|Apprenticeships, Skills, Children And Learning Bill - continued
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781. Subsections (2) to (4) define the education and childrens social services functions of a local authority and accountable resources in relation to a school maintained by a local authority. Local authority education functions include the determination of individual school budgets, and what is spent by the local authority centrally to support those responsibilities, including provision for pupils with special educational needs, and learner support. Local authority functions for childrens social services include expenditure on the childrens services strategy and services to young people, including youth justice.
782. Subsection (5) enables the Secretary of State to amend this section by order for the purposes of adding, removing or changing the description of education functions or childrens social services functions.
783. Subsection (6) defines certain other terms used in this section and subsection (7) provides that orders made under subsection (5) are subject to affirmative resolution of both Houses.
784. Subsection (2) amends section 52 of the School Standards and Framework Act 1998 in order to restrict its application to local education authorities in Wales.
785. Subsection (3) repeals section 53 of the School Standards and Framework Act 1998, (certification of expenditure statements by the Audit Commission). The Secretary of State no longer requires Local education authorities to make arrangements for the Audit Commission to examine their expenditure statements. This power has not been used during the past three years.
786. Part 1 of the Education and Skills Act 2008 places a duty on young people to participate in education or training until the age of 18 (or until attaining a level 3 qualification if earlier) and requires local education authorities to promote the effective participation of young people in their areas who are subject to the duty to participate. That Act also provides for local education authorities in England to establish support services for people aged 14 to 19, and those aged up to 24 who have learning difficulties. These services are known as Connexions services provided by local education authorities themselves or contractors.
787. Sections 15 and 76 of the Education and Skills Act 2008 provide for limited social security information to be provided to local education authorities, and Connexions service providers, respectively for the purposes of functions under Part 1 of that Act or Connexions services.
788. Section 17 of that Act enables information held by LEAs and by Connexions service providers to be supplied and used either for purposes under Part 1 of that Act or for Connexions services purposes.
789. Clause 240 and 241 amend provisions of that Act about the holding and supply of information for the purposes of Part 1 of that Act or for Connexions services purposes.
790. Subsection (2) omits section 15 of the Education and Skills Act 2008 so that social security information may no be longer supplied directly to an LEA for Part 1 purposes. Social security could still be provided by a Connexions service provider to a local education authority where that is permitted under section 76 of that Act.
791. The Government intends that information that can be shared by a LEA and its Connexions service provider under section 17 of the Education and Skills Act 2008 will be held on a database operated by the authority or service provider. Subsection (4) amends section 17(1) to make clear that this is permitted. The database for each area will be known as the Client Caseload Information System (CCIS).
792. Subsection (5) excludes, from the category of information that can be shared under section 17, information that was supplied to a Connexions service provider under section 72 of the Welfare Reform and Pensions Act 1999 (which relates to 16/17 year old benefit claimants.)
793. Subsection (6) amends section 17 to make it clear that the ability to share information under that section does not displace any statutory prohibition on disclosing the information.
794. At present, section 76 of the Education and Skills Act 2008 allows the Secretary of State (here the Department for Work and Pensions) or a contractor of that department, to provide limited social security information to a Connexions service provider for use for Connexions purposes. Subsection (9) amends section 76 to allow the information to be provided instead to the Secretary of State (here the Department for Children, Schools and Families) or a contractor of that department (inserted subsection (3B) of section 76) for onward transmission to Connexions service providers. Inserted subsection (3A) confers the necessary power on the Secretary of State (here the Department for Children, Schools and Families) to make arrangements for the transmission of information in this way.
795. Inserted subsections (3B) to (3E) set out the circumstances in which information that originated with the Department for Work and Pensions or a contractor of that department and is supplied under section 76 may be disclosed. These include enabling or assisting the exercise of any function of a LEA under Part 1. Subsections (4) and (4A) also create an offence which prevents this information being provided for any other purpose, and replaces the offence for which section 76 already provides.
796. The Department for Children, Schools and Families will make arrangements with a contractor to collect and hold relevant Connexions service information and supply to those involved in the provision of Connexions services to assist in the provision of those services. This will involve a database known as the National Client Caseload Information System (NCCIS). The NCCIS will enable a Connexions service provider to find out whether a person for whom the service provider has been providing support has moved to a different area.
797. Subsection (2) of clause 241 will insert a new 76A into the Education and Skills Act 2008, subsection (1) of which enables the Secretary of State to make these arrangements. Subsection (3) allows local Connexions service providers to provide information to the contractor operating the NCCIS. This information is information obtained by a Connexions service provider about a person for whom services are provided but excludes information provided under section 72 of the Welfare Reform and Pensions Act 1999. Subsections (4) to (6) contain restrictions on the disclosure of information held on the NCCIS.
