Commentary on Sections and Schedules Plans authorising fees of more than the basic amount
47.Before higher fees can be charged, a plan will have to be approved by either the Director of Fair Access to Higher Education (in England), or the body specified by the National Assembly for Wales. The Director and any body specified by the National Assembly are referred to in Part 3 of the Act as the “relevant authority” (see section 30). The Secretary of State (or the National Assembly) has the power to make regulations setting out what must be contained in these plans. The plan will have to make clear what the maximum fee charged for each course will be. Section 31 creates the Director of Fair Access to Higher Education, who will be appointed by the Secretary of State, to operate this system in England. It also makes clear that his role is to include identifying and promoting good practice in relation to the promotion of equality of opportunity in access to higher education.
48.Section 32 requires the Director to perform his duties in such as a way as to promote and safeguard fair access to higher education. The section provides that in performing his functions, the Director must protect academic freedom, including the freedom of institutions to determine the contents and manner of teaching of their courses, and to determine their own admissions criteria.
49.Section 33 makes provision about the contents of plans. It sets out that plans must specify, or provide for the determination of, a fee limit for each qualifying course. For England, plans must also include any provisions relating to the promotion of equality of opportunity which are required by regulations. In Wales, a plan must also include provisions related to the equality of opportunity or the promotion of higher education, as required by regulations.
50.Section 33(5)(a) allows regulations to require institutions to include in their plans provision for outreach measures. These are measures, such as the provision of summer schools or work with schools and colleges, which are designed to widen participation by attracting students who might otherwise not consider entering higher education at all or not consider applying to particular institutions. The reference to under-represented groups in the provision is not intended to have a strict statistical interpretation.
51.Examples are given in section 33(5) of other matters which regulations may require to be included in the plans, such as requiring financial assistance to be provided to students or requiring the institution to set out its own objectives. Section 33(6) makes clear that regulations may not require plans to contain measures referring to particular courses or the manner in which they are taught or relating to admissions criteria.
52.Section 34 provides that the relevant authority must exercise its functions in accordance with regulations which may, in particular, specify what the relevant authority must, or may not, have regard to in approving a plan. Regulations under this section may also require institutions to publish their plans. The relevant authority may issue guidance to institutions.
53.Sections 35 and 36 enable regulations to set out the maximum period a plan can be in force, and enable plans to be varied with the approval of the relevant authority. Plans must specify the period during which they are to be in force.
54.Section 37 provides that the Director may, if an institution breaches the conditions of its plan, direct HEFCE or TTA to impose financial sanctions relating to their grant on the institution, or refuse to renew the plan for a specified length of time. The Director may not apply such a sanction if an institution can demonstrate that it has done all it reasonably could to comply with the provisions of its plan.
55.The Secretary of State may make regulations setting out the nature of the financial penalties the Director may apply, and the procedures for using these sanctions.
56.Section 38 provides that, in Wales, the relevant authority may refuse to renew a plan for a specified length of time if the conditions of the plan are breached. This is in addition to any financial requirements that may be imposed by HEFCW under section 28.
57.Section 39 provides that regulations about the approval of plans, variation of plans, or imposing sanctions, in both England and Wales, must include provision for a mechanism for review of the relevant authority’s decisions on those matters.