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Apprenticeships, Skills, Children and Learning Act 2009

Part 4: the Chief Executive of Skills Funding

Chapter 1: Establishment and main duties
The Chief Executive

231.The White Paper Raising Expectations: enabling the system to deliver set out proposals to create a new system that would fund education and skills training for persons aged 19 or over (referred to in these Notes as “post 19”). A widespread consultation was undertaken on these proposals.

232.Part 4 of the Apprenticeships, Skills, Children and Learning Act 2009 describes the powers and duties of the Chief Executive of Skills Funding, referred to in these Notes as “the Chief Executive”. The Chief Executive will be responsible for funding post-19 education and training, for exercising the apprenticeships functions, including securing provision of apprenticeship places for suitably qualified young people aged 16 to18; and for the education and training of those in adult custody.

233.The Government intends that the Chief Executive will be supported by a new Skills Funding Agency, which will administer the funding system, and make payments to colleges, training providers and others based on the course selections of learners and employers and on a set of entitlements to learning, advice and financial support. The Skills Funding Agency will also manage the new Adult Advancement and Careers Service (AACS), the National Apprenticeship Service and the Train to Gain service. The Train to Gain service is the set of skills services provided to business including public sector employers. Together with its role in funding colleges and providers, these services will provide advice and support on jobs, skills and funding.

234.The Skills Funding Agency will also oversee the development of the Further Education Sector, working with the aim of ensuring that the supply of learning provision meets the needs of learners and employers, and the wider economy. It will also work with other agencies such as Jobcentre Plus to ensure those out of work or likely to be made redundant, receive an integrated employment and skills service, taking account of labour market needs.

235.The Skills Funding Agency is not defined in this Act – instead the Government intends that it will operate through the powers and duties of the Chief Executive of Skills Funding, as described in Part 4 of the Act. The detailed role and functions of the Skills Funding Agency will be set out in a Framework Document which will be issued by the Secretary of State. The Secretary of State will also provide the agency with an annual letter setting out its budget and performance targets for each forthcoming financial year.

236.Both the Chief Executive and the staff of the Skills Funding Agency will work within the Department for Business, Innovation, and Skills (BIS). The Chief Executive will be a civil servant, and will be accountable to the Permanent Secretary and through him to Ministers.

237.The Act provides the Secretary of State with powers to direct the Chief Executive in certain circumstances, but the responsibility for making decisions relating to the funding of particular individuals or bodies lies with the Chief Executive, not the Secretary of State, who is prohibited from giving directions to the Chief Executive in relation to individual funding decisions.

Section 81: The Chief Executive of Skills Funding

238.This section provides for there to be a Chief Executive of Skills Funding who will be appointed by the Secretary of State and whose functions will be limited to England, except where the Chief Executive participates in arrangements with devolved administrations — see sections 107, 108 and 109 below.

239.Most provisions about the Chief Executive which could broadly be categorised as relating to the administration of the office are contained in Schedule 4 whereas the specific duties, powers and functions in relation to the provision of education and training are in the main body of the Act.

Schedule 4: The Chief Executive of Skills Funding

240.Paragraph 1 provides that the holder of the office of Chief Executive will exercise the functions of the office on behalf of the Crown. It also provides that the office itself will be a corporation sole, so that any contracts entered into, or property owned by, the Chief Executive will pass automatically from one holder of the office to the next. Paragraph 2 sets out how the Chief Executive will hold and vacate office, and provides that the holder of the office will be a civil servant. Paragraphs 3 to 5 contain provision about the staff of the Chief Executive, who will form the Skills Funding Agency. These staff may either be staff appointed by the Chief Executive under paragraph 3, or staff provided by the Secretary of State to the Chief Executive under secondment arrangements under paragraph 5 and will in either case be civil servants. Paragraph 4 makes arrangements whereby the Chief Executive may delegate the functions of the office to members of the Chief Executive’s staff and to staff provided by the Secretary of State under paragraph 5. Paragraphs 6 to 8 make provision for operational matters such as funding, including the payment of grants to the Chief Executive and how these must be accounted for, and the preparation and publication of annual reports and accounts.

241.Paragraph 9 sets out provision for supplementary powers and restrictions, and gives the Chief Executive additional general powers to enable him or her to perform the functions of the office. For example, these powers would allow the Chief Executive to acquire and dispose of land and other property, and enter into contracts. It also sets out those things that the Chief Executive may not do. So the Chief Executive may not borrow money and may not, without the prior consent of the Secretary of State, lend money; form, participate or invest in a company; or form, participate in forming, or become a member of a charitable incorporated organisation.