798. Subsection (1) allows the Secretary of State to ensure that information is provided by local Connexions service providers to the NCCIS. It does this by amending section 69 of the Education and Skills Act 2008 to allow the Secretary of State to give directions to a LEA about the terms of the arrangements that it makes for the provision of local Connexions services.
799. This clause inserts a new section 19A into the Further and Higher Education Act 1992. It provides that in carrying out their functions under sections 18 and 19 of that Act, further education corporations in England must have regard to the objective of promoting the economic and social well-being of the people who live or work in the locality of their institution.
Clause 243: Student loans under the 1998 Act: IVAs, Clause 244: Student loans under the 1990 Act: IVAs and bankruptcy
800. These two clauses amend the Teaching and Higher Education Act 1998 (c.30) (the 1998 Act) and the Education (Student Loans) Act 1990 (c.6) (the 1990 Act) so that a student loan made to a borrower who enters an Individual Voluntary Arrangement (IVA) will be treated in a similar way as it is currently treated under a bankruptcy in England and Wales. Clause 244 also amends the 1990 Act by inserting bankruptcy provisions for Northern Ireland that correspond to those in England and Wales in regard to student loans.
801. Individual Voluntary Arrangements (IVAs) were created by the Insolvency Act 1986. An IVA enables a debtor to avoid bankruptcy by coming to an agreement with creditors to pay off a percentage of his or her debts over a given period.
802. At present, the treatment of student loans under an IVA differs from their treatment under a bankruptcy in England and Wales. There are two types of student loan. The newer type of loan, known as an Income Contingent Loan, is repayable by a borrower under the 1998 Act, and the older type of loan, known as a Mortgage Style Loan, is repayable under the 1990 Act
803. The 1998 Act excludes loans from a borrowers bankruptcy debts, so that during and upon discharge from bankruptcy, the borrower remains liable to repay his student loan. Repayments are linked directly to a borrowers income so the student debt will not need to be repaid until the borrowers income is above the income threshold. Clause 243 amends the 1998 Act to provide that similar arrangements will apply to student loans under an IVA as currently apply under a bankruptcy. This means that the liability of a borrower to repay a student loan will not be reduced when the borrower enters into an IVA.
804. Clause 244 makes similar provision in respect of the 1990 Act, so that a Mortgage Style Loan is not to be included in the voluntary agreement This means that the liability to repay the Mortgage Style Loan will not be reduced when someone enters into an IVA. In respect of Northern Ireland, clause 244 inserts similar provision on IVAs and also makes provision about bankruptcy corresponding to the existing provision under that Act for bankruptcy in England and Wales.
805. These provisions apply to England, Wales and Northern Ireland.
806. Subsection (4) of clause 244 amends Schedule 2 to the 1990 Act in respect of Northern Ireland. The 1990 Act provides that, in respect of England and Wales, a Mortgage Style Loan is prevented from forming part of the estate of a person who becomes bankrupt and also from forming part of the bankruptcy debts where the loan was taken out in England and Wales. Subsection (4) makes similar provision in respect of Northern Ireland.
807. The Privy Council has power, under section 76 of the Further and Higher Education Act 1992 (FHEA 1992), to make orders that enable institutions providing higher education to grant one or both of two groups of awards. Institutions providing higher education can be given a power to grant awards to students who complete a course of study, or a power to grant awards to students who complete a programme of research, or both. These are commonly referred to as taught and research degree awarding powers respectively.
808. A number of further education institutions provide courses leading to foundation degrees. Originally, only institutions with full taught degree awarding powers could award foundation degrees in their own right. Section 19 of the Further Education and Training Act 2007 amended section 76 of the Further and Higher Education Act 1992 so as to enable the Privy Council to make orders granting further education institutions in England the power to award foundation degrees.
809. Currently foundation degrees provided by further education institutions in Wales are awarded by other higher education institutions with full, taught degree-awarding powers through franchise arrangements. This clause amends section 76 of the FHEA 1992 so as to enable the Privy Council to make orders granting further education institutions in Wales the power to award foundation degrees.
810. As a result of this provision, further education institutions in Wales providing courses leading to foundation degrees will be able to apply for powers to award foundation degrees themselves. In order to be granted this power, institutions will have to meet certain non-statutory criteria, which will be published in draft during the passage of the Bill. As with taught and research degree awarding powers, the Quality Assurance Agency for Higher Education will advise on whether an institution meets the criteria.
811. Subsection (2) requires Welsh Ministers to lay before the National Assembly for Wales a report about the effect of the provision within four years of it coming into force.
