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These notes refer to the Education and Skills Bill as introduced in the House of Commons on 28th November 2007 [Bill 12]
EDUCATION AND SKILLS BILL
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Education and Skills Bill as introduced in the House of Commons on 28th November 2007. They have been prepared by the Department for Children, Schools and Families in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
3. In July 2007, the Government published World Class Skills: Implementing the Leitch Review of Skills in England which can be accessed at http://www.dfes.gov.uk/ skillsstrategy/uploads/documents/World%20Class%20Skills%20FINAL.pdf. This document set out the Government's plans to improve the skill levels of young people and adults.
4. The Green Paper Raising Expectations: staying in education and training post-16, published in March 2007, dealt specifically with young people and set out, for consultation, proposals to raise to 18 the age until which young people must remain in education or training. The Green Paper and a summary of the responses can be found at: http://www.dcsf.gov.uk/consultations/downloadableDocs/Raising%20 Expectations%20Consultation%20Report.pdf. More detailed legislative proposals drawn up following the consultation were set out in November 2007 in the publication, Raising Expectations: staying in education and training post-16 - from policy to legislation, which can be found at http://www.dcsf.gov.uk/14-19/index.cfm? sid=42&pid=344&ctype=TEXT&ptype=Single.
Bill 12—EN 54/3
5. The purpose of the Bill is, first, to change the statutory framework to put a duty on all young people to participate in education or training until the age of 18, with corresponding duties on local education authorities and employers to enable and support participation. Second, it amends legislation about the provision of adult education and training, and support for young people. Third, the Bill changes the regulatory framework for inspection of independent educational institutions, non-maintained special schools and providers of initial teacher training. The Bill also includes a number of miscellaneous provisions in relation to behaviour, the Qualifications and Curriculum Authority (QCA) and schools forums.
6. The Bill is organised into five parts with two schedules. Schedule 1 deals with minor and consequential amendments, schedule 2 covers repeals and revocations. In summary, the Bill:
Part 1: Duty to participate in education or training: England
- Places a duty on young people to participate in education or training until the age of 18;
- Requires local education authorities to promote the effective participation of young people in their areas who are subject to the duty to participate;
- Allows for the sharing of data between the Secretary of State and local education authorities to facilitate the provision of support services and enable the authorities to identify young people that are failing to participate;
- Makes provision for duties on employers to enable young people who are their employees to participate;
- Sets out the circumstances in which a local education authority may issue a parenting contract or order to a parent of a young person who is failing to fulfil the duty to participate;
- Provides for local education authorities to issue attendance notices to young people who are not participating and to set up independent attendance panels to monitor the ensuing enforcement process and provide a mechanism for appeal;
Part 2: Support for participation in education or training: Young adults with learning difficulties and young people in England
- Makes provision for the transfer to local education authorities of the support services currently carried out by the Connexions service;
- Places a duty on local education authorities to arrange for the assessment of the educational and training needs of a person with a statement of special educational needs at some time during the person's last year of schooling;
- Amends the requirements on secondary schools to require them to present careers information in an impartial manner and to provide careers advice which is in the best interests of the pupils;
- Makes explicit the duty on the Learning and Skills Council (LSC) to provide proper facilities for apprenticeships for 16 to 18 year olds, and requires that the LSC must make reasonable provision for apprenticeships for those aged 19 and over;
- Introduces a requirement on local education authorities to have regard to journey times in preparing their transport statements for people of sixth form age to attend educational establishments;
- Requires local education authorities to co-operate with partners who are responsible for 14-19 education and training;
Part 3: Adult skills
- Places a duty on the LSC to secure proper provision for education and training to enable learners aged 19 and over to undertake certain courses of study;
- Requires the LSC to pay the tuition fees of learners studying on specified courses;
- Allows the Secretary of State, the devolved administrations and Her Majesty's Revenue and Customs to share information on tax and employment and benefit and training information in prescribed circumstances;
Part 4: Regulation and inspection of independent educational provision in England
- Creates a new category of independent educational institution to which the regulatory regime for independent schools in England is extended. That regime (currently in Chapter 1 of Part 10 of the Education Act 2002) is restated in Chapter 1 of this Part;
- Provides that Her Majesty's Inspector of Education, Children's Services and Skills ("the Chief Inspector") is the registration authority for independent educational institutions;
