Qualifications and Quality Assurance (Education and Training) (Amendment) Act 2019

New sections 55A to 55I of Principal Act - awards included within Framework (process by which awards acquire such status)

23. The Principal Act is amended by the insertion of the following sections after section 55:

“Sections 55A to 55I (Interpretation)

55A.(1) In sections 55B to 55I—

(a) ‘listed awarding body’ means an awarding body whose name, for the time being, appears in the list of awarding bodies;

(b) ‘list of awarding bodies’ shall be construed in accordance with section 55C(3) ;

(c) ‘operative date’ means the date of commencement of section 23 of the Qualifications and Quality Assurance (Education and Training) (Amendment) Act 2019;

(d) a reference to an affirmative decision made, or that will be made, under section 55D, in relation to an award, is a reference to a decision made, or that will be made, under that section that it is appropriate that the award be regarded as one that is included within the Framework.

(2) The power of the Authority, under any of sections 55B to 55I, to make decisions in relation to awards (including where the context is of a decision, under section 55C(5), in relation to an awarding body with reference to awards) is a power that is exercisable in relation to awards generally (of the specific type or class concerned) as distinct from being a power exercisable in relation to the individual instances of the award being made to a person.

Awards included within Framework (process by which awards acquire such status)

55B. (1) For the purposes of this Act, an award shall be regarded as an ‘award that is included within the Framework’ if, in accordance with sections 55C and 55D, the Authority makes the following decisions in that behalf, namely—

(a) firstly - with respect to the body that will make the particular award, and on the assumption that the decision referred to in paragraph (b) with respect to that award will be an affirmative decision - a decision, under section 55C(5), that it is an appropriate body, with reference to the particular award, to make such an award, and

(b) following the making of that decision - a decision under section 55D that it is appropriate that the particular award be regarded as one that is included within the Framework,

but this is subject to subsections (2) to (4) and sections 55D(7) and 55I.

(2) Subsection (1)(a) does not apply to an award that is made by—

(a) the Authority,

(b) a designated awarding body,

(c) a provider to whom the Authority has delegated authority to make awards, or

(d) a body that makes an award under the Education Act 1998 that stands specified by the Minister to be an award that falls within this paragraph,

and, accordingly, with respect to an award to be made by the Authority or by any foregoing body or provider and without prejudice to subsection (3), an affirmative decision under section 55D suffices for the award to be regarded, for the purposes of this Act, as an award that is included within the Framework.

(3) In respect of an award made by a designated awarding body, such an award shall, without the need for the making of a decision under section 55D, be regarded as an award that is included within the Framework if—

(a) arrangements of the kind referred to in subsection (4) have been put in place by the designated awarding body and the Authority, and

(b) on foot of those arrangements, the Authority—

(i) expresses its agreement with the view, concerning that award, of the designated awarding body referred to in paragraph (a) of subsection (4), and

(ii) notifies the body, in writing, to that effect,

and an award, the subject of such a notification, is referred to subsequently in this Act as a ‘section 55B(3) award’.

(4) The arrangements referred to in subsection (3) are arrangements that consist of the following 2 procedures—

(a) a procedure under which, following its forming such a view in relation to an award it makes, a designated awarding body may, by notice in writing served on the Authority, state that the body is of the view it is appropriate that the award be regarded as an award that is included within the Framework, and

(b) a procedure under which the Authority may—

(i) having had regard to the view of the body expressed in that notice, and

(ii) having consulted with the body,

express the agreement of the Authority with that view.

(5) Notwithstanding that a section 55B(3) award has not been preceded by the making of a decision by the Authority under section 55D in relation to it, a section 55B(3) award shall for the purposes, and the purposes only, of subsections (6) to (8) of section 55D (and the relevant provisions of sections 55I and 80 referred to in those subsections) be deemed to have been the subject of an affirmative decision made under section 55D.

Listing of an awarding body - decision as to whether it is appropriate that such a body make a particular award and related matters

55C. (1) The purpose for which provision for—

(a) the establishment of the category next referred to in this section, and

(b) the procedures for the listing of awarding bodies,

is made by this section is so that an award, being an award—

(i) the subject of an affirmative decision under section 55D, and

(ii) made by an awarding body whose name appears in the list of awarding bodies,

is, for the purposes of this Act, an award included within the Framework.

(2) On the completion of the steps specified in subsection (3), there shall stand established under this Act a category of awarding bodies, exclusive of the Authority or a body or provider referred to in section 55B(2), and the category so established shall be known, and is in this Act referred to, as ‘listed awarding bodies’.