Apprenticeship Functions
Section 82: Apprenticeship functions

242.The Secretary of State may direct the Chief Executive of Skills Funding to designate a person to carry out apprenticeship functions on behalf of the Chief Executive. The Government expects that the person designated will be the Chief Executive of the National Apprenticeship Service (NAS). The NAS will be a discrete service within the Skills Funding Agency, and the Chief Executive of the NAS and his staff will undertake the apprenticeship functions, including the duty to secure places for young people under the apprenticeship scheme (section 91). Subsection (5) sets out the “apprenticeship functions” that may be carried out under this section.

243.This section, together with the administrative arrangements in place, allows the Secretary of State to define and regulate the relationship between the Chief Executive of Skills Funding and the person designated to carry out the apprenticeship functions, and contains a power for the Secretary of State to make directions to the Chief Executive of Skills Funding requiring him to ensure that the designated person reports to the Secretary of State on the performance of the apprenticeship functions. The “Secretary of State” in this instance should be taken as meaning both the Secretary of State for Business, Innovation, and Skills and the Secretary of State for Children, Schools and Families.

244.All apprenticeship functions will be conferred by the Act on the Chief Executive of Skills Funding. Where those functions are delegated to the Chief Executive of the NAS or another designated person, regulations under subsection (7) may make clear which statutory references should operate as references to the designated person, and may modify other statutory provisions.

Apprenticeship training for persons aged 16 to 18 and certain young adults

245.Sections 83 and 84 set out the general powers relating to the provision of apprenticeship places for young people. The local education authorities will agree with the Chief Executive the amount and type of apprenticeship training required.

246.Within these general powers, the Chief Executive has a specific duty to secure sufficient suitable apprenticeship places for every suitably qualified young person aged 16 to 18 who wants one. This duty is set out as the apprenticeship offer in sections 91 to 99. A suitable place is in one of the two available chosen apprenticeship sectors, at the appropriate level, and within the reasonable travel area of the person concerned. The definitions and levels in these sections relate solely to the apprenticeship scheme. The sections do not define an apprenticeship, the characteristics of which will reflect the specification of apprenticeship standards provided for in Part 1.

Section 83: Apprenticeship training for persons aged 16 to 18 and certain young adults

247.This section enables the Chief Executive to secure the provision of facilities for apprenticeship training of young people, that is, people above compulsory school age but under 19 and those aged 19 or over but under 25 who are subject to a learning difficulty assessment. These include the people for whose training and education local education authorities will be responsible under section 15ZA of the Education Act 1996 (inserted by section 41 of the Act). Apprenticeship training for them will be provided in response to the need for such training agreed with the local education authorities. The Chief Executive also has a specific duty to secure suitable apprenticeship provision for young people aged 19 or over but under 25 and leaving care or are subject to a learning difficulty assessment.

248.Apprenticeship training is defined as training provided in connection with an apprenticeship agreement, any other contract of employment or other kinds of working which may lead to the award of apprenticeship certificates.

Section 84: Arrangements and co-operation with local education authorities

249.This section enables the Chief Executive to enter into arrangements with local education authorities when securing apprenticeship training for young people. It also requires the Chief Executive to co-operate with local education authorities when deciding on the number of places for apprenticeship training to be secured. The arrangements need to enable local education authorities to meet their responsibilities under section 41 of the Act and to enable the Chief Executive to meet demand for apprenticeship places under the apprenticeship scheme in accordance with section 91.

Section 85: Encouragement of training provision etc for persons within section 83

250.This sets out the general duty on the Chief Executive to promote apprenticeships for young people to employers, and encourage them to employ young people as apprentices.

Education and training for persons aged 19 or over etc.
Section 86: Education and training for persons aged 19 or over and others subject to adult detention

251.This section sets out the general duty of the Chief Executive to secure the provision of “reasonable” facilities for the education and training of people aged 19 or over, (other than those aged under 25 who are subject to learning difficulty assessment) and those who are detained in a prison or an adult young offender institution. Facilities are “reasonable” if they are of a quality and quantity which the Chief Executive can reasonably be expected to provide taking account of the resources available to him or her (subsection (3)).

252.The duties do not extend to higher education, which is the responsibility of the Higher Education Funding Council for England. This is because the Education Act 1996 applies for the interpretation of this Part, and section 1(4) of that Act excludes higher education from its ambit.

