Extension of Statutory Induction for School Teachers to Further Education Institutions

162.     Section 19 of the Teaching and Higher Education Act 1998 enables the Secretary of State and National Assembly to make regulations requiring persons employed as newly qualified teachers at a maintained school or a special school (whether or not maintained) ('relevant schools') to complete satisfactorily an induction period of not less than three school terms at a relevant school or, in such circumstances as may be prescribed, an independent school. This provision does not apply to FE institutions, including sixth form colleges. By amending section 19 of the Teaching and Higher Education Act 1998, the provision in clause 113 will change the situation. The Secretary of State and the National Assembly will have powers to make regulations setting out the circumstances in which FE institutions are permitted to offer induction to teachers. The Secretary of State proposes to use this power to enable FE institutions at which there are teaching opportunities comparable to those of maintained schools to offer induction. The National Assembly has not yet given effect to its regulation-making powers in respect of induction as a requirement for newly qualified teachers.

Transition from School to Post-16 Learning of Young People with Special Educational Needs

163.     The Bill makes arrangements for young people under the age of 19 who leave school to undertake post-16 education or training and who have statements of their special educational needs provided by an LEA. It covers their transition into other post-16 learning for which the LSC has responsibility and into higher education.

164.     Clause 114 places a duty on the Secretary of State to make arrangements for an assessment of people under the age of 19 who have LEA statements of special educational needs and where he believes that they are likely to leave school to continue with post-16 education or training or enter higher education. This assessment must be made during the final year of compulsory education and will set out a person's learning needs and the provision required to meet them. The Education (Special Educational Needs) Regulations 1994 (SI/1994/1047) which set out the procedures for carrying out transitional reviews of pupils with statements of special educational needs will be amended to enable the Secretary of State's representative to participate in these reviews and to assist in the identification of these young people.

165.     This clause also gives a power to the Secretary of State to conduct an assessment of any young person who is under the age of 25 where it appears that they may have learning difficulties. This is required in order to make assessments of young people continuing in post-16 education or training who develop learning difficulties shortly before leaving school and who do not receive a statement or who develop learning difficulties after leaving school. This clause also places a duty on LEAs to provide a copy of a child's statement of special educational needs, together with any supporting material, to enable the Secretary of State or his appointed assessor to conduct the assessment.

166.     Under clause 13, the LSC has a particular duty to have regard to the contents of these assessments and the needs of the young person assessed when discharging its functions for those under 25 years of age who have learning difficulties. Clause 6(3) makes express provision for the LSC to be able to use its powers to fund an institution or provider to impose a condition requiring it to provide for students the learning and support set out in the assessment. There is a corresponding duty and a power for the CETW in clauses 41 and 35(3) respectively.

Powers of Further and Higher Education Corporations to provide secondary education

167.     Clause 115 enables FE corporations to provide secondary "fourth key stage" education and secondary education for 16 to 19 year olds (without, as now, such education having to be in pursuance of arrangements with an LEA or the governing body of a school). HE corporations, which are sometimes significant providers of further education in a particular area, will be given the same powers by this clause. Before providing such education, a corporation must consult such LEAs as it considers appropriate. Although FE corporations already have some powers to provide secondary education, the FEFCs may not fund this provision. The LSC and CETW, however, will be able to fund this sort of provision (see clauses 5(1)(e) and 34(1)(e)). In practice, this power is only likely to be exercised for young people in the last of the three categories described below.

168.     Persons of compulsory school age for whom it is envisaged that a FE or HE corporation may provide secondary education are likely to fall into three categories. The first, and probably the largest category is of children who are registered at a school and who will undertake some studies at a local FE college. Usually these pupils will have part of the National Curriculum disapplied, under section 363 of the Education Act 1996, to enable them to spend more time on work-related learning. The second category is young people who are not registered as pupils at a school, perhaps because the child is being educated at home, has been excluded from school or is being educated at the FE college under arrangements made by the LEA under section 19 of the Education Act 1996. The third category is young people not registered as pupils at a school and who will be educated at the FE college, but not under arrangements made by the LEA. Currently section 18(1)(aa) of the Further and Higher Education Act 1992 would allow an FE corporation to provide education for pupils in the first two categories, but not the third. This clause, together with the second change of the definition of secondary education in clause 99, will also allow for greater collaboration between schools and colleges in providing secondary education for 16 to 19 year olds.