(3) As soon as practicable after the operative date, the Authority shall prepare, maintain and publish a list which shall be known, and is in this Act referred to, as the ‘list of awarding bodies’.

(4) There shall be included in the foregoing list the name of each awarding body (other than the Authority or a body or provider referred to in section 55B(2))—

(a) that makes an application to the Authority for the inclusion by the Authority of its name in the list with reference to one, or more than one award, proposed to be made by it, and

(b) the inclusion of whose name in the list, on foot of such an application, is acceded to by the Authority following a decision under subsection (5) by the Authority that the awarding body is an appropriate body, with reference to that award, to make such an award.

(5) Following receipt of the foregoing application and subject to subsections (6) and (7), the Authority shall make a decision as to whether the applicant awarding body is an appropriate body, with reference to the award concerned, to make such an award.

(6) For the purpose of its making a decision under subsection (5) and that purpose only, the Authority shall proceed on the assumption that an affirmative decision will be made under section 55D in relation to the award referred to in subsection (4)(b).

(7) For the purpose of its making a decision under subsection (5), the Authority shall have regard to the policies and criteria established under section 55E(1)(a).

(8) A reference in subsection (4) to the inclusion by the Authority of a name in the list of awarding bodies includes a reference to the Authority’s accepting a name for inclusion in that list (following a decision under subsection (5) that the body concerned is an appropriate body as there referred to) pending completion by it of the steps under subsection (3) which lead to that list’s preparation.

(9) An application under subsection (4) shall be accompanied by such fee (if any) as may be determined by the Authority under section 80.

(10) The Authority shall establish procedures that are to be followed by it in making a decision under subsection (5).

(11) If the Authority decides to refuse an application made by an awarding body under subsection (4)(a), the awarding body may appeal against that decision to the Appeals Panel.

(12) The Authority shall publish procedures established under subsection (10) in such form and manner as it thinks appropriate (including on the internet).

Decision that award is an appropriate one to be included in Framework

55D. (1) On an application in that behalf by the awarding body that intends to make the particular award, whether—

(a) a listed awarding body,

(b) save where the award concerned of such a body is a section 55B(3) award, a designated awarding body, or

(c) a body or provider referred to in section 55B(2)(c) or (d),

the Authority shall make a decision as to whether it is appropriate that the award be regarded as one that is included within the Framework.

(2) Save where, in the case of a particular class of award, the making of a decision as to its status (by reference to the Framework) is, in the opinion of the Authority, unnecessary, the Authority shall make a decision as to whether it is appropriate that an award of the Authority be regarded as one that is included within the Framework.

(3) In making a decision under this section, the Authority shall have regard to the policies and criteria established under section 55E(1)(b).

(4) An application under subsection (1) shall be accompanied by such fee (if any) as may be determined by the Authority under section 80.

(5) If the Authority decides to refuse an application made by an awarding body under subsection (1), the awarding body may appeal against that decision to the Appeals Panel.

(6) If the Authority makes an affirmative decision under this section with respect to an award of a listed awarding body or a body or provider referred to in section 55B(2)(b), (c) or (d), the awarding body concerned shall pay to the Authority—

(a) within one month of the date of the decision, in consideration of the benefit that is conferred by reason of that decision, such fee (if any) as may be determined by the Authority under section 80, and which benefit is referred to in that section as the ‘benefit of a decision under section 55D’, and

(b) within one month of each anniversary of the date of the decision, in consideration of the benefit that continues to be conferred by reason of that decision, such fee (if any) as may be determined by the Authority under section 80, and which benefit is referred to in that section as the ‘continuing benefit of a decision under section 55D’,

but paragraph (b) does not apply if, on or before the anniversary referred to in that paragraph or during the month following it, the award concerned has ceased, by virtue of section 55I(1), to be regarded for the purposes of this Act as an award that is included within the Framework.

(7) If default is made by an awarding body in complying with subsection (6), then unless the Authority determines that the period for the payment of the fee concerned ought to be extended (and extends the period accordingly and the fee is paid to it within that extended period), the award of the awarding body shall, from such date as the Authority specifies, not be regarded, for the purposes of this Act, as an award that is included within the Framework.

(8) Where, under subsection (7), an award ceases to be regarded, for the purposes of this Act, as an award that is included within the Framework, subsection (2) of section 55I shall apply as it applies in the case of subsection (1) of that section but with the substitution of references to the making of default in compliance (by the awarding body) with subsection (6) of this section for references to the deletion of the awarding body’s name from the list of awarding bodies.

Policies and criteria for making decisions under sections 55C(5) and 55D

55E.(1) As soon as practicable after the operative date, the Authority shall establish policies and criteria to which regard shall be had by the Authority in making—

(a) a decision under section 55C(5), and

(b) a decision under section 55D.