253.The duty includes funding and securing delivery of education and training for those detained in prisons and adult young offender institutions, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise. This includes 18 year olds held in adult custody (and, very rarely, those under 18), therefore aligning the category of detained people in relation to whom the Chief Executive has responsibilities with the category of people detained in the adult criminal justice system, thereby avoiding local education authorities and the Chief Executive each having responsibility for the provision of education or training in individual establishments. Local education authorities will be responsible for all those detained within the youth justice system (which includes nearly all those aged 17 and under, and those aged 18 who are close to the end of their sentence and who will therefore not transfer to adult prisons). Where a person in adult detention has already begun education or training, the Chief Executive must have regard to the desirability of those persons continuing such programmes whilst in custody. Guidance may be issued by the Secretary of State specifically concerning the provision of education and training for prisoners aged 18 or under who are held in adult detention. The Chief Executive will have to have regard to any such guidance. Feasibility of such provision as well as budgetary considerations may be taken into account.

254.Subsection (4) sets out the factors the Chief Executive must take into account in exercising his or her duty under subsection (1), which include ensuring that the education and training required by different employment and industry sectors are met. It also requires the Chief Executive to act with a view to encouraging diversity in education and training; and to increasing opportunities for individuals to exercise choice.

255.The Chief Executive should make the best use of resources. This might mean that for courses and skills where demand is more limited, the Chief Executive could decide to fund places concentrated in particular geographical areas which have links to a particular industry sector, rather than providing more widespread provision for smaller groups of learners. Learners (and employers) seeking to access these more unusual courses may need to travel (or permit employees to travel) to take up the offer of a course.

256.No distinction is drawn between full-time and part-time education in the provision that the Chief Executive must secure.

257.“Organised leisure time occupation” is defined in subsection (7). The Chief Executive’s duties in this regard do not apply to those who are detained in prison or adult young offender institutions; as such facilities are provided by the prison or other institution.

Section 87: Learning aims for persons aged 19 or over: provision of facilities

258.Sections 87, 88 and 89 re-enact provisions inserted into the Learning and Skills Act 2000 by section 86 of the Education and Skills Act 2008, but conferring functions on the Chief Executive rather than the LSC. Section 87 places a duty on the Chief Executive to secure the provision of proper facilities (in contrast to the reasonable facilities provided for in section 86) for education and training to enable adults who lack particular skills to obtain relevant qualifications. Subsection (4) of section 87 defines proper facilities as those which are of a sufficient quantity and adequate quality to meet the reasonable needs of individuals. This section effectively gives higher funding priority to those adults who lack certain particular skills to enable them to obtain relevant qualifications.

259.The broad standards of achievement (or “learning aims”) for this purpose are set out in Schedule 5. They are a specified qualification in literacy, a specified qualification in numeracy and a specified vocational qualification at level 2. The specification of the particular qualifications to which the duty applies will be in regulations.

260.The duty will apply only to a learner’s first qualification at the specified level. For example, the Chief Executive will not be under a duty to secure the provision of proper facilities for a learner with a level 2 National Vocational Qualification (NVQ) in Beauty Therapy who then applies for a level 2 course in Hairdressing. However, the Secretary of State may by regulations made under section 87 provide that despite having a specified qualification, a person is to be treated as not having that qualification. This could apply, for example, where an individual had achieved a school leaving qualification in English or maths but was later identified, as a result of diagnostic assessment, as having skills below the basic levels of literacy or numeracy.

261.The qualifications will be those at relatively low levels of learning, which are designed to equip people with basic and intermediate skills for work and everyday living.

262.In performing the duty, the Chief Executive must take account of a number of factors, such as the education and training needs in different sectors of employment. The Chief Executive must also act with a view to encouraging diversity of education and training and to increasing opportunities for individuals to exercise choice; and must make the best use of resources.

Section 88: Learning aims for persons aged 19 or over: payment of tuition fees

263.This section places a duty on the Chief Executive to ensure that learners will not be liable to pay fees for courses of study provided as a result of section 87. There are two categories of learners that the Government intends will not generally have to pay fees for their courses:

  • Subsection (2) covers those that are at least 19 years of age and are following a course of study for their first specified qualification in literacy, numeracy, or a specified vocational qualification at level 2;

  • Subsection (4) covers those that are at least 19 but less than 25 who are following a course to get their first specified level 3 qualification (for example, two A-levels).

264.The intention is that these learners will not be liable to pay fees for these courses of study.

265.Fees include the course fees, but the Secretary of State may also specify in regulations, which will be subject to the affirmative resolution procedure, that other fees relating to the course; for example, 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.

