House of Commons - Explanatory Note
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Other provisions relating only to Wales

Clauses 190 to 192

Clause 190: Publication and provision of material

364.     Existing powers under section 537 of the EA 96 are limited in that they enable the NAW to require governing bodies and LEAs to provide or publish information relating to schools only after it has been provided to the NAW by each school, or by the LEA, and published by the NAW.

365.     This clause allows the NAW to provide "qualifying material" to governing bodies and LEAs and to require them to provide it to specified persons or to publish it. "Qualifying material" is material which will help parents choose schools for their children, increase public awareness of the quality and standards of education and assist in assessing how well schools manage resources.

366.     It is the intention that the qualifying material which LEAs and governing bodies will be required to publish or provide under this new power will be such as to enable parents and others to measure progress made by pupils while at the school (value-added), and that it may also take into account the socio-economic conditions of the area in which the school is located.

Clause 191: Partnership agreements and statements

367.     This clause enables the NAW to make regulations requiring any LEA in Wales to enter into a partnership agreement with the governing body of any school maintained by that authority. A partnership agreement will set out how an LEA and a governing body will carry out their functions in relation to a school.

368.     The regulations may, for example, require the agreements to cover the procedures to establish agreed common objectives for pupils' educational progress; the actions which the LEA will take to promote high standards in schools; the actions to be taken to support transition for pupils moving from a maintained primary school to a maintained secondary school.

369.     If no agreement can be reached the LEA has the power to draw up a statement covering how it and the governing body are to discharge their functions. Both the LEA and governing body are under a duty to have regard to the agreement (or the LEA's statement) in carrying out their functions.

Clause 192: Transition from primary to secondary school

370.     This is a new power for the NAW to require the governing bodies of primary and secondary schools to draw up plans together to facilitate the transition of pupils from the one to the other. It includes a power for the NAW to specify in regulations the content and timing of the plans and to give guidance on matters such as the making of the plans or which schools are to be considered as "feeder schools".

Provision of services

Clauses 193 to 195

Clause 193 and Schedule 19: Transport for persons over compulsory school age

371.     These provisions are designed to give effect to improved planning, coherence and publicity of local transport policies for pupils of sixth form age.

372.     The amendments give LEAs a co-ordinating role in developing policies with key partners to provide effective and efficient transport arrangements for post 16 students. Every LEA will draw up and publish a policy statement setting out the provision of, or support for, transport for students of 16-19 or those completing courses started whilst 16-19. The statement will include provision and support made by schools and FE colleges in the local area. Section 509 AA (8) makes it clear that LEAs can make transport arrangements over and above those set out in the policy statement and so allows the LEA and its partners flexibility to respond to changing or unforeseen circumstances where particular cases occur that are not contained in their policy statement. Section 509AA(9) provides that the Secretary of State or NAW can direct an LEA to make arrangements for transport which are not in the statement. Section 509AB includes matters to which the LEA must have regard when preparing the statement and section 509AC contains definitions.

Clause 194: Remission of charges relating to residential trips

373.     This clause amends section 457 of the EA 96 which prescribes those children who are entitled to have remission of charges in respect of any board and lodging provided during residential school trips. The clause will provide the necessary flexibility required to keep pace with proposed changes by the Treasury to the Tax Credit and Benefit System by allowing the Secretary of State to add to the benefits, allowances or tax credits that would give a child eligibility to the remission of charges for board and lodging whilst on a residential school trip. It will also allow the Secretary of State to limit eligibility to families who are in receipt of particular tax credits by reference to their income level.

Clause 195: LEA functions concerning school lunches, milk etc.

374.     The effect of the amendment is to replace the existing provision relating to school meals and milk in the EA 96 by substituting for section 512 three new sections. The new section 512 sets out an LEA's functions in relation to the provision of meals, milk and other refreshments. The new section 512ZA enables an LEA to charge for meals and the new section 512ZB makes provision for free school lunches and milk.

