House of Lords - Explanatory Note
Learning And Skills Bill [H.L.] - continued          House of Lords

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Extension of Statutory Induction for School Teachers to Further Education Institutions

151.     Section 19 of the Teaching and Higher Education Act 1998 enables the Secretary of State and National Assembly to make regulations requiring persons employed as newly qualified teachers at maintained or non-maintained special schools ('relevant schools') to complete satisfactorily an induction period of not less than three school terms at a relevant school or, in such circumstances as may be prescribed, an independent school. This provision does not apply to FE institutions, including sixth form colleges. By amending section 19 of the Teaching and Higher Education Act 1998, the provision in Clause 109 will change the situation. The Secretary of State and the National Assembly will have powers to make regulations setting out the circumstances in which FE institutions are permitted to offer induction to teachers. The Secretary of State proposes to use this power to enable FE institutions at which there are teaching opportunities comparable to those of maintained schools to offer induction. The National Assembly has not yet given effect to its regulation-making powers in respect of induction as a requirement for newly qualified teachers.

Transition from School to Post-16 Learning of Young People with Special Educational Needs

152.     The Bill makes arrangements for young people under the age of 19 who leave school to undertake post-16 education or training and who have statements of their special educational needs provided by an LEA. It covers their transition into other post-16 learning for which the LSC has responsibility and into higher education.

153.     Clause 110 places a duty on the Secretary of State to make arrangements for an assessment of people under the age of 19 who have LEA statements of special educational needs and where he believes that they are likely to leave school to continue with post-16 education or training or enter higher education. This assessment must be made during the final year of compulsory education and will set out a person's learning needs and the provision required to meet them. The Education (Special Educational Needs) Regulations 1994 which set out the procedures for carrying out transitional reviews of pupils with statements of special educational needs will be amended to enable the Secretary of State's representative to participate in these reviews and to assist in the identification of these young people.

154.     This clause also gives a power to the Secretary of State to conduct an assessment of any young person who is under the age of 19 where it appears that they may have learning difficulties. This is required in order to make assessments of young people continuing in post-16 education or training who develop learning difficulties shortly before leaving school and who do not receive a statement or who develop learning difficulties after leaving school. This clause also places a duty on LEAs to provide a copy of a child's statement of special educational needs, together with any supporting material, to enable the Secretary of State or his appointed assessor to conduct the assessment.

155.     Under Clause 13, the LSC has a particular duty to have regard to the contents of these assessments and the needs of the young person assessed when discharging its functions for those under 19 years of age who have learning difficulties. Clause 6(3) makes express provision for the LSC to be able to use its powers to fund an institution or provider for that student, conditional on them providing the learning and support set out in the assessment.

Powers of Further and Higher Education Corporations to provide secondary education

156.     Clause 111 enables FE corporations to provide secondary "fourth key stage" education and 16 to 19 secondary education (without, as now, such education having to be in pursuance of arrangements with an LEA or the governing body of a school). HE corporations, which are sometimes significant providers of further education in a particular area, will be given the same powers by this clause. Before providing such education, a corporation must consult such LEAs as it considers appropriate. Although FE corporations already have some powers to provide secondary education, the FEFCs may not fund this provision. The LSC and CETW, however, will be able to fund this sort of provision (see clauses 5(1)(e) and 34(1)(e)). In practice, this power is only likely to be exercised for young people in the last of the three categories described below.

157.     Persons of compulsory school age for whom it is envisaged that a FE or HE corporation may provide secondary education are likely to fall into three categories. The first, and probably the largest category is of children who are registered at a school and who will undertake some studies at a local FE college. Usually these pupils will have part of the National Curriculum disapplied, under section 363 of the Education Act 1996, to enable them to spend more time on work-related learning. The second category is young people who are not registered as pupils at a school, perhaps because the child is being educated at home, has been excluded from school or is being educated at the FE college under arrangements made by the LEA under section 19 of the Education Act 1996. The third category is young people not registered as pupils at a school and who will be educated at the FE college, but not under arrangements made by the LEA. Currently section 18(1)(aa) of the Further and Higher Education Act 1992 would allow an FE corporation to provide education for pupils in the first two categories, but not the third. This clause, together with the second amendment of the definition of secondary education in clause 95, will also allow for greater collaboration between schools and colleges in providing secondary education for 16 to 19 year olds. Clause 95 makes the corresponding amendment to the definition of secondary education.