266.Subsection (5) gives the Secretary of State the power to amend by order, which will be subject to the affirmative resolution procedure, the relevant provisions of this section so as to vary the ages at which learners qualify for financial help under this section. This provides the flexibility, for example, to be able to adapt to changing economic conditions.

Section 89: Sections 87 and 88: supplementary

267.This section sets out supplementary provisions relating to regulations relating to sections 87 and 88. Regulations may make provision about the circumstances in which a person is to be treated as having or not having a particular qualification for the purposes of meeting the entitlement. It also provides that sections 87 and 88 do not apply to people detained in prisons or adult young offender institutions. This is because all learning provided by the Chief Executive of Skills Funding will be free to learners in custody, and therefore these sections have no practical effect for those prisoners held in adult detention.

Schedule 5: Learning aims for persons aged 19 or over

268.The Schedule sets out the learning aims for people aged 19 or over, that is the broad categories from which qualifications may be specified as ones for which the Chief Executive must secure proper facilities (section 87) or pay for tuition fees (section 88).

269.These categories are:

  • a specified qualification in literacy (at the level of attainment in literacy at which an adult’s skills are the minimum required to operate in day-to-day life);

  • a specified qualification in numeracy (at the level of attainment in numeracy at which an adult’s skills are the minimum required to operate in day-to-day life);

  • level 2 (as demonstrated by 5 GCSEs at Grade C or above);

  • level 3 (as demonstrated by 2 A-levels).

270.The Secretary of State may by regulations specify particular qualifications or descriptions of qualifications which are to fall within scope of the duties. The Government intends that the qualifications specified will be drawn from either the Qualifications and Credit Framework (QCF) or the National Qualifications Framework (NQF). However, not all qualifications in either framework will necessarily be specified.

271.Qualifications which might be specified in regulations include the following:

  • Literacy

    • level 1 certificate in Adult Literacy

  • Numeracy

    • entry level 3 certificate in Adult Numeracy

  • Level 2

    • level 2 National Vocational Qualifications (NVQs)

    • Vocationally Related Qualifications (VRQs) at level 2

  • Level 3

    • Two or more A-levels

    • One or more A-level double Award

    • level 3 NVQs

    • level 3 Diplomas

    • International Baccalaureate

    • Access to HE certificate/diploma

272.The Secretary of State may amend the Schedule by 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. Any such amendment will be subject to the affirmative resolution procedure.

Section 90: Encouragement of education and training for persons aged 19 or over and others subject to adult detention

273.This section sets out the Chief Executive’s general duty to encourage participation in education and training amongst people aged 19 or over (other than persons aged under 25 who are subject to learning difficulty assessment) and others in adult detention, and to encourage employers to participate in providing education and training for their employees (who fall within the Chief Executive’s remit), including by entering into apprenticeship agreements, and to contribute to the costs of such education and training.

The apprenticeship offer
Section 91: Duty to secure availability of apprenticeship places

274.The Chief Executive has a specific duty to secure sufficient apprenticeship places for every suitably qualified person within one of the categories of people eligible for the offer who wants one. This duty is one of the apprenticeship functions which is expected to be delegated to the Chief Executive of the National Apprenticeship Service. The arrangements for fulfilling this duty are set out in the following sections and are known as the apprenticeship offer. Subsection (3) allows the Secretary of State to prescribe when the duty has or has not been met.

Section 92: Election for apprenticeship offer

275.This specifies the eligibility criteria for persons who may elect for the apprenticeship offer, and provides that a person who elects for the offer should select two apprenticeship sectors for the purposes of the offer. Each sector will contain a number of different frameworks. The intention is that the sectors will follow those of the Sector Skills Councils.

276.To be eligible for the offer a person has to satisfy the apprenticeship offer requirements at level 2 or level 3, as set out in section 95. The person must also be aged between 16 to 18; be a person aged 21 towards whom a local authority owes duties under section 23C of the Children Act 1989, or a person towards whom a local authority owes duties under section 23CA of that Act; or be a person of a prescribed description up to the age of 25.

277.A person aged under 21 to whom a local authority owes duties under section 23C of the Children Act 1989 will be a “care leaver”: a person aged 18 or over, who has been looked after by the authority. A person to whom an authority owes duties under section 23CA of the Children Act 1989 will be a “care leaver” to whom the authority no longer owes duties under section 23C, but who wishes to pursue education or training: the duties provided for by section 23CA may continue to be owed until the person reaches the age of 25.

278.It is intended that the persons who will be described in regulations under section 92(4) will be persons who are subject to a learning difficulty.

279.The section also provides that persons who satisfy the apprenticeship requirements at both level 2 and 3 must choose one of those levels.

