Children and Families Bill (HL Bill 59)

(2) Regulations under subsection (1) may in particular include provision for—

(a) references to a child’s parent to be read as references to, or as including
references to, a representative of the parent;

(b) references to a young person to be read as references to, or as including
5references to, a representative of the young person, the young person’s
parent, or a representative of the young person’s parent;

(c) modifications to have effect in spite of section 27(1)(g) of the Mental
Capacity Act 2005 (Act does not permit decisions on discharging
parental responsibilities in matters not relating to a child’s property to
10be made on a person’s behalf).

(3) “Statutory provision” means a provision made by or under this or any other
Act, whenever passed or made.

(4) “The relevant time” means the time at which, under the statutory provision in
question, something is required or permitted to be done by or in relation to the
15parent or young person.

(5) The reference in subsection (1) to lacking capacity is to lacking capacity within
the meaning of the Mental Capacity Act 2005.

(6) “Representative”, in relation to a parent or young person, means—

(a) a deputy appointed by the Court of Protection under section 16(2)(b) of
20the Mental Capacity Act 2005 to make decisions on the parent’s or
young person’s behalf in relation to matters within this Part;

(b) the donee of a lasting power of attorney (within the meaning of section
9 of that Act) appointed by the parent or young person to make
decisions on his or her behalf in relation to matters within this Part;

(c) 25an attorney in whom an enduring power of attorney (within the
meaning of Schedule 4 to that Act) created by the parent or young
person is vested, where the power of attorney is registered in
accordance with paragraphs 4 and 13 of that Schedule or an application
for registration of the power of attorney has been made.

70 30Part does not apply to detained children and young people

Nothing in or made under this Part applies to a child or young person who is
detained in pursuance of—

(a) an order made by a court, or

(b) an order of recall made by the Secretary of State.

71 35Disapplication of Chapter 1 of Part 4 of EA 1996 in relation to children in
England

Chapter 1 of Part 4 of EA 1996 (children with special educational needs) ceases
to apply in relation to children in the area of a local authority in England.

72 Consequential amendments

40Schedule 3 (amendments consequential on this Part) has effect.

73 Interpretation of Part

3

(1) In this Part—

Children and Families BillPage 51

• “EA 1996” means the Education Act 1996;

• “ESA 2008” means the Education and Skills Act 2008;

• “SSFA 1998” means the School Standards and Framework Act 1998.

(2) In this Part—

• 5“education, health and care provision” has the meaning given by section
  26(2);

• “EHC needs assessment” has the meaning given by section 36(2);

• “EHC plan” means a plan within section 37(2);

• “health care provision” has the meaning given by section 21(3);

• 10“mainstream post-16 institution” means a post-16 institution that is not a
  special post-16 institution;

• “mainstream school” means—

  (a)

  a maintained school that is not a special school, or

  (b)

  an Academy school that is not a special school;

• 15“maintained school” means—

  (a)

  a community, foundation or voluntary school, or

  (b)

  a community or foundation special school not established in a
  hospital;

• “post-16 institution” means an institution which—

  (a)

  20provides education or training for those over compulsory
  school age, but

  (b)

  is not a school or other institution which is within the higher
  education sector or which provides only higher education;

• “proprietor”, in relation to an institution that is not a school, means the
  25person or body of persons responsible for the management of the
  institution;

• “relevant early years education” has the meaning given by section 123 of
  SSFA 1998;

• “social care provision” has the meaning given by section 21(4);

• 30“social services functions” in relation to a local authority has the same
  meaning as in the Local Authority Social Services Act 1970;

• “special educational needs” has the meaning given by section 20(1);

• “special educational provision” has the meaning given by section 21(1)
  and (2);

• 35“special post-16 institution” means a post-16 institution that is specially
  organised to make special educational provision for students with
  special educational needs;

• “training” has the same meaning as in section 15ZA of EA 1996;

• “young person” means a person over compulsory school age but under
  4025.

