Clause 142: Minor and consequential amendments

553.     This clause gives effect to Schedule 14.

Schedule 14: Minor and consequential amendments relating to Part 8

554.     This Schedule makes consequential amendments, chiefly to provide for the Chief Inspector to take over functions of CSCI (in relation to children's social care), ALI and HMICA (in relation to the inspection of CAFCASS).

555.     For example, the Care Standards Act 2000 is amended with the effect that CSCI remains the registration authority under Part 2 of that Act in respect of care homes, domiciliary care agencies, and nurse agencies; and the Chief Inspector becomes the registration authority in respect of children's homes, residential family centres, fostering agencies, voluntary adoption agencies, and adoption support agencies.

556.     The Health and Social Care (Community Health and Standards) Act 2003 is amended with the effect that CSCI is to be responsible for reviews and investigations of English local authority social services so far they are not inspected by the Chief Inspector under Chapter 4 of this Part of this Bill.

Clause 143: Transitional provisions

557.     This clause gives effect to Schedule 15.

Schedule 15: Transitional provisions relating to Part 8

558.     Paragraph 1 contains a power for the Secretary of State to make a scheme for staff of the ALI and the CSCI (who are not currently civil servants) to become staff of the Office. The Schedule provides that the scheme may contain provisions as to continuity of employment.

559.     Paragraph 2 contains a power for the Secretary of State to make a property transfer scheme, transferring to the Office or the Chief Inspector any property, rights and liabilities of the existing HM Chief Inspector of Schools, HM Inspectorate of Court Administration, ALI, CSCI or the Secretary of State. Sub-paragraph (2) allows

for the possibility of property, rights and liabilities of the ALI being transferred to a person other than the Office or the Chief Inspector.

560.     Paragraph 5 contains supplementary provisions to allow a scheme to make provision about the determination of matters arising under staff and property transfer schemes under paragraphs 1 and 2 of the Schedule.

561.     Paragraph 7 allows for the Office and HM Chief Inspector of Schools to prepare for the exercise of the Chief Inspector's functions of the Office under this Part. The Office may be established before the Chief Inspector acquires his functions under this Part and other enactments. The Secretary of State may make regulations which confer functions on the Office and HM Chief Inspector of Schools in England in respect of the period from the establishment of the Office to the day on which the Chief Inspector acquires his functions.

PART 9: MISCELLANEOUS

Clause 145: Power of Chief Inspector to investigate complaints by parents about schools

562.     This clause inserts three new sections into the 2005 Act in relation to the powers of Ofsted.

563.     Section 11A enables the Chief Inspector to investigate certain written complaints ("qualifying complaints") about matters of a prescribed description relating to schools, for the purpose of deciding whether to take further action, and in particular whether to use his existing inspection functions. The schools which are covered are: community, foundation and voluntary schools; community and foundation special schools; maintained nursery schools; Academies; city technology colleges; city colleges for the technology of the arts; and special schools which are not community or foundation special schools but are for the time being approved by the Secretary of State under section 342 of the 1996 Act.

564.     Section 11B applies to qualifying complaints made by registered parents of registered pupils at a school. It requires the governing body of a school (which, for a non-maintained school, is the proprietor of the school for the purposes of this section) and/or local education authority, in the case of a maintained school, to make specified information and/or information relevant to the investigation available to the Chief Inspector on request.

565.     Subsections (4) and (5) require the Chief Inspector, where he decides to hold a meeting with parents, to notify the governing body of the school (as defined), or, where the school is a maintained school which does not have a delegated budget, the local education authority. The governing body or local education authority (as appropriate) is required to co-operate in arranging the meeting, including fixing a date

for the meeting, allowing for the meeting to take place on the school's premises and notifying parents of the meeting.

566.     Subsection (6) enables a representative of the governing body (as defined), and in the case of a maintained school, a representative from the local education authority, to attend the meeting.

567.     Section 11C makes provisions relating to the preparation and distribution of any report made by the Chief Inspector as a result of an investigation of a qualifying complaint under section 11B. Subsection (5) allows for the defence of privilege to any defamation action in relation to such a report.

Clause 146 and Schedule 16: Powers to facilitate innovation

568.     This clause introduces Schedule 16.

569.     Part 1 of Chapter 1 of the 2002 Act introduced a new power for the Secretary of State, or the National Assembly for Wales, to respond to an application by a qualifying body by making an order conferring an exemption or relaxing requirements, or modifying education legislation for a period of up to three years. The order enables innovative projects which in the opinion of the Secretary of State or National Assembly for Wales may contribute to raising educational standards achieved in England and Wales.

