87.Subsection (1) requires the Commission to set up and maintain a register of tertiary education providers in Wales. The Commission must register those providers that apply to be registered and which satisfy the conditions for registration (subsection (4)). The making of a registration application is voluntary.
88.The register, through the use of registration conditions (see sections 27 to 35), provides a means of regulating such providers. In combination with revised student support regulations made by the Welsh Ministers under section 22 of the Teaching and Higher Education Act 1998, registration will also determine a provider’s eligibility for automatic designation for Welsh Government student support.
89.The register is to be divided into different categories of registration specified in regulations made by the Welsh Ministers (subsection (2)). It is intended that the categories of registration will allow appropriate variance in the conditions of registration required for different types of registered providers in receipt of different forms of public funding. Regulations may prohibit a provider from registering in one category whilst it is registered in one or more other categories (subsection (5)).
90.Providers, once registered, must meet the general and any specific ongoing registration conditions applicable to them in the relevant category of registration. Provision for these conditions, and the process for determining them, is set out in sections 28, 29, 31, 32 and 33.
91.The procedure for and form of applications for registration is a matter for the Commission to determine (subsection (7)). Information contained in the register must be publicly available (subsection (11)), and the Welsh Ministers may specify in regulations the information that is to be contained in a registered provider’s entry in the register (subsection (8)).
92.This section sets out the procedure to be followed in the event that the Commission intends to refuse an application for registration, or where the Commission intends to refuse an application from a registered provider to change categories.
93.The Commission must notify the governing body of the provider where it intends to refuse the provider’s application. In doing so, the Commission must specify its reasons and the period within which a provider may make representations to the Commission about the Commission’s proposal (subsection (2)). The period must not be less than 28 days (subsection (3)).
94.The Commission may, at the conclusion of the specified notice period, either decide to register the provider in the category to which it has applied, or refuse to do so. The Commission must notify the governing body of its decision (subsection (5)) and a notice of refusal to register a provider must set out the grounds of refusal and information as to the right of review of the Commission’s decision (subsection (7)).
95.A provider applying to register with the Commission must satisfy initial registration conditions. This section sets out four mandatory initial registration conditions, which apply to all registration categories. The Commission must be satisfied as to—
the quality of education provided by the applicant tertiary education provider, or provided on its behalf,
the effectiveness of the governance and management of the applicant,
the financial sustainability of the applicant,
the effectiveness of the applicant provider’s arrangements for supporting and promoting the welfare of students and staff, and
where applicable, the effectiveness of arrangements in place to satisfy the applicant provider of the quality of education delivered by an external provider under a validation arrangement.
96.For further information regarding the Commission’s functions in respect of quality assessment and assurance, see Chapter 2 of this Part.
97.The standard required for providers to satisfy initial registration conditions, and the information required to demonstrate this, will be determined by the Commission. The Commission is required to publish a document specifying the requirements for satisfying such conditions (subsection (2)). The Commission is enabled to revise these requirements and if it does so it must publish an updated document (subsection (4)). Before publishing either an initial or a revised document, the Commission is under a duty, if it appears appropriate to do so, to consult such persons as it considers appropriate (subsection (5)), for example tertiary education providers who may wish to make a registration application.
98.The Welsh Ministers may, by regulations, specify further initial registration conditions and different conditions may be specified for different categories of registration. The list provided in subsection (7)(b) indicates the kind of conditions that may be specified in these regulations, but it is not an exhaustive list and not all of these categories may be appropriate initial conditions of registration for all categories of the register.
99.As stated in section 25(9), a registered provider must continue to satisfy ongoing registration conditions in order to maintain its registration. A general ongoing registration condition is a condition determined by the Commission, which applies to one or more categories of registration.
100.The Commission must publish the general ongoing conditions and any revisions to those conditions. Before determining or revising the general ongoing conditions, the Commission is under a duty, if it appears appropriate to do so, to consult such persons as it considers appropriate, for example those registered providers which will be subject to the registration conditions.
101.The Commission may determine different conditions for different categories or descriptions of registered provider (subsection (2)). Under subsection (8), the Commission may decide that a general ongoing registration condition is not applicable to a particular registered provider. In such instances, the Commission may dis-apply the condition in relation to that provider and must inform the provider of its decision (subsection (9)).
102.This section sets out when the Commission can impose, vary, or remove an ongoing registration condition that applies to a specific registered provider, as opposed to all registered providers or a category of providers.
103.Before imposing, varying or removing a specific ongoing registration condition, the Commission must notify the governing body of the provider affected (subsection (3)). The notice must inform the provider of the Commission’s reasons for proposing the specific ongoing registration condition and of the provider’s right to make representations about the proposal within a specific period (subsection (4)).
