estyn may also carry out such surveys or studies itself, without being directed to do so (subsection (2)).
Section 66: Annual reports
215.Section 21(1)(a) of the Education Act 2005 requires Estyn to produce an annual report. Subsection (1) requires the annual report to include details of the exercise by Estyn of its functions under Chapter 2.
216.Section 21 of the Education Act 2005 also includes a power for Estyn to produce other reports. Subsection (2) provides for that power to include power to make reports with respect to matters relating to the education or training described in section 57(1) of the Act.
Section 67: Annual plan of the Chief Inspector
217.Estyn must prepare an annual plan for each financial year setting out estimates of income and expenditure necessary to carry out its work effectively (subsection (1)). The plan must include proposals for managing funds provided to Estyn from the Commission (under section 68) and from the Welsh Ministers (under section 104(4) of the Government of Wales Act 1998) (subsection (2)).
218.Estyn must submit the plan to the Commission and the Welsh Ministers for consultation and approval, by such date before the beginning of the financial year as the Commission and the Welsh Ministers may jointly direct (subsection (3)). Estyn may publish the plan after it has been approved by the Commission and the Welsh Ministers (subsection (4)).
Section 68: Funding of inspections and reports on further education and training etc.
219.The Commission must provide such funding to Estyn as the Commission considers appropriate so that Estyn is able to carry out its work in relation to the education or training that is funded by the Commission (subsection (1)).
220.In determining how much funding is appropriate for Estyn, the Commission must have regard to what the Commission considers Estyn needs to spend to exercise its functions (subsection (2)). The Commission must consult with Estyn before the beginning of each financial year in relation to the funding it is going to provide for that year (subsection (3)).
221.The Commission must approve the parts of Estyn’s annual plan which relate to Estyn’s work in respect of education or training funded by the Commission and determine the amount of funding it will provide according to the activities outlined in the annual plan (subsection (4)). The Commission may ask Estyn to modify the annual plan before it is approved (subsection (5)).
222.Section 104 of the Government of Wales Act 1998 is amended to provide that the Welsh Ministers are not responsible for the provision of funding to Estyn for education or training funded or secured by the Commission (subsection (6)(a)). Section 104 of that Act is also amended so that the Welsh Ministers are only responsible for approving such parts of Estyn’s annual plan as relate to functions in respect of which the Welsh Ministers provide funding (subsection (6)(b)).
Chapter 3: Further Enforcement and Procedural Provisions
Intervention in the conduct of further education institutions
Section 69: Grounds for intervention and Section 70: Powers to intervene
223.Sections 69 and 70 replace the provisions previously set out in section 57 of the Further and Higher Education Act 1992 relating to the Welsh Ministers’ powers of intervention for institutions in the further education sector in Wales.
224.Section 69 specifies the grounds that must be met in order for the Welsh Ministers to intervene in the conduct of a tertiary education provider in Wales that is an institution in Wales within the further education sector. See section 144 for an interpretation of these terms.
225.Section 70 makes provision for the way that the Welsh Ministers may intervene if one or more of the grounds for intervention set out in section 68 are met. The Welsh Ministers must consult with the Commission before exercising their intervention powers under this section.
226.Directions issued by the Welsh Ministers under section 70 are enforceable by injunction (see section 82).
Section 71: Notification by the Commission of grounds for intervention
227.This section places the Commission under a duty to notify the Welsh Ministers if it is of the view that any of the grounds for intervention specified in section 69 have been met (subsection (1)). The Welsh Ministers must have regard to the Commission’s view in deciding whether or not to exercise any of their intervention powers under section 70 (subsection (2)).
Section 72: Welsh Ministers’ statement on intervention powers
228.This section requires the Welsh Ministers to publish and keep under review a statement on how they propose to exercise their intervention functions under section 70 (subsection (1)). The Welsh Ministers must consult such persons as they consider appropriate before publishing the statement, or revised statement, and lay a copy before the Senedd as soon as possible after it is published.
Access to information and facilities
Section 73: Duty to co-operate
229.Section 73 requires governing bodies of external providers (see section 54) to co-operate with persons who are exercising, on behalf of the Commission, functions under the following sections of the Act:
section 51 - duty to monitor, and promote improvement in, the quality of regulated tertiary education;
section 53 - reviews relevant to the quality of tertiary education;
section 54(1) - assessment of the quality of higher education.