(3) A reference in this Part to “education”—

(a) includes a reference to full-time and part-time education, but

(b) does not include a reference to higher education,

and “educational” and “educate” (and other related terms) are to be read
45accordingly.

(4) A reference in this Part to—

(a) a community, foundation or voluntary school, or

(b) a community or foundation special school,

is to such a school within the meaning of SSFA 1998.

(5) A reference in this Part to a child or young person who is “in the area” of a local
authority in England does not include a child or young person who is wholly
or mainly resident in the area of a local authority in Wales.

(6) 5EA 1996 and the preceding provisions of this Part (except so far as they amend
other Acts) are to be read as if those provisions were contained in EA 1996.

Part 4 Childcare etc

74 Childminder agencies

10Schedule 4 (amendments to the Childcare Act 2006 to provide for the
registration of childminder agencies on the childcare registers and the
registration of certain childcare providers with those agencies, and other
related amendments) has effect.

75 Inspections at request of providers of childcare to young children

15In section 49 of the Childcare Act 2006 (inspections of early years provision),
after subsection (5) insert—

“(5A) The Chief Inspector may charge a prescribed fee for conducting an
inspection of early years provision where—

(a) the inspection is conducted at the request of a registered person
20who provides that early years provision, and

(b) the Chief Inspector is required by the Secretary of State under
subsection (2)(b) to conduct that inspection.”

76 Repeal of local authority’s duty to assess sufficiency of childcare provision

Section 11 of the Childcare Act 2006 (duty of local authority in England to
25assess sufficiency of childcare provision) is repealed.

77 Discharge of authority’s duty to secure free early years provision

(1) Part 1 of the Childcare Act 2006 (general functions of local authorities in
England in relation to childcare) is amended as follows.

(2) After section 7 (duty to secure early years provision free of charge in
30accordance with regulations) insert—

“7A Discharge of duty under section 7

(1) Regulations may require an English local authority to discharge its
duty to a young child under section 7 by making arrangements which
secure that an early years provider chosen by a parent of the child
35provides the early years provision to which the child is entitled in cases
where—

(a) the early years provider is willing to provide it, and

(b) the early years provider is also willing to accept—

(i) any terms as to the payments which would be made to
40him or her in respect of the provision, and

(ii) any requirements which would be imposed in respect of
it.

(2) Arrangements made by an authority to satisfy any requirement
imposed under subsection (1) may be made with an early years
5provider or with an early years childminder agency or any other person
who is able to arrange for an early years provider to provide early years
provision.

(3) The regulations may provide that such a requirement—

(a) applies only if the early years provider is of a prescribed
10description;

(b) applies only if the early years provision provided by the early
years provider is of a prescribed description;

(c) does not apply in prescribed circumstances.

(4) The regulations may provide that arrangements made by an authority
15for the purpose of complying with such a requirement must include
provision allowing the local authority to terminate the arrangements in
prescribed circumstances.

(5) In this section—

• “early years childminder agency” and “early years provider” have
  20the same meanings as in Part 3;

• “parent” has the same meaning as in section 2.”

(3) After section 9 (arrangements between local authority and childcare providers)
insert—

“9A Arrangements made by local authorities for the purposes of section 7

25Regulations may provide that arrangements made by an English local
authority for the purpose of discharging its duty under section 7—

(a) may impose requirements on the person with whom the
arrangements are made only if the requirements are of a
prescribed description;

(b) 30may not impose requirements of a prescribed description on the
person with whom the arrangements are made.”

78 Governing bodies: provision of community facilities

(1) Section 28 of the Education Act 2002 (limits on the powers of governing bodies
of maintained schools to provide community facilities etc under section 27) is
35amended as follows.

(2) In subsection (4), for “a governing body” substitute “the governing body of a
maintained school in Wales”.

(3) Omit subsection (4C).

(4) In subsection (5)—

(a) 40for “a governing body” substitute “the governing body of a maintained
school in Wales”, and

(b) in paragraph (a) omit “(in relation to England) by the Secretary of State
or (in relation to Wales)”.