375.     Children attending maintained nursery education currently have differing entitlements depending on whether the school they attend provides part-time, or part and full-time, education. The current definition of a maintained school excludes those schools that do not provide some full-time education. Therefore some children who attend maintained nursery schools and whose parents are in receipt of the appropriate benefits do not receive free school meals.

376.     The current legislation requires that LEAs, and schools who have a budgetary element for school meals delegated to them, to provide eligible children, who attend on a part-time basis, with free school lunches. The proposed changes will ensure that all children who currently receive Government funded education will also be entitled to receive free school meals, where their parents receive the appropriate benefits.

377.     The legislation will extend entitlement for free school meals to eligible children of nursery age who attend settings outside of the maintained sector, who are in receipt of government funded nursery education.

378.     The clause applies to maintained schools and maintained nursery schools, and children in funded nursery education.

379.     The new provisions enable regulations to prescribe other conditions that must be met in relation to children for them to be entitled to free school lunches. It is intended to use this power to restrict the entitlement to free lunches to those children who are required to attend over the lunch period. It is also intended to protect the position of any child who currently is in receipt of free lunches, but would otherwise lose his entitlement as a result of these changes by making appropriate provision in the commencement order by virtue of clause 201 (5).

380.     A regulation making power is created that will allow the Secretary of State, or the NAW, to add to the benefits or allowances, receipt of which by a child's parent or a child, entitles the child to receive a free school lunch.

381.     The new section 512ZB also makes the provision of free lunches conditional on a request for free lunches being made by or on behalf of a child. This brings the law into line with current practice and ensures that LEAs have legislative backing to resist requests for monetary compensation for the loss of free meals where no application has been made.


Clauses 196 to 203

Clauses 196 and 197: Fees and records

382.     Clause 196 enables the Secretary of State by regulations to prevent fees from being charged for the provision of specified FE courses at FE or HE institutions and limit the amount of fees which may be changed. Clause 197 enables the Secretary of State to make regulations concerning the retention and disclosure of educational records of FE institutions. These clauses re-enact section 218(1)(f), (4) and (9)(a) of the ERA.

Clause 198: Baseline assessments

383.     This clause removes the statutory requirement on schools to carry out baseline assessments of children. Statutory baseline assessment will be replaced by the foundation stage profile which will be completed at the end of the foundation stage for all children in government funded early years settings (see clause 79).

Clause 200 and Schedule 20: Nuisance or disturbance on educational premises

384.     This schedule amends section 547 of the EA 96 ('Nuisance or disturbance on school premises') to extend its provisions to non-maintained special schools, independent schools and LEA-maintained facilities providing instruction or leadership in sporting, recreational or outdoor activities, such as LEA outdoor education centres. Schedule 20 also amends the Further and Higher Education Act 1992 (FHEA) by inserting a new section, which consolidates the provisions of section 40 of the Local Government (Miscellaneous Provisions) Act 1982 ('Nuisance and disturbance on educational premises') and extends those provisions to any institution within the FE sector.

385.     These changes extend the scope of the existing provision. They also make a consequential extension of the powers of the police and persons authorised by the relevant bodies responsible for these educational institutions to remove trespassers believed to be committing the offence and to bring forward proceedings against them.

Clauses 201 and 202: Recoupment: adjustment between LEAs and special cases

386.     Inter-authority recoupment occurs when a child is educated outside the LEA in which he or she lives. In these circumstances, the LEA providing the education is entitled to "recoup" the additional costs it faces, in making that provision, from the "home" LEA.

387.     The effect of these clauses is to remove the Secretary of State's role in settling disputes between LEAs in England about the amounts to be paid. Current arrangements are retained in relation to disputes between LEAs in Wales. The NAW intends to update the regulations applicable in relation to inter-authority arrangements. Any dispute relating to children who are educated in Wales but the responsibility of an LEA in England will be determined by the NAW, with the agreement of the Secretary of State in England. Where one LEA is in Scotland and the other in England, any dispute which arises will be determined by the Secretary of State.

