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Chapter 4: Other functions and supplementary provision
Other functions
Clause 175: Provision of services or other assistance
472. This clause enables the QCDA to provide services or other assistance in relation to the matters listed in subsection (1). The consent of the Secretary of State is not required for the provision of services or other assistance, unless it is outside the scope of the list in subsection (1), or involves providing financial assistance or charging for services. The clause prohibits the QCDA from loaning money. The QCDA may use the powers under this clause to provide services such as support and advice to schools on implementing the curriculum, or to awarding bodies in relation to the development of qualifications. In particular, this clause will enable the QCDA to operate systems and support services such as the Diploma Aggregation Service (a web-based IT system that supports the administration and award of Diplomas).
Clause 176: Provision of information or advice
473. This clause provides a duty for the QCDA to advise the Secretary of State on issues he refers to it.
Clause 177: Ancillary activities
474. This replicates the existing duty for the QCA to comply with a direction of the Secretary of State to carry out ancillary activities relating to its functions (under sections 25(2) and 25(3) of the Education Act 1997).
Clause 178: Co-operation and joint working
475. This clause allows the QCDA to co-operate or work jointly with other public bodies, where it is appropriate for the efficient and effective performance of its functions. This would enable it, for example, to seek the advice of the Welsh qualifications regulator on qualifications that are regulated in Wales but offered in England, or to work with a Sector Skills Council to advise on the qualifications needed in a particular employment sector.
Clause 179: Power to confer supplementary functions on the QCDA
476. This clause provides a power for the Secretary of State to confer supplementary functions on the QCDA by order, where such new functions are exercisable in connection with the matters listed in the clause. This measure is designed to enable the functions of the QCDA to develop over time to meet changing needs and circumstances. An order under this clause is subject to the negative procedure.
Supplementary provision
Clause 180: Directions etc. by the Secretary of State
477. The Secretary of State may issue directions to the QCDA as to the performance of any of its functions. This power sits alongside those of the Secretary of State to direct the QCDA in relation to “ancillary activities” - see clause 177, and to set up a committee for a specified purpose - see paragraph 9(2) of Schedule 12. The QCDA must also, in performing its functions, act in accordance with any plans approved by the Secretary of State.
478. The provisions in this clause reflect the QCDA’s role as an NDPB, accountable to Ministers
Clause 181: Guidance by the Secretary of State
479. The QCDA must, in performing its functions, have regard to any guidance given from time to time by the Secretary of State. As with the previous clause, this duty reflects the QCDA’s role as an NDPB accountable to Ministers.
Chapter 5: General
Clause 182: Interpretation of Part
480. This clause sets out the interpretation of various terms used in the Part.
Clause 183: Minor and consequential amendments
481. This clause introduces Schedule 12, which contains minor and consequential amendments resulting from the establishment of Ofqual and the revised regime for the QCDA. The changes to section 87 of the Education Act 2002 and to section 41 of the Childcare Act 2006 are particularly relevant to the QCDA’s role, in that these Acts along with the Education Act 1997 contain the full range of the QCA’s current statutory functions. In other words, a significant amount of the QCA’s work relates to functions conferred under the 2002 and 2006 Acts, and potentially this will also be the case for the QCDA.
Schedule 12: Ofqual and the QCDA: minor and consequential amendments
482. The amendments in this Schedule fall into seven categories:
(1) Those that relate to the establishment of Ofqual as a new Government Department and to the change of name and charitable status of the Qualifications and Curriculum Authority (paragraphs 1-7 and 23).
483. In this category there are amendments to the following Acts: the Public Records Act 1958; the Parliamentary Commissioner Act 1967; the Superannuation Act 1972; the House of Commons Disqualification Act 1975; the Northern Ireland Assembly Disqualification Act 1975; the Race Relations Act 1976; the Charities Act 1993 and the Freedom of Information Act 2000.
484. Ofqual does not need to be named explicitly as falling under some of these Acts, because its status as a Non-Ministerial Department means that no explicit provision is needed for some of these Acts to apply to it.
