Memorandum Submitted by LGA (E&S 04)
LGA's Overall Position on the Bill
To ensure all young people benefit from education up to 18 - especially those who have dropped out, become NEET or are at risk of doing so - councils will need the powers and resources to motivate and encourage young people rather than potentially punish and criminalise them.
· Raising the participation age is an important step to ensure all young people gain skills to earn a decent living, and for the economy at large. There must be a broad range of options available to young people.
· It will be councils who are responsible for ensuring that young people resident in their area participate in education. They will have a duty to plan and commission a significant variety of quality education opportunities including diplomas and apprenticeships. Where appropriate, they will need to plan and commission jointly with other local authorities and 14-19 Partnerships.
· This will however lead to significant cost and data logistics implications for councils and partners if they are to track all 16 and 17 year olds effectively, enforce participation and ensure education and training staff receive sufficient professional development.
· Local Authorities do not want to criminalise and punish young people but want to motivate and incentivise them, remembering that the most important children and young people to help are also the hardest to reach.
Raising the participation age
· LGA believes there is a strong case for raising the participation age in education or training to the age of 18.
Councils' strategic role
· The legislation reinforces councils' strategic leadership role and we want to see that role supported and developed in practice to ensure the effective join up of curriculum, supply of workplace learning, appropriate advice and guidance, and Youth Matters/Aiming High for Young People initiatives No single institution can deliver this alone.
· We remain concerned about the true cost implications of developing facilities, workforce development costs, payment of staff or additional administrative duties, e.g. effective tracking of all 16 and 17 year olds and enforcing participation.
Ensuring all young people are in education or training
· It is of central importance to engage with the views of young people regarding what motivates and incentivises them. We wish to see positive and genuinely constructive engagement and participation of young people (given the local authority's championing role) rather than sanctions and potential criminalisation of young people.
· The LGA notes the recent strategy paper on NEETs, which accompanies the debate on participation. We must recognise the level of alienation of some of the young people to whom the policy is most clearly directed, many of whom drop out of education at the beginning of secondary school or during Key Stage 3.
Implementation of 14 - 19 education reform
· The Departments for Children, Schools and Families (DCSF) and Innovation, Universities and Skills (DIUS) need to work closely with local government on the detail of implications for local authorities, providers and employers of any registration and tracking duties;
· Linked to this are matters around management information, performance management and accountability for the young person's educational fulfilment.
This Bill is only one part of the 14 - 19 education reform agenda. Local government, DCSF and DIUS must work closely together to implement such changes as;
· access to Apprenticeships and on the Apprenticeships Bill,
· diploma design, roll-out and learning from the 'Gateway' process;
· the transfer of 16-18 funding from the Learning and Skills Council (LSC) to local authorities (which will in part require further legislation, currently expected in the 2008-09 session);
· effective linkage to existing local authority duties under the Education Acts, the Children Act 2004,
· schools funding and BSF,
· the need for flexibility in 14-19 Partnership structures,
· the wider Academies programme,
· Local Area Agreements/ multi-area agreements, and PSA and National Indicator Set targets.
Local authorities' direct responsibilities under the Bill
· Will be responsible for ensuring that young people resident in their area participate and for providing the support they need to overcome any barriers to learning. They will do this by maintaining up-to-date and accurate information about what young people are doing and responding quickly to provide support if they drop out. They will also have to make suitable arrangements for transport, manage support services, and assess young people's special educational needs.
· Local authorities and their guidance services will maintain accurate, up-todate information on whether young people are participating, what they are doing if they are and what action has been taken to re-engage them if they are not. Connexions use and maintain a database locally to support this work. Government will work with local authorities between now and 2013 to improve its accuracy and coverage.
· The local authority will decide on a case by case basis when it is appropriate to take further, more formal action to ensure that a young person participates.
· Connexions partnerships and local authorities will continue to offer support to young people with learning difficulties up to their 25th birthday.
· Local authorities will need to think strategically when drawing upon capital funding streams in order to ensure that sufficient appropriate provision is available for 100% of young people in their area.
· Local authorities will be responsible for providing information, advice and guidance (IAG) to all young people in their area, including those in custodial establishments. Government will help local authorities to commission and deliver high quality IAG that meets the recently published Quality Standards.
Four Step Enforcement Process
1 The first step will be for the learning provider to try to identify and address the issues by providing additional support or identifying an alternative learning programme.
2. If the young person drops out of learning altogether, the learning provider will be required to inform the local authority's registration system. The local authority's guidance service will then contact the young person and work with them over a period of time to identify an appropriate alternative learning option and provide support to take up the opportunity.
3. If the young person still does not engage they will be given a formal last chance to engage voluntarily, making clear that if they do not, the local authority will take further steps to ensure that they participate. 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 the young person must attend and where and when they must do this. Appeals will be referred to an independent adjudication panel, which the local authority will set up. The panel will review the steps the local authority had 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.