Section 93: Meaning of “apprenticeship place”

280.This defines an apprenticeship place for the purposes of the apprenticeship offer set out in section 91. A place consists of arrangements comprising both a place on a training course and a place for employment under an apprenticeship agreement, which together relate to an English framework (section 15).

Section 94: Suitability and availability of apprenticeship places: further provision

281.This makes provision about the suitability and availability of apprenticeship places and defines what is meant by the “appropriate level” of an apprenticeship place and “reasonable travel area”. Under subsection (6) the Secretary of State must specify areas; the Government intends that the starting point for establishing these ‘reasonable travel areas’ will be the “travel to work areas” (TTWAs) defined by the Office for National Statistics. TTWAs were introduced to provide self contained labour markets and indicate an area within which the population would generally commute for the purposes of employment. The Government expects that that the duty to secure places will usually enable young people to take places within the specified area in which a person lives; and only, where neither choice of sector cannot be met because there are very few or even no employers in those sectors in the specified area, the Chief Executive might reasonably conclude that travel outside the specified area is warranted to take up a place.

Section 95: Apprenticeship offer requirements,Section 96: Apprenticeship offer requirements: interpretation

282.Section 95 sets out the qualifications a person must have to elect for the apprenticeship offer at level 2 or level 3, and Section 96 contains definitions for the purposes of section 95. These qualifications relate solely to the apprenticeship offer and do not affect anyone’s ability to work towards an apprenticeship certificate outside the apprenticeship offer. Under section 96(2) which qualifications count will be specified in regulations which will be subject to the negative resolution procedure. Section 95(5) enables regulations to be made which will set out the circumstances in which a person who appears to the Chief Executive to have a learning difficulty is to be treated as meeting the apprenticeship offer requirements. Persons with learning difficulties will be able to provide alternative evidence which will be taken into account by way of satisfying the apprenticeship offer requirements at Level 2 and Level 3. Section 95(3) provides that the Chief Executive of Skills Funding may determine that certain qualifications awarded outside England are comparable to a specified qualification for the purpose of entry to the apprenticeship offer. Section 95 also specifies that a person must be available for employment under an apprenticeship agreement and allows regulations which will be subject to the negative resolution procedure, to set out what that means. In forming an opinion about the levels of attainment of qualifications that satisfy the apprenticeship offer requirements, the Secretary of State must consult Ofqual under section 96(7).

Section 97: Suspension of offer

283.The Secretary of State may suspend the apprenticeship offer in a specified geographical area in relation to particular apprenticeship sector or at a particular level for up to two years. This would allow the duty to secure suitable apprenticeship places to be suspended where the economic difficulties, or other circumstances, are so severe that it cannot be fulfilled.

Section 98: Power to amend apprenticeship offer

284.This section allows the Secretary of State to amend the age in section 92(2)(b) under which people other than care leavers are eligible for the apprenticeship offer, currently set at 19. The section also enables the Secretary of State to amend the level of qualification for the apprenticeship offer. The power is exercisable by order, which will be subject to the affirmative resolution procedure.

Chapter 2: Other functions
Funding
Section 100: Provision of financial resources

285.This section gives the Chief Executive powers to fund other persons for the purpose of fulfilling the duties and exercising the powers vested in the Chief Executive. It provides powers for the Chief Executive to pay persons who provide or are proposing to provide education or training within the Chief Executive’s remit, and to pay persons who may not be providers themselves but who supply services which support the delivery of such education and training by providers, for example, delivery of transport and other support services. The powers also provide for the Chief Executive to pay persons providing or proposing to provide information, advice or guidance about education or training or connected matters.

286.A person may be any natural or legal person and includes FE colleges, private and voluntary sector training providers and individuals. Subsection (1)(c) allows the Chief Executive to make direct grants to students.

287.In exercising the powers under this section, the Chief Executive must make the best use of resources. The Chief Executive may use his own financial resources – namely the grant provided by the Secretary of State; assist in the transfer of financial resources from one person to another; and do either of these jointly with other persons or assist in the transfer of financial resources from other persons who are acting jointly, for example, to jointly commission with other Government Departments, for example the Department for Work and Pensions, skills provision for people who have, or are likely to be made, redundant.

288.In order to fulfil his or her powers to fund colleges and providers, the Chief Executive will receive an annual letter setting out the available budget and the Secretary of State’s priorities. The Government anticipates that under this section, the Chief Executive will exercise his or her funding powers in order to fund FE colleges, training providers and others for learning provision which responds to the choices of individuals and employers, and the wider skills needs of the economy.

Section 101