Conditions

Conditions

Last updated 16 November 2016
Last updated 11/16/2016

This page sets out the Conditions for the Adult and Community Education fund.

The funding mechanism for the ACE Fund requires the TEC to impose a number of conditions on funding received by a tertiary education organisation (TEO).  We impose those conditions under section 159YC(2)(a) of the Education Act 1989 (the Act).

We may also impose other conditions on funding we consider are necessary to ensure that the specified outcomes in an Investment Plan that relate to the tertiary education programmes and activities for which funding is being given are being achieved or will be achieved.  We impose those conditions under section 159YC(2)(b) of the Act.

A TEO that receives ACE funding must comply with the conditions specified in its funding approval letter, and in the Act.  Those conditions are also set out below.

We also expect TEOs to comply with funding information provided as guidance.  

If we are satisfied on reasonable grounds that a TEO has not complied or is not complying with the conditions on funding we may revoke or suspend the funding under section 159YG of the Act. 

Conditions

If you receive Adult and Community Education funding you must comply with the conditions set out in your Plan funding approval letter. The conditions are also set out below:

NOTE: For your reference, you can view the archived ACE conditions (PDF, 270 Kb) that applied to 2015 funding only.

ACE001: TEO to supply information and report to the TEC

As specified in section 159YC(1) of the Education Act, it is a condition of a TEO receiving funding that the TEO will supply to the TEC, from time to time as required by the TEC, and in the form specified by the TEC, any financial, statistical, or other information that a TEO is required to supply.  

TEO to supply enrolment information to the TEC

If the TEO is an institute of technology and polytechnic (ITP) or a wānanga, the TEO must:

a)     supply to the TEC information about each learner enrolled in ACE provision by completing the fields in the Single Data Return (SDR), or the spreadsheets for reporting provided by the TEC;

b)     submit the information on or before the date specified by the TEC; and

c)     use the funding source code 23 in the SDR. 

If the TEO is a private training establishment (PTE), rural education activities programme (REAP) provider, or community organisation, the TEO must submit a report to the TEC for each academic year by 15 February of the following year. Each report must be submitted in accordance with the ACE in Communities Final Report template (XLS, 124 Kb)

If the TEO is a state school or state integrated school, the TEO must submit a report to the TEC 15 working days after 31 December. Each report must be submitted in accordance with the ACE in Schools Annual Report template (XLS, 88 Kb)

TEO to supply financial viability information to the TEC

The TEO must supply to the TEC information relating to the financial viability of the TEO, if the TEC notifies the TEO that the TEC requires that information. 

TEO to supply subcontracting information to the TEC

The TEO must supply to the TEC information about its subcontracting arrangements when the TEC requests it.

TEO to supply information to the TEC in certain situations

The TEO must notify the TEC immediately if:

a)     any record required to be kept under the Education Act 1989 has been lost or damaged; or

b)     the TEO is no longer able to comply with a condition of funding.

PTE to supply information to the TEC in certain situations

This condition applies to a private training establishment (PTE). 

The PTE must notify the TEC immediately if:

a)  its New Zealand Qualifications Authority registration or accreditation is cancelled; or

b)  an Insolvency Event (see below) occurs in relation to it is in liquidation or receivership; or

c)  it has a Change of Control (see below); or

d)  it transfers (or agrees to transfer) all or a material part of its assets to a third party; or

e)  there is any change to the persons who make up its governing body; or

f)  it merges with or acquires any other entity or business;

g)  it has changed its name; or

h)  the location or locations at which it delivers a programme or programmes has changed.

Definition of Insolvency Event

"Insolvency Event" means, in relation to a PTE, the occurrence of any of the following events:

a)  that PTE ceases or threatens to cease to carry on all or any material part of its business or operations;

b)  an application is made (which is not withdrawn, stayed or dismissed within 10 Business Days of being made) to a court for an order, or an order is made, or an effective resolution is passed to place the PTE in liquidation or voluntary administration previously approved in writing by the TEC;

c)  that PTE proposes to enter into, any general assignment, arrangement, compromise or composition with or for the benefit of any of its creditors with a view to avoiding insolvency except as previously approved in writing by the TEC;

d)  an encumbrancer takes possession, or a trustee, receiver, receiver and manager, administrator, liquidator, provisional liquidator, inspector under any companies or securities legislation, or similar official, is appointed in respect of that PTE or the whole or any material part of its assets, or the board of directors request that a creditor or any other person appoint a receiver to that PTE;

e)  a distress, attachment or other execution is levied or enforced upon, or commenced against, any assets of that PTE and is not discharged or stayed within 10 Business Days, except, in each case, when the TEC is satisfied that that PTE is contesting the same in good faith by appropriate proceedings;

f)  that PTE is declared or becomes insolvent, is unable to pay its debts when they fall due, or is presumed unable to pay its debts in accordance with any applicable legislation;

g)  that PTE suspends or stops or threatens to suspend or stop payments generally or a moratorium is agreed or declared in respect of or affecting all or any material part of its indebtedness;

h)  that PTE seeks or obtains protection from its creditors under any statute or any other law;

i)   that PTE is declared to be a corporation at risk under the Corporations (Investigation and Management) Act 1989;

j)   a statutory or judicial manager is appointed over all or any of the assets of that person;

k)  any recommendation is made by the Financial Markets Authority to the Minister of the Crown who is responsible for administration of the Corporations (Investigation and Management) Act 1989 that that PTE or any associated person of that PTE be placed in statutory management under that Act;

l)   all of the directors of that PTE resign, or signal their intention to resign; or

m) anything analogous or having a substantially similar effect to any of the events specified in paragraphs (a) to (m) above happens under the laws of any applicable jurisdiction in respect of that PTE. 

