Clause 18: Guidance

29.     This clause requires local education authorities when exercising their functions in this Part to have regard to any guidance given by the Secretary of State.

Chapter 3: Employers

Clauses 19 and 20: Interpretation

30.     Clause 19 defines the contracts of employment to which duties in this Chapter apply. These are contracts with a duration of more than eight weeks and which include more than 20 hours work per week. Clause 20 explains what counts as making appropriate arrangements. A person has made appropriate arrangements if they have enrolled on a course or courses constituting relevant education or training (defined in clause 6), or arrangements have otherwise been made for them to receive relevant education or training, or if they are participating in full-time education or training. A person does not need to have enrolled for sufficient (that is, enough hours in the relevant period) relevant education or training in order to count as having made appropriate arrangements.

Clauses 21, 22, and 23: Commencement of employment

31.     Clause 21 places a duty on employers not to employ a person unless they have taken reasonable steps to check that the person has made appropriate arrangements to participate in relevant education or training. For example, an employer would check that a potential employee could produce a letter from a learning provider indicating that he or she had enrolled on a course. It provides for an exception to this if the contract is made conditional on the person making arrangements to undertake appropriate education or training, in which case they must have done so before employment commences. This enables an employer to have a role in a young person's decision about the type of education or training to pursue.

32.     If an employer does not fulfil this duty, clause 22 provides for a local education authority to serve a penalty notice on the employer and sets out the circumstances in which the notice can be given. It provides for the amount of the financial penalty to be determined by regulations, and sets out the requirements for what is included in the notice. A local education authority is given the power to withdraw a penalty notice under clause 23.

Clauses 24, 25, 26, 27, 28, 29 and 30: Employer to enable participation in education or training

33.     These clauses place a duty on employers to permit an employee, who is subject to the main duty, to participate in education or training. Clauses 24 and 25 set out how a young person can notify an employer of the arrangements for appropriate education or training that they have made, what form that notification should take and what information the young person must tell the employer. Where a young person notifies the employer before beginning employment, the employer may fulfil the duty by arranging the employee's working hours around the time he or she is required to attend training, by allowing the employee time off to participate, or through a combination of these two mechanisms. Hours spent training will not count towards the 20 hours of work per week a young person must be doing to be counted as being in full-time occupation. This may mean that the employer needs to rearrange working hours rather than allowing time off during working hours, in order not to take the employee below the 20 hours per week required.

34.     If notification is given after employment has begun, for example where arrangements have changed, under clause 25 the employer must, so far as is reasonable, permit the employee to participate in education or training in accordance with appropriate arrangements. The employer may fulfil the duty by offering to vary the terms and conditions of the employment contract, or by permitting the employee to take time off to participate, as far as is reasonable. What is reasonable is determined by having regard both to the needs of the young person in fulfilling the duty to participate and the circumstances of the employer's business.

35.     Clause 26 provides that, if a person reaches 18 years of age, remains in employment and has been participating in education or training in order to fulfil the main duty, the duty on the employer remains in place until the course finishes, the young person ceases to be resident in England, the person attains a level 3 qualification or the person attains the age of 19. Clauses 24 to 26 replace in England the existing right in section 63A of the Employment Rights Act 1996 for 16 and 17 year olds to paid time off from work to attend training if they do not have a level 2 qualification.

36.     Clause 27 provides that an enforcement notice may be issued by the local education authority where the employer has not fulfilled the duty to enable participation. The Government's intention is to issue guidance to local education authorities to the effect that an employer should first be asked to fulfil the duty and given the chance to remedy the mistake voluntarily before an enforcement notice is issued. The notice sets out the steps the employer must take in order to meet the duty.

37.     If the employer fails to comply with the requirements in an enforcement notice, clause 28 provides that a local education authority can issue a penalty notice and states what information the penalty notice must contain. Clause 29 enables a local education authority to withdraw an enforcement notice, in which case no penalty notice can be issued. Clause 30 provides that a penalty notice can be withdrawn by a local education authority.

Clauses 31, 32 and 33: Supplementary

38.     Clause 31 and 32 amend existing legislation to add taking time off or seeking to take time off (or to rearrange working hours) in order to participate in education or training as a result of the duty in clause 2 to the grounds on which a person has a right not to suffer detriment, and to the grounds on which dismissal is to be treated as automatically unfair. Clause 33 provides that section 63A of the Employment Rights Act 1996, which establishes a right to paid time off for young people aged 16-19 if they do not already have a level 2 qualification, does not apply to people subject to the duty to participate but will continue to apply only in Wales and Scotland.

Chapter 4: Parenting contracts and parenting orders

39.     This Chapter enables local education authorities to take certain enforcement action against parents of young people who are not fulfilling their duty to participate, where this would be in the interests of ensuring that the young person participates.

