Necessary protection; rights and freedoms
39. We do not anticipate that any aspect
of this proposal would remove any necessary protection to any
party affected by the current or proposed arrangements; nor prevent
any person from continuing to exercise any right or freedom which
he might reasonably expect to continue to exercise. There
are, however, certain issues to which we wish to draw particular
attention, and we do so in the following paragraphs.
PROTECTION FOR VA GOVERNING BODIES
40. Firstly, two particular aspects of the current
legislation which help to ensure the protection of VA governing
bodies are unaffected by the proposals:
- the provisions of the School Standards and Framework
Act which direct that LEAs shall be liable for any capital work
undertaken as a result of a direction by the Authority over the
use of the school premises for non-school use will be retained;
- the provisions of the School Standards and Framework
Act which direct that the Secretary of State must give priority
to paying grants which are needed to comply with section 542 of
the Education Act 1996 in bringing VA school buildings up to a
minimum standard, and that this grant shall be paid at the maximum
rate (presently 85%, proposed 90%), will be retained (with the
appropriate amendment).
The consultation document suggested that both these
provisions might be repealed; but the Department has decided,
in the light of responses to consultation, that they should be
retained.
41. Secondly, we note that some concerns were expressed
in consultation by VA schools, who were worried that the necessary
funding for revenue work would not be passed on to them, in their
"Fair Funding" budgets, by LEAs. The Department has
issued guidance to LEAs in another context stressing that VA schools
must be treated equitably; and that point will also be stressed
in guidance to LEAs on revenue funding should this proposal take
effect. The Department also plan to review operation of the new
arrangements after they come into operation, at which point we
would expect any concerns to be dealt with.[42]
INSURANCE ARRANGEMENTS
42. Concerns were also expressed by consultees
about the potential insurance implications which might arise from
the transfer of liabilities. The explanatory memorandum laid alongside
the proposed Order noted that there is already scope for confusion
in this area under current arrangements; and that the situation
was to be clarified in the Education Bill. In the meantime, the
Department was undertaking a study of the insurance arrangements,
with a view to providing guidance on best practice.[43]
We asked the Department to provide us with further information,
and to confirm whether, and how, necessary protection was maintained
in respect of insurance arrangements.
43. The Department's reply confirmed that, whilst
there would indeed be implications for insurance arrangements
as a result of the proposal, current arrangements are in any case
the subject of some confusion. Officials were planning to meet
representatives of LEAs to discuss the matter, but no final outcome
had yet been determined.[44]
44. In view of the fact that current arrangements
are already rather unsatisfactory, notwithstanding the proposal,
and that the introduction of the proposal would not appear to
make them any worse, we would not wish to delay the progress of
the proposal on the basis that necessary protection is not maintained
in respect of insurance arrangements. However, we expect to
be kept informed on progress on resolving the issue, and would
hope that a satisfactory resolution can be achieved before any
draft Order returns to us for secondstage scrutiny.
ARRANGEMENTS FOR CLAIMS AND PAYMENTS
45. It could be argued that the current arrangements
whereby payment of grant by the Secretary of State to VA governing
bodies can only be made in respect of expenditure which has been
incurred and paid for, rather than expenditure which is to be
incurred, might be considered to offer some protection against
fraudulent or erroneous claims. To the extent that this is the
case, it was not clear to us how such protection was maintained.
We asked the Department to clarify the point.[45]
46. Restating the benefits which this aspect of the
proposal would bring for VA schools and the Dioceses and others
who support them, the Department argued that it would be unfair
not to implement this particular change. Nevertheless, it acknowledged
that it would need to ensure that appropriate controls were in
place, and informed us that it had asked its internal auditors
for a view on what those controls might be.[46]
That advice has not yet been made available to us. Once again,
and in view of the undoubted benefits which this change would
bring, we do not wish to delay progress on this proposal on the
basis that it removes necessary protection. However, as with the
insurance arrangements we discuss above, we would expect to
receive assurances by the time any draft Order returns to us for
secondstage scrutiny that all appropriate controls recommended
by the Department's internal auditors would be put in place.
PROVIDING A STATUTORY DEFINITION OF 'CAPITAL' EXPENDITURE
47. Some concern was expressed by consultees
that providing for a statutory definition of 'capital', rather
than the prescriptive list of works which exists at present, could
lead to disagreements between the relevant parties about whether
particular works did or did not conform to the definition. As
the explanatory memorandum notes, however, even the current list
cannot possibly cover every eventuality, and it ought to be possible
to reach agreement in any given case. Furthermore, protection
against the possibility that the definition might turn out to
be inappropriate or unworkable in practice would be maintained
by the definition of this as a "subordinate provision",
allowing Ministers to substitute an amended definition at a later
date.
42 Explanatory memorandum, para 69. Back
43
ibid, para 81. Back
44
Appendix 2, page 40, para 4. Back
45
Appendix 1, para 5. Back
46
Appendix 2, 'Arrangements for claims and payments', para 3. Back
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