Commentary on Sections of the Act Part 5 – Fee and Access Plans: Withdrawal of Approval etc Section 37 – Notice of refusal to approve new fee and access plan
105.Notice of refusal to approve a new fee and access plan is one of the ways in which HEFCW can take enforcement action against an institution’s non-compliance with:
	limits on student fees (under section 10);
	a general requirement of an institution’s approved plan;
	a direction in respect of a general requirement of a plan (under section 13);
	a direction in respect of inadequate quality of education (under section 19); and
	a direction in respect of failure to comply with the Code (under section 32).
106.Currently HEFCW can refuse to approve a new fee plan under the Higher Education Act 2004 on the basis of non-compliance with limits on student fees or general provisions of an institution’s approved plan. Whilst educational quality and financial management does not form part of the existing fee planning arrangements, HEFCW regulates an institution in respect of these matters through terms and conditions of funding.
107.Once notice has been given HEFCW must not approve a new fee and access plan until the period specified in the notice has expired. However, HEFCW may withdraw a notice at which point the restriction on approving a new plan ceases. For instance, HEFCW may consider withdrawing notice if they are satisfied that an institution has remedied the failing identified in a direction and it is not appropriate to continue with enforcement action.
108.Subsection (7) permits the Welsh Ministers to make regulations to provide for:
	the period that may be specified in a notice, during which HEFCW will not approve a new fee and access plan. For instance, this might provide that HEFCW cannot approve a new fee plan for a period of at least one year. Alternatively the maximum period for not approving a fee plan could limited to one year;
	matters that HEFCW must take into account in deciding whether to give or withdraw a notice. This might require HEFCW to consider whether the institution has (after the date for compliance) complied with a direction or adjusted its fees and repaid any student fees that have been overcharged;
	the procedure to be followed on the withdrawal of a notice. For instance, this might require HEFCW to give notice of the withdrawal to the institution and/or, to publish in some form notice of withdrawal.
109.HEFCW may give a direction under section 13 to the governing body of an institution which was previously a regulated institution but is no longer a regulated institution, where that governing body failed to comply with a general requirement of a fee and access plan at a time when that plan was in force. Section 37(7) applies section 37 to institutions that are not regulated but which have failed to comply with a direction given under section 13.
110.Sections 41 to 44 set out the warning notice and review procedures that apply to giving notice under this section.