Agreement date and parties
THIS AGREEMENT is effective from 1 August 2020 until 31 July 2021 between:
Learn Devon, (hosted by the Council and funded primarily through the ESFA) with operating address: The Kennaway Centre, 10-12 Victoria Road, Exmouth, EX8 1DL (hereinafter called Learn Devon)
with operating address: [Contractor Address] (hereinafter called the Subcontractor)
Definitions and terminology
Academic year: means a year running from 1 August in one calendar year to 31 July in the following calendar year.
Adult Education Budget: is the name given to include fundable qualifications together with informal learning previously known as Community Learning.
Apprenticeship: the term ‘apprentice’ includes all those who receive apprenticeship training and (where applicable) end-point assessment through an apprenticeship framework or standard funded by the ESFA.
Controller has the meaning given in the GDPR.
Commencement Date 1 August 2020.
Completion Date 31 July 2021
Council: Devon County Council of County Hall, Topsham Road, Exeter, Devon EX2 4QD.
Data Loss Event: any event that results, or may result, in unauthorised access to Personal Data held by the Subcontractor under this Agreement, and/or actual or potential loss and/or destruction of Personal Data in breach of this Agreement, including any Personal Data Breach.
Data Processing Operations: the processing of Personal Data relating to employees and officers of Learn Devon, its service providers, service users and/or other third parties, as necessary for the provision of the Services during the Term, and for such periods after the Term as are required for compliance with applicable Laws, together with such ancillary processing of Personal Data relating to employees and officers of Learn Devon, its service providers, service users and/or other third parties as is necessary for the performance of the Subcontractor’s obligations under this Agreement, or the administration of this Agreement.
Data Protection Legislation: (i) the GDPR, the LED and any applicable national implementing Laws as amended from time to time (ii) the DPA 2018 to the extent that it relates to processing of personal data and privacy; (iii) all applicable Law about the processing of personal data and privacy.
Data Protection Impact Assessment: an assessment by the Controller of the impact of the envisaged processing on the protection of Personal Data.
Data Protection Officer has the meaning given in the GDPR.
Data Subject has the meaning given in the GDPR.
Data Subject Request: a request made by, or on behalf of, a Data Subject to exercise any of its rights under Data Protection Legislation.
DPA 2018: means the Data Protection Act 2018.
ESFA: means the Education and Skills Funding Agency.
GDPR: the General Data Protection Regulation (Regulation (EU) 2016/679)
Law(s): means any law, statute, subordinate legislation within the meaning of section 21(1) of the Interpretation Act 1978, bye-law, ‘enforceable right’ within the meaning of section 2 of the European Communities Act 1972, regulation, order, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements of any regulatory body with which the Subcontractor is bound to comply.
LED: Law Enforcement Directive (Directive (EU) 2016/680)
Personal Data has the meaning given in the GDPR.
Personal Data Breach has the meaning given in the GDPR.
Processor has the meaning given in the GDPR and Process, Processed and Processing shall be construed accordingly.
Protective Measures: appropriate technical and organisational measures which may include: pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the such measures adopted by it.
Services: means the whole of the services or any of them to be provided by the Subcontractor to Learn Devon under this agreement and as more particularly described in documents Sub-Contractor Profile, Expression of Interest
Sub-contractor; means the supplier of the Services, referred to in the legal body of this document with whom the contract is held.
Sub-processor: any third party, sub-contractor, supplier or partner appointed to process Personal Data on behalf of the Subcontractor related to this Agreement.
Subcontractor Personnel: means all directors, officers and employees of the Subcontractor engaged in the performance of the Subcontractor’s obligations under this Agreement.
Traineeships: fall with the AEB funding stream for learners aged 19+.
Valid claim: means a claim received which meets the funding compliance requirements of the ESFA in respect of each Learner and their eligibility and where appropriate each qualification or apprenticeship standard as defined by the ESFA funding rules – 2020-2021 https://www.gov.uk/guidance/sfa-funding-rules and for each Learner that all required records and documentation are received.
Working Day any day other than a Saturday, Sunday or public holiday in England and Wales.
Duration of agreement
(a) This agreement will commence on the Commencement Date and continue until 31 July 2021 unless terminated in accordance with the terms and conditions of the contract, All delivery agreed within this contract as defined in ‘Sub-Contractor Profile must take place prior to 31 July 2021. An appendix with payment profile will be issued upon receipt of a detailed programme from the Subcontractor.
(b) Claims for Learner starts must be valid and be made monthly, last receipt of claims to be made on or before Monday 6th September 2021
(c) Claims for Achievement must be valid and be made monthly, last receipt of claims to be made on or before Wednesday 12th October 2021
(d) All claims received after these dates will be deemed invalid and Learn Devon shall not be obliged to make payment for these claims unless prior written agreement is given by Learn Devon.
4.1. The Subcontractor is required to:
- (a) Register on the Register of Training Organisations if the Subcontractor holds contracts with an overall value of £100,000 of ESFA funding or more a year.Information about the register is available on: http://skillsfundingagency.bis.gov.uk/providers/programmes/register/.
- (b) Register on the UK Register of Learning providers (UKRLP) in order to be eligible to receive funding. By registering the Subcontractor will obtain a UK Provider Reference Number (UKPRN) http://www.ukrlp.co.uk/ to be supplied to Learn Devon along with other accurate information required, such as the full title of the organisation and names of CEOs or trustees.
- (c) Comply with the Chief Executive’s Funding Rules http://skillsfundingagency.bis.gov.uk/providers/fundingrules/.
- (d) Inform Learn Devon if there is any evidence of current or historic irregular financial or delivery activity. This could include but is not restricted to:
- (a) non-delivery of training when funds have been paid.
