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Education and Skills Act 2008

Learning aims for persons over 19: payment of tuition fees

100.Section 4B places a duty on the LSC to ensure that learners will not be liable to pay fees for courses of study provided as a result of section 4A. The learner must be at least 19 years of age and following a course of study for a specified qualification as set out in Schedule 1A (at level 1 literacy, entry level 3 numeracy or level 2). Fees include the course fees, but the Secretary of State may also specify in regulations that other fees relating to the course, e.g. examination fees and costs of diagnostic assessment, are included. Costs which are not fees (for example, the costs of buying books, equipment and materials) will not come within the scope of the duty.

101.There is also a duty for the LSC to secure the provision of sufficient financial resources for the purpose of paying tuition fees for people aged 19 up to 25 years old to attain their first level 3 qualification.

102.The Secretary of State may amend the relevant provisions of section 4B so as to vary the ages at which learners qualify for financial help under that section. This will be subject to the affirmative resolution procedure.

Schedule 1A: Learning aims for persons aged 19 and over

103.The Schedule sets out the learning aims for people aged 19 or over i.e. the broad categories from which qualifications may be specified as qualifications for which the LSC must secure proper facilities (new section 4A) or pay for tuition fees (new section 4B).

104.These categories are:

a)

level 1 literacy (the level of attainment at which an adult’s skills are functional and sufficient for operating effectively in day-to-day life);

b)

entry level 3 numeracy (the functional level of attainment for numeracy);

c)

level 2;

d)

level 3.

105.The Secretary of State may by regulations specify particular qualifications or descriptions of qualifications which are to fall within scope of the duties. Qualifications which might be specified through regulations include the following:

a)

level 1 literacy

  • level 1 certificate in Adult Literacy

b)

entry level 3 numeracy

  • entry level 3 certificate in Adult Numeracy

c)

level 2

  • level 2 National Vocational Qualifications (NVQs)

  • Vocationally Related Qualifications (VRQs) at level 2 of 325 guided learning hours or more

d)

level 3

  • 2 or more A-levels

  • 1 or more A-level double Award

  • level 3 NVQs

  • level 3 Diplomas

  • International Baccalaureate

  • Access to HE certificate/diploma

106.The Secretary of State may amend the Schedule in order to specify that a particular category of qualification is no longer within scope of the duties or to add a new category of qualification. This will be subject to the affirmative resolution procedure.

Sections 87 to 91: Assessments of effectiveness of education or training

107.These sections allow for the sharing of information between Her Majesty’s Revenue and Customs (HMRC), the Department for Work and Pensions (DWP), the Department for Innovation, Universities and Skills (DIUS) and the devolved administrations. The information will be shared in order to assess: the effectiveness of education or training of those aged 19 and over; policy in relation to the provision of such education or training; and policy in relation to social security or employment as it affects the provision of, or participation in, such training or education.

108.Section 87allows for information about individuals’ benefit to be disclosed to the devolved administrations. It also allows information about individuals’ learning activities to be disclosed in either direction between the devolved administrations and the Secretary of State (DIUS and DWP). This reflects the devolved nature of education and training. Finally, it allows for information relating to education and training and information relating to benefits to pass between DIUS and DWP. Section 87 also defines the important concept of an assessment function in subsection (4) which is then referred to in sections 88(1), 89(1), 89(2) and 90(2).

109.Section 88 allows for information about individuals collected in connection with income tax or tax credits to be disclosed by HMRC to the Secretary of State (DIUS or DWP) or a devolved administration.

110.Sections 87 and 88 only permit information to be used or disclosed for the purpose of assessing the effectiveness of learning undertaken, or the purpose of making assessments of policy. Section 89(1) ensures that a recipient of information disclosed under sections 87 or 88 is only permitted to use it for one of those purposes. It also requires that, so far as reasonably practicable, the information is used in a way which does not allow the individual to be identified. Section 90makes it an offence for an individual to disclose the information other than in accordance with the purposes outlined in section 89 where disclosure reveals the identity of a person or a person’s identity could be deduced from the information disclosed. A defence is provided where the person charged reasonably believes that the disclosure is lawful or information is already lawfully in the public domain.

111.Section 91 ensures that the disclosure or use of the same information under other statutory provisions or common law powers is unaffected. It explains the use of certain terms used in sections 87 to 91 including identifying the devolved authorities as the Scottish and Welsh Ministers.

Part 4: Regulation and inspection of independent educational provision in England
Chapter 1: Independent educational institutions in England

112.The definition of “independent school” in section 463 of the 1996 Act applies for the purposes of this Chapter (see section 168). Under that definition an “independent school” means “any school at which full-time education is provided for (a) five or more pupils of compulsory school age, or (b) at least one pupil of that age for whom a statement is maintained under section 324, or who is looked after by a local authority (within the meaning of section 22 of the Children Act 1989), and which is not a school maintained by a local education authority or a special school not so maintained.”

113.Sections 92 and 93 define the term “independent educational institution” and set out that Chapter 1 of Part 4 of this Act, which provides a revised framework for the registration, inspection and regulation of such institutions, applies in England only. Section 93 explains that the framework for the registration and regulation of independent schools in Wales continues to be set out in Chapter 1 of Part 10 of the Education Act 2002, which is amended by paragraphs 15 to 24 of Schedule 1 and Schedule 2 of this Act.

