Notice

Notice of Intention to Accept a Settlement Proposal - British Safety Council (BSC)

Published 27 February 2025

Applies to England

Executive Summary

1. In or around May 2018, British Safety Council (“BSC”) and a number of other awarding organisations, were made aware by the Construction Industry Training Board (“CITB”) and the Metropolitan Police about alleged Centre-level certificate fraud in relation to the Level 1 Health and Safety in a Construction Environment qualification.

2. Ofqual completed an investigation into BSC’s compliance with its Conditions of Recognition in relation to the delivery and award of BSC’s Level 1 Health and Safety in a Construction Environment qualification in 2018, 2019 and 2020 (‘the First Investigation’).

3. The First Investigation was settled by way of an undertaking dated 4 October 2019 (“the Undertaking”), after BSC admitted breaches of General Conditions, A5.2(a), A5.2(b), A5.2(e), A6.2(a), A7.1(a), A8.2(a), C1.1(b), C2.3(e), H5.1, H6.1(d), I4.1(d), I4.2(b) and I4.2(c); and accepted that it was likely to fail to comply with Conditions A6.1 and A8.1. Those breaches can be broadly categorised as a failure to implement sufficiently robust processes to detect and/or investigate suspected malpractice and/or mitigate the adverse effects of malpractice in relation to the BSC Level 1 Health and Safety in a Construction Environment qualification.

4. The Undertaking required BSC to remedy the issues and commission an independent audit to evidence that those issues had been remedied. BSC complied with the terms of the undertaking, submitting a positive audit report in March 2020 which effectively brought the First Investigation to a conclusion.

5. Between October 2019 and March 2020 BSC submitted a number of Event Notifications in relation to the BSC Level 1 Health and Safety in a Construction Environment qualification (“the Additional Event Notifications”). BSC accepts that at least 8 of the Additional Event Notifications related to matters that were similar in nature to the matters identified during the First Investigation. BSC accepts that a number of those Event Notifications contained breaches of the General Conditions that were similar in nature to those described at paragraph 3 above. BSC accepts that each was ongoing prior to the Undertaking being signed and that each was materially relevant to the outcome of the First Investigation and ought therefore to have been disclosed to Ofqual prior to BSC signing the Undertaking.

6. Ofqual commenced a second investigation (“the Second Investigation”) to review the content of each of the Additional Event Notifications and the reasons why BSC had failed to disclose the Additional Event Notifications prior to signing the Undertaking. In particular, Ofqual noted that the failure to disclose was not intentional and was a consequence of the unexpected and unfortunate departure of a senior member of staff for health reasons. BSC accepts that it ought to have had appropriate systems in place to ensure the accuracy of its statements to Ofqual prior to signing the Undertaking.

7. At the conclusion of the Second Investigation, Ofqual alleged, and BSC admitted, that it failed to comply with Conditions A5.1, A8.1, B3.1, C1.1, C1.2, H6 and I4.2 of the General Conditions of Recognition. Those breaches are largely a continuation of the breaches outlined at paragraph 3, coupled with an additional failure to disclose all relevant information to Ofqual prior to agreeing the Undertaking.

8. BSC has since voluntarily ceased delivery of all Ofqual regulated qualifications and applied to Ofqual to surrender its recognition (“the Surrender Application”). That application is stayed pending the resolution of any enforcement action arising from these matters. On that basis Ofqual considers that the risk of repetition is low.

9. Additionally, the matters detailed in the Additional Event Notifications pre-date BSC’s compliance with the Undertaking, suggesting that BSC had taken steps to address the root causes of the original non-compliance. On that basis Ofqual intends to impose a nominal fine of £5,000 only.

Overview

1. 1. The Office of Qualifications and Examinations Regulation (“Ofqual”) gives notice that it intends to accept a Settlement Proposal from British Safety Council (“BSC”) in terms that BSC:
   1. a) admits the breaches set out at paragraph 2 of this Notice
   2. b) agrees to pay the Monetary Penalty of £5,000
   3. c) BSC undertakes not to withdraw the Surrender Application prior to Ofqual processing that revocation at the conclusion of this enforcement action
2. 2.  This Notice relates to breaches of BSC’s Conditions of Recognition which occurred in 2018, 2019 and 2020. BSC has since withdrawn all Ofqual-regulated qualifications. Ofqual considers, and BSC accepts, that BSC has breached the General Conditions of Recognition (“GCR”) in the following ways in relation to its delivery of the BSC Level 1 Health and Safety in a Construction Environment qualification:

Allegation 1

On 8 occasions, BSC failed to promptly notify Ofqual when it had cause to believe that any event had occurred or was likely to occur which could have an Adverse Effect, contrary to Condition B3.1.

The 8 incidents referred to at Allegation 1 are hereafter referred to as “the Additional Event Notifications”.

