Higher Education Act 2004

Part 3E+WStudent fees and fair access

IntroductoryE+W

22Meaning of “plan” etc.E+W

In this Part—

(a)any reference to a plan is a reference to a plan complying with section 33, and

(b)any reference to an English approved plan [F1is a reference to a plan approved under section 34.]

Imposition of conditions as to feesE+W

[F223Duty of Secretary of State to impose condition as to student fees, etc.E+W

(1)Subsection (2) applies to a grant made by the Secretary of State to the Higher Education Funding Council for England under section 68 of the 1992 Act.

(2)The grant must be made subject to a condition requiring the Council to impose a condition under section 24 in relation to any grants, loans or other payments made by the Council under section 65 of the 1992 Act to the governing body of a relevant institution.

(3)Subsection (4) applies to financial assistance given by the Secretary of State under section 14 of the Education Act 2002 to the governing body of a relevant institution.

(4)The terms on which the financial assistance is given must include a condition under section 24.

(5) “ Relevant institution ” means—

(a)in the case of a grant to which subsection (2) applies, an institution specified, or of a class specified, by the Secretary of State in a condition under subsection (2);

(b)in the case of financial assistance to which subsection (4) applies, an institution specified, or of a class specified, by order made by the Secretary of State for the purposes of that subsection.]

24Condition to be imposed by English funding bodiesE+W

(1)A condition under this section requires the governing body of the relevant institution—

(a)to secure that, in respect of any qualifying course, the qualifying fees in respect of any academic year which begins during the grant period at a time when an English approved plan is in force in relation to the institution do not exceed such limit, not exceeding the higher amount, as is provided by the plan for that course and that academic year,

(b)to secure that, in respect of any qualifying course, the qualifying fees in respect of any academic year which begins during the grant period at a time when no English approved plan is in force in relation to the institution do not exceed the basic amount, and

(c)to comply with the general provisions of any English approved plan that is in force in relation to the institution during any part of the grant period during which it is in force.

(2)For the purposes of subsection (1)—

(a)an academic year which begins at the same time as the grant period is to be taken to begin during the grant period, and

(b)an academic year which begins with the day on which an English approved plan comes into force is to be taken to begin at a time when the plan is in force.

(3)A condition under this section must provide—

(a)in the event of a failure by the governing body to comply with the requirement specified in subsection (1)(a)—

(i)where the qualifying fees do not exceed the higher amount, for the imposition by the funding body on the governing body of any financial requirements required by a direction under section 37(1)(a), and

(ii)where the qualifying fees exceed that amount, for the imposition by the funding body on the governing body of any financial requirements required by a direction under section 37(1)(a) and [F3(where the funding body is the Higher Education Funding Council for England) of other financial requirements determined by the Council in accordance with principles specified by the Secretary of State in the condition under section 23(2) ],

(b)in the event of a failure by the governing body to comply with the requirement specified in subsection (1)(b), for the imposition by the funding body on the governing body of

[F4(i)where the funding body is the Higher Education Funding Council for England, financial requirements determined by the Council in accordance with principles specified by the Secretary of State in the condition under section 23(2);

(ii)where the funding body is the Secretary of State, such financial requirements as the Secretary of State thinks appropriate], and

(c)in the event of a failure by the governing body to comply with the requirement specified in subsection (1)(c), for the imposition by the funding body on the governing body of any financial requirements required by a direction under section 37(1)(a).

(4)Any financial requirements imposed by virtue of subsection (3) must relate to one or more of the following—

(a)the repayment, with or without interest, of the whole or any part of any sums received by the governing body in respect of the grant, loan or other payment in question,

(b)the withdrawal or reduction of any amount that has been awarded but not yet paid in respect of the grant, loan or other payment in question, or

(c)the refusal to award (or to award to the extent expected) any other grant, loan or other payment under section 65 of the 1992 Act or (as the case may be) section [F5 14 of the Education Act 2002] in respect of the grant period or any subsequent period.

(5)Where—

(a)a condition is imposed under this section in connection with any grants, loans or other payments made to the governing body of a relevant institution, and

(b)those payments are to any extent made in respect of persons undertaking a course which is provided in whole or part by any other institution,

then, for the purposes of this section, fees payable by such persons to the other institution are to be regarded as fees payable by them to the relevant institution.

