Education Bill


Reference: EBCC/2011/Note 19

To aid the Committee’s consideration of the Education Bill, this note provides further information on the delegated powers in new section 1D inserted into the Academies Act 2010 by clause 51(7)(1C) and in clause 52.


Alternative provision

1. Section 19(1) of the Education Act 1996 imposes a duty on local authorities to make arrangements to provide "suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them". Suitable education is defined as "efficient education suitable to the age, ability, aptitude and to any special educational needs", the child (or young person) may have. This can include provision for excluded pupils, young carers, school-phobic children, school-aged mothers and pupils who are unable to attend school because of medical reasons.

Pupil referral units (PRUs)

2. Most local authorities have their own Pupil Referral Unit (PRU) to enable them to comply with their section 19 duty. In addition they can also commission provision from other providers. Legally, a PRU is a school established and maintained by a local authority which is specially organised to provide suitable education for pupils of compulsory school age who cannot attend mainstream or special educational provision.

3. PRUs may provide full or part time education. They may offer education directly or can organise packages of educational provision involving other providers, e.g. Further Education colleges and programmes offered by the private (including independent schools) and voluntary sectors. The Government intends to give PRUs new community school type freedoms. The Government will make regulations under powers in existing legislation (Schedule 1 to the Education Act 1996) to apply provisions which apply to maintained schools in relation to staffing and finance. This will give PRU management committees a delegated budget and control over staffing, thereby making them more analogous to a community school governing body and will apply to all PRUs.

4. Pupils in alternative provision are some of the most vulnerable in education. They need, and deserve, a good education just as much as pupils in mainstream schools.

What these provisions do

5. Clause 51 will amend the Academies Act 2010 to provide for three new types of Academies and set out the characteristics of each. One of these new types will be the alternative provision Academy, created under the new section 1C of the Academies Act 2010. Alternative provision Academies will be principally concerned with providing full or part time education for those children to whom the section 19 EA 1996 duty is owed, and for children of different abilities, wholly or mainly drawn from the area in which the school is situated. It will make Academy status available to providers of alternative provision that could not meet the current criteria for an Academy, but that could provide suitable high quality education for these vulnerable pupils.

6. How this new type of alternative provision will fit into the existing legal framework is complex and because of the complexities the Government is not yet in a position to make all the necessary consequential amendments.

7. Clause 52(2) of the Education Bill gives the Secretary of State the power by order to make changes in consequence of clause 51 to any provision of any Act passed before or in the same Session as the Education Bill, and of any subordinate legislation made before the Act is passed. Such changes will be further to the consequential amendments made to the Bill in Schedule 12.

8. All amendments made by order under section 52 would still be subject to scrutiny by the House: any order amending primary legislation would be subject to affirmative procedure with a debate in each House; and any order amending subordinate legislation would be subject to negative procedure.

9. The new section 1D of the Academies Act 2010 gives the Secretary of State the power to determine, through regulations, which statutory provisions relating to maintained schools, Academies and pupil referral units should or should not apply to alternative provision Academies and with what modifications. Regulations under this section will also provide for how these statutory provisions should apply or not apply to different types of alternative provision Academies: for example, whether certain provisions should apply to full-time compared to part-time alternative provision Academies. This power is in line with the established precedent for applying legislation to Pupil Referral Units by Order.

10. All amendments made by regulations under new section 1D would be subject to the negative procedure. Again, this mirrors the current approach taken to applying legislation affecting maintained schools to pupil referral units; the power to make regulations applying such legislation with or without modifications is found in paragraph 3 of Schedule 1 to the Education Act 1996 and such regulations have always been made subject to the negative procedure.

11. We will continue to work on this and will provide more information to Parliament at a later stage.

March 2011