Education and Skills Bill

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Clause 40

Attendance notice
Mr. Gibb: I beg to move amendment No. 151, in clause 40, page 21, line 26, at end insert—
‘(b) the local education authority has taken all reasonable steps to secure that person’s voluntary participation in required education or training.’.
Mr. Hayes rose—
Mr. Gibb: I am sure that my hon. Friend will have chance to contribute shortly.
An attendance notice follows the issue of a written notice by a local authority, as provided for in clause 39. Although the written notice must give at least 15 days’ notice of the issuance of an attendance notice, under clause 40, the local authority has a six-month window during which it can get around to issuing an attendance notice. If those provisions become law in 2013 or 2015 and are not overtaken by other eye-catching Government initiatives, it would be interesting to see how many such notices are actually issued. A six-month window, out of what will be in reality less than two years of a 16 or 17-year-old’s life, will eat into the time during which those provisions can be used.
Amendment No. 51, which was inspired by my friends in the National Union of Teachers, would add another condition that would have to be fulfilled before an attendance notice can be issued. In its briefing, the NUT states that the
“purpose of the to help ensure the emphasis of the Bill is on the rights of young people to participate in education or training post-16 over and above an emphasis on a punishable duty”.
I expect and hope that my hon. Friend the Member for South Holland and The Deepings will expand on that point when he contributes to the debate.
The NUT went on to state that it is arguable that the effect of the amendment is largely cosmetic. It wrote:
“However, the NUT believes that such a presentational difference is vital if the overall message is as the Government clearly intends and if the system of enforcement is to be seen as very much a last resort”.
Mr. Hayes: Such is the enthusiasm of the of the Front-Bench team fielded by the Opposition that we can barely resist the temptation to rise in support of the amendments that we have crafted. I am delighted to accept my hon. Friend’s invitation to add to the few words that he offered in support of the amendment.
As we have heard, clause 40 enables local education authorities to issue attendance notices specifying the type of provision to be undertaken, a description of the course and details of where and when a young person should attend. According to the Local Government Association, there are four steps to that enforcement process. It says:
“The first step will be for the learning provider to try to identify and address the issues by providing additional support or identify alternative learning programmes.”
“If the young person drops out of learning, the local authority will have a responsibility to contact them and work with them over a period to identify appropriate alternative learning options.”
“If the young person still does not engage”—
having been through that process with the local authority—
“they will be given a formal last chance to engage voluntarily”,
and the situation if they do not do so will be made clear. The LGA continues:
“The local authority will decide when the time is appropriate for this and will then have the power, to issue an Attendance Notice, specifying precisely the provision that the young person must attend, and where and when they must do so. Appeals will be referred to an independent adjudication panel, which the local authority will set up. The panel will review the steps that the local authority has taken to ensure that there had been sufficient opportunity and support to engage voluntarily. The panel would have powers to confirm or dismiss the Attendance Notice and to recommend the local authority to take action to meet the needs of the young person.”
Fourthly, according to the LGA:
“If the young person did not meet the terms of their attendance notice, the local authority could issue them with a Fixed Penalty Notice.”
We debated that issue during our extensive discussions about compulsion. The provision before us essentially means that action against the young person will be stepped up if those early attempts to engage them by means of adjusting what is available to them, properly informing them and providing support and encouragement, fail.
The fourth stage, according to the LGA, includes further measures:
“Appeals would again go to the same panel, which would confirm or dismiss the notice. If the FPN is unpaid the local authority would bring the case before a Youth Court, where the penalty on conviction would be a fine.”
That measure is regarded as the last resort, as the Minister said repeatedly when we discussed the issue before. The LGA states that if a fine is unpaid, the youth court has options beyond custody,
“including taking money from wages or imposing an unpaid work requirement.”
The Minister has assured us that no one will go to prison, but the process, although well defined and an accelerating one, ends with someone having a conviction—being a criminal in the sense that I have described.
