Guidance

ESFA investigation publishing policy (pre-12 December 2023)

Updated 29 November 2023

Applies to England

1. Introduction

This policy sets out the Education and Skills Funding Agency’s (ESFA) high-level approach to publishing investigation reports where ESFA has lead responsibility for the educational institutions that we fund and support.

It is in the public interest to be fair and transparent about issues relating to how public money is spent and to hold individuals and institutions to account where error and/or irregularity has been established. Publishing the outcomes of our investigations is an important part of this and our aim will be to publish where it is appropriate to do so.

2. Scope

ESFA has responsibility, on behalf of the Secretary of State for Education, for administering funding to deliver education and skills to learners. The education institutions we fund that are included in this policy are:

• academy trusts
• colleges
• training providers
• high needs institutions
• higher education institutions

The investigation reports that this policy relates to are:

• fraud and irregularity investigation reports into institutions for which ESFA has the lead funding responsibility, in particular reports prepared by ESFA
• ESFA investigations relating to finance and governance issues, commissioned by the agency following concerns arising from information held by or supplied to the department
• joint investigation reports where ESFA has lead responsibility

ESFA will make the decision on whether or not to publish a report on a case-by-case basis taking into account the facts of the particular case and, in particular, the factors set out in the section on key considerations ahead of publication set out below.

ESFA will generally not publish:

• reports carried out as part of routine business
• routine self-assessments undertaken by an institution

3. Key considerations ahead of publication

ESFA is committed to the transparency of its reporting of financial management and governance concerns. It is mindful of the fact that it is in the public interest to be transparent about issues associated with how public money is spent. Publication of investigation reports is usually the most effective way to do this. ESFA also made a commitment to the Public Accounts Committee to publish investigation reports into academy trusts within two months of completing its work. The decision to publish and the timing of publication will also be dependent on other factors, including but not limited to:

• when publication could prejudice other law enforcement or other regulatory investigations or proceedings
• where publication could prejudice an institution’s internal investigations or any future disciplinary action
• where publication is disproportionate to the gravity of the issues under consideration and the overall circumstances
• any other exceptional factors

ESFA will remove or redact personal data (as defined by the General Data Protection Regulation) before publishing where it is considered unfair to the individual concerned. Such data will not normally be disclosed without consent, but it may be disclosed without consent where the law allows, and it is necessary and/or there is a compelling reason to disclose.

We will redact information relating to commercial or confidentiality concerns.

4. Representations

ESFA will give the education institution the opportunity to read the draft report and to provide representations on factual accuracy and the draft findings in the report. Where appropriate individuals, who have left their role at the education institution, and whose actions are criticised in the report, will also be provided with the opportunity to make representations. ESFA will give a minimum notice of 10 working days for representations from education institutions and individuals. ESFA will consider whether the report needs to be amended in light of comments on factual accuracy and the findings.

5. Timing

ESFA will aim to publish as soon as possible after the investigation report is complete and ESFA has taken account of any representations made by the institution or individuals. ESFA will provide the education institution, and identifiable individuals who are criticised in the report and who are no longer working at the institution, 10 working days notice of the publication date. However, the publication date will be considered in light of the key considerations set out above.

6. Related information

Financial notices to improve (FNtIs) and notices to improve (NtIs) are not investigation reports. ESFA approach to publishing these is as follows:

For academy trusts, FNtIs, including those that may be issued in response to an ESFA investigation will be published as set out in the Academies Financial Handbook.

Trusts will be given a minimum of 10 days advance notice of the publication date. Trusts will only be asked to comment on factual inaccuracies.

For colleges, ESFA’s policy relating to NtIs issued to colleges is contained within the college oversight: support and intervention policy.

7. Where we publish reports, FNtIs and NtIs

We publish reports, FNtIs and NtIs on GOV.UK and there are collections showing all reports and notices for:

• Colleges and higher education institutions notices to improve
• Academies financial notices to improve
• Academies financial management and governance reviews
• Academies investigation reports