- (b) Sanctions imposed on the Subcontractor by an awarding organisation.
- (c) Inadequate grade for the Subcontractor by Ofsted.
- (d) Complaints or allegations by learners or people working for the Subcontractor or other relevant parties.
- (e) Allegations of fraud.
- (f) Where the Subcontractor goes into administration or liquidation the Chief Executive of ESFA must be assumed to be a creditor of the Subcontractor. The Subcontractor must take steps to ensure that the Chief Executive of ESFA is provided with details of the administrator or liquidator and receives notification of any creditors meetings. The Chief Executive will confirm whether in fact he is a creditor within eight weeks of being notified that the Subcontractor is in administration or liquidation.
4.2. Subcontractors must co-operate with Learn Devon to ensure continuity of learning in the event the subcontract is terminated for any reason
4.3. Subcontractors must not use the funding from the ESFA Chief Executive to make bids or claims from any European source of funding on its own behalf or on behalf of the ESFA Chief Executive without obtaining consent in writing from the ESFA Chief Executive that it may do so.
4.4. Subcontractors do not hold the right to use payments made under the main Terms and Conditions of Funding as match funding for ESF Co-Financing Projects.
4.5. The Subcontractor is expected to meet the requirements as specified in the ESFA Funding and Audit Guidance in respect of all work carried out under this agreement. Particular note must be made of the need to observe the clauses relating to ESF http://skillsfundingagency.bis.gov.uk/providers/finance/financialassurance/auditoffunding/).
5.1. Learn Devon, as the contract holder, reserves the right to carry out audit of all activities with reasonable notice to ensure compliance with the ESFA requirements.
5.2. The Subcontractor must allow the ESFA Chief Executive, his staff and any other person nominated by him access to its premises and all documentation related to providing education and training by the ESFA.
5.3. Subcontractors need to supply Learn Devon with sufficient evidence to allow Learn Devon to adequately quality assure the performance of the Subcontractor against Ofsted’s Education Inspection Framework and contribute towards Learn Devon’s self-assessment report and to the judgements and grades therein. A revised framework came into effect from September 2019.
5.4. Subcontractors must meet Matrix requirements or be a Matrix accredited organisation.
5.5. Subcontractors need to conduct observations of teaching and learning using the paperwork supplied by Learn Devon. Observation schedules based on an appropriate risk assessment of Tutors to be prepared and completed observation forms to be sent to Learn Devon for moderation.
5.6. Learn Devon shall conduct a minimum of termly Compliance and Support Reviews. Where there are causes for concern an action plan will be agreed to resolve the issues. This may include a re-profiling of activity to safeguard the contract held by Learn Devon with the ESFA and subsequent financial adjustments in-year and a new contract being issued or the contract being terminated. The purpose of the Review will be to:
- (a) Identify and confirm performance against Annexe A – Scope of delivery.
- (b) Identify and confirm performance against quality of delivery with achievement in line with or exceeding national benchmarks for retention, achievement and success.
- (c) Ensure learning and teaching standards are monitored and outcomes reported to Learn Devon.
- (d) Conduct audit of learner and programme documentation.
- (e) Communicate key changes received by ESFA, Ofsted or other parties that impact upon the agreement.
- (f) The Subcontractor is required to engage in and support Learn Devon Self-Assessment to meet contractual requirements.
- (g) Where a cause for concern is identified through Compliance Reviews, the Subcontractor is expected to act upon the agreed actions within the agreed timeframe.
Financial Health Assessment
6.1. Learn Devon is required to establish a Subcontractors’ financial health to understand the degree of risk in contracting in addition to the statements made within the LD Sub-contractor Questionnaire -.
On request, a Subcontractor is required to provide evidence to show that the contract value is no more than 5% of their annual turnover. The Subcontractor must inform Learn Devon immediately should their financial health change during the term of this agreement and, in particular if the contract value becomes more than 5% of their annual turnover.
7.1. The Subcontractor must maintain insurance cover, and on request produce a certified copy of all related insurance policies. These will be checked at least annually.
The requirements are:
Employer’s liability insurance: £5 million.
Public liability insurance: £5 million.
Professional indemnity: £5 million
Co-operation and reputation
8.1. The Subcontractor must acknowledge the ESFA in all activity funded through this agreement. Learn Devon will provide the branding guidelines to the Subcontractor upon request.
8.2. The Subcontractor must, unless otherwise agreed in writing, acknowledge Learn Devon in all activity funded through this agreement. Learn Devon will provide the branding guidelines to the Subcontractor upon request.
8.3. Upon termination of this contract, the Subcontractor must remove all reference to both the ESFA and Learn Devon in any of the materials provided to learners or employers, grant bids or wider marketing materials (including websites).
8.4. Learn Devon and the Subcontractor agree to deliver this contract in good faith and not to bring either party into disrepute through its actions.
9.1. Learn Devon retains the rights to terminate this agreement with one month’s written notice to the Subcontractor.
9.2. Without prejudice to the Subcontractor’s rights below, Learn Devon shall have the right to terminate this Agreement for any reason, at any time on giving notice in writing to the Subcontractor. Notwithstanding any provisions to the contrary in the Agreement in the event that Learn Devon terminates this Agreement for its own reasons, the Subcontractor shall be entitled to recover from Learn Devon all monies due prior to such termination.
9.3. The Subcontractor must cooperate to make sure that there is continuity of learning if the subcontract ends for any reason. The arrangements for this must be clearly communicated to Learn Devon.
