Policies

1. The West Midlands Combined Authority (WMCA) is a strategic authority with powers over transport, economic development, regeneration and skills. The authority consists of seven direct constituent members, Birmingham, Coventry, Dudley, Sandwell, Solihull, Walsall and Wolverhampton along with the Mayor of West Midlands appointed by residents. In addition, there are thirteen non-constituent members, as well as ten local authorities.  

 

1. Part of the WMCA’s remit includes the delivery of education and skills provision to respond to the needs of residents to employers to support inclusive growth e.g. jobs, upskilling and economic growth. It achieves this through a range of skills portfolios as part of WMCA’s devolved powers e.g. Adult Education Budget and lead/ accountable body status.  

 

1. Through our accountable body status, WMCA must ensure that we exercise appropriate control over the funding for which we are responsible. This means that we must ensure: 

• Public funds are properly spent. 
• Services/activities are delivered within the terms of agreements. 
• Contract and funding for the taxpayer is achieved; and  
• That funding is used to deliver the policies and priorities agreed upon by the board of WMCA and its delegated authorities. 

 

1.4 In addition to being responsible for funding the delivery of education and training the WMCA must also be satisfied as to the appropriate delivery of services, provision of accurate data, and management of the services, in accordance with the agreements and or contracts through which funding is provided, to be confident that the requirements at 1.3 are being met. 

 

1.5 The provision of public funding is contingent upon the WMCA being satisfied that a proposed Provider is not “high-risk,” as set out in this policy and as set out in the agreements and/or contracts that a Provider holds with the WMCA. 

 

2. Purpose of this policy 

 

2.1 This policy sets out and defines what the WMCA means by a ‘high-risk’ Provider, the possible actions the WMCA may take as a result and the WMCA’s decision making process. 

 

2.2 For the purposes of this policy a Provider, or prospective Provider, means any organisation, public or private, which seeks to access or is accessing WMCA funding. A “high-risk provider” means a Provider that the WMCA consider presents an elevated risk to the proper and agreed use of public funds as a consequence of falling within one or more of the criteria set out in paragraphs 4 and 5 of this policy. 

 

2.3 Where a provider is deemed to be high risk, the WMCA will also use this policy when deciding whether to: 

• Refuse to register the Provider on any register used by the WMCA as a point of entry to specific skills portfolios e.g. AEB, AEB declared sub-contractor list, Apprenticeship levy transfer. 
• Remove a Provider from any register used by the WMCA as a point of entry to specific skills portfolios e.g. AEB, AEB declared sub-contractor list, Apprenticeship levy transfer.  
• Refuse to accept a Provider’s bid(s) for funds - and/or exclude a Provider from otherwise receiving funding either directly from the WMCA, through a subcontract (through removal from one or more of the WMCA registers), or through any type of contract or agreement with the WMCA in accordance with contract terms and conditions. 
• Terminate one or more or all the contracts or agreements held by the Provider with the WMCA. 
• Restrict or withdraw funding and/or stop payments on either a temporary or permanent basis. 

 

3. Scope of the policy 

 

3.1 The policy applies to public and private sector Providers (including Providers operating as or subcontractors), where procured services are funded by, or grant funding is provided by any of the following funding streams where the WMCA is the lead/ accountable body (please note this list is not exhaustive and may be updated): 

 

• Adult Education Budget 
• Connecting Communities 
• Digital Bootcamps 
• Free Courses for Jobs 
• WMCA Apprenticeship levy transfer scheme 
• WMCA Apprenticeship levy for its training of current and future workforce 
• Funding related to support for the unemployed 
• Funding related to support for the employed 
• UK Community Renewal Fund 
• UK Shared Prosperity Fund 
• Multiply 
• Lottery funding 
• Commonwealth Games (CWG) legacy funding 

 

3.2 Where the WMCA does not have a direct relationship with a Provider because they are a subcontractor, but the WMCA considers the subcontractor to be a High-Risk Provider, the WMCA may require the Lead Provider to take appropriate action such as immediate removal of the High-Risk Provider as a sub-contractor from all WMCA Contracts and/or the WMCA may take action directly against the Lead Provider. 

 

3.3 This policy sits alongside and supplements the Funding Rules, funding regulations, published guidance and processes (including determining access to all registers operated by the WMCA) agreements, rules, relevant conditions of grants and contracts for services that are used in the delivery and management of the funding streams specified.  

 

4. Circumstances under which WMCA determines a Provider to be a High-Risk Provider and access to funding may be refused, reduced, cease or an existing funding stream may be withdrawn. 