485. Additionally, the QCDA, unlike the QCA, will not be a charity, so there needs to be an amendment to the Charities Act 1993 to remove the reference to the QCA being an exempt charity.
(2) The repeal of sections 21 to 26A, section 36 and Schedule 4 to the Education Act 1997 (paragraphs 9 and 15-18)
486. Sections 21 to 26A and Schedule 4 establish the QCA, make provision for its constitution, governance and proceedings, and confer functions on it. These provisions are repealed in consequence of the provisions of the Bill in relation to Ofqual and the QCDA.
487. Section 36 provided a power for the Secretary of State to provide by regulations for the QCA and the Welsh Ministers to receive payment from persons who award vocational qualifications accredited by these authorities. The statutory levy on an awarding body for National Vocational Qualifications accredited by the QCA was replaced by direct grants to Sector Skills Councils from autumn 2008, and the relevant regulations have been revoked. The power has therefore become redundant.
(3) Amendments to the legislation governing the regulation of qualifications in Wales, keeping the regulatory powers of Welsh Ministers broadly in step with those of Ofqual (paragraphs 10-14)
Paragraph 11
488. Paragraph 11(2) amends section 30 of the 1997 Education Act to provide revised functions for the Welsh Ministers in relation to vocational and academic qualifications. The new subsection (1) for section 30 reflects the Welsh Ministers’ existing functions, except in the following cases: the Welsh Ministers now have a function of determining whether a relevant qualification - or a description of qualification - is to be subject to a requirement that they be accredited. The Welsh Ministers also have an additional function of publishing and disseminating (or assisting in the publication or dissemination of) information relating to recognised bodies. The qualifications falling within the Welsh Ministers’ remit have also changed. As a result of the amendments, the provisions will refer to “relevant qualifications”, replacing the reference to “external qualifications”. A definition for relevant qualifications is provided in paragraph 11(6), as outlined below.
489. Paragraphs 11(4) and 11(5) make consequential amendments to update references to subsections in section 30(1) of the 1997 Act. This reflects the insertion of new functions and the re-numbering of the paragraphs in section 30(1).
490. Paragraph 11(6) provides a description of the qualifications (the “relevant qualifications”) that fall within the Welsh Ministers’ remit. Qualifications awarded or authenticated by higher education qualifications (that is, foundation degree level or any comparable level; first degree level, and any at a comparable or higher level) are excluded from that remit. A qualification is to be considered as awarded or authenticated in Wales where there are (or expected to be) people in Wales seeking to obtain that qualification who will be assessed wholly or mainly in Wales.
491. Paragraph 11(7) repeals the description of external qualifications in section 30(6) of the 1997 Act. References to “externality” are removed which means that the Welsh Ministers will be able recognise bodies which both teach and award qualifications - for example, employers or colleges which have the capability to do so.
Paragraph 12
492. Paragraph 12(2) and (5) substitutes “persons with learning difficulties” for “persons with special learning needs”. This is consistent with the phrase used in section 41 of the Learning and Skills Act 2000. The word ”reasonable” is also added, so section 32 of the 1997 Act will provide that the Welsh Ministers must have regard to the reasonable requirements of persons with learning difficulties in carrying out their functions. Paragraph 12(2)(a) also qualifies the function of having regard to the requirements of industry, commerce, finance and the professions by reference to reasonableness.
493. Paragraph 12(3) amends the power for the Welsh Ministers to place a limit on fees charged by a recognised body for the award of a qualification. A fee capping condition may be applied to any charge levied in relation to the award or authentication of a qualification or any other service provided in relation to such a qualification. It might include, for example, any fees charged by the recognised body to recognise a school or college wishing to offer the qualification.
494. Paragraph 12(4) removes the power for the Welsh Ministers to act as agents for the QCA. It is not intended that the QCDA will exercise any functions in relation to Wales and this provision therefore becomes redundant.