9.4. If the Subcontractor:
- (a) fails to proceed with the delivery of learning with due diligence; or
- (b) fails to deliver the learning or to perform its other material obligations in accordance with this Agreement; or
- (c) becomes bankrupt or enters a deed or arrangement with its creditors or being a company goes into liquidation (other than a voluntary liquidation for the purposes of reconstruction) or has a receiver appointed of all or part of its undertaking, then in such event and without prejudice to any other rights or remedies Learn Devon may have under this Agreement or at law, Learn Devon may by written notice to the Subcontractor forthwith terminate this Agreement.
9.5. Termination of this Agreement howsoever caused shall not prejudice the rights or obligations of either of the Parties that have accrued prior to termination.
9.6. Learn Devon may, in lieu of giving notice of termination under clause 9.4, take part of the services out of the hands of the Subcontractor and may by itself or by others execute, complete and maintain such part, and in such event Learn Devon may recover all reasonable costs of so doing from the Subcontractor or deduct the costs from monies otherwise due to the Subcontractor. The Subcontractor’s liability to Learn Devon shall not exceed the maximum contract value as indicated in the Sub-Contractor Profile.
10.1. The Parties acknowledge that for the purposes of the Data Protection Legislation, Learn Devon is the Controller and the Subcontractor is the Processor. Unless otherwise agreed in writing, the Data Processing Operations is the only processing that the Subcontractor is authorised to do by Learn Devon.
10.2. The Subcontractor shall notify Learn Devon immediately if it considers that any of Learn Devon’s instructions infringe the Data Protection Legislation.
10.3. The Subcontractor shall provide all reasonable assistance to Learn Devon in the preparation of any Data Protection Impact Assessment prior to commencing any processing. Such assistance may, at the discretion of Learn Devon, include:
- (a) a systematic description of the envisaged processing operations and the purpose of the processing;
- (b) an assessment of the necessity and proportionality of the processing operations in relation to the Services;
- (c) an assessment of the risks to the rights and freedoms of Data Subjects; and
- (d) the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of Personal Data.
10.4. The Subcontractor shall, in relation to any Personal Data processed in connection with its obligations under this Agreement:
- (a) process that Personal Data only in accordance with the Data Processing Operations, unless the Subcontractor is required to do otherwise by Law. If it is so required the Subcontractor shall promptly notify Learn Devon before processing the Personal Data unless prohibited by Law;
- (b) ensure that it has in place Protective Measures, which have been reviewed and approved by Learn Devon as appropriate to protect against a Data Loss Event having taken account of the:
- (a) nature of the data to be protected;
- (b) harm that might result from a Data Loss Event;
- (c) state of technological development; and
- (d) cost of implementing any measures;
- (c) ensure that:
- (a) the Subcontractor Personnel do not process Personal Data except in accordance with this Agreement (and in particular the Data Processing Operations);
- (b) it takes all reasonable steps to ensure the reliability and integrity of any Subcontractor Personnel who have access to the Personal Data and ensure that they:
- (i) are aware of and comply with the Subcontractor’s duties under this clause;
- (ii) are subject to appropriate confidentiality undertakings with the Subcontractor or any Sub-processor;
- (iii) are informed of the confidential nature of the Personal Data and do not publish, disclose or divulge any of the Personal Data to any third Party unless directed in writing to do so by Learn Devon or as otherwise permitted by this Agreement; and
- (iv) have undergone adequate training in the use, care, protection and handling of Personal Data; and
- (d) not transfer Personal Data outside of the EU unless the prior written consent of Learn Devon has been obtained and the following conditions are fulfilled:
- (a) Learn Devon or the Subcontractor has provided appropriate safeguards in relation to the transfer (whether in accordance with GDPR Article 46 or LED Article 37) as determined by Learn Devon;
- (b) the Data Subject has enforceable rights and effective legal remedies;
- (c) the Subcontractor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred (or, if it is not so bound, uses its best endeavours to assist Learn Devon in meeting its obligations); and
- (d) the Subcontractor complies with any reasonable instructions notified to it in advance by Learn Devon with respect to the processing of the Personal Data;
- (e) at the written direction of Learn Devon, delete or return Personal Data (and any copies of it) to Learn Devon on termination of the Agreement unless the Subcontractor is required by Law to retain the Personal Data
10.5. Subject to clause 10.6, the Subcontractor shall provide written notice to the Council’s Information Governance Manager (e-mail: firstname.lastname@example.org) immediately if it:
- (a) receives a Data Subject Request (or purported Data Subject Request);
- (b) receives a request to rectify, block or erase any Personal Data;
- (c) receives any other request, complaint or communication relating to either Party’s obligations under the Data Protection Legislation;
- (d) receives any communication from the Information Commissioner or any other regulatory authority in connection with Personal Data processed under this Agreement;
- (e) receives a request from any third Party for disclosure of Personal Data where compliance with such request is required or purported to be required by Law; or
- (f) becomes aware of a Data Loss Event.
10.6. The Subcontractor’s obligation to notify under clause 10.5 shall include the provision of further information to Learn Devon in phases, as details become available.
10.7. Taking into account the nature of the processing, the Subcontractor shall provide Learn Devon with full assistance in relation to either Party’s obligations under Data Protection Legislation and any complaint, communication or request made under clause 10.5 (and insofar as possible within the timescales reasonably required by Learn Devon) including by promptly providing:
- (a) Learn Devon with full details and copies of the complaint, communication or request;
- (b) such assistance as is reasonably requested by Learn Devon to enable Learn Devon to comply with a Data Subject Request within the relevant timescales set out in the Data Protection Legislation;
- (c) Learn Devon, at its request, with any Personal Data it holds in relation to a Data Subject;
- (d) assistance as requested by Learn Devon following any Data Loss Event;
- (e) assistance as requested by Learn Devon with respect to any request from the Information Commissioner’s Office, or any consultation by Learn Devon with the Information Commissioner’s Office.