Allegation 2

BSC failed to disclose one or more of the Additional Event Notifications prior to signing an undertaking dated 4 October 2019 (“the Undertaking”) in circumstances where:

1. a) The Additional Event Notifications were materially relevant to the outcome of the Ofqual investigation to which the Undertaking related, and
2. b) BSC knew or ought to have known that the Additional Event Notifications were materially relevant to the outcome the Ofqual investigation to which the Undertaking related

Allegation 3

BSC failed to take all reasonable steps to establish whether malpractice had occurred in relation to one or more of the Additional Event Notifications, contrary to Condition A8.1.

Allegation 4

BSC failed to ensure that it had the capacity to undertake the development, delivery and award of qualifications which it made available in a way that complied with the GCR, and/or failed to take all steps to ensure that it undertook the development, delivery and award of those qualifications efficiently, contrary to Condition A5.1.

Allegation 5

BSC failed to ensure that the arrangements it established with one or more of those Centres referred to in the Additional Event Notifications enabled it to deliver and award qualifications in a way that complies with its Conditions of Recognition, contrary to Conditions C1.1 and/or C2.1.

Allegation 6

BSC failed to issue results and/or certificates in relation to the BSC Level 1 Award in Health and Safety in a Construction Environment qualification on one or more of the occasions giving rise to the Additional Event Notifications, contrary to Conditions H6 and/or I4.2.

1. 3. Interested parties now have the opportunity to make representations in respect of Ofqual’s proposal, by agreement, to impose a monetary penalty on BSC in the sum of £5,000.

Summary of facts

1. 4. The above allegations arise from a series of events giving rise to 2 separate Ofqual investigations.

The First Investigation

1. 5. In May 2018, BSC and a number of other awarding organisations were made aware of investigations by the Construction Industry Training Board (CITB) and the Metropolitan Police into alleged Centre-level certificate fraud. The scope of these investigations included the BSC Level 1 award in Health and Safety in a Construction Environment.

2. 6. As a result of investigations by the Metropolitan Police, a large number of certificates for regulated qualifications, purportedly issued by recognised awarding organisations, were found to be in the possession of an unauthorised party. Of those certificates, 333 relate to the BSC Level 1 award in Health and Safety in a Construction Environment. Other bodies use the achievement of that qualification as one measure (amongst others) of competence that enable the holder to access certain work environments.

3. 7. In July 2018, BSC informed Ofqual that it had scrutinised the 333 paper certificates provided to it by the Metropolitan Police as part of its investigations, and that it had confirmed 299 of these were genuinely issued by BSC, and 34 certificates were counterfeit.

4. 8. Ofqual conducted an Investigation (“the First Investigation”) to understand the controls around the award and issuing of certificates for this qualification.  Following that investigation, BSC accepted that it had been in breach of the Conditions of Recognition in the following ways:
   1. a) BSC had not retained a workforce of appropriate size and competence (A5.2(a)), or maintained appropriate systems of planning and internal control (A5.2(e)) in order to ensure that it could effectively monitor its Centres (C1.1(b)) and properly investigate and manage the effect of malpractice and maladministration (A8); and
   2. b) BSC had not taken all reasonable steps to prevent and mitigate Adverse Effects occurring as a result of Centre malpractice and maladministration (A8.2(b))
   3. c) Without effective monitoring of Centres and the proper investigation and management of the effect of malpractice and maladministration, BSC had not been in a position to:
      1. i. ensure that the result of each assessment taken by a Learner in relation to its qualifications, reflected the level of attainment demonstrated by that Learner in the assessment (in accordance with Condition H5.1);
      2. ii. issue results which accurately and completely reflected the marking of assessments (including the outcome of any Moderation and other quality assurance process) (in accordance with Condition H6.1(d));
      3. iii. issue only certificates which were accurate and complete and which reflected accurate and complete results (in accordance with Condition I4.1(d));
      4. iv. take all reasonable steps to ensure that it did not issue any certificate to a Learner who did not have a valid entitlement to that certificate (in accordance with Condition I4.2(b)); and
      5. v. take all reasonable steps to ensure that it revoked any certificate if the result on the certificate was false because of malpractice or maladministration (in accordance with Condition I4.2(c)).
5. 9. The key features of the conduct giving rise to those admissions were as follows:
   1. a) During the relevant period, BSC had conducted around half of the Centre monitoring visits that it should have conducted, according to its own Centre monitoring strategy,
   2. b) BSC was not conducting its Centre monitoring visits to the frequency that it considers reasonable, in accordance with its own risk ratings,
   3. c) BSC continued to use announced centre visits and offsite monitoring when unannounced visits may have been more appropriate in allowing it to identify malpractice,
   4. d) Centres freely cancelled planned monitoring visits and that BSC was not enforcing its arrangements with them,
   5. e) Retaining Appropriate information for verification,
   6. f) BSC had destroyed the paper-based assessments relating to the 299 certificates 6 months following certification. The data that was retained on the computer system was insufficient to enable BSC to conduct a proper analysis of the circumstances in which it issued those certificates,
   7. g) BSC did not record the checks that it undertook at the time of certification to assure itself that it was only issuing certificates to Learners with a valid entitlement,
   8. h) The information that BSC collected and/or required from Centres was not sufficient to allow BSC to adequately analyse the circumstances in which BSC had issued those certificates to be assured that it was right to do so,
   9. i) BSC was not sampling a sufficient number of papers when checking results.