Definition of Change of Control

"Change of Control" means, in relation to a person (the "first person"), when a person acquires Control of the first person or when a person who controls the first person ceases to do so.

"Control" means, in relation to a person (the "first person"), the ability of another person (the "second person") to ensure that the activities and business of the first person are conducted in accordance with the wishes of the second person, whether through ownership of voting shares, contract or otherwise.  Without limitation, the direct or indirect beneficial ownership of more than 50% of the voting rights in a body corporate is deemed to constitute Control.

ACE002: TEO to be eligible to receive funding for ACE provision

The TEO must, at all times during the funding period, continue to be:

a)   an ITP;

b)   a wānanga;

c)   a PTE that specialises in foundation learning;

d)   a state school or state integrated school;

e)   a REAP provider; or

f)    a community organisation. 

ACE003: TEO receiving funding for ACE provision to remain quality assured

The TEO must (unless it is a community organisation), during the funding period, continue to be quality assured by:

a)     if the TEO is an ITP, wānanga, PTE, or REAP provider, the New Zealand Qualifications Authority; or

b)     if the TEO is a state school or state-integrated school, the Education Review Office.

ACE004: TEO to ensure learner enrolled in ACE provision is eligible

The TEO must ensure that each learner enrolled in a programme of study or training funded by ACE funding is and continues to be:

a)   a New Zealand citizen or resident of New Zealand; and

b)   16 years of age or over; and

c)    not a full-time secondary school student.

Exceptions

The TEO may enrol and claim ACE funding for a learner who does not meet the above criteria only if the learner is:

a)   under the age of 16 years and participating with adults in family-based provision; or

b)   a full-time secondary school student who:

        (i)    is 16 years of age or over;

        (ii)   receives ACE provision outside normal school hours; and

        (iii)   has obtained approval from the relevant school principal; and

        (iv)   the TEO has obtained approval from the TEC to enrol. 

ACE005: TEO to ensure ACE programme, qualification or course is eligible

The TEO must ensure that a programme of study or training in which an eligible learner is enrolled is, and continues to be, provision that is designed to:

a)   target learners whose previous learning was not successful; and

b)   raise foundation skills; and

c)   strengthen social cohesion, enhancing a learner’s ability to participate in society and economic life.

Exceptions

A programme of study or training in English for Speakers of Other Languages, New Zealand Sign language or Te Reo Māori does not have to meet all of those criteria.

ACE006: TEO to work with local communities

The TEO must work with local organisations, peak bodies, groups, and communities, including other TEOs involved in ACE provision, to identify and meet community learning needs.

ACE007: TEO to set appropriate fees

The TEO must:

a)   ensure that the level of fees it sets for ACE programmes of study or training does not prevent individuals from enrolling in those programmes; and

b)   charge the same fee to each learner participating in an ACE programme of study or training funded by ACE funding.

ACE008: TEO to provide necessary equipment

The TEO must pay for the necessary equipment, infrastructure and hardware required to deliver a particular programme. The TEO must not require the costs of essential equipment, including computers, to be met through the “course-related costs” component of the Student Loan Scheme, as a condition of enrolment for learners.

For the purposes of this condition, "equipment, infrastructure, and hardware":

a)   means items that can be used by successive intakes of learners; and

b)   does not include personal items that are provided for individual learners' use and that the TEO does not retain for the next intake of learners.

ACE009: TEO that is an ITP or wānanga to provide ACE programmes and activities aligned with ACE priorities

This condition applies to an ITP or a wānanga that receives funding for ACE provision.

The TEO must design and provide ACE programmes of study or training that primarily focus on:

a)   the learning of foundation skills; and

b)   the re-engagement of learners whose previous learning was not successful; and

c)   ensuring the progression of learners through formal tertiary education.

ACE010: TEO that is a PTE, REAP provider, or community organisation to provide ACE programmes and activities aligned with ACE priorities

This condition applies to a PTE, REAP provider, or community organisation that receives funding for ACE provision.

The TEO must provide design and provide ACE programmes of study or training that primarily focus on:

a)   literacy, digital literacy, and/or numeracy; or

b)   English language, including English for Speakers of Other Languages; or

c)   New Zealand Sign language; or

d)   Te Reo Māori. 

ACE011: TEO that is a state or state-integrated school to provide ACE programmes and activities aligned with ACE priorities

This condition applies to a state school or state integrated school that receives funding for ACE provision.