158.     Section 18(1)(aa) currently refers to education "to pupils in the fourth key stage". This expression only has meaning in the context of a school and pupils in the second and third categories above will not be at school. Consequently, the clause states that the such secondary education provision is for "persons who would, if they were pupils at a school, be in the fourth key stage". A similar and associated amendment is made at paragraph 8 of Schedule 8 to the Bill.

159.     No equivalent provision is made for designated FE or HE institutions , which in general do not derive their powers from education legislation. However, it is anticipated that equivalent powers will be available to designated institutions incorporated by the Secretary of State by an order under clause 112.

Designated Institutions

160.     Under the statutory regime established by the Further and Higher Education Act 1992 institutions within the FE sector are governed either by FE corporations or by governing bodies of designated institutions. Three kinds of institutions may be designated under section 28 as eligible to receive support from the FEFC; most voluntary-aided schools; institutions (other than schools) assisted by the LEA, and institutions which are grant-aided or eligible to receive grant aid under regulations made under what is now section 495 of the Education Act 1996. Unlike the arrangements for FE corporations at section 15 and section 16 of the Further and Higher Education Act 1992, the governing bodies of designated institutions were not incorporated when they entered the FE sector. All governing bodies of schools, including voluntary-aided schools, were incorporated subsequently by section 238 of the Education Act 1993 and, in the new schools framework established by the Schools Standards and Framework Act 1998, by section 20.

161.     Clause 112 amends section 28 of the Further and Higher Education Act 1992 so that newly established institutions may also be designated and receive funding from the LSC. It replaces section 30 of that Act to extend the protection afforded to trustees of designated 16 to 19 institutions to include trustees of 16 to 19 institutions designated after the coming into force of section 30. It gives the Secretary of State the power to incorporate the governing bodies of designated institutions that are already in the FE sector or which may be designated in future. When incorporating a governing body the Secretary of State may make provisions to specify the corporation's powers, ensure the continuity of the incorporated governing body with its unincorporated predecessor, confer exempt charitable status upon the corporation and the institution, and determine what happens to its property, rights and liabilities should the corporation be dissolved. The Secretary of State is required to consult with the trustees and governing body before making the order.

Explanatory Notes in relation to Schedules 1 to 6 have been incorporated into the commentary on related clauses

SCHEDULE 7: INADEQUATE LEA SIXTH FORM PROVISION

162.     The first part of Schedule 7 gives the LSC and CETW powers to intervene where the necessary improvements have not been made following an adverse report by school inspectors about the standards of education in LEA maintained sixth form provision (both school sixth forms and 16 to 19 schools).

163.     Schedule 7 contains provisions for the LSC and the CETW to have powers to intervene where LEA maintained sixth form provision, having once been identified as having inadequate standards, has then failed to make appropriate improvements. The trigger for those powers will therefore be the publication of two consecutive adverse reports following inspections. Except in the case of a 16 to 19 school, the LSC and CETW will not have powers to intervene where a school requires special measures (because it is failing or likely to fail to give its pupils an acceptable standard of education). In such cases, the provisions of sections 14 to 19 of the School Standards and Framework Act 1998 apply. These include a power for the Secretary of State or the National Assembly to direct an LEA to close a school. An "inadequate sixth form" is defined for this purpose in paragraph 1(2) as either failing or likely to fail to give its pupils an acceptable standard of education or having significant weaknesses in one or more areas of its activities for those pupils.

164.     Paragraphs 2 to Paragraph 5 deal with school sixth forms. Paragraph 2 places a duty on school inspectors, when stating in an inspection report that a school no longer requires special measures, to state that the school's sixth form is inadequate where that is their judgement. Paragraph 3 places a duty on school inspectors, if in the course of an area inspection under clause 62 or 79 they consider that a school has an inadequate sixth form, to make a report on the school. Paragraph 4(1)(a) provides for such a report to trigger the LSC's and CETW's powers of intervention. Paragraph 4(2) provides for the LSC's and CETW's powers of intervention also to be triggered where two consecutive inspection reports state that the sixth form provision is inadequate. The report must be of a school inspection provided for by paragraph 3. Paragraph 4(1)(b) and parargraph 4(2)(c) set out that where a report of an inspection is made by a registered inspector, it will be relevant in this context only if HMCI agrees with the inspector's judgement that the school requires special measures or the sixth form provision is inadequate.

