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Section 85AB: Power of search under section 85AA: supplementary

722.     Section 85AB sets out who may carry out the searches and how those searches must be conducted.

723.     Subsections (1), (2) and (3) provide that only principals and authorised members of staff may conduct searches, and that a member of staff may have (a) a general authorisation to search, for example a member of staff may be authorised to search for any prohibited item at any time; (b) be authorised to conduct a particular search, for example given authorisation to search a particular individual in a particular circumstance; or (c) be authorised to conduct particular types of searches, for example given authorisation to conduct searches for some prohibited items (but not others), or where a particular set of circumstances arise. Subsection (3) sets out that a principal may not require anybody other than security staff to conduct a search. This means lecturers can never be placed under any obligation to search a student.

724.     Subsection (4) stipulates that a search may be carried out only on the premises of the FE institution or where the member of staff has lawful control or charge of the student, such as on a field trip. These powers apply only in England; they therefore do not apply on trips to other countries.

725.     Subsection (5) provides that reasonable force may be used in executing a search.

726.     Subsection (6) states that a search of a student may be made only by a person of the same gender as the student and in the presence of another member of staff. It also provides that the person carrying out the search may not require the student to remove any clothing other than outer clothing (as defined in subsection (8)).

727.     Subsection (7) states that a student’s possessions may be searched only in the presence of the student and another member of staff.

728.     Subsection (8) defines “member of the security staff” and “outer clothing”.

Section 85AC: Power to seize items found during search under section 85AA

729.     Section 85AC sets out the powers members of staff will have to seize and dispose of any prohibited items.

730.     Subsections (1) and (2) provide for the person carrying out the search to seize any prohibited items and any other items suspected to be evidence of an offence found during the search, and to use reasonable force when exercising this power. However, alcohol may not be seized from a student aged 18 or over under this power.

731.     Subsection (3) provides that where a searcher finds alcohol they may retain or dispose of it, at their discretion.

732.     Subsection (4) requires that controlled drugs must be delivered to the police as soon as possible but may be disposed of if the person who has seized them considers that there is a good reason to do so.

733.     Subsection (5) requires that stolen items must be delivered to the police as soon as possible but may be returned to the rightful owner, retained or disposed of if in the view of the person who has seized them, there is good reason to do so.

734.     Subsection (6) requires that in relation to subsections (4) and (5), the person who has seized the controlled drug or stolen article must have regard to any guidance issued by the Secretary of State, in determining whether there is good reason not to deliver it to the police.

735.     Subsection (7) requires any person seizing a knife, offensive weapon or evidence in relation to an offence to deliver the item to the police as soon as reasonably practicable.

736.      Subsection (9) provides for a member of staff to have reasonable grounds for suspecting that the seized item falls within the definition of “prohibited item”.

Section 85AD: Section 85AC: supplementary

737.     Subsection (1) provides that the Police Property Act 1897 applies in relation to items seized. The Act enables an application to be made to a Magistrates Court for an Order that property in possession of the police be returned to its owner.

738.     Subsections (2) and -(3) provide that, where a person conducting a search, lawfully seizes, retains or disposes of an item seized under section 85AC, they shall not be liable for the seizure, loss or disposal, or any damage arising. These provisions replicate provisions in section 94(2) of the Education and Inspections Act 2006. Subsection(5) therefore stops the provisions in that section from applying in relation to items seized under section 85AC.

739.     Subsection (4) provides that subsections (2) and (3) do not prevent a person who has seized items under section 85AC from relying on any other available defence in proceedings.

Clause 232: Power of members of staff to search pupils for weapons: Wales

740.     This clause makes consequential amendments to retain the status quo in Wales. Members of staff in schools in Wales will continue to have powers to search for weapons only as set out in 85B of the 1992 Act on weapons searching.

Recording and reporting use of force

741.     Staff at schools and FE institutions who supervise learners have powers to use force to prevent the commission of any criminal offence, injury, damage to property or serious breaches of discipline. The legislation that provides this power for schools has existed in its current form since 1998 and was re-enacted by section 93 of the Education and Inspections Act 2006. The analogous legislation for colleges is section 85C of the Further and Higher Education Act 1992 (inserted by the Education and Inspections Act 2006).

742.     The Department for Children, Schools and Families issued revised guidance, entitled The Use of Force to Control or Restrain Pupils in November 2007.

743.     This guidance is supplemented by two specialist guidance documents which provide additional information for staff working with pupils with special educational needs and/or disabilities, namely:

  • Guidance on the Use of Restrictive Physical Interventions for Staff Working with Children and Adults who display Extreme Behaviour in Association with Learning Disability and/or Autistic Spectrum Disorders (Circ LEA/0242/2002); and

  • Guidance on the Use of Restrictive Physical Interventions for Pupils with Severe Behavioural Difficulties (Circ LEA/0264/2003).