 

4.1 The following paragraphs set out the circumstances where the WMCA will consider a Provider to be a High-Risk Provider and as a result will not consider funding or accept applications and/or bids for funding, acting as set out in paragraph 6.1. Paragraph 4.2 sets out the WMCA’s legal obligations under the Public Contracts Regulations 2015 as regards contracts procured under those regulations, paragraph 4.3 sets out the circumstances and criteria which apply to applications to the registers and non-procured contracts/agreements and paragraph 4.4 sets out the circumstances which apply to applications to the registers and to procured and non-procured contracts/agreements. 

 

4.2 Contracts procured by the WMCA under the Public Contract Regulations 2015 

Regulation 57 of the Public Contracts Regulations 2015 sets out specified circumstances in which a contracting authority (in this case the WMCA) is obligated to exclude an economic operator (in this case a potential Provider) from participation in a procurement procedure. If one of the circumstances in Regulation 57 applies, we will consider the Provider to be a High-Risk Provider. The WMCA is bound by these regulations and must operate accordingly within the parameters of the law; observing the mandatory exclusions specified without exception and exercising discretion where it is permitted to do so. 

 

4.3 Non-Procured Contracts/Agreements 

For all applications to the registers, and agreements/contracts that have not been/are not subject to the Public Contract Regulations 2015 the WMCA will use the same exclusions as set out in regulation 57 of the Public Contracts Regulations 2015 to determine whether a provider is a High-Risk Provider. If one of the circumstances applies the WMCA will take the action as detailed in paragraph 6.1 against a Provider and will refuse access to funding, reduce, cease or withdraw existing funding. 

This applies if any of the directors, shadow director, trustees, or any person convicted is a member of the administrative, management, or supervisory body of the Provider or who has powers of representation, decision, influence, management, or control of the Provider organisation including through a blind trust1 a partner organisation or a parent organisation, have been convicted of one or more of the offences specified within the mandatory exclusions unless the conviction is regarded as spent within the meaning of the Rehabilitation of Offenders Act 1974 (and subsequent amendments). 

 

4.4 All contracts/agreements (including procured and non-procured) 

The WMCA will consider a Provider to be a high-risk provider and will take the action as detailed in paragraph 6.1 (Application of the Criteria) against a Provider if any of the directors, shadow directors, trustees, or any person convicted is a member of the administrative, management or supervisory body of the Provider or who has powers of representation, decision, influence, management or control of the Provider organisation including through a blind trust, a partner organisation or a parent organisation have been convicted of one or more of the offences specified below unless the conviction is regarded as spent within the meaning of the Rehabilitation of Offenders Act 1974 (and subsequent amendments): 

1986. An offence under sections 6A, 206 to 211,251 and 353 to 360 of the Insolvency Act 1986.
1987. An offence under sections 386 – 389 and 993 of the Companies Act 2006.

III. An offence under sections 15, 21 and 22 of the Immigration and Asylum Act 2006. 

2016. An offence under sections 34-38 of the Immigration Act 2016.
2017. A criminal offence under the Health and Safety at Work etc Act 1974.

4.4.1 In addition, a Provider will be considered to be a high-risk provider and the WMCA will take action as detailed in paragraph 6.1 where any of the directors, shadow directors, trustees, or any person who is a member of the administrative, management or supervisory body of the Provider or who has powers of representation, decision, influence, management or control of the Provider organisation including through a blind trust, a partner organisation or a parent organisation: 

1. Is bankrupt or is the subject of insolvency or winding-up proceedings, where its assets are being administered by a liquidator or by the court or where it is in an arrangement with creditors;
2. Have been served with a Public Interest Winding Up petition under section 124A of the Insolvency Act 1986;

III. Are subject to a director disqualification order under the Company Directors Disqualification Act 1986 or are subject to a Bankruptcy Restriction Order; 

1. Are subject to a director disqualification order under the Company Directors Disqualification Act 1986 and the WMCA has reasonable cause to suspect that the Director is seeking to apply under a different organisation;
2. Have in the opinion of the WMCA (acting reasonably), negligently, or deliberately provided, at any time, misleading information to the WMCA that may influence decisions regarding funding or inclusion on any WMCA register.

 

4.4.2 The WMCA will consider a Provider to be a high-risk provider and not fund or permit access to funding where a partner organisation, parent organisation, or connected party2 has negligently or deliberately provided misleading information to the WMCA which could influence decisions regarding any WMCA funding or inclusion on any WMCA register to the benefit of the Provider. 

 

4.4.3 The WMCA will consider a Provider to be a high-risk provider if it transpires the Provider is making claims for payments that are ineligible for funding or amounts claimed cannot be substantiated or evidenced as a consequence of an investigation or review by the WMCA. As a result, the WMCA will not fund or permit access to funding as set out in this policy and the terms of the relevant contract/agreement. 

