Office of Public Sector Information
(1) There is established a body to be known as the Scottish Further and Higher Education Funding Council.
(2) Schedule 1 makes provision about the constitution of the Council and about certain administrative and other matters with respect to the Council.
The following bodies are dissolved on such date as the Scottish Ministers may by order appoint—
(a) the Scottish Further Education Funding Council (established under section 7(1) of the 1992 Act); and
(b) the Scottish Higher Education Funding Council (established by section 37(1) of that Act).
It is the duty of the Council to exercise its functions for the purposes of securing the—
(a) coherent provision by the fundable bodies (as a whole) of a high quality of fundable further education and fundable higher education; and
(b) undertaking of research among the fundable bodies.
(1) It is the duty of the Scottish Ministers to provide support for—
(a) the provision of fundable further education and fundable higher education by the fundable bodies; and
(b) the undertaking of research among the fundable bodies.
(2) The Scottish Ministers are to do so—
(a) by—
(i) making grants to the Council under section 9 or 10 (or both); and
(ii) such other means as they consider appropriate; and
(b) to such extent as they may determine.
(1) In this Act (subject to subsection (2)), “fundable further education” means any programme of learning (which is not school education within the meaning of the 1980 Act) which—
(a) prepares a person for a vocational qualification;
(b) prepares a person for—
(i) a qualification awarded by the Scottish Qualifications Authority; or
(ii) a General Certificate of Education qualification of England and Wales or Northern Ireland;
(c) prepares a person for access to a course of fundable higher education;
(d) is designed to assist persons whose first language is not English to achieve any level of competence in English language;
(e) provides instruction for persons who are participating in a programme of learning referred to in this subsection and who have support needs; or
(f) prepares a person for participation in any programme of learning referred to in this subsection.
(2) In this Act, “fundable further education” also includes education of a type described in subsection (5)(b)(ii) to (iv) of section 1 (duty of education authorities to secure provision of education) of the 1980 Act.
(3) In this Act, “fundable higher education” means any course of education which—
(a) is a course at a higher level in preparation for a higher diploma or certificate;
(b) is a first degree course;
(c) is a course for the education and training of teachers;
(d) is a course of post-graduate studies (including a higher degree course);
(e) is a course at a higher level in preparation for a qualification from a professional body;
(f) is a course at a higher level not referred to in any of paragraphs (a) to (e);
(g) provides instruction for persons who are participating in a course of education referred to in this subsection and who have support needs; or
(h) is designed predominantly to prepare a person for participation in any course of education referred to in this subsection.
(4) For the purposes of subsection (3)(a), (e) and (f), a course is to be regarded as providing education at a higher level if its standard is higher than the standard of courses in preparation for examinations for—
(a) the Scottish Vocational Qualification Level 3;
(b) the Scottish Certificate of Education at Advanced Higher;
(c) the General Certificate of Education of England and Wales or Northern Ireland at advanced level; or
(d) the Scottish Qualifications Authority national certificate.
(5) For the purposes of subsection (3)(d), post-graduate studies includes a course following the award of a higher diploma or certificate.
(6) The Scottish Ministers may by order modify subsections (1) to (5).
(7) Before making an order under subsection (6), the Scottish Ministers must consult the Council.
(1) Schedule 2 specifies certain bodies for the purposes of this Act.
(2) In this Act, any reference to a fundable body means a body specified in that schedule.
(1) The Scottish Ministers may by order modify schedule 2 by—
(a) adding or removing any entry relating to a body; or
(b) varying any such entry,
but only if the Council has proposed, or has approved, the making of the modification.
(2) For the purposes of considering whether or not to propose or approve any modification under subsection (1), the Council must have regard to the desirability of ensuring that every entry in schedule 2 relates to a body for which there is, in the Council’s opinion, suitable—
(a) provision in relation to the governance and management of the body;
(b) provision for the appointment of an officer who is responsible for—
(i) signing the accounts of the expenditure and receipts of the body;
(ii) ensuring the propriety and regularity of the finances of the body; and
(iii) ensuring that the resources of the body are used economically, efficiently and effectively;
(c) procedures for—
(i) assessing; and
(ii) enhancing,
the quality of the activities funded by financial support given to the body by the Council;
(d) procedures for considering and resolving any grievances arising from the carrying on of the body’s activities;
(e) provision for the purposes of—
(i) planning for the carrying on of the body’s activities; and
(ii) development of the body’s activities;
(f) arrangements for making use of any credit and qualification framework promoted by the Council under section 14;
(g) arrangements for taking into account the educational and related needs (including support needs) of persons who are, and the likely educational and related needs (including support needs) of persons who might wish to become, students of the body;
(h) arrangements for taking into account, when determining what programmes of learning and courses of education to provide, the range of fundable further education and fundable higher education provided at the other fundable bodies; and
(i) provision, procedures or arrangements of such other kind as the Scottish Ministers may by regulations specify.