6. 10. The above indicated a failure to maintain a sufficiently effective system and created a significant risk that BSC would be unable to identify and prevent malpractice in its centres. BSC engaged with the First Investigation and offered assurances that it had taken steps to remedy the issues identified.

7. 11. BSC and Ofqual signed an Undertaking on 4 October 2019 which settled the First Investigation. BSC agreed as part of the Undertaking to engage external consultants to review BSC’s compliance with the Conditions, provide updates to Ofqual and notify Ofqual of malpractice incidents without undue delay. BSC complied with the terms of the undertaking and in March 2020 BSC submitted a positive audit report, which effectively brought the First Investigation to a conclusion.

8. 12. On 31 January 2020, a meeting took place between BSC and Ofqual. During the meeting BSC confirmed its intention to withdraw 12 qualifications including the L1 Health and Safety in a Construction Environment qualification. BSC explained at this meeting and in subsequent correspondence that this was because its Board had taken the decision that BSC could no longer be exposed to the level of risk that the qualification, and the surrounding alleged criminal activity involving the CSCS scheme, posed to BSC. In addition, BSC was operating at a deficit on the Level 1 Health and Safety in a Construction Environment qualification due to costs of compliance with the GCR and the level of checks BSC had put in place further to the first investigation made BSC’s qualification uncompetitive in the market.

9. 13. BSC has since withdrawn all Ofqual-regulated qualifications. The final certification end date for its final qualification (Level 6 Diploma in Occupational Safety and Health), was 17 February 2023. BSC indicated in November 2022 its intention to surrender its recognition after this date, noting that it would have no learners, no approved centres and no income from regulated qualifications. Ofqual explained that BSC is unable to formally surrender its recognition prior to the resolution of this enforcement action.

10. 14. Between October 2019 and March 2020, BSC submitted several Event Notifications in relation to the BSC Level 1 Health and Safety in a Construction Environment qualification (“the Additional Event Notifications”). These are matters that were ongoing prior to the Undertaking being signed, but which, because of exceptional and unfortunate circumstances relating to the absence or departure of senior personnel at the time (set out at paragraphs 21 to 23 below), had not been notified to Ofqual through the event notification process or disclosed as part of discussions prior to signing to the Undertaking.

The Second Investigation

15. Following submission of the Additional Event Notifications, Ofqual commenced the Second Investigation, which included a review of each of those notifications.  The purpose of the Second Investigation was to understand why the Additional Event Notifications had not been submitted prior to signing the Undertaking and whether the issues purportedly settled at the conclusion of the First Investigation were in fact broader than first known.  The failures identified during the Second Investigation are considered in turn below.

Failure to submit event notifications promptly (allegation 1)

1. 16. Condition B3.1 required BSC to promptly notify Ofqual when it has cause to believe that any event has occurred or was likely to occur which could have an Adverse Effect.

2. 17. Condition B3.2 states that for the purposes of this condition, such events may in particular include those where – (g) the awarding organisation believes that there has been an incident of malpractice or maladministration, which could either invalidate the award of a qualification which it makes available or could affect another awarding organisation.

3. 18. The dates that BSC became aware of a notifiable event and the date that BSC submitted an event notification to Ofqual are set out below:

   1. a) Event Notification 1
      
      Date BSC became aware of notifiable event: 5 August 2019
      Date BSC submitted an Event Notification: 22 October 2019

   2. b) Event Notification 2
      
      Date BSC became aware of notifiable event: 24 May 2019
      Date BSC submitted an Event Notification: 15 January 2020

   3. c) Event Notification 3
      
      Date BSC became aware of notifiable event: 14 May 2019
      Date BSC submitted an event notification: 10 March 2020

   4. d) Event Notification 4
      
      Date BSC became aware of notifiable event: 24 May 2019 to August 2019
      Date BSC submitted an event notification: 10 March 2020  

   5. e) Event Notification 5
      
      Date BSC became aware of notifiable event: August 2019
      Date BSC submitted an event notification: 10 March 2020

   6. f) Event Notification 6
      
      Date BSC became aware of notifiable event: 7 June 2019
      Date BSC submitted an event notification: 10 March 2020

   7. g) Event Notification 7
      
      Date BSC became aware of notifiable event: 23 April 2019
      Date BSC submitted an event notification: 10 March 2020

   8. h) Event Notification 8
      
      Date BSC became aware of notifiable event: June 2019
      Date BSC submitted an event notification: 9 March 2020

4. 19. On the basis of the above, Ofqual alleges and BSC admits that in all of the instances referred to at paragraph 17 above, BSC failed to submit the Additional Event Notifications promptly, contrary to Condition B3.1 and/or B3.2 of the General Conditions of Recognition (Allegation 1).