79 Childcare costs scheme: preparatory expenditure

The Commissioners for Her Majesty’s Revenue and Customs may incur
expenditure in preparing for the introduction of a scheme for providing
assistance in respect of the costs of childcare.

5Part 5 Welfare of children

80 Young carers

(1) In the Children Act 1989, after section 17 insert—

“17ZA Young carers’ needs assessments: England

(1) 10A local authority in England must assess whether a young carer within
their area has needs for support and, if so, what those needs are, if—

(a) it appears to the authority that the young carer may have needs
for support, or

(b) the authority receive a request from the young carer or a parent
15of the young carer to assess the young carer’s needs for support.

(2) An assessment under subsection (1) is referred to in this Part as a
“young carer’s needs assessment”.

(3) In this Part “young carer” means a person under 18 who provides or
intends to provide care for another person (but this is qualified by
20section 17ZB(3)).

(4) Subsection (1) does not apply in relation to a young carer if the local
authority have previously carried out a care-related assessment of the
young carer in relation to the same person cared for.

(5) But subsection (1) does apply (and so a young carer’s needs assessment
25must be carried out) if it appears to the authority that the needs or
circumstances of the young carer or the person cared for have changed
since the last care-related assessment.

(6) “Care-related assessment” means—

(a) a young carer’s needs assessment;

(b) 30an assessment under any of the following—

(i) section 1 of the Carers (Recognition and Services) Act
1995;

(ii) section 1 of the Carers and Disabled Children Act 2000;

(iii) section 4(3) of the Community Care (Delayed
35Discharges) Act 2003.

(7) A young carer’s needs assessment must include an assessment of
whether it is appropriate for the young carer to provide, or continue to
provide, care for the person in question, in the light of the young carer’s
needs for support, other needs and wishes.

(8) 40A local authority, in carrying out a young carer’s needs assessment,
must have regard to—

(a) the extent to which the young carer is participating in or wishes
to participate in education, training or recreation, and

(b) the extent to which the young carer works or wishes to work.

(9) A local authority, in carrying out a young carer’s needs assessment,
must involve—

(a) the young carer,

(b) 5the young carer’s parents, and

(c) any person whom the young carer or a parent of the young carer
requests the authority to involve.

(10) A local authority that have carried out a young carer’s needs
assessment must give a written record of the assessment to—

(a) 10the young carer,

(b) the young carer’s parents, and

(c) any person to whom the young carer or a parent of the young
carer requests the authority to give a copy.

(11) Where the person cared for is under 18, the written record must state
15whether the local authority consider him or her to be a child in need.

(12) A local authority in England must take reasonable steps to identify the
extent to which there are young carers within their area who have
needs for support.

17ZB Young carers’ needs assessments: supplementary

(1) 20This section applies for the purposes of section 17ZA.

(2) “Parent”, in relation to a young carer, includes—

(a) a parent of the young carer who does not have parental
responsibility for the young carer, and

(b) a person who is not a parent of the young carer but who has
25parental responsibility for the young carer.

(3) A person is not a young carer if the person provides or intends to
provide care—

(a) under or by virtue of a contract, or

(b) as voluntary work.

(4) 30But in a case where the local authority consider that the relationship
between the person cared for and the person under 18 providing or
intending to provide care is such that it would be appropriate for the
person under 18 to be regarded as a young carer, that person is to be
regarded as such (and subsection (3) is therefore to be ignored in that
35case).

(5) The references in section 17ZA and this section to providing care
include a reference to providing practical or emotional support.

(6) Where a local authority—

(a) are required to carry out a young carer’s needs assessment, and

(b) 40are required or have decided to carry out some other
assessment of the young carer or of the person cared for;

the local authority may, subject to subsection (7), combine the
assessments.

(7) A young carer’s needs assessment may be combined with an
assessment of the person cared for only if the young carer and the
person cared for agree.