Paragraph 13
495. Paragraph 13(2) is a consequential amendment to reflect the QCA’s regulatory functions being transferred to Ofqual.
Paragraph 14
496. Paragraph 14 inserts a new section 32B into the 1997 Act. This new section provides that if an awarding body has not complied with a condition of recognition or accreditation, the Welsh Ministers may withdraw recognition in relation to some or all of the qualifications for which it is recognised or withdraw accreditation of a qualification. However, the Welsh Ministers may only do this if the awarding body’s breach of the condition seems likely to prejudice either the proper award of a qualification or a person expecting to be awarded with a qualification.
497. Subsections (5) to (11) of the new section 32B set out the steps that the Welsh Ministers must take before withdrawing recognition or accreditation, including giving notice of their intention, taking account of representations from the awarding body, and arranging for the decision to be reviewed.
498. The power for the Welsh Ministers to withdraw accreditation or recognition is currently implicit in the Education Act 1997 as amended by the Education and Skills Act 2008. The insertion of an express power clarifies the scope and operation of what otherwise would have been implied powers and provides greater transparency.
(4) Amendments to the provisions of the Learning and Skills Act 2000 governing eligibility for public funding for qualifications in maintained schools etc (paragraphs 19-22)
499. Under sections 96 and 98 of the Learning and Skills Act 2000, the Secretary of State has the power to approve qualifications for which a course may be taught to persons aged under 19 in a maintained school or in a provider funded by the Learning and Skills Council. The amendments to that Act in paragraphs 19 to 21 allow the Secretary of State to approve a qualification only if either the qualification is a “regulated qualification” in accordance with Part 7 of this Bill (and where the accreditation requirement applies, it is accredited), or if the Secretary of State consults Ofqual before approval. This ensures that, if the Secretary of State is considering granting approval for funding for a qualification which Ofqual does not regulate, he is aware of any views Ofqual has about the qualification. The change is part of implementing the Government’s new qualifications strategy for under-19s 2. The amendments to section 96 bring the qualifications to which this approval regime apply into line with the qualifications in respect of which an awarding body may apply to be recognised by Ofqual.
2 Promoting achievement, valuing success: a strategy for 14-19 qualifications, DCSF, Cm 7354, 31 March 2008, http://www.dfes.gov.uk/publications/14-19qualifications/pdfs/14-19Qualifications.pdf
500. Paragraph 22 amends section 99 of the Learning and Skills Act 2000, which is the Welsh equivalent of section 98. The amendment provides that a qualification is automatically approved for the purposes of section 96 if it is awarded by a body which is recognised by the Welsh Ministers (and, if required, the qualification is accredited).
(5) Amendments to the legislation governing NC and Early Years Foundation Stage assessments (paragraphs 24 to 28 and 31 to 34)
Education Act 2002 and Childcare Act 2006
501. Paragraphs 24 to 28 and 31 to 34 amend the provisions of the Education Act 2002 and the Childcare Act 2006 respectively relating to the NC, and in particular the NC assessment arrangements, and the EYFS learning and development requirements and the EYFS assessment arrangements. The changes primarily reflect the provisions of the Bill which establish Ofqual and provide for the QCA to become the QCDA.
502. Section 87 of the 2002 Act makes provision for the NC to be set out in orders made by the Secretary of State. Paragraph 28 amends section 87 and in particular the provisions of that section relating to the Secretary of State’s powers to make orders specifying assessment arrangements. The amendments relate to the powers of the Secretary of State to confer functions on specified bodies, including the QCDA, and to delegate the making of supplementary provision to the QCDA and other persons.
503. Section 87(9) of the 2002 Act currently states that provisions will be made to determine the extent to which the assessment arrangements achieve their purpose. Given that Ofqual is established to regulate assessments, section 87(9) is no longer required. Paragraph 28(4) therefore repeals this subsection.
504. Similar changes are made to the provisions of the Childcare Act 2006 relating to the learning and development requirements of the EYFS. Paragraph 33 amends section 42(2) of the 2006 Act to include the QCDA and any other person with whom the Secretary of State has made arrangements in connection with assessment arrangements, as persons on whom functions may be conferred in an order specifying assessment arrangements for the learning and development requirements of the EYFS. That paragraph also enables the Secretary of State to delegate the making of supplementary provisions in relation to assessment arrangements.
