Clause 99: Performance assessments

256.     This clause re-enacts the performance assessment elements of section 9 of the Learning and Skills Act 2000, replacing references to the LSC with references to the Chief Executive of Skills Funding. It enables the Chief Executive to adopt or develop schemes for the assessment of the performance of individual providers of education and training. The Chief Executive may take this assessment into account when deciding which providers he or she will continue to fund under powers in clause 97.

Clause 100: Means tests

257.     This clause re-enacts the means elements of section 9 of the Learning and Skills Act 2000, replacing references to the LSC with references to the Chief Executive of Skills Funding. It enables the Chief Executive to carry out means tests or arrange for others to do so in order to establish how much financial support students may be eligible to receive in respect of the costs of education or training, which may include childcare or transport costs, or where living costs are a concern.

Clause 101: Assistance and support in relation to apprenticeship places

258.     This clause places a duty on the Chief Executive to provide or secure provision of services to assist people to find apprenticeships. The clause provides the statutory basis for the services provided by the National Apprenticeships Vacancy Matching Service launched in December 2008 which include a web based service for individuals, employers and providers which enables employers to advertise their apprenticeship vacancies through a national portal. The Government’s expectation is that the portal will provide information to assist people interested in apprenticeships to understand the opportunities that exist for them and where appropriate apply on-line for those opportunities that interest them.

Clause 102: Advice and Assistance in relation to apprenticeships

259.     This clause allows the Secretary of State to require Chief Executive of Skills Funding to provide advice and assistance to enable the Secretary of State to discharge responsibilities for statutory apprenticeships set out in Part 1, Chapter 1. These include responsibility for the specification of apprenticeship standards for England and giving directions and guidance in relation to the issue of English frameworks.

Clause 103: Provision of services

260.     This clause re-enacts section 11 of the Further Education and Training Act 2007, replacing references to the LSC with references to the Chief Executive of Skills Funding. It provides the powers for the Chief Executive to provide services for individuals and to bodies exercising education and training functions in relation to those functions. It enables the Chief Executive to offer support services such as management information systems, software management systems, payroll administration, human resources functions, finance services and procurement services, including to people and to bodies outside England where that is appropriate, and required by the devolved administrations. Such services may include the provision of accommodation or facilities where that is appropriate to the delivery or provision of the service.

261.     The Chief Executive may provide these services to: publicly-funded education and training providers (including schools and universities); publicly-funded institutions that have functions relating to the provision of education and training; and persons or bodies specified by order (who may or may not be publicly funded but have functions relating to education or training).

262.     Subsection (3) provides that the terms and conditions of such arrangements may include provision for making payments to the Chief Executive in respect of costs incurred in performing any function under the arrangements. This might be used where the delivery of services requires the Chief Executive to incur costs that might not normally be incurred in the delivery of services in England alone. This might include costs associated with adapting systems, providing “additional” services, or simply providing the service to devolved administrations.

263.     Subsection (4) defines “permitted recipients”, which are those persons with whom the Chief Executive may make arrangements under this clause and subsection (8) defines “the appropriate national authority”.

264.     The orders specifying additional persons or bodies may be made by the Secretary of State or, where a person or body has education and training functions only in Wales, Scotland or Northern Ireland, by the relevant devolved administration.

265.     In Wales, Scotland and Northern Ireland, these services will be supplied only with the consent of the respective devolved administrations. Separate consent will be required from each administration for each type of service.

266.     The Chief Executive will need to obtain the consent of the Secretary of State before making arrangements to provide support services to a person or body operating in Wales, Scotland or Northern Ireland.

267.     An example of such a support service is the Further Education Data Service which the Government intends that the Chief Executive will operate as a shared service across the Further Education and skills sector. This service will collect information from colleges and providers and produce and disseminate reports on performance of the further education sector to all those with a direct interest in the performance of particular colleges and providers, for example the colleges and providers themselves; local education authorities; and the Young People’s Learning Agency.

268.     Another example of such a support service is the Managing Information Across Partners (MIAP) Learner Registration and Learner Record Service through which the Chief Executive will provide services, when requested to do so, which support the sharing of data with the aim of benefiting of individual learners. The Chief Executive will manage these services on behalf of participating partners. The Welsh Assembly and Northern Ireland Government have already asked the LSC to provide such services and this clause will enable the Chief Executive to carry out the same functions.