4. If the young person did not meet the terms of their Attendance Notice, the local authority could issue them with a Fixed Penalty Notice. Appeals would again go to the same panel, which would be able to confirm or dismiss it. If the FPN is unpaid the local authority could bring the case before the Youth Court, where the penalty on conviction would be a fine. This is viewed as a last resort. If a fine is unpaid, the Youth Court cannot use custody as a means of enforcing it, but has other options, including taking the money from wages or imposing an unpaid work requirement.
Clauses on which LGA has Particular Views
s1 Persons to whom Part 1 Applies
s2 Duty to Participate in Education or Training
Our general position on compulsion is outlined above.
s4. Appropriate full-time education or training
4(1), p2, line 31-2
"...is provided at a school, at a college of further education, at an institution within the higher education sector or otherwise."
Bearing in mind our support for the objectives of Aiming High for Young People, and in trying to engage those hardest to reach to participate, LGA (and its sister body the National Youth Agency (NYA), are keen to see the legislation and guidance acknowledge the potential of non-formal education, e.g. through 'positive activities' and youth work, as an important lever in incentivising and encouraging young people to learn as a stepping stone to more formal education or training.
4(2), p2, line 34
"(a) education provided otherwise than at a school"
Provides an opportunity to include the potential of non-formal education.
s6. Relevant training or education
6(1), p3, lines 45-6
"In this Part, "relevant training or education" means training or education towards an accredited qualification provided by a course or courses."
(6)2 stipulates this should be accredited by QCA.
As with the arguments at s4, this is fair enough, but we would also like to see this broadened to include non-formal education qualifications recognised by the National Qualifications Framework and the Qualifications and Credit Framework.
The same argument applies again for s8.
s10. Local education authority to promote fulfilment of duty imposed by section 2
p 5, lines 31-6
"A local education authority in England must ensure that its functions are (so far as they are capable of being so exercised) exercised so as to promote the effective participation in education or training of persons belonging to its area to whom this Part applies with a view to ensuring that those persons fulfil the duty imposed by section 2."
We are happy with this wording, but note our general caveats again about compulsion with regard to s2 above.
s11. Educational institutions: promotion of good attendance
11(2), p6, lines 4-9
The list of educational institutions does not currently include Academies, CTCs or CCTAs or independent providers as appropriate. We have been assured by DCSF that Academies, CTCs and CCTAs will have this covered in their funding agreements. It is clearly important that all educational institutions recognise their role in enabling participation and in working with the local authority and others to ensure appropriate provision for young people across the area.
s12 Duty to make arrangements to identify persons not fulfilling duty imposed by section 2
p6, lines 18-23
"A local education authority in England must make arrangements to enable it to establish (so far as it is possible to do so) the identities of persons belonging to its area to whom this Part applies but who are failing to fulfil the duty imposed by section 2."
This may be fine in principle, but implementation will lead to significant cost and data logistics implications for councils and partners if they are to track all 16 and 17 year olds effectively.
s13 Notification of non-compliance with duty imposed by section 2: educational institutions
(2), p7, lines 21-3
""the appropriate service provider" in relation to an educational institution means the service provider of the local education authority in whose area the institution is situated."
This has the systemic implication that 'host' local authorities, where education and training provision is being accessed by the young person, will need to act as the conduit for participation information back to the local authority of residence, which is fair enough but needs to be recognised with regard to data collection and sharing. This should be seen as part of a wider discussion on data management, links across local authority boundaries on planning and commissioning etc.
It remains an interesting question as to the role that the 'host' local authority should play in ensuring participation beyond information sharing.
s14 Educational institutions: duty to provide information
(4), p7, lines 37-44
This appears to suggest that if parents and/or young people are unwilling to provide information, we will not necessarily be able to arrange for the most helpful support to that young person!!
There may be other legal reasons for this, but it does seem potentially unhelpful if we are pursuing the principle that the local authority has a duty to promote participation and support the young person in so doing.
s17 Sharing and use of information held for purposes of support services or functions under this Part
(7), p10, lines 1-7
Clarification would be helpful regarding whether this Is this purely restricted to information exchange with education & training providers as 'service provider', or does it extend to support services to participation, e.g. PCTs for CAMHS purposes?
p10, lines 18-20
"In exercising its functions under this Part, a local education authority must have regard to any guidance given by the Secretary of State."
LGA, in conjunction with ADCS, will want to work closely with DCSF on this from an early stage. We have made this clear to DCSF.
s19 Contracts to which Chapter Applies
(2), p10, lines 36-9
This implies that guidance will be required both for employers and others, including local authorities, regarding what a suitable or "relevant contract of employment" is for a young person. Would this have to be certified/agreed in some way by the local authority or LSC as suitable provision?
s21 Appropriate arrangements to be in place before employment begins
(1), p11, lines 12-16
"A person must not, as employer, enter into a relevant contract of employment with a person to whom this Part applies without being satisfied, having taken all such steps as are reasonable to ascertain, that the person has made appropriate arrangements for training or education."