114.Section 92 does not change the definition of an independent school set out in existing legislation. However, it introduces a new definition, that of an independent educational institution, which includes independent schools and other independent educational institutions that provide part-time education. The section also sets out the amount of part-time provision an institution must offer in order to fall within the scope of this new wider definition. The amount of part-time provision is defined by reference to the number of hours per week and the number of weeks per year offered to students of a particular age group. Regulations may amend the number of weeks per year which amounts to provision that falls within the definition and may specify that certain activities do not count as educational provision for the purposes of the definition. Further, regulations may specify that an institution that would otherwise qualify as an independent educational institution because of its provision of part-time education is not to be regarded as an independent educational institution for the purposes of this Chapter.

115.The new definition of independent educational institution covers settings which are the main provider of a child’s education and which otherwise would not be subject to any statutory framework.

Section 94: Standards

116.Section 94 requires the Secretary of State to set standards for independent educational institutions in England. The section lists the heads under which standards must be set. It reproduces the existing heads for independent schools under section 157 of the 2002 Act. Those heads cover the quality of education; spiritual, moral, social and cultural development of students; welfare, health and safety; suitability of proprietors and staff; premises and accommodation; provision of information; and handling of complaints. The section imposes an additional head relating to the quality of leadership and management in an institution. The detailed standards are prescribed in regulations.

117.These standards do not apply to early years provision (for children under the age of three), which must provide the Early Years Foundation Stage as set out in section 39 of the Childcare Act 2006. Paragraphs 30 to 36 of Schedule 1 and Schedule 2 to the Act amend the Childcare Act 2006. The duty on local authorities to secure the provision of advice, training and assistance is extended to cover persons who provide childcare at independent educational institutions in the authority’s area. The exemptions to the duties to register on the Early Years Register, the Later Years Register and the General Register (kept under Part 3 of the Childcare Act 2006) are extended so that they apply to all independent educational institutions (including the part-time institutions).

118.Paragraph 9 of Schedule 1 to the Act amends section 548 of the 1996 Act so that there is no right to use corporal punishment in a part-time independent educational institution.

Sections 95 to 97: Requirement of registration

119.The Secretary of State must maintain and publish a register of independent educational institutions under section 95. Section 140(1) (transitional provisions) provides for the existing register of independent schools in England to become the new register of independent educational institutions. Section 96creates an offence of conducting an unregistered independent educational institution and sets out the penalty for doing so.

120.Section 97 allows the Chief Inspector to enter any premises and carry out an inspection where he or she has reasonable cause to believe that an unregistered independent educational institution is being operated. He or she is able to inspect and copy any relevant records and documents, including computer records, except those which are subject to legal professional privilege or which fall within the categories of “excluded material” and “special procedure material”. This section creates an offence for obstructing the Chief Inspector and sets out the penalty for doing so.

Sections 98 to 100: Registration Procedure

121.An institution that wishes to register as an independent educational institution may apply to the Secretary of State under section 98, who must notify the Chief Inspector of any application received. The application must be made in a manner prescribed in regulations and contain certain information which is explained in this section and the detail of which is set out in regulations.

122.Where the Chief Inspector is notified of an application under section 98(4), he or she is required by section 99 to inspect an independent educational institution prior to registration and prepare a report for the Secretary of State detailing the extent to which it appears from the inspection that the institution is likely to meet the required standards. On the basis of the report and any other relevant evidence, the Secretary of State must decide whether the institution is likely to meet the required standards and, if it is, he must add the institution to the register along with the information referred to in subsection (5) (“the registered details”). The Secretary of State must inform the proprietor of the institution of his decision. If the Secretary of State decides to refuse registration where he considers that the institution is not likely to meet the required standards, the proprietor may appeal against this decision to the First-tier Tribunal.

123.If any establishment no longer meets the definition of an independent educational institution and is unlikely to do so within the next twelve months, section 100 allows the Secretary of State to remove it from the register. The Secretary of State must inform the proprietor of this action, who may appeal to the First-tier Tribunal against the decision to deregister.

Sections 101 to 105: Approval of material changes to registered details

124.Section 102 requires the proprietor of a registered independent educational institution to seek, in writing, prior approval from the Secretary of State for any change which is defined as a material change. Section 101 defines a material change. The definition varies depending on the type of institution. Special institutions are those that are specially organised to make provision for students with special educational needs. For special institutions, a material change which requires prior approval is a change of proprietor, a change of address or any change in the institution’s registered details. For any other institution, a material change is a change which results in either the introduction of boarding provision or the institution becoming a special institution.

125.In determining whether to approve the request for a material change, the Secretary of State may under section 103 direct the Chief Inspector to inspect the institution and make a report on the extent to which any standards (which the Secretary of State or the Chief Inspector consider to be relevant) are likely to continue to be met if the change is made.

126.The Secretary of State will decide whether to approve a material change in light of all relevant evidence and on the basis of any report from the Chief Inspector setting out whether the standards are likely to continue to be met if the change is made. Where this is the case, the Secretary of State must approve the change. The proprietor will have a right to appeal where the Secretary of State refuses to approve the change (section 104).

127.An independent educational institution which makes an unapproved material change may be removed from the register by the Secretary of State. The Secretary of State must inform the proprietor, who has a right to appeal against de-registration (section 105).

Sections 106 and 107: Independent inspectorates

128.Section 106 allows the Secretary of State to approve inspectorates (in addition to Ofsted) to undertake certain inspections of independent educational institutions. These inspectorates will be known as “independent inspectorates”. The section also allows the Secretary of State to withdraw approval from such a body. The Secretary of State is given powers to specify in regulations criteria for the approval and withdrawal of approval of independent inspectorates.