(6)In this section and section 25—

“academic year”, in relation to a course, means an academic year applicable to the course;

“the basic amount” means such amount as may be prescribed for the purposes of this section as the basic amount;

[F6 “ funding body ” means—

(a) in the case of a grant, loan or other payment made under section 65 of the 1992 Act, the Higher Education Funding Council for England;

(b)in the case of financial assistance given by the Secretary of State under section 14 of the Education Act 2002 to the governing body of a relevant institution, the Secretary of State;]

“the grant period” means the period in respect of which the grants, loans, or other payments [F6in question] are made;

“the higher amount” means such amount as may be prescribed for the purposes of this section as the higher amount;

“prescribed” means prescribed by regulations made by the Secretary of State;

“qualifying course” means a course of any description prescribed for the purposes of this section;

“qualifying fees”, in relation to a relevant institution, means the fees payable to the institution by a qualifying person in connection with his undertaking a qualifying course;

“qualifying person” means a person falling within any class of persons prescribed for the purposes of this section;

“relevant institution” has the same meaning as in section 23.

25Transitional cases in which condition must not allow fees to exceed basic amountE+W

(1)Section 24(1)(b) has effect in relation to the qualifying fees payable by a qualifying person in connection with his undertaking a qualifying course (“the relevant course”) in a case where subsection (2) or (3) applies, even if those fees are payable in respect of an academic year which begins at a time when an English approved plan is in force in relation to the institution.

(2)This subsection applies where—

(a)the qualifying person had on or before 1st August 2005 received an offer, whether conditional on obtaining specified qualifications or not, of a place on the relevant course or a similar course, and

(b)the first academic year of the relevant course begins before 1st September 2007.

(3)This subsection applies where—

(a)the qualifying person had received an offer of a place on a qualifying course (whether or not at the same institution as the relevant course) the first academic year of which begins before 1st September 2006,

(b)he was unable to take up the offer because a specified qualification or grade was not awarded to him,

(c)he appealed against the decision not to award him the qualification or grade,

(d)the appeal was allowed after the last date on which he could have taken up the offer,

(e)as a result he was offered a place on the relevant course, and

(f)the first academic year of the relevant course begins after 31st August 2006 but before 1st September 2007.

(4)For the purposes of subsection (2)(a) a course (“the original course”) is similar to the relevant course if —

(a)it appears to the governing body of the institution providing the relevant course that the subject-matter of the course is in whole or in part the same as the subject-matter of the original course, and

(b)except where the original course is no longer being provided, the relevant course is provided by the institution which was to have provided the original course.

26Regulations under section 24(6) relating to basic or higher amountE+W

(1)The Secretary of State may not make the first regulations under subsection (6) of section 24 prescribing the basic amount and the higher amount for the purposes of that section unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.

(2)Where regulations under subsection (6) of section 24 have been made prescribing the basic amount and the higher amount for the purposes of that section—

(a)no regulations may be made increasing the basic amount unless—

(i)the Secretary of State is satisfied that the increase is no greater than is required to maintain the value of the amount in real terms, or

(ii)a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament, and

(b)no regulations may be made increasing the higher amount unless—

(i)the Secretary of State is satisfied that the increase is no greater than is required to maintain the value of the amount in real terms, or

(ii)each House of Parliament has at any time after 1st January 2010 passed a resolution that, with effect from a date specified in the resolution, the higher amount should be increased to an amount specified in the resolution, and the increase is an increase to the specified amount with effect from the specified date.

(3)For the purposes of subsection (2)(a)(i) and (b)(i) the Secretary of State is to have regard to such index of prices as may be specified in, or determined in accordance with, regulations made by him under this subsection.

F7 27Power of National Assembly for Wales to impose conditions as to student fees, etc.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F728 [F8 Condition that may be required to be imposed by [F9HEFCW]] E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

29Sections 23 to [F1026]: supplementary provisionsE+W

(1)No condition under section 24 F11... applies in relation to any fees which are payable, in accordance with regulations under section 1 of the Education (Fees and Awards) Act 1983 (c. 40) (fees at universities and further education establishments) by students other than those falling within any class of persons prescribed by such regulations for the purposes of subsection (1) or (2) of that section (persons connected with the United Kingdom, etc.).