Failure to disclose the Additional Event Notifications to Ofqual prior to agreeing the Undertaking (allegation 2)

1. 20. The Undertaking was signed on 4 October 2019. The circumstances giving rise to the Additional Event Notifications were known to BSC at the point of signing the Undertaking.

2. 21. BSC acknowledges that the content of the Additional Event Notifications are similar to those being considered pursuant to the First Investigation, in that they relate to the steps that BSC had taken to investigate alleged malpractice at BSC Centres in relation to BSC Level 1 Health and Safety in Construction Environment qualifications.

3. 22. By way of a B4 notice dated 19 October 2022, Ofqual requested further information from BSC to understand whether the acting Responsible Officer was aware of the circumstances giving rise to the Additional Event Notifications at the time of signing the Undertaking. BSC responded on 8 November 2022 providing the following background information in a B4 Notice response and an Appendix of supporting materials:
   1. a) Employee 1 was also the Responsible Officer for BSC up until September 2019.
   2. b) Employee 1 had played an active role in investigating the matters giving rise to Event Notification 1.
   3. c) Employee 1 suffered a serious and sudden illness in September 2019. He was hospitalised and convalescing in hospital from 3 September 2019 until 13 September 2019.
   4. d) On 9 September 2019 Ofqual wrote to the now absent Employee 1 with a Notice to Impose Direction and Statement of Reasons with a deadline for response of 17 September 2019.
   5. e) On 10 September 2019 Employee 2 notified Ofqual of Employee 1’s hospitalisation and requested an extension of 5 working days to 24 September 2019 to be able to investigate, consult and respond appropriately to the Ofqual Statement of Reasons (leading to the Undertaking) because of the “need to ensure that what we submit back to you is accurate”.
   6. f) On 10 September Ofqual confirmed that BSC was required to ensure that at all times there is an individual appointed to act as its Responsible Officer. Ofqual agreed an extension until 4pm on Friday 20 September for BSC to make representations about the proposed direction.
   7. g) On 10 September Employee 2 replied to Ofqual to indicate that cover was in place and work had begun, but that they wanted Employee 1 “to be involved in putting the response together and ensuring his input is represented.”
   8. h) On 10 September Employee 2 emailed Employee 3 a copy of the Notice of Intention to Impose Direction and Statement of Reasons from Ofqual for comment. BSC noted in its response to the B4 and the Appendix that no response was received and Employee 3 left the organisation on 11 September 2019.
   9. i) On 12 September 2019 Employee 2 sent the Notice of Intention to Impose Direction and Statement of Reasons from Ofqual to Employee 1 and indicated she would call him to capture his thoughts and indicated nothing had been received from the recently departed Employee 3.
   10. j) On and around 13 September Employee 2 communicated with Employee 1 regarding the Statement of Reasons which included the draft Direction/Undertaking with the specific provision about notification of suspicion.
   11. k) Employee 1 returned to work for 2 days on Monday 16 and Tuesday 17 September 2019 and was then hospitalised again and absent until 30 September 2019.
   12. l) During this second period of absence when the serious and prolonged nature of illness became apparent Employee 2 stepped in to temporarily cover the Responsible Officer role at short notice. This was notified to Ofqual on 22 September 2019. This temporary cover was approved by BSC Qualifications and Awards Sub-Committee on 1 October 2019, noting that she was to remain as the Responsible Officer “until she applies for and receives the express agreement of the Committee to assign this position back to Employee 1”.
   13. m) On 30 September 2019 Employee 1 returned to work. He was “brought up to speed” on the Undertaking and “engaged in activity, correspondence and discussion… concerning the Notice and Undertaking”. BSC noted in its B4 response that Employee 1 was consulted on drafts including on the eve of submission but that at no time did he “mention the existence of investigations that were later to be the subject of the Additional Notifications”. BSC noted that its Chief Executive had confirmed they were present for one or more of the conversations during which the terms of the undertaking were discussed and that at no time did Employee 1 mention the existence of those investigations.
   14. n) At the point of signing the Undertaking on 4 October 2019, Employee 2 was BSC’s Responsible Officer.
   15. o) Employee 2 had no prior involvement in the investigation of events giving rise to the Additional Event Notifications.

4. 23. BSC asserts that Employee 2, who at the time was the acting Responsible Officer, did take steps as set out above to ensure all relevant information was provided to Ofqual ahead of signing the undertaking, however their internal enquiries of Employee 1 and Employee 3 failed to uncover the existence of the Additional Notifications.

5. 24. While Employee 2 was not personally aware of the circumstances giving rise to the Additional Event Notifications, in the exceptional and unfortunate circumstances relating to the absence or departure of senior personnel at the time, BSC failed to disclose the fact that the malpractice was more widespread than was known to Ofqual at the time of resolving the First Investigation.

