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Clauses 105, 106 and 107: Emergencies
122. Clause 105 enables the Chief Inspector to apply to a Justice of the Peace for an order imposing an immediate restriction on, or deregistering, an independent educational institution, where there is risk of significant harm to a student at the institution. It is an offence to fail to comply with a restriction imposed by a Justice of the Peace and clause 106 sets out the penalty for doing so.
123. Clause 107 requires the Chief Inspector to serve an order promptly and to inform the proprietor of his right of appeal. Where the institution concerned is a special independent educational institution, the Chief Inspector must also inform all relevant local education authorities of the order (so that they may take any action they deem necessary).
Clause 108: Provision of information by proprietors
124. This clause creates a power to require the proprietor of an independent educational institution to provide information relating to the institution on request from the Secretary of State or Chief Inspector. It provides that sanctions for non-supply of information can be included in the regulations, which will be exercised by the Chief Inspector. If an institution is deregistered under the regulations there is a right of appeal to the Care Standards Tribunal.
Clauses 109, 110, 111, 112: Appeals
125. Clause 109 sets out the circumstances and timescales in which the proprietor of an independent educational institution may appeal (to the Care Standards Tribunal) against decisions made by the Chief Inspector to deregister an independent educational institution. A proprietor may appeal where an institution has been deregistered for:
a) no longer meeting the definition of an independent educational institution;
b) a failure to meet standards, provide information, or pay inspection fees;
c) making an unapproved material change;
d) employment of unsuitable persons.
126. A proprietor may also appeal the following decisions made by the Chief Inspector under clause 110:
a) conclusion that the standards are unlikely to be met on registration leading to a refusal of registration;
b) refusal to approve a material change;
c) imposition of a restriction on the proprietor;
d) refusal to vary or revoke a relevant restriction.
127. There are various powers available to the Tribunal in determining such appeals, according to the circumstances under which the appeal is brought.
128. Clause 111 allows the proprietor to appeal to the Care Standards Tribunal against an order by a Justice of the Peace made in an emergency and sets out the powers available to the Tribunal in determining such appeals.
129. Clause 112 creates an offence of failing to comply with a restriction imposed by the Tribunal and sets out the penalty for doing so. It also allows the proprietor to apply to the Tribunal to have the restriction lifted, in whole or in part.
Clauses 113, 114, 115, 116: Prohibition on participation in management of independent educational institutions
130. The Secretary of State or Chief Inspector may make directions prohibiting or restricting the participation of unsuitable persons in the management of an independent educational institution. The grounds and procedure for making such directions will be set out in regulations. Clause 113 also provides for a direction to be lifted, in whole or in part, in certain cases. Under clause 114 a person can appeal to the Care Standards Tribunal such a direction, or against a decision not to lift or alter such a direction. Details relating to the Tribunal's jurisdiction on hearing such appeals can be set out in regulations.
131. Clause 115 enables the sharing of information - between the Secretary of State, the Chief Inspector, the Welsh Ministers, the Independent Barring Board and the General Teaching Councils of England and Wales - which is held about persons in connection with their statutory duties to protect children and vulnerable adults.
132. Clause 116 requires an authority which makes a direction prohibiting or restricting the participation of unsuitable persons in the management of an independent educational institution to notify other specified persons (e.g. the Chief Inspector or Welsh Ministers).
Clauses 117 and 118: Providers of independent education or training for 16 to 18 year olds
133. Clause 117 enables regulations to be made allowing for any part of this Chapter to apply to this particular group of learning providers. They are not independent or maintained schools. They do not receive any state funding from the LSC. They do provide education or training through which young people may meet their duty to participate under clause 2. Clause 117 will enable the Government, for example, to safeguard the health, safety and welfare of young people being educated in these establishments as part of that new duty.
134. Clause 118 stipulates that any regulations that are made must include rights of appeal against decisions of the Chief Inspector as set out in this Chapter in clauses 109 and 110. It also compels the Secretary of State to consult the Chief Inspector and other appropriate people before the laying of any regulations before Parliament. Such regulations will be subject to the affirmative resolution procedure.
Clauses 119, 120, 121, 122 and 123: Supplementary
135. Clause 119 requires proceedings for criminal offences to be commenced by, or with the consent of, the Chief Inspector or the Secretary of State.
136. Clause 120 enables certain individuals to be prosecuted where offences are committed by bodies corporate, in limited circumstances.
137. Clause 121 provides that where an offence has been committed by an unincorporated body, proceedings for offences should be brought in the name of the body and not its member. Any fine imposed should also be paid out of the funds of the body. In limited circumstances, proceedings for offences may also be brought against individuals associated with the body in question.