169.     Section 18(1)(aa) currently refers to education "to pupils in the fourth key stage". This expression only has meaning in the context of a school and pupils in the second and third categories above will not be at school. Consequently, the clause states that the such secondary education provision is for "persons who would, if they were pupils at a school, be in the fourth key stage". A similar and associated amendment is made at paragraph 9 of Schedule 8 to the Bill.

170.     No equivalent provision is made for designated FE or HE institutions, which in general do not derive their powers from education legislation. However, it is intended that equivalent powers will be made available to designated institutions incorporated by the Secretary of State or the National Assembly by an order under clause 116(4) or (5).

Designated Institutions

171.     Under the statutory regime established by the Further and Higher Education Act 1992 institutions within the FE sector are governed either by FE corporations or by governing bodies of designated institutions. Three kinds of institutions may be designated under section 28 as eligible to receive support from the FEFC; most voluntary-aided schools; institutions (other than schools) assisted by the LEA, and institutions which are grant-aided or eligible to receive grant aid under regulations made under what is now section 495 of the Education Act 1996. Unlike the arrangements for FE corporations at sections 15 and 16 of the Further and Higher Education Act 1992, the governing bodies of designated institutions were not incorporated when they entered the FE sector. By contrast, all governing bodies of schools, including voluntary-aided schools, were incorporated subsequently by section 238 of the Education Act 1993 and, in the new schools framework established by the Schools Standards and Framework Act 1998, by section 20 of that Act.

172.     Clause 116 amends section 28 of the Further and Higher Education Act 1992 so that newly established institutions may also be designated and receive funding from the LSC. It replaces section 30 of that Act to extend the protection afforded to trustees of designated 16 to 19 institutions to include trustees of 16 to 19 institutions designated after the coming into force of section 30. It gives the Secretary of State the power to incorporate the governing bodies of designated institutions that are already in the FE sector or which may be designated in future. When incorporating a governing body, the Secretary of State may make provisions to specify the corporation's powers, to ensure the continuity of the incorporated governing body with its unincorporated predecessor, to confer exempt charitable status upon the corporation and the institution, and to determine what happens to its property, rights and liabilities should the corporation be dissolved. The Secretary of State is required to consult with the trustees and governing body before making the order.

Sex education: Secretary of State's guidance

173.     Current provisions for the delivery of sex education are contained in section 403 of the Education Act 1996 which requires the LEA, the governing body and the headteacher to take such steps as are reasonably practicable to secure that, where sex education is given to pupils in a maintained school, it is given in such a manner as to encourage those pupils to have due regard to moral considerations and the value of family life. Subsection (1) of clause 117 adds sexual health after family life as one of the matters to which pupils should have regard.

174.     This clause then inserts two new sections 403A and 403B into the Education Act 1996. The new section 403A places a statutory duty on the Secretary of State to issue guidance designed to secure that certain objectives are met when sex education is given. The objectives are set out in subsections (2) and (3) of the new section 403A. The guidance must also be designed to secure that sex education contributes to promoting the spiritual, moral, cultural, mental and physical development of the pupils and of society and to preparing the pupils for the opportunities, responsibilities and experiences of adult life. This latter requirement reflects section 351 of the Education Act 1996 which deals with the requirements of the curriculum of a maintained school. Subsection (6) of the new section 403A requires that guidance is subject to affirmative resolution in both House of Parliament and subsection (7) places a duty on LEAs, governing bodies and headteachers to have regard to the guidance. The new section 403B requires reasonable steps to have been taken to ensure that parents of pupils are consulted about any curriculum syllabus or teaching material used for the purpose of giving sex education and requires that the governing body of the school has approved its use.

Transitional provisions

175.     Clause 119 and Schedule 9 provide for the period of transition before the LSC and the CETW assume their full functions from April 2001. They provide for the LSC and CETW to become legal entities once the first two council members - namely, the chairman and the chief executive - are appointed. They also provide the framework to enable the FEFCs for England and Wales to help the transition and enable the LSC and CETW to take responsibility for a number of the FEFCs' remaining statutory functions or other responsibilities. These include requirements to complete the final accounts of the FEFCE and FEFCW; to make a report to the Secretary of State and the National Assembly on the previous year's provision for disabled people under the requirements of the Disability Discrimination Act; and to take over the FEFCs' responsibilities in any legal proceedings in which they may be involved at the point of dissolution.

