House of Commons - Explanatory Note
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Clause 152: Meaning of "nursery school"

301.     This clause amends the definitions of "nursery school" and "primary education" in the EA 96.

302.     Section 6 of the EA 96 states that a primary school is a nursery school if it is used mainly for the purpose of providing education for children who have attained the age of two but are under compulsory school age. The purpose of the amendment is to clarify that this definition of "nursery school" includes schools which are used wholly for the provision of education for children between the ages of two and compulsory school age.

303.     The general definition of primary education currently refers to full-time education suitable to the requirements of junior pupils who have not attained the age of ten years and six months. While this covers pupils below compulsory school age it does not reflect the common practice in nursery schools of offering education for either the morning or the afternoon session - nursery schools may offer education in both morning and afternoon sessions, but often to a different cohort of pupils. Some pupils under compulsory school age do attend a school full-time, for instance in the reception class of a primary school. A widening of the definition to cover part-time nursery education will recognise the prevalence of part-time education at the nursery stage.

PART 10 - INDEPENDENT SCHOOLS

304.     This Part enacts a new statutory regime for independent schools to replace the existing regime in Part 7 of the EA 96.

Standards

Clause 153

Clause 153: Independent school standards

305.     This clause confers power on the Secretary of State (or, in Wales, the NAW) to prescribe standards which independent schools must meet in order to be, or to remain, registered.

Requirement of registration

Clauses 154 and 155

Clause 154: The registers

306.     This clause provides for the continuation of existing registers, kept by the Secretary of State and NAW for England and Wales respectively. It sets out that the Secretary of State and the NAW will keep the Register in England and Wales respectively.

Clause 155: Unregistered schools

307.     The clause makes it an offence to operate an independent school which is not registered, and establishes a new power to enable HMI to enter premises where there is reasonable cause to believe that an unregistered independent school is operating illegally. HMI is empowered to gather evidence to facilitate prosecution in the case of an unregistered school. The clause specifies the penalties for conducting an unregistered school and obstructing HMI's right of entry.

Registration procedure

Clauses 156 and 157

Clauses 156 and 157: Applications for registration and determination of applications for registration

308.     Clause 156 sets out the information to be provided with an application for registration and provides for HMI to inspect. Clause 157 ensures that independent schools meet prescribed standards before registration.

Enforcement of prescribed standards after registration

Clauses 158 to 163

Clause 158: Changes to registered details

309.     This clause requires the proprietor of an independent school to notify the Secretary of State, or NAW, of specified variations in the details of the school's registration so that the new provision can be approved, where appropriate following an inspection.

Clause 159: Power to inspect registered schools

310.     Subsection (1)(a) enables registered inspectors, as well as HMI, to inspect independent schools. Subsection (1)(b) is a new provision which formalises the arrangement whereby the Independent Schools Inspectorate (ISI) generally inspect schools in England in membership of associations affiliated to the ISC. The clause also requires reports to be made to the Secretary of State for their publication.

Clause 160: Inspections: supplementary

311.     This clause deals with a range of supplementary inspection issues including at subsection (9) provision for the introduction of charges by Ofsted or Estyn (the education and training inspectorate for Wales) for inspections of registered schools.

Clause 161: Failure to meet standards

312.     The clause introduces a new regime for dealing with failing independent schools where standards are not being maintained. Subsection (2) provides for an arrangement when a school is failing to meet the required standards and there is a serious risk to pupils' welfare. In all other cases schools found to be failing will be required to produce, and subsequently implement, an action plan to remedy the areas of concern.

Clauses 162 and 163: Appeals and determination of appeals

313.     Where action is taken against a school failing to meet the standards under clause 161, provision is made in 162 for an appeal to a standing tribunal (the care standards tribunal). An order or determination made by the Secretary of State will not take effect until the school has had an opportunity to lodge an appeal. The tribunal will, however, have the power to make an order for interim suspension under subsection (5) of this clause if it considers there is a risk of serious harm occurring to pupils pending the determination of the appeal. Clause 163 sets out the powers of the tribunal.

Supplementary

Clauses 164 to 167

Clause 164: Provision of information

314.     This clause reproduces the substance of the existing section 467 of the EA 96 regarding the provision of information about registered and provisionally registered schools but also creates a new offence of failing to provide the required information to be punishable by a fine.