(3) When proposing or approving a modification under subsection (1) which adds to schedule 2 an entry relating to a body, the Council may make a recommendation to the Scottish Ministers as regards the application to the body of paragraph 92(1) of schedule 2 to the Scottish Public Services Ombudsman Act 2002 (asp 11).
(4) The Scottish Ministers may by order modify paragraphs (a) to (h) of subsection (2).
(5) The Scottish Ministers may issue guidance in relation to any of the matters referred to in paragraphs (a) to (i) of subsection (2).
(6) Subsection (2) does not apply where the modification in question is required by reason only of a change of name of, or closure of, a body.
(1) In this Act, a person has “support needs” if the person needs support for the purposes of overcoming a difficulty in learning, or a difficulty in participating in learning, which the person has.
(2) And—
(a) a person has a difficulty in learning if the person has significantly greater difficulty in learning than the majority of other persons within the same age group as the person; and
(b) a person has a difficulty in participating in learning if the person has greater difficulty in participating in learning than the majority of other persons within the same age group as the person.
(3) But a person is not be to be taken as having a difficulty in learning, or a difficulty in participating in learning, solely because the language (or form of the language) in which the person is, or will be, taught is different to a language (or form of a language) which has at any time been spoken in the person’s home.
(1) The Scottish Ministers may make grants to the Council.
(2) A grant made under subsection (1) is subject to such terms and conditions as the Scottish Ministers consider it appropriate to impose.
(3) Terms and conditions imposed under subsection (2) may, in particular—
(a) relate to—
(i) the repayment (in whole or in part) of a grant in such circumstances as they may specify;
(ii) the interest payable in respect of any period during which a sum due to the Scottish Ministers is outstanding;
(b) include the condition referred to in subsection (4) or (5) (or both).
(4) The condition is that, before the Council makes a payment to a fundable body under section 12(1) of such amount or description as the Scottish Ministers may in the condition specify, the fundable body is to comply with such matters concerning fundable bodies or any class of them as the Scottish Ministers may so specify.
(5) The condition is that—
(a) when making a payment to a fundable body under subsection (1) of section 12; and
(b) in such cases as the Scottish Ministers may in the condition specify,
the Council is (under subsection (2) of that section) to impose on the body a condition making the requirement referred to in subsection (6).
(6) The requirement is that the fundable body to whom the payment is being made is to secure that the fees paid to the fundable body—
(a) by such class of persons as the Scottish Ministers may by order specify; and
(b) in connection with their attending—
(i) such programmes of learning as the Scottish Ministers may by order specify; or
(ii) such courses of education as the Scottish Ministers may by order specify,
are equal to such fees as are, in relation to those persons attending those programmes and courses, payable under subsection (7).
(7) For the purposes of subsection (6), the Scottish Ministers may (in relation to those persons attending those programmes and courses) by order—
(a) specify, by reference to a particular academic year (“year A”), fees payable; and
(b) make provision authorising the Scottish Ministers to determine, in relation to subsequent academic years, fees payable that are—
(i) in each case, no higher than the fees specified by reference to year A; or
(ii) in any case, higher than the fees specified by reference to year A provided that any increase in fees is no greater than is required in order to maintain the value in real terms of the fees specified by reference to year A.
(8) A condition imposed on a fundable body by virtue of subsection (5) is to make provision that is to apply if the fundable body fails to comply with the requirement referred to in subsection (6).
(9) A condition imposed on a fundable body by virtue of subsection (5) does not apply in relation to any fees which are payable, in accordance with regulations under section 1 (fees at universities and further education establishments) of the Education (Fees and Awards) Act 1983 (c. 40), 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.
(10) The Scottish Ministers may not specify programmes or courses under subsection (6)(b) in such a way as to discriminate between different programmes or courses which are—
(a) for the training of persons preparing to be teachers; and
(b) open only to persons holding a degree,
on the basis of the subject in which such training is given.
(11) Terms and conditions imposed under subsection (2) may not, except in so far as provided for in subsection (4), relate to the provision of financial support by the Council in respect of activities carried on by any particular fundable body or bodies.
(12) Terms and conditions imposed under subsection (2) may not—
(a) except in so far as provided for in subsections (5) to (7), be framed by reference to particular programmes of learning, courses of education or research (including the contents of such programmes or courses or the manner in which they are taught, supervised or assessed); or
(b) be framed by reference to the criteria for—
(i) the selection or appointment of academic staff; or
(ii) the admission of students.
