Apprenticeships, Skills, Children And Learning Bill - continued          House of Lords

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Powers in respect of non-maintained schools

Clause 56: Power of LEAs to arrange provision of education at non-maintained schools

159.     This clause repeals section 128 of the School Standards and Framework Act 1998. Section 128 amended section 16 of the Education Act 1996 and substituted a new section 18 in that Act. The new section 18 gave the Secretary of State the power to make regulations, under which a LEA could assist primary and secondary schools outside the maintained sector, or make arrangements for pupils to be educated at such schools—an assisted places scheme. The section has never been commenced, and the Government therefore now considers that it should be repealed. The effect of the repeal is that the original section 18 remains in force. LEAs will continue to retain powers under sections 16 and 18 of the Education Act 1996 to assist, and arrange provision of education at, non-maintained schools.

Clause 57 and Schedule 2: Minor and consequential amendments

160.     Clause 57 introduces Schedule 2, which contains minor and consequential amendments relating to the provision made by Part 2.

161.     It amends section 13 of the Education Act 1996 so that local education authorities in England have a general responsibility for contributing to the spiritual, moral, mental and physical development of the community by securing further education (as well as primary and secondary education) for young people who are over compulsory school age but under 19, who are over 19 but under 25 and may have a learning difficulty. It also substitutes an amended section 13A in the 1996 Act to ensure that local education authorities exercise new education and training functions in relation to those young people for whom they have assumed responsibility so as to promote high standards, fulfilment of potential and (in England) fair access to opportunity for education and training.

PART 3: THE YOUNG PEOPLE’S LEARNING AGENCY FOR ENGLAND

162.     Clause 40 imposes a new duty on local education authorities to secure that all young people in their area who are over compulsory school age but under 19, and persons aged 19 and over but under 25 for whom a learning difficulty assessment has been carried out, have access to enough suitable education and training provision to meet their reasonable needs. The Government propose to create a small non-departmental body, the Young People’s Learning Agency for England, sponsored by DCSF and reporting to the Secretary of State, whose core purpose is to provide the funding to enable local education authorities to fulfil this duty.

Chapter 1: Establishment

Clause 58: The Young People’s Learning Agency for England

163.     This clause establishes the YPLA as a body corporate. The YPLA will perform its functions in relation to England only, except under the powers to provide services and assistance (see clauses 66 to 68) where it may exercise functions in relation to, and within, the devolved administrations’ areas.

164.     Further detailed provisions about the body are contained in Schedule 3.

Schedule 3: The Young People’s Learning Agency for England

165.     Schedule 3 sets out the detail on the constitution, governance and organisation of the YPLA as a non-departmental public body.

166.     Under paragraph 1, the YPLA will not be a servant or agent of the Crown and its staff will not be civil servants. Paragraphs 2 to 4 make provision about the membership and remuneration of the YPLA, including:

  • how the YPLA’s chair and other ordinary members will be appointed;

  • provision for the Secretary of State to remove any ordinary member from office on the grounds of persistent non-attendance, inability or unfitness for office;

  • tenure of office; and

  • the YPLA’s powers and duties in relation to remuneration of current and former members.

167.     Paragraphs 5 and 6 provide for the Secretary of State to appoint the chief executive of the YPLA, and for the YPLA to appoint other staff, and make provision about employment terms.

168.     Under paragraphs 7 and 8, the YPLA is permitted to set up committees and sub-committees. These may consist of or include persons who are not members or staff of the YPLA. The YPLA has the power to establish a committee jointly, and any joint committee is given power to regulate its own proceedings. This may be used, for example, to enable the YPLA to chair jointly with the Qualifications and Curriculum Development Agency (the new name for the Qualifications and Curriculum Authority: see Part 8 of the Bill) the proposed Joint Advisory Committee for Qualifications Approval.

169.     The YPLA may regulate its own proceedings, and the procedure of its committees (paragraph 9). Under paragraph 10, the Secretary of State or a representative of the Secretary of State is given the right to attend meetings of the YPLA and YPLA committees (including joint committees).

170.     Under paragraphs 11 and 12, the YPLA and its committees may delegate functions.

171.     The YPLA must:

  • make a plan for each academic year, which must be published before the start of the academic year (paragraph 13);

  • prepare an annual report, a copy of which must be sent to the Secretary of State (paragraph 14); and

  • keep proper accounts and proper records in relation to the accounts, and prepare annual accounts for each financial year, copies of which must be sent to the Secretary of State and the Comptroller and Auditor General (paragraph 15).