We need to be clear for employers, particularly SMEs, what 'reasonable' looks like and they ought to be able to access guidance easily from somewhere on this, e.g. Connexions.
s22 Financial penalty for contravention of section 21
"(1) Where a relevant local education authority is satisfied that a person ("the employer") has contravened section 21, the authority may by notice (a "penalty notice") require the employer to pay a financial penalty."
We need to be clear that this is at the local authority's discretion and managed on a case by case basis. There are possible issues here in terms of bureaucracy for LAs and relations between LAs and business, notably SMEs. It is not clear how LAs will find out if employers are not allowing access to training/education - back to universal tracking through Connexions? What happens if employer ignores penalty notice? Does LA have to take them to court?
s25 Duty to enable participation: arrangements subsequently notified
p13, lines 20-7
"(2) The employer must, so far as is reasonable having regard to the matters mentioned in subsection (3), permit the person to participate in training or education in accordance with those appropriate arrangements.
(3) Those matters are-
(a) the needs of the person in order to fulfil the duty imposed by section 2;
(b) the circumstances of the employer's business;
(c) the effect of the person's absence from work on the running of that business."
(2) and (3) appear to give loopholes to employers - so far as is reasonable having regard to inter alia (3)(b) and (c). We need to be very clear - does the employer have a duty or not? If there are circumstances where the employer does not, who adjudicates this and how does this affect LAs' duties under s22 above? There are implications too at s27(5)(c). In particular, how does this work for self-employed young people?
s26 Sections 24 and 25 extension for person reaching 18
(2) What obligations are on the employer if an employee below 18 drops out of their course?
s27 Contravention of section 24 or 25: enforcement notice
This clause is similar in principle to s22.
(5) We need greater clarity here for employers and local authorities and as per comments on s25, how should this be evidenced to the LA and what adjudication process should there be?
(9) Local authorities need to ensure cross border transfer of data again, given the young person's place of employment may well be in another 'host authority. This reiterates data and logistics arguments made elsewhere
s28 Financial penalty for non-compliance with enforcement notice given under section 27
Comments as per s22
s38 Parenting contracts and parenting orders: further provisions
(2) and (3)
LAs will expect to be engaged from the early stages of development on the regs/guidance.
s39 Failure to fulfil duty under section 2: initial steps
(2)(b) Presumably the notice from the local authority to the young person ought also to make clear that the young person can make representations/appeals as per subsection (6)?
s42 Attendance Panel
(1) LAs will want to be involved in the drafting of regs regarding the constitution of attendance panels to ensure these are not overly bureaucratic, burdensome or costly.
Ditto see s43(3), Appeal arrangements.
s47 Failure to comply with attendance notice: penalty notice
Reiteration - LGA does not believe this is the way to engage with young people or obtain their attendance for effective learning
(2) If a young person pays a penalty notice, they avoid 'conviction'. Is a 'conviction' criminalisation?
From a practical enforcement perspective, this provision assumes ability and/or willingness to pay, apart from other matters, notably costs to local authorities pursuing the payment of penalties.
(4) LAs expect DCSF to engage with them closely on the regulations/guidance for these provisions
s54 Support services: provision by local authorities.
"(1) A local education authority in England must make available to young persons and relevant young adults for whom it is responsible such services as it considers appropriate to encourage, enable or assist the effective participation of those persons in education or training."
Local authorities are perfectly happy with this, resources permitting. The DCSF intention here is to provide the legal basis for the transfer of Connexions.
(2) and (4) Direction given by the Secretary of State should be in close consultation with LAs
(5) Let's be clear: it is the local authority of residence that has a duty to ensure support provision is being made for an individual somewhere, i.e. ultimate responsibility for outcomes, well-being, commissioning?
Direction given by the SoS would need to be in consultation/agreement with LAs not least because of resource implications (cf s146).
(2) Careful we don't stifle innovation by being over-prescriptive in specifying particular services.
(2)(b) Services should not be micro-managed from the centre, particularly if you have the general criteria and standards at (c)
(d) We need to be careful regarding data management - Government (DCSF, DIUS and others) need to work with LAs and providers generally on performance management data provision etc. & bear in mind the provisions of LGPIH Act 07 plus Government commitment to reduce data burdens on LAs by 30% by 2010 (CSR 07). We are already in the midst of a consultation by DCLG on the National Indicator Set.