Clause 40 does not require local authorities to have taken all reasonable steps to secure voluntary participation in education and training before an attendance notice is issued. Our amendment would clarify the position and ensure that young people were guided to the most appropriate education and training before any formal sanctions were used. That is the essential point. There should be a well understood, transparent and logical process, which accelerates the action that the local authority might take. However, there should also be an absolute requirement to avoid a formal process until such time as all other options have been exhausted.
I know that the Minister shares that view, because he expressed it earlier in our deliberations. It is critical that we encourage young people to commit to participation of their own will, because if they do so, there is a much greater chance of their succeeding—of seeing their training through and developing the skills that they need to become increasingly employable. The amendment would ensure that the formal process did not kick in until everything that could be—and, in my judgment, must be—done to encourage voluntary participation had been done.
Jim Knight: Of course we want as many young people as possible to engage voluntarily in learning, without having to use sanctions. That is the aim of local authorities too, as John Freeman from the Association of Directors of Children’s Services told us. He is the director of children’s services in Dudley and in evidence to the Committee he said that
“we see enforcement as the last option and, indeed, an indication that we have failed somewhere. A disengaged young person is not just an indication that they have failed, but that we have failed.”——[Official Report, Education and Skills Public Bill Committee, 22 Jan 2008; c. 72, Q174]
That is why we have emphasised the need to put the provision in place. Every young person, wherever they are in the country and whatever level they are working at, will be able to find a suitable learning option. We are focusing on ensuring that there is the right support, from careers education and guidance in schools, to the Connexions service and talented youth support, for young people both to engage with, and stay in, learning and to achieve. We will also ensure that there is extra help for those with special educational needs.
The amendment to clause 40 is not necessary. It might be helpful if I quickly mention the 10 stages that we have introduced, as opposed to the four stages that the hon. Member for South Holland and The Deepings has identified, so that hon. Members are clear about the extent to which there is a last resort in the courts. The first stage is support from the learning provider. If a young person encounters problems or shows signs of disengaging from learning, the first step is for the learning provider to try to identify and address the issue by providing additional support or identifying an alternative learning programme. The second stage is notification to Connexions. If the young person drops out altogether, the learning provider will have a duty to inform the local authority or its Connexions service provider, which will then contact the young person to try to identify what the problems are. Over time, the guidance service will work with the young person to offer advice and broker support to help them to re-engage with learning. That is the third stage: the support from Connexions, which will identify an appropriate learning option and provide support to take that up.
A last chance—the fourth stage—is provided if the young person still does not engage once a suitable programme has been identified and appropriate support provided—[ Interruption. ] I am delighted to see that the hon. Member for Yeovil has arrived. I only wish that we could all be party to the discussions that he will probably have with the hon. Member for Bristol, West. He can be assured that an attendance notice is on its way stating that he has missed the fourth stage—the last chance—that I was talking about. If the young person has been offered a suitable programme and additional support has been provided, and they have no outstanding barriers to participation or reasonable excuses for not participating, they should be given a formal last chance to engage voluntarily.
The fifth stage is 15 days’ notice. There is a point at which the local authority takes a clear decision to begin enforcement. A young person cannot enter the enforcement system automatically or accidentally. The local authority must consciously make that decision and then give the young person 15 days’ notice in writing that they will be issued with an attendance notice—the initial steps that are set out in clause 39. Stage six is the issuing of an attendance notice. At stage seven, the young person can appeal against the attendance notice, and stage eight is the serving of a fixed penalty notice, which again is appealable. There would then be a fine in the youth court and, finally, fine enforcement. There are plenty of stages all the way down the track.
Mr. Gibb: I suspect that that process will take about 10 years. What is the time scale over which the Minister believes that would happen?