505. Section 42(4) of the 2006 Act states that provision will be made to determine the extent to which the assessment arrangements achieve their purpose. Given that Ofqual is established to regulate assessments, section 42(4) is no longer required. Paragraph 33(3) therefore repeals this subsection.
(6) Changes to procedures for exemptions from the National Curriculum and Early Years Foundation Stage: Education Act 2002 and Childcare Act 2006 (paragraphs 29 and 35)
506. Section 90 of the 2002 Act gives the Secretary of State the power to direct in respect of a particular maintained school or maintained nursery school that, for a specified period, the NC does not apply or applies with modifications. This is designed to support development work or experiments that will support learning. The amendment made by paragraph 29 establishes a reviewing body for these cases, which will comprise the QCDA or another person assigned by the Secretary of State. The amendments give the Secretary of State the power to require any such school or nursery to report to the reviewing body, or to require the reviewing body to keep the development or experiment work of any such school or nursery under review.
507. Section 46 of the 2006 Act provides for regulations to be made allowing the Secretary of State to direct in respect of a particular early years provider or description of early years providers that, for a specified period, the EYFS does not apply or applies with modifications. Paragraph 35 of this Schedule amends section 46 to allow the regulations to include provision establishing a reviewing body for these cases, which will comprise the QCDA or another person assigned by the Secretary of State. The amendment will also allow the regulations to give the Secretary of State the power to impose conditions when making such a direction, or to require the reviewing body to keep the effects of the direction under review.
(7) Changes to streamline consultation relating to the National Curriculum: section 96 of the Education Act 2002 (paragraph 30)
508. Paragraph 30 amends section 96 of the Education Act 2002 which makes provision about the procedure for making orders relating to the NC. The amendments make changes to the way in which persons must be notified of the proposed order or regulations.
509. Under section 96(3), the QCA is required to give notice of the proposal. Notice must be given to any person with whom consultation appears desirable to the Authority. Paragraph 30(3) amends this provision so instead the QCDA is under a duty to publish notice of the proposal in a way that it considers likely to bring to the attention to those concerned with it.
510. Under section 96(6) the Secretary of State is required to publish drafts of a proposed order or regulations and a statement explaining any failure to give effect to the recommendations of the QCA. Paragraph 30(6) and (7) removes the requirement for the Secretary of State to send copies of the above statement and proposed order or regulations to every person consulted by the QCDA. Instead, the Secretary of State is required to take steps to bring the documents to the attention of those consulted. This will enable documents to be published, for example on the internet, rather than being provided to each of the persons consulted by the QCDA.
PART 9: CHILDREN’S SERVICES
Co-operation to improve well-being of children
Clause 184: Arrangements to promote co-operation
511. Section 10 of the Children Act 2004 (“the 2004 Act”) requires each children’s services authority to make arrangements to promote co-operation between the authority itself, its relevant partners and such other persons or bodies as it considers appropriate, to improve the well-being of children. These arrangements are commonly known as “Children’s Trusts”. This clause amends section 10 to include new “relevant partners” who must co-operate with the local authority in the making of arrangements under that section. It also allows those bodies more flexibility over how they share resources and pool funds.
512. Subsection (2) amends section 10(4) of the 2004 Act to set out the additional “relevant partners” which will now include the governing bodies of maintained schools and further education institutions (including sixth form colleges), and proprietors of non-maintained special schools, city technology colleges, city colleges for the technology of arts and Academies. The inclusion of the Secretary of State’s functions under section 2 of the Employment and Training Act 1973 refers to Jobcentre Plus. The extension of the duty to cooperate to these new partners is to give them a stronger voice within the arrangements made under section 10 to improve children’s well-being, greater influence over the local strategic direction taken, and better support from other partners.
513. Subsection (3) amends section 10 of the 2004 Act to allow local authorities and relevant partners to provide staff and other resources to each other, another local education authority or to the relevant partners of another local authority for the purposes of arrangements made under section 10 (new section 10(5A)(a)).