1.8. The Subcontractor shall maintain complete and accurate records and information to demonstrate its compliance with this clause. This requirement does not apply where the Subcontractor employs fewer than 250 staff, unless:
- (a) Learn Devon determines that the processing is not occasional;
- (b) Learn Devon determines the processing includes special categories of data as referred to in Article 9(1) of the GDPR or Personal Data relating to criminal convictions and offences referred to in Article 10 of the GDPR; and
- (c) Learn Devon determines that the processing is likely to result in a risk to the rights and freedoms of Data Subjects.
10.9. The Subcontractor shall allow for audits of its Data Processing activity by Learn Devon or Learn Devon’s designated auditor.
10.10. The Subcontractor shall designate a data protection officer if required by the Data Protection Legislation.
10.11. Before allowing any Sub-processor to process any Personal Data related to this Agreement, the Subcontractor must:
- (a) notify Learn Devon in writing of the intended Sub-processor and processing;
- (b) obtain the written consent of Learn Devon;
- (c) enter into a written agreement with the Sub-processor which give effect to the terms set out in this clause 10 such that they apply to the Sub-processor; and
- (d) provide Learn Devon with such information regarding the Sub-processor as Learn Devon may reasonably require.
10.12. The Subcontractor shall remain fully liable for all acts or omissions of any Sub-processor.
10.13. Either Party may, at any time on not less than 30 Working Days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (in either case in accordance with Articles 28(6), 28(7), and 28(8) of the GDPR which shall apply when incorporated by attachment to this Agreement).
10.14. The Parties agree to take account of any guidance issued by the Information Commissioner’s Office. Either party may on not less than 30 Working Days’ notice to the other party amend this Agreement to ensure that it complies with any guidance issued by the Information Commissioner’s Office.
10.15. The Subcontractor shall indemnify Learn Devon against all liabilities, costs, expenses, damages, and losses (and all other reasonable professional costs and expenses) suffered or incurred by Learn Devon arising out of or in connection with
- (a) any breach of the obligations contained within this clause 10 (Data Protection); or
- (b) any failure to comply with its obligations as a Processor under the Data Protection Legislation.
11.1. Both Learn Devon and the Subcontractor agree to maintain in confidence all financial and operational aspects of this agreement unless the information is required to be disclosed in compliance with the requirements of any law, rule or regulation of any governmental authority, regulatory body or stock exchange having jurisdiction over the work of either Learn Devon or the Subcontractor.
12.1. All notices and other communications provided for in this Agreement shall be in writing and shall be delivered by post, electronic mail (subject to the originating Party receiving a “Read” receipt from the receiving Party) or hand to an authorised representative of the Party to whom such notice is directed at the address shown in Section 1 or such other address as may, from time to time, be notified to the other Party in writing. Any notices served shall, unless otherwise specified herein, be deemed effective upon actual receipt by the receiving Party and shall be acknowledged within seventy-two (72) hours of the time and date of receipt.
13.1. The Subcontractor must comply with the Race Relations (Amendment) Act 2000’ and ‘Equality Act 2010’ (as stated on legislation.gov.uk) and Special Educational Needs and Disability Discrimination Act 2001 (incorporated into Part IV of the Disability Discrimination Act 1995).
13.2. The Subcontractor is expected to have an Equal Opportunities Policy applicable to the learners on the programme. Where this is not available the Subcontractor agrees to adopt and implement the DCC Equal Opportunities Policy for learners.
Health and Safety Liability / Safeguarding / PREVENT
14.1. The Sub-contractor shall ensure, so far as reasonably practicable that learning takes place in safe, healthy and supportive environments, which meet the needs of Learners. The Sub-contractor shall provide information to the ESFA, as and when specifically requested, to give assurance that adequate arrangements exist for Learner health safety and welfare.
14.2. Where part of the learning takes place in an environment outside the direct control of the Sub-contractor, the Sub-contractor shall take all reasonable steps to ensure that adequate arrangements are in place to ensure the health and safety of Learners.
14.3. The Sub-contractor shall make arrangements for ensuring that the Services is provided with a view to safeguarding and promoting the welfare of children receiving education or training at the institution or under the auspices of the Sub-contractor in an environment outside the direct control of the Sub-contractor. In doing so, the Sub-contractor shall have regard to any guidance published, from time to time, by the Secretary of State for Education which sets out the expectations in relation to safeguarding practice within further education institutions. References to ‘must’ in any such guidance shall be treated as ‘should’ for the purposes of this Agreement, save for any references to legal requirements arising from the Safeguarding Vulnerable Groups Act 2006 in respect of referrals to the Disclosure and Barring Service. Failure to do so may constitute a serious breach of this Agreement. Conditions of Funding (Grant) 2020-2021 Adult Education Budget, 16-18 Traineeships, and Apprenticeships Programmes Education and Skills Funding Agency www.gov.uk/esfa
14.4. The Sub-contractor shall make arrangements for ensuring that the Service is provided with a view to safeguarding and promoting the welfare of High Needs Learners aged 18 to 25 receiving education or training at their institution or under the auspices of the Sub-contractor in an environment outside the direct control of the Sub-contractor. This must include the adoption of safer recruitment procedures. In doing so, the Sub-contractor shall make those arrangements as if such Learners were children and will have regard to any guidance published, from time to time, by the Secretary of State for Education which sets out the expectations in relation to safeguarding practice within further education institutions as if it applied to those Learners as if they were children. References to ‘must’ in any such guidance shall be treated as ‘should’ for the purposes of this Agreement, save for any references to legal requirements arising from the Safeguarding Vulnerable Groups Act 2006 in respect of referrals to the Disclosure and Barring Service. Failure to do so may constitute a serious breach of this Agreement.