172.     The Secretary of State must lay a copy of the annual accounts and a copy of the Comptroller and Auditor General’s report on the accounts before Parliament.

173.     Paragraph 16 makes provisions about the application of the YPLA’s seal: the reference to “member” in this context includes the chief executive.

174.     Paragraph 18 sets out that the YPLA will receive its funding from the Secretary of State, and that payments will be made at such times and subject to such conditions (if any) as the Secretary of State thinks appropriate. Conditions may require the YPLA to use the grant for specified purposes, but may not impose conditions relating to the YPLA’s securing of the provision of financial resources to a particular person or organisation.

175.     Under paragraph 19 the YPLA is given supplementary powers to do anything that it considers necessary or appropriate for the purposes of, or in connection with, its functions (subject to any restrictions imposed by or under any provision of this or any other Act). However, the YPLA cannot borrow money, and must obtain the Secretary of State’s permission to do certain things, including, for example, lending money.

Chapter 2: Main Functions

Funding

Clause 59: Provision of financial resources

176.     Subsection (1) places a duty on the YPLA to secure the provision of financial resources to persons who provide education and training to young persons within the remit of the new LEA duties imposed by sections 15ZA and 18A of the Education Act 1996 (see clauses 40 and 47), and also to LEAs themselves.

177.     Under subsection (2), the YPLA must also secure the provision of financial resources as directed by the Secretary of State. This would, for example, allow the Secretary of State to require the YPLA to secure in future the provision of financial resources to a specific group of learners not covered in its duties or powers. However, this would not allow the Secretary of State to require the YPLA to secure the provision of financial resources to a particular person (for example, to provide a certain amount of money to a specific LEA) because of the prohibition in subsection (10).

178.     In addition, subsection (3) empowers the YPLA to secure financial resources in respect of provision to learners of and under compulsory school age, and learners aged 19 and over (who have not had a learning difficulty assessment) who started their courses before they were 19. These powers will enable provision to be secured, for example, for:

  • young people under the age of 16 who are attending courses in a 16 to 19 institution, whether this is because they are starting a course early, or because the course is specifically designed for those under 16, for example, young apprenticeships; and

  • young people who start a course before they reach 19 which ends after their 19th birthday.

179.     Under subsection (4) the YPLA will have power to pay grants and allowances to learners of all ages. These powers enable the YPLA to secure, for example Care to Learn grants (which are provided to young people who begin their course or learning programme before their 20th birthday), Education Maintenance Allowances (EMAs) (provided to 16 to 18 year olds) and the Adult Learning Grant (a means tested grant provided to adults of all ages). Subsection (8) gives the YPLA the power to take account of fees, charges, and other matters such as the cost of travel or childcare when securing these grants.

180.     Subsection (4) also gives the YPLA the power to secure the provision of financial resources for other purposes. This covers:

  • Persons providing goods or services in connection with the provision of education or training to persons up to the age of 19, over 19 where a course has been started before the young person reaches 19, or learners under 25 for whom a learning difficulty assessment has been made. This would allow the YPLA to fund, for example, accommodation on a field trip;

  • Persons undertaking research in relation to education or training;

  • Persons providing work experience for persons receiving education;

  • Persons carrying out means tests, for example, in relation to learner support grants.

  • Persons providing information, advice or guidance about education or training, or connected matters.

181.     Subsection (7) provides that the YPLA may secure financial resources not only by providing them directly, but also by:

  • making arrangements for another person to provide the resources, for example delivering learner support funds through contracts; and

  • making arrangements for two or more persons (whether or not this includes the YPLA) to jointly provide the resources, for example, to deliver shared services with the Chief Executive of Skills Funding.

Clause 60: Financial resources: conditions

182.     This clause enables the YPLA to set certain conditions on the financial resources it provides. The conditions are divided into three broad categories: information, operational and repayment.

183.     Under subsection (3) information conditions may require:

  • the YPLA, or a person designated by the YPLA (such as an accountant or the National Audit Office) to have access to the accounts and records, including computer records of the person to whom financial resources are provided; and

  • that the person must give the YPLA such information as it requests for the purpose of exercising any of its duties and powers.

184.     Subsections (4) and (5) provide that operational conditions may require providers of education and training to make arrangements:

  • to charge fees, make awards and recover costs from other persons in accordance with criteria established by the YPLA; and

  • to make the provision specified in a report of a learning difficulty assessment (conducted under section 139A or 140 of the Learning and Skills Act 2000)

185.     Under subsection (6) the YPLA may require repayment (which may be with interest) where the conditions subject to which the sums were paid were not complied with.