570.     Paragraph 1 of Part 1 of Schedule 16 has the effect of extending those eligible to apply for an order to include a governing body of a further education institution, a foundation (as defined by section 21(3)(a) of the 1998 Act) and, with the agreement of the relevant school governing body, a headteacher. The amendment made by paragraph 1(4)(b) so far as relating to paragraph (f) of the definition of "qualifying body" is a technical amendment to describe the qualifying body of an Academy, a city technological college or a city college for the technology of the arts as the proprietor. All other amendments in paragraph 1 are consequent upon these changes.

571.     Paragraph 2(2) of Part 1 amends section 2 in respect of applications by foundations to allow the order to change law which relates to the governing bodies of the relevant schools.

572.     The duration of the power is currently limited to 4 years from commencement (and was commenced in relation to England on October 1^st 2002). Paragraph 2(3) removes this restriction.

573.     Paragraph 3(3) of Part 1 requires that a headteacher of a maintained school obtains the consent of the governing body of the school to his application.

574.     Paragraph 3(4) has the effect of ensuring that a qualifying foundation cannot make an application unless the governing body of each school to which the application relates and the local education authority who maintain the school have been consulted and that, where an application is to be made by the governing body of a maintained school that is a foundation or foundation special school with a foundation, the qualifying foundation has been consulted.

Clause 147: Powers to repeal references to "local education authority" and "children's services authority" etc.

575.     This clause gives the Secretary of State and the National Assembly for Wales, subject to the procedural requirements and limitations set out in the clause, a power by order to repeal references in primary and secondary legislation to the terms "local education authority" and "children's services authority". The power will enable the Secretary of State or the Assembly to replace such references with references to a local authority, or to make other appropriate modifications to the references.

576.     Such modifications might include modifications to legislation requiring local authorities to consult or cooperate with local education authorities, depending, for example, on whether or not the local authorities and local education authorities concerned were intended to be one and the same authority, or different authorities within two-tier areas, or neighbouring authorities; or the repeal of provisions that are spent or have ceased to be of any practical utility.

577.     The Secretary of State's power can, with the consent of the Assembly, cover references to local education authorities and children's services authorities so far as those references relate to Wales. The Assembly's concurrent power can only cover references to local education authorities and children's services authorities so far as those references relate to Wales.

578.     County level and unitary authorities provide children's services, and are subject to the provisions of the Children Act 2004 in relation to the designation of a lead member for children's services and the appointment of a Director of Children's Services. Such authorities are referred to in the Children Act 1989 as "local authorities" and in the Children Act 2004 as "children's services authorities". The same authorities have responsibilities relating to education and, in the context of education, are "local education authorities". This clause is therefore intended to enable the completion of the statutory measures to facilitate the integration of children's services in local authorities.

Clause 148: Provision of information about children receiving funded education outside school

579.     This clause will enable the Department for Education and Skills to collect individual information about children receiving education funded by the local education authority otherwise than at a school (which includes children in hospital and those taught by voluntary providers).

580.     The clause inserts a new section 537B in the 1996 Act. This mirrors section 537A of the 1996 Act which provides for the same data to be collected for children educated in schools.

581.     Subsections (1) and (2) of the inserted section allow regulations to be made requiring prescribed information relating to children for whom such education is provided to be provided by the education provider to the Secretary of State, or another prescribed person as defined in regulations. Provision is also made for the disclosure by the Secretary of State and certain other persons of information relating to children for whom such education is provided. The remainder of the section allows for that information to be exchanged between other relevant parties as set out in the section or as prescribed in regulations. Subsection (7) prohibits the publication of information received as a result of the section in a form including the name of the child to which it relates.

582.     The main purpose of collecting the information provided for by this clause is to enable the Department for Education and Skills to allocate funding to local education authorities more accurately following the introduction of the ring-fenced Dedicated Schools Grant from April 2006: information for these groups has previously been collected only on an aggregate basis, which is less reliable than using individual level data.

Clause 149: Collaboration arrangements: maintained schools and further education bodies

583.     This clause provides that regulations may enable the governing bodies of maintained schools to make collaboration arrangements with further education bodies, and further education bodies to make collaboration arrangements with schools and with other further education bodies. It will sit alongside the provisions of section 26 of the 2002 Act governing collaboration amongst maintained schools only.

584.     Subsection (2) defines "collaboration arrangements" as arrangements for any of the functions of any of the bodies concerned to be discharged jointly or by a joint committee of the bodies.

585.     Subsections (3) and (4) provide that regulations may make particular provision about the constitution and procedure of joint committees of the collaborating bodies, and the functions of collaborating bodies that may be discharged jointly or by joint committees.

586.     Subsection (5) provides that regulations may modify any legislation relating to the functions of the collaborating bodies, or relating to the bodies by whom those functions are to be discharged, in its application to those functions or bodies.

587.     Subsection (6) contains definitions of "further education body" and "maintained school" for the purposes of the clause.