14.5. In working with other organisations/bodies, the Sub-contractor shall make arrangements to co-ordinate and co-operate effectively for reasons of learner health, safety and welfare. In particular, respective responsibilities shall be clearly identified and documented as appropriate, to ensure understanding.
14.6. In providing the Service, the Sub-contractor must ensure it actively promotes the fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs, and promote principles that support equality of opportunity for all.
14.7. In providing the Service, the Sub-contractor must comply with the general duty on specified authorities in section 26 of the Counter-Terrorism and Security Act 2015 (the Prevent duty) and the duty on partners of a panel in section 38 of the Counter-Terrorism and Security Act 2015 (the Channel co-operation duty). In doing so, the Sub-contractor will act in accordance with any guidance issued by the Secretary of State in respect of these duties. Failure to do so may constitute a serious breach of this Agreement.
14.8. The Sub-contractor shall not employ or engage, or continue to employ or engage, any person who is subject to a prohibition order made under section 141B of the Education Act 2002 to carry out teaching work (as defined in regulation 3 of the Teachers’ Disciplinary (England) Regulations 2012) in respect of any Learners under the age of 19 and High Needs Learners aged 19 to 25 (as if those Learners were pupils for the purposes of the definition of teaching work in regulation 3 of the Teachers’ Disciplinary (England) Regulations 2012). Conditions of Funding (Grant) 2020-2021 Adult Education Budget, 16-18 Traineeships, and Apprenticeships Programmes Education and Skills Funding Agency www.gov.uk/esfa
14.9. Before employing or engaging a person to carry out teaching work in respect of any Learners under the age of 19 and High Needs Learners aged 19 to 25 (as if those Learners were pupils for the purposes of the definition of teaching work in regulation 3 of the Teachers’ Disciplinary (England) Regulations 2012), the Sub-contractor shall take reasonable steps to ascertain whether that person is subject to a prohibition order made under section 141B of the Education Act 2002.
14.10. The Sub-contractor and/or the Sub-contractor Related Parties must be able to demonstrate that they have robust record-keeping procedures in respect of health, safety and safeguarding through checks on record keeping undertaken. Failure to do so will constitute a serious breach.
14.11. Where the Sub-contractor makes a referral to any Local Authority (including referrals to social services) in respect of serious safeguarding concerns (in respect of all Learners up to the age of 18, High Needs Learners aged 19 to 25), the Sub-contractor shall ensure that it notifies the ESFA that a referral has been made.
14.12. Where the Sub-contractor makes a referral of an individual for the purposes of determining whether that individual should be referred to a panel for the carrying out of an assessment under section 36 of the Counter-Terrorism and Security Act 2015 of the extent to which that individual is vulnerable to being drawn into terrorism, the Sub-contractor shall ensure it notifies the ESFA that a referral has been made.
14.13. Where the Sub-contractor has made a referral or provided information to the Disclosure and Barring Service in compliance with any duties of the Sub-contractor under the Safeguarding Vulnerable Groups Act 2006, the Sub-contractor shall ensure that it informs the ESFA that a referral has been made / information has been provided.
14.14. The Sub-contractor shall, in circumstances where it sub-contracts the management and/or delivery of the Provision under this Agreement, ensure that all the clauses in respect of learner health safety and welfare are included in its contract with sub-contractors.
14.15. The Sub-contractor shall inform the ESFA of the death of any Learner which is as a result of work undertaken whilst in employment and who is undertaking a related Learning Programme. This shall be done by informing the ESFA’s representative by telephone or email immediately the Sub-contractor becomes aware of the event.
14.16. The Sub-contractor shall report all RIDDOR reportable incidents in line with the Regulations, and shall investigate or assess the circumstances of all learner incidents within the scope of RIDDOR and follow HSE guidance ‘Investigating Accidents and Incidents: A Workbook for Employers, Unions, Safety Representatives and Safety Professionals’ (HSG245) ISBN 0717628272. The Sub-contractor shall only use persons competent to
- (a) Conditions of Funding (Grant) 2020-2021 Adult Education Budget, 16-18 Traineeships, and Apprenticeships Programmes Education and Skills Funding Agency www.gov.uk/esfa
- (b) investigate/assess learner incidents with a view to identifying the causes of any incident and lessons to be learned.
14.17. The Sub-contractor shall also monitor, and act on, any other harm to Learners to the extent that the Sub-contractor could reasonably be expected to do so and/or where the harm could affect the quality of the learning experience. Harm includes (but is not limited to) other incidents that cause absence from learning, any loss to the learner of any physical or mental faculty or any disfigurement, incidents of bullying and harassment.
14.18. The Sub-contractor shall co-operate with ESFA’s representatives and Department for Work and Pensions (DWP) for the purposes of the Industrial Injuries Disablement Benefit (IIDB) in respect to those Learners to which it applies.
15.1. It is expected that each learner shall receive from the Subcontractor appropriate initial guidance and assessment, agreed individual learning plan and enrolment form.
Delivery of learning, assessment and achievement
16.1. This agreement is between Learn Devon and the Subcontractor only.
16.2. Subcontractors cannot subcontract any part of their responsibilities under this Agreement to anyone else.
16.3. Subcontractors must have suitably qualified staff to deliver the contract who must meet the minimum standards laid down by the ESFA, Ofsted and the relevant Sector Skills Council.
16.4. All Teaching staff, Assessors and Internal Verifiers are required to comply with Learn Devon’s Statement of Professional Registration and Competence and to provide proof of such prior to engaging with any learner funded by this contract.