Clause 61: Performance assessments

186.     This clause enables the YPLA to:

  • adopt existing schemes, such as the Framework for Excellence, when assessing evaluating the performance of providers for whom it is proposed it provides funding in local education authority commissioning plans; and

  • develop performance assessment schemes, for example tools for scrutiny of local education authority commissioning plans or self-assessment tools for local education authorities to use when ensuring quality of provision in their commissioning plans.

Clause 62: Means tests

187.     This clause enables the YPLA to carry out, or to arrange for others to carry out on its behalf, tests against eligibility criteria (financial or otherwise) which may be taken into account when the YPLA is securing financial resources for those receiving, or proposing to receive, education and training under its powers in clause 59. This will enable the YPLA to administer grants or allowances to learners or prospective learners according to clearly defined criteria. For example, it will enable the YPLA to administer the Education Maintenance Allowance scheme to 16 to19 year olds.

Clause 63: Prohibition on charging

188.     This clause requires the YPLA to ensure, so far as is practicable, that no charge is made for education or training funded by the YPLA that is provided for young people over compulsory school age.

189.     The Secretary of State may specify through regulations the circumstances under which charges are to be treated as made for the purposes of this section. These regulations could ensure that tuition fees would be prohibited for these learners, but may allow providers of education to apply fees where appropriate, such as in relation to the conditions of attendance to free examination entry, charges for equipment, and charges for learners from overseas. The YPLA would then be able to enforce this through the conditions it imposed on its funding.

190.     This clause does not cover education provided at a school maintained by a local education authority, for example in a school sixth form, because these institutions are already required by law to provide free education.

Securing provision of education and training

Clause 64: Securing provision of education or training

191.     This clause gives the YPLA the power to commission education or training for persons aged 16 or over but under 19, for learners aged 19 but under 25 for whom a learning difficulty assessment has been made and for children subject to youth detention. This power will enable the YPLA to secure provision directly, for example:

  • from the small number of national providers from whom it may be appropriate to commission at national rather than local level;

  • where sub-regional groups of LEAs are not yet ready to take on this role; or

  • where a local education authority is failing or is likely to fail to fulfil its duty under the new sections 15ZA and 18A of the Education Act 1996 (as inserted by clauses 40 and 47) to commission suitable education or training.

192.     The circumstances under which the YPLA would be expected to exercise these powers will be set out by the Secretary of State in his remit letter to the YPLA.

Clause 65: Intervention for purpose of securing provision of education and training

193.     This clause gives the YPLA the power to make directions where it is satisfied that a local education authority is failing, or likely to fail, in its new duty under section 15ZA of the Education Act 1996 (clause 40) to secure enough suitable education and training for young people aged over compulsory school age but under 19, and those aged 19 or over but under 25 for whom a learning difficulty assessment has been conducted. It also gives the YPLA the power to make directions where it is satisfied that a local education authority is failing, or likely to fail, in its new duty under section 18A of the Education Act 1996 (clause 47).

194.     The directions may be for the purpose of ensuring that the LEA secure suitable education and training, or may require the LEA to permit specified action to allow the YPLA itself, or another body, to take on the local education authority’s functions on its behalf. The YPLA must consult the Secretary of State before giving a direction, and this direction may be enforced by mandatory order on application by the YPLA.

195.     Clause 71 requires the YPLA to publish a statement that sets out the circumstances under which it will intervene and the nature of that intervention.

Provision of services and assistance

Clause 66: Provision of services

196.     Clause 66 gives the YPLA the power to provide and receive payment for services to those persons or bodies listed in subsection (4) in connection with any of the recipient’s functions relating to education and training. Those listed include the Secretary of State, the Welsh Ministers, the Scottish Ministers, a Northern Ireland department, the Chief Executive of Skills Funding, any person wholly or partly funded from public funds who has functions in relation to education or training, and any other person specified by order made by the appropriate national authority.

197.     Examples of these services could include:

  • providing accommodation and other facilities; and

  • support services such as software management systems, management information systems, payroll administration, human resources functions, finance services and procurement services.

198.     For example, the YPLA would be able to use this power to provide shared services with the Chief Executive of Skills Funding, or the YPLA and Chief Executive could provide services on each other’s behalf for reasons of efficiency.

199.     In Wales, Scotland and Northern Ireland, arrangements for such services will be made only with the consent of the respective devolved administrations. Separate consent will be required from each administration for each type of service. The YPLA will also 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.