25. The Taking Regulatory Action document explains:

“…When taking decisions, we consider all the circumstances of the case in light of available evidence.

In relation to the breach of a condition by an awarding organisation, we take into account all relevant facts, including:

• The organisation’s compliance history (such as whether the non-compliance is a one-off or part of a pattern)”

26. The document goes on to explain the factors to be considered when deciding whether to impose a fine, including:

• whether the breach was prolonged or repeated

• whether the awarding organisation has breached regulatory requirements in the past, and, if so, how frequently…

• the behaviour of the awarding organisation in relation to the breach, including… whether the breach gives rise to concerns about the organisations management or control systems”

27. BSC accepts that potential repetition of the conduct was likely to be material to the question of sanction at the conclusion of the First Investigation. Likewise, the fact that those issues remained unresolved and were indicative of poor control systems within BSC, were factors that Ofqual would have taken into account when deciding the appropriate resolution to the First Investigation.

28. Ofqual therefore alleges and BSC admits that BSC failed to disclose one or more of the Additional Event Notifications prior to signing the Undertaking. That failure was serious because the circumstances giving rise to the Additional Event Notifications were materially relevant to the underlying facts of the First Investigation. By failing to make the Additional Event Notifications prior to resolving the First Investigation, BSC prevented Ofqual from taking those circumstances into account when deciding how to conclude the First Investigation (Allegation 2).

29. The above occurred in circumstances where BSC knew or ought to have known that the Additional Event Notifications were materially relevant to the outcome of the First Investigation. Ofqual will therefore say that BSC knew or ought to have known that Ofqual would infer from the absence of any event notifications that BSC was unaware of any similar conduct at BSC Centres (Allegation 2).

Failure to properly investigate suspicions of malpractice (allegations 3 to 6)

1. 30. When dealing with suspected malpractice, Conditions A8.2(a), A8.3(b), A5.1(a) require AOs to:

   1. a) So far as possible establish whether or not the malpractice it suspected or which was alleged had occurred (A8.2(a));
   2. b) Ensure that its investigation was carried out rigorously, effectively and by persons of appropriate competence who have no personal interest in the outcome (A8.3(b)).
   3. c) Ensure that it has the capacity to undertake the development, delivery and award of qualifications which it makes available, or proposes to make available, in a way that complies with its Conditions of Recognition (A5.1(a)).
   4. d) For the purposes of Condition A5.1, this meant BSC having in place “arrangements for the retention of data which will ensure that adequate information is available to it all times (A5.2(b))” and “appropriate systems of planning and internal control (A5.2(e))”.

2. 31. Recognising that effective relationships with Centres are vital in allowing an awarding organisation to investigate malpractice, Condition C1 required BSC to:

“C1.1 Where an awarding organisation arranges for a third party to undertake, on its behalf, any part of the development, delivery or award of qualifications which the awarding organisation makes available, or proposes to make available, the awarding organisation must –

(a) ensure that the arrangements which it establishes with that third party enable the awarding organisation to develop, deliver and award qualifications in a way that complies with its Conditions of Recognition, and

(b) monitor and, where appropriate, enforce such arrangements so as to ensure that it is able to develop, deliver and award qualifications in a way that complies with its Conditions of Recognition.”

32. At the conclusion of its investigations an awarding organisation is expected to act accordingly to either issue results or to take appropriate action to revoke any certificates that have been obtained through malpractice.

H6.1 requires that an awarding organisation must, in relation to any qualification which it makes available –

(a) issue results for all units and qualifications,

(b)-(d)…,

(e) ensure that the issue of results is timely, and

(f) …

I4.2 requires that an awarding organisation must take all reasonable steps, including having procedures in place, to ensure that it – (a) issues a certificate and any replacement certificate to any Learner who has a valid entitlement to that certificate or replacement certificate…

33. The Additional Event Notifications give rise to similar concerns as those identified during the First Investigation. Cumulatively they highlight inadequacies in BSC’s processes to investigate malpractice and to then take appropriate action at the conclusion of the investigation, contrary to the Conditions set out above. On becoming aware of suspected malpractice, BSC did not progress its investigations in a timely manner. When those investigations were conducted, they were not completed robustly, either because BSC did not follow all reasonable lines of enquiry, did not respond appropriately to high-risk features of the case, or because the content of its centre agreements at the time did not require the retention of Learner contact details, meaning that BSC was often unable to contact Learners directly to investigate the circumstances in which their assessments were conducted. Despite this, BSC did not robustly enforce its Centre agreement to require the Centre to take all reasonable steps to contact the Learners in the absence of BSC being able to do so. At the conclusion of its investigations, having been unable to establish that malpractice had occurred, BSC did not ensure that results and certificates were issued in a timely manner. On several occasions BSC imposed a requirement that Learners complete a competency-based interview in order to receive their certificate, because it suspected but had been unable to establish that malpractice had occurred.