744.     The Association of Colleges in partnership with the then Department for Education and Skills issued revised guidance, entitled The Use of Force to Control or Restrain in Further Education in April 2007. This document refers to the specialist guidance documents prepared for schools which may help FE Institutions in working with similar client groups. With the re-designation of sixth form colleges, this guidance will cover both general FE and sixth form colleges.

Clause 233: Recording and reporting the use of force in schools: England

745.     This clause inserts a new subsection 93A into the Education and Inspections Act 2006, to be inserted after section 93. Subsections (1), (2) and (3) of 93A require the governing body of a school in England to ensure that a procedure is in place for recording significant incidents where a member of staff has used force on a pupil and to take reasonable steps to ensure that the procedure is followed by staff at the school. The procedure must provide that such incidents are both recorded in writing, and reported to the pupil’s parents (except where the pupil is aged 20 or over) as soon as possible after the incident.

746.     Subsection (1b) specifies that the report must be made to each of the pupil’s parents. Subsection (5) states that “parent” has the meaning given by Section 576 of the Education Act 1996, and includes a local education authority which provides accommodation for a child or young person in care. This means that, for example, where a pupil has a mother and father whom both have parental responsibility for him, or her, and is the subject of a Care Order under section 31 of the Children Act 1989, or being accommodated under section 20 of that Act, the child’s mother, father and the relevant local education authority must be told about the incident.

747.     Subsection (4) specifies that the governing body must have regard to guidance issued by the Secretary of State for the purposes of recording and reporting significant incidents of the use of force. A considerable amount of good practice guidance has been issued about the use of force upon pupils. It is important to understand that the obligation to have regard to guidance only relates to governing bodies’ obligations in relation to reporting and recording. This guidance (paragraphs 44 and 45) sets out some questions that schools may find helpful in deciding whether an incident is significant and requires a written record.

Clause 234: Recording and reporting the use of force in FE colleges: England

748.     This clause creates a new section 85D of the Further and Higher Education Act 1992 (“the 1992 Act”), to be inserted after section 85C. Subsections (1), (2) and (3) of this section require the governing bodies of institutions within the FE sector in England (including sixth form colleges) to ensure that a procedure is in place for recording significant incidents where a member of staff has used force on a student and to take reasonable steps to ensure that the procedure is followed by staff at the institution. The procedure must provide that such incidents are both recorded in writing, and reported to the student’s parents (except where the student is aged 20 or over) as soon as possible after the incident.

749.     Subsection (1)(b) specifies that the report must be made to each of the student’s parents. Subsection (5) states that “parent” has the meaning given by Section 576 of the Education Act 1996, and includes a local education authority which provides accommodation for a child or young person in care. This means that, for example, where a student has a mother and father whom both have parental responsibility for him, or her, and is the subject of a Care Order under section 31 of the Children Act 1989, or being accommodated under section 20 of that Act, the student’s mother, father and the relevant local education authority must be told about the incident.

750.     Subsection (4) specifies that the governing body must have regard to guidance issued by the Secretary of State for the purposes of recording and reporting significant incidents of the use of force. It is important to understand that the obligation to have regard to guidance only relates to governing bodies’ obligations in relation to reporting and recording.

School behaviour partnerships

751.     Since September 2007, the Government has expected that all secondary schools be members of partnerships to improve behaviour and tackle persistent absence. Currently 98% of maintained secondary schools and 94% of Academies are members voluntarily, but the extent to which existing partnerships are aligned to DCSF design principles and outcomes, as outlined in (currently non-statutory) guidance is variable.

752.     Partnerships typically comprise approximately 6 to 10 members, but this varies due to local circumstance. Some partnerships have links to primary schools, special schools, pupil referral units and/or other forms of alternative provision.

Clause 235: Co-operation with a view to promoting good behaviour, etc.: England

753.     This clause places a duty on the governing body of a maintained secondary school in England (defined in subsection (5)), and the proprietor of an Academy, city technology college or city college for the technology of the arts in England (“relevant partners”), to make arrangements to co-operate with at least one other relevant partner with a view to achieving the objectives referred to in subsection (2). 98% of maintained secondary schools and 94% of existing Academies are already in partnerships voluntarily.

754.     Subsection (1) defines the bodies to which this clause applies. The Government intends to apply the duty in the clause to pupil referral units through regulations made under Schedule 1 to the Education Act 1996.