Clause 165: Unsuitable proprietors and employees

315.     The clause empowers the Secretary of State to remove an independent school from the Register, if the proprietor or any other person employed at the school is acting in contravention of a direction which prohibits them from working with children.

Clause 166: Service of notice etc.

316.     This clause deals with the duties imposed on the Secretary of State when giving notice of decisions, determinations or orders.

Clause 167: Interpretation of chapter

317.     This clause contains definitions of terms used in the Chapter.

Children with special educational needs

Clauses 168 to 170

Clause 168: Alteration to definition of "independent school"

318.     The clause amends the EA 96 so that a school can be an independent school if it has five or more pupils or just one pupil with a statement of SEN or who is looked after by a public authority.

Clause 169: Right of access of LEA

319.     Section 327 of the EA 96 provides that LEAs have access to certain schools to monitor provision made for children with SEN. This clause adds independent schools to the list of establishments to which LEAs have a right of access.

Clause 170: Consent to placement

320.     Section 347 (5)(b) of the EA 96 provides for the Secretary of State, or NAW, to give consent to placement at an independent school which does not have approval as being suitable to provide special education. This clause adds the condition that the Secretary of State, or NAW, must be satisfied that there is a place available at the school before considering or granting consent to the placing authority. It will be for the placing authority to demonstrate that there is a place.

PART 11 - MISCELLANEOUS AND GENERAL

Education and training outside schools

Clauses 171 to 174

Clause 171: Meaning of "secondary education"

321.     These clauses reflect the fact that education is increasingly being delivered in more than one setting, particularly in respect of vocational training in the workplace. The definition of "secondary education" in section 2 of the EA 96 includes education received partly at a school and partly at another institution, such as a FE college. This clause extends that definition to include education or training which is provided partly at any other kind of establishment. That would ensure that mixed education provided partly at a school and partly at, for instance, a workplace is treated as secondary education. The clause also amends the definition of secondary education so as to make it clear that it includes vocational, social, physical and recreational training. In this respect the definition of secondary education is brought into line with the definition of FE. Additionally, the clause provides for the Secretary of State, or the NAW, to modify certain aspects of the Education Acts to take account of the fact that some pupils may be undertaking part of their secondary education away from a school or college.

Clause 172: Training and education provided in the workplace for 14 to 16 year olds

322.     Section 5 of the LSA enables the LSC to fund education or training at an FE sector college for pupils in the final two years of compulsory schooling. This clause extends that to enable the LSC to fund education or training for such students provided at the premises of an employer.

323.     The clause also extends the age range for Ofsted / Adult Learning Inspectorate (ALI) area inspections from 16-19 to 14-19 in England and Estyn area inspections from 16 plus to 14 plus in Wales. An area inspection is an examination of the provision of education in a specific locality which results in a report to the LSC. The ALI is a government body that inspects all publicly funded work-based training for people over 16.

Clause 173: Rights of entry in relation to inspections

324.     This clause amends the right of entry for school inspectors, which is at present limited to the premises of schools, by extending it to include other premises where schools have arranged for educational provision to be made for pupils aged 14-16.

325.     This clause confers the new right of entry on the Chief Inspector and registered inspectors in England and Wales. The Chief Inspectors' rights of entry apply to members of their staff, including HMI, and additional inspectors.

Clause 174: Inspections of LEAs: rights of entry etc.

326.     Section 40 of the EA 97 makes provision about the rights of entry of inspectors carrying out inspections of LEAs under section 38 of that Act and their rights to inspect documents. This clause substitutes a new section for the existing section and in doing so extends these new rights of entry and inspection.

327.     Among the LEA functions which are subject to inspection under section 38 is the arranging of education otherwise than at school for children who, for whatever reason (such as illness, injury, behavioural problems or exclusion from school), would otherwise not receive suitable education. This duty is imposed by section 19 of the EA 96.

328.     The existing section 40 limits the right of entry to premises of the LEA being inspected and schools maintained by that authority. The new section 40 provides for that right of entry to be extended to other premises (under section 19 of the EA 96) on which education is being provided under arrangements made by the LEA (other than private houses).