34. The entirety of the events giving rise to the Additional Event Notifications will not be recited here, but the below is an example of the issues that are illustrated therein:

Event Notification 1

35. Ongoing monitoring suggested that the Centre had only a very few fails against consistently very good pass rates. However, when BSC conducted unannounced visits, the Centre had a very high fail rate. The Centre was therefore demonstrating high-risk behaviours. This was a licence to practice qualification and BSC had been made aware previously of the increased risk of fraud at centres delivering this qualification.

36. After conducting further monitoring BSC withdrew the Centre’s approval owing to suspected malpractice, but later reinstated the Centre on appeal after receiving assurances from the Centre that it was committed to ensuring all future sessions were conducted in line with BSC’s compliance processes which included tighter controls.

37. Ofqual queried the steps that BSC had taken to investigate suspected malpractice, specifically whether it had sought to contact Learners to understand the circumstances in which their assessments were conducted. BSC confirmed that it had been unable to make contact with the Learners as the Centre did not retain Learners’ contact details.  BSC closed the investigation, stipulating that certificates were to be released to the Learners following the successful completion of a competency-based interview.

38. BSC had been unable to carry out an effective malpractice investigation in part because the terms of its centre agreement did not require the retention of data to ensure that BSC had adequate information available to it at all times (Learner contact details).  In those circumstances BSC ought to have taken steps to enforce its centre agreement to require the Centre to take all reasonable steps to track down learners on BSC’s behalf. This was a reasonable step given the absence of other lines of enquiry and the fact that BSC was being asked to reinstate the Centre in circumstances where BSC suspected repeated malpractice.

39. As a result of the failures described above BSC was unable to establish whether or not malpractice had occurred. This left BSC in an unpalatable position whereby it was obliged to issue certificates, notwithstanding its serious unresolved concerns. Despite this, BSC took the step of making certification dependent on completion of a competency-based interview, meaning that Learners were not issued with certificates in a timely manner, despite there being insufficient evidence to establish that malpractice had occurred. This dilemma underlined the importance of completing a timely and robust malpractice investigation.

Event Notification 2

40. BSC’s monitoring noted anomalies in the way that Learners were completing their assessment. These anomalies included the speed with which learners completed assessment answers, lengthy gaps between answers, lengthy gaps of inactivity, changing answers at speed and leaving the test open for long lengths of time after the last question has been completed. These were high-risk behaviours that led BSC to suspect malpractice in relation to a high-risk qualification.

1. 41. BSC explained that 89 results had been withheld in total, of which 30 were a fail result; meaning 59 pass certificates were being withheld. BSC explained that it took the following steps to investigate its concerns:

   1. a) The Centre had been suspended from running any further exam sessions.

   2. b) On 7 June 2019, BSC had requested information from the Centre. This was provided on 10 June 2019 but was considered insufficient.

   3. c) On 24 June 2019, BSC had requested further information from the Centre. This was provided on 27 June 2019 but was again considered insufficient.

   4. d) On 18 July 2019, BSC contacted the Centre, who informed BSC that there had been a number of staff changes at the Centre as a result of this matter.

   5. e) BSC arranged a visit to the Centre which was agreed to take place on 12 November 2019.

   6. f) On 12 November 2019 BSC visited the Centre to review its processes and practices. BSC undertook a detailed analysis of all sessions run by the Centre. The analysis revealed anomalies with almost all sessions completed at the Centre, however, BSC was unable to identify the root cause of those anomalies.

   7. g) On 13 November the Head of Centre wrote to BSC stating that “The evidence you presented strongly implies malpractice during what should have been properly invigilated exams, something that I and the team are ashamed to be associated with; we have no evidence to offer to counter the evidence presented.”  The Head of Centre presented a comprehensive action plan to address and prevent recurrence. However, the Centre remained suspended and investigation continued including contacting learners and invigilators.

   8. h) BSC undertook an interview with the registered invigilator for these assessment sessions, who reported that she was denied access to the exam room at the time of the invigilation, that another person had undertaken the invigilation of the assessment but that her name had been used on the relevant assessment paperwork. She confirmed that she did not report this to BSC or the Centre.

   9. i) BSC undertook an interview with a second invigilator who did not answer the questions asked and failed to respond to subsequent calls and emails from BSC.

   10. j) BSC called each of the 65 candidate telephone numbers that it was provided with but was only able to contact 3 candidates.  All 3 candidates unequivocally confirmed the presence of an invigilator during the exam and confirmed that there were no disturbances during the exam session.

   11. k) On 20 February 2020, BSC contacted the Head of Centre to challenge them about the allegations made by the registered invigilator. The Head of Centre refused to answer the questions over the phone but asked for the questions to be sent via email. The email was sent the same day with a requested date to respond of 28 February 2020, later extended to 2 March 2020. The Head of Centre responded to inform BSC that there would be a delay in responding due to a family bereavement. BSC did not receive a substantive response.