- Enables the Secretary of State to appoint an independent inspectorate to carry out inspections of registered independent educational institutions and requires the Chief Inspector to prepare a report about independent inspectorates;
- Provides the Chief Inspector with the power to require an action plan from a proprietor of an independent educational institution where the standards are not being met;
- Provides a power for the Chief Inspector to apply to a Justice of the Peace to impose an immediate restriction on an independent educational institution in an emergency where there is significant risk of harm to a student at the institution;
- Enables the Secretary of State to make regulations to apply any provisions of the regime for the regulation of independent educational institutions to independent post-16 colleges;
- Amends the Education Act 1996 to transfer the function of approving non-maintained special schools from the Secretary of State to the Chief Inspector;
- Provides a right for sixth form pupils in non-maintained special schools to opt out of religious worship;
- Provides a power to make regulations under which the Chief Inspector could apply to a Justice of the Peace for an order to withdraw approval from a non-maintained special school in an emergency where there is significant risk of harm to a student at the institution;
- Amends section 347 of the Education Act 1996 which requires the Secretary of State to approve independent schools for the placement by local education authorities of pupils with statements of special educational needs, and to give his consent for the placement of such pupils in "non-approved" independent schools. The amendments alter the section so that the approval and consent for which it provides are only necessary for schools in Wales (where they are given by the Welsh Ministers);
Part 5: Miscellaneous and general
- Creates a framework power for the National Assembly for Wales to legislate in relation to the inspection of pre-16 education and training;
- Extends an existing power for governing bodies of maintained schools in England to direct pupils to learn outside the school premises to receive provision to improve their behaviour;
- Amends the Learning and Skills Act 2000 to remove the requirement for the Secretary of State or Welsh Ministers to give his consent to all decisions of a designated body to approve qualifications as eligible to receive public funding;
- Creates additional functions for the QCA or Welsh Ministers to recognise bodies that wish to award or authenticate qualifications;
- Removes the legislative requirement for the Chief Inspector to notify providers of initial teacher training in England eight weeks before an inspection;
- Enables regulations to require schools forums to include non-schools representatives amongst their members.
TERRITORIAL EXTENT
7. At Introduction this Bill contains provisions that trigger the Sewel Convention. The relevant clauses 71, 72, 73, 74 and 75 relate to sharing information on tax and employment and benefit and training information for specified purposes. The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. If there are subsequent amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will also be sought for them.
8. The provisions relating to Northern Ireland concern changes to the remit of the QCA. Clause 137 extends the remit of the QCA in Northern Ireland to enable it to develop and publish criteria for the recognition of bodies wishing to award or authenticate qualifications. Clause 139 extends the powers of the QCA in Northern Ireland to cover the regulation of vocational qualifications currently excluded from its scope. A legislative consent motion from the Northern Ireland Assembly will be required before the clauses can be brought into force.
TERRITORIAL APPLICATION: WALES
9. The Bill confers a number of new or expanded powers on the Welsh Ministers, in line with changes being made to certain powers of the Secretary of State in relation to England.
10. Table 1 lists the provisions that affect the existing powers of the Welsh Ministers, confer new powers on them, or otherwise affect Wales.
Table 1: Clauses which affect the existing powers of the Welsh Ministers, confer new powers on them, or otherwise affect Wales
| Clause | Subject of clause | Effect on the powers of the Welsh Ministers |
33
| Other amendments of Employment Rights Act 1996 | This is a consequential amendment and does not alter the existing powers of the Welsh Ministers. |
| 71 | Revenue and Customs information | Allows Her Majesty's Revenue and Customs to share information about individuals' tax and employment with the devolved administration |
| 72 | Benefit and training information | Enables information on individuals' benefits to be disclosed to the Welsh Ministers and for information on individuals' learning activities to be disclosed between the Secretary of State and the Welsh Ministers |
| 73 | Use of information | Provides a power for the Welsh Ministers to use revenue and customs and benefit and training information in specified ways supplied by HMRC |
| 74 | Wrongful disclosure of information | Creates a new offence in England and Wales for wrongful disclosure of information |
| 115 | Directions under section 113: information | Enables the Welsh Ministers to provide information about persons in connection with the Ministers' statutory duties to protect children and vulnerable adults |
| 129 | Abolition of requirement of approval for independent schools: England | Names the Welsh Ministers as having the power to approve an independent school for the placement of children with statements of special educational needs in Wales (consequential). Welsh Ministers will have the power to consent to a child with a statement of special educational needs in Wales being sent to an independent school in England |