129.Section 107 allows for the quality assurance of independent inspectorates approved under section 106. It requires the Chief Inspector at least once a year to prepare a report for the Secretary of State about the independent inspectorates. In doing so, the Chief Inspector must have regard to any directions from the Secretary of State, which may cover matters to be taken into account in preparing a report and the manner in which the report is prepared.

Sections 108 to 113: Inspections and reports

130.Section 108 requires the Chief Inspector to inspect independent educational institutions at regular intervals, to be prescribed in regulations. The purpose of this section is to ensure that there are regular inspections of independent educational institutions. The Chief Inspector is not required to inspect those institutions where the Secretary of State has notified him or her that they will be inspected by an independent inspectorate. The Chief Inspector must prepare a report on the extent to which any relevant standard is met and is likely to continue to be met. This section does not apply to Academies, city technology colleges and city colleges for the technology of the arts, for which provision is already made (section 5 of the 2005 Act).

131.The Secretary of State may direct the Chief Inspector to inspect an independent educational institution at any time (section 109). Where a direction is made, the Chief Inspector must report back to the Secretary of State on the extent to which relevant standards are being met. The Secretary of State may also at any time arrange for an independent inspectorate to inspect an independent educational institution in relation to which it is approved and report to him on the extent to which relevant standards are being met. In both cases, the Secretary of State may specify standards which must be considered, alongside any standards considered by the inspectorate to be relevant, during the inspection.

132.The Chief Inspector is permitted to enter any registered independent educational institution at any reasonable time, and to inspect and copy any relevant records and documents, including computer records, except those which are subject to legal professional privilege or which fall within the categories of “excluded material” and “special procedure material”. These rights of entry and inspection of records can only be exercised for the purposes of an inspection. Section 110creates an offence for obstructing the Chief Inspector and sets out the penalty for doing so.

133.Section 111 allows the Secretary of State, in regulations, to require proprietors to pay fees for inspections carried out by the Chief Inspector under this Chapter and to set the amount payable. The regulations can provide for:

a)

fees to be paid annually in advance of inspection;

b)

fees to be determined by reference to circumstances which exist before the inspection takes place;

c)

more than one fee to be paid in relation to a periodic inspection (for example, this will allow for an annual fee to be charged); and

d)

a discretion to be granted to the registration authority, to determine which institutions qualify for reduced tariff inspections.

134.The regulations cannot require a fee to be paid to the Chief Inspector for a periodic inspection where an independent inspectorate is approved for the institution. Regulations can include a power to vary or waive a fee and may also provide for a fee not to be paid where an inspection does not take place (which is designed to address a case where an institution has paid a fee in advance of an inspection but closes before the periodic inspection takes place).Section 140(2) extends the power to waive inspection fees so that any fees charged under section 162B of the 2002 Act may be waived. Subsection (5)provides some flexibility so that different fees can be applied in different cases. Academies, city technology colleges and city colleges for the technology of the arts are not required to pay inspection fees.

135.If any proprietor of an independent educational institution does not pay the appropriate fee, the Secretary of State may remove the establishment from the register (section 112). The Secretary of State must inform the proprietor who may appeal against the decision.

136.The Chief Inspector must publish any report of an inspection which he or she has prepared when directed by the Secretary of State (section 113).

Sections 114 to 118: Failure to meet standards

137.Where the Secretary of State considers on the basis of relevant evidence that an independent educational institution is not meeting one or more of the required standards, section 114allows for a notice to be served on the proprietor of the institution requiring the proprietor to provide an action plan. The purpose of the action plan is to address the failure to meet the required standards. On receipt of a plan, the Secretary of State may approve it, with or without modifications or reject it, in which case he can request a further action plan.

138.Where the Secretary of State concludes on the basis of relevant evidence that an institution is failing to meet the relevant standards, section 115 sets out the conditions for taking enforcement action against the institution. The Secretary of State may take action where the proprietor has been required to provide an action plan within the last three years but has failed to provide an adequate plan or failed to comply with a plan that has been approved. Equally, where the Secretary of State is satisfied in the light of at least one inspection report that the institution has failed to meet the required standards for a continuous period of at least two years despite an action plan having been provided by the proprietor, he may take enforcement action.

139.Section 116 sets out the alternative forms of enforcement action available to the Secretary of State. The Secretary of State may remove the institution from the register or impose a restriction as described in section 117. When the Secretary of State decides to take enforcement action he must inform the proprietor who has a right of appeal.

140.Section 117 sets out the restrictions, short of de-registration, that can be imposed by the Secretary of State or, in relevant cases, by orders of a justice of the peace or the First-tier Tribunal. These are:

a)

ceasing to use part of the premises for all or for specified purposes;

b)

closing part of the institution’s operation; and/or

c)

ceasing to admit new students or new students of a specified description.

141.Section 118 creates an offence of failing to comply with a restriction imposed by the Secretary of State and sets out the penalty for doing so. It also allows the proprietor to apply to the Secretary of State to have the restriction lifted, in whole or in part. The Secretary of State must, on an application, vary or revoke a restriction where it is appropriate to do so because of a change in circumstances. The Secretary of State is required to notify the proprietor of his decision.

Section 119: Unsuitable persons

142.The purpose of this section is to prevent unsuitable people from working with children and to enable action to be taken against those institutions that allow this to happen. Section 119 permits the Secretary of State to deregister an independent educational institution which allows a person who is subject to relevant barring or disqualifying orders (which will be described in regulations) to carry out certain activities in relation to the institution. The activities include acting as a proprietor, acting on a body of persons named as proprietor or carrying out work that will be described in regulations. It introduces a new right of appeal against deregistration for employing a barred person.