514. New section 10(5A)(b) also permits local authorities and relevant partners when they are making arrangements to improve children’s well-being to pay money into a fund which may be used by any of the contributors in respect of their functions. It will permit multiple local authorities and/or their relevant partners to operate one single fund.
515. Subsection (4) repeals subsections (6) and (7) of section 10 of the 2004 Act as these are replaced with new subsection (5A).
516. Subsection (5) inserts new subsections (10) and (11) in to section 10 of the 2004 Act. New subsection (10) will require local authorities and governing bodies of further education institutions (FEIs) where the FEI is spread over several sites to have regard to the Secretary of State’s guidance when determining of which authority the FEI will be a “relevant partner”.
517. Subsection (11) defines key terms used in the amendments to section 10 of the 2004 Act.
Clause 185: Children’s Trust Boards
518. This clause makes two changes to Part 2 of the 2004 Act. It will require local authorities to expand on the current arrangements to improve children’s well-being made under section 10 of the 2004 Act by setting up Children’s Trusts Boards (“CTBs”) as part of those arrangements. The clause will also transfer the duty of preparing and implementing Children and Young People’s Plans from local authorities to CTBs.
519. Subsection (2) inserts new section 12A in to the 2004 Act to build on section 10 of the 2004 Act by introducing a statutory requirement for all local authorities in England to establish a Children’s Trust Board (“CTB”) for their area as part of their section 10 arrangements. The CTB must include representatives of the that establishes the CTB and its “relevant partners” unless they are prescribed in regulations, which will be subject to the negative resolution procedure, as relevant partners who need not be included on the CTB (subsection (4)). A relevant partner would be placed in this category because their circumstances made it unlikely that they could easily take on the more strategic and involved role of member of a CTB. For example, a body that is more regional than local would not be well-placed to be a member of all the CTBs its region covered. The CTB may also include other persons or bodies that the local authority thinks appropriate. Subsection (5) allows one or more people to represent more than one CTB member or group of CTB members.
520. The effect of subsection (1) of new section 12B of the 2004 Act (inserted by subsection (2)) is that a CTB’s functions are preparing and implementing their local Children and Young People’s Plan (CYPP), as set out in new sections 17 and 17A of the 2004 Act (inserted by subsection (3)). New section 12B(1)(b) also creates a power for the Secretary of State to add further functions to the work of CTBs by regulations subject to affirmative resolution.
521. Subsection (2) of new section 12B of the 2004 Act ensures that any function added by the Secretary of State under subsection (1)(b) must be related to improving the well-being (defined in subsection (3) as relating to one or more of the five Every Child Matters outcomes listed in section 10(2)(a) to (e) of the 2004 Act) of children and relevant young persons in the local area.
522. Subsection (4) of new section 12B requires CTBs to have regard to guidance issued by the Secretary of State relating to CTB procedures and the exercise of their functions.
523. Subsection (5) of new section 12B defines “relevant young persons”, referring back to section 10 of the 2004 Act. The term “relevant young persons” includes people aged 18 and 19, care-leavers over the age of 19, and people over the age of 19 but under the age of 25 who have a learning difficulty within the meaning of section 13 of the Learning and Skills Act 2000 and who are receiving services under that Act.
524. New Section 12C (inserted by subsection (2)) sets out the arrangements for the provision of funds and resources relating to the work of a CTB. It also allows two or more CTBs to pool funds for the purposes of their work.
525. New section 12D sets out the arrangements for sharing data between the CTB and its members for the purpose of enabling it or assisting it to perform its functions.
526. Subsection (3) replaces section 17 of the 2004 Act (which places responsibility for Children and Young People’s Plans (“CYPPs”) on local authorities) with new section 17 (which places responsibility for CYPPs on CTBs), and adds a new section 17A (which covers the implementation of a CYPP).
527. Subsection (1) of new section 17 provides a power for the Secretary of State, through regulations, to require the CTB to prepare and publish a CYPP. The plan should set out the CTB partners’ strategy for co-operating with each other in order to improve the well-being of local children and young people (subsection (2)). The Government intends that regulations will broadly mirror the structure of existing regulations and the CYPP will continue to be the single strategic overarching plan for all local services for children and young people. However, the new regulations will apply to the whole CTB and not, as is currently the case, apply only to the local authority. The regulations will be subject to the negative resolution procedure.