(13) Before laying a draft of an order under subsection (6) or (7) before the Parliament in pursuance of section 34(4), the Scottish Ministers must—
(a) lay before the Parliament—
(i) a copy of the proposed draft order; and
(ii) a statement of their reasons for proposing to make the order;
(b) publicise the proposed draft order in such manner as they consider appropriate;
(c) invite written representations on the proposed draft order, in particular from—
(i) the Council;
(ii) at least one body of persons which appears to them to be representative of students of the fundable bodies; and
(iii) such governing bodies of fundable bodies as they consider appropriate; and
(d) have regard to any written representations about the proposed draft order that are made to them within 60 days of the date on which the invitation under paragraph (c) was issued.
(14) When laying a draft of an order under subsection (6) or (7) before the Parliament in pursuance of section 34(4), the Scottish Ministers must also lay a statement summarising—
(a) all representations about the proposed draft order to which they have had regard under subsection (13)(d);
(b) the changes (if any) made to the proposed draft order in light of the representations; and
(c) any reasons for making, or not making, changes in light of the representations.
(15) The body known as the National Union of Students Scotland is to be invited under subsection (13)(c)(ii) to make representations.
(16) The Scottish Ministers may by order modify subsection (15).
(17) For the purposes of subsection (7)(b)(ii), the Scottish Ministers may have regard to any retail price index.
(1) In addition to any grants made under section 9, the Scottish Ministers may make further grants to the Council.
(2) In particular, a grant under subsection (1) may be made for the purposes of supporting—
(a) restructuring among the fundable bodies (including the merger or demerger of such bodies);
(b) innovation in the provision of fundable further education and fundable higher education; or
(c) collaboration between the fundable bodies.
(3) In making a grant under subsection (1), the Scottish Ministers must specify the purposes for which the grant is made.
(4) A grant made under subsection (1) is subject to such terms and conditions as the Scottish Ministers consider it appropriate to impose.
(5) Terms and conditions imposed under subsection (4) may, in particular—
(a) relate to—
(i) the repayment (in whole or in part) of a grant in such circumstances as they may specify;
(ii) the interest payable in respect of any period during which a sum due to the Scottish Ministers is outstanding;
(b) include the condition referred to in subsection (4) of section 9.
(6) But, except in the case of a grant made for the purposes of supporting any of the matters referred to in paragraphs (a) to (c) of subsection (2)—
(a) the purposes specified under subsection (3);
(b) terms and conditions imposed under subsection (4),
may not be framed by reference to a particular fundable body.
(1) The Council is, for the purposes of—
(a) providing support (whether financial or otherwise) for the activities specified in subsection (3); and
(b) exercising its other functions,
responsible for administering the funds mentioned in subsection (2).
(2) The funds are—
(a) all grants made to it under sections 9 and 10; and
(b) any other funds made available to it for those purposes.
(3) The activities are—
(a) the provision of fundable further education and fundable higher education by the fundable bodies;
(b) the undertaking of research among the fundable bodies;
(c) the—
(i) provision of such facilities; and
(ii) the carrying on of such other activities,
by the fundable bodies or any other person as are necessary or desirable for the purposes of or in connection with an activity specified in paragraph (a) or (b);
(d) the provision of services by the fundable bodies or any other person for the purposes of or in connection with an activity specified in paragraph (a) or (b).
(1) The Council may make grants, loans or other payments—
(a) to the governing body of any fundable body in respect of expenditure incurred or to be incurred by the body for the purposes of any of the activities specified in subsection (3)(a) and (b) of section 11;
(b) to—
(i) the governing body of any fundable body; or
(ii) any other person,
in respect of expenditure incurred or to be incurred by the body or person for the purposes of any of the activities specified in subsection (3)(c) and (d) of that section.
(2) A payment made under subsection (1) may (in addition to any condition which is imposed by virtue of subsection (5) of section 9) be subject to such terms and conditions as the Council considers it appropriate to impose.
(3) Terms and conditions imposed under subsection (2) may, in particular, relate to—
(a) the repayment (in whole or in part) of a payment in such circumstances as they may specify;
(b) the interest payable in respect of any period during which a sum due to the Council is outstanding.
(4) But terms and conditions imposed under subsection (2) may not relate to the application by the body of any sums which were not derived from the Scottish Ministers.
(5) Before imposing terms and conditions under subsection (2), the Council must—
(a) except where it considers that it is not expedient to do so, consult the governing body of the fundable body to which the payment is to be made; and
(b) if it considers it appropriate to do so, consult such persons as appear to it to represent the interests of fundable bodies or any class of them.
(6) In making payments under subsection (1), the Council is to have regard to the desirability of—
(a) encouraging fundable bodies to maintain or develop funding from other sources;
(b) preserving any distinctive characteristics of particular fundable bodies.