Sections 120 to 122: Emergencies

143.Section 120 enables the Secretary of State to apply to a justice of the peace for an emergency order imposing an immediate restriction on, or deregistering, an independent educational institution, where a student at the institution is suffering or is at risk of suffering significant harm. An order may be made without notice to the proprietor but must be made in writing. A copy of the order must be served on the proprietor, together with a copy of any written statement provided in support of the application for the order and a notice explaining the proprietor’s right of appeal, as soon as reasonably practicable after the order is made (sections 120 and 122). It is an offence to fail to comply with a restriction imposed by a justice of the peace and section 121 sets out the penalty for doing so.

144.Where the institution concerned is specially organised to make special educational provision for students with special educational needs, section 122 requires the Secretary of State to inform all relevant local education authorities of the order (so that they may take any action they deem necessary).

Section 123: Provision of information by proprietors

145.This section creates a power to require the proprietor of an independent educational institution to provide to the Secretary of State, on request, information relating to the institution. The section provides that sanctions for non-supply of information can be included in regulations, which may include a criminal sanction. Removal of the institution from the register is a further possible sanction. If an institution is deregistered by the Secretary of State there is a right of appeal to the First-tier Tribunal.

146.Paragraph 8 of Schedule 1 inserts a new section 537AA into the 1996 Act. Section 537AA applies to part-time independent educational institutions the existing sections 537 and 537A of that Act (which contain powers to require independent schools to provide certain information, including individual pupil information, to the Secretary of State or other relevant prescribed person).

Sections 124 to 127: Appeals

147.Section 124 sets out the circumstances and timescales in which the proprietor of an independent educational institution may appeal to the First-tier Tribunal against decisions made by the Secretary of State to deregister an independent educational institution. A proprietor may appeal where an institution has been deregistered for:

a)

no longer meeting the definition of an independent educational institution;

b)

a failure to meet standards, provide information, or pay inspection fees;

c)

making an unapproved material change;

d)

employment of unsuitable persons.

148.A proprietor may also appeal the following decisions made by the Secretary of State under section 125:

a)

conclusion that the standards are unlikely to be met on registration leading to a refusal of registration;

b)

refusal to approve a material change;

c)

imposition of a restriction on the proprietor;

d)

refusal to vary or revoke a relevant restriction.

149.Appeals to the First-tier Tribunal must be filed within 28 days of the proprietor receiving notice of the decision in question. There are various powers available to the Tribunal in determining such appeals, according to the circumstances under which the appeal is brought.

150.Section 126 allows the proprietor to appeal to the First-tier Tribunal against an emergency order made by a justice of the peace and sets out the powers available to the Tribunal in determining such appeals. Where the Tribunal overturns any order made by a justice of the peace that an institution is removed from the register, this section explains that the institution must be treated as if it had never been deregistered. This removes the possibility of proceedings being brought against the person conducting the institution for an offence under section 96.

151.Section 127 creates an offence of failing to comply with a restriction imposed by the Tribunal and sets out the penalty for doing so. It also allows the proprietor to apply to the Tribunal to have the restriction lifted, in whole or in part. The Tribunal must vary or revoke a restriction where it is appropriate to do so because of a change in circumstances.

Sections 128 to 131: Prohibition on participation in management of independent educational institutions

152.The Secretary of State (or another specified public authority) may make directions prohibiting or restricting the participation of unsuitable persons in the management of an independent educational institution. The grounds and procedure for making such directions will be set out in regulations. Section 128also provides for a direction to be lifted, in whole or in part, in certain cases. Under section 129a person can appeal to the First-tier Tribunal against such a direction or against a decision not to lift or alter such a direction. Details relating to the Tribunal’s jurisdiction on hearing such appeals can be set out in regulations.

153.Section 130 enables the sharing of information - between the Secretary of State, the Chief Inspector, the Welsh Ministers, any other applicable direction making authority, the Independent Barring Board and the General Teaching Councils of England and Wales - which is held about persons in connection with their statutory functions and is relevant to the direction making powers contained in section 128.

154.Section 131 requires the English authority which makes a direction prohibiting or restricting the participation of unsuitable persons in the management of an independent educational institution to notify other specified persons (e.g. the Secretary of State where relevant, the Welsh Ministers and, where different, the direction making authority in Wales).

155.There is no provision requiring persons to comply with a direction made under section 128. A direction made under section 128 could be enforced under section 119 (power to remove an institution from the register where an unsuitable person is the proprietor or carries out work of a prescribed kind) or by way of the standards to be prescribed under section 94(1)(d) (the suitability of the proprietors of or staff at an independent educational institution).

156.Section 141 (transitional provisions) allows regulations to be made which will allow persons who are subject to a direction under section 142 of the 2002 Act to be treated for certain purposes as if they were subject to a direction made under section 128 of this Act. The regulations may also make provision to convert any existing appeal rights to appeal rights under section 129 of this Act.

Sections 132 and 133:  Providers of independent education or training for 16 to 18 year olds

157.Section 132 enables regulations to be made allowing for any part of this Chapter to apply to this particular group of learning providers.  They are not independent or maintained schools. They do not receive any state funding from the LSC. They do provide education or training through which young people may meet their duty to participate under section 2. Section 132 will enable the Government, for example, to safeguard the health, safety and welfare of young people being educated in these establishments as part of that new duty.

158.Section 133 stipulates that any regulations that are made must include rights of appeal against decisions of the Secretary of State as set out in this Chapter in sections 124 and 125. It also compels the Secretary of State to consult the Chief Inspector and other appropriate people before the laying of any regulations before Parliament. Such regulations will be subject to the affirmative resolution procedure.