528. Subsection (3) of new section 17 defines “well-being” as relating to the five Every Child Matters outcomes as set out in section 10(2) of the 2004 Act:
- physical and mental health and emotional well-being;
- protection from harm and neglect;
- education, training and recreation;
- the contribution made by them to society;
- social and economic well-being.
529. Subsection (4) of new section 17 provides for regulations to cover the preparation, consultation, publication, review and revision of the CYPP. The regulations will cover matters to be dealt with in the plan and may additionally be used to require CTB partners to set out their resourcing and budgetary commitments to meet the priorities of the plan. Under current regulations only the local authority must state how its budget will be used to contribute to improved outcomes.
530. Subsection (5) of new section 17 ensures that the CYPP also covers those young people who are included in arrangements made under section 10 of the 2004 Act. These are persons aged 18 and 19, persons over 19 receiving services as care leavers under the Children Act 1989 and persons over 19 but under 25 who have a learning difficulty within the meaning of section 13 of the Learning and Skills Act 2000 and who are receiving services under that Act.
531. New section 17A of the 2004 Act introduces a new statutory requirement for CTB partners to “have regard” to their CYPP when they exercise their functions (subsection (2)). Currently, “relevant partners” under section 10 of the 2004 Act, for example PCTs and police authorities, are not required to have regard to the CYPP. Extending the duty to have regard to the CYPP brings the “relevant partners” in the
CTB in line with maintained schools which under section 38 of the Education and Inspections Act 2006 are already placed under a duty to “have regard” to the CYPP.
532. Monitoring the CYPP will form an integral part of the CYPP’s development and implementation. Subsection (3) of new section 17A requires the CTB to monitor its partners’ progress in implementing the CYPP and report annually on how well CTB partners are acting in accordance with the strategies set out in the CYPP. The Government intends to issue statutory guidance under new section 12B(4) to outline what processes should be undertaken in monitoring the plan following implementation.
533. Subsection (4) amends subsection 18(2) of the 2004 Act to ensure that the new functions relating to CTBs and CYPPs are added to the list of functions of a Director of Children’s Services.
534. Subsection (5) extends the meaning of the term “children’s services” used in sections 20-22 of the 2004 Act to include the functions and procedures of CTBs (including all functions in relation to the preparation and review of the CYPP, and partners’ compliance with that plan), the funding of CTBs and supply of information to CTBs. Sections 20-22 of the 2004 Act address the joint inspection of children’s services. By expanding the meaning of the term “children’s services”, this subsection ensures that the CTB-related activities listed may be inspected under an inspection of children’s services.
535. Subsection (6) extends the list of relevant functions of a local authority, for the purposes of section 50 of the 2004 Act, to include the funding of CTBs, the supply of information to CTBs and the need to have regard to the CYPP when exercising its functions. Section 50 addresses the powers of the Secretary of State to intervene in local authorities. By expanding the list of functions, this subsection allows the Secretary of State to intervene in local authorities in connection with their CTB and CYPP activities listed above.
536. Subsection (7) amends subsection 66(3) of the 2004 Act with the effect that any regulations produced under new section 12B(1)(b) (adding further functions to the work of CTBs) must be subject to Parliamentary approval by resolution.
537. Subsection (8) adds to section 47A of the School Standards and Framework Act 1998 to place a duty on schools forums to have regard to the CYPP produced by their local CTB.
538. Subsection (9) amends section 21 of the Education Act 2002, which states that the governing bodies of maintained schools must have regard to their local area’s CYPP. This duty needs to be revised to reflect the fact that responsibility for preparing the CYPP is moving to the CTB. Governing bodies of maintained schools will be CTB partners and therefore under a duty to have regard to their local CYPP. However, should a governing body of a maintained school ever not be represented on its CTB, section 21 is amended so that the governing body must still have regard to the local CYPP.
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