230.This section also requires governing bodies of unregistered providers in Wales that provide further education and are funded under section 96, to co-operate with persons who are exercising, on behalf of the Commission, functions under the following sections of the Act:
section 51 - duty to monitor, and promote improvement in, the quality of regulated tertiary education;
section 53 - reviews relevant to the quality of tertiary education
231.The duty to co-operate requires such governing bodies to ensure the provision of information, assistance and access to facilities, systems or equipment that might be required by the person for the purposes of those functions.
232.Examples of persons that might act on the Commission’s behalf in respect of these functions include Estyn and a body designated to conduct higher education assessments under Schedule 3.
233.The duty imposed on governing bodies to co-operate under section 73 also applies in respect of powers of entry and inspection under section 74.
234.The Commission may give a direction to a governing body if the Commission is satisfied that the body has failed to comply with its duty to co-operate. The direction may require a governing body to take or not take steps to secure the provision of information, assistance or access to facilities, systems or equipment (subsection (4)). The procedural requirements in sections 75 to 78 apply to decisions to give directions.
Section 74: Powers of entry and inspection
235.This section provides for a right of entry and inspection for a person authorised in writing by the Commission, an “authorised person”.
236.Subsection (1) provides that an authorised person may enter the premises of a registered provider and inspect, copy and take documents found on the premises of a registered provider for the purposes of the following functions:
monitoring compliance with ongoing registration conditions (section 36);
reviews relevant to compliance with ongoing registration conditions (section 38);
monitoring and promoting improvement in the quality of tertiary education (section 51);
conducting reviews relevant to the quality of tertiary education (section 531); or
assessing the quality of higher education (section 54(1)).
237.Subsection (2) states that an authorised person may enter premises and inspect, copy and take documents found on the premises of external providers for the purposes of the following functions:
monitoring and promoting improvement in the quality of tertiary education (section 51);
conducting reviews regarding the quality of tertiary education (section 53); or
assessing the quality of higher education (section 54(1)).
238.The term “documents” in this section includes information in any form and documents stored on or accessible by computers on the premises (subsection (3)).
239.The power to inspect, copy or take away documents includes the power to require a person to provide documents, and to require the documents be provided in a certain form or format, and to inspect any electronic storage systems where documents have been created or stored (subsection (4)).
240.Before exercising a power under this section, reasonable notice must be given to the governing body of the registered provider or external provider in relation to whose premises the powers will be exercised, and the governing body of any registered provider on whose behalf the provider or external provider provides education to which the exercise of the entry and inspection functions relate (subsection (5)). However, notice does not need to be given if the power needs to be exercised urgently, or if giving notice would defeat the purpose of exercising the power (subsection (6)).
241.If required to do so, an authorised person must, before exercising a power under this section, produce a copy of the written authorisation from the Commission (subsection (8)).
242.The powers conferred by this section must be exercised at reasonable times and not so that anyone has to do anything other than at a reasonable time (subsection (9)). They do not constitute a power to enter a residential dwelling without the agreement of the occupier (subsection (10)). “
Warning and review procedure
Section 75: Application of sections 76 to 78
243.Sections 76 to 78 set out the process which the Commission must follow when issuing a direction or notice. The notices and directions to which those sections apply are listed in subsection (1) and include—
directions in respect of failure to comply with ongoing registration conditions;
notices about the rejection of a proposed fee limit statement;
notices of rejection of a proposed variation or replacement of a fee limit statement;
directions in respect of a failure to co-operate.
244.The Commission is not required to follow the process set out in sections 76 to 78 if it issues a direction which solely revokes a previous direction (subsection (2)).
Section 76: Proposed notices and directions: requirement to give warning notice
245.Before giving a governing body, a notice or direction listed in section 75(1), this section requires the Commission to give the governing body a warning notice. The warning notice must set out the proposed notice or direction, the reasons for giving it, the means by which the governing body may make representations regarding the notice or direction, and the period during which such representations can be made (subsection (2)). The period for making representations may not be less than 28 days beginning with the date of the notice (subsection (3)).
246.The Commission must have regard to any representations made by the governing body in the specified period in deciding whether to give the notice or direction and must then notify the governing body of its decision (subsections (4) and (5)).