812. The provision applies to further education institutions in Wales as defined under section 91 of the FHEA 1992, which only includes institutions conducted by further education corporations and institutions designated under section 28 of that Act. The new legal category of sixth form college corporation created by the Bill does not apply in Wales.
Clause 246: Complaints: Wales
813. This clause amends section 29 of the Education Act 2002. Section 29 (1) places a duty on the governing bodies of maintained schools to establish procedures for dealing with complaints. Governing bodies must publicise procedures under section 29(1)(b) and, in establishing and publicising them, governing bodies in Wales must have regard to guidance from the Welsh Ministers (section 29(2)). Currently, governing bodies have discretion to put in place whatever procedure they judge fit for handling complaints. This amendment gives a power for the Welsh Ministers to make regulations which would set out a complaints procedure that will become compulsory for all governing bodies of maintained schools in Wales. Such regulations are able to specify how and where this procedure should be published.
Clause 247 Local Government Act 1974: minor amendment
814. This clause makes a minor amendment to paragraph 5 of Schedule 5 to the Local Government Act 1974. The Local Commissioner may currently investigate complaints about maladministration by local education authorities in relation to their education functions subject to the exclusions in paragraph 5 of Schedule 5. This effect of this amendment is to provide that a complaint about special educational needs may be considered by the Local Commissioner, even where it may relate to conduct, curriculum, internal organisation, management or discipline of a local education authority maintained school.
PART 13: GENERAL
Clause 248: Orders and Regulations
815. Clause 248 contains general provisions about orders and regulations under this Bill. All orders or regulations are to be made by statutory instrument apart from any made under Chapter 1 of Part 1, or Part 3, or Part 4 which are exercisable by the Department for Employment and Learning in Northern Ireland which are to be made by statutory rule.
816. Affirmative resolution procedure is required for any orders made by the Secretary of State under the clauses listed in subsection (6). These have been noted in the Commentary on Clauses section of these Explanatory Notes. All other statutory instruments have to follow the negative resolution procedure apart from orders made under clause 37 specifying apprenticeship sectors and commencement orders which require no parliamentary procecdure.
Clause 250: General Interpretation of Act
817. This clause provides that the clauses in Parts 3, 4, 5, 7, 8, Chapter 4 of Part 10 and clauses 235, 237, and 238 are to be construed as if they were contained in the Education Act 1996 unless a different meaning is given in the clauses of the Bill in which case that meaning prevails. Subsection (4) provides that section 562 of the 1996 Act (as amended by clause 48), which provides that the Act does not apply to certain persons detained under order of a court do not apply for the purposes of Part 4 of the Bill. The effect will be that the Secretary of States functions in respect of Part 4 which relate to the Chief Executive of Skills Funding apply to those persons detained under order of a court.
Clause 251: Power to make consequential and transitional provision etc
818. This clause enables the Secretary of State to make supplementary, incidental, consequential, transitory, transitional or saving provision for the purposes of, in consequence of, or giving full effect to, any provision of the Bill. Where such an order amends or repeals primary legislation it is subject to the affirmative resolution procedure.
819. The transfer of responsibilities to LEAs will result in a significant transfer of public expenditure from central to local government of some £7 billion, but the Government expects that overall public expenditure on 16-18 education will remain broadly the same and will still count against the Departmental Expenditure Limit of the Department for Children, Schools and Families.
820. The costs of operating the new post-19 system, including staffing and on-costs, will be met from the LSCs current staffing budget, and are also expected to be revenue-neutral compared to the current system.
821. There are likely to be transitional costs relating to premises, assets and people and pensions. There will, however, be savings from lower transactional costs, which will ensure more of the money is used to fund learning. Further administrative savings may be possible through centralisation of functions and shared support services, and through the reduction in the number of offices that the LSC currently retains.
822. The reform will also result in significant staff movements. Roughly 1,000 of the LSCs staff are expected to transfer to local education authorities and some 1,800 will form the new Skills Funding Agency (including 400 posts in the National Apprenticeship Service) which will mean they are added to the DIUS headcount. 500 will transfer to the new YPLA and as such will remain NDPB staff.
823. The new system will, at worst, be revenue neutral for FE Colleges and other education and training providers, but there could be significant benefits in terms of better informed and integrated commissioning of services; and through a reduced bureaucracy on providers through streamlined performance management and data arrangements.
824. The reform of the QCA will result in a relatively small increase in public expenditure as a result of new functions which Ofqual will take on to improve the effectiveness of its regulation (partly though not entirely as a result of these reforms). Around 120 of the QCAs existing 600 staff will transfer to Ofqual, with around 480 remaining with the re-named the QCDA. As Ofqual will be a Non-Ministerial Department, this will result in an increase in Civil Service headcount, and the Treasury has approved the changes. Again some transitional costs will be incurred but these will be met from existing budgets.