(2)The power to prescribe descriptions of course by virtue of the definition of “qualifying course” in section 24(6) F12... may not be exercised in such a way as to discriminate—

(a)in relation to courses of initial teacher training, between different courses on the basis of the subjects in which such training is given, and

(b)in relation to other courses, between different courses at the same or a comparable level on the basis of the areas of study or research to which they relate.

(3)Nothing in the 1992 Act [F13or the Education Act 2002], so far as it imposes any prohibition or other requirement in relation to the imposition of conditions by the Secretary of State[F14or the Higher Education Funding Council for England] applies to—

(a)any condition [F15or terms imposed by virtue of section 23 ] by the Secretary of State,

F16(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)any condition under section 24 [F17imposed by the Higher Education Funding Council for England] or [F18the Secretary of State].

Plans authorising fees of more than basic amountE+W

30Meaning of “the relevant authority”E+W

(1)In this Part “the relevant authority” means—

(a)in relation to England, the Director (as defined by section 31(1)), F19...

F19(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F20(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F20(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31Director of Fair Access to Higher EducationE+W

(1)There is to be a Director of Fair Access to Higher Education (in this Part referred to as “the Director”).

(2)The Director is to be appointed by the Secretary of State.

(3)The Director is to have such functions relating to plans as are conferred on him by or under this Part.

(4)In addition, the Director may, where he considers it appropriate to do so—

(a)identify good practice relating to the promotion of equality of opportunity in connection with access to higher education (whether full-time or part-time), and

(b)give advice about such practice to publicly-funded institutions.

(5)In subsection (4)(b), “publicly-funded institution” means any institution receiving grants, loans or other payments from the Higher Education Funding Council for England under section 65 of the 1992 Act or [F21financial assistance from the Secretary of State under section 14 of the Education Act 2002 ].

(6)Schedule 5 makes further provision about the Director.

32General duties of relevant authorityE+W

(1)The Director must perform his functions under this Part in such a way as to promote and safeguard fair access to higher education (including part-time higher education in so far as his functions are exercisable in relation to it).

(2)In the performance of his functions under this Part, the Director has a duty to protect academic freedom including, in particular, the freedom of institutions—

(a)to determine the contents of particular courses and the manner in which they are taught, supervised or assessed, and

(b)to determine the criteria for the admission of students and apply those criteria in particular cases.

(3)The Director must, in the performance of his functions under this Part, have regard to any guidance given to him by the Secretary of State.

F22(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33Contents of plansE+W

(1)A plan under this section relating to an institution must, in relation to each qualifying course in connection with which fees are to be payable to the institution by qualifying persons, specify or provide for the determination of a limit (not exceeding the higher amount) which those fees are not permitted to exceed.

(2)[F23A] plan under this section—

(a)must also include such provisions relating to the promotion of equality of opportunity as are required by regulations to be included in the plan, and

(b)may also include further provisions relating to the promotion of equality of opportunity.

F24(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In this Part any reference to the “general provisions” of a plan under this section is a reference to the provisions included in the plan by virtue of subsection (2) F25....

(5)The general provisions that may be required by regulations made by virtue of subsection (2) F26... include, in particular, provisions—

(a)requiring the governing body to take, or secure the taking of, measures to attract applications from prospective students who are members of groups which, at the time when the plan is approved, are under-represented in higher education,

(b)requiring the governing body to provide, or secure the provision of, financial assistance to students,

(c)requiring the governing body to make available to students and prospective students information about financial assistance available to students from any source,

(d)setting out objectives relating to the promotion of equality of opportunity F27...,

(e)relating to the monitoring by the governing body of—

(i)its compliance with the provisions of the plan, and

(ii)its progress in achieving any objectives set out in the plan by virtue of paragraph (d), and

(f)requiring the provision of information to the relevant authority.

(6)Regulations made under subsection (2) F28... may not require a plan—

(a)to include among the general provisions of the plan any provision referring to particular courses or to the manner in which courses are taught, supervised or assessed, or

(b)to include any provision relating to the criteria for the admission of students.