16.5. Registration and Certification of Learners
16.6. All learners undertaking a qualification must be registered with the awarding body within 4 weeks of commencement of the programme. Although Learn Devon does not require this as start documentation for each learner, auditable evidence must be made available to Learn Devon upon request. Failure to produce such evidence will mean that future starts will be required to produce such evidence prior to payment being released.
16.7. Unless otherwise agreed in writing, the Subcontractor must be registered with an Awarding Body for the qualifications / QCF units being funded within this agreement. Where proof of direct claims is submitted for a particular qualification or set of qualifications, Learn Devon will accept the Internal Verifier report as proof of Achievement. Learn Devon will require sight of all External Verifier / Moderator reports affecting the award of qualifications / units covered by this agreement.
16.8. It is the responsibility of the Subcontractor to provide e-portfolio and internal verification as appropriate.
16.9. It is the responsibility of the Subcontractor to ensure that certificates are dated within 3 months of the date of the last assessment.
16.10. It is the responsibility of the Subcontractor to ensure that learners complete their programme in a timely manner in order to allow time for external verification and claiming of final certification as laid out in the National Apprenticeship Requirements.
16.11. It is a condition of the funding agreement held by Learn Devon and the ESFA that the Subcontractor ensures continuity of learning for the learner in the event of termination of the contract.
Learners with Additional Support Requirements
17.1. Learners engaged on a Subcontractor programme within AEB funded provision are eligible for Additional Support according to the guidelines for Learn Devon direct provision.
17.2. Where a learner wishes to take advantage of the offer, it is the responsibility of the Subcontractor to ensure that auditable evidence is available to Learn Devon if requested.
17.3. Learn Devon will administer and manage the support in line with its usual guidance.
Records and information
18.1. The Subcontractor agrees to use the documentation provided by Learn Devon.
18.2. It is a requirement of this agreement that all records used to deliver this contract are available for inspection with appropriate notice by Learn Devon. At the conclusion of this agreement the Subcontractor agrees to provide all documents required as audit evidence to Learn Devon. Learn Devon will scan and maintain these in accordance with the contract requirements to aid audit but it remains the responsibility of the Subcontractor to maintain the original documents in accordance with the retention schedule determined by the ESFA. Documents from 2014/15 onwards must be held until 31 December 2030.
18.3. the deadline for returns for each month can be found at annex A.
18.4. Start paperwork for each learner should be received within 2 weeks of the learner start date and no later than the dates specified in section 3 of this agreement
18.5. Final / completion paperwork should be received within 2 weeks of the learner completing their learning and no later than the dates specified in section 3 of this agreement
18.6. Proof of achievement should be received within 6 weeks of the completion of learning and no later than the dates specified in section 3 of this agreement
18.7. The specific contract documentation is listed at Appendix B
19.1. Price (Distribution of Income)
- (a) For AEB, each funded learner must be at aged 19 or older on 31 August within the 2020-2021 funding year if the learning aim is not a traineeship or if starting a traineeship on or after 1 August of the academic year in which they have their 16th birthday.
- (b) For 16-18 provision each funded learner must be aged 16 by 1 August 2020
- (c) Learn Devon agree to pay the sums of money for the Agreed Qualifications / QCF Units / Courses as stated in the Scope of Delivery.
- (d) Adult Education Budget: Learn Devon will pay the Subcontractor the amount received by the ESFA in respect of each learner less the fees stated in the fees policy which is retained to cover the costs of administration and quality assurance.
- (e) The Subcontractor is responsible for ensuring that learners are eligible for funding.
- (a) Payment will normally be made within 30 days of a valid invoice being presented.
- (b) No payment will be made where the activity exceeds the maximum contract value as indicated in Sub-Contractor Profile. It is the Subcontractor’s responsibility to monitor and comply with this condition.
- (c) Where, through the Subcontractor failing to meet the specifications, there is a financial penalty incurred by Learn Devon, this will be reclaimed from the Subcontractor in accordance with this agreement.
- (d) Reconciliation will take place 5 times a year as stated below. Any deviation from performance will be considered according to the following factors:
- (a) Failure to provide a Valid Claim for AEB start as indicated in Appendix B will result in claw back of all funding paid out with respect to each learner.
- (b) Late notification of a learner withdrawal will result in a clawback of any monthly overpayment in accordance with ESFA funding rules.
- (c) Failure to provide a Valid Claim for AEB achievement will result in claw back of the achievement funding paid with respect to each learner.
- (e) Reconciliation dates – December 2020 / April 2021 / July 2021 / Sept 2021 / November 2021. Final reconciliation will take place in November 2021 where any deviation in performance will be determined and the Subcontractor shall be liable for settling the claim within 30 days of the advice given.
19.3. Other AEB
- (a) Payment of the on-programme funding received from the ESFA for each learner. The initial payment to the Sub-contractor is triggered by receipt of a Valid Claim for Start as indicated in Appendix B. The ESFA pay up to 80% of the total funding payable in monthly instalments to Learn Devon.
- (b) Payment of the achievement funding due from the ESFA for each learner on receipt of a Valid Claim for Achievement as indicated in Appendix B and in accordance with the fees policy. The ESFA pay Learn Devon 20% of the total funding on achievement.
19.4. Learner Support
- (a) Payment of all monies received by the ESFA with respect to Learning Support funds received subject to receipt of a Valid Claim for Learning Support being agreed plus a register to show the period for which the learner was in learning.
Employer fees, taxation and other payments
20.1. All Learner or Employer Fees collected by the Subcontractor remain the responsibility and ownership of the Subcontractor.
