Jim Carley, Managing Director, Carley Consult Ltd

It’s been nine months since the most recent RoATP application window shut, and we’ve since been waiting with bated breath for news about how the register may re-open and be refreshed.

RoATP has been widely criticised for enabling too many providers to register, creating an administrative burden for both the ESFA and Ofsted alike.

Too many seemingly new and untested providers qualified whilst, in contrast, other high performing and outstanding providers struggled to navigate the process. All the talk now is about how the ESFA intend to consolidate the register, but that may be a far harder exercise to pull off than it sounds.

The ESFA have indicated that they will launch some form of consultation exercise in terms of how the register may be refreshed, with a view to potential new application window later in the year.

This may all hinge, however, on how in-depth such a consultation exercise proves to be in practice, and how significant the scope of the resultant refresh might be. So, let’s consider a few of the square pegs which the ESFA may potentially have to fit into round holes.

Square Pegs, Round Holes

First off, we need to remember that RoATP is a procurement tool, whereby registration is a prerequisite to receive apprenticeship funding. RoATP has to operate within the parameters of the Public Contract Regulations 2015. This means that commissioning must be open, impartial and transparent.

To put it another way, there cannot be any unreasonable barriers which may prevent a market entrant from joining the register, so long as they have the wider capability and competence to deliver.

Those expecting a refreshed RoATP to only accommodate longstanding ESFA providers are, as such, likely to be disappointed.

The ESFA can’t introduce new and more exacting criteria as part of the RoATP application without also mirroring the same criteria in its funding agreements and rules.

By way of a simple illustration, there is no current minimum contractual obligation for ESFA providers to have a Grade 1 Ofsted rating. The ESFA would therefore not be able to make this a mandatory RoATP requirement, without this also becoming a minimum requirement across their funding rules and agreements.

In this respect, there are clear limits in how high they can raise the application bar, without reforming apprenticeship requirements more broadly.

Failure to Renew RoATP Status

Playing Devil’s Advocate, what then happens if an incumbent apprenticeship provider fails to renew its RoATP status under the impending refresh?

In theory that provider should lose its apprenticeship contract with immediate effect and a scenario whereby learners could be displaced mid-way through their apprenticeship could foreseeably arise.

Who refunds the employer contribution in this scenario? How many providers could go to the wall, given that a continued ability to deliver apprenticeships is likely to be a business critical factor?

Conditions of Funding

Furthermore, if the ESFA attempted to terminate a provider on this basis, how confident are they on their own legal position? There is surprisingly little reference made to RoATP in the ESFA’s Conditions of Funding.

Does the ESFA have a contractual right to amend the criteria of RoATP where this may adversely affect incumbent providers?

Could a provider take the ESFA to court in this situation, for breach of contract, and would they win?

No doubt there are some Department for Education lawyers looking at this very closely. And if a provider can continue to deliver an apprenticeship contract without being on RoATP, that would almost certainly be a death nail for the entire register.

Logistical Complexity

Let’s also not forget about the logistical complexity of running a RoATP refresh. There are 2,596 current RoATP providers and let’s hypothesise that they all apply for the refresh window. Let’s also say, somewhat speculatively, that it takes the ESFA one day of manpower to evaluate each application.

The resultant evaluation workload could keep a team of 12 procurement officers occupied for a full year, at a fag-packet cost of between £250,000 and £500,000. Do the ESFA have that kind of budget and bandwidth at their disposal?

Between a Rock and a Hard Place

Taking all of this into account, how likely are we to see a fundamental refresh of RoATP in 2018? Yes, the current process has challenges to overcome. That said, with potential pitfalls around every corner, the ESFA may be tempted to keep the process relatively simple, and perhaps not as radically changed from where it is today.

The agency is well and truly caught between a rock and a hard place, and these dilemmas may well explain why we have been waiting so long for more news.

Let’s hope though that the wait doesn’t last too much longer!

Jim Carley, Managing Director, Carley Consult Ltd

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