Clause 104: Assistance with respect to employment and training, Clause 105: Assistance with respect to employment and training: Northern Ireland

269.     Clauses 104 and 105 give the Chief Executive the same powers which the LSC currently has under section 12 and 13 of the Further Education and Training Act 2007, to allow him or her to take part in arrangements in relation to Wales, Scotland and Northern Ireland for assisting persons to select, train for, obtain and retain employment. Consent of the Welsh and Scottish administrations will be required for arrangements made by the Secretary of State in relation to Wales and Scotland. The consent of the Secretary of State will be required for arrangements made by all the devolved administrations which involve the Chief Executive. Arrangements may include a loans scheme for learners such as Career Development Loans (CDLs) or its successor Professional and Career Development Loans (under which commercial lenders provide loans to help pay for learning) which operate throughout Great Britain and are currently administered by the LSC on behalf of the devolved administrations.

Clause 106: Research, information and advice

270.     This clause sets out the role of the Chief Executive in relation to research and the provision of information and advice, and the establishment of systems for collecting information. The Chief Executive has a duty to report to the Secretary of State on such matters as the Secretary of State may require. In practice, this is likely to include information about progress towards the Government’s targets and priorities in connection with post-19 learning; a description of the Chief Executive’s learning and skills funding strategy; and information on the application of funding. This will also include information about 16-18 apprentices.

271.     Subsection (4) gives the Chief Executive the power to provide information to any person designated by the Secretary of State, in relation to a function of the Chief Executive. This will, for instance, enable the Chief Executive to provide the Office of Qualifications and Examinations Regulation (Ofqual) (if so designated) with information to assist with the establishment and maintenance of the framework of qualifications and monitoring of the standards of qualifications.

272.     Subsection (6) allows the Chief Executive to secure the provision of facilities and services for providing information, advice or guidance about education or training or connected matters.

Clause 107: Power to confer supplementary functions on Chief Executive

273.     This power enables the Secretary of State to confer by order additional functions on the Chief Executive, which are connected to the functions of the Secretary of State and relevant to the provision of facilities for education or training within the remit of the Chief Executive.

Chapter 3: Chief Executive’s functions: supplementary

Strategies

Clause 108: Strategies for functions of Chief Executive

274.     This clause re-enacts with modifications, existing powers under section 24A of the Learning and Skills Act 2000. It allows the Secretary of State by order to specify an area of England as an area for which a specified body (which could either be a body that already exists or one which is specifically set up), to put in place and keep under review a strategy for how education and training for those persons that the Chief Executive is responsible for, will be delivered. This would typically be a city region, for which a specified body — for example, an Employment and Skills Board — is able to set out a strategy for the actions of the Chief Executive in that particular area. The Secretary of State may not specify an area comprising Greater London or a part of it because specific powers in respect of Greater London apply and are set out in clause 109.

275.     Subsection (4) allows the Secretary of State to give directions and guidance to the specified body in relation to the formulation and review of its strategy, including such matters as form and content of the strategy, updating and reviewing the strategy and those bodies which need to be consulted on the formulation and review of the strategy. The specified body must comply with any directions and have regard to any guidance given by the Secretary of State.

276.     Subsection (6) allows the Chief Executive to reimburse this body for costs and expenses it incurs in formulating and reviewing its strategy.

Clause 109: Strategy for functions of Chief Executive: Greater London

277.     This section re-enacts with modifications section 24B of the Learning and Skills 2000 (which was inserted by the Further Education and Training Act 2007) This clause requires the Secretary of State to provide, by regulations, for the establishment of a London body to formulate a strategy setting out how certain functions of the Chief Executive are to be carried out in Greater London and keep it under review.

278.     The body that is established must include the Mayor of London and other members appointed by the Mayor in accordance with the regulations and the Mayor must be the chairman of the body.

279.     Under subsection (4), the Secretary of State may give directions and guidance to the London body in relation to the formulation and review of the strategy, including such matters as the form and content of the strategy; updating it; procedures to be followed when formulating or reviewing the strategy; and the consultation procedures to be followed.

280.     The London body must act in accordance with any such directions and have regard to guidance given by the Secretary of State (subsection (5)) and it must publish the strategy, or the revised strategy (subsection (6)).

281.     The Chief Executive may contribute to costs and expenses incurred by the London body or the Greater London Authority (subsections (8) and (9)).

Clause 110: Strategies: duty of Chief Executive

282.     This clause puts the Chief Executive under a duty to implement any strategy formulated by a body set up under the powers contained in clauses 108 and 109.