Jim Knight: Until youth court proceedings have started, the process can be halted at any stage by the young person if they voluntarily choose to take up the support that they have been offered. The process may take some time, but it certainly will not take years for it to be completed. The vast majority of the process involves providing support. Once we get to the formal enforcement stage matters are pursued through the magistrates courts, which is a fairly familiar process that I think we are all aware can be relatively swift. Obviously, those in extremis who end up in court will be subject to court processes, which can take a bit longer. However, we hope that, as in cases where the participation age has been raised, we will not get to the stage of court enforcement.
10 am
Mr. Hayes: Some aspects of the process that the Minister described are subject to time limits, but other parts are not. Would not it be useful to set a timetable for the various steps that he has described—my four stages or his 10, whichever is more appropriate? The process could begin, but not end until after a person has aged beyond the constraints implicit in the Bill—they could reach 18 or 19—and that would be entirely inappropriate.
Jim Knight: Clearly, if the person reaches the age beyond which the law no longer applies, the process would cease because it would become pointless. As for setting timetables, it is right that we should specify 15 days’ notice. The reason for doing so is to ensure that we do everything we can to get that young person to participate, so the sooner we can get on with the process the better. It is not particularly helpful to specify individual time scales in legislation, as we are some years away from the date on which these measures come into effect. A time scale that seems reasonable now might not be reasonable in a few years’ time. I agree that we must do all we can to get as many young people as possible to participate voluntarily, but the hon. Gentleman’s amendment is unnecessary. It was a sharp contrast to see two lead spokesmen rise to speak to the amendment, given the reluctance of any hon. Member to speak to the earlier amendments proposed by the Liberal Democrats. I hope that both the hon. Gentlemen will be happy to withdraw the amendment.
Mr. Hayes: The Minister has made it clear that the enforcement process leading to a fixed penalty is a last resort, and he helpfully fleshed out the process for the Committee’s benefit. However, it would be helpful to have some sense of the timetable, at least in guidance, for the benefit of local authorities. Flexibility is required, because each case is different. The measures deal with complex issues and individuals—those individuals have different needs and different circumstances apply— but some kind of timetable or time framework would be a useful addition. The Minister might want to reflect on that and return to it later.
The Minister handled the amendment in a conciliatory and professional way, despite his cutting asides to the Liberal Democrats, which I thought harsh. I had begun to think that the hon. Members for Yeovil and for Bristol, West were one and the same person as we have never seen them together until today, but that has been disproved. On that basis, I beg to ask leave to withdraw the amendment.
The Chairman: Highly uncharacteristically, the hon. Member for South Holland and The Deepings has overreached himself. It was perfectly in order for him to speak to the amendment any number of times, but I am afraid that he is not empowered to seek the leave of the Committee to withdraw it, simply because it is not his. I call Mr. Nick Gibb.
Mr. Gibb: You will be unsurprised to know, Mr. Bercow, that I am in complete agreement with my hon. Friend. I, too, beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stephen Williams: I beg to move amendment No. 79, in clause 40, page 21, leave out lines 41 to 45.
I noticed the look of doubt on your face, Mr. Bercow, as to whether my hon. Friend the Member for Yeovil or I would move the amendment. I was grateful for the arrival of the cavalry from Yeovil, but my hon. Friend has said that as I have had time to think about the amendment, I might as well move it. I was also grateful for the peroration from the hon. Member for South Holland and The Deepings, as it has given me adequate time to think about what the amendment would do in removing subsection (5) from clause 40. The measure is too prescriptive an interpretation of the needs of the young person. Subsection (5)(a) will direct which institution the young person may be required to attend for their compulsory education or training, but the Bill does not go on to say that practical common-sense considerations should be taken into account when it comes to selecting an institution. A young person’s education destination might be selected against their will.
In some parts of the country, geography may be a relevant factor when an attendance notice requires a young person to attend a further education college. My right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) has said a couple of times in the Chamber that the nearest college to the town of Berwick-upon-Tweed is 50 miles away. It would therefore be nonsensical for an attendance notice imposed by Northumberland county council, for example, to require a person from Berwick to attend a college rather than a school. The Bill does not allow such common-sense considerations to be taken into account.