40.     Clause 34 confers on local education authorities in England the power to enter into parenting contracts with a parent of a young person who is subject to the duty to participate and is not fulfilling that duty.

41.     A parenting contract is a voluntary agreement. Subsection (6) means that parenting contracts cannot result in certain types of legal action by either party. Those types of legal action are for breach of contract and for civil damages. A parenting contract is a document signed by the parent and on behalf of the local education authority, containing a statement by the parent agreeing to comply with the requirements in the contract, and a statement by the local education authority that it agrees to provide support to the parent for the purpose of complying with the contract's requirements. The aim is to ensure that the young person fulfils their duty to participate. Parenting contracts under clause 34 are similar to parenting contracts under the Anti-Social Behaviour Act 2003. If a parent does not enter into a parenting contract when it is offered, or fails to comply with one, a court must take this into account in deciding whether to make a parenting order (see clause 36).

42.     Clause 35 enables local education authorities to apply to a magistrates' court for a parenting order in respect of a parent of a young person who is subject to the duty to participate and is not fulfilling that duty. A parenting order requires the parent to comply with the requirements specified in the order, for a specified period not exceeding 12 months. The requirements can include a counselling or guidance programme, part of which may be residential if certain conditions are met. A parent may, under clause 37, appeal to the Crown Court against a parenting order. Failure to comply with a parenting order is an offence.

43.     Clause 36 requires the court, in making a parenting order, to take into account any refusal by the parent to enter into a parenting contract, or any failure to comply with a parenting contract they have entered into. But a parenting order can be made without a parenting contract having been entered into.

44.     Clause 38 provides that local education authorities and responsible officers, in considering parenting contracts and parenting orders, must have regard to how a parent's actions, or lack of, affect a young person's duty to participate. A responsible officer in relation to a parenting order means an officer of a local education authority who is specified in the order. This clause also allows regulations to make provision about the exercise by local education authorities of their functions in relation to parenting contracts and parenting orders, and to require information to be provided by one local education authority to another. The reason for this provision is that a young person who is failing to fulfil the duty may be in the area of one local education authority, but his parent may be in the area of another.

Chapter 5: Attendance Notices

Clauses 39, 40, 41, 42, 43 and 44: Initial steps, attendance notices, attendance panels and appeals

45.     These clauses set out the procedure that a local education authority may follow should it believe that a person is failing without reasonable excuse to fulfil the main duty to participate under clause 2. Clause 39 makes clear that before commencing this process, the local education authority must ensure that appropriate support has been made available and that the young person has been given the opportunity to take advantage of services designed to support participation. It provides that the local education authority must then give the young person 15 days notice in writing of its intention to issue an attendance notice. If the only way in which the young person is failing to fulfil the duty is that the relevant education or training in which they are participating is not "sufficient" (not enough hours in the relevant period), it is for the local education authority to show that there is no reasonable excuse for not having made such arrangements, putting the burden of proof on the local education authority rather than on the young person. This may arise, for example, where a young person needs to await results for one course before enrolling on a subsequent course.

46.     If the young person fails to participate without reasonable excuse after the local education authority has given 15 days' notice in writing, clause 40 enables the local education authority to issue an attendance notice. The attendance notice must specify the type of provision that should be undertaken, a description of the course, and details of where and when the young person should attend. An attendance notice ceases to have effect when a young person is no longer subject to the duty to participate, for whatever reason.

47.     Clause 41 provides that the education or training specified in the attendance notice must be a course provided at a school, college or other education establishment or a contract of apprenticeship, and be a way of fulfilling the clause 2 duty. It must be suitable to the person and the local education authority must consult the provider of education or training.

48.     Clause 42 requires a local education authority to set up an attendance panel in accordance with regulations, with a chair that is not a member of the authority. The panel's functions include hearing appeals against attendance notices (as set out in clause 43), appeals against penalty notices (set out in clause 48), making recommendations to local education authorities, and considering local education authorities' intentions to commence court proceedings. Regulations will specify how the panel must be constituted and its procedures in carrying out those functions. The panel will be able to confirm or dismiss attendance notices and penalty notices, and make recommendations to the local education authority. Regulations under clause 42 may also apply sections 173 to 174 of the Local Government Act 1972 in relation to an appeals panel which put beyond doubt the kinds of allowances that could be payable.

49.     Clause 44 provides that a local education authority can vary or revoke an attendance notice in certain circumstances, and can specify additional education or training. In particular, where the education or training specified in the notice ends, and the young person is still subject to the duty, the local education authority may specify additional education or training.

