A new approach to enforcement? Ofqual consults on its Taking Regulatory Action policy

On 20 February 2025, Ofqual opened a consultation on updates to its enforcement policy, “Taking Regulatory Action”, which it proposes to rename “Supporting Compliance and Taking Regulatory Action”. The consultation will close on 15 May 2025.

This refresh of Ofqual’s enforcement policy has been long awaited by awarding organisations (“AOs”). Since the existing policy was introduced in 2012, there have been seven governments, widespread education reforms, and significant development and diversification in the qualifications sector. Ofqual consulted on amending the policy in 2019, but implementation of changes was then disrupted by the pandemic.

Ofqual says that the changes to its policy are designed to support AOs and ensure that enforcement action is necessary, proportionate and fair. The policy is intended to better explain how Ofqual uses its powers and to set out more efficient processes for responding to regulatory breaches.

In this blog, Louise Sivey and Emily Wilson from our Public and Regulatory team explore some of the key changes that Ofqual proposes to make to its policy, how these might impact on the qualifications sector, and the extent to which they signal a change in Ofqual’s approach.

“Supporting Compliance”

The proposed new policy will be named “Supporting Compliance and Taking Regulatory Action” (rather than “Taking Regulatory Action”). Ofqual says that this is because the focus of its work is on “preventing non-compliance and minimising the need to take formal regulatory action”.

We wondered whether this new title would be accompanied by detail about how Ofqual intends to support compliance, for example through issuing guidance on compliance challenges or regulatory trends it is witnessing in the sector, providing training, or working more collaboratively on initiatives such as regulatory sandboxes. Such an approach would likely be welcomed by the sector which may consider Ofqual’s approach to regulation to be defined more by combat than collaboration.

Ofqual says that “Our preferred approach is to support awarding organisations to remain in or return to compliance with their conditions of recognition by encouraging them to identify risks and potential issues early and making sure they resolve weaknesses in systems and processes before adverse effects can occur.” The new policy contains a handful of references to steps that might support compliance including where Ofqual clarifies that in many cases it will provide feedback and advice to AOs before making requirements under a condition. We also note that Ofqual’s latest Regulatory Burden Statement outlines its approach to managing the regulatory burden. But ultimately the policy itself remains focused on formal enforcement. In particular, the range of non-statutory actions on which Ofqual has provided further detail, ostensibly as part of a more supportive approach, should, we think, be properly characterised as regulatory enforcement interventions.

The Federation of Awarding Bodies (FAB) has led important work on behalf of the qualifications sector in recent years to highlight the regulatory burden. Its Feel the Weight – regulatory impact in awarding report was published in February 2022 followed the year after by Still feeling the weight: a 2023 update on regulatory burden in the UK awarding sector . We look forward to discussing with FAB and its members whether the proposed changes to the policy are likely to reduce the regulatory burden or support collaboration in practice.

Settlement in cases where a fine is appropriate

In recent years, Bates Wells has advised a number of AOs on settling regulatory action with Ofqual. A new section in the policy confirms that Ofqual will always consider AO proposals for settlement. This is a welcome development, as in theory it can allow cases to be resolved more quickly and efficiently and sometimes for a reduced financial penalty.

However, settlement discussions with Ofqual can sometimes become protracted, and therefore much depends on the regulator’s approach to each individual case. On a related point, AOs may have concerns about Ofqual’s clarification that where it reaches settlement, it will expect an AO to pay an amount towards its costs. When Ofqual progresses its regulatory action slowly, costs can mount through no fault of the AO.

Contested cases: publication of notice of intention

Ofqual proposes that in contested cases, it will decide on a case by case basis whether a notice of intention (which must be issued before Ofqual can impose a fine) will be published with a period for representations to be made by stakeholders other than the affected AO prior to a final decision, rather than (as currently) it always being the case that it will be published. Ofqual note that stakeholders almost never make representations on a notice of intention and that perversely, although such a notice is an indication only of Ofqual’s intentions rather than its final decision, it often attracts media attention. We anticipate AOs will generally see the sense in this, but there may be occasions where an AO feels aggrieved not to have the opportunity to comment upon the proposed sanction of one of its competitors, or where an affected learner or third party would have wanted the chance to share a view before the decision is final.

Rebuke

Ofqual decided in May 2021 to add the issuing of a rebuke to its armoury of non-statutory actions but had not yet operationalised this. The policy states Ofqual may issue a rebuke where it has made a determination that an AO has failed to comply with the General Conditions of Recognition (“GCOR”) – the rules to which all AOs must adhere – and the matter is sufficiently serious that some action should be taken but not so serious that a monetary penalty should be imposed. AOs will note with relief that although Ofqual will normally publish any rebuke, it will delay publication until the time for an appeal has passed and if an appeal is brought, until the appeal is concluded.

Record keeping

Ofqual will record instances of non-compliance, even where the outcome is that no action will be taken. Given that an AO’s compliance history will be taken into account at various stages throughout a regulatory investigation and enforcement process (including when assessing risk, and deciding what action to take), this may be concerning in circumstances where an AO does not agree that there has been any non-compliance. AOs may feel vulnerable in such a case – Ofqual has proposed that rather than the Enforcement Panel making decisions on all contested cases, senior members of Ofqual staff will be able to make determinations that an AO has breached GCOR when it is proposed that no further action is taken (even if the AO does not agree).

AOs may express disquiet about this new development in their responses to the consultation. However, Ofqual has said that less weight will be placed on historic instances of non-compliance (an approach which seems common to some other regulators), AOs should note that changes to Ofqual’s decision making are not within the scope of the consultation and Ofqual indicate they provide details only for transparency.

Growth

Despite being subject to the duty to have regard to the desirability of promoting economic growth when delivering regulatory functions (s108 of the Deregulation Act 2015), Ofqual’s enforcement policy has not to date acknowledged this. Ofqual now states that it has regard to the impact of regulatory action on economic growth. The new policy says, under “How we approach regulatory action” that “We act in the way we consider reflects the best interests of learners, those that rely on qualifications, their role in a productive economy and society at large”, reflecting how the qualifications market has been seen by the government to fit into its wider growth agenda, by equipping learners with the skills they need to become productive workers.

However, in the current political context, in which regulators are coming under increasing pressure from the government to play an active role in boosting economic growth – by making concrete proposals as to how they will operate differently – we might have expected to see the new policy go further and for changes to be made in recognition of the growth agenda.

Some amendments are likely to be welcomed by AOs but there may be questions as to whether the proposals under consultation actually represent a significant change in approach that some AOs might have hoped for.

With experience acting for a number of AOs, Bates Wells is well placed to help if you are considering responding to Ofqual’s consultation or have any concerns or questions arising from it. Please contact Louise Sivey if you would like to discuss this consultation any further.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.