283.     The clause sets out circumstances in which the Chief Executive may refuse to comply with the strategy. This might be for example where the strategy has been formulated without compliance with any directions or regard to guidance concerning its formulation or review. If provision in a strategy conflicts with provisions of strategies of different specified bodies, the Chief Executive may disregard relevant provision in one or both of the strategies (subsection (4)).

284.     The Chief Executive is not required to carry out his or her functions in accordance with a strategy in a manner that he or she is satisfied might involve disproportionate cost or in a manner which he or she considers to be unreasonable (subsection (6)).

285.     The Chief Executive may not carry out a function in accordance with a strategy if to do so would mean failing to comply with a duty imposed on him or her by or under any enactment (subsection (3)). Where the Chief Executive proposes not to, or does not, carry out a function in compliance with a strategy, the Chief Executive must refer the matter to the Secretary of State (and the strategy setting body may also refer the matter to the Secretary of State) (subsection (7)). In such circumstances, the Secretary of State may give such direction to the Chief Executive as he or she thinks fit regarding the carrying out of that function (subsection (8)).

Clause 111: Persons aged 19 or over with learning difficulties

286.     This clause provides that in performing the functions of the office, the Chief Executive must have regard to the needs of persons who are aged 19 or over who have learning difficulties but who are not subject to a learning difficulty assessment (under section 139A of the Learning and Skills Act 2000). “A learning difficulty” is defined in subsections (2) and (3).

Clause 112: Persons subject to adult detention

287.     This clause provides that the Chief Executive must have regard to the needs of persons in adult prisons in the performance of the functions of the office.

Clause 113: Use of information by Chief Executive

288.     This clause provides that the Chief Executive must have regard to any information which has been provided by a person designated by the Secretary of State for the purposes of this section.

Clause 114: Guidance

289.     This clause sets out a requirement similar to that on the Learning and Skills Council in section 14A of the Learning and Skills Act 2000 (inserted by section 7 of the Further Education and Training Act 2007). It places a duty on the Chief Executive to have regard to any guidance given by the Secretary of State. In particular, guidance may relate to consultation with learners, potential learners (who fall within the Chief Executive’s remit) and employers; and taking advice from such persons or descriptions of persons as may be specified in the guidance. In relation to consultation with learners and potential learners, the guidance must provide for the views of such persons to be considered in the light of their age and understanding.

Clause 115: Directions: funding of qualifications

290.     This clause provides for the Secretary of State to direct the Chief Executive to secure (by way of imposing a condition) that funding he provides is not used to make payments in respect of certain specified qualifications. The direction from the Secretary of State would be expected to specify the qualification or qualifications which he considers to be inappropriate for public funding and should therefore be excluded, and may set out the details under which financial resources should not be provided, such as a course leading to a qualification, or exam fees for a qualification.

291.     Subsection (2) defines the terms “an excluded payment” and “relevant institution or employer” for the purposes of this clause.

292.     The overall purpose of the clause is to ensure that the funding provided by the Secretary of State to the Chief Executive is used to fund qualifications which the Secretary of State thinks are appropriate to receive public funding, and provides a mechanism for the Secretary of State to prevent the public funding of qualifications where he deems it inappropriate to provide such funding.

Clause 116: Directions: funding conditions requiring co-operation

293.     This section gives a power to the Secretary of State to direct the Chief Executive to use funding conditions to require a training provider to cooperate with other training providers or other specified bodies. The Secretary of State may require the Chief Executive to make it a condition of the funding that financial resources made available to a specified provider or providers of education or training (within the Chief Executive’s remit) must be dependent upon a requirement that they cooperate with other specified providers or with other specified persons. The provider or providers specified in the direction must have regard to any guidance issued by the Secretary of State under this clause.

294.     The direction will specify the providers or types of providers, and the circumstances and purpose of the co-operation. Subsection (3) sets out the additional persons (other than other providers) with whom the provider may be required to co-operate, which include a local education authority in England and the Young People’s Learning Agency for England.

Clause 117: Other directions relating to the functions of the office

295.     This clause allows the Secretary of State to give directions to the Chief Executive which must be complied with about what overarching objectives he or she should be seeking to achieve in performing the functions of the office, and by when. Directions may not relate to the funding of specific individuals or individual bodies. This is to ensure that the Chief Executive has responsibility for funding decisions, without influence from the Secretary of State. The Secretary of State is able to intervene if he or she considers that the Chief Executive has failed to discharge a statutory duty or has acted or is proposing to act unreasonably in the exercise of his or her functions.