Clauses 45, 46, 47 and 48: Failure to comply with attendance notice

50.     These clauses set out the enforcement procedures if a young person fails to comply with an attendance notice. Clause 45 sets out that non-compliance is an offence and liable to a fine of a maximum of level 1 on the standard scale. Currently level 1 is a maximum of £200, with the actual amount in each case being decided by the court in light of individual circumstances. Clause 46 provides that proceedings cannot be commenced unless a penalty notice has first been given under clause 47 and has not been paid. The attendance panel must also have been consulted. Proceedings cannot be started after the young person has ceased to be subject to the duty to participate.

51.     Clause 47 enables a local education authority to issue a penalty notice which gives the young person the opportunity to make a payment to the local education authority in order to release them from the possibility of being convicted for the offence of failing to comply with an attendance notice. Regulations can be made to specify the contents of penalty notices and to set out the amount of the penalty (which can be different in different circumstances).

52.     Clause 48 sets up the appeals procedure to an attendance panel against a penalty notice, which may be further provided for in regulations made under this clause.

Chapter 6: Miscellaneous

53.     For the purposes of Part 1, clause 49 enables regulations to state who is to be treated as the employer in relation to ways of working prescribed under clause 5, and to modify provisions in their application to these prescribed ways of working, to reflect different circumstances. One effect of this clause is that persons who are not normally regarded as employers (for example, the person in charge of a young person's voluntary work) could be treated as employers for these purposes.

54.     Clauses 50 and 51 set out how Crown employees and Parliamentary staff are to be treated in relation to Part 1 of the Bill.

55.     Clause 52 provides that financial penalties are payable to the local education authority and that funds from them can only be used for specified functions, which will be the process of giving and administering of penalty notices, or paid to the Secretary of State.

Part 2: Support for participation in education or training: young adults with learning difficulties and young people in England

Clauses 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64: Provision of support services

56.     Clauses 54 to 64 and clause 65 give effect to proposals set out in the Green Paper Youth Matters http://www.everychildmatters.gov.uk/_files/Youth%20 Matters.pdf (July 2005) to devolve the responsibility for delivering the service known as "Connexions" to local education authorities. The funding for the Connexions service will transfer to local education authorities in April 2008.

57.     Clause 54 places a duty on local education authorities in England to make available to young people and relevant young adults for whom they are responsible such services as they consider appropriate to encourage, enable or assist them to engage and remain in education or training. A relevant young adult is a person aged 20 to 24 years who has a learning difficulty within the meaning of subsections (5) and (6) of the 2000 Act. The services made available will continue to be known as Connexions services. This clause also provides for local education authorities to have regard to any guidance issued by the Secretary of State, and places them under a duty to comply with any directions given by the Secretary of State relating to the exercise of their functions under clause 54.

58.     Clause 54 enables a local education authority to make services available either by providing them or by making arrangements with others, including other local education authorities, for their provision. In addition, subsection (5) provides that the duty on a local education authority to make services available to a young person or relevant young adult for whom it is responsible does not apply if another local education authority is also responsible for the person and services are being provided to the person by that other authority or under arrangements made by it. Taken together with the definition of which persons are in the scope of a local education authority's responsibility in clause 63(2), clause 54(5) addresses the potential situation where two local education authorities are both under a duty to make services available to the same person.

59.     Clause 55 gives the Secretary of State the power to give directions to a local education authority relating to the exercise of its duty to provide support for effective participation (subsection (1) of clause 54). The clause provides that directions may specify the services to be made available to young persons and relevant young adults (for example, services for young people who are not in education, employment or training), and how those services are to be made available. Directions may also specify standards which are to be met in the provision of such services, for example, the minimum qualifications of Connexions personal advisers. In addition, directions may impose requirements as to record keeping and the provision of information in connection with service provision. The intention is that local education authorities will continue to maintain the Connexions database so as 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 Chapter 2 of Part 1).

60.     Subsection (3) makes clear that directions may require a local education authority to exercise its functions under clause 54 in such a way that the person providing the services is a person who also exercises such other functions or provides such services as are specified in the direction. Subsection (4) makes clear that the other functions specified in the direction need not relate to education or training and may be functions relating to social security. The intention behind this part of the clause is to give the Secretary of State the power to direct local education authorities to ensure that the person providing Connexions services also carries out social security functions under relevant powers contained in social security legislation. Under arrangements made with the Secretary of State, Connexions service providers currently conduct work focused interviews for 16 and 17 year olds within the meaning given in section 2 and 2AA of the Social Security Administration Act 1992. The interviews aim to enable participation in education or training and focus on training or educational opportunities. The intention is to use the direction-making power to ensure that the current arrangements will continue. It is also intended that it will be used in the future in relation to functions within the Welfare Reform Act 2007 such as:

• work focused interviews within the meaning of section 12 of that Act;

• work related activity within the meaning of section 13 of that Act; and

• action plans within the meaning of section 14 of that Act,

• all with the emphasis on education and training with the aim of helping the person into employment or keeping him in employment.