(2) The Authority shall publish the policies and criteria established under subsection (1) in such form and manner as it thinks appropriate (including on the internet).

(3) The reference in subsection (1) to policies and criteria, so far as that subsection relates to a decision under section 55C(5), shall be deemed to include a reference to minimum requirements, that is to say requirements that must first be fulfilled before the Authority may make a decision under section 55C(5) that the relevant awarding body is an appropriate body, with reference to a particular award, to make such an award.

(4) A requirement of the kind referred to in subsection (3) may include a requirement that the making of an application, under section 55C(4)(a), by an awarding body has been endorsed by a public authority of such class as is specified by the Authority in the requirement, and, for the purposes of this subsection, ‘public authority’ includes the Minister, any other Minister of the Government, An tÚdarás um Ard-Oideachas, Solas, a professional recognition body and a designated awarding body.

(5) The Authority may establish different policies and criteria under subsection (1)(b) in respect of different awards.

(6) Subsection (7) applies so far as the number of awards that, for the time being, stand included within the Framework is attributable to the policies and criteria established under subsection (1)(b).

(7) The Authority shall, in establishing policies and criteria under subsection (1)(b), have regard to the need to ensure:

(a) that the number of awards included within the Framework provides a reasonable level of choice for learners; and

(b) that the number of awards included within the Framework that are awards with similar learning outcomes is not excessive.

(8) In addition to what is provided in subsection (7), the Authority shall, in establishing policies and criteria under subsection (1)(b), have regard to:

(a) the reasonable requirements of learners;

(b) the reasonable requirements of industry, agriculture, business, tourism and trade, the professions and the public service;

(c) the extent to which present and past awards in the State serve or served their educational purpose and the needs of the economy;

(d) any consultation, concerning the education and training needs of learners, engaged in by it with—

(i) bodies with responsibility for managing the provision of education and training that is funded by the Exchequer, and

(ii) bodies that regulate one or more professions;

and

(e) such aspects of Government policy as the Minister may specify for the purposes of this paragraph.

(9) The Authority may consult with another public body, including a public body that is established outside the State, where it considers that it is appropriate to do so for the efficient and effective operation of policies and criteria established under subsection (1).

(10) The Authority shall, within 5 years after the establishment of policies and criteria under subsection (1) and at least once in every period of 5 years thereafter, review those policies and criteria.

Duties of listed awarding bodies

55F. (1) In this section ‘associated provider’ means a provider, having a place of business in the State, that enters into an arrangement with a listed awarding body under which arrangement the provider provides a programme of education and training that satisfies all of the prerequisites for an award of the listed awarding body that is included within the Framework.

(2) A listed awarding body shall establish procedures for the quality assurance of its awards and for the external quality assurance of providers who, in relation to it, are associated providers.

(3) The Authority may give one, or more than one, direction to a listed awarding body requiring the body to impose on a provider, who, in relation to the listed awarding body, is an associated provider, obligations to which subsection (4) applies, and obligations, so imposed, shall be complied with by the provider accordingly.

(4) This subsection applies to obligations (which shall be specified in the direction concerned under subsection (3))—

(a) the imposition of which, in the opinion of the Authority, is necessary or expedient, and

(b) that are to apply to, or in respect of, the provider’s activities as an associated provider in relation to the awarding body.

(5) Without prejudice to the generality of subsection (4), the obligations to which that subsection applies include obligations with respect to the employment of—

(a) procedures for access, transfer and progression of learners,

(b) procedures for quality assurance, and

(c) procedures, which are fair and consistent, for the assessment of enrolled learners to ensure the standards of knowledge, skill or competence determined by the awarding body concerned (before awards that are included within the Framework are made by that body) are acquired and, where appropriate, demonstrated, by enrolled learners.

(6) For the purposes of the compliance by an associated provider with the obligation referred to in paragraph (a) of subsection (5) to employ the procedures referred to in that paragraph, the associated provider shall have regard to the policies and criteria established by the Authority under subsection (1) of section 56 if that subsection would otherwise not apply.