 

4.4.4 The WMCA will consider a provider to be a high-risk provider where a director,  

shadow director, the person in control or a person with powers of representation, influence or management (at this Provider or a previous organisation) where the WMCA reasonably considers there is evidence of fraud, irregularity, negligence or dishonesty, or where any offences lead to imprisonment, that relate to intolerance and/or hatred on the grounds of race/religion or sexual orientation, any safeguarding concern, any activity involving viewing, taking, making possessing or publishing any indecent photograph or image of a child or vulnerable adult. As a result, the WMCA will not fund or permit access to funding to the provider. 

 

4.4.5 The WMCA will consider a provider to be a High-Risk Provider and not fund or permit access to funding to the Provider where the WMCA considers that there is evidence that the Provider has not conducted the appropriate Disclosure and Barring Service (DBS) checks. 

 

5. Circumstances under which WMCA determines a provider to be a High-Risk Provider and funding may be refused, reduced, cease, withdrawn, or terminated

 

5.1: A Provider may be a High-Risk Provider where one or more of the following criteria are met. In these circumstances the WMCA will determine what action may be taken by this policy and the terms and conditions of the relevant agreement/contract. This may result in one or more of the actions in paragraph 6.1 being taken. 

 

5.1.1: The Provider: 

1. Is in material or significant breach (as determined by the relevant

agreement/contract) of one or more terms of any funding agreement or  

contract with the WMCA and has failed or is unable to comply with WMCA  

requirements or additional conditions to improve or rectify the breach to the  

satisfaction of the WMCA; 

1. Has previously had, in relation to any WMCA or ESFA monies, a contract for services, a grant funding agreement, or an apprenticeship agreement terminated as a consequence of falling within one or more of the criteria specified in this policy and has not been able to present sufficient evidence such that the WMCA or ESFA can be satisfied that there would be no risk to public funds, were funding provided;

III. Has a director, shadow director, person in control or with powers of representation, influence, or management which has held or holds an equivalent or reasonably comparable position in another Provider/organisation which has had (in relation to any WMCA or funding stream monies) a contract for services, a grant funding agreement or an apprenticeship agreement with the WMCA, ESFA, DfE or other Devolved Authority terminated early for one or more of the criteria specified in this policy; 

1. Has changed ownership or control, or appoints a director, shadow director, person in control or with powers of representation, influence, or management where the individual falls within one or more of the criteria specified in paragraphs 4 or 5, without informing the WMCA within the period of time stipulated within its agreement(s) or contracts and/or gaining the prior written consent of the WMCA where agreements/rules/contracts for services require this;
2. Has a director, shadow director, person in control or with powers of representation, influence, or management who is subject to a ban under s.128 of the Education and Skills Act 2008 unless the Provider has submitted to the WMCA sufficient and compelling evidence that this will not be to the detriment of the education or skills to be delivered;
3. Has a director, shadow director, person in control or with powers of representation, influence, or management who has been removed from a charity commission, charity regulator or appear on the Register of Removed Trustees;

 

VII. Has been subject to prior investigations where the WMCA, ESFA, DfE, or other Devolved Authority has found grounds to act or is subject to an ongoing investigation 

VIII. No longer meets the entry criteria or conditions of acceptance for registers operated by the WMCA in order to allow access to funds or is removed from one or more of the WMCA registers. Providers must ensure they have appropriate systems in place to ensure that any changes to the statements and declarations made as part of a register entry process can be identified and reported as required to the WMCA. Failure to do so determines the Provider as high-risk. 

1. Has been assessed by OFSTED as delivering training/learning as ‘inadequate in part’ or ‘inadequate overall’ or has assessed the Provider as having made ‘insufficient progress’ or ‘ineffective for safeguarding’ after a monitoring visit.
2. Has been considered by OFSTED as having ineffective safeguarding or the Provider has made insufficient progress in safeguarding and identified a significant risk to learners or the Provider does not have regard to guidance published, from time to time, by the Secretary of State for Education which sets out the expectations in relation to safeguarding practice.

 

XII. Has a director, shadow director, person in control or with powers of representation, influence, or management at a provider that has been considered by OFSTED as delivering training/learning as ‘inadequate in part’ or ‘inadequate overall’ or has assessed the Provider as having made ‘insufficient progress’ or ‘ineffective for safeguarding’ after a monitoring visit. 

XIII. Has a director, shadow director, person in control or with powers of representation, influence, or management at a Provider who has been considered by OFSTED as having ineffective safeguarding or the Provider has made insufficient progress in safeguarding and identified a significant risk to learners or the Provider did not have regard to guidance published, from time to time, by the Secretary of State for Education which sets out the expectations in relation to safeguarding practice. 

XIV. Has failed to repay any funding due to the WMCA or any other public body in excess of £50,000 including through a subcontract arrangement. 

1. Has been or is subject to any of the following and this constitutes a breach of the terms and conditions of the relevant agreement/contract and/or the circumstances leading to these falls within the criteria specified in paragraph 5 of this policy:

• Involuntary withdrawal of Initial Teacher Training Accreditation; 
• Removal of funding by the Office for Students; 
• Removal from any professional or trade registers which would impact the ability to deliver the agreed education/training. 