165.     Paragraph 5 provides for the LSC's and CETW's powers to cease to apply where a subsequent report of an inspection states either:

  • that the sixth form is no longer inadequate; or

  • that the school requires special measures (and, in the case of a report by a registered inspector, that HMCI agrees with that judgement) - where separate powers under sections 14 to 19 of the Schools Standards and Framework Act 1998 will instead apply.

However, the effect of paragraph 5(3) where the LSC or CETW has already made proposals in response to the previous report, their proposals will remain in force. The latest report might cause the LSC or CETW to withdraw its proposals or to make fresh proposals to the effect that their original proposals should not be implemented. It might also be a factor influencing the School Organisation Committee's or Adjudicator's decision about whether to approve the original proposals.

166.     Paragraphs 6 to 10 make similar provisions in respect of LEA maintained 16 to 19 schools: paragraphs 7 to 9 make provision for the circumstances which trigger the LSC's and CETW's powers of intervention and paragraph 10 makes provision for the circumstances when those powers cease to apply.

167.     Paragraph 11 provides that the first report of the two consecutive reports to the effect that the sixth form provision in inadequate (the second of which would trigger the LSC's and CETW's powers) may be a report published before the coming into force of these provisions.

168.     Paragraphs 9 to 35 provide for the LSC and CETW to have powers, once the triggers set out above take effect, to publish proposals to change the age range of the school in question so that it no longer provides for pupils aged 16 to 19, or to discontinue a 16 to 19 school. The procedures governing the Councils' proposals are broadly those which apply under Part II of and Schedule 6 to the School Standards and Framework Act 1998 in respect of proposals made by LEAs or governing bodies to change the age range of schools, or to discontinue schools.

169.     Under the proposals framework, the LSC and CETW must, before publishing their proposals, consult as they consider appropriate, having regard to any guidance from the Secretary of State or the National Assembly. After publication, any body or person may make objections to the proposals. In England, the proposals are considered by the school organisation committee for the area and, if the committee has not reached a unanimous decision on them, after a period prescribed in regulations, they are passed to the schools adjudicator. The decision-makers, in considering proposals, must have regard to any guidance from the Secretary of State and to the school organisation plan for the area. In Wales, the proposals are considered by the National Assembly.

170.     If the proposals are approved, there will be a duty upon the school providers to implement them. However, the school organisation committee or adjudicator in England and the National Assembly in Wales may modify proposals, for example, to replace the date of implementation with a later one. The decision-makers may also determine that the proposals should not be implemented where it would be unreasonably difficult or inappropriate to do so, but only if the LSC or CETW publishes further proposals to that effect.

171.     Detailed matters, such as the manner of publication of proposals by the LSC and the timing of various stages of the procedures, including the objection period, will be prescribed by regulations - possibly by amendment to:

  • The Education (School Organisation Proposals) (England) Regulations 1999;

  • The Education (School Organisation Proposals) (Wales) Regulations 1999;

  • The Education (Maintained Special Schools) (England) Regulations 1999, and

  • The Education (Maintained Special Schools) (Wales) Regulations 1999.

172.     Provisions relating to the establishment, composition and functions of school organisation committees in England are set out in section 26 of and Schedule 4 to the School Standards and Framework Act 1998, and in The Education (School Organisation Committees) (England) Regulations 1999. Provisions relating to the appointment and functions of schools adjudicators are set out in section 25 of and Schedule 5 to the same Act.

SCHEDULE 8: AMENDMENTS

173.     Paragraph 2 amends section 1 of the Education (Fees and Awards) Act 1983. Section 1 of the Education (Fees and Awards) Act 1983 gives a power to make regulations authorising certain categories of institutions to charge higher fees for overseas students than for home students. Without this authority an institution which charged higher fees for overseas students than for home students might be in breach of the Race Relations Act 1976. The categories of institutions set out in section 1 of the Education (Fees and Awards) Act 1983 include an institution within the FE sector and an institution which provides further education and which is "substantially dependent for its maintenance on public funds and either is specified in regulations or is of a class or description so specified". The LSC has power to fund any provider of post-16 education and they may wish to provide such funding subject to a condition that fees charged to home students do not exceed a certain amount but with no conditions on fees charged to overseas students. An institution which receives funding subject to this condition need not necessarily be in the FE sector or be substantially dependent for its maintenance on public funds. Consequently section 1 of the Education (Fees and Awards) Act 1983 is amended to include any institution which receives funding from the LSC which is specified in or is of a class or description specified in regulations. The effect is that any institution which receives funding from the LSC subject to the conditions described above will be able to comply with the conditions without any danger of being in breach of the Race Relations Act 1976.