104.The Commission must have regard to any representations made by the governing body of the provider in deciding whether to impose, vary, or remove the specific ongoing registration condition (subsection (6)), and must notify the provider of its decision (subsection (7)).
105.A notice relating to the imposition or variation of a specific ongoing registration condition must set out the grounds of the decision and be accompanied with information as to the right of review (subsection (9)). The new specific ongoing registration condition cannot have effect until the period of review has passed. In addition, the new specific ongoing registration condition cannot have effect while an application for review has been made and, until any review conducted is concluded. The Commission must subsequently determine a date on which the specific ongoing registration condition will take effect, at which point the notice must be published.
106.This section requires the Commission to ensure that its ongoing registration conditions, and the requirements published regarding satisfaction of initial registration conditions (see section 27), are proportionate to its assessment of any risks posed. These may include, for example, risks to safeguarding of public funds, students’ interests, and any other risks related to the Commission’s functions in respect of tertiary education providers.
107.In order that registration conditions and requirements continue to be proportionate, the Commission is required to keep its ongoing registration conditions under review.
108.In addition to any other general ongoing registration conditions determined by the Commission under section 28, the Commission must ensure that all providers registered in each category of the register are subject to the conditions listed in this section. These may be imposed as part of the general ongoing registration conditions or by way of a specific ongoing registration condition.
109.This section requires the Commission to ensure that each provider registered in a category specified by the Welsh Ministers in regulations is subject to a fee limit condition. A fee limit condition requires the provider to have an approved fee limit statement and to ensure that regulated course fees do not exceed the applicable fee limit. More information on the fee limit statement is outlined in sections 46 to 48.
110.A “qualifying course” is a course described in regulations made by the Welsh Ministers, subject to the conditions set out in subsection (5). “Regulated course fees” are fees payable by a qualifying person to a provider in order to undertake a qualifying course (subsections (6) and (7)). Subsection (8) provides that a “qualifying person” is a person described in regulations made by the Welsh Ministers who is not an international student within the meaning of subsection (9).
111.Subsection (10) also allows the Welsh Ministers to make regulations specifying when fees paid for a course at an external provider (i.e. on behalf of a registered provider) are to be treated as regulated course fees and therefore subject to a fee limit.
112.The Commission is under a duty to ensure that a mandatory ongoing registration condition relating to equal opportunity is applied to each registered tertiary education provider.
113.Conditions on equal opportunity require the registered provider to demonstrate delivery of measurable outcomes which further the aims listed in subsection (2). These aims relate to increasing participation, improving retention, reducing attainment gaps, and improving employment and further study outcomes for students from under-represented groups.
114.Under-represented groups are defined in subsection (3) as groups of students that are under-represented in relevant tertiary education in Wales as a result of social, cultural, economic or organisational factors. Relevant tertiary education is defined as tertiary education courses provided wholly or mainly in Wales of a kind that relates to the category of the register in which the provider is registered. This means that registered providers will be concerned with delivering equality of opportunity outcomes in respect of the kind of tertiary education which relates to their registration category.
115.In addition to the mandatory ongoing registration conditions provided for in sections 31, 32 and 33, the Welsh Ministers may specify in regulations further mandatory ongoing registration conditions that the Commission must apply to one or more categories of registration.
116.This section requires the Commission to publish guidance for registered providers concerning the ongoing registration conditions.
117.This section requires the Commission to monitor each registered provider’s compliance with their ongoing registration conditions.
118.The Commission may provide advice and assistance to registered providers in order to aid compliance with registration conditions.
119.The Commission may, if it deems appropriate, carry out a review of matters relevant to a registered provider’s compliance with registration conditions. The Commission may also arrange for such a review to be carried out by another appropriate body; for example, by Her Majesty’s Chief Inspector or the designated quality body (see Chapter 2 of this Part) for matters in respect of the mandatory ongoing registration condition concerning quality.
120.Where the Commission is satisfied that a provider has failed (or is likely to fail) to comply with an ongoing registration condition, this section allows the Commission to direct the provider to take certain actions to comply with the condition. This might follow on from previous steps taken by the Commission to ensure compliance with registration conditions, such as advice and assistance (section 37) and reviews (section 38).
121.In respect of a failure to comply with a fee limit condition, the Commission may also direct a provider to repay to students any fee monies which have exceeded the fee limit (“excess fees”), and the manner in which it must do so (subsections (3), (4) and (5)).
122.Any directions issued to providers by the Commission must be published and a copy provided to the Welsh Ministers (subsection (6)).