Sections 134 to 138: Supplementary

159.Section 134 requires proceedings for criminal offences to be commenced by, or with the consent of, the Secretary of State.

160.Section 135 enables certain individuals to be prosecuted in limited circumstances where offences are committed by bodies corporate.

161.Section 136 provides that where an offence has been committed by an unincorporated body, proceedings for offences should be brought in the name of the body and not its members. Any fine imposed should also be paid out of the funds of the body. In limited circumstances, proceedings for offences may also be brought against individuals associated with the body in question.

162.Section 137 makes provision about how the Secretary of State may serve notices on the proprietor of an independent educational institution. Such notices may be served by delivering it to the registered address of the institution in question.

Sections 139, 140 and 141: Transitional provisions

163.These sections make transitional provisions in relation to independent educational institutions in Chapter 1 of Part 4. Section 139 allows for the continuity of law between existing and new provisions, so that regulatory functions and enforcement action can be carried out without a break. Section 140provides for the existing register of independent schools for England (kept under section 158 of the 2002 Act) to become the new register of independent educational institutions. It creates a power to waive fees payable to the Chief Inspector in relation to inspections. Section 141 reproduces for England the transitional provisions enacted in section 171 of the 2006 Act, which cover the transition from barring directions in relation to the participation in the management of independent schools currently made under section 142 of the 2002 Act to the powers of direction which are now re-enacted in section 128 of the Act (see paragraph 155 above).

Chapter 2: Schools providing for special educational needs
Section 142: Interpretation

164.Section 142 clarifies the definition of a special school in section 337 of the 1996 Act. See also the amendment to section 6 of that Act (which refers to this definition) in Part 1 of Schedule 1 (minor and consequential amendments). No substantive change is made.

165.The new section 337A defines the terms: a “non-maintained special school”; and “the appropriate national authority” for the purposes of Chapter 2 of Part 4 of the 1996 Act. The other provisions in this Chapter amend that Chapter and use these definitions.

Section 143: Right of sixth-form pupils to opt out of religious worship

166.The 1998 Act as amended by the 2006 Act provides for a sixth-form pupil in a maintained special school to withdraw from religious worship. This section obliges the Secretary of State to make regulations to afford the same rights to sixth-form pupils in non-maintained special schools.

Section 144: Protection of pupils in an emergency

167.Section 144 inserts a new section 342A into the 1996 Act and provides a power through subsection (1) for the Secretary of State to make regulations to enable a justice of the peace, following an application from the Secretary of State, to make an order for the withdrawal of approval of a non-maintained special school.

168.The Secretary of State would only be able to make an application in an urgent case, for example, if it appears that a pupil at the school in question is suffering or is likely to suffer significant harm. Subsection (2) of the inserted section clarifies that regulations made under subsection (1) may in particular make provision similar to that made in sections 120 and 122 relating to independent educational institutions. This will ensure that a regulatory regime can be established which is consistent with that for independent educational institutions.

Section 145: Appeals

169.Section 145 inserts new sections 342B and 342C into the 1996 Act. Section 342B(1) provides the Secretary of State with the power to make regulations which set out the framework for appealing against a decision of the Secretary of State to:

a)

withdraw approval for a non-maintained special school (subsection (1)(a)); or

b)

not to approve, not to approve a change to, or to withdraw approval from the school’s relevant arrangements (subsection (1)(b)).

170.The “relevant arrangements” are defined in subsection (2) of inserted section 342B as those arrangements that are specified as requiring approval by the relevant authority — in this case the Secretary of State — in regulations made under section 342(5)(a) of the 1996 Act. The Secretary of State, working within the regulatory framework for non-maintained special schools, is given the power by section 142 to approve or reject applications from schools for approval of some of their arrangements. For example, the following arrangements must be approved under current regulations: the number of pupils; the type(s) of special educational needs the school caters for; and the age range of pupils at the school. Currently there are no rights of appeal against decisions about approval of arrangements and the only recourse would be to seek a judicial review of a decision.

171.Subsection (3) of the new section 342B provides that the regulations must provide that an appeal lies to the First-tier Tribunal and must be made by the proprietor of the school.

172.In the case of an appeal brought against a decision of the Secretary of State to withdraw approval from the school, subsection (4) provides that regulations may make provision prohibiting the Secretary of State from acting on the decision:

a)

during the period in which an appeal could be brought; or,

b)

in a situation where an appeal has been brought, but the appeal has not been determined, or disposed of.

173.Regulations made in this way would have an effect similar to that for appeals against decisions to withdraw registration of an independent educational institution. Section 342C(1) provides for regulations to be made setting out the rights of a proprietor of a non-maintained special school to appeal against an order granted in an emergency by the justice of the peace on the application of the Secretary of State. Section 342C(2) provides that the right of appeal will be to the First-tier Tribunal and must be made by the proprietor.

174.Section 342C does not enable an order made by a justice of the peace to withdraw approval from the school to be suspended when an appeal is made. This is because an order granted by a justice of the peace will only have been granted where the justice of the peace is satisfied in an urgent case that approval should be removed immediately, for example where pupils are at risk.

175.Part 1 of Schedule 1 includes consequential amendments arising from these sections.

Section 146: Abolition of requirement of approval for independent schools: England

176.This section amends section 347 of the 1996 Act and abolishes the requirement for independent schools in England to be approved for the placement of a child with a statement of special educational needs. The section ensures that the requirement for approval remains for schools in Wales.

177.It also amends section 347 to remove the requirement for local education authorities in England to seek consent from the Secretary of State to place pupils with statements of special educational needs in non-approved independent schools (whether in England or Wales). The requirement to seek consent (from the Welsh Ministers) remains for Welsh local education authorities.