PART 5: PARTS 2 TO 4: SUPPLEMENTARY

Clause 119: Sharing of information for education and training purposes

296.     This clause will allow the Chief Executive of Skills Funding, the YPLA, and LEAs, to share information to enable or facilitate the exercise of their functions.

297.     The clause does not allow information to be passed on if doing so would be an offence, nor where there are other statutory restrictions which prohibit its disclosure.

The Learning and Skills Council for England

Clause 120: Dissolution of the Learning and Skills Council: for England, Clause 121: Dissolution of the Learning and Skills Council: transfer schemes

298.     These clauses provide for the dissolution of the LSC and give effect to Schedule 7, which provides for the transfer of staff and property from the LSC to various bodies.

Schedule 7: Learning and Skills Council for England: transfer schemes

299.     This Schedule gives power to the Secretary of State to make a scheme to enable the transfer of staff and property from the LSC to various bodies.

300.     In relation to staff, the Secretary of State may make a scheme providing for designated employees of the LSC to become employees of “a permitted transferee” or to become members of the civil service. The Government envisages that some of the LSC staff will become civil servants as a result of transferring to DIUS and the Chief Executive of Skills Funding. In relation to property, the scheme may provide for the transfer from the LSC of designated property, rights or liabilities to the Secretary of State, the Chief Executive of Skills Funding, or to a permitted transferee.

301.     “Permitted transferee” is defined in paragraph 7 as an English LEA, the YPLA or any other person specified by the Secretary of State by order.

PART 6: THE SIXTH FORM COLLEGE SECTOR

Clause 122: Sixth form college sector

302.     This Part introduces Schedule 8, which contains provisions for a new sixth form college sector.

Clause 123: Removal of power to establish sixth form schools

303.      This clause prevents LEAs from establishing additional sixth form schools, but does not affect existing sixth form schools, which will continue to operate in exactly the same way as other schools maintained by the LEA.

Schedule 8 - Sixth form college sector

304.     Paragraph 3 of Schedule 8 inserts new provisions for sixth form college corporations in England into the Further and Higher Education Act 1992 (“the FHEA 1992”).

Section 33A: Initial designation of existing bodies corporate as sixth form college corporations

305.     This new section gives the Secretary of State a power to designate, by order, specified existing further education (“FE”) corporations as “sixth form college corporations”. This initial designation power will take the form of a list of institutions. Designation will take effect from a date that is specified in the order. The designation order may provide for the continuity of governance between the former FE corporation and the new sixth form college corporation and may specify the initial name of the new corporation.

306.     The sixth form college corporations designated under this section will include both FE corporations established under section 16 of the FHEA 1992 and “designated institutions”. Some colleges that were sixth form colleges before 1992 entered the further education sector by being designated under section 28 of the FHEA 1992, and were later incorporated as FE corporations under section 143 of the Learning and Skills Act 2000.

307.     This power is exercisable only once and not after a date specified by order.

Section 33B: Subsequent designation of existing bodies corporate as sixth form college corporations

308.     This new section gives the Secretary of State further power to designate, by order, FE corporations as sixth form college corporations once the power in section 33A is no longer exercisable. A designation order may be considered only after the governing body of a FE college has applied to the Secretary of State and if, on the date of application, at least 80% of the total enrolment number at the institution is aged 16 or over but under 19. The “total enrolment number” is defined as the full-time equivalence number (as calculated under Schedule 3 to the FHEA 1992). The designation order may provide for the continuity of governance between the former FE corporation and the new sixth form college corporation and may specify the initial name of the new corporation.

Section 33C: Establishment of new bodies corporate as sixth form college corporations

309.     This section gives the Secretary of State the power to establish, by order, a sixth form college corporation. The local education authority must first publish proposals in line with the requirements set out in subsection (3). On establishment, at least 80% of the total enrolment number at the institution must be aged 16-18. The order will specify the date of establishment and may provide for the name of the new corporation.

Section 33D: Conversion of sixth form college corporations into further education corporations

310.     Under this new section, the Secretary of State may, by order, convert a sixth form college corporation into a FE corporation. This is the opposite of the process under section 33B for the designation of a sixth form college. The governing body of the sixth form college must apply to the Secretary of State and he must be satisfied that it is no longer appropriate for the college to remain a sixth form college. So that change does not destabilise colleges, subsection (3) prevents a sixth form college from seeking to convert for five years from the date that it is designated or established as a sixth form college. The order may, as with designation or establishment orders, ensure the continuity of governance from sixth form college status to FE college status.