(7)In this section—

• “equality of opportunity” means equality of opportunity in connection with access to higher education;

• [F29“the higher amount” means the amount from time to time prescribed as the higher amount under section 24(6);]

• [F30“qualifying course” and “qualifying person” have the same meaning as in section 24;]

• [F31“regulations” means regulations made by the Secretary of State.]

34Approval of plansE+W

[F32(1)The governing body of any institution which—

(a)is or may become eligible to receive grants[F33from the Higher Education Funding Council for England] under section 65 of the 1992 Act F34..., or

(b)provides higher education and is or may become eligible to receive financial assistance from the Secretary of State under section 14 of the Education Act 2002,

may apply to the relevant authority for approval of a proposed plan relating to the institution.]

(2)The relevant authority may, if it thinks fit, approve the plan.

(3)The relevant authority may issue guidance to institutions falling within subsection (1) as to the matters to which the relevant authority will have regard in deciding whether to approve plans.

(4)The relevant authority’s functions under this section are to be exercised in accordance with regulations.

(5)Regulations may, in particular, specify matters to which the relevant authority is, or is not, to have regard in making any determination relating to approval.

(6)Regulations may require the institution to which any plan approved under this section relates to publish the plan in the prescribed manner.

(7)In this section “regulations” means regulations [F35made by the Secretary of State]

35Duration of plansE+W

(1)A plan must specify the period during which it is to be in force.

(2)The length of that period must not exceed such maximum as may be prescribed by regulations made—

(a)in relation to England, by the Secretary of State, F36...

F36(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Subsections (1) and (2) do not prevent the approval of a new plan to take effect on the expiry of a previous plan.

36Variation of plansE+W

(1)Regulations may make provision enabling an English approved plan F37... to be varied with the approval of the relevant authority.

(2)In this section “regulations” means regulations made—

(a)in relation to England, by the Secretary of State, F38...

F38(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

37Enforcement of plansF39...E+W

(1)If the Director is satisfied that the governing body of an institution which by virtue of a condition under section 24 is required to comply with the requirement specified in section 24(1)(a) or (c) has failed to comply with that requirement, the Director may do either or both of the following—

(a)direct the Higher Education Funding Council for England or the [F40Secretary of State ] (or both) to impose specified financial requirements on the governing body under section 24(3), or

(b)notify the governing body that on the expiry of the existing plan he will refuse to approve a new plan under section 34 during a specified period.

(2)The governing body of an institution is not to be regarded for the purposes of subsection (1) as having failed to comply with the requirement specified in section 24(1)(c) by reason of its failure to comply with any of the general provisions of an English approved plan, if the governing body shows that it has taken all reasonable steps to comply with that provision.

(3)The Secretary of State may by regulations make provision—

(a)as to the matters to which the Director must, or may not, have regard in exercising his powers under subsection (1),

(b)as to the procedure to be followed in connection with the giving of any direction or notification under subsection (1),

(c)as to the financial requirements that may be specified by virtue of subsection (1)(a), and

(d)as to the effect of a notification under subsection (1)(b).

F4138Enforcement of plans: WalesE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39Review of decisions made by relevant authorityE+W

Regulations made by virtue of section 34, 36[F42or 37(3)(b)] must include provision—

(a)requiring any decision of the relevant authority under section 34, 36, 37 or 38 affecting the governing body of an institution to have effect in the first instance as a provisional decision,

(b)enabling the governing body of the institution to apply for a review of the provisional decision to a person, or panel of persons, appointed in accordance with the regulations—

(i)in relation to England, by the Secretary of State, F43...

F43(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)enabling the Secretary of State F44... to pay remuneration and allowances to any person so appointed,

(d)prescribing the grounds on which an application for the review of a provisional decision may be made, and

(e)requiring the relevant authority to reconsider its provisional decision having regard to any recommendation of the person or panel.

SupplementaryE+W

40Provision of informationE+W

(1)If so requested by the Director, the Higher Education Funding Council for England F45... must provide the Director with any information which is in its possession and is reasonably required by the Director for the purposes of his functions.