123.The Commission must comply with the procedures set out in sections 75 to 78 when giving directions under section 39.
124.The Commission may issue guidance about how providers should comply with any directions issued under section 39 and must first consult registered providers and other appropriate providers regarding the content of this guidance.
125.The Commission has both a power and a duty to remove a provider from the register or from a category of the register in circumstances provided for in this section.
126.If a registered provider is no longer an ‘tertiary education provider in Wales’, or ceases to provide the type of tertiary education that is relevant to its category of registration (for example higher education, or further education), the Commission must remove that provider from either that particular category of the register, or from the register entirely. This is because the provider would no longer satisfy the conditions set out in section 25.
127.The Welsh Ministers may make regulations to specify other circumstances in which the Commission must remove providers from either a particular category of the register, or from the register entirely.
128.The Commission may remove a provider from the register or a category of the register if it appears to the Commission that the provider has breached one of its ongoing registration conditions and:
the Commission has previously issued a direction to that provider in relation to any breach of an ongoing registration condition, or
the Commission considers that issuing a direction under section 39 would be insufficient to deal with the breach.
129.Under subsections (6) and (7), the Welsh Ministers may make regulations establishing transitional arrangements where a provider is to be removed from the register or from a category of the register. This might involve temporarily treating the provider as a registered provider in a particular category, for example, in order to enable existing students at the provider to continue to receive student support.
130.The Commission must publish a list of any provider removed from the register or a category of the register, including reference to any regulations made under subsection (6).
131.This section establishes the process the Commission must follow when removing a provider from the register or a category of the register under section 41.
132.The Commission must notify the governing body of a registered provider of its intention to de-register the provider and its reasons for doing so. Providers will have a specified period to make representations to the Commission about the proposal. The Commission must have regard to any representations made during the specified period before deciding whether or not to remove the provider from the register or from a category of the register.
133.If the Commission decides to proceed with the de-registration decision, then the governing body of the provider may request a review (see section 45) of that decision by the decision reviewer (see section 79). Any notice of a decision by the Commission to de-register a provider must be accompanied with information as to the right of review.
134.A de-registration under section 41 cannot take effect while a review of the decision could be requested or is being undertaken, unless the provider notifies the Commission that it does not intend to apply for a review.
135.Registered providers may apply, in a form determined by the Commission, to be removed from the register or a category of the register or may give consent to a proposal from the Commission to remove the provider from the register or a category of the register.
136.If a provider applies for de-registration in accordance with subsection (6), the Commission is obliged to accept the application and must specify a date for removal from the register or category of the register. The governing body of the provider is able to apply for a review by the decision reviewer of the decision regarding the date for removal (see section 45).
137.Where a provider applies to be removed from a category of the register, it may specify in its application that it is, at the same time, applying for registration in a different category. Where such an application to change categories is made, the effect of subsections (2) to (4) is that the Commission is not obliged to remove the provider from its existing category unless it is also able to register it in the new category.
138.As in section 41, the Welsh Ministers may make regulations establishing transitional arrangements (subsection (13)). This might involve temporarily treating the provider as a registered provider, for example, to enable existing students at the provider to continue to receive student support.
139.The Commission must publish a list of any providers removed from the register or a category of the register and of any regulations made under subsection (13).
140.Where a provider is removed from a category of the register under section 41(3) or 43(5), the Commission may register the provider in another category of the register if—
the governing body consents,
it continues to fall within the definition of “
it provides, or has provided on its behalf, the tertiary education relevant to the registration category,
it satisfies the relevant initial registration conditions (see section 27), and
registration is not prohibited under section 25(5).
141.Whenever the Commission notifies a provider of a decision to:
refuse registration in a category under section 25;
impose or vary a specific condition of registration under section 29;
remove a provider from a category of the register under section 41; or
determine the date upon which any de-registration will take effect under section 43(7) or (8);
the provider in question may request a review of that decision.
142.Decision reviews will be carried out by the person or panel appointed by the Welsh Ministers under section 79 and in accordance with the review process established by regulations under that section.
143.This section sets out what a fee limit statement is and what it must include. When a registered provider is subject to a fee limit condition under section 32, the provider’s fee limit statement must specify the fee limit, or provide for the determination of the fee limit, in relation to each qualifying course. This fee limit must not exceed the “maximum amount”.
144.The “maximum amount” is the amount specified by the Welsh Ministers that a fee limit for a qualifying course may not exceed in any academic year.
145.Fee limits for different courses may vary and may also vary from year to year. Where there is a process or formula for determining a fee limit, this must be specified in the fee limit statement.
146.A fee limit statement has effect from the date which is specified in the fee limit statement.