| 130 | Approval of independent schools: consequential amendments | Welsh Ministers will have the power to consent to a child with a statement of special educational needs in Wales being sent to an independent school in England |
| 131 | Approval of independent schools: transitional provision | Names the Welsh Ministers as having a power to withdraw consent for an independent school to educate children with statements of special educational needs (consequential) |
| 132 | Pre-16 education and training: Wales | Confers a new power on the National Assembly for Wales to make provision in connection with the inspection of education and training for those aged 16 and under |
| 136 | Approved external qualifications: Wales | Removes the requirement that Welsh Ministers consent to approve an external qualification provided in Wales |
| 138 | Functions of Welsh Ministers etc | Aligns the Welsh Ministers' remit in relation to the recognition of persons wishing to award or authenticate qualifications in relation to Wales with the functions of the QCA in relation to England and Northern Ireland |
141
| Constitution of schools forums | Power for Welsh Ministers to make regulations for a schools forum to contain non-schools members |
142
| Orders and regulations | Welsh Ministers are to make commencement orders by way of statutory instruments |
| 146 | Power to make consequential and transitional provision etc | Power for the Secretary of State to make by regulations consequential or transitional provisions |
| 148 | Extent | Sets out that the Act extends to England and Wales |
| 149 | Commencement | Enables the Welsh Ministers to lay an order to bring certain clauses into force |
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COMMENTARY ON CLAUSES
11. The following definitions occur in the notes in relation to the whole of the Act:
* 1996 Act is the Education Act 1996
* 1997 Act is the Education Act 1997
* 1998 Act is the School Standards and Framework Act 1998
* 2000 Act is the Learning and Skills Act 2000
* 2002 Act is the Education Act 2002
* 2005 Act is the Education Act 2005
* 2006 Act is the Education and Inspections Act 2006
Local education authority
Legal background
12. Throughout the notes the term "local education authority" is used to refer to those local authorities with education functions identified in section 12 of the 1996 Education Act. The term "local education authority" has been in use since 1944 to identify those authorities but it has given rise to some perceptions that a local education authority has an identity of its own separate from the local authority.
13. In line with government policy to improve outcomes for children by promoting greater cooperation between agencies delivering children's services, and the introduction of the post of director of children's services and lead member for children's services in the Children Act 2004, local authority children's services (mainly education and children's social services) are being integrated. To reflect this it is now government policy that the terms "local education authority" and "children's services authority" should no longer be used. To make this fully effective requires an equivalent change in the terminology used in legislation.
14. Education legislation, however, uses the term "local education authority" and, as the Bill both amends and builds on a number of Education Acts, it has been necessary to continue to use the term local education authority in the Bill. It is therefore used throughout these notes (and, where appropriate, is abbreviated to LEA). But in due course an order made under section 162 of the 2002 Act will convert references in legislation to "local education authority" (and references in legislation to "children's services authority") to references to "local authority".
Part 1: Duty to participate in education or training: England
Clauses 1 and 2: Duty to participate in education or training
15. The first two clauses establish a duty on young people to participate in a form of education or training, and set out the young people to whom that duty applies. Clause 2 creates the central duty ("the duty to participate in education or training") and details the ways in which young people may fulfil that duty. The eligible forms of education or training are:
a) appropriate full-time education or training;
b) a contract of apprenticeship; or
c) part time education or training towards an accredited qualification as part of full-time occupation or alongside occupation of more than 20 hours a week.
16. Clause 1 sets out the people subject to the duty to participate in education or training. It applies to any person who is resident in England, has ceased to be of compulsory school age but not yet reached the age of 18, and has not attained a qualification at level 3.
Clauses 3, 4, 5, 6, 7, 8 and 9: Interpretation
17. In Clause 3, level 3 is defined as the level of attainment which is demonstrated by two A levels. The clause enables regulations to set out the qualifications that will count for this purpose. It is intended that these will include the Progression Diploma and the Advanced Diploma once these are available. Clauses 4 to 9 provide definitions for the types of participation that will fulfil the duty. Clause 4 defines appropriate full-time education or training as efficient full-time education or training suitable to the person's age, ability, aptitude and any learning difficulty they have, provided at a school, college of further education or otherwise. For example, this provides that home education would fulfil the central duty to participate. "Full-time" is not defined in legislation for compulsory school age, but this clause mirrors section 7 of the 1996 Act which provides for compulsory education pre-16.