Section 147: Approval of independent schools: consequential amendments

178.This section brings together consequential amendments arising from the changes to section 347.

179.Section 349 of the 1996 Act is amended to clarify that the power to vary trust deeds to secure compliance with the requirements of being an independent school in Wales under section 347 remains relevant to Wales and lies with the Welsh Ministers. The power to vary trust deeds to secure compliance with the requirements of being a non-maintained special school under section 342 is transferred to the Welsh Ministers for schools in Wales.

180.Section 483A of the 1996 Act provides for local education authorities to make payments to independent schools for pupils with statements of special educational needs. It is amended in light of the changes to section 347. It will ensure local education authorities in England can continue to make payments. Welsh local education authorities will continue to be able to make payments to Welsh and English independent schools for pupils where Welsh Ministers have granted consent for the pupil to be placed there.

181.Section 59 of the Safeguarding Vulnerable Groups Act 2006 defines the term “vulnerable adult”. Subsection (3) has been amended to reflect the changes to section 347 in respect of England and Wales.

Section 148: Approval of independent schools: transitional provision

182.This section provides for transitional arrangements for relevant children who are already placed in English independent schools at the time the Act becomes law. It provides that Welsh local education authorities will not have to seek consent from the Welsh Ministers for:

a)

relevant children to be placed in English independent schools which, prior to the abolition of the requirement for approval for independent schools in England, were approved under section 347; or

b)

where a child attended an unapproved independent school with the consent of the Secretary of State prior to the abolition of the category of approved independent school in England.

183.Without this provision once the Act comes into force Welsh local education authorities would have to seek consent from Welsh Ministers for these pupils to continue their placements.

Part 5: Miscellaneous and general
Chapter 1: Powers of National Assembly for Wales

184.Section 149 amends field 5 of Part 1 of Schedule 5 to the Government of Wales Act 2006 (legislative competence of National Assembly for Wales in the area of education and training). The changes include conferring power on the Assembly to regulate, and make provision about the inspection of, non-maintained schools and part-time independent educational institutions; and conferring power on the Assembly to make provision about the inspection of other education and training for those aged 16 and under.

Chapter 2: Miscellaneous
Sections 150 to 153: School Admissions

185.Sections 150 to 153 apply to both England and Wales. Section 150 adds new sections 86A and 86B to Part 3 of the 1998 Act. New section 86A places a duty on local education authorities to make arrangements to enable a young person to apply for a place at a school, independently of his or her parents, either to study in the sixth form or, if they are above compulsory school age, to study at any level of education (for example to re-sit their GCSEs). Parents retain the right to apply to schools on behalf of their children.

186.New section 86B requires the admission authority for any maintained school (which is either the school’s local education authority or its governing body) to comply with the preferences and admit the young person to the school he or she states as a first preference, unless the school is full, the child has not met the standard of academic ability the school requires for entry to its sixth form, or the child has been permanently excluded from at least two schools (and the latest of those exclusions was within the last two years). Consequential amendments have also been made to section 86 so that it no longer applies to sixth forms.

187.Section 151 inserts new sections into the 1998 Act, to make improvements to the admissions system in England to ensure fair and lawful admission arrangements are set and applied to applications made by parents and young people. The effect of new sections 88B to 88G is to replace the requirement in primary legislation (section 89(2) and (3) of the 1998 Act) that admission authorities in England consult various bodies about their admission arrangements before determining them, with a power to make regulations about the consultation process. Currently, primary legislation requires admission authorities to consult annually with the bodies set out in section 89(2) of the 1998 Act. Removing this requirement from primary legislation and instead taking a power to make regulations to prescribe the consultation process in England will mean that a more flexible and adaptable consultation process can be designed that better engages with parents and communities. A school’s admission arrangements in England set out the school’s admissions policy, including the criteria it will use to decide how to allocate places if it receives more applications than it has places available, and the school’s admission number. The provisions in this section enable regulations to prescribe who must be consulted, how often consultation must take place and circumstances in which no, or partial, consultation will be required.

188.New sections 88O and 88P place a new duty on local education authorities in England to produce an annual report to the Schools Adjudicator on the admission arrangements of maintained schools, Academies, city technology colleges and city colleges for the technology of the arts in their area. The purpose of the report is to inform the Schools Adjudicator (who will in turn report annually to the Secretary of State) of the extent to which admission arrangements comply with admissions legislation and the School Admissions Code, so that the Adjudicator can take appropriate action to ensure fair access. Section 88Q requires any person that the local education authority asks for information which it needs to complete the report, to supply that information to the local education authority. The content, form and timing of the reports will be prescribed in regulations.

189.New sections 88H to 88L place a new duty on the Schools Adjudicator to consider admission arrangements referred to him by the Secretary of State or mentioned in a local education authority report, and to decide whether they are lawful or not. He also has a new power to consider arrangements which he thinks may be unlawful and which have come to his attention by other means.

190.Section 152 amends section 94 of the 1998 Act to provide those young people given the new right to apply to a school under section 150, the right to appeal to an independent appeal panel against any decision refusing him or her admission to the school, whether in response to an application made by the young person or his or her parents. The child, the parent, or the child and parent acting jointly can appeal against a refusal to admit the child, where an application has been made under section 86A. The section amends section 94(5) to enable the Secretary of State to make regulations setting out how appeals should be dealt with if both the parent and young person appeal against the same decision. Section 152 also allows a young person who is already at a school and is refused entry to the sixth form to appeal against the decision.