(7) A listed awarding body shall—

(a) co-operate with the Authority in the performance of the Authority’s functions in so far as those functions relate to the inclusion of awards within the Framework,

(b) monitor compliance by an associated provider, on whom it has imposed obligations pursuant to a direction under subsection (3), with those obligations,

(c) review from time to time, and not less than once every 5 years, or at any time upon the request of the Authority, compliance by such an associated provider with the foregoing obligations,

(d) if such an associated provider has failed in a material respect to comply with any of the foregoing obligations, discontinue (after having afforded the provider a reasonable opportunity to make representations in writing that the grounds for such discontinuance do not exist in the particular case) any arrangement that exists between it and the associated provider under which arrangement the provider provides a programme referred to in subsection (1),

(e) provide to the Authority such information as the Authority may from time to time require for purposes of the performance of its functions in relation to awards included within the Framework, and

(f) comply with any condition that the Authority imposes, by notice in writing given to the body, on the awarding body concerned, being a condition the imposition of which the Authority considers to be necessary or expedient so as to maintain the integrity and standing of the Framework.

(8) Without prejudice to the generality of paragraph (e) of subsection (7), the information that the Authority may require to be provided under that paragraph includes—

(a) particulars of providers who, in relation to the listed awarding body concerned, are associated providers,

(b) particulars of programmes of education and training validated by the Authority or otherwise included within the Framework that lead to awards of the listed awarding body concerned that are included within the Framework,

(c) any report prepared by the listed awarding body concerned on foot of a review carried out by it with respect to the provision of programmes of education and training that lead to awards of the body that are included within the Framework, and

(d) numbers of awards made by the listed awarding body concerned that are included within the Framework.

(9) An awarding body that is not a listed awarding body but which claims or represents that it is such an awarding body commits an offence.

Review of listed awarding bodies

55G. (1) The Authority shall—

(a) at least once every 7 years, and

(b) from time to time as the Authority thinks appropriate,

review the operation and management of each listed awarding body in so far as that operation and management relates to—

(i) awards of the listed awarding body that are included within the Framework,

(ii) the listed awarding body’s implementation of the procedures established by it under section 55F(2), and

(iii) the fulfilment by the listed awarding body of its duties under section 55F(7)(b) and (c).

(2) The Authority shall establish and publish in such form and manner as it thinks appropriate (including on the internet) procedures and criteria for conducting reviews under subsection (1).

(3) A listed awarding body subject to review under subsection (1) shall pay to the Authority within one month of the completion of the review such fee (if any) as may be determined by the Authority under section 80.

(4) In conducting a review under subsection (1), the Authority may have regard to any other review conducted under this Act.

(5) The Authority shall prepare a report setting out the results of a review conducted under subsection (1).

(6) The Authority shall provide a copy of the report under subsection (5) to the awarding body concerned and, in providing the report to it, the Authority shall state to the awarding body that it may, within one month from the provision of the report to it, submit observations in writing to the Authority in relation to the report, and the awarding body may submit such observations accordingly.

(7) After consideration of any observations submitted to it in accordance with subsection (6), the Authority may make any amendments to the report that the Authority considers appropriate. If such amendments are made to it, a copy of the report, as so amended, shall be provided by the Authority to the awarding body concerned.

(8) The Authority shall publish the report prepared under subsection (5), or, if it has been amended under subsection (7), the report as amended under the latter subsection, in such form and manner as the Authority thinks appropriate (including on the internet).

(9) Where, following a review under this section, the Authority gives a notice under section 55H(4) to the awarding body concerned, then subsections (6), (7) and (8) shall not apply in that particular case.

(10) Where—

(a) a listed awarding body is a body established under the law of a state, other than the State, and

(b) apart from the provision made by this Act for the Authority to exercise powers in relation to it, that awarding body is subject to regulation or quality assurance by an agency established outside the State,

the Authority may, for the purpose of conducting a review under subsection (1) in respect of that awarding body, cooperate with that agency.

Withdrawal or variation of listing of awarding bodies

55H. (1) Where, following a review under section 55G in respect of a listed awarding body, the Authority is of the opinion that, on any of the grounds specified in subsection (3), either—

(a) it is no longer appropriate that the awarding body’s name stand included in the list of awarding bodies with reference (as the Authority considers appropriate) either—

(i) to each of the one or more awards as respects which the body’s name had been included in that list (a ‘whole deletion’), or

(ii) to such one or more (as the Authority specifies), but not all, of those awards (a ‘partial deletion’),

or

(b) the conditions for the time being imposed on the awarding body under section 55F(7)(f) ought to be varied,

then, subject to the provisions of this section, the powers specified in subsection (2) may be exercised by the Authority.

(2) The powers referred to in subsection (1) are—

(a) to delete from the list of awarding bodies the name, whether by way of a whole deletion or, as the Authority considers appropriate, by way of a partial deletion, of the awarding body concerned, or

(b) to vary the conditions for the time being imposed on the awarding body concerned under section 55F(7)(f).