61.     Clause 56 gives local education authorities the power to enter into arrangements made with them by other local education authorities for the provision of Connexions services (see clause 54(1)). It also gives local education authorities the power to provide, secure the provision, or participate in the provision of Connexions services other than in respect of persons for whom they are responsible, including persons from other areas.

62.     Clause 57 sets out the duties on responsible persons for educational institutions to provide relevant information about their pupils or students to persons delivering Connexions services, upon request of such persons. Information, other than the name, address and date of birth of any pupil or student or name and address of a parent of any pupil or student, cannot be provided if the young person (or in the case of a person under 16, their parent) has instructed the institution not to disclose that information. The records compiled from the information provided under this clause, together with that obtained under clauses 61 and 62, will help ensure continuity of service for young people and relevant young adults who move to another area. Access to personal information will be strictly controlled, in compliance with the data protection regime.

63.     Clause 58 places a duty on the responsible persons for educational institutions to allow Connexions service providers reasonable access to pupils and students and to provide reasonable facilities on the institution's premises for providing services.

64.     Clause 59 gives the Secretary of State the power to provide or secure the provision of remote Connexions services on a national basis, for example, through the internet and other electronic media, for all 13-19 year olds, and for those aged 20 to 24 years old who have a learning difficulty within the meaning of subsections (5) and (6) of section 13 of the 2000 Act.

65.     Clause 60 places a duty on the Chief Inspector to inspect and report on Connexions services (provided under clauses 54 and 59), when requested to do so by the Secretary of State. In addition, the clause gives the Chief Inspector a power to carry out other inspections of provision as the Chief Inspector sees fit. Inspections may be general or in relation to specific matters; they may relate to a single provider or type of provider delivering Connexions services; they may relate to a specific geographic area; and they may cover the management of resources.

66.     Subsection (5) gives the person carrying out or participating in the inspection, the necessary powers concerning rights of access to the premises and records of Connexions service providers. Subsection (7) also makes it a criminal offence for anyone to wilfully obstruct an inspection. Subsection (6) provides the Chief Inspector with the power to report on and publish his findings.

67.     Clause 61 enables the Secretary of State to supply information to a local education authority or other person for the purposes of the provision of Connexions services for young people. Specifically, it gives the Secretary of State the power to supply social security information in relation to young people. In order to identify young persons, it may be necessary to use information held by the Secretary of State for Work and Pensions (for example, as supplied to JobCentre Plus by a young person claiming benefits). In this way, Connexions services can maintain accurate and comprehensive records. Only a young person's name, address and date of birth and the name (and address, if different) of his or her parent or guardian will be disclosed to those involved in the provision of Connexions services, and for the purpose of the provision of those services under this clause. Anyone who discloses this information without lawful authority is liable to prosecution and, if found guilty, would be subject to a fine or imprisonment of up to two years.

68.     Clause 62 empowers the persons and bodies listed in subsection (2) to supply relevant information about a young person or relevant young adult to any other person or body involved in the provision of Connexions services for the purposes of the provision of those services.

69.     Clause 64 repeals sections 114 to 121 of the 2000 Act which provided for the establishment in England of the Connexions service by the Secretary of State.

Clause 65: Assessments relating to learning difficulties

70.     Clause 65 inserts sections 139A to 139C into the 2000 Act. The effect is to transfer to local education authorities, and to expand, the existing duty of the Secretary of State to arrange for assessments of a person's educational and training needs in certain circumstances, and his power to arrange such assessments. New section 139A(2) and (4) places a duty on a local education authority to arrange for an assessment of a person in respect of whom they maintain a statement of special educational needs, who is either in his last year of compulsory schooling or over compulsory school age but still at school, at some time during the person's last year of schooling. In either case, the assessment is only required where it is believed that the person will leave school during or at the end of the current school year to pursue post-16 education, training or higher education. This expands on the current duty on the Secretary of State under section 140 of the 2000 Act to arrange for these assessments at some time in year 11 (the last year of compulsory schooling), where the Secretary of State believes that the person will be leaving school at the end of that year to receive post-16 education or training.

71.     Inserted section 139A(5) gives local education authorities a power to arrange for an assessment at any time of a person:

a)     who is in their last year of compulsory schooling; or

b)     who is over compulsory school age but has not reached the age of 25; and

c)     who appears to the authority to have a learning difficulty within the meaning of section 13 of the 2000 Act; and

d)     who is either already receiving, or likely to receive in the opinion of the authority, further education, training or higher education.

72.     Inserted section 139C of the 2000 Act applies the assessment provisions to those being educated at home.

73.     In relation to England, these new sections replace the existing provision for assessments in section 140 of the 2000 Act.