20.2. The Subcontractor is required to provide details of the contributions received by both learners and employers (either direct payments or in kind as defined by the ESFA) on an annual basis or at the end of the contract if this occurs earlier.
20.3. Subcontractors are expected to adhere to the ESFA guidance on financial contributions:
- (a) ‘Where the Agency has made a full contribution to the costs of a Learner’s programme – (i.e. fully funded) Subcontractors must not make compulsory charges to Learners for any delivery of the learning activity funded by the Agency. This includes: administration, registration, assessment, materials or examination costs whether incurred directly by the Subcontractor or charged by other organisations such as awarding organisations. This includes charges for identification passes, uniforms, tools and material where without them, a Learner cannot complete and achieve their learning aim.’
Agreement to the stated terms and conditions
|Organisation name||Learn Devon|
Annex A - Documentation Return Dates
|Return Name||Paperwork Cut-off Date||ESFA Return Date Deadline|
|Payments – Monitoring of loan facility – Loan bursary payments||26/08/2020||04/09/2020|
|Payments – Monitoring of loan facility – Loan bursary payments||28/09/2020||06/10/2020|
|Payments – Monitoring of loan facility – Loan bursary payments||28/10/2020||05/11/2020|
|Payments – Learner MI – In-year performance and monitoring – 2021/22 allocations – QAR 2019/20 – Monitoring of loan facility – Loan bursary payment||25/11/2020||04/12/2020|
|Payments – Monitoring of loan facility – Loan bursary payments||23/12/2020||07/01/2021|
|Payments and allocations – MI & national statistics – In-year performance and monitoring – Finalising 2021/22 allocations – Learner MI – Monitoring of loan facility – Loan bursary payment||27/01/2021||04/02/2021|
|Payments – Monitoring of loan facility – Loan bursary payments||24/02/2021||04/03/2021|
|Payments – Monitoring of loan facility – Loan bursary payments||31/03/2021||08/04/2021|
|Payments – Monitoring of loan facility – Loan bursary payments||28/04/2021||07/05/2021|
|Payments – Monitoring of loan facility – Loan bursary payments – Learner MI||26/05/2021||04/06/2021|
|Payments – Monitoring of loan facility – Loan bursary payments||28/06/2021||06/07/2021|
|MI & national statistics – In-year performance and monitoring – DfE 16-18 performance tables – Payments – Learner MI – Monitoring of loan facility – Loan bursary payment||28/07/2021||05/08/2021|
|R13 Final cut off for new enrolments||Monday ||Tuesday|
|Payments – MI & national statistics (Provisional full year) – Year-end performance and monitoring – Baseline modelling for 2022/23 allocations – Year end performance||06/09/2021||14/09/2021|
|R14 Final cut off for all achievement||Wednesday||Thursday|
|Final cut off for all achievement – Payments – Learner MI – MI & national statistics (Final full year) – Final 2020/21 performance and monitoring data – Informing 2022/23 allocations – QAR 20/21 – Final reconciliation – Final reconciliation of loan bursary||13/10/2021||21/10/2021|
Annex B – Specific Documentation Requirements
Adult Education Budget
AEB Start Payment
- Fully completed Learner details form.
- Completed initial Learner file form – in addition to the Learn Devon prescribed form, all initial, basic skills and diagnostic assessments shall be made available upon request for every learner on the programme.
- Copy of Register (demonstrating learner has started on the programme).
AEB Achievement Payment
- Fully complete final Learner file form (including last date attended, whether they completed learning, reason for leaving if a withdrawal and the Destination and Progression outcome).
- Copy of Certificate matching the qualification aims stated as part of the ILR Start Payment. This must be endorsed as a true and accurate copy or a Copy of Internal Verifiers report clearly confirming certification request where direct claims is held by the Subcontractor. (In respect of the final reconciliation it is a requirement that a Copy of the certificate listing is provided).
- Copy of register (showing completion, achievement and destination and progression codes).
AEB Targeted agreed project work.
- Fully completed Learner details and file – projects and one day courses form (including last date attended, whether they completed learning, reason for leaving if a withdrawal and the Destination and Progression outcome).
- In addition to the Learn Devon prescribed forms, an Individual Learning Plan along with any initial, basic skills and diagnostic assessments shall be made available upon request for every learner on the programme (as appropriate). This must also evidence proof of learning in line with the nonregulated provision requirements.
- Copy of Register (showing completion, achievement and destination and progression codes).
One day courses and work shops
- Fully completed Learner details and file form (including last date attended, whether they completed learning, reason for leaving if a withdrawal and the Destination and Progression outcome) – in addition to the Learn Devon prescribed form, any Individual Learning Plan, initial, basic skills and diagnostic assessments shall be made available upon request for every learner on the programme (as appropriate). This must also evidence proof of learning.
- Copy of Register (showing completion, achievement and destination and progression codes).
Longer Non-qualification courses
- Fully completed Learner details.
- Fully completed Learner file form (including last date attended, whether they completed learning, reason for leaving if a withdrawal and the Destination and Progression outcome).
In addition to the Learn Devon prescribed forms, an Individual Learning Plan along with any initial, basic skills and diagnostic assessments shall be made available upon request for every learner on the programme (as appropriate). This must also evidence proof of learning.
- Copy of Register (showing completion, achievement and destination and progression codes).
Targeted agreed project work.
- Fully completed Learner details and file form (including last date attended, whether they completed learning, reason for leaving if a withdrawal and the Destination and Progression outcome).
- In addition to the Learn Devon prescribed forms, an Individual Learning Plan along with any initial, basic skills and diagnostic assessments shall be made available upon request for every learner on the programme (as appropriate). This must also evidence proof of learning.