138. Clause 122 makes provision about how the Chief Inspector may serve notices etc on the proprietor of an independent educational institution.
Chapter 2: Schools providing for Special Educational Needs
Clause 124: Interpretation
139. Clause 124 clarifies the definition of a special school in section 337 of the 1996 Act. See also the amendment to section 6 of that Act (which refers to this definition) in Part 1 of Schedule 1 (minor and consequential amendments). No substantive change is involved.
140. The new Section 337A defines the terms "the Chief Inspector"; a "non-maintained special school"; and "a relevant authority" for the purposes of Chapter 2 of Part 4 of the 1996 Act. The other provisions in this Chapter of the Bill amend Chapter 2 of that Act and use these definitions.
Clause 125: Function of approving schools transferred to Chief Inspector
141. Clause 125 amends section 342 of the 1996 Act and transfers the function of approving non-maintained special schools in England from the Secretary of State to the Chief Inspector.
Clause 126: Right of sixth form pupils to opt out of religious worship
142. The 1998 Act as amended by the 2006 Act provides for a sixth-form pupil in a maintained school to withdraw from religious worship. This clause obliges the Secretary of State to make regulations to afford the same rights to sixth-form pupils in non-maintained special schools.
Clause 127: Protection of pupils in an emergency
143. Clause 127 inserts a new section 342A into the 1996 Act and provides a power for the Secretary of State to make regulations to enable a Justice of the Peace, following an application from the Chief Inspector, to make an order for the withdrawal of approval of a non-maintained special school.
144. The Chief Inspector would only be able to make an application in an urgent case, for example, if it appears that a pupil at the school in question is suffering or is likely to suffer significant harm. Subsection (2) clarifies that regulations made under subsection (1) may make provision similar to that made in clause 105 relating to independent schools. This will ensure that a regulatory regime can be established which is consistent with that for independent schools.
Clause 128: Appeals
145. Clause 128 inserts new sections 342B and 342C into the 1996 Act. Section 342B(1) provides the Secretary of State with the power to make regulations which set out the framework for appealing against a decision of the Chief Inspector to:
a) withdraw approval for a non-maintained special school (subsection (1)(a)); or
b) not to approve, not to approve a change to, or to withdraw approval for the school's relevant arrangements (subsection (1)(b)).
146. The "relevant arrangements" are defined in sub-section (2) as those arrangements that are specified as requiring approval by the relevant authority - in this case the Chief Inspector - in regulations made under section 342(5)(a). The Chief Inspector, working within the regulatory framework for non-maintained special schools, is given the power by clauses 124 and 125 to approve or reject applications from schools for approval of some of their arrangements. For example, the following arrangements must be approved under current regulations: the number of pupils; the type(s) of special educational needs the school caters for; and the age range of pupils at the school. Currently there are no rights of appeal against decisions about approval of arrangements and the only recourse would be to seek a judicial review of a decision.
147. Subsection (3) provides that the regulations must provide that an appeal lies to the Care Standards Tribunal and must be made by the proprietor of the school.
148. In the case of an appeal brought against a decision of the Chief Inspector to withdraw approval from the school, subsection (4) provides that regulations may make provision prohibiting the Chief Inspector from acting on the decision:
a) during the period in which an appeal could be brought; or,
b) in a situation where an appeal has been brought, but the appeal has not been determined, or disposed of.
149. Regulations made in this way would have an effect similar to that for appeals against decisions to withdraw registration of an independent school. Section 342C(1) provides for regulations to be made setting out the rights of a proprietor of a non-maintained special school to appeal against an order granted in an emergency by the Justice of the Peace on the application of the Chief Inspector. Section 342C(2) provides that the right of appeal will be to the Care Standards Tribunal and must be made by the proprietor.
150. Section 342C does not enable an order made by a Justice of the Peace to withdraw approval from the school to be suspended when an appeal is made. This is because an order granted by a Justice of the Peace will only have been granted where the Justice of the Peace is satisfied in an urgent case that approval should be removed immediately, for example where pupils are at risk.
151. Part 1 of Schedule 1 includes consequential amendments arising from these clauses.
Clause 129: Abolition of requirement of approval for independent schools: England
152. This clause amends section 347 of the 1996 Act and abolishes the requirement for independent schools in England to be approved for the placement of a child with a statement of special educational needs. The clause ensures that the requirement for approval remains for schools in Wales.
153. It also amends section 347 to remove the requirement for local education authorities in England to seek consent from the Secretary of State to place pupils with statements of special educational needs in non-approved independent schools (whether in England or Wales). The requirement to seek consent (from the Welsh Ministers) remains for Welsh local education authorities.