(3) The grounds referred to in subsection (1) are—

(a) having regard to the policies and criteria established under section 55E(1)(a), it is appropriate that the name of the awarding body concerned no longer stand included, whether by way of a whole deletion or by way of a partial deletion, in the list of awarding bodies or that, as respects the conditions for the time being imposed on the awarding body concerned under section 55F(7)(f), those conditions ought to be varied,

(b) the awarding body concerned has failed to comply with one or more of the conditions imposed on it under section 55F(7)(f), or

(c) other circumstances exist in respect of the awarding body concerned that the Authority considers provide a reasonable justification for the exercise by it of either of the powers specified in subsection (2) in relation to that body,

and this section shall be construed so that the existence of the ground specified in paragraph (b), as with that specified in paragraph (a) or (c), enables the exercise by the Authority of either of the powers specified in subsection (2) in relation to the body concerned.

(4) If the Authority proposes to exercise either of the powers specified in subsection (2) in relation to a listed awarding body, the Authority shall, by notice in writing, inform the awarding body that the Authority proposes to delete from the list of awarding bodies its name, whether by way of a whole deletion or by way of a partial deletion and, in the case of the latter, specifying the awards to which it is proposed the deletion will apply, or, as the case may be, to vary, in specified respects, the conditions that stand imposed on it under section 55F(7)(f), and the notice shall state the reasons for the proposed course of action and be accompanied by a copy of the report prepared under section 55G(5).

(5) A notice under subsection (4) shall state that the awarding body may submit observations in writing to the Authority in relation to the proposed course of action specified in the notice or in relation to the report that accompanies the notice, not later than one month from the service of the notice on the awarding body, and the awarding body may submit such observations accordingly.

(6) Where after consideration of any observations submitted to it in accordance with subsection (5) —

(a) the Authority is still of the opinion referred to in subsection (1)(a) or (b), it may, by notice in writing addressed to the awarding body—

(i) delete from the list of awarding bodies the awarding body’s name, whether by way of a whole deletion or, as the case may be, by way of a partial deletion (being the partial deletion as notified to that body under subsection (4)), or

(ii) vary, in particular respects, the conditions that stand imposed on the awarding body under section 55F(7)(f),

or

(b) in a case in which the original opinion was that referred to in subsection (1)(a) and the Authority is now of the opinion that the awarding body’s name should be deleted from the list of awarding bodies by way of—

(i) a partial deletion (rather than by way of a whole deletion), or

(ii) a partial deletion as respects a lesser number of awards than had been notified to that body under subsection (4),

it may, by notice in writing addressed to the awarding body, delete from that list the body’s name by way of a partial deletion consonant with what is described in subparagraph (i) or, as the case may be, subparagraph (ii),

and that deletion (of whatever kind) or variation shall be expressed to take effect from such date (not being earlier than the date of service of the notice) as the Authority considers appropriate and specifies in the notice.

(7) A notice under subsection (6) shall state the reasons for the deletion or variation referred to in that subsection.

(8) After consideration of any observations submitted to it in accordance with subsection (5), the Authority may make any amendments to the report prepared under section 55G(5) that the Authority considers appropriate. If such amendments are made to it, a copy of the report, as so amended, shall be provided by the Authority to the awarding body concerned.

(9) The Authority shall publish the report prepared under section 55G(5), or, if it has been amended under subsection (8), the report as amended under that subsection, in such form and manner as the Authority thinks appropriate (including on the internet).

(10) The awarding body concerned may appeal to the Appeals Board against the deletion, under this section, of its name (whether by way of a whole deletion or by way of a partial deletion) from the list of awarding bodies or the variation, under this section, of the conditions that stand imposed on it under section 55F(7)(f).

Effect of deletion of awarding body’s name from list

55I. (1) Notwithstanding the fact of an affirmative decision having been made under section 55D in respect of the award concerned, if the name of an awarding body is deleted, under section 55H(6), (in whatever of the ways there provided) from the list of awarding bodies, any award of that body made after that deletion shall, for the purposes of this Act, not be regarded as an award that is included within the Framework, but this is subject to subsections (2) and (3).

(2) If the name of the awarding body concerned has been deleted, under subsection (6) of section 55H, by way of what is referred to in that subsection (in whatever provision of it) as a ‘partial deletion’, then subsection (1) shall not have effect in relation to any award as respects which that partial deletion does not apply.

(3) Without prejudice to subsection (2), if an award is made by an awarding body, after the deletion of its name as referred to in subsection (1), to a person whose enrolment on the programme of education and training that led to the making of the award occurred before the foregoing deletion, then that award, with respect to that person, shall be regarded, for the purposes of this Act, as an award that is included within the Framework.”.