Clause 150: Maintained nursery schools: amendment of section 496 and 497 of EA 1996

588.     The 2002 Act required maintained nursery schools to have governing bodies from 1 September 2003 for the first time. Prior to that, the governance of such schools was covered by the functions of local education authorities. However, sections 496 and 497 of the 1996 Act were not amended by the 2002 Act to apply to these new governing bodies. This clause therefore puts the governing bodies of maintained nursery schools on a similar footing to the governing bodies of other maintained schools by making it possible for the Secretary of State or the National Assembly for Wales to issue a direction under section 496, or make an order under section 497, if the governing bodies of maintained nursery schools are unreasonably exercising, or are in default with regard to, their functions.

Clause 151: Miscellaneous amendments relating to schools in Wales

589.     This clause provides for Schedule 17 to have effect which contains minor amendments relating to schools in Wales.

Clause 152: Support schemes in relation to education and training for persons aged 10 to 15

590.     This clause confers on the Learning and Skills Council for England (LSC) a power to manage and fund particular types of support for learners aged between 10 and 15, for the purpose of encouraging them to undergo education and training. This will allow the DfES to continue the transfer of the management of learner support to the LSC as recommended in the Department's efficiency scrutiny.

591.     Examples of provision that may be made by the LSC include support for childcare under the Care to Learn scheme. The Care to Learn scheme is a Departmental scheme to give financial support to teenage parents who want to continue their education or training and need help with the cost of their childcare. Responsibility for managing this scheme has already transferred to the LSC for young parents aged 16 to 18 and it is considered important for the scheme to be managed as a single and efficient scheme to offer support to return to learning to all young parents under 19. Provision in respect of learners aged under 16 is currently made by the Secretary of State under sections 14 to 17 of the 2002 Act.

592.     It is also expected that the LSC will be involved in arranging other types of learner support including transport for students under 16 who are following a mixture of academic education and vocational training in further education institutions.

Clause 153: University bodies: amendments of section 29 of Leasehold Reform Act 1967

593.     The Leasehold Reform Act 1967 enables tenants of houses held on long leases at low rents to either acquire the freehold or an extended lease of those houses. Section 29 of the 1967 Act enables university bodies who are landlords, on the acquisition of the freehold by or the granting of an extended lease to a tenant, to impose with the consent of the Secretary of State or the National Assembly for Wales (as the case may be) restrictive covenants on tenants for the purpose of reserving the relevant land for possible development by that body or a related university body.

594.      "University body" and "related university body" are defined in section 28 of the 1967 Act and include bodies such as universities and colleges of a university.

595.     This clause amends section 29 of the Leasehold Reform Act 1967 so that university bodies will be able to impose covenants without needing first to obtain the consent of the Secretary of State or the National Assembly for Wales. The amendments also make clear that such covenants can only be imposed for the purposes of the university body concerned or any related university body.

596.     The Secretary of State or National Assembly for Wales' consent will still need to be obtained in respect of applications not determined at the date on which this section comes into force: see subsection (4).

PART 10: GENERAL

597.     This Part contains general provision including those relating to the functions of the National Assembly for Wales, subordinate legislation, general interpretation, repeal, commencement and extent.

Clause 154: Framework power relating to Wales

598.     The purpose of this clause has its foundation in the principles set out in the Wales Office's White Paper: Better Governance for Wales (Cm 6582), which was presented to Parliament on 15th June 2005. The White Paper contains the Government's proposals for developing the devolution settlement in Wales. It confirms that the Government intends immediately in drafting primary legislation relating to Wales ".to delegate to the Assembly maximum discretion in making its own provisions using secondary legislative powers" (see paragraph 1.24).

599.     This clause permits the National Assembly for Wales to make regulations applying to Wales in respect of: categories of maintained school; establishment, discontinuance and alteration of maintained schools; school admissions; the curriculum in maintained schools; attendance, discipline and exclusion; entitlement to education and training, and services to encourage, support or assist young people with regards to education and training; travel of persons receiving education and training; and food and drink provided for children.

600.     Subsections (1) (a) to (j) permit the National Assembly for Wales to make regulations for a range of matters which are relevant to education and training in Wales. The scope of the powers is broad to allow the Assembly to determine arrangements that are most relevant to its policies and plans for education and training in Wales.

601.     Subsections (1)(a) and (b) permit the Assembly to make provision about the organisation of maintained schools and subsection (1)(c) permits the Assembly to make provision about the admission of pupils to maintained schools.

602.     Subsection (1)(d) permits the Assembly to make provision about the curriculum in maintained schools.

603.     Subsection (1)(e) and (f) permit the Assembly to make provision about a range of matters relating to school attendance, discipline and behaviour and putting in place educational provision for excluded pupils.

604.     Subsection (1)(g) permits the Assembly to make provision about entitlement to education and training and subsection (1)(h) permits provision to be made for services to encourage people to participate effectively in education and training, take advantage of employment opportunities and participate effectively in their communities.

