Draft Regulations laid before Parliament under section 104(3A) of the Children Act 1989, for approval by resolution of each House of Parliament.
2009 No.
Children And Young Persons, England
The Children Act 1989 (Higher Education Bursary)(England) Regulations 2009
Made 2009
Coming into force in accordance with regulation 1.

The Secretary of State for Children, Schools and Families makes the following Regulations in exercise of the powers conferred by sections 23C(5B) and 104(4) of the Children Act 1989.
1989 c.41. Subsection (5B) of section 23C of the Children Act 1989 (“the 1989 Act”) was inserted by section 21(2) of the Children and Young Persons Act 2008 (c.23) (“the 2008 Act”). “Prescribed” means prescribed in regulations made under the 1989 Act – see section 105 (1). Section 104(4) was amended by Schedule 3 to the 2008 Act, paragraph 25.
In accordance with section 104 (3A) and (3B) of that Act, a draft of these Regulations was laid before Parliament and approved by a resolution of each House of Parliament.
Subsections (3A) and (3B) were inserted in section 104 of the 1989 Act by Schedule 3 to the 2008 Act, paragraph 25. They provide that the first regulations to be made in exercise of the powers conferred by section 23C(5B)(b) are to be made by the affirmative procedure.

1 Citation commencement and application
1 These Regulations may be cited as the Children Act 1989 (Higher Education Bursary) (England) Regulations 2009 and come into force on the day after the day on which they are made.
2 These Regulations apply in relation to the payment of the relevant amount for the purposes of section 23C(5A) of the Children Act 1989 (“the Act”) by a local authority in England to a former relevant child who is pursuing a course of higher education started on or after 1st September 2008.
“Former relevant child” is defined in section 23C(1) of the 1989 Act.

2 Relevant amount
For the purposes of section 23C(5A) of the Act, the relevant amount is £2,000 (“the higher education bursary”).

3 Meaning of higher education
For the purposes of section 23C(5A) of the Act, higher education means a course of higher education that is of at least two academic years’ duration and is designated by or under regulations made under section 22(1) of the Teaching and Higher Education Act 1998 on the date on which the former relevant child starts the course.
c.30. Courses are designated as higher education courses in regulations made under section 22(1) of the Teaching and Higher Education Act 1998. The Education (Student Support) Regulations 2008 SI 2008/529 apply to the provision of support to students in relation to an academic year (as defined in the Regulations) that began on or after 1st September 2008. These Regulations were revoked with transitional provisions and savings by The Education (Student Support) (No. 2) Regulations 2008 (SI 2008/1582) which apply in relation to an academic year that begins on or after 1st September 2009, as amended by SI 2008/2094, SI 2008/2939, SI 2009/470 and SI 2009/862. See also The Education (Student Support)(Dance and Drama) Regulations 1999, SI 1999/2263, as amended by SI 2001/2893.

4 Provision as to payment of the relevant amount
1 The local authority may pay the higher education bursary to a former relevant child as a lump sum or by instalments.
2 In the case of a former relevant child who started higher education on or after 1st September 2008 but before 1st September 2009—
(a) if the higher education bursary is to be paid as a lump sum, it must be paid by 31st December 2009; or
(b) if the higher education bursary is to be paid by instalments, the first instalment must be paid by 31st December 2009 and the final instalment must be paid before the end of the final year of the course or not more than four weeks after the start of the fourth year of the course, whichever is the earlier.
3 In the case of a former relevant child who starts higher education on or after 1st September 2009—
(a) if the higher education bursary is to be paid as a lump sum, it must be paid by 31st December 2009 or not more than four weeks after the start of the first year of the course, whichever is the later; or
(b) if the higher education bursary is to be paid by instalments—
(i) the first instalment must be paid by 31st December 2009 or not more than four weeks after the start of the first year of the course, whichever is the later; and
(ii) the final instalment must be paid before the end of the final year of the course or not more than four weeks after the start of the fourth year of the course, whichever is the earlier.
4 Before making any decision about payment of the higher education bursary the local authority must, as far as reasonably practicable, ascertain and give due consideration to the wishes and feelings of the former relevant child.
5 The local authority may withhold payment of any unpaid balance of the higher education bursary during any period when the former relevant child is not pursuing higher education in accordance with the pathway plan for that person.
“Pathway plan” is defined in section 23E of the 1989 Act, inserted by the Children (Leaving Care) Act 2000 (c. 35).
6 The local authority may recover the whole of the higher education bursary or any part of it from a person to whom payment has been made if there has been a mistake as to the eligibility of that person for the payment.
[Name] Parliamentary Under Secretary of State Department for Children Schools and Families Date

EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations are made under section 23C(5B) of the Children Act 1989 (“the 1989 Act”). As this is the first time the powers in section 23C(5B)(b) (prescribing the meaning of “higher education” for the purposes of section 23C(5A)) have been exercised, the Regulations have been laid in draft before, and approved by a resolution of, each House of Parliament in accordance with section 104(3A) and (3B) of the 1989 Act.
Section 23C of the 1989 Act sets out local authority functions in relation to former relevant children, that is young persons aged 18 and over who were but are no longer “looked after” by the authority. These functions include in particular giving the former relevant child financial assistance in connection with his education or training (subsection (4)). By inserting new subsections (5A) to (5C) in section 23C, section 21 of the Children and Young Persons Act 2008 added a new duty to pay a higher education bursary to a former relevant child who pursues higher education in accordance with their pathway plan. This bursary is payable in addition to financial assistance under subsection (4). These Regulations make provision for the payment of the bursary by a local authority in England to a former relevant child who is pursuing a course of higher education started on or after 1st September 2008.
Regulation 2 prescribes that the bursary is £2000.
Regulation 3 defines higher education by reference to the courses designated as higher education courses by Regulations made under section 22 of the Teaching and Higher Education Act 1998. These are the Education (Student Support)(No.2) Regulations 2008 (as amended) and the Education (Student Support)(Dance and Drama) Regulations 1999 (also amended), which include first degree and equivalent higher education qualifications, both full-time and part-time courses and some courses delivered by distance learning. The new duty applies to any course that lasts for at least two academic years.
Regulation 4 provides for the payment of the bursary to any former relevant child who has embarked on a course of higher education since 1st September 2008. It is for the authority to decide, after consultation with the former relevant child, whether to pay the bursary as a lump sum or by instalments.
If the bursary is to be paid as a lump sum, it must be paid at the start of the course. If it is to be paid by instalments, it is up to the authority to decide, after consultation with the former relevant child, the amount and timing of each payment, as well as the total number of payments. The only restriction is that the final instalment must be paid before the end of the last year of the course or at the start of the fourth year of the course, whichever is the earlier.
Paragraphs (5) and (6) of regulation 4 give the local authority power to cease paying instalments if the former relevant child ceases to pursue a higher education course and to recover any sums paid by mistake to any person.
An impact assessment has been produced for this instrument. There is no impact on the costs of business, charities or voluntary bodies. The impact on the public sector is minimal.