388.     Clause 202 also transfers to the NAW, so far as exercisable in relation to Wales, the power to make regulations under section 494 of the EA 96. This relates to inter-authority recoupment in relation to pupils permanently excluded from a school maintained by one authority who are being provided with education at a school maintained by another authority.

Clause 203: Paid chairmen for local learning and skills councils

389.     Clause 203 provides for the LSC to pay the chairmen of local learning and skills councils. At present these chairmen are unpaid. The amount of their remuneration will be decided by the Secretary of State.

Clause 204: Orders and regulations

390.     This clause contains general provisions about orders and regulations under the Bill.

391.     All orders or regulations under the Bill are to be made by statutory instrument except for an order made by the Secretary of State under clause 161 in respect of a failure to meet standards in an independent school, or an order by the NAW under clause 186 requiring proposals to secure regional provision.

392.     The provisions seeking to amend the basic curriculum, the make up of the key stages, the requirements of the key stages, the alteration of key stage four, and attainment targets for all key stages and subsidiaries in respect of review bodies, have (in England) to be made by statutory instrument under the affirmative resolution procedure.

393.     All other statutory instruments made by the Secretary of State have to follow the negative resolution procedure, apart from exemptions for schools related to performance, educational programmes under the National Curriculum, assessment arrangements in respect of all key stages, or commencement orders, where no parliamentary procedure is required. In addition, if an order is made in respect of teachers pay and conditions which gives effect, without significant modification, to recommendations of the STRB, no parliamentary procedure is required.

Clause 205: Wales

394.     Most of the functions of the Secretary of State under education legislation have, so far as they relate to Wales, been transferred to the NAW by Order in Council under section 22 of the Government of Wales Act 1998 (c. 38). Textual amendments to reflect this have not been made to the legislation. The legislation, therefore, continues to refer to the Secretary of State only, but references to the Secretary of State have to be read, in relation to Wales, as references to the NAW.

395.     Subsection (1) of this clause ensures that where the Bill confers a new function on the Secretary of State by amending another Act, this new function is also exercisable in relation to Wales by the NAW, and references in the provisions concerned to the Secretary of State are read, in relation to Wales, as references to the NAW.

396.     Subsection (2) of this clause then ensures that, where functions under any Act have already been transferred by an Order in Council under section 22 of the Government of Wales Act 1998 and an amendment conferring further functions on the Secretary of State is made to that Act by the Bill, any powers to vary or revoke the functions transferred to the NAW also apply to the new functions conferred by the Bill.

Clause 206: General interpretation

397.     This provision provides a definition of "the local education authority", and defines the terms "prescribed" and "regulations".

398.     The clause also lists a number of provisions in the Act and provides that those provisions and the EA 96 are to be construed as if those provisions were contained in the EA 96. This means that definitions that apply for the purposes of the EA 96 as a whole also apply for the purposes of the Bill. However, if an expression is given a different meaning in one of those provisions in this Bill its meaning prevails over the meaning given for the purpose of the EA 96. Construction as one also has the effect that references to "this Act" in the EA 96 include the provisions of the Bill that are listed.

399.     The provision also confirms that any reference in the Bill to a community, foundation or voluntary school, or a community or foundation special school is to have the same meaning as in the SSFA, unless the other context otherwise requires.

Clause 208: Transitional provisions etc.

400.     This enables regulations made under the Bill to make such provision as appears to the Secretary of State necessary or expedient for the general purposes, or any particular purpose or for giving full effect to the Bill. In particular, they may make provision including modifications for any provision which comes into force before another provision comes into force, or before anything which has to be done under another provision has been done.

401.     Regulations may also be made for amending, repealing or revoking a statutory provision passed before the Bill is passed, for applying such provision, and for making savings from any amendment or repeal by the Bill.

Clause 209: Minor and consequential amendments and repeals

402.     Clause 209 introduces Schedule 21 which contains a number of minor amendments and a number of amendments consequential on other provisions of the Bill.