176.     Clause 122 provides for the Bill to come into force with commencement orders made by the Secretary of State and the National Assembly for Wales.

Explanatory Notes in relation to Schedules 1 to 6 and Schedule 9 have been incorporated into the commentary on related clauses. Commentary on Schedules 7 and 8 is below.

SCHEDULE 7: Inadequate LEA-Maintained Sixth Form Provision

177.     The first part of Schedule 7 gives the LSC and CETW powers to intervene where the necessary improvements have not been made following an adverse report by school inspectors about the standards of education in LEA-maintained sixth form provision (both school sixth forms and 16-19 institutions).

178.     Schedule 7 contains provisions for the LSC and the CETW to have powers to intervene where LEA-maintained sixth form provision, having once been identified as being of inadequate quality, has then failed to make appropriate improvements. The trigger for those powers will therefore be the publication of two consecutive adverse reports following inspections. Except in the case of a 16-19 institution, the LSC and CETW will not have powers to intervene where a school requires special measures (because it is failing or likely to fail to give its pupils an acceptable standard of education). In such cases, the provisions of sections 14 to 19 of the School Standards and Framework Act 1998 apply. These include a power for the Secretary of State or the National Assembly to direct an LEA to close a school. An "inadequate sixth form" is defined for this purpose in paragraph 1(2) as either failing or likely to fail to give its pupils an acceptable standard of education or having significant weaknesses in one or more areas of its activities for those pupils.

179.     Paragraphs 2 to 7 deal with school sixth forms. Paragraph 2 places a duty on school inspectors, when stating in an inspection report that a school no longer requires special measures, to state that the school's sixth form is inadequate where that is their judgement. Paragraph 3 places a duty on school inspectors, if in the course of an area inspection under clause 63 or 80 they consider that a school has an inadequate sixth form, to make a report on the school. Paragraph 4(1)(a) provides for a report made as provided for in paragraph 2 to trigger the LSC's and CETW's powers of intervention. Paragraph 4(2) provides for the LSC's and CETW's powers of intervention also to be triggered where two consecutive inspection reports state that the sixth form provision is inadequate. Paragraph 4(1)(b) and paragraph 4(2)(c) set out that where a report of an inspection is made by a registered inspector, it will be relevant in this context only if HMCI agrees with the inspector's judgement that the school requires special measures or the sixth form provision is inadequate.

180.     Paragraph 5 provides for the LSC's and CETW's powers to cease to apply where a subsequent report of an inspection states either:

• that the sixth form is no longer inadequate; or

• that the school requires special measures (and, in the case of a report by a registered inspector, that HMCI agrees with that judgement) - where separate powers under sections 14 to 19 of the Schools Standards and Framework Act 1998 will instead apply.

181.     However, the effect of paragraph 5(3) is that, where the LSC or CETW has already made proposals in response to the previous report, their proposals will remain in force. The latest report might, however, cause the LSC or CETW to withdraw its proposals or to make fresh proposals to the effect that their original proposals should not be implemented. It might also be a factor influencing the school organisation committee's or adjudicator's decision about whether to approve the original proposals.

182.     Paragraph 6 deals with inspection reports which state that a sixth form is inadequate, and with subsequent action. Paragraph 6(2) requires an inspector to send a copy of such a report to the Secretary of State or the National Assembly. If the inspector is a member of the Inspectorate, he must also send a copy to the school's appropriate authority, which is usually the governing body (a similar duty will apply to registered inspectors by virtue of section 16 of the School Inspections Act 1996). Paragraph 6(3) requires action consistent with that taken for other school inspection reports:

• the inspector must send copies of the report to the head teacher, HM Chief Inspector, LEA (governing body if the LEA is the school's appropriate authority), and Diocesan body or other body which appoints foundation governors where appropriate;

• the appropriate authority must send copies of the report (or summary if there is one) to parents and make copies available to the public;

• the appropriate authority must prepare and publish a post-inspection action plan; and

• where the governing body is the appropriate authority, the LEA must prepare a statement of the support that it will provide for the school.