755.     Subsection (2) provides that a relevant partner is required to make arrangements with only one other such body. The Government intends to publish statutory guidance that will set out an expectation that behaviour and attendance partnerships consist of more than two members. This has not been specified in the clause as in some cases bigger partnerships may prove impractical - such as in the case of rural schools.

756.     To comply with the duty relevant partners must make arrangements with other such bodies within the same “area” as them (see further subsection (4)). In practice, partnerships will not generally cross local education authority boundaries.

757.     Subsection (2) describes the issues schools must make arrangements to co-operate on. The arrangements are to co-operate with a view to promoting good discipline and behaviour generally on the part of pupils and reducing persistent absence on the part of pupils. DCSF considers that a pupil missing 20% or more of the sessions in a school year is persistently absent (whether the absence is authorised or unauthorised).

758.     Subsection (3) requires relevant partners to have regard to the Secretary of State’s guidance in the exercise of the duty placed on the partners by subsection (2).

Short stay schools

759.     Section 19 of the Education Act 1996 imposes a duty on local education authorities to make arrangements for securing suitable education for children who, because of exclusion from school or for any other reason, may not receive such education if the arrangements are not made for them. Thus the LEA has a duty to provide education for every child of school age, if for some reason they cannot attend a mainstream or special school.

760.     Section 19(2B) recognises that LEAs may fulfil the duty under section 19 by establishing and maintaining schools which are specifically organised to make educational provision for children falling within that section. Section 19(2B) says that such schools will be known as pupil referral units (PRU). A PRU is therefore a school set up and run directly by the LA to provide education for children who cannot, for whatever reason, attend a mainstream or special school.

761.     LAs are given the power to establish and maintain schools by section 16 of the Education Act 1996. There is no express power to close a school included here, but it is taken as implicit that where an LA is free to maintain schools, it is also free to cease to maintain them.

762.     The Education and Inspections Act 2006 limits the powers of an LEA to close schools maintained by it (sections 15 and 16 and Schedule 2). However, PRUs are not covered by these limitations as they are not mentioned in the list of schools covered by the act. Therefore there are no restrictions on the ability of an LA to close a PRU maintained by it.

763.     The Secretary of State has the power to direct the closure of a school that is causing concern (section 68, Part 4 of the Education and Inspections Act 2006). This power may be exercised in cases where Ofsted have described the school as requiring special measures. Section 68 is applied to PRUs by paragraph 23 of Schedule 1 to SI 2007/2979.

Clause 236: Short stay schools: miscellaneous

764.     Subsection (1) changes the name of pupil referral units. This clause re-names pupil referral units as “short stay school”. This change applies only to pupil referral units in England; those in Wales will continue to be called “pupil referral units”. The name change will apply in law only. Individual pupil referral units will be free to use any name they wish for their own purposes (as they do currently).

765.     Subsection (2) gives the Secretary of State powers by order, which would be subject to the affirmative resolution procedure, to make amendments to legislation consequential on the change of name from “pupil referral unit” to “short stay school”. This power applies to all primary legislation enacted before the end of the Session in which the Apprenticeships, Skills, Children, and Learning Bill passes, and in all statutory instruments made before the passing of this Bill.

766.     Subsection (3) inserts a new paragraph 3A into Schedule 1 of the Education Act 1996. This extends the Secretary of State’s regulation-making powers in this area.

767.     New clause 3A(a) gives the Secretary of State the power to make regulations which would require the LA obtain the consent of the Secretary of State before closing a “short stay school”. The Government intends to use this power to make the closure of a PRU subject to the Secretary of State’s consent where:

  • The PRU has been described by Ofsted as requiring special measures; or

  • Ofsted have given notice to the Local Education Authority that an inspection is due

768.     The Government expects that the Local Education Authority will be required to provide information about the provision they are intending to replace the closing PRU with, and the Secretary of State will give his consent dependent on an assessment of the adequacy of these plans.

769.     Subsection 3A(b) gives the Secretary of State the power to make regulations enabling the Secretary of State to give directions to a LEA about the exercise of its functions under section 19 of the Education Act. The Government envisages that the powers will be used to enable the Secretary of State to give directions to a LA about the provision to be made under section 19 to replace the provision lost where a PRU is closed at the direction of the Secretary of State.

770.     Under subsection 3A(c) any regulations the Secretary of State makes in relation to pupil referral may include provisions requiring LAs to comply with directions made under the regulations. If a LA failed to comply it would be open to the Secretary of State to enforce the directions using powers under section 497 of the Education Act 1996.