18. For the purposes of this Part, clause 5 defines full-time occupation as working for 20 hours or more per week under a contract of employment or in any other way which may be prescribed in regulations. Clause 5 provides for regulations to be made determining whether people should be treated as working 20 hours where their normal working hours vary from week to week. Regulations made under subsection 1(b) can prescribe any other kinds of occupation that should count for these purposes, including volunteering, agency work and working as the holder of an office (for example, police officers or public appointees). By virtue of clause 50, Crown employment (for example civil servants or those in the armed forces) counts as work under a contract of employment.
19. Clause 6 defines relevant training or education for people. It must consist of a course or courses leading towards a qualification accredited by the QCA.
20. Clause 7 defines a relevant period. The time when a person is subject to the duty is divided into relevant periods. This is any period of time starting when the duty to participate in clause 2 applies to a young person if they are not fulfilling the duty through full-time education or training or under a contract of apprenticeship. It ends either when the duty no longer applies to them, or they start full-time education or training, or commence a contract of apprenticeship, or at a date set in regulations. Prescribing the end date allows the provisions to apply only to the time when the person is fulfilling the duty under clause 2(1)(c) so that he or she could, for example, go back into full-time education under clause 2(1)(a) after a period of relevant training and then change back to relevant training when a new relevant period would start.
21. Clause 8 provides that, if a person fulfils the duty to participate by working and pursuing part time education or training towards an accredited qualification, then the training provided by a person's employer, or any other education or training towards accredited qualifications, must be equivalent to 280 guided learning hours per year. It establishes that those guided learning hours may be actual hours of guided learning or a value assigned to an accredited qualification by the QCA. Regulations will prescribe what constitutes sufficient education or training where this option is pursued for periods of less than a whole year, for instance where a young person changes the way they are fulfilling the duty mid-way through a year, or because their 18th birthday falls before the end of the year. Clause 9 requires the QCA to assign guided learning hours in accrediting qualifications. Provision is made for sufficient education or training to be defined through regulations where a course runs for a period of time that is not one year.
Chapter 2: Local Education Authorities and Educational Institutions etc
Clause 10: Duty to promote fulfilment of duty imposed by section 2
22. Clause 10 establishes a duty on local education authorities to promote participation of young people in education or training in their area who are subject to the duty to participate under clause 2.
Clause 11: Duty to promote good attendance
23. Clause 11 places a new duty on governing bodies of certain institutions in England to promote attendance for the purpose of enabling young people to meet the duty to participate under clause 2. The duty applies to community, foundation or voluntary schools and special schools, to pupil referral units, and to further education institutions. The LSC will be asked to place the same duty on the private providers that it funds, through its existing power to attach conditions to funding under section 6 of the 2000 Act. This new requirement to promote attendance applies in relation to young people subject to the new duty to participate.
Clause 12: Duty to make arrangements to identify persons not fulfilling duty imposed by section 2
24. This clause places a duty on local education authorities to identify those young people in their area who are subject to the duty to participate and failing to fulfil it.
Clauses 13, 14, 15, 16 and 17: Information
25. Educational institutions are under a duty to notify the appropriate service provider if a person is not participating and they believe that the person is not fulfilling the duty (clause 13). The clause sets out to which institutions the duty applies, and who is the appropriate service provider. "Service provider" means the local education authority where the authority provides services in exercise of its functions under clause 54 or, alternatively, where, in the exercise of those functions, the authority makes arrangements for the provision of those services, the person providing those services.
26. Clause 14 sets out the information that learning providers must provide to enable local education authorities to identify those young people who are not participating, and what information the young person (or their parent, where the young person is younger than 16) can instruct not to be provided.
27. The Secretary of State, under clause 15, may supply social security information to enable a local education authority to fulfil its functions under this Part. The clause sets out under what circumstances further disclosure of this information is permissible, under what circumstances it is an offence and the penalty that may be imposed.
28. Clause 16 sets out which other public bodies may share information about a young person with a local education authority in order for it to fulfil its duty. The purpose of the clause is to allow public bodies to provide information to local education authorities where other statutory provisions would prevent their doing so. Clause 17 allows data held by local education authorities and data held by their service providers to be shared and used, either for purposes under Part 1 of the Bill, or for the purposes of clauses 54 to 63. The intention is that local education authorities will continue to maintain the database currently established and maintained under the Learning and Skills Act 2000 to help them provide the right support services to young people (under Part 2 of this Bill) and promote fulfilment of the duty to participate (under Part 1).
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