183.     Paragraph 7 provides for the procedure to be followed for the corroboration by HM Chief Inspector of the judgement of a registered inspector that a sixth form is inadequate.

184.     Paragraphs 8 to 14 make provisions in respect of LEA-maintained 16-19 institutions similar to those of paragraphs 1-7:

• paragraphs 8 to 11 make provision for the circumstances which trigger the LSC's and CETW's powers of intervention;

• paragraph 12 makes provision for the circumstances when those powers cease to apply;

• paragraph 13 deals with inspection reports which state that a 16-19 institution has serious weaknesses, and with subsequent action; and

• paragraph 14 provides for the procedure to be followed for the corroboration by HM Chief Inspector of the judgement of a registered inspector that a 16-19 institution has serious weaknesses.

By virtue of the School Inspections Act 1996, similar requirements to those in paragraphs 13 and 14 will apply where a registered inspector judges that a 16-19 institution requires special measures.

185.     Paragraphs 15 to 45 (Parts II and III of Schedule 7) provide for the LSC and CETW to have powers, once the triggers set out above take effect, to publish proposals to change the age range of the institution in question so that it no longer provides for pupils aged 16 to 19, or to discontinue a 16 to 19 institution. The procedures governing the Councils' proposals are broadly those which apply under Part II of and Schedule 6 to the School Standards and Framework Act 1998 in respect of proposals made by LEAs or governing bodies to change the age range of institutions, or to discontinue institutions.

186.     Under the proposals framework, the LSC and CETW must, before publishing their proposals, consult as they consider appropriate, having regard to any guidance from the Secretary of State or the National Assembly. After publication, any body or person may make objections to the proposals.

187.     In England, the proposals are considered by the school organisation committee for the area, which may approve them with or without modification, or reject them. Each group on the school organisation committee has a single vote, and the voting must be unanimous for a decision to be reached. If the committee is not able to reach a unanimous decision on the proposals, they are passed to the schools adjudicator for decision. Where the school organisation committee has taken no action on proposals by the end of a period to be prescribed in regulations, the proposals must be referred to the schools adjudicator, if the LSC so requests. The decision-makers, in considering proposals, must have regard to any guidance from the Secretary of State and to the school organisation plan for the area.

188.     In Wales, the proposals are considered by the National Assembly.

189.     If the proposals are approved, there will be a duty upon the school providers to implement them. However, the school organisation committee or adjudicator in England and the National Assembly in Wales may modify proposals, for example, to replace the date of implementation with a later one. The decision-makers may also determine that the proposals should not be implemented where it would be unreasonably difficult or inappropriate to do so, but only if the LSC or CETW publishes further proposals to that effect.

190.     Detailed matters, such as the manner of publication of proposals by the LSC and the timing of various stages of the procedures, including the objection period, will be prescribed by regulations - possibly by amendment to:

• The Education (School Organisation Proposals) (England) Regulations 1999 (SI 1999/2113);

• The Education (School Organisation Proposals) (Wales) Regulations 1999 (SI 1999/1671);

• The Education (Maintained Special Schools) (England) Regulations 1999 (SI 1999/2112); and

• The Education (Maintained Special Schools) (Wales) Regulations 1999 (SI 1999/1780).

191.     Provisions relating to the establishment, composition and functions of school organisation committees in England are set out in section 26 of and Schedule 4 to the School Standards and Framework Act 1998, and in the Education (School Organisation Committees) (England) Regulations 1999. Provisions relating to the appointment and functions of schools adjudicators are set out in section 25 of and Schedule 5 to the same Act.

SCHEDULE 8: Amendments

192.     Paragraph 2 amends section 1 of the Education (Fees and Awards) Act 1983. Section 1 of the Education (Fees and Awards) Act 1983 gives a power to make regulations authorising certain categories of institutions to charge higher fees for overseas students than for home students. Without this authority, an institution which charged higher fees for overseas students than for home students might be in breach of the Race Relations Act 1976. The categories of institutions set out in section 1 of the Education (Fees and Awards) Act 1983 include an institution within the FE sector and an institution which provides further education and which is "substantially dependent for its maintenance on public funds and either is specified in regulations or is of a class or description so specified". The LSC has power to fund any provider of post-16 education and they may wish to provide such funding subject to a condition that fees charged to home students do not exceed a certain amount but with no conditions on fees charged to overseas students. An institution which receives funding subject to this condition need not necessarily be in the FE sector or be substantially dependent for its maintenance on public funds. Consequently, section 1 of the Education (Fees and Awards) Act 1983 is amended to include any institution which receives funding from the LSC which is specified in or is of a class or description specified in regulations. The effect is that any institution which receives funding from the LSC subject to the conditions described above will be able to comply with the conditions without any danger of being in breach of the Race Relations Act 1976.