(8) The Secretary of State may by regulations make further provision about
5carrying out a young carer’s needs assessment; the regulations may, in
particular—

(a) specify matters to which a local authority is to have regard in
carrying out a young carer’s needs assessment;

(b) specify matters which a local authority is to determine in
10carrying out a young carer’s needs assessment;

(c) make provision about the manner in which a young carer’s
needs assessment is to be carried out;

(d) make provision about the form a young carer’s needs
assessment is to take.

(9) 15The Secretary of State may by regulations amend the list in section
17ZA(6)(b) so as to—

(a) add an entry,

(b) remove an entry, or

(c) vary an entry.

17ZC 20Consideration of young carers’ needs assessments

A local authority that carry out a young carer’s needs assessment must
consider the assessment and decide—

(a) whether the young carer has needs for support in relation to the
care which he or she provides or intends to provide;

(b) 25if so, whether those needs could be satisfied (wholly or partly)
by services which the authority may provide under section 17;
and

(c) if they could be so satisfied, whether or not to provide any such
services in relation to the young carer.”

(2) 30In section 104 of the Children Act 1989 (regulations and orders)—

(a) in subsections (2) and (3A) (regulations within subsection (3B) or (3C)
not subject to annulment but to be approved in draft) before “(3B)”
insert “(3AA),”, and

(b) after subsection (3A) insert—

“(3AA) 35Regulations fall within this subsection if they are regulations
made in the exercise of the power conferred by section 17ZB(9).”

81 Duty to support pupils with medical conditions

(1) The appropriate authority for a school to which this section applies must make
arrangements for supporting pupils at the school with medical conditions.

(2) 40In meeting the duty in subsection (1) the appropriate authority must have
regard to guidance issued by the Secretary of State.

(3) The duty in subsection (1) does not apply in relation to a pupil who is a young
child for the purposes of Part 3 of the Childcare Act 2006 (regulation of
provision of childcare in England).

(4) 45This section applies to the following schools in England—

(a) a maintained school;

(b) an Academy school;

(c) an alternative provision Academy;

(d) a pupil referral unit.

(5) 5In this section—

• “the appropriate authority for a school” means—

  (a)

  in the case of a maintained school, the governing body,

  (b)

  in the case of an Academy, the proprietor, and

  (c)

  in the case of a pupil referral unit, the management committee;

• 10“maintained school” means—

  (a)

  a community, foundation or voluntary school, within the
  meaning of the School Standards and Framework Act 1998, or

  (b)

  a community or foundation special school, within the meaning
  of that Act.

(6) 15The Education Act 1996 and this section are to be read as if this section were
included in that Act.

82 Local authority functions relating to children etc: intervention

(1) Section 497A of the Education Act 1996 (which confers power on the Secretary
of State to secure the proper performance of local authority education
20functions, and is applied to social services functions relating to children by
section 50 of the Children Act 2004 and to functions relating to childcare by
section 15 of the Childcare Act 2006) is amended in accordance with subsection
(2).

(2) After subsection (4A) insert—

“(4AA) 25So far as is appropriate in consequence of a direction given under
subsection (4A), a reference (however expressed) in an enactment,
instrument or other document to a local authority is to be read as a
reference to the person by whom the function is exercisable.

(4AB) Subsection (4AC) applies if a direction given under subsection (4A)
30expires or is revoked without being replaced.

(4AC) So far as is appropriate in consequence of the expiry or revocation, a
reference (however expressed) in an instrument or other document to
the person by whom the function was exercisable is to be read as a
reference to the local authority to which the direction was given.”

(3) 35In section 15 of the Local Government Act 1999 (Secretary of State’s power to
secure compliance with requirements of Part 1 of that Act) after subsection (6)
insert—

“(6A) So far as is appropriate in consequence of a direction given under
subsection (6)(a), a reference (however expressed) in an enactment,
40instrument or other document to a best value authority is to be read as
a reference to the person by whom the function is exercisable.

(6B) Subsection (6C) applies if a direction given under subsection (6)(a)
expires or is revoked without being replaced.