147.Where the governing body of a provider applies to the Commission for approval of a fee limit statement, the Commission may approve or reject the statement and must give notice of that decision. This also applies where a provider applies for approval of a variation or replacement of the fee limit statement.
148.Where the Commission rejects a proposed fee limit statement, or a variation or replacement of a fee limit statement, it must follow the procedures outlined in sections 75 to 78.
149.A provider with an approved fee limit statement must publish that statement, and any approved variations or replacements. Published fee limit statements should be easily accessible to students and prospective students.
150.This section applies where a contract between a provider and a qualifying person in respect of that person undertaking a qualifying course provides for the payment of fees by the person which exceed the applicable fee limit.
151.“Qualifying person” and “qualifying course” have the meaning given to those terms in section 32.
152.Subsection (2) provides that such a contract is to be treated as providing for the payment of fees which are equivalent to the applicable fee limit. So where a student refuses to pay any excess fees specified in a contract the provider will not be able to recover the excess fees. But the contract will remain otherwise enforceable in terms of the provider’s duty to provide education to the student, despite the contract providing for the payment of fees which exceed the applicable fee limit (subsection (3)).
153.Subsection (1) gives a power to the Commission to produce and publish a quality assurance framework or frameworks. A quality assurance framework is a document setting out information and guidance on policy and practice relating to the criteria and arrangements for assessing or inspecting the quality of tertiary education and training. It may outline the roles and responsibilities of Estyn and the designated quality assessment body in conducting quality assurance, as well as the roles and responsibilities of tertiary education providers and others regarding the quality of tertiary education, and consideration of the views of students about the quality of tertiary education they receive.
154.Frameworks may also set out guidance and information regarding the professional development of the tertiary education workforce and provide information and guidance on any other relevant matters related to quality assurance.
155.The Commission is required to consult with registered tertiary education providers, Estyn and any other stakeholders as the Commission sees fit before publishing, revising or withdrawing a quality assurance framework document (subsection (4)).
156.Estyn, the designated quality assurance body and the Commission will be required to take account of the quality assurance framework in their work (subsections (5) and (6)).
157.This section imposes a duty on the Commission to monitor and promote improvement in the quality of education and training across registered and funded tertiary education providers.
158.This section gives the Commission the power to issue advice and guidance to any funded or registered provider to support quality improvement of the education, course or training provided. In particular, the Commission may provide advice and guidance to tertiary education providers to improve the quality of the education provided, or to prevent the quality of the education, course or training from becoming inadequate. This would be the case where the quality of the education, course or training does not meet the reasonable needs of the learners.
159.This section gives the Commission the power to carry out a review of any matter relevant to the quality of tertiary education and training. The Commission may arrange for these reviews to be carried out on its behalf.
160.Subsection (1) requires the Commission to assess, or make arrangements to assess, the quality of higher education provided by each registered tertiary education provider and by those providers offering higher education provision on behalf of providers registered with the Commission. The duty applies to the assessment of higher education relating to the provider’s category of registration (subsection (2)). In addition, subsection (3) gives the Commission the power to assess, or make arrangements to assess, the quality of higher education provided by any tertiary education provider.
161.The Commission must publish the reports of these assessments (subsection (4)).
162.The Welsh Ministers may by regulations require assessments to be carried out at specified intervals and to publish the reports of these assessments within a specified period (subsection (5)). The Welsh Ministers must consult with the Commission before making such regulations (subsection (6)).
163.In this Part of the Act, references to an external provider relate to those providers who are responsible for providing all or part of a course of higher education on behalf of registered providers, but who are not registered providers in their own right (subsection (7)). The Welsh Minister may make regulations about who should be treated as an external provider (subsection (8)).
164.Following a quality assessment and published report, the registered provider providing the higher education, or the registered provider on behalf of which the higher education is provided, must—
prepare a written statement of its planned actions to respond to the report and the timescales to address these planned actions, and
send the action plan statement to the Commission and to the designated body (if the designated body carried out the assessment) (subsection (2)).
165.The provider must also publish the action plan statement (subsection (3)).
166.Compliance with the requirements in this section to write and publish the action plan statement is to be treated as an ongoing registration condition for registered providers for the purpose of the enforcement powers of the Commission in section 39 (directions) and section 41 (de-registration).
167.Schedule 3, introduced by subsection (1), sets out further detail as regards:
the designation of a body to conduct the assessment functions under section 54 on behalf of the Commission,
oversight of the body by the Commission, and
provision for the body to charge fees.
168.The Commission will not normally be expected to conduct the assessment functions if it has designated a body to conduct these assessments on its behalf but will retain the power to do so (subsection (3)).