(3) This sub-section is again about provision of IAG and Connexions services. We do need to be careful though that this does not potentially interfere with local authority/14-19 Partnership commissioning processes.
s57 Educational Institutions: duty to provide information
(3)(c) Local authorities will need this 'relevant information' to include information about course, level of qualification, other support offered/accessed whether employed or not etc., to retain a helpful picture of what other or ongoing support needs the young person might have.
(4) On the need not to provide information - see comments on s14(4) above.
s59 Internet and telephone support services etc.
The Secretary of State should liaise closely with LAs and 14-19 Partnerships regarding what needs to be commissioned - otherwise, there are significant possibilities for duplication or displacement of/by services if not careful.
(1) This wording is precisely what local authorities see as their role in the whole process!
(1) and (2) in particular need to take account of Comprehensive Area Assessment (CAA) arrangements as per LGPIH Act 07 - in spirit and action. Support services provision may be subject to a thematic review by Ofsted, but otherwise all inspection should be integrated within CAA apart from individual provider/institution inspections as per e.g. school inspection framework.
s65 Assessment relating to learning difficulties
We are perfectly happy with this.
It is conceivable comments may be passed on the adequacy or otherwise of local authority SEN provision/ assessments under existing regulations.
s66 Careers education: information and advice
We are perfectly happy with the wording here.
It is possible there may be some probing about how, in fact, schools can be 'made' to offer impartial information and advice. It is possible we could argue that bringing Connexions back under local authority control potentially makes this easier as Connexions could be tasked with assisting in careers CPD in schools and monitoring advice given. Again, Ofsted, might have a role both through individual inspections of schools and in a thematic review of careers information and advice in schools.
s68 Provision of transport etc. for persons of sixth form age: duty to consider journey times
Slightly strange wording - why not those engaged in fulfilling their duties under s2? Could be in employment, at college etc.
This is a case where we remain unconvinced of estimated costs to implement sufficient transport provision given the nature of 14-19 offer requiring more young people to access 'offers' on more than one site. We clearly agree with the need to bear in mind distances and journey times.
s69 Co-operation as regards provision of 14-19 education and training
We are now very happy with the wording of this clause. There was concern at one point that structures would have been made unnecessarily inflexible, particularly in relation to other partnership duties the local authority has whether it be children's trust arrangements, LAAs, MAAs etc.
s70 Learning aims for persons 19 and over
This is all fine, but a point to note is that obviously many 14-19 providers, e.g. FE colleges, will also be supplying the post 19 market and there will need to be close consultation between 14-19 Partnerships, LAs & LSC to ensure effective planning, commissioning and capacity across both pre- & post-19 provision.
s71 Revenue and Customs Information
Does this apply for pre-19s as well, who may be self-employed or in employment (e.g. as per social security data at s15)?
s76 Independent educational institutions
This includes Academies, CTCs, CCTAs. (Current legal definition is at s463 of EA 1996).
There is a general point to be made here about these institutions' linkage to wider planning and commissioning within the 14-19 context and the ability of the Partnership to influence that adequately.
s81 Unregistered independent educational institutions: inspection
(1) Local authorities suggest it would be helpful if HMCI, believing an offence to have been committed, should also inform the local LMCS and DCS, given LA duties under the Children Act 04; ss10, 11, 18 and 19.
s83 Determination of applications for registration
(4) In registering new institutions, HMCI should let the relevant LA know that provision is authorised given LA duties under ss1 and 2 of EIA 06. Also, this is in effect an act of commissioning via the inspectorate and may affect maintained provision for other young people positively or negatively; the independent institution ought to be engaged in planning/commissioning processes of the 14-19 Partnership.
Could HMCI end up commissioning Academies, CTCs or CCTA without referral to the LA?
s99 Action Plans
HMCI should copy any inspection report (s98) to LA (given duties under ss1 and 2 of EIA 06) and action plan requirements/responses should be copied to the LA too.
s105 Application to justice of the peace for order
(2) Should be tied in to information to LA and other agencies on LCSBs, cf duties under s14 of Children Act 04 (see likely LA/LCSB involvement at s113).
s117 Providers of independent education or training for 16-18 year olds
(2)(b) Any institution would need to be fully integrated in 14-19 Partnership planning and commissioning for effective/comprehensive area-wide approach to delivery of entitlements.
s133 Power of governing body: educational provision for improving behaviour
There is a need for the governing body to inform/keep LA informed of any such provision and review of young person's needs in view of the local authority's duties under EIA 06 s1, Children Act 04 s10 and the duties on a LA to support a young person under this Bill s54 (see Exp Notes paras 161-2).
s141 Constitution of schools forums
While this clause looks very much at the representation on schools forums, we believe it is necessary to review whether these bodies are adequately carrying out the functions set out for them and doing so with any notice of wider accountabilities, e.g. of the lead member for children's services. There is concern in a number of quarters, not least from school heads, that as representation increases, both from pre-school provision and wider 14-19 provision, the remit as previously established is no longer appropriate.