The Higher Education Act 2004 (HEA 2004) provides for the regulation of higher education tuition fees. Generally speaking higher education institutions are permitted to set their own fees for their courses. However, if an institution receives funding from HEFCW then restrictions may be imposed as to the level of fee that can be charged. The Welsh Ministers have used their powers under section 68 of the Further and Higher Education Act 1992, section 88 of the Education Act 2005 and section 27 of HEA 2004 to impose conditions on HEFCW which require it in turn to impose conditions on those institutions that it funds as to the maximum level of fees they can charge.
These conditions are set out in section 28 of HEA 2004, which provides that where a 'qualifying person' undertakes a 'qualifying course' the institution may only charge fees up to a basic amount specified in regulations. However if the institution has an approved plan in relation to tuition fees under Part 3 of HEA 2004, it may charge fees up to a higher amount specified in regulations. In accordance with section 41 of HEA 2004, a 'course' in this context does not include any postgraduate course, except a course of initial teacher training, and therefore the maximum fee will generally only apply to first degree or equivalent courses.
If an institution charges higher fees than are permitted under section 28 then HEFCW may impose financial requirements on the relevant institution, such as requiring repayment of sums paid to the institution, withholding sums awarded but not yet paid, or refusing to award any other grant, loan or other payment.
The Student Fees (Amounts) (Wales) Regulations 2011 (SI 2011/884) set out the basic and higher amounts of maximum fee, currently £4,000 and £9,000 respectively. There are some variations in these figures for certain specific courses such as sandwich courses and courses of initial teacher training.
The Student Fees (Qualifying Courses and Persons) (Wales) Regulations 2011 (SI 2011/691) prescribe what is a 'qualifying course' and who is a 'qualifying person' for the purpose of the maximum fees. Qualifying courses are full-time higher education courses designated under section 22 of the Teaching and Higher Education Act 1998 and provided at publicly funded institutions in Wales. A list of the courses designated under section 22 is currently set out in Schedule 2 to the Education (Student Support) (Wales) Regulations 2013 (SI 2013/3177). As mentioned above, the maximum fee in section 28 of HEA 2004 will not generally apply to postgraduate courses.
A person will not be a 'qualifying person' for the purposes of section 28 of HEA 2004 if he or she already holds a higher education qualification and the course in question leads to an equivalent or lower qualification. A list of ‘qualifying persons’ is set out in the Schedule to the Student Fees (Qualifying Courses and Persons) (Wales) Regulations 2011. The categories of student who can benefit from regulated fees are, in general, students settled in the UK; refugees and persons granted humanitarian protection or discretionary leave; European Economic Act (EEA) workers and EU nationals. People outside these categories, for example students from outside the EEA, are not qualifying persons and so do not benefit from the maximum tuition fee provisions. Institutions can therefore charge such persons more than £9,000. Section 29 of HEA 2004, the Education (Fees and Awards) Act 1983 and the Education (Fees and Awards) (Wales) Regulations 2007 (SI 2007/2310) also make provision for this.