Lapsing provisions - Episode 2 podcast transcript

Podcast published: 28 November 2024

Kai Rottmann: Hello everyone and welcome to ASQAcast, ASQA’s official podcast and your avenue to being informed on all things ASQA. It’s Kai Rottmann here and I'm pleased to welcome Jacqui back for episode 2 on lapsing provisions. In this episode, we will cover how to make an application to extend your measurement period, including the requirements of the application and what decisions ASQA can make. Thanks for joining me again today Jacqui for Episode 2.

Jacqui Pellow: My pleasure Kai.

Kai Rottmann: Terrific. So Jacqui, last episode you explained how if a provider doesn't deliver VET training or assessment for more than 12 months, then their registration will automatically end. But I think you also mentioned that there was the ability to apply for an extension to that 12-month period.

Jacqui Pellow: That's right, Kai. I think I mentioned last time that the 12-month period is known as the measurement period and that providers can apply for an extension to that measurement period. Under the legislation, ASQA has the ability to extend a measurement period for up to 12 months. This means that if ASQA extends the measurement period for the maximum allowable, a provider could have up to 2 years or 24 months of no delivery before their registration would be cancelled.

Kai Rottmann: Thanks, Jacqui. I'm sure this is something providers would love to know more about. As we discussed last time, there can be some really genuine reasons why a provider wouldn't be able to deliver vocational education for a period of time. Is this something ASQA can just do if they know a provider won't be able to deliver or do providers need to make an application?

Jacqui Pellow: That's a really good question Kai. ASQA does not have the power to extend a measurement period for a provider unless that provider makes an application to ASQA. Once a provider has made an application to extend a measurement period, ASQA will then make a decision to extend or not extend that measurement period, and Kai, I'm going to pretend to read minds for a second here and guess that your next question will be, how can a provider make an application? Applications to extend a measurement period are made through a form on our website instead of through the normal asqanet portal.

Kai Rottmann: Haha, absolutely. You got me out there, Jacqui. Ok, well you can definitely add mind reading to your skills on your CV. That's exactly what I was going to ask. So, are there any rules about when an application can or should be made?

Jacqui Pellow: Yeah, this is something that is actually really important for providers to be aware of and keep in mind as the legislation imposes a really strict time frame on this. Applications to extend a measurement period must be made at least 90 days before the end of the measurement period. So, to explain it in another way, an application must be made no later than 9 months after a provider has stopped delivering VET training and assessment.

Kai Rottmann: Ok, so let me just check this. So, you said that there's a strict time frame. So, does that mean a provider can't make an application after that 90-day deadline has passed?

Jacqui Pellow: Yes, that's right Kai. This deadline is imposed by the legislation and ASQA has no power to accept an application once that time frame has passed.

Kai Rottmann: Thanks Jacqui. Now, if a provider wants to submit an application to extend their measurement period, what does this involve?

Jacqui Pellow: So, the application asks for 4 key things. The first is, what are the dates of the provider’s measurement period? So that's, what is the first date the provider had no students and what is the date 12 months later? It then asks what date the provider wants the measurement period extended to. So that is, when does the provider intend to commence or recommence training? It is important providers remember that ASQA has no power to extend the measurement period for more than 12 months when identifying what that date will be. The application then asks why the provider will have more than 12 months with no delivery of VET, and it also asks for a description of the provider's plans to commence delivery of training and assessment. The form will also ask for the providers to submit evidence in relation to the last 2 points.

Kai Rottmann: Ok, great. So why does that application form ask for that information? I assume that is what ASQA takes into account when making a decision on the application?

Jacqui Pellow: That's right, Kai. ASQA’s policy in relation to these applications is that in order for ASQA to agree to extend a measurement period, a provider needs to demonstrate that there was an exceptional circumstance outside of their control that prevented delivery of VET training or assessment and the provider also has to demonstrate that they will commence delivery within the extended measurement period.

Kai Rottmann: Ok, so let's deal with this one at a time. You said a provider needs to demonstrate exceptional circumstances outside of their control?

Jacqui Pellow: Yeah, that's right. So, you might recall last time we spoke about how these measures were introduced to ensure that registration as an RTO was being used for its intended purpose, being the delivery of vocational education and training, but also that we recognise that there might actually be a genuine reason a provider can't deliver VET for a period of time. So, looking at exceptional circumstances, what we're trying to do, or the policy is trying to do, is balance these two factors.

Kai Rottmann: Ok and what might be an example of exceptional circumstances?

Jacqui Pellow: So, we have some information about this on our website where we've outlined 3 categories of exceptional circumstances that we would consider it appropriate to extend a provider's measurement period. So, the first category we have is personal circumstances. So, for example, we might have a small RTO where the CEO is also the trainer and assessor and that person suffers from a prolonged illness. Our second category is external circumstances, so that's things such as fires, floods, pandemics that might have a lasting effect on the organisation and their ability to deliver training and assessment. So, for example, a provider might have their delivery location, the building, damaged in a fire or flood and that might take some time to rectify if significant works are required. The third category that we have is critical VET workforce shortages. So, for example, we might have a remote or regional RTO who is unable to deliver for a period of time because they are unable to recruit an appropriate trainer to deliver their courses.