605.     Subsection (1)(i) permits the Assembly to make provision about travel for persons receiving primary, secondary, or further education or training, to and from schools or other places where they receive education or training.

606.     Subsection (1)(j) permits the Assembly to make provision about food and drink consumed by children in schools and day care.

607.     Subsection (4) establishes that regulations made by the National Assembly for Wales under this clause may include any provision that could be made by an Act of Parliament. Subsection (5) ensures that the provision made by the regulations could include the amendment or repeal of provisions of the Bill relating to Wales. The scope of the regulation-making power is similar to the regulation-making power in section 2(2) and (4) of the European Communities Act 1972.

Clause 155: Restrictions on framework power conferred by section 154

608.     This clause places restrictions on clause 154.

609.     Subsection (1) places a number of restrictions on the National Assembly for Wales in exercising its power under subsections (1)(a) to (h) of clause 154. The Assembly cannot:

• make any provision imposing or increasing taxation;

• give any of the provisions in the regulations retrospective effect;

• sub-delegate the power to legislate;

• create any new criminal offence, other than summary offences in relation to the matters mentioned in clause 154(1)(e);

• make provision extending otherwise than to England and Wales; or

• make any provision which applies to England, without the consent of the Secretary of State.

610.     Subsection (2) authorises the modification of existing delegated powers to legislate despite the restriction on the sub-delegation of power in subsection (1)(c). Subsection (3) provides that a power to give directions as to matters of administration is not to be regarded as a power to legislate within the meaning of subsection (1)(c). Subsection (4) authorises the modification of existing offences despite the restriction on the creation of new offences in paragraphs (d) and (e) of subsection (1). Subsections (5) and (6) place restrictions on the powers in subsections (1)(e) and (1)(h) of clause 154 so that the consent of the Secretary of State is required before the Assembly can make regulations about the specified matters (which are the general responsibility of the Home Office in relation to Wales). Subsection (7) places a restriction on the power conferred on the National Assembly by subsection (1)(j) the effect of which is that it cannot make regulations about matters for which the Department for Transport is currently responsible in relation to Wales.

Clause 156: Functions to be exercisable by National Assembly for Wales

611.     Most of the functions of the Secretary of State under education legislation have, so far as they relate to Wales, been transferred to the National Assembly for Wales by Order in Council under section 22 of the Government of Wales Act 1998 (c. 38). Textual amendments to reflect this have not been made to the legislation. The legislation therefore continues to refer to the Secretary of Sate only, but references to the Secretary of State have to be read, in relation to Wales, as references to the National Assembly for Wales.

612.     This clause ensures that any functions conferred on the Secretary of State under the clauses listed in subsection (2) so far as exercisable in relation to Wales are taken to have been transferred to the Assembly by such an Order.

Clause 159: Power to make consequential and transitional provision etc.

613.     This provision enables the Secretary of State by regulations to make such supplementary, incidental, consequential, transitional or saving provision as she considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to, any provision of the Bill.

614.     Where such regulations made by the Secretary of State amend or repeal primary legislation, they must be approved by resolution of each House of Parliament (see clause 158(3)(b)).

PUBLIC SECTOR FINANCIAL COST

615.     It is not anticipated that any additional expenditure should fall on the Consolidated Fund or the National Loans Fund as a consequence of this Bill. In England, there are sufficient resources within the Departmental Expenditure Limit to cover all costs of the provisions of this Bill.

616.     In Wales, the financial impact of changes and any implications for public sector manpower will be considered by the National Assembly as the proposals are brought forward.

Part 1

617.     This Part sets out the functions of local education authorities in addition to those general functions provided for in the 1996 Act. The duties to promote the fulfilment of educational potential, diversity and choice will not necessarily entail additional costs for local education authorities. In relation to the duty to consider parental representations local education authorities will need to dedicate resources to respond to parents. Local education authority responses will be proportional to the number and type of representations. It is assumed that where the responsiveness duty is triggered the cost to the local education authority will approximate to £12,000 and that the duty will be triggered 50 times a year, so on this basis the total cost of the responsiveness duty would be £600,000.

618.     The duty on local education authorities to identify children missing education will impact on local authorities from 2007-08. It is estimated that it will cost between £30,000 and £60,000 per annum per local education authority, or nationally £7 million per annum.

619.     The provision for School Improvement Partners (SIPs) entails cost to local education authorities of about £28m a year from April 2008. Of that, the department expects to contribute around £21m a year.

620.     In relation to the provisions setting out the local education authorities functions in respect of recreational facilities, top tier authorities will incur costs in order to fulfil the requirements set out in this Bill. It is estimated that these will be in the order of £13,000 per authority for 2006/08 (£2 million nationally).