(6C) So far as is appropriate in consequence of the expiry or revocation, a
45reference (however expressed) in an instrument or other document to

the person by whom the function was exercisable is to be read as a
reference to the best value authority to which the direction was given.”

83 Objectives and standards for establishments and agencies in England

(1) In section 22 of the Care Standards Act 2000 (regulation of establishments and
5agencies), in subsection (1), for the words from “may in particular” to the end
substitute “—

(a) regulations made by the Secretary of State may in particular
make any provision such as is mentioned in subsection (1A), (2),
(7) or (8), and

(b) 10regulations made by the Welsh Ministers may in particular
make any provision such as is mentioned in subsection (2), (7)
or (8).”

(2) In that section, after subsection (1) insert—

“(1A) Regulations made by the Secretary of State may prescribe objectives
15and standards which must be met in relation to an establishment or
agency for which the CIECSS is the registration authority.”

84 National minimum standards for establishments and agencies in England

In section 23 of the Care Standards Act 2000 (national minimum standards),
after subsection (1) insert—

“(1A) 20The standards applicable to an establishment or agency for which the
CIECSS is the registration authority may, in particular, explain or
supplement requirements imposed in relation to that establishment or
agency by regulations under section 22.”

85 Disqualification from carrying on, or being employed in, a children’s home

(1) 25Section 65 of the Children Act 1989 (person disqualified from fostering a child
privately to be disqualified from carrying on etc children’s home) is amended
as follows.

(2) Before subsection (1) insert—

“(A1) A person (“P”) who is disqualified (under section 68) from fostering a
30child privately must not carry on, or be otherwise concerned in the
management of, or have any financial interest in, a children’s home in
England unless—

(a) P has, within the period of 28 days beginning with the day on
which P became aware of P’s disqualification, disclosed to the
35appropriate authority the fact that P is so disqualified, and

(b) P has obtained the appropriate authority’s written consent.

(A2) A person (“E”) must not employ a person (“P”) who is so disqualified
in a children’s home in England unless—

(a) E has, within the period of 28 days beginning with the day on
40which E became aware of P’s disqualification, disclosed to the
appropriate authority the fact that P is so disqualified, and

(b) E has obtained the appropriate authority’s written consent.”

(3) In subsection (1), after “children’s home” insert “in Wales”.

(4) In subsection (2), after “children’s home” insert “in Wales”.

(5) In subsection (4), after “subsection” insert “(A1), (A2),”.

(6) In subsection (5) after “subsection” insert “(A2) or”.

Part 6 5The Children’s Commissioner

86 Primary function of the Children’s Commissioner

For section 2 of the Children Act 2004 (general function of the Children’s
Commissioner) substitute—

“2 Primary function: children’s rights, views and interests

(1) 10The Children’s Commissioner’s primary function is promoting and
protecting the rights of children in England.

(2) The primary function includes promoting awareness of the views and
interests of children in England.

(3) In the discharge of the primary function the Children’s Commissioner
15may, in particular—

(a) advise persons exercising functions or engaged in activities
affecting children on how to act compatibly with the rights of
children;

(b) encourage such persons to take account of the views and
20interests of children;

(c) advise the Secretary of State on the rights, views and interests of
children;

(d) consider the potential effect on the rights of children of
government policy proposals and government proposals for
25legislation;

(e) bring any matter to the attention of either House of Parliament;

(f) investigate the availability and effectiveness of complaints
procedures so far as relating to children;

(g) investigate the availability and effectiveness of advocacy
30services for children;

(h) investigate any other matter relating to the rights or interests of
children;

(i) monitor the implementation in England of the United Nations
Convention on the Rights of the Child;

(j) 35publish a report on any matter considered or investigated under
this section.

(4) In the discharge of the primary function, the Children’s Commissioner
must have particular regard to the rights of children who are within
section 8A (children living away from home or receiving social care)
40and other groups of children who the Commissioner considers to be at
particular risk of having their rights infringed.

(5) The Children’s Commissioner may not conduct an investigation of the
case of an individual child in the discharge of the primary function.