329.     The right of entry is accompanied by rights to inspect and copy records and documents including, by virtue of section 42 of the SIA, computer records. These powers are to be backed up by an offence of wilfully obstructing an inspector who is seeking to exercise any of the rights granted by this clause.

Allowances in respect of education or training

Clauses 175 to 179

Clause 175 and 176: Allowances in respect of education or training; learning agreements

330.     These clauses enable the Secretary of State or the NAW to make regulations which would entitle people to receive a regular maintenance allowance if they are taking part in secondary education, FE or training. Payments of this type would be similar to the system of Education Maintenance Allowances now being piloted in some parts of England. The current system of payments is on a discretionary basis.

331.     Regulations may, in particular, provide for: the size of payments; income tests to determine eligibility; how long payments can be made for and the establishment of appeals mechanisms.

332.     A learning agreement is defined as a document which sets out certain conditions which relating to attendance at a school, college or training centre; good conduct; and production of assignments. Regulations may make it a necessary condition for receiving a regular maintenance allowance that the student should have signed a learning agreement. The regulations could also require that maintenance payments are stopped if the student fails to comply with the terms of the agreement. The regulations would be able to prescribe both the form and content of learning agreements.

Clauses 177 to 179: Transfer of functions relating to allowances under section 169; delegation of functions relating to allowances; supplementary provisions relating to transfer or delegation of functions

333.     These clauses enable the Secretary of State to transfer any functions arising from regulations made under clause 175 to the LSC, or to an LEA. Such functions might include the making of payments, assessment of eligibility and general administration of the scheme. The NAW will similarly be able to transfer functions to the NCETW, or to an LEA. If functions are transferred in this way, the Secretary of State or the NAW may issue binding directions about how the function is to be exercised.

334.     Arrangements may also be made to delegate functions arising from regulations to any other person or body. The Secretary of State or the NAW may establish appeals mechanisms for decisions about transferring or delegating these functions. The clause also enables the Secretary of State or NAW to contribute towards the costs of any body exercising functions in relation to these maintenance payments.

Student Loans

Clause 180

Clause 180: Student Loans

335.     This clause gives the powers to set in place arrangements to pay off over time the student loans of any person who meets eligibility requirements to be specified in regulations. It provides the basis for the Government to implement plans to pay off loans for newly qualified teachers in shortage subjects in maintained schools or the FE sector.

336.     The clause provides a power for the Secretary of State to reduce or pay off any outstanding student loans which a person who is eligible under the proposed scheme may have. The clause gives the power to write off or repay any loans made to English or Welsh domiciled students under the Education (Student Loans) Act 1990 (mortgage style loans) or the THEA (income-contingent loans). It also gives the power to repay loans received under any other arrangements, including loans entered into outside England and Wales. The purpose of the latter provision is to enable the Government to provide an equivalent benefit to teachers from elsewhere in the European Union (EU), in accordance with EU law.

337.     The clause gives the Secretary of State the power to determine that any functions under the relevant regulations should be exercised by another person or body on her behalf. It also provides that regulations made under this clause should be made by the Secretary of State rather than by the NAW, as student support matters are not devolved to Wales.

Education Action Zones

Clause 181

Clause 181 and Schedule 16: Education Action Zones

338.     This clause introduces Schedule 16 which amends provisions of the SSFA relating to EAZs. It adds to the schools that are eligible to participate in EAZs, to include nursery schools, PRUs and independent schools. These additional types of schools can only participate in EAZs with the consent of the Secretary of State.

339.     The Schedule inserts a new section (11A) into the SSFA to give an EAF (the corporate governing body) a limited power to amend its governing instrument with the consent of the Secretary of State. EAZ schools and the Secretary of State will still retain the right to appoint members onto the EAF.

340.     The Schedule inserts new sections (11B and 11C) into the SSFA to enable an EAF to add or remove a school from the EAZ, subject to the consent of both the Secretary of State and the governing body of that school.

341.     The Schedule requires the EAF to notify the Secretary of State of any amendments made to its governing instrument. This Schedule also requires the EAF to provide any member of the public with specific current information about the EAF, particularly the names of the EAZ schools and partners and individuals on the EAF.