(1) The Council is to secure that provision is made for—
(a) assessing; and
(b) enhancing,
the quality of fundable further education and fundable higher education provided by fundable bodies.
(2) In exercising the function under subsection (1), the Council must, if it considers it appropriate to do so, consult such persons as appear to it to represent the interests of fundable bodies or any class of them.
(1) The Council is to promote the use by the fundable bodies of such credit and qualification framework as it may adopt.
(2) The Council must—
(a) have regard to any representations about any particular credit and qualification framework, and about credit and qualification frameworks in general, made to it by—
(i) the Scottish Ministers; or
(ii) the governing body of any fundable body; and
(b) so far as the Council considers appropriate, have regard to any representations about those matters made to it by any other person.
(3) For the purposes of subsections (1) and (2), a “credit and qualification framework” is a system of evaluation relating to fundable further education and fundable higher education (as a whole) through which programmes of learning and courses of education may be compared and understood in relation to each other.
(1) The Council may secure the promotion or carrying out of studies designed to improve economy, efficiency and effectiveness in the management or operations of any fundable body.
(2) The governing body of a fundable body must—
(a) provide any person promoting or carrying out studies by virtue of subsection (1) with such information; and
(b) make available to the person for inspection such accounts and other documents,
as the person may reasonably require for the purposes of the studies.
Where the Council is concerned about any matters relating to the financial support which a fundable body receives (or might receive) from the Council, a member of the Council is entitled to—
(a) attend any meeting of the governing body of the fundable body; and
(b) address the meeting on those matters.
(1) The Council must provide the Scottish Ministers with such information, advice and assistance relating to the—
(a) provision and funding of fundable further education and fundable higher education; and
(b) undertaking of research at bodies which provide fundable further education or fundable higher education,
as the Scottish Ministers may reasonably require.
(2) The Council may provide the Scottish Ministers with other information and advice relating to those matters whenever it considers it appropriate to do so.
(3) Any information, advice or assistance under subsections (1) and (2) is to be provided in such manner as the Scottish Ministers may determine.
(1) The functions of the Scottish Ministers as respects the property to which this subsection applies are exercisable by the Council on their behalf to such extent and in such manner as the Scottish Ministers may require.
(2) Subsection (1) applies to any land or other property—
(a) which is or was used or held for the purposes of a fundable body; and
(b) in respect of which the Scottish Ministers—
(i) are entitled to any right or interest; or
(ii) would be so entitled on the occurrence of any event.
(1) After section 73 (power of Scottish Ministers to make grants to education authorities and others) of the 1980 Act there is inserted—
(1) The Scottish Ministers may direct—
(a) the Scottish Further and Higher Education Funding Council; or
(b) any other body or person,
to administer any sums applied by the Scottish Ministers for a purpose referred to in paragraph (a), (c) or (f) of section 73 of this Act.
(2) A body or person to whom a direction is given under subsection (1) above shall administer those sums—
(a) in such manner and to such extent; and
(b) subject to such conditions,
as the Scottish Ministers may in the direction specify.
(3) The reference in subsection (1) above to a purpose referred to in paragraph (a), (c) or (f) of section 73 of this Act is a reference to that purpose only in so far as relating to support for persons—
(a) undertaking; or
(b) who have undertaken,
courses of education provided by fundable bodies.
(4) In subsection (3) above, “fundable bodies” shall be construed in accordance with the Further and Higher Education (Scotland) Act 2005 (asp 6).”.
(2) In section 73A (transfer or delegation of functions relating to student support) of that Act—
(a) in subsection (3), for the words “73(f)” there is substituted “73(a), (c) or (f)”;
(b) in subsection (6)(a)(i)—
(i) after the word “making” there is inserted “payments,”; and
(ii) for the words “73(f)” there is substituted “73(a), (c) or (f)”; and
(c) after subsection (9) there is added—
“(10) The references in subsections (3) and (6)(a)(i) above to regulations under section 73(a) or (c) of this Act are references to those regulations only in so far as relating to support for persons—
(a) undertaking; or
(b) who have undertaken,
courses of education provided by fundable bodies.
(11) In subsection (10) above, “fundable bodies” shall be construed in accordance with the Further and Higher Education (Scotland) Act 2005 (asp 6).”.
(1) In exercising its functions, the Council is to have regard to—
(a) skills needs in Scotland;
(b) issues affecting the economy of Scotland; and
(c) social and cultural issues in Scotland.
(2) In exercising its functions, the Council is to—
(a) have regard to the desirability of the achieving of sustainable development; and
(b) in particular, encourage the fundable bodies to contribute (so far as reasonably practicable for them to do so) to the achievement of sustainable development.
Amended by correction slip on 01 June 2005
Further and Higher Education (Scotland) Act 2005