174.     This amendment is most likely to be relevant to institutions providing dance and drama courses. Financial assistance is currently given to these institutions directly by the Secretary of State but in the future it is intended that financial assistance for most courses should be given by the LSC.

Amendments to the Further and Higher Education Act 1992

175.     Paragraph 3 repeals sections 1 to 9 of the Further and Higher Education Act 1992 which, together with Schedules 1 and 2 to that Act, refer to the establishment of the FEFCs and their functions.

176.     Paragraphs 4, 12 and 20 provide for section 60A and Schedule 5A (inserted into the 1992 Act by the School Standards and Framework Act 1998) to cease to have effect. These provisions allowed for partnership arrangements in Wales between LEAs and the governing bodies of FE institutions for the purpose of securing secondary education for 16 to 18 year olds. These provisions will no longer be required when clause 111 comes into force. It is anticipated that the commencement order bringing into force the repeal of these provisions will make transitional provision to cover partnership arrangements which are in operation.

177.     Paragraph 5 amends section 19 of the Further and Higher Education Act 1992 (the supplementary powers of FE corporations). The amendment to paragraph 19(4) clarifies their ability to form companies. The power to form companies is restricted such that the power may not be exercised for the purpose of providing education or of conducting an educational institution: this is the responsibility of the FE corporation.

178.     Paragraphs 6 and 7 amend section 22 of the Further and Higher Education Act 1992 to make provision for the Secretary of State not only to modify (as now) but to replace or revoke any instrument of government of FE corporations or designated institutions. Provision is also made for the Secretary of State to modify, replace or revoke articles of government for FE corporations. At present he may only direct corporations to carry out modifications to articles and may not modify them himself. This provision will enable the consolidation of colleges' original instruments and articles of government with subsequent modifications.

179.     Paragraph 8 makes an amendment to section 52A consequential to the provision at clause 111(1)(a) of this Bill.

180.     Paragraph 9 clarifies that the Secretary of State's direction-making powers in respect of the actual or proposed unreasonable exercise of functions by certain statutory bodies extend to the functions the LSC will have under the 1992 Act.

181.     Paragraph 10 replaces section 57 of the Further and Higher Education Act 1992 with revised arrangements in relation to the Secretary of State's powers of intervention in FE sector colleges. The Secretary of State may intervene if he is satisfied that there has been mismanagement at the college, if the educational provision has been assessed by HMCI or ALI as being seriously weak or to be failing, if a governing body fails to discharge a duty, or if it acts or proposes to act unreasonably in the exercise of its functions. The Secretary of State may act either on the recommendation of the LSC or on his own account. If he is satisfied that intervention is warranted, the Secretary of State may remove any or all of the governors of the college, may make appointments to any vacancies on the governing body as he sees fit and may issue directions.

182.     Paragraph 11 is a consequential amendment arising from the proposed dissolution of the FEFC and the setting up of the LSC. It provides that no function conferred or imposed by the Further and Higher Education Act 1992 on the LSC should be construed as relating to any person detained by order of a court.

183.      For paragraph 12, see note on paragraph 4.

184.     Paragraphs 13 to 18 are further consequential amendments changing the references from the FEFCE and FEFCW to LSC and CETW respectively.

185.     Paragraph 19 amends paragraph 5 of Schedule 4 to the Further and Higher Education Act 1992, and clarifies that the instrument and articles of government of a FE corporation may allow delegation of functions of the corporation to the principal of the institution.

186.     For paragraph 20, see note on paragraph 4.

Amendments to the Employment Rights Act 1996

187.     Paragraph 21 amends the definition of further education in section 63A of the Employment Rights Act 1996 (Right To Time Off For Study Or Training) by removing the reference to Schedule 2 to the Further and Higher Education Act 1992 which is to be repealed by this Bill. Schedule 2 is currently used, in conjunction with the definition of further education in the Education Act 1996, as a means of identifying those persons who are ineligible for time off for study or training because they are in full-time further education. It limits the scope of the definition to courses listed in Schedule 2. This is no longer necessary. It is intended that the regulations (SI 1999 No 986) which define the standard of achievement and awarding bodies for the purposes of the right will be amended to refer to the qualifications approved under clause 85.