191.Section 153 inserts section 98A into the 1998 Act, to define sixth form education for the purposes of Chapter 1 of Part 3 to the 1998 Act as “secondary education suitable to the requirements of pupils who are over compulsory school age.” Subsection (2)removes any doubt about whether consultation on a draft School Admissions Code, or School Admissions Appeals Code, which depends on amendments made by this Act is valid if it takes place before the Act is enacted. This makes it possible for a new Code to come into force for admissions from September 2010 rather than September 2011.

192.Paragraphs 53 to 73 of Schedule 1 make amendments to Chapter 1 of Part 3 of the 1998 Act. Section 86 is amended so that it no longer applies to sixth form admissions, now they are covered by the new sections 86A and 86B.  Certain provisions which currently apply to England and Wales are restricted to Wales, and certain provisions are repealed which currently apply to England only and which are being re-enacted by section 151. Finally, there are amendments in Schedule 1 which otherwise preserve the legal position in relation to Wales, or are consequential upon provisions in sections 150 to 153.

Sections 154 and 155: Maintained schools in England: behaviour and attendance etc

193.A school governing body already has the power under section 29(3) of the 2002 Act (as amended by the 2005 Act) to “require registered pupils to attend at any place outside the school premises for the purposes of receiving any instruction or training included in the secular curriculum for the school”.

194.Section 154 introduces a new section 29A which allows a governing body of a maintained school in England to require a registered pupil to attend at any place outside the school premises, but for the purpose of receiving educational provision which is intended to improve the behaviour of the pupil. In exercising this power, it is intended the governing body will be obliged under regulations (made using the power in subsection 29A(4)(a)) to have regard to guidance issued by the Secretary of State.

195.The inserted section 29A compels the Secretary of State to make regulations requiring persons (it is intended this will normally be parents) to be given information about the imposition of the requirement to attend a place off the school premises and to require the governing body to review their exercise of the power. The Secretary of State may make regulations requiring the governing body to request that persons (it is intended this will normally be parents) take part in a review of the exercise of the power; stipulating the timings of the initial and subsequent reviews; specifying the maximum number of days for which the requirement may be imposed in any school year; and in connection with other matters relating to the exercise of the power. It is intended that regulations will impose a requirement to review an off-site direction every 30 days during the time that the pupil is attending off-site provision, and will prohibit governing bodies from requiring a pupil to attend off-site provision for a greater number of days in a school year than is specified in the regulations.  The Government's intention is that the requirement for an individual pupil to attend off-site provision must be for a limited period and subject to regular review.

196.Section 155 makes amendments to section 444ZA of the 1996 Act. That section extends the circumstances in which a parent or a carer can be prosecuted for failing to ensure that a child for whom he or she is responsible regularly attends the alternative provision that has been made for the child.

197.Section 155 extends the ambit of section 444ZA to cover pupils who have been directed off-site for receiving educational provision which is intended to improve the behaviour of the pupil to take account of requirements imposed by governing bodies under the new power introduced by section 154. There is also a change to section 444ZA to clarify that failure of the parent to secure regular attendance at a school where provision is made by the governing body of a school under section 100 of the 2006 Act (duty of governing body or proprietor to provide education where pupil is excluded for fixed period) is within the ambit of the section 444 offence, where the governing body has not expressly exercised its power under section 29(3) of the 2002 Act to require the attendance of the pupil there.

Section 156: Assessment arrangements

198.This section amends section 88 of the 2002 Act to remove the obligation on schools and local education authorities to implement the assessment arrangements for the National Curriculum as they stand at the start of the school year. Instead, schools and local education authorities are required through new subsection (1A) to implement assessment arrangements as they exist at a given point in time.

Sections 157 and 158: Pupils’ views

199.Section 157 inserts a new section 29B into the 2002 Act, the effect of which is to place duties on governing bodies of maintained schools in England and Wales to invite the views of registered pupils about prescribed matters, and consider any views on those matters expressed by pupils (whether or not in response to an invitation) in light of their age and understanding. The matters on which governing bodies must consult pupils are to be prescribed by regulations made by the Secretary of State for England and the Welsh Ministers for Wales (and paragraph 79 of Schedule 1 prescribes the procedure in the National Assembly for Wales for the latter). Subsection (3) of new section 29B allows governing bodies to invite the views of all registered pupils at the school, or to consult only those pupils who it considers are affected by the matter or are representative of those groups of pupils.

200.Section 158 amends section 176 of the 2002 Act (which requires local education authorities and governing bodies of maintained schools to have regard to guidance about consultation with pupils) so that it only applies to local education authorities in Wales. In England, section 3A of the Local Government Act 1999 (which was inserted by section 138(1) of the Local Government and Public Involvement in Health Act 2007) requires certain local authorities in England, including local education authorities, to involve representatives of local persons in the exercise of their functions, where they consider it is appropriate to do so. Section 29B of the 2002 Act (inserted by section 157 of this Act) will replace the duty currently imposed on governing bodies of maintained schools in England and Wales by section 176 of the 2002 Act.

Sections 159 to 163: External qualifications

201.Section 159 amends section 98 of the 2000 Act which describes how qualifications may be approved for the purposes of sections 96 and 97 as they apply to England. Subsection (2) provides for the Secretary of State, or a body designated by him, to approve an external qualification. An "external qualification" is one which has either been awarded or authenticated by an outside body. Without this approval an external qualification is not eligible to receive public funding. Section 159 removes the current requirement in subsection (4) for the Secretary of State to give his consent to all approval decisions made by a body which he has designated under subsection (2). This enables designated bodies to approve such qualifications without further recourse to the Secretary of State.

