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.