Kai Rottmann: Ok thanks Jacqui, and you said that the application form requires a provider to submit evidence with the application. What type of evidence would ASQA be expecting in relation to the reasons for not being able to deliver?

Jacqui Pellow: This is a really good question, Kai, because it is one of the common issues, probably the most common issue that we see with applications, no or insufficient evidence being provided. So, the types of evidence that we would expect to see would be things like doctor's certificates in relation to illnesses that show the period the person was unable to work for. We might be expecting to see evidence of the fire or flood and the impact that that has on the provider or evidence of attempts to recruit a qualified trainer and assessor that had been unsuccessful. The important part here is that the evidence needs to show what the circumstance is, and it also needs to show how it prevents the provider from delivering VET.

Kai Rottmann: Ok and the second part of the policy that you mentioned earlier was that a provider has to demonstrate that they will convince delivery within the extended measurement period, is that right?

Jacqui Pellow: Yeah, that's right. So ASQA won't grant an extension to a measurement period if we aren't confident that a provider will actually commence delivery within that extended measurement period. So, in terms of the evidence we would expect to see here, this would vary depending on why the provider isn't delivering and how far away the intended commencement date of delivery is. But evidence could include things like business plans, marketing strategies, copies of marketing material. It might include advertisements for trainers and assessors. If a provider is intending on changing their service offering, it might include things like add to scope applications, or we might even see things like enrolment forms for students if they're going to be commencing at the start of the new calendar year, for example.

Kai Rottmann: Ok great, and once ASQA has all of this evidence, it will make a decision on whether to extend the measurement period?

Jacqui Pellow: Yeah, that's right. So, we can make a decision to extend the measurement period until the date requested in the application. We might make a decision to extend the measurement period but until a different date or we might make a decision to not extend the measurement period at all.

Kai Rottmann: Ok, so let's talk about the most concerning one for providers first. What happens if ASQA rejects my application to extend the measurement period?

Jacqui Pellow: Yeah. So if the application is rejected, a provider can apply for a merits review of the decision. So, in most cases this means they can apply for an internal review of the decision but if they don't apply for that review, the consequence is that the provider's registration will end at the end of their measurement period.

Kai Rottmann: Ok and if ASQA does extend the measurement period, is that it? No further action is required from the provider?

Jacqui Pellow: No, not quite Kai. So, we require providers to submit evidence to us at the end of the measurement period to demonstrate that they have commenced delivery of VET. So, instructions are given to providers at the time about how to do this, but generally the easiest way to do this is for providers to submit their AVETMISS data to us showing that they have commenced delivery.

Kai Rottmann: Ok and what happens if a provider doesn't commence delivery? So say, as a provider, I ask ASQA to extend my measurement period for 3 months because I'm confident that I will commence delivery but by then things change, something gets delayed and I can't commence delivery. What happens then?

Jacqui Pellow: So in this circumstance, because the initial extension to the measurement period was for less than 12 months, the provider can apply for an additional extension to their measurement period. But there are two important things that we need to keep in mind here. The first being that a maximum of a 12-month extension can be granted to a provider's measurement period. So, it's 12 months in total. So, if a provider's had a 3-month extension then only, you know, another 9 months can be granted after that. The second thing that we need to remember is that any application must be made at least 90 days before the end of the measurement period.

Kai Rottmann: Ok. Now, I think you said earlier that ASQA can grant an extension to the measurement period that is different than what the provider has requested?

Jacqui Pellow: That's right, Kai. As part of its decision making, ASQA will decide based on the information given to us by the provider, and any other relevant information that ASQA holds, what the appropriate extension to the measurement period is. If ASQA determines a shorter period than requested by the provider, the provider can appeal this decision if they consider it appropriate to do so.

Kai Rottmann: Now, do you have any examples where this has happened and ASQA has granted a shorter period than requested?

Jacqui Pellow: Yeah. So, the most common time that we see this is when a provider might request, for example, a full 12-month extension to the measurement period, but then they provide evidence that they intend to return to delivery at say the 6-month mark. In that instance, ASQA would only grant the extension for 6 months as that is all that's required for the provider to return to delivery.

Kai Rottmann: Ok, that’s great. Thank you Jacqui. Wow, that’s a lot of information that you've covered today. It feels like I've been grilling you the whole way along. So, I really thank you again for your time today. In our final episode of this series, we encourage anyone listening to us to send any burning questions that you may have about lapsing provisions. Well, that about wraps it up for another episode on ASQAcast. Stay tuned for our next episode as we further educate the sector on a number of topics. You can find our podcasts on our website by heading to asqa.gov.au and searching podcasts. If you have any questions you would like to ask Jacqui for episode 3 or if you have some topics of interest that you would like to hear more about, then please send us an e-mail at podcasts@asqa.gov.au. We look forward to you joining us next time on ASQAcast. Bye for now.