771.     The Government envisages that these regulation-making powers will be used to allow the Secretary of State to direct the alternative that will replace a PRU he decides should close. The Secretary of State already has the power to direct the closure of a PRU that has been described by Ofsted as requiring special measures. This power is conferred by section 68 of Part 4 of the Education and Inspections Act 2006. “Special measures” is defined in section 44(1) of the Education Act 2005. The local education authority is under a duty (under section 19 of the Education Act 1996) to provide other suitable education for those pupils who are displaced by the closure of the PRU, but how they do this is their decision. They could find places in independent schools, open a replacement PRU, or use another provider of alternative provision.

772.     The Secretary of State does not envisage using this direction-giving power to specify exactly who or what will replace the closing unit, but rather to specify the features it should exhibit. This might include directions in areas such as:

  • The nature of the educational provision to be provided, such as the specific courses and subjects to be provided, and the ages and numbers of pupils to be catered for.

  • The manner in which the educational provision is to be provided, such as through a replacement PRU, a third sector partner or another institution such as an FE college (NB specific institutions or providers would not be named, only types).

  • The management of the educational provision, such as specifying the internal management and review structures of provision, or specifying certain clauses which must be included in any contract with external providers.

773.     The Secretary of State intends to use the powers to give directions to require the LA to invite bids from external providers for the delivery of the alternative provision. The Secretary of State might specify the way in which the LA should invite bids; for example by advertising in local newspapers or on the LA website. He might also specify the date by which an invitation should be issued, and the length of time respondents are given to reply.

774.     The Secretary of State does not intend to give directions as to the way that the LA assesses the bids, but to require the Local Education Authority to report back to the Secretary of State once the process of inviting and assessing the bids has been completed. In its report the LA would be expected to set out:

  • The actual steps taken by the LEA in inviting bids,

  • Details of any bids received, and

  • A description of the arrangements (if any) the LEA has entered into, or is proposing to enter into with any of the bidders.

  • Reasons why the LA has reached the decision it has (including details of why they have decided not to enter into arrangements with any bidders, if this situation arises).

775.     Subsection (4) makes an amendment to the Anti-Social Behaviour Act 2003. Section 24 of this Act was not amended when section 19 of the Education Act 1996 was amended by SI 2007/1507 to make separate provision for England and Wales. This meant that section 24 of the Anti-Social Behaviour Act 2003 (which refers to PRUs) worked only in relation to Wales. This amendment rectifies this oversight.

PART 12: MISCELLANEOUS

Information about local authority expenditure

776.     The Secretary of State for Children, Schools and Families currently uses two separate powers (one specific and one general) to collect information about a local education authority’s planned and actual expenditure on its education functions and its children’s social services functions. These are section 52 of the School Standards and Framework Act 1998 (“the 1998 Act”) and section 230 of the Local Government Act 1972 (“the 1972 Act”) respectively. Section 52 of the 1998 Act imposes a duty on local education authorities to prepare and publish financial statements containing information about their planned and actual expenditure on their education functions and accountable resources held, received or expended, in accordance with regulations made by the Secretary of State. Section 230 of the 1972 Act allows the Secretary of State to collect such information as he may require from local education authorities with respect to their functions and is used to collect financial information about their planned and actual expenditure on their children’s social services functions. The new sections will provide the Secretary of State with one specific power to collect both types of information but only in relation to local education authorities in England and to do so by means of a direction. This enables the Secretary of State to collect the information he needs without having to make or amend regulations. These new sections do not impose additional burdens on local education authorities.

Clause 237: Information about planned and actual expenditure

777.     Subsections (1) and (2) enable the Secretary of State to direct a local authority to provide information about its planned and actual expenditure on its education and its children’s social services functions and about accountable resources held, received or expended by any person in relation to a school maintained by the authority. Accountable resources are those funds which were provided by the Secretary of State for education and defined in 238(4).

778.     Subsections (3) to (5) respectively provide that the information must be provided in accordance with the direction, the direction may specify the period to which the information relates; the form and manner in which the information is to be provided; the persons to whom the information is to be provided; and requirements for the publication of this information; and, where a direction requires information to be provided to a person other than the Secretary of State, it may also require that person to make that information available for inspection in accordance with the direction.

779.     The purpose of the financial statements is to provide schools, parents and other interested bodies such as the Local Government Association and CIPFA, for example, with details about local authority funding and expenditure on schools and children’s social services. The Government sees it as important that finance data is available to help inform debate and planning about differing levels of expenditure between local authorities. The information informs policy making in the Department for Children, Schools and Families as well as providing information to Parliament in its role of monitoring that Department’s accountability for public funds.

780.     Subsection (6) provides that a direction may be varied or revoked by a later one.

 
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Prepared: 10 February 2009