403.     Paragraphs 3 and 4 of the Schedule repeal sections 23(4)(b), 39, 40, 41 and 42 of the FHE Act 1992.

404.     These sections of the FHEA relate to the transfer of FE colleges from institutions maintained by LEAs to independent corporations financed by the Further Education Funding Councils (FEFCs) now replaced by the LSC and the NCETW.

405.     They were introduced to provide new FE corporations with a safeguard against entering into unfair contracts with LEAs with whom they felt disadvantaged in negotiations for transfer of land. The provisions provided for the Secretary of State's, or NAW's consent where the LEA was seeking to exclude the transfer of land, or were seeking to enter into a contract, with a third party, to the value of £50,000 or more which would bind the institution in the future.

406.     College governing bodies' experience means they are able to protect their own interests without the Secretary of State's, or NAW's, support. Further, we consider these provisions to be obsolete given that there are no longer any LEA controlled institutions to which these sections apply.

407.     Section 23(4)(b) requires the Secretary of State's, or NAW's consent to make agreements between LEAs and colleges to exclude land from transfer to the college.

408.     Section 39 prevents the local authority from disposing of land used or held by FE colleges before it is decided if the land should transfer to the new body responsible for the FE corporation.

409.     Section 41 deals with the control of large contracts entered into by the local authority that could be binding, at a later date, upon the governing bodies of new FE colleges.

410.     Sections 40 and 42 are concerned with the enforcement of Sections 39 and 41 and so naturally fall. Their enforcement measures are seriously diminished as the Education Assets Board (renamed the Education Transfer Council) has been dissolved.

411.     Paragraphs 5 and 6 amend section 54(1) of the FHE Act 1992 to correct a minor defect and repeal section 60 which serves no useful purpose.

412.     Paragraphs 14 and 15 correct incorrect references in the Employment Rights Act 1996 to governors.

413.     The remainder of the paragraphs make minor amendments consequential on the new provisions in the Bill, as follows:

  • to the Disability Discrimination Act 1995, Education Act 1994, EA 96, SIA, SSFA and Freedom of Information Act 2000 consequential to the requirement on nursery schools to have governing bodies, and the requirement for nursery schools to be treated like maintained schools for most purposes including the legislation relating to SEN;

  • to the Sex Discrimination Act 1975, EA 96, SIA, SSFA and LSA consequential to the changes to school organisation in the Bill. In particular as there are now a number of statutory routes which affect school organisation it changes references to the various legislative references to statutory proposals about school organisation to a reference to "any enactment";

  • to the Disability Discrimination Act 1995, EA 96, SIA, and SSFA consequent to he changes made by Part 3 of the Bill in respect of school governance, financing and exclusions;

  • to the POCA consequent to the new right of the proprietor of an independent school to appeal to the tribunal established under that Act.


New Power To Provide Financial Assistance

414.     It is expected that under current plans around £5.5 billion in 2003-04 will be administered under the new power. The total amount of the annual grants made under the powers being repealed is £4.1 billion. In addition, £1.4 billion of annual grants, currently paid under section 88B of the Local Government Finance Act 1988, will in future be paid under the new power. Actual levels will depend on the outcome of the forthcoming Spending Review.

Nursery schools to have a governing body

415.     There will be some transitional impact on LEAs in respect of work associated with the initial set up of governing bodies for nursery schools. In many areas nursery schools already have governing bodies or similar management arrangements, and a local infrastructure therefore exists to manage the implementation of new requirements. However even where governing bodies already exist they are not statutory and the LEA will have work to do to set up new statutory ones. The overall estimated cost of setting up and maintaining governing bodies will be £0.5m per annum to be met from within existing resources.

Schools causing concern

416.     It is envisaged that the costs for LEAs to run competitions and involve private sector partners in turning round schools causing concern following a direction to do so will amount to a maximum of £10,000 per school. The Department does not expect to use the power in other than exceptional circumstances.

