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Transcript - 'Ofqual Explains: Strengths of obligation'

Published 10 December 2018

Applies to England

Welcome to another episode of Ofqual Explains. In this episode, I’m going to talk about the different strengths of obligation contained within our rules.

In some of our other episodes, we’ve explained that we set both general and specific rules (and guidance) for the qualifications we regulate. We’ve also talked about the language of our rules and mentioned that we can – and do – set different strengths of obligation. And that’s what I’m going to talk more about now.

I’m going to start by talking about absolute obligations. In some ways, these are simple and easy obligations to understand; they are strict rules that awarding organisations must follow in all circumstances. Because we set outcome-based rules wherever we can, these rules will often specify outcomes an awarding organisation must deliver. One example is the requirement in General Condition A4.2 for awarding organisations to “identify … all conflicts of interest that relate to” them.

When setting absolute obligations, we usually use words like ‘ensure’, ‘secure’, ‘must’ (and, of course, ‘must not’). Where it is appropriate to set absolute obligations, we do – because it’s simpler and clearer for everyone to understand a rule that always applies.

But, of course, there are a number of situations where it’s not appropriate for us to set absolute obligations. One of those situations is if awarding organisations cannot fully control whether or not a particular outcome is achieved, or where an absolute obligation could impose undue costs or burden. In these situations, we could set a qualified obligation. The precise strength of that obligation can vary, depending on what’s appropriate.

We try to use consistent language across our rules and guidance to signal the strength of obligations. If you want to understand how strong a particular obligation is, then you will need to look more closely at its precise wording.

The two most common forms of wording we use are;

• ‘take all reasonable steps’ to achieve an outcome. This is a high bar to meet, as it requires awarding organisations to do everything they can to deliver an outcome,
• ‘have regard to’ a particular approach to achieving an outcome, or to particular information when making a decision. Here, awarding organisations must consider the suggested approach or information, but can legitimately choose not to follow it where that is appropriate.

A variant of this is a requirement to ‘have due regard to’ a particular approach or information. This requires the awarding organisation to consider that approach or information, and give it appropriate weight when taking decisions.

The other situation is where it’s only appropriate for a rule to apply in certain circumstances – for example if an awarding organisation takes a particular approach to delivering its qualifications. When setting rules that only apply in particular circumstances, we normally use words such as ‘where’ or ‘any’. For example;

• Condition A3.1(b) states: ‘Where there is a change of control in relation to an awarding organisation, it must put in place a plan designed to ensure that the interests of Learners will be protected’.

This is an absolute requirement, which only applies if a change of control in an awarding organisation takes place

• Condition C3.1(a) states that ‘Where an awarding organisation has in place an endorsement process, the awarding organisation must take all reasonable steps to ensure that the endorsement process does not have an Adverse Effect’

This is a qualified requirement, which only applies if the awarding organisation has a process for endorsing resources designed to support teaching.

To recap;

• our rules contain different strengths of obligation – signalled by the different language we use when setting out those obligations,
• what you will need to do to demonstrate compliance with an obligation will depend on its strength,
• some obligations only apply in specific circumstances – again the language we use will signal this.

You can find all of our rules and guidance on our website, simply click on ‘understand our rules’.