The school must:

a)   design and provide ACE programmes of study or training that primarily focus on:

      (i)   literacy, digital literacy, and/or numeracy; or

      (ii)   English language, including English for Speakers of Other Languages; or

      (iii)  New Zealand Sign language; or

      (iv)  Te Reo Māori; and

b)   prioritise learners with the highest need.  It is expected that at least 50% of the learners enrolled in the school's funded ACE provision will:

      (i)   identify as having English language needs; or

      (ii)   have low or no formal qualifications; or

      (iii)  identify as Māori or Pasifika.

ACE012: TEO not to use ACE funding for groups of school students

The TEO must not use ACE funding to provide programmes of study or training to a group or class of secondary school students, even if the programme is provided outside school hours.

ACE013: TEO not to use ACE funding for professional development

The TEO must not use ACE funding to provide professional development courses for ACE teachers and tutors.

ACE014: TEO to make records available for inspection

The TEO must provide the TEC with access to its premises, employees, and information for the purposes of:

a)   inspecting the records that the TEO must keep; or

b)   auditing the TEO's compliance with conditions of funding and requirements in the Education Act 1989.

ACE015: TEO not to subcontract delivery

The TEO:

(a)   must not subcontract the provision of any programmes of study or training or other activities for which the TEO receives ACE funding without the TEC's prior written consent; and

(b)   must, if the TEC provides the TEO with written consent:

       (i)  comply with any conditions imposed by the TEC on the TEC's consent to subcontract; and

       (ii)  ensure that the subcontracted party does not further subcontract any provision; and

       (iii)  remain accountable to the TEC for any subcontracted party's use of ACE funding.

ACE016: TEO not to use other funding from the Crown to fund ACE provision

The TEO must:

a)   not (without TEC's prior written consent) seek or obtain funding from any Crown source other than the TEC to fund provision that is funded under the Determination of Design of Funding Mechanism: Adult and Community Education, dated 5 August 2014; and

b)   notify the TEC immediately if it becomes aware of any circumstances that might result in a breach of sub-paragraph (a) of this condition.   

ACE017: TEO to use funding responsibly

The TEO must use the ACE funding it receives:

a)   lawfully, responsibly, and for the purposes for which the funding is provided; and

b)   in a manner consistent with the appropriate use of the public funds.

ACE018: TEO to repay overfunding

If the TEO receives funding for ACE provision that is greater than it should have been, or that it was not entitled to receive, the TEO must treat the amount of overfunding as a debt due to the Crown that:

a)   is repayable on demand; and

b)   may be set-off against all or any funding, or any sum of money payable by the TEC to the TEO.

Definition of when funding is greater than it should have been – TEOs other than schools

An ITP, wānanga, PTE, REAP provider, or community organisation will have received funding that was greater than it should have been if, for example, it delivered less ACE provision than it was funded for. In that situation, the TEC will recover the difference between the amount of provision delivered, and the funding provided.

Definition of funding is greater than it should have been – schools

A state school or state-integrated school received funding that was greater than it should have been if, for example, the school delivered less ACE provision (calculated in hours) than it was funded for.  In that situation, the TEC will recover the difference between the amount of provision delivered, and the funding provided.  The TEC will determine the amount of funding delivered using an hourly rate of $7.27.

For example, a 10-hour course for a planned number of 12 learners is funded for $872.40 ((10 x $7.27) x 12).   The school only enrols 10 learners at $727.00.  The TEC will recover the difference of $145.40. 

ACE019: TEO to repay funding if funding approval revoked

If the TEC revokes some or all of a TEO's ACE funding under section 159YG of the Education Act 1989 before some or all of the funding has been used or contractually committed towards the purposes for which it was provided, the TEO must treat the unexpended or uncommitted portion of funding as a debt due to the Crown that is:

a)   repayable on demand, and

b)   may be off-set against all or any funding, or any sum payable by the TEC to the TEO.  

ACE020: TEI to maintain enrolment records

This condition applies to a tertiary education organisation (TEI) that receives ACE funding.

The TEI must keep accurate and up-to-date records of enrolments in accordance with any requirements developed by the TEC.

ACE021: TEO to make information available to TEC and its appointed representative for the purpose of monitoring

By accepting funding from the TEC, the TEO is deemed to have acknowledged that one of the TEC’s statutory functions is to monitor the performance of organisations receiving funding from the TEC, and that it is a statutory condition that the TEO must maintain certain records and supply certain information to the TEC.

Accordingly, by accepting funding from the TEC the TEO is deemed to have acknowledged that the TEC needs access to certain information to enable it to undertake its monitoring activities and, as such, the TEO authorises the TEC (and any representative acting on behalf of the TEC) to have reasonable access to information needed by the TEC to undertake its review and monitoring function.

This includes the TEO authorising the TEC and the TEC’s appointed representatives to have reasonable access to the TEO’s premises and any premises where the TEO’s records are kept for the purpose of enabling monitoring and review activities to be undertaken at those premises.  

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