417.     The costs associated with IEBs will be heavily dependent on the circumstances of any individual case, including the number of interim executive members appointed and the time commitment required. IEBs might be appointed to replace the governing body of a weak or failing school only in exceptional circumstances. Three IEBs a year would cost a total in the region of £25,000.

Accounting and Audit requirements

418.     The Bill will impose requirements on the way maintained schools keep their accounts and report information based upon those accounts.

419.     It is expected that the initial costs of implementing the accounting requirements through CFR will be £350,000 for the Department for Education and Skills, £180,000 for all English LEAs, and £4.6 million for all English schools (or £200 per school). The estimated continuing annual additional cost of CFR will be £100,000 for English LEAs, and £1.15 million for English schools (or £50 per school). The audit requirements currently envisaged in England and Wales are estimated to cost an additional £17m per annum. All costs will be met from existing resources within the system.

420.     These costs are against predicted annual savings of more than £100 million from giving schools a facility to improve resource management and securing for the first time a systematic annual audit cycle for schools.

Establishment, alteration and discontinuance of mainstream schools

421.     The effects of these provisions in the Bill will be minimal. There may be slight increase in costs of adjudicator service, LEA administration and Departmental handling depending on the number of cases. A working estimate is £35,000 per annum, to be met from within existing resources.

Implementation of the foundation stage of the National Curriculum

422.     The foundation stage has already been in place for a year so the Department has already provided money, training and support for funded maintained and non-maintained early years settings. Continued financial support of this nature will need to be made available for this sector to ensure that there is on-going training for the foundation stage.

423.     This will need to be supported by a centrally directed quality assurance programme, working closely with EYDCPs and LEAs to monitor their training materials and programmes and offer support where needed.

424.     The Department already provides financial support for carrying out the current baseline assessment arrangements. Continuing funding will need to be made available to LEAs to support the introduction and implementation of the foundation stage Profile. It is estimated that a further £2 million will be required in the first year of the scheme, to be met from within existing resources

Student Loans

425.     The Bill will enable the Secretary of State to pay off over time the student loans of newly qualified teachers in shortage subjects starting work in maintained schools or the FE sector.

426.     The cost of the scheme will ultimately depend on the number of people who apply for it and how much outstanding debt they have, but we estimate that the scheme might cost around £15 - £20 million per year for each cohort who join the scheme, until their debts are repaid. This cost will fall to the Consolidated Fund, by means of Annual Votes.

Independent Schools

427.     The Bill will require Ofsted to inspect all non-association independent schools fully and publish reports - putting them broadly on the same footing as maintained schools. Just over half of all independent schools are already fully inspected by the Independent Schools Inspectorate and the inspections result in published reports.

428.     The likely cost of the new inspection regime is £2.5 million per annum, with initial costs to be met from within existing resources. Some of the additional costs may be recouped through charges to schools. The increased costs arise from the need to increase inspection manpower by utilising Registered Inspectors for inspections.

Rights of entry in relation to inspections

429.     The Bill proposes that the rights of entry of school inspectors should be extended to include premises where schools have arranged for educational provision to be made for pupils aged 14-16. It is envisaged that the larger number of hours per visit and additional overhead costs will result in additional annual costs to Ofsted of up to £0.6 to £1 million.

SEN Tribunal for Wales

430.     The Bill provides for the creation of a separate SEN Tribunal for Wales. It is anticipated that the Tribunal will be effective from September 2003. The estimated cost for setting up the Tribunal and running it for the remainder of the year 2003-04 would be £450,000. The running costs following this will be £450,000 per annum, all costs to be met from existing resources.

431.     There will be modest savings in programme and running costs expenditure for the current SEN Tribunal when SEN appeals relating to Welsh LEAs are dealt with by the SEN Tribunal for Wales. These cases currently account for 4 - 5% of the Tribunal's case load.

Allowances in respect of education and training

432.     The annual amount currently spent on the Education Maintenance Allowances pilots is £195 million. This amount will now be paid under the new power so the overall financial effect will be neutral.

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Prepared: 26 November 2001