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Ordinarily it must be a joint decision, but where they can't/haven't engaged in active learning for 4 weeks you are obligated to put them on a break. I'd suggest informing them you're doing this, at which point they're entirely entitled to say "I don't want to be on a break, I actually want to withdraw", but unless they provide you with some surprise off-the-job activity (which seems impossible in this case), it's one or the other.
P267 The apprentice must be involved in active learning (off-the-job training and / or English and maths training) throughout the apprenticeship, from the learning start date to the learning actual end date (the practical period) (see paragraph P35.2). Some active learning must take place or a break in learning must be used.
Martin Locock
Break in Learning: suspension of OTJ training
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We have an apprentice whose academic OTJ learning has been suspended while an allegation of misconduct is considered. They continue in their employment.
The outcome of the allegation may result in withdrawal from the apprenticeship, but if not they will resume their studies.
Using the flowchart in the funding rules, it looks as if any break that isn't the apprentice's decision cannot be a BIL, and must be treated as a withdrawal if continuing OTJ is not possible.
Presumably we are obliged to implement a withdrawal after 4 weeks of no active learning, and if the outcome of the allegation is positive this would have to be treated as a restart with a new app agreement.
This seems clunky - any suggestions welcome.