188.     Paragraph 23 repeals the duty LEAs have in respect of further education (see 'Local Education Authorities' section of the Background set out at the beginning of these Notes). Paragraph 24 gives LEAs the power to provide part-time provision for 16 to 18 year olds, including those outside their areas, in addition to their current power to secure full-time provision for this age group.

189.     Paragraph 25 ensures that LEAs have powers to provide education and training to any individual from the age of 19 in their areas and beyond their areas.

190.     Paragraph 26 amends section 408 of the Education Act 1996 which enables regulations to be made to require maintained schools, the LEA, governing body or head teacher to provide information on a range of matters such as the curriculum used in the school. The amendment will continue to ensure that information can be required about the arrangements for qualifications described in clause 84(5) and approved for use by those under 19 and the courses leading to them.

Amendments to the School Inspections Act 1996

191.     Paragraphs 27 to 29 amend the School Inspections Act 1996 so as to provide that the functions of the Chief Inspector in Wales set out in section 5 do not apply in relation to her new remit in this Bill.

192.     Paragraph 30 amends the School Inspections Act 1996 to require an inspector making an adverse report about a school which provides sixth form education or about the sixth form provision at such a school, to send a copy of that report to the LSC (for schools in England) or CETW (for schools in Wales).

Amendment to the Education Act 1997

193.     Paragraph 31 amends section 44(3)(a) of the Education Act 1997. The effect of this will be to reduce from 18 to 16 the age at which young people, about whom a school or FE institution is proposing to disclose information to a careers adviser, are entitled to prevent the disclosure taking place, if they so wish. Currently, it is the parents of young people under the age of 18 who may prevent such disclosure. This amendment is in keeping with the similar provision in clause 102 in respect of disclosure of information to persons working for or with the new support service for young people. As it is intended that Careers Service advisers will have a key role in the new service, it is important that these provisions on disclosure of information are consistent.

Amendments to the School Standards and Framework Act 1998

194.     Paragraph 32 amends the provision in the 1998 Act which lists those bodies the Secretary of State or the National Assembly should consult before directing an LEA to close a school on special measures by adding, in respect of schools providing post-16 education, the LSC or the CETW. This reflects the fact that the LSC and CETW will have primary duties at clauses 2 and 31 in respect of education and training provision for 16 to 18 year olds.

195.     Paragraph 33 amends section 26 of the School Standards and Framework Act 1998 in order to put beyond doubt that the school organisation plan must include the LEA's intentions with regard to their provision of secondary education for children over compulsory school age. The present wording of section 26 could be construed as applying only to the duties of LEAs - which do not, and will not, extend to post-16 secondary education - and not to their powers to make such provision.

196.     Paragraph 34 amends provisions in the School Standards and Framework Act 1998 so that in England the schools planning process in future takes account of the plans published by the local LSC for the area. Under section 26 of the School Standards and Framework Act 1998, every LEA must prepare annually a school organisation plan which sets out how the authority proposes to secure the provision of primary and secondary education for their area over a five year period. In particular, the plan should state how the authority proposes to remedy any excess or shortfall of places and what provision they intend to make for pupils with special educational needs. Under the Education (School Organisation Plans) (England) Regulations 1999, the school organisation plan in England is considered by the school organisation committee for the area, comprising the main local partners in the provision of education. If the committee is not able to reach unanimous agreement on the plan, it is passed to a schools adjudicator for consideration. In future, the local LSC's plan for post-16 provision must be taken into account by the LEA in preparing the school organisation plan and by the decision-makers in considering it.

197.     Paragraphs 35 and 36 make amendments consequential to Schedule 7.

198.     Paragraph 37. See note on paragraph 4. Part VI of the 1998 Act inserted into the Further and Higher Education Act 1992 the provisions which, with the coming into force of clause 111, will cease to have effect.

199.     Paragraphs 38 to 40 make amendments consequential to Schedule 7.

 
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Prepared: 17 December 1999