342.     The Schedule amends section 12(1) of the SSFA, which defines the objects that EAZ Forums were established for. An additional broader educational object is added to allow other educational activities to be carried out subject to the consent of the Secretary of State. This allows EAZs to link closely to other programmes such as those designed to improve nursery education or improve access to HE.

343.     The Schedule ensures that amendments which have previously been made to the instruments which establish and govern EAZs and their EAFs are preserved. The clause allows for an EAF to include one or two representatives of the Secretary of State unless she chooses not to make an appointment.

School Inspections

Clause 182

Clause 182: School Inspections and Schedule 17

344.     Clause 182 brings into effect schedule 17 containing amendments to the SIA. The schedule amends the duties of the Chief Inspectors for England and Wales to keep the Secretary of State and NAW informed about schools. The duty in subsections 2(1)(c) and 5(1)(c) to advise about the efficiency of financial management is subsumed within a wider duty relating to management and leadership in schools. This amendment confirms the importance of high-quality leadership and management in the achieving and maintaining of high standards by schools.

345.     The schedule makes a similar amendment in the duty placed upon registered inspectors in respect of the scope of school inspections which they conduct under section 10. This amendment reflects the coverage of management and leadership in school inspections and reports.

346.     The schedule amends section 12 to provide the Chief Inspectors with discretion to use a member of the Inspectorate (defined in section 46 as HMIs and additional inspectors), rather than a registered inspector, to carry out an inspection under section 10, where they consider it expedient to do so. The existing position is that the Chief Inspectors may only do this where it is not reasonably practicable to secure a suitable registered inspector to carry out the inspection. This power will be used to enable inspections under sections 2(2)(b) and 3(1) in England, and sections 5(2)(b) and 6(1) in Wales, to be combined with, or take the place of, section 10 inspections, thereby reducing the number of separate visits by inspectors to the schools concerned.

347.     The Schedule amends the provisions relating to membership of the teams which assist registered inspectors in school inspections under section 10. In addition to inspectors enrolled on the lists maintained by the Chief Inspectors under paragraph 3A of Schedule 3, members of the Inspectorate will be able to act as team members where authorised by the relevant Chief Inspector. This amendment will enable more flexible use to be made of the expertise available for inspection work in schools and will enable some inspections to be combined with the result that the burden on schools concerned will be reduced.

348.     The Schedule amends the provisions in section 16 specifying those to whom copies of school inspection reports must be sent by enabling that duty to be extended to other recipients by regulations. This amendment provides consistency with provisions in respect of schools' post-inspection action plans.

349.     The Schedule amends the provisions in section 17 specifying those to whom copies of schools' post-inspection action plans must be sent. Copies will be required by the Chief Inspectors only in respect of schools for which the inspection report stated that special measures are required or that the school has serious weaknesses. This amendment will remove an administrative burden from other schools.

350.     The Schedule amends paragraph 1 of Schedule 1 to require the Chief Inspector for England when appointing staff to obtain the approval of the Minister for the Civil Service, rather than the Treasury, as to the numbers and terms and conditions of service. This change ensures that this provision is consistent with the Transfer of Functions (Treasury and Minister for the Civil Service) Order 1995. The position in relation to Wales, where the requirement is to obtain approval from the NAW, remains unchanged.

Qualifications

Clauses 183 and 184

Clause 183: Amendments of Part 5 of Education Act 1997

351.     This clause introduces Schedule 18, which amends Part 5 of the EA 97.

352.      The amendments extend the powers of the QCA and ACCAC to support their work on the accreditation of qualifications and that on examination fees.

353.     The Schedule amends section 24(2) of the EA 97. The effect of the amendment is that the QCA and ACCAC can take into account in its criteria for accreditation of qualifications the need to ensure that there are not an excessive number of qualifications in similar subject areas or serving similar functions.

354.     The Schedule amends section 26 of the EA 97 to strengthen QCA's powers under section 26(3) of the EA 97 by making it explicit that the Authority can impose conditions after the accreditation of qualifications. It also substitutes a new section 26(4)(b) to extend the purposes for which QCA has right of access to an awarding body's premises. The extension will enable QCA and ACCAC to examine and copy documents in support of its powers under section 26(4)(a), and, as required by section 26(5), with the consent of the Secretary of State or NAW, to limit the amount of examination fees charged by awarding bodies.