There may also be reasons why an institution would not want to accept a person who is imposed on them. As we know, some young people choose not to stay on beyond 16 because they have had a bad experience of school, and perhaps the school has had a bad experience of them. For example, they may have been subject to disciplinary procedures at school; they may have been suspended or even expelled. The Bill does not take into account whether a school or college would wish to have a young person imposed upon them for compulsory attendance as a result of an attendance notice.
Subsection (5)(b) goes even further by removing all element of choice whatever from the young person who is subject to a notice. The measure therefore not only determines which educational institution a person should be required to attend, but what course they should be required to study. Subsequent subsections do not make any reference to whether a course is appropriate for the individual or the career that they are expected to follow in future, or whether courses take heed of previous educational achievements or non-achievements at age 16. For instance, in theory, it would be quite ridiculous to impose a duty on someone to study A-level economics if they had only secured grade F at GCSE maths, yet there is no provision in the measure to account for the previous attainments of a young person when specifying the exact name and description of the course that they are to take.
The implications of the measure for young people and the institutions that they will be required to attend are stark, and I look forward to the Minister’s response. As my hon. Friend the Member for Yeovil has not intervened, I take it that I have made all the points that he would have made, and perhaps some that he might not have made.
Mr. Hayes: The hon. Gentleman makes an interesting case. The process must illustrate maximum sensitivity both to the person and to the institutions that, by proxy, are involved in the process. Specifying an institution and course, as the hon. Gentleman described, might create tensions between institutions and local authorities and even, as he implied, reach a point at which institutions feel that they have had imposed on them some of the most difficult and challenging young people.
Institutions should deal with challenging young people, but it would be better if there was a degree of collaboration or willing co-operation. The hon. Gentleman made an interesting point that there will come a stage, if we are not careful, when institutions that have had increasingly difficult young people imposed upon them see the local authority as the enemy. I do not know whether he intended his amendment to be a probing one, but the Minister needs to be clear about the relationship between the local authority, institutions and individuals. It is critical to ensure that there is maximum sensitivity in that relationship if the measure is to work.
Jim Knight: The intention behind an attendance notice is to set out clearly for the young person and everyone involved in helping them to participate exactly what is required from them. The amendment may reflect confusion about the purpose of including in the attendance notice details of the type of provision that should be undertaken, a description of the course, and details of where and when the young person should attend. I appreciate that, to some extent, the hon. Member for Bristol, West is catching up, and that to rush ahead and read clause 45(2) might be more than could reasonably be asked of him, given the role that he is fulfilling for his party at the moment. Clause 45(2) says:
“It is a defence for a person charged with an offence under subsection (1) to show that he or she is, and since the giving of the attendance notice has been, fulfilling the duty imposed by section 2.”
They do not have to do what it says on the notice, as long as they are fulfilling their legal obligation to participate.
Stephen Williams: I acknowledge that I am playing catch-up, but why does clause 40(5), which is the subject of the amendment, say that
“the attendance notice must specify”,
rather than “may” specify?
Jim Knight: It must specify an appropriate course, location and time, so that it is clear to everyone that there is a suitable form of provision for the young person, but if the young person finds other provision in which they wish to partake, they should be able to do so.
The reason for including the details is not to force the young person to participate in a particular way, or to limit their options. If they received an attendance notice they could still choose to fulfil their duty via any one of the range of available options. In setting out the appropriate details, we are aiming to make it easier for the young person to comply with the duty by making it absolutely clear what is expected of them. They are still free to participate in any other way.
On the points that have been made about schools having young people imposed on them, it is worth moving forward to clause 41(6)(a) and (b), which says that the local authority must consult and be satisfied with arrangements that have been made for education and training to be provided with the appropriate institutions. In respect of it being suitable education for the young person, clause 41(5) says:
“The education or training must be suitable for the person.”