Section 77: Information to be given with notices and directions and effect pending review
247.When giving a governing body a notice or direction listed in section 75(1), the Commission must include a date on which the notice or direction will take effect (subsection (1)). At the same time, the Commission must also give the governing body a statement setting out the reasons for the notice or direction being given, information regarding the right to review (see sections 78 and 79) and the period within which an application for review may be made (subsection (2)).
248.A notice or direction to which this section applies may not come into effect while a review process is ongoing nor during the period within which the governing body affected could apply for a review under section 78, unless the governing body concerned notifies the Commission that it does not intend to apply for a review (subsections (3) and (4)).
249.As a result, the notice or direction may be unable to come into effect on the date specified by the Commission under subsection (1). In this case, subject to the outcome of any review, the Commission must determine a new date on which the notice or direction will take effect (subsections (5) and (6)).
Section 78: Review of notices and directions
250.This section provides that a governing body given a notice or direction listed in section 75(1) has the right to apply for a review of the notice or direction by the decision reviewer.
Section 79: Decision reviewer
251.The Welsh Ministers must appoint a person or panel to be the “decision reviewer” and may pay remuneration and allowances to that person or panel (subsection (1)). The decision reviewer is responsible for the review of decisions under this Part.
252.The Welsh Ministers must make regulations in relation to decision reviews and the regulations may include, but are not limited to:
grounds for review;
recommendations to be made by the decision reviewer;
the period within which a request for a review may be made, and the form in which the request must be made;
the procedures and steps to be taken; and
steps to be taken by the Commission or the Welsh Ministers following a review (subsections (3) and (4)).
Miscellaneous duties
Section 80: Duty to monitor and report on financial sustainability
253.This section requires the Commission to monitor and report on the financial sustainability of certain providers. Under subsection (1) the Commission must monitor the financial sustainability of:
registered providers,
tertiary education providers in Wales that are institutions in the further education sector, are not registered and are funded by the Commission.
254.Subsection (2) allows the Welsh Ministers to make regulations to make exceptions in the application of the monitoring duty under subsection (1) for providers or types of providers in these categories. Subsection (1) also allows the Welsh Ministers, via regulations, to extend the monitoring duty to other kinds of tertiary education provider.
255.Subsection (3) requires the Commission to provide information in respect of the financial position of the persons it monitors under this subsection (1) in the annual report that it submits (see Schedule 1, paragraph 16) to the Welsh Ministers each year.
256.This section also sets out that the Commission must, at the same time it submits its annual report, submit a separate report to the Welsh Ministers which summarises the financial outlook of persons that it monitors under subsection (1). This report will provide a summary of conclusions drawn by the Commission from its monitoring activity on relevant emerging trends, patterns or other matters that the Commission considers it appropriate to bring to the attention of the Welsh Ministers. This report will relate to the financial years following the financial year to which the annual report relates.
Section 81: Commission’s statement on intervention functions
257.This section provides that the Commission must publish and keep under review a statement setting out its approach to exercising the functions listed in subsection (4). Before publishing or revising the statement, the Commission must consult the governing body of each registered provider and any other persons it considers appropriate.
Directions
Section 82: Effect and enforcement of directions
258.The governing body of a provider must comply with any direction given to them by the Commission or the Welsh Ministers under this Part. Subsection (2) gives the Commission and the Welsh Ministers a power to apply to the court for an injunction to enforce a direction that they have given. When requested to do so by the governing body concerned, the person who gave the direction must notify the governing body whether they are satisfied that a direction or a particular requirement of a direction has been complied with.
259.Subsection (4) provides that directions given under this Part must be given in writing.
Chapter 4: General
Section 83: Designation of other providers of tertiary education
260.This section enables the Welsh Ministers to designate a provider of tertiary education who would not otherwise be regarded as an institution for the purposes of this Part to be treated as such. “Tertiary education providers in Wales” must be “
261.A provider designated as an “institution” under this section may be treated as an ”institution” for the purposes of registration, quality assurance and quality assessment functions under this Part, but will still need to meet all other criteria in section 25(5) to be able to register with the Commission; and its activities must be wholly or mainly carried on in Wales in order to fall within the definition of a “tertiary education provider in Wales”.
262.Subsection (4) allows the Welsh Ministers to make regulations providing for the manner in which applications for designation under this section are made and the making of designation decisions, including criteria for confirming and withdrawing designation and the effect of withdrawal of designation.
Section 84: Interpretation of Part 2
263.This section provides the definitions of certain terms which are used in Part 2 of this Act.