Joint Committee on Statutory Instruments Thirty-First Report


APPENDIX 5

Memorandum by the Department for Education and Employment

EDUCATION (NATIONAL CURRICULUM) (TEMPORARY EXCEPTIONS FOR INDIVIDUAL PUPILS) (ENGLAND) REGULATIONS 2000 (S.I. 2000/2121)

1. The Department for Education and Employment submits this Memorandum in response to the request from the Committee dated 1 November 2000 on the following points:

Question 1

    In the definition "general direction" and "special direction" in regulation 1(3), verify the reference to regulation 3(1)(b)(i) and (ii) and explain the meaning of those expressions.

2. The Regulations as made and laid before Parliament do not have a regulation 3(1)(b)(i) or (ii) but an earlier draft did and the cross-reference in regulation 1(3) should have been amended to refer to regulation 3(1) and (2). The Department apologises for this error.

3. Regulation 3(1) describes a "general direction". A general direction may only be given in the circumstances specified in regulation 3(1) and may not be given if regulation 3(2) applies. A general direction may be given by a head teacher who is of the opinion that a registered pupil at the school is unable to follow the National Curriculum and it is therefore not for the time being appropriate to offer it to him.

4. Regulation 3(2) states that a "special direction" may be given when the circumstances that give rise to a head teacher's opinion that a registered pupil at the school is unable to follow the National Curriculum and it is therefore not for the time being appropriate to offer it to him are indicative of a need for the pupil to be assessed under section 323 of the Education Act 1996. Section 323 of that Act deals with the assessment of a child's special educational needs and the procedure to be followed in determining what those needs may be. A "special direction" may not be given unless the head teacher has first consulted the relevant local education authority.

Question 2

    Regulation 2(2) provides that, notwithstanding the revocation of the 1989 Regulations, anything done on a date prior to the day before the day on which these Regulations come into force by or in relation to a head teacher under any provision contained in the 1989 Regulations is to have effect as if done on that date under the corresponding provision of these Regulations. Explain the intended effect of this provision and, in particular, why the underlined words have been included, and whether "that date" is intended to refer to the date of the act in question or the date on which these Regulations came into force.

5. The intended effect of this provision is to ensure that any directions given prior to the commencement date of these Regulations shall remain operative despite the revocation of the 1989 Regulations and that the requirements of these Regulations shall apply to any such direction.

6. The Department recognises that regulation 2(2) has been incorrectly drafted. Either the words "prior to the day" or the words "before the day" should have been omitted. It was incorrect to have both. The Department apologises for this error.

7. The words "that date" refer to the date of the act in question. The use of the word "date" picks up the earlier reference to "anything done on a date" rather than the earlier reference to "the day on which these Regulations came into force".

Question 3

    Explain whether the intended effect of regulation 9(1) is that a further general direction may be given any number of times or only twice, and why that regulation does not expressly indicate the number of times a further general direction may be given: compare regulation 10(3) which mentions the number of times a further special direction may be given.

8. The intended effect of regulation 9(1) is that only two further general directions may be given. It was not thought necessary to expressly indicate that only two further general directions were permitted because regulation 9(1)(b) only permits the second further general direction to be given immediately after the expiry of the first further general direction referred to in regulation 9(1)(a) which in turn can only be given immediately after the operative period of the original direction. This means that regulation 9(1)(b) could not be utilised more than once and so a maximum of three consecutive directions is all that is permitted under regulation 9(1).

9. Regulation 10(3) expressly indicates the number of times directions can be given because different rules apply depending on whether the pupil's circumstances fall within regulation 10(1)(a), (b) or (c).

Question 4

    Regulation 9(2) provides that regulation 6 (information about directions) is to apply to a further direction as it applies to a direction. Explain the need for this provision, and why (if needed) it does not make regulation 5 (form and content of directions), 7 and 8 (variation and revocation of directions) similarly applicable. Corresponding questions in relation to regulations 10(4) and 11(2).

10. It is intended that regulations 5 and 7 shall apply to further general and special directions as well as to initial directions. It was not thought necessary to expressly state this in the Regulations because regulations 5 and 7 are not expressed to apply only to the first general or special direction that is made. They have general application. However, regulations 9(2), 10(4) and 11(2) do expressly state that regulation 6 applies to further directions and the Department recognises that it would have been better if these provisions had referred to regulations 5 and 7 as well as regulation 6.

Question 5

    In relation to a further direction (under regulation 11(1)) which is based on different reasons from an earlier direction, explain why no provision is made as to when the further direction is to commence and for the maximum period during which it is to have effect: compare regulations 9 and 10 which make such provision in relation to a further direction based on the same reasons as the original direction

11. The Regulations do not seek to forbid or limit further directions which are given for different reasons to earlier ones. Where a direction has been given under regulation 4 for a particular reason, regulation 11(1) simply makes clear that the provisions of regulations 9 and 10 do not prevent another direction being given based on a different set of reasons. Regulation 11(1) does not specify when a direction is to commence or the maximum period during which it is to have effect because regulation 4 which sets out details of operative dates and the maximum period for which a direction may take effect will apply. A provision in similar terms to those contained in regulations 9 and 10 is not required.

12. The Department will remedy the various errors when next they are amended. Of course if the Committee is of the view that the errors should be remedied immediately, the Department will prepare amendments to these Regulations forthwith.

7 November 2000


 
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