[F46(1A)Subsection (1) does not apply to any information which the Higher Education Funding Council for England receives in its capacity as principal regulator (within the meaning of [F47section 25 of the Charities Act 2011) ].

(1B)Subsection (1A) does not prevent the Higher Education Funding Council for England disclosing information to the Director under [F48section 56 or 57 of the Charities Act 2011].]

[F49(1C)The Secretary of State may provide the Director with information for the purposes of the exercise by the Director of the Director's functions.]

(2)If so requested by the Higher Education Funding Council for England or the [F50Secretary of State ], the Director must provide the Council or [F51the Secretary of State] with any information which is in his possession and is reasonably required by

[F52(a)the Council for the purposes of its functions, or

(b)the Secretary of State for the purposes of the Secretary of State's functions relating to training for members of the school workforce (within the meaning of Part 3 of the 2005 Act).]

[F53(3)Subsection (2) does not apply to information which the Higher Education Funding Council for England requires for the purposes of its functions as principal regulator (within the meaning of [F54section 25 of the Charities Act 2011) ].]

F55 40A Provision of reports, information and advice by the relevant authority in relation to WalesE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41Interpretation of Part 3E+W

(1)In this Part—

• “course” does not include any F56... postgraduate course other than a course of initial teacher training;

• “the Director” has the meaning given by section 31(1);

• “English approved plan” has the meaning given by section 22(b);

• “fees”, in relation to undertaking a course, means fees in respect of, or otherwise in connection with, undertaking the course, including admission, registration, tuition and graduation fees but excluding—

  (a)

  fees payable to an institution for awarding or accrediting any qualification where the institution does not provide the whole or part of the course and is not a publicly-funded institution (as defined by subsection (2)),

  (b)

  fees payable for board or lodging,

  (c)

  fees payable for field trips (including any tuition element of such fees),

  (d)

  fees payable for attending any graduation or other ceremony, and

  (e)

  such other fees as may be prescribed—

  (i)

  in relation to England, by regulations made by the Secretary of State, F57...

  (ii)

  F57...

• [F58 “ governing body ” is to be read in accordance with subsection (1A); ]

• “general provisions”, in relation to a plan, has the meaning given by section 33(4);

  [F59 “ institution ” includes any training provider (whether or not the training provider would otherwise be regarded as an institution); ]

• “plan” has the meaning given by section 22(a);

• “the relevant authority” has the meaning given by section 30(1);

• F60...

[F61(1A)In this Act any reference to the governing body of an institution—

(a)in relation to any institution except a training provider falling within paragraph (b), has the meaning given by section 90(1) of the 1992 Act, but subject to any provision made by virtue of section 90(2) of that Act, and

(b)in the case of a training provider who but for subsection (1) would not be regarded as an institution, means the training provider.]

(2)In subsection (1) “publicly-funded institution” means—

(a)any university or other institution receiving grants, loans or other payments under section 65 of the 1992 Act, or under [F62section F63... 86 of the 2005 Act, [F64or financial assistance under section 14 of the Education Act 2002, ]] any institution maintained by a [F65local authority ] in the exercise of their further and higher education functions, any institution receiving a recurrent grant towards its costs under regulations made under section 485 of the Education Act 1996 (c. 56) or any institution receiving financial resources under [F66section F67... 100 of the Apprenticeships, Skills, Children and Learning Act 2009 or section] 34 of the Learning and Skills Act 2000 (c. 21);

(b)any institution within the higher education sector for the purposes of the Further and Higher Education (Scotland) Act 1992 (c. 37), any college of further education within the meaning of section 36(1) of that Act or any central institution within the meaning of section 135(1) of the Education (Scotland) Act 1980 (c. 44);

(c)the Queen’s University of Belfast, the University of Ulster, a college of education in Northern Ireland within the meaning of Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3)) or any institution providing in Northern Ireland further education as defined in Article 3 of the Further Education (Northern Ireland) Order 1997 (S.I. 1997/1772 (N.I. 15)).

[F68(3) In subsections (1) and (1A), “ training provider ” has the same meaning as in Part 3 of the 2005 Act. ]

[F69(4)In subsection (2)(a), “local authority” has the same meaning as in the Education Act 1996 (see section 579(1) of that Act).]