202.Section 159 further amends section 98 by the insertion of new subsection (2A) which enables the Secretary of State to designate a body to approve external qualifications for people under 19 (for the purposes of section 96), for people over 19 (for the purposes of section 97) or for both.

203.The changes to the Secretary of State’s functions made in section 159 apply equally to the Welsh Ministers’ functions in relation to Wales by virtue of section 160. This section removes the requirement in section 99(4) of the 2000 Act for the Welsh Ministers to consent to all approval decisions made by a body which they have designated under subsection (2).

204.Section 161 amends section 24 of the 1997 Act to provide the QCA with a new function to develop and publish criteria for the recognition of bodies which wish to award or authenticate qualifications or credits in respect of components of these qualifications; and, where they meet those criteria, to recognise them. Under these provisions, the QCA would first recognise a body wishing to award or authenticate a qualification and then accredit its individual qualifications. Provision is also made for the QCA to make rules and procedures where a recognised body ceases to be recognised. The reference to “credits” refers to the introduction by the LSC, working with other stakeholders, of the new national framework, the “Qualifications and Credit Framework”, which divides all relevant qualifications into units which, when completed, confer “credits” which may be accumulated towards achievement of the full qualification. Consequential amendments are made to sections 26 and 26A of the 1997 Act to reflect these changes. These apply broadly the same powers which the QCA currently holds in respect of placing conditions on accreditation and making directions to the accredited bodies. This section applies to both England and Northern Ireland.

205.Section 162 aligns the Welsh Ministers’ remit, in relation to the recognition of persons wishing to award or authenticate qualifications in relation to Wales, with the functions of the QCA in relation to England and Northern Ireland. The section amends section 30 of the 1997 Act to provide the Welsh Ministers with a new function to develop and publish criteria for the recognition of bodies which wish to award or authenticate qualifications, or credits in respect of components of these qualifications; and, where they meet those criteria, to recognise them. The reference to “credits” refers to the introduction by the Welsh Ministers of the new national framework, the “Qualifications and Credit Framework”, which divides all relevant qualifications into units (see previous paragraph). Consequential amendments are made to sections 32 and 32A of the 1997 Act to reflect these changes. These give the Welsh Ministers power to place conditions on recognitions and make directions to the recognised bodies. Such powers are equivalent to the powers the Welsh Ministers currently hold in respect of placing conditions on accreditation and making directions to the accredited bodies.

206.Section 163 extends the powers of the QCA in Northern Ireland to cover the regulation of vocational qualifications currently excluded from the scope of that authority. In Northern Ireland most qualifications are regulated by the Council for the Curriculum, Examinations and Assessment (CCEA). They are those which are general and vocational and are provided for school pupils or persons in full-time attendance at an institution of further education. The only exception is National Vocational Qualifications which are regulated by the QCA. This section adds other vocational qualifications to the regulatory remit of the QCA. It is intended that at some future date legislation will be brought before the Northern Ireland Assembly to abolish the CCEA.

Section 164: Inspections of teacher training in England: removal of duty to notify

207.This section provides that the period of notice given to providers of initial teacher training prior to an inspection by Ofsted will now be at the discretion of the Chief Inspector, rather than specified in section 18B of the Education Act 1994 as a minimum of eight weeks.

Section 165: Constitution of schools forums

208.The requirement on local education authorities to establish Schools Forums was imposed by the 2002 Act, through the insertion of Section 47A into the 1998 Act. Schools Forums are local bodies, representing schools and (if the local education authority so decides) other interests, which advise authorities on matters relating to the authority’s schools budget.

209.Section 47A was amended by the 2005 Act and the 2006 Act to allow regulations to give Forums some decision-making powers in relation to the schools budget.

210.Section 165 amends the arrangements for constituting a Schools Forum, so that regulations may make it compulsory for a Forum to include non-schools members. Section 165 applies to England and Wales.

Chapter 3: General
Section 167: Functions exercisable by Welsh Ministers

211.This section ensures that the functions conferred on the Secretary of State by sections 150, 152 or 165, so far as exercisable in relation to Wales, are taken to have been transferred to the Welsh Ministers by Order in Council under section 58 of the Government of Wales Act 2006. Section 167 also makes provision so that amendments to sections 89 to 90 of the 1998 Act in Schedules 1 and 2 are not to be taken to affect the application of those sections, or anything done under them, in relation to Wales. For the avoidance of any doubt, this section also ensures that the substitution of the references to the Secretary of State in sections 89 to 90 of the 1998 Act with references to the Welsh Ministers do not change the application of those sections in relation to Wales.

Section 168: General interpretation

212.Section 168 provides that the sections in Part 1, Chapter 1 of Part 4, and sections 148 and 173(10) are to be construed as if they were contained in the 1996 Act unless a different meaning is given in the sections in the Act in which case that meaning prevails. This means, in particular, that the general interpretation in section 579 of the 1996 Act, provision about guidance and notices in sections 571 and 572, and the Secretary of State’s intervention powers in sections 496 and 497 apply to those sections. Subsection (5) provides that sections 561 and 562 of the 1996 Act — which provide that the Act does not apply to a person in the service of the Crown or persons detained under order of a court — do not apply for the purposes of Part 1 of the Act. Section 62 makes special provision about Crown employment in relation to Part 1 of this Act.

Section 170: Power to make consequential and transitional provision etc

213.Section 170 enables the Secretary of State to make supplementary, incidental, consequential, transitory, transitional or saving provision for the purposes of, in consequence of, or for giving full effect to, any provision of the Act. Where such regulations amend or repeal primary legislation they are subject to the affirmative resolution procedure.

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