Clause 184: LEA functions: qualifications

355.     This clause clarifies the legal position of LEAs in England and Wales that engage in the award or authentication of educational qualifications. It ensures that LEAs are able to develop, deliver and award qualifications and may charge a fee in respect of those services. The clause also enables the LEA to make arrangements with other persons and form, participate in or be members of a body corporate in order to exercise its powers in relation to educational qualifications. The clause applies these provisions retrospectively. As these provisions are clarificatory, they do not operate so as to limit any existing powers of LEAs.

Special Educational Needs: Wales

Clauses 185 to 188

Clause 185: Regional provision for special educational needs in Wales

356.     This clause enables the NAW to direct an LEA in Wales to consider whether SEN of children might be arranged more effectively or efficiently by making regional provision. "Regional provision" may be provision of education by a school (a regional school) maintained by one authority for their children and children from other areas, or the provision of goods and services by one authority to other authorities or schools. The LEA must report its conclusions to the NAW. The NAW may issue guidance to LEAs in relation to these duties which those LEAs must have regard to.

Clause 186: Directions to bring forward proposals to secure regional provision

357.     The clause enables the NAW, by order, to direct an LEA or governing body to exercise their powers to make proposals for the establishment, alteration or discontinuance of schools with a view to establishing a regional school providing for pupils with SEN. A direction may also require proposals to cover arrangements to be made for the provision of education or goods and services by one authority on a regional basis. The school re-organisation element of such proposals is covered by existing statutory procedures set out in Schedule 6 to the SSFA. The NAW may make regulations setting out procedural requirements for proposals for the provision of education or goods / services.

Clause 187: Powers of Assembly to make proposals to secure regional provision

358.     This clause enables the NAW itself to publish such proposals if it has made an order under clause 186 and either no proposals have been made or the time allowed by the order for publication of proposals has elapsed. It also enables the NAW to make provision for the procedure to be followed for such proposals, which may build on existing procedures set out in Schedule 7 to the SSFA .

Clause 188: Welsh LEAs' powers to make regional provision

359.     This clause amends provisions in the EA 96 to allow an LEA to establish a regional school or provide goods and services to support pupils with SEN in any part of Wales.

Clause 189: The Special Educational Needs Tribunal for Wales

360.     This clause introduces Schedule 11, which amends the EA 96 so that SEN appeals that would otherwise be made to the Special Educational Needs and Disability Tribunal (SENDIST) will instead be made to separate Tribunals in England and Wales. At present SEN appeals are made to the Special Educational Needs Tribunal (which becomes the SENDIST from September 2002), which covers both England and Wales. The amendments provides that where the LEA concerned is in England the appeal will be to the SENDIST, and where it is in Wales, to a new Special Educational Needs Tribunal for Wales.

361.     Under the EA 96, regulations relating to the SENDIST are made by the Secretary of State. In accordance with Article 5 of the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672) they are made with the agreement of the NAW, so far as they relate to Wales. Paragraph 5 of Schedule 11 to the Bill amends the EA 96 to give the regulation making power for the Special Educational Needs Tribunal for Wales to the NAW, who also take on the other tribunal functions of the Secretary of State in relation to the new Special Educational Needs Tribunal for Wales.

362.     The regulations relating to the Special Educational Needs Tribunal deal with the procedure to be followed by the Tribunal when hearing cases. The existing regulations under section 336 of the EA 96 are the Special Educational Needs Tribunal Regulations 2001 (SI 2001/600). Regulations also provide for the timetable within which LEAs must comply with tribunal orders (made under section 336A of the EA 96), and the timetable for LEAs to comply with unopposed appeals treated as being determined as in favour of the appellant (made under section 326A of the EA 96). The functions exercised by the Secretary of State include the appointment of lay members of the Tribunal and the payment of the Tribunal's expenses.

363.     Paragraphs 7 to 11 of Schedule 11 amend the Disability Discrimination Act 1995 to allow disability discrimination claims brought by disabled pupils or prospective pupils against schools in Wales to be heard by the Special Educational Needs Tribunal for Wales, rather than the SENDIST. The procedures to be followed in hearing disability claims, or joint SEN and disability claims, will be set out in regulations to be made by the Secretary of State with the agreement of the NAW.

 
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Prepared: 26 November 2001