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

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Amendment of section 65 of Principal Act (Arrangements by providers for protection of enrolled learners)

29. The Principal Act is amended by the substitution of the following sections for section 65:

“Obligation of certain providers to pay annual charge into Learner Protection Fund

65. (1) Subject to subsections (6) and (7), if—

(a) a relevant provider, an associated provider or a linked provider (each of which is referred to subsequently in this section as an ‘obligated provider’) offers, for reward, a programme of education and training leading to an award that is an award included within the Framework, or

(b) a provider offers, for reward, an English language programme (and such a provider is also referred to subsequently in this section as an ‘obligated provider’),

it shall, in each year, pay into the Learner Protection Fund, such amount (referred to subsequently in this Part as the ‘annual charge’) as is prescribed under section 66A(1).

(2) Subject to subsection (3), the annual charge shall be paid into the Learner Protection Fund prior to the commencement of provision by the obligated provider of the programme concerned and prior to the acceptance by it of any payments by or on behalf of any learners for enrolment on that programme.

(3) The Authority may, in its discretion, determine that the annual charge, to be paid into the Learner Protection Fund by a class of obligated provider specified in the determination, shall be so paid by such a provider not later than a time that is specified by the Authority in the determination, being a time that falls after either event referred to in subsection (2), and such a provider shall, accordingly, pay the annual charge into the foregoing Fund no later than the time so specified.

(4) References in this section and subsequent provisions of this Part to the payment into the Learner Protection Fund of the annual charge shall be construed as references to the payment of that charge to the Authority for the purpose of the Authority remitting the charge to that Fund (and any such charge so paid to the Authority shall be remitted by it to that Fund accordingly).

(5) The Authority may require an obligated provider who is liable to pay the annual charge to provide any information that is relevant to determining the amount of the charge.

(6) Subsection (1) shall not apply to a provider of a programme of education and training if the provider is—

(a) a previously established university,

(b) an educational institution established as a university under section 9 of the Act of 1997,

(c) a technological university,

(d) the Dublin Institute of Technology,

(e) an Institute of Technology,

(f) an educational institution designated under section 5 (inserted by section 52 (e) of the Institutes of Technology Act 2006 ) of the Higher Education Authority Act 1971 as an institution of higher education for the purposes of that Act,

(g) Solas,

(h) the National Tourism Development Authority,

(i) Teagasc,

(j) An Bord Iascaigh Mhara,

(k) an education and training board or an institution established and maintained by an education and training board,

(l) the Institute of Public Administration,

(m) a recognised school,

(n) the Royal College of Surgeons in Ireland,

(o) the Royal Irish Academy of Music,

(p) Mary Immaculate College,

(q) Marino Institute of Education, or

(r) a body established—

(i) by or under an enactment (other than the Companies Act 2014 or a former enactment relating to companies within the meaning of section 5 of that Act), or

(ii) under the Companies Act 2014 (or a former enactment relating to companies within the meaning of section 5 of that Act) in pursuance of powers conferred by or under another enactment, and financed wholly or partly by means of money provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government.

(7) If a provider referred to in subsection (1) ceases to provide, for reward, a programme referred to in paragraph (a) or (b) of that subsection, that subsection shall—

(a) beginning with the year following the year in which the programme ceases to be so provided, and

(b) in each year thereafter,

provided there is not a resumption by the provider of the doing of the thing referred to in that subsection (whether in respect of the same programme or another programme falling within paragraph (a) or (b) of it), cease to apply to the provider.

(8) Where an obligated provider receives moneys, more than 40 days before the commencement of the provision by it of a programme referred to in subsection (1), from or on behalf of a learner in respect of that programme, the obligated provider shall establish an account with the holder of a licence (within the meaning of the Central Bank Act 1971 ) into which account it shall pay those moneys, and in respect of which account the provider ensures that an arrangement in writing, entered into between it and that holder (the ‘institution’), of the kind referred to in subsection (9) applies.

(9) The arrangement referred to in subsection (8) is that the account concerned will operate by way of escrow and with the following incidents, that is to say—

(a) the moneys concerned may not be drawn upon by the obligated provider unless and until the institution receives a written notification from the provider which contains a statement by the provider (accompanied by proof that, in the opinion of the institution, will enable the statement to be verified by it) that the programme concerned has commenced, and

(b) in the event of the programme not being commenced, for any reason, the institution shall permit—

(i) unless subparagraph (ii) applies, the whole of the moneys concerned, or

(ii) such amount of the moneys concerned as remains after deduction, in the institution’s favour, of any charges for the making of the arrangement referred to in subsection (8) that have been agreed between the obligated provider and institution,

to be drawn upon by the learner (or another acting on the learner’s behalf), and only the learner or another so acting, by way of refund or, as the case may be, partial refund.

Existing enrolled learner protection arrangements - status and period for which such arrangements shall continue to have effect

65A. (1) In this section—

‘previous section 65’ means section 65 as it stood enacted before the relevant commencement;

‘relevant commencement’ means the date of commencement of section 29 of the Qualifications and Quality Assurance (Education and Training) (Amendment) Act 2019;

‘relevant substitution’ means the amendment, effected by section 29 of the Qualifications and Quality Assurance (Education and Training) (Amendment) Act 2019, in so far as it consists of the substitution, for the previous section 65, of a section 65.

(2) Subject to subsection (3), any arrangements put in place under the previous section 65 by a provider (and subsisting immediately before the relevant commencement) shall, notwithstanding the relevant substitution, continue in being.

(3) On the expiration of 3 years from the relevant commencement or such earlier date as may be appointed by order made by the Minister under subsection (4), the arrangements referred to in subsection (2) shall cease to have effect.

(4) The Minister, after consultation with the Authority, may, by order, appoint a date (earlier than the expiration of the period of 3 years referred to in that subsection) for the purposes of subsection (3) and different such dates may be appointed by an order or orders made under this subsection by the Minister in relation to different classes of provider specified in the order or orders.”.