193.     This amendment is most likely to be relevant to institutions providing dance and drama courses. Financial assistance is currently given to these institutions directly by the Secretary of State but in the future it is intended that financial assistance for most courses should be given by the LSC.

Amendments to the Further and Higher Education Act 1992

194.     Paragraph 3 repeals sections 1 to 9 of the Further and Higher Education Act 1992 which, together with Schedules 1 and 2 to that Act, refer to the establishment of the FEFCs and their functions.

195.     Paragraphs 4, 13, 21 and 40 provide for section 60A and Schedule 5A (inserted into the 1992 Act by the School Standards and Framework Act 1998) to cease to have effect. These provisions allowed for partnership arrangements in Wales between LEAs and the governing bodies of FE institutions for the purpose of securing secondary education for 16 to 18 year olds. These provisions will no longer be required when clause 111 comes into force. It is anticipated that the commencement order bringing into force the repeal of these provisions will make transitional provision to cover partnership arrangements which are in operation.

196.     Paragraph 5 amends section 19 of the Further and Higher Education Act 1992 (the supplementary powers of FE corporations). The amendment to section 19(4) clarifies their ability to form companies. The power to form companies is restricted such that the power may not be exercised for the purpose of providing education or of conducting an educational institution: this is the responsibility of the FE corporation.

197.     Paragraphs 6 and 7 amend sections 22 and 29 of the Further and Higher Education Act 1992 to make provision for the Secretary of State not only to modify (as now) but to replace or revoke any instrument of government of FE corporations or designated institutions. Provision is also made for the Secretary of State to modify, replace or revoke articles of government for FE corporations. At present he may only direct corporations to carry out modifications to articles and may not modify them himself. This provision will enable the consolidation of colleges' original instruments and articles of government with subsequent modifications.

198.     Paragraphs 7, 8 and 20 make consequential amendments to sections 29, 31 and Schedule 4 to that Act to take account of the LSC and CETW's power, under clauses 11 and 39, to appoint up to two additional members to FE governing bodies.

199.     Paragraph 9 makes an amendment to section 52A consequential to the provision at clause 115(1)(a) of this Bill.

200.     Paragraph 10 clarifies that the Secretary of State's direction-making powers in respect of the actual or proposed unreasonable exercise of functions by certain statutory bodies extend to the functions the LSC will have under the 1992 Act.

201.     Paragraph 11 replaces section 57 of the Further and Higher Education Act 1992 with revised arrangements in relation to the Secretary of State's powers of intervention in FE sector colleges. The Secretary of State may intervene if he is satisfied that there has been mismanagement at the college, if the educational provision has been assessed by HMCI or ALI as being seriously weak or to be failing, if a governing body fails to discharge a duty, or if it acts or proposes to act unreasonably in the exercise of its functions. The Secretary of State may act either on the recommendation of the LSC or on his own account. If he is satisfied that intervention is warranted, the Secretary of State may remove any or all of the governors of the college, may make appointments to any vacancies on the governing body as he sees fit and may issue directions.

202.     Paragraph 12 is a consequential amendment arising from the proposed dissolution of the FEFCs and the setting up of the LSC and CETW. It provides that no function conferred or imposed by the Further and Higher Education Act 1992 on the LSC or CETW should be construed as relating to any person detained by order of a court.

203.     Paragraphs 14 to 19 are further consequential amendments changing the references from the FEFCE and FEFCW to LSC and CETW respectively.

204.     Paragraph 20(3) amends paragraph 5 of Schedule 4 to the Further and Higher Education Act 1992, and clarifies that the instrument and articles of government of a FE corporation may allow delegation of functions of the corporation to the principal of the institution. See also note on paragraphs 7 and 8.