825. The apprenticeships proposals will underpin the Governments plans for an increase in the number of people starting apprenticeships to 250,000 by 2020, but the Government intends to deliver this number of apprenticeships within previously agreed budgets.
826. The Government does not expect any of the other measures in the Bill will result in a significant increase in public expenditure. Many of the proposals relating to childrens services, schools and behaviour provisions reflect and reinforce existing practice. Other proposals should result in or facilitate savings. These include:
827. There are no tax implications arising from the Bill.
828. A ways and means resolution will be sought in relation to the Bill. This is in relation to a number of clauses in the Bill where powers are given to charge fees for certificates for apprenticeships, and for Ofqual and the QCDA to charge fees for certain services. There is no express limit in the Bill on the amounts of these fees and so, because it would be possible for them to be set at a level which went beyond covering the cost involved in issuing the certificates or providing the services in question, ways and means authority is required.
829. A separate Impact Assessment (IA) has been produced to accompany the Bill. This analyses the costs and potential benefits of the proposals and assesses their possible impact on race, gender and disability equality. Copies are available for Members in the Vote Office. It will also be available online at http:www.dcsf.gsi.gov.uk/apprenticeshipsskillschildrenandlearningbill and in hard copy from the Department for Children Schools and Families. The Impact Assessment shows that each policy area is at least cost neutral in terms of benefits and costs to the public, private and third sector.
830. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before second reading about the compatibility of the provisions of the Bill with the European Convention on Human Rights (as defined by section 1 of that Act).
831. Having considered the possible implications, the Secretary of State for Children, Schools and Families has made a statement saying that in his view the provisions of the Apprenticeships, Skills, Children and Learning Bill are compatible with the Convention rights. There are some areas where it would be helpful to provide further comments for clarification, as follows.
832. Apprenticeship agreements are to be treated as contracts of service, as opposed to contracts of apprenticeship. Contracts of apprenticeship are more difficult to terminate by an employer, and claims for higher levels of damages can be made for wrongful termination. The Government has considered whether such treatment engages Article 1 of Protocol 1 of the ECHR, but has concluded it does not.
833. The Governments view is that the clause does not prevent the entering into of traditional apprenticeship agreements; any new agreement will be entered into voluntarily and will set out rights and responsibilities clearly; and apprentices will be entitled to damages for wrongful and unfair dismissal under such agreements.
Clauses 47 to 50: Persons detained in youth accommodation
834. The Bill will amend section 562 of the Education Act 1996 to make young offenders subject to the Education Acts so that their education, so far as is practicable, matches that of children and young people in the mainstream education system. These provisions further implement the right to education in Article 28 of the United Nations Convention on the Rights of the Child by improving both access to, and the quality of, education available for juvenile offenders.
Clause 119: Sharing of information for education and training purposes
835. Data currently used and shared by the LSC for England will be transferred to the YPLA, Chief Executive of Skills Funding and local education authorities to enable these bodies to undertake functions once the LSC is dissolved. YPLA functions will also necessitate the collection of data from Academies and the sharing of data with certain third parties.
836. Article 8(1) may be engaged in the provision of and sharing of data. However, the Government is satisfied that any interference will be justified in line with Article 8(2). First, it protects the rights and freedoms of young people to travel to different areas and facilities to access different forms of education by enabling the necessary sharing of information; second, it promotes economic well-being by facilitating improvement of education to ensure a more skilled workforce. The provisions are subject to the protections of Data Protection Act 1998.
Clauses 129, 144 and 145: Ofquals powers to regulate bodies awarding qualifications
837. Ofqual will assume the regulatory role currently undertaken by the QCA. Article 6 may be engaged where Ofqual refuses to recognise a body to award particular qualifications or types of qualification, or withdraws such recognition. The Governments view is that refusing to recognise a body or withdrawing such recognition may be a determination of a civil right. If Article 6 is engaged, the availability of an internal review process where recognition is withdrawn and judicial review ensure that the provisions are Article 6 compliant.
838. Withdrawal of recognition is also potentially an interference with Article 1 Protocol 1. Being recognised by Ofqual may be a possession for the purposes of that Convention right. Whether there is a breach of this Article would depend upon individual circumstances. Where a decision to withdraw recognition is a rational one, there would be no violation of this Convention right. If an awarding body was in breach of its conditions of recognition and that breach threatened the quality of a qualification or the interests of learners seeking to gain that qualification, that fact would form justification for any engagement with Article 1 Protocol. Withdrawal of recognition would be legitimate in the public interest and as a consequence of a recognised awarding body failing to comply with conditions provided by law.
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|Prepared: 10 February 2009