 

XVI. Has a director, shadow director, person in control or with powers of representation, influence, or management who is subject to a prohibition order from the Teaching Regulation Agency on behalf of the Secretary of State for Education unless the Provider has submitted to the WMCA sufficient and compelling evidence such that the WMCA is satisfied that this would not put public funds at risk. 

 

5.1.2 WMCA records indicate a demonstrable and consistent record of previous underperformance, or the Provider has shown significant or persistent deficiencies in the delivery of agreed activity and the WMCA has not received sufficient assurance of an acceptable level of improvement. The WMCA reserves the right to require the Provider, at its own cost, to seek this assurance through an independent third party to be agreed upon by the WMCA. This includes but is not limited to: 

1. Recurrent irregular spending or mismanagement of funds where the WMCA has raised concerns and the Provider has not responded to the satisfaction of the WMCA.
2. Delivery of poor quality services/activity, management, or data provision that does not meet the standards expected by the WMCA as determined by the WMCA or another external quality assurance body.

III. Has been/is subject to the application of other sanctions and action has not resulted in the desired effect or there is insufficient assurance of any meaningful improvement and the WMCA considers the evidence available significantly undermines the contractual relationship between the WMCA and the Provider. 

1. Does not engage with WMCA processes and/or provides misleading/ inaccurate/incomplete/inadequate data or information indicating systemic inadequacies in capacity or capability to deliver.
2. Is guilty of serious misrepresentation in providing any information to the WMCA.
3. Is unable to meet and/or maintain the financial health requirements of the relevant funding stream(s) to the satisfaction of the WMCA.

VII. Failing to pass payments onto other organisations as required by the relevant funding stream, this could include but is not limited to employers, subcontractors or end point assessment organisations. 

 

6. Application of the criteria 

 

6.1 Where one or more of the criteria set out in paragraphs 4 and 5 apply to any Provider the WMCA operating within the processes set out for the relevant funding stream, may exercise its right, acting reasonably and proportionately, and in accordance with the law, to take whatever action it deems necessary (considering the criteria set out in paragraphs 4 and 5) including but not limited to one or more of the courses of action below: 

 

1. Refuse to register the Provider on any register used by the WMCA as a point of entry to specific skills portfolios e.g. AEB, AEB declared sub-contractor list, Apprenticeship levy transfer 

1. Refuse to accept a Provider’s bid(s) for funds - and/or exclude a Provider from otherwise receiving funding either directly from the WMCA, through a subcontract (through removal from one or more of the WMCA registers), or through any type of contract or agreement with the WMCA for funding; 

1. Terminate one or more or all contracts or agreements held by the Provider with the WMCA where contracts/agreements allow; 

1. Restrict or withdraw funding and/or stop payments on either a temporary or permanent basis. 

 

6.2 Where action is being pursued under this policy the Director of Skills responsible for the policy or their nominated representative(s) must be notified of this intention, consulted, and fully involved in the decision making process on behalf of the Board of WMCA in line with existing delegated authorities. 

 

7. The Decision Making Process 

 

7.1 The policy does not sit and operate within a standalone process but is used within existing management and monitoring processes and established governance arrangements, relevant to the funding stream(s) concerned.  

 

7.2 The WMCA as part of its decision making process will consider the level of risk associated with the provision of funding to the Provider, any legal restrictions and consider information the WMCA has from its own knowledge/intelligence from records it maintains, information already in the public domain and accessible records held by other organisations. 

 

7.3 The Provider concerned will be notified of the intention to act under the policy and any relevant funding agreement/contract for services. The Provider will be given the opportunity to make representations in all cases unless the WMCA has a right to immediate termination as set out in the relevant contract/agreement before a final decision is made. Decisions will be made on a case-by-case basis. In all cases, the decision and rationale will be recorded ensuring transparency and fairness. 

 

7.4 If a Provider falls within one or more of the criteria set out in paragraphs 4 and 5, the WMCA may exercise its right to act as set out in paragraph 6 for a period of time to be determined by the WMCA acting reasonably and proportionately up to a maximum of 3 years except where the Rehabilitation of Offenders Act 1974 (and subsequent amendments) applies. 

 

7.5 The WMCA will inform the Provider of the decision and the reasons for it, except in limited circumstances where the WMCA believes fraud has occurred or the WMCA concludes that to do so could prejudice or undermine an investigation. 

 

7.6 The WMCA’s decision is final and there is no appeal process to the WMCA. If a Provider feels that due process has not been followed there is a complaints procedure. Any complaint arising shall be resolved in accordance with WMCA Complaints Procedure.   

 

Policy Date – October 2023