Clause 130: Approval of independent schools: consequential amendments
154. This clause brings together consequential amendments arising from the changes to section 347.
155. Section 349 of the 1996 Act is amended to clarify that the power to vary trust deeds to secure compliance with the requirements of being an independent school in Wales under section 347 remains relevant to Wales and lies with the Welsh Ministers. The power to vary trust deeds to secure compliance with the requirements of being a non-maintained special school under section 342 is transferred to the Welsh Ministers for schools in Wales and to the Chief Inspector for schools in England.
156. Section 483A of the 1996 Act provides for local education authorities to make payments to independent schools for pupils with statements of special educational needs. It is amended in light of the changes to section 347. It will ensure local education authorities in England can continue to make payments. Welsh local education authorities will continue to be able to make payments to Welsh and English independent schools for pupils where Welsh Ministers have granted consent for the pupil to be placed there.
157. Section 59 of the Safeguarding Vulnerable Groups Act 2006 defines the term "vulnerable adult". Subsection (3) has been amended to reflect the changes to section 347 in respect of England and Wales.
Clause 131: Approval of independent schools: transitional provision
158. This clause provides for transitional arrangements for relevant children who are already placed in English independent schools at the time the Bill becomes law. It provides that Welsh local education authorities will not have to seek consent from the Welsh Ministers for:
a) relevant children to be placed in English independent schools which, prior to the abolition of the requirement for approval for independent schools in England, were approved under section 347; or
b) where a child attended an unapproved independent school with the consent of the Secretary of State prior to the abolition of the category of approved independent school in England.
159. Without this provision once the Act came into force Welsh local education authorities would have to seek consent from Welsh Ministers for these pupils to continue their placements.
Part 5: Miscellaneous and general
Chapter 1: Pre-16 Education and Training: Wales
160. Clause 132 amends Part 1 of Schedule 5 to the Government of Wales Act 2006 ("GOWA 2006"), so as to confer legislative competence on the National Assembly for Wales to make provision, by way of an Assembly Measure, for or in connection with the inspection of education and training for those aged 16 and under.
Chapter 2: Miscellaneous
Clauses 133 and 134: Maintained schools in England: behaviour and attendance etc
161. A school governing body already has the power under section 29(3) of the 2002 Act (as amended by the 2005 Act) to "require registered pupils to attend at any place outside the school premises for the purposes of receiving any instruction or training included in the secular curriculum for the school".
162. Clause 133 introduces a new section 29A which allows a governing body of a maintained school in England to require a registered pupil to attend at any place outside the school premises, but for the purpose of receiving educational provision which is intended to improve the behaviour of the pupil. In exercising this power, it is intended the governing body will be obliged under regulations (made using the power in subsection 29A(4)(a)) to have regard to guidance issued by the Secretary of State.
163. The inserted section 29A compels the Secretary of State to make regulations requiring persons (normally parents) to be given information about the imposition of the requirement to attend a place off the school premises and to require the governing body to review their exercise of the power. The Secretary of State may make regulations to require the governing body to request that persons (normally parents) take part in a review of the exercise of the power, the timings of the initial and subsequent reviews and in connection with other matters relating to the exercise of the power.
164. Clause 134 makes amendments to section 444ZA of the 1996 Act. That section extends the circumstances in which a parent or a carer can be prosecuted for failing to ensure that a child for whom he or she is responsible regularly attends the alternative provision that has been made for the child.
165. Clause 134 extends the ambit of section 444ZA to cover pupils who have been directed off-site for receiving educational provision which is intended to improve the behaviour of the pupil. There is also a change to section 444ZA to clarify that failure of the parent to secure regular attendance at a school where provision is made by the governing body of a school under section 100 of the 2006 Act (duty of governing body or proprietor to provide education where pupil is excluded for fixed period) is within the ambit of the section 444 offence, where the governing body has not expressly exercised its power under section 29(3) of the 2002 Act to require the attendance of the pupil there.
Clauses 135, 136, 137, 138 and 139: External qualifications
166. Clause 135 amends section 98 of 2000 Act which describes how qualifications may be approved for the purposes of sections 96 and 97 as they apply to England. Subsection (2) provides for the Secretary of State, or a body designated by him, to approve an external qualification. An "external qualification" is one which has either been awarded or authenticated by an outside body. Without this approval an external qualification is not eligible to receive public funding. Clause 135 removes the current requirement in subsection (4) for the Secretary of State to give his consent to all approval decisions made by a body which he has designated under subsection (2). This enables designated bodies to approve such qualifications without further recourse to the Secretary of State.