Clause 67: Assistance with respect to employment and training, Clause 68: Assistance with respect to employment and training: Northern Ireland

200.     Both of these clauses allow the YPLA 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 but this is not required in respect of Northern Ireland. The consent of the Secretary of State will be required for arrangements made by all the devolved administrations which involve the YPLA.

Miscellaneous

Clause 69: Research, information and advice

201.     Clause 69 gives the YPLA the power to carry out research relating to any matter relevant to any of its functions. This is likely to include, for example, collating and analysing regional research and intelligence to support local education authority 14 to 19 partnership plans and 16 to18 commissioning plans.

202.     It enables the Secretary of State to require the YPLA to provide information or advice, and gives the YPLA the power to provide information or advice to the Secretary of State, in relation to any of its functions.

203.     The YPLA will have the power to provide information to any person designated by the Secretary of State. This will, for instance, enable the YPLA:

  • To provide local education authorities with analysis of provider performance covering all types of provision they will be required to secure under their new powers conferred upon them under this Bill (see Part 2 of this Bill).

  • To inform local education authorities about the type and extent of the support their learners are receiving.

204.     In order to carry out these functions, the YPLA must establish systems for collecting information which are designed to secure that YPLA decisions are made on a sound basis.

205.     The YPLA may also secure facilities and services for providing information, advice or guidance about education, training or connected matters including employment.

Clause 70: Guidance by YPLA

206.     Clause 70 requires the YPLA to issue guidance to local education authorities about the performance of their duties to secure that all young people in their area over compulsory school age but under 19, persons aged 19 and over but under 25 for whom a learning difficulty assessment has been carried out, and children subject to youth detention have access to enough suitable education and training provision to meet their reasonable needs. Local education authorities must have regard to this guidance. The main guidance to be issued under this power will be the National Commissioning Framework and Supporting Guidance, which will cover how local education authorities should work independently and together in sub-regional groupings to develop commissioning plans that will set out how they intend to secure education and training provision for learners within their area. The YPLA also has the power to issue guidance about other matters in respect of which it has a function.

Clause 71: Intervention powers: policy statement

207.     The YPLA will be required to prepare and consult on a policy statement which sets out the detail of its policy on its powers of intervention. It will set out the triggers for, and the nature of, such interventions. Having considered representations made during consultation, the YPLA must send a copy of the final policy statement for approval by the Secretary of State, and then publish the approved statement. The YPLA must then have regard to the latest published statement when exercising its powers to intervene. Subsection (6) sets out the instances in which the YPLA has powers of intervention, which are under clause 65 of this Bill (YPLA powers to intervene for the purposes of securing appropriate education and training for young people); section 56H of the Further and Higher Education Act 1992 and section 56I of that Act (inserted by Schedule 8 to this Bill) which concern powers to intervene in sixth form colleges.

Clause 72: Power of Secretary of State to confer supplementary functions on YPLA

208.     The Secretary of State may by order (subject to the negative resolution procedure) give the YPLA supplementary functions that are both exercisable in relation to a function of the Secretary of State and relevant to the provision of education and training within the YPLA’s remit. Education and training within the YPLA’s remit is defined in clause 78. This could, for example, include conferring additional functions on the YPLA in relation to the provision of a new learner support grant for young people.

Chapter 3: YPLA’s Functions: Supplementary

Clause 73: Directions by Secretary of State

209.     This clause requires the YPLA to comply with directions from the Secretary of State. Directions under subsection (1) may set objectives that the YPLA should achieve in carrying out its functions and time limits within which they are to be achieved. They may also relate to the management of the YPLA.

210.     Subsection (2) provides that if the Secretary of State considers that the YPLA has failed to carry out a statutory duty or has acted, or is proposing to act, unreasonably in carrying out its functions, a direction may be given which relates to the performance of the YPLA’s functions, even where the YPLA has discretion in the exercise of its functions.

211.     Under subsection (4) directions under this clause may not relate to the funding of activities carried on by particular individuals or bodies. For example, the Secretary of State could not require the YPLA to fund a particular provider to deliver a particular course in respect of a young person. This is to ensure that the YPLA has sole responsibility for individual funding decisions without influence from the Secretary of State.

Clause 74: Guidance by Secretary of State

212.     This clause requires the YPLA, in performing its functions, to have regard to any guidance provided to it by the Secretary of State. That guidance may include provision about who the YPLA must consult, and from whom it must take advice, in connection with particular decisions.

 
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Prepared: 7 May 2009