Mr. Heald: To clarify one matter, clause 39 requires the notice of failure to comply to be given in writing, but clause 40 does not appear to say that that is the case. Is that because the Minister envisages that it may be necessary in certain circumstances to give an oral notice, or it is implied in some way that it should be in writing?
Jim Knight: The notice certainly has to be given in writing, and it must be extremely clear to everyone concerned what is required, and that the provision is in place so that it is, if necessary, enforceable. The details are set out in the attendance notice, which is a clear document that can be returned to if the young person wanted to dispute whether the provision offered was appropriate. Clause 41 provides further details about the description of education and training that must be made, and it makes it clear that it must be suitable for the young person. If a young person wishes to appeal to an attendance panel, the attendance notice gives a clear, written description of what has been offered.
10.15 am
Mr. Heald: I had assumed that the “written notice” in clause 39 was in some way implied in clause 40.
What will happen to the 40,000 people a year who leave school unable to read, write and add up? Will these notices be explained to such people by somebody, and if so, by whom?
Jim Knight: I shall not go back over—
The Chairman: Order. As the debate has progressed, it has gone somewhat beyond the parameters of the amendment under discussion. We have strayed or elided into what is effectively a clause stand part debate. The Committee will naturally expect me to take that into account in deciding whether a clause stand part debate is necessary when the time comes. I will leave the Minister to use his judgment on whether and to what extent to respond to the points that have strayed.
Jim Knight: Thank you, Mr. Bercow. I will pass over the fears about reading, writing and adding up. I think that I have made it clear to the Committee that I dispute the version of events given by the hon. Member for North-East Hertfordshire.
Throughout this process, there should be engagement by the personal adviser with the young person, talking them through the process. Equally, those responsible for enforcement in the local authority should ensure that the young person understands what is set out in the notice and that they can halt the process at any point by voluntarily participating under the provisions set out in the notice, or by an alternative route that complies with the duties set out in clause 2.
Stephen Williams: I want to backtrack to before the intervention of the hon. Member for North-East Hertfordshire. The Minister was trying to give me some comfort by drawing my attention to clause 41(6), which says that the educational institution should be consulted before, in effect, a person is imposed on it. However, consulting on something does not necessarily mean that the response will be respected. How will a school be able to respond if it is invited by the local authority to take on a 17-year-old who has previously been expelled from that institution?
Jim Knight: All the various other regulations and obligations that apply in respect of admissions to institutions would apply. Crucially, as set out in clause 41(5):
“The education or training must be suitable for the person.”
In a scenario where the institution does not want to provide education or training, there would be questions about suitability, because the person will not be properly engaged in the course if it is being delivered reluctantly. We should allow for those issues to be decided according to local circumstances. The provision offers considerable flexibility.
I hope that the hon. Gentleman accepts that the amendment would make it unclear what is expected of a young person and an important protection for them would therefore be lost. In the light of that reasoning, I hope that he will withdraw the amendment.
Stephen Williams: I have listened to the Minister’s assurances with great care, but am not particularly reassured by all of them. He has not dealt with the second set of remarks that I made about clause 40(5)(b), which prescribes what course an individual will take. Perhaps he would like to intervene to deal with that point.
Jim Knight: I apologise if I did not discretely mention subsection (5)(b), but all of the details set out in subsection (5) are a clear description, so that it is clear that something appropriate has been offered and is available. Again, if an individual wanted to go to the school, college or educational establishment named in the notice, but to do a different course, as long as it fulfils the clause 2 duty, the process will cease because that course will fulfil their duty.
Stephen Williams: I thank the Minister for that response. A process must be gone through that engages the young person and the educational institution that will be required to receive them. The appropriateness of the education that is prescribed in subsection (5)(b) must be considered and the person’s previous record in education taken into account. As long as the Minister gives the assurance that those common-sense applications will follow from the legislation, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 40 ordered to stand part of the Bill.
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