167. Clause 135 further amends section 98 by the insertion of new subsection (2A) which enables the Secretary of State to designate a body to approve external qualifications for people under 19 (for the purposes of section 96), for people over 19 (for the purposes of section 97) or for both.
168. The changes to the Secretary of State's functions made in clause 135 apply equally to the Welsh Ministers' functions in relation to Wales by virtue of clause 136. This clause removes the requirement in section 99 (4) of the 2000 Act for the Welsh Ministers to consent to all approval decisions made by a body which they have designated under subsection (2).
169. Clause 137 amends section 24 of the 1997 Act to provide the QCA with a new function to develop and publish criteria for the recognition of bodies which wish to award or authenticate qualifications or credits in respect of components of these qualifications; and, where they meet those criteria, to recognise them. Under these provisions, the QCA would first recognise a body wishing to award or authenticate a qualification and then accredit its individual qualifications. Provision is also made for the QCA to make rules and procedures where a recognised body ceases to be recognised. The reference to "credits" anticipates the planned introduction by the QCA of the new national framework, the "Qualifications and Credit Framework", which will divide all relevant qualifications into units which, when completed, confer "credits" which may be accumulated towards achievement of the full qualification. Consequential amendments are made to sections 26 and 26A of the 1997 Act to reflect these changes. These apply broadly the same powers which the QCA currently holds in respect of placing conditions on accreditation and making directions to the accredited bodies. This clause applies to both England and Northern Ireland.
170. Clause 138 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. The clause amends section 30 of the 1997 Act to provide the Welsh Ministers with a new function to develop and publish criteria for the recognition of bodies which wish to award or authenticate qualifications or credits in respect of components of these qualifications; and, where they meet those criteria, to recognise them. The reference to "credits" anticipates the planned introduction by the Welsh Ministers of the new national Framework, the "Qualifications and Credit Framework", which will divide all relevant qualifications into units (see previous paragraph). Consequential amendments are made to sections 32 and 32A of the 1997 Act to reflect these changes. These apply broadly the same powers which the Welsh Ministers currently hold in respect of placing conditions on accreditation and making directions to the accredited bodies.
171. Clause 139 extends the powers of the QCA in Northern Ireland to cover the regulation of vocational qualifications currently excluded from the scope of that authority. In Northern Ireland most qualifications are regulated by the Council for the Curriculum, Examinations and Assessment (CCEA). They are those which are general and vocational and are provided for school pupils or persons in full-time attendance at an institution of further education. The only exception is National Vocational Qualifications which are regulated by the QCA. This clause adds other vocational qualifications to the regulatory remit of the QCA. It is intended that legislation will be brought before the Northern Ireland Assembly to abolish the CCEA from April 2009.
Clause 140: Inspections of teacher training in England: removal of duty to notify
172. This clause provides that the period of notice given to providers of initial teacher training prior to an inspection by Ofsted will now be at the discretion of the Chief Inspector, rather than specified in section 18B of the Education Act 1994 as a minimum of eight weeks.
Clause 141: Constitution of schools forums
173. The requirement on local education authorities to establish Schools Forums was imposed by the 2002 Act, through the insertion of Section 47A into the School 1998 Act. Schools Forums are local bodies, representing schools and (if the local education authority so decides) other interests, which advise authorities on matters relating to the authority's schools budget.
174. Section 47A was amended by the 2005 Act and the 2006 Act to allow regulations to give Forums some decision-making powers in relation to the schools budget.
175. Clause 141 amends the arrangements for constituting a Schools Forum, so that regulations may make it compulsory for a Forum to include non-schools members. Clause 137 applies to England and Wales.
Chapter 3: General
Clause 142: Orders and regulations
176. Clause 142 contains general provisions about orders and regulations under the Bill. All orders or regulations are to be made by statutory instrument. Affirmative resolution procedure is required for an order under clause 3(5) to substitute a different qualification for the one referred to in clause 3(2), and for regulations under clauses 5(1)(b) or 49 in respect of alternative ways of working and fulfilling the full-time occupation requirement of clause 5. Regulations made under clause 117(1), and any regulations under clause 146 which amend or repeal primary legislation, are subject to affirmative resolution. All other statutory instruments have to follow the negative resolution procedure apart from commencement orders where no parliamentary procedure is required.
Clause 143: Functions exercisable by Welsh Ministers
177. This clause ensures that the functions conferred on the Secretary of State under clause 141, so far as exercisable in relation to Wales, is taken to have been transferred to the Welsh Ministers by Order in Council under section 58 of the Government of Wales Act 2006.
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