- Copy of Register (showing completion, achievement and destination and progression codes).
Annex C - Quality Policy for sub-contractors
Learn Devon expects all sub-contractors to work with Learn Devon to support the quality strategy. This appendix describes the Quality Strategy and the role we expect every sub-contractor to meet as part of the contracting requirements.
We recognise that the degree of participation will need to be considered in light of the contract size and expect a proportionate response. Where indicated (in red) some aspects are compulsory irrespective of contract size.
Learn Devon aspires to deliver an outstanding (Ofsted Grade 1) learning experience for all those who access the provision. Grade 2 (Good) was achieved February 2017.
Learn Devon is committed to a process of continuous improvement, engaging all staff, learners and other stakeholders appropriately in monitoring, evaluating and improving performance in the service standards and setting targets for enhanced delivery. The Service will be proactive in this engagement and will plan for and provide a variety of opportunities to obtain feedback on performance and proposals for development and change.
Key Performance Measures
1. Evaluation of learner impact
2. Learner and stakeholder feedback
3. Evaluation of staff performance
4. Self-assessment and quality improvement
1. Evaluation of learner impact
Learn Devon SMT set KPI measures for the whole service on an annual basis to drive forward performance in key areas. These are reviewed and actions agreed on a monthly basis by the senior management team. These include:
- percentage of learners from priority groups
- percentage of learners reporting increase well-being as a result of attending one of our courses
- percentage of learners achieving a qualification through our programs
- percentage of those entering employment, further education or volunteering who were unemployed at the start of the program
- percentage of learners who regard provision as good or excellent
Learn Devon’s overall success rate target is 2% above previous year’s performance or 5% above the national benchmark (whichever is greater). For sub-contractors these success rates are used to inform future contracting.
Additionally, each geography identifies starts retention and curriculum areas set success measures. The non-accredited provision we use RARPA. The performance of each qualification and curriculum area is accessible in real-time through EBS-dashboard and are reviewed at least monthly by both area coordinators and curriculum coordinators to identify areas of strength or concerns. Where appropriate these are raised with SMT members and wider action agreed.
2. Learner and stakeholder feedback
Learn Devon retains learner and stakeholder feedback through several mechanisms to provide a cohesive picture of the quality of the learner experience from different perspectives. The learning is central to the services delivered by Learn Devon. The feedback is reviewed termly by SMT and as indicated above the views of learners of the provision.
Learn Devon utilises the following mechanisms to obtain feedback
- feedback from ILPS*
- feedback from learner evaluation cards *
- Devon County Council complaints and compliments service *
- observation of teaching learning and assessment and quality monitoring visits **
- apprenticeship feedback
- learner surveys*
- analysis of online / social media feedback
* For sub-contractors Learn Devon will supply the materials necessary for this to take place. However, by agreement the sub-contractor may use their own processes on the understanding that the key areas of feedback are collated, analysed and presented to Learn Devon on a minimum of termly basis
** Learn Devon will carry out an annual observation of tutors working for the sub-contractor. The full policy is available on request – the purpose of the observation is to provide developmental feedback to the tutor in respect of the teaching experience of the learners.
Additionally, Learn Devon seeks to involve learner groups in the co-design of new programs
Learn Devon obtain some clear feedback through a number of formal mechanisms including:
- Reviews conducted at the end of each training contract
- regular approval/contract reviews
- Regular apprenticeship tri-partite reviews
- six monthly line manager surveys for apprenticeship programs
Learn Devon seeks staff feedback through a number of mechanisms to inform the needs of the service for improvement
- Staff undertake an annual and six-monthly appraisal
- Devon County Council carry out staff survey which all members of staff are invited to join and Learn Devon receives an analysis of this relevant to our service and the wider Council for benchmarking
- Learn Devon staff survey is carried out on a six-monthly basis*
* For sub-contractors it is a requirement that a regular (six monthly) survey is conducted. Learn Devon can support this through our own processes. If a sub-contractor has a similar process this can be used by prior agreement.
Learn Devon seeks feedback / proposals from our partners and subcontractors as part of our contractual process.
- Regular contract reviews
- Self-assessment process as part of the SAR request feedback on the services we are providing
3. Evaluation of staff performance
Learn Devon expects all staff to carry out their roles to the best of their ability to their professional standards and to the values described by Learn Devon.
- Individual appraisal using job descriptions and Learn Devon strategic plan and annual service targets together with DCC competencies as a basis for these conversations.
- One-to-one performance reviews held six weekly to provide oversight guidance and support to all staff
- For tutors assessors and internal verifiers, all are managed through the ‘Improvement of teaching and learning assessment process’ where each is observed by a senior professional on a regular basis and feedback provided.
4. Self-Assessment and Quality Improvment planning
Learn Devon completes a self-assessment review* throughout the academic year, noting in a formal report to governors on an annual basis and self-assessment report against OFSTED’s CIF also incorporates Matrix standards and is reviewed on a monthly basis by teams and quarterly by SMT.
Learn Devon completes a quality improvement plan* based on the outcomes of the EIF and is informed through the feedback gained through the processes described Where practice is identified which has significant impact on the organisation it is incorporated into the quality improvement plan by agreement of SMT.
The curriculum plan identifies opportunities to develop and improve provision based on regular performance reviews by the curriculum leads and as a result of feedback.
* Each sub-contractor must complete a self-assessment report and quality improvement plan using the template provided by Learn Devon. The purpose of this is to recognise good practice that can be shared and to identify areas of improvement that would benefit the learners. As part of the process Learn Devon would seek to support improvements, with staff of sub-contractors involved in delivering the contract being eligible to join relevant planned CPD activities at no cost.