2. 42. On 25 March 2020 BSC stated that it had now closed the investigation regarding this Centre. The outcome was that certificates were to be released to the learners following the successful completion of a competency-based interview.

3. 43. Ofqual queried the rationale for releasing certificates given that it appeared that there were indications that the Centre had not been acting in line with BSC requirements. BSC confirmed that it had made all efforts to contact learners and invigilators or others present in the room for any assessments. On the basis of the information collected it was unable to prove definitively that malpractice had occurred.

4. 44. When asked about the Centre’s admissions that malpractice had occurred, BSC stated that the Head of Centre had accepted the “implication of malpractice”, rather than accepting that malpractice had in fact occurred. Without further evidence, BSC felt that “blanket implementation of resits would be disproportionate”.

5. 45. Ofqual notes there was a significant delay between the end of July 2019 and October 2019 whereby little progress was made in the BSC investigation. A significant period of time also elapsed before BSC followed the most obvious lines of enquiry in this case - such as contacting invigilators and learners. It is acknowledged that BSC made contact or attempted to make contact with those that may be relevant to the investigation (Head of Centre, invigilators and learners). However, BSC established contact with only a very small number of learners. It is impossible to determine for sure, but the delay in taking adequate investigatory steps was likely to result in increasing difficulties with contacting learners before they move on and increases the possibility that Users rely on qualifications potentially obtained through malpractice.

6. 46. Of further concern, BSC had been informed by the invigilator that they had signed invigilation records for assessments that they had not in fact invigilated. The person that was allegedly in the room with the candidates did not co-operate with the investigation.  However, in considering whether malpractice has occurred, BSC has placed reliance on the outcome of calls with 3 learners who confirmed that an invigilator was present during the assessment. It appears to Ofqual that the learners would not have been in a position to say whether or not invigilation records were accurate. Ofqual therefore considers that there was credible evidence that invigilation records had been falsified, which is indicative of Centre level malpractice, but BSC made no such findings.

7. 47. Notwithstanding Ofqual’s position that the underlying investigation was inadequate, it remained the case that BSC had not established that malpractice had occurred. This left BSC in an unpalatable position whereby it was obliged to issue certificates, notwithstanding its serious unresolved concerns. Despite this, BSC made certification dependent on completion of a competency-based interview. This meant that Learners were not issued with certificates in a timely manner, despite there being insufficient evidence to establish that malpractice had occurred. Again this dilemma underlined the importance of completing a timely and robust malpractice investigation.

Event Notification 7

1. 48. BSC explained that it had not released certificates for 4 sessions involving 23 learners between 30 March 2019 and 16 April 2019. BSC stated in the event notification that the reason for doing so was “Concerns around previous sessions had been raised on multiple occasions regarding unsatisfactory administrative processes, whereby Centre staff were not following the correct procedures and lack of sufficient evidence that demonstrates learners were present at the assessment venue at the given time”.  Specifically, this included:

   1. a) Registering candidates with the incorrect name or surname - corrected via email (33 incidents)
   2. b) Issues with Candidate Attendance Sheet - incomplete forms or not submitted at all (2 occasions)
   3. c) Problems with staff login details (4 occasions)
   4. d) Delays with the Centre sending paper-based sessions back to BSC.

2. 49. It was notable that following approval, this Centre did not receive any visits from BSC for approximately 3 years. On 25 May 2019, BSC had attempted to schedule a visit with the Centre but did not receive a response. This was followed up on 22 June 2019, but the Centre did not respond to this request. There was then a significant delay in taking any further action on BSC’s part prior to the event notification being submitted on 10 March 2020.

3. 50. It was troubling that the Centre failed to submit to a centre visit and then became unco-operative in relation to providing learner details to BSC. BSC continued to operate where there was a significant risk of a Centre operating otherwise in accordance with its requirements over a significant period of time without detection. Furthermore, it appears that BSC had identified issues with the information that was being submitted by the Centre on various issues. This was a high-risk centre delivering high-risk qualifications, demonstrating high-risk behaviours.

4. 51. Presented with those circumstances, BSC was required to undertake a rigorous investigation in relation to the circumstances in which learners were assessed and if possible, to ascertain whether malpractice had taken place. BSC did not take all reasonable to steps to establish whether malpractice had occurred. BSC concluded that, in the absence of Learner details and/or a response from the Centre, it had no proof of learner malpractice and on 3 April 2020, BSC informed the Centre via email that certificates were to be released to the Learners following the successful completion of a knowledge interview. BSC did not receive a response from the Head of Centre.

5. 52. Again, having reached that conclusion, BSC treated Learners as if a finding of malpractice had been made, making certification dependent on completion of a competency-based interview. This meant that Learners were not issued with certificates in a timely manner, despite there being insufficient evidence to establish that malpractice had occurred.

Failure to comply with the Conditions

53. BSC has admitted that it failed to comply with the Conditions of Recognition in the ways described in the allegations at paragraph 2 of this Notice, in the ways described at paragraphs 15 to 52.

Settlement Proposal

1. 54. BSC makes the following Settlement Proposal to Ofqual with a view to concluding this matter in full and final settlement of the enforcement case, without the requirement for a contested enforcement hearing.

2. 55. In this respect, BSC offers to pay:
   1. a) a Monetary Penalty of £5,000
3. 56. BSC undertakes not to withdraw the Surrender Application prior to Ofqual processing that revocation at the conclusion of this enforcement action.

Determination of Monetary Penalty

1. 57. Taking all of the above into account, the Enforcement Panel has decided that it intends to accept a settlement proposal from BSC in terms that BSC:
   1. a) admits all the breaches set out in this Notice;
   2. b) agrees to pay the nominal Monetary Penalty of £5,000;
   3. c) undertakes not to withdraw the Surrender Application prior to Ofqual processing that revocation at the conclusion of this enforcement action.

2. 58. The figure of £5,000 reflects the fact that a settlement proposal has been put forward by BSC and takes account of the aggravating and mitigating factors detailed below.

3. 59. The Enforcement Panel is satisfied, in accordance with section 151B of the 2009 Act, that a Monetary Penalty in the sum of £5,000 would not exceed 10% of BSC’s total annual turnover.

4. 60. Accordingly, Ofqual gives notice that it intends to impose on BSC a Monetary Penalty in the sum of £5,000

Aggravating Factors

61. The failures described above are serious. They represent long running, repeated and systemic failures to investigate suspected malpractice in relation to qualifications that BSC knew to be susceptible to fraud. These qualifications are one of various competency requirements that need to be met in order to obtain a CSCS card (which provide proof that individuals working on construction sites have the appropriate training and qualifications). The failure to properly scrutinise the award of these qualifications had the potential to undermine public confidence in these important qualifications.

62. BSC’s own policies required it to undertake periodic monitoring and to investigate suspected malpractice promptly and robustly, but it failed to follow its own processes to achieve compliance.

63. Faced with the circumstances described in the event notifications, there were obvious and reasonable lines of enquiry available to BSC that it did not take. While they may have been time consuming, they would have allowed BSC to determine one way or the other, whether malpractice had occurred. BSC did not take those steps and closed its investigations with no adverse findings being made.

64. Instead BSC imposed a restriction requiring Learners to complete a competency-based interview in order to obtain its certificate. This was inappropriate where BSC had not taken all reasonable steps to establish whether malpractice had occurred and was in effect a safety net in lieu of BSC completing a full and robust investigation.

65. BSC’s failure to notify Ofqual of the Additional Event Notifications prior to agreeing the Undertaking, whilst not intentional, has resulted in the need for additional regulatory intervention.

Mitigation 

66. The failures described above were not intentional and there is no evidence that BSC or any of its employees were complicit in the suspected malpractice.

67. There is no evidence that the breaches were primarily motivated by a desire to save money on the costs of compliance, although it must be noted that such savings will have been made and the cost of compliance was a decisive factor in whether BSC was to continue delivering these qualifications.

68. BSC has accepted responsibility and made full admissions to the alleged breaches, both during the First Investigation and the Second Investigation.

69. BSC fully co-operated with Ofqual’s investigations at all stages.

70. There is no evidence to suggest that BSC has failed to investigate malpractice on any occasion since the events set out in the Additional Event Notifications.

71. The circumstances giving rise to allegations 1 and 2 were not intended to mislead Ofqual, albeit that was the effect of the conduct.

72. Save for the issues giving rise to the First and Second Investigations, BSC has no other relevant regulatory history.

73. BSC has further submitted the following mitigation, which is not endorsed by Ofqual.

74. It was not only BSC which experienced difficulties with these qualifications: other players in the market for these qualifications were affected by (and in some cases, continue to be affected by) similar issues.

75. Before BSC withdrew the qualification, BSC increased resource levels and implemented a range of system and process improvements as well as seeking expert consultant advice once the issues came to light. This included increased centre visits, controls in assessment sessions and compliance monitoring. Measures were audited by Ofqual’s approved independent consultant who reported to Ofqual in March 2020 that “there is good evidence to show that the improvements to systems and processes are working and are effective”. The level of checks and compliance requirements on Centres that BSC implemented based on what BSC now believes the risks to be, became unsustainable and uncompetitive in the marketplace for centre and Awarding Organisation was a factor that led to BSC’s decision to withdraw the qualification in 2020.

76. BSC voluntarily ceased delivering these qualifications on 17 February 2023 and requested to surrender its recognition. Once its surrender of recognition is processed, there is no risk of repetition.

77. BSC is a registered charity and that a substantial monetary penalty might impact adversely on BSC’s charitable objectives, particularly in circumstances where BSC no longer offers the qualification and has requested to surrender its recognition.

78. BSC has made full and frank admissions, has acknowledged that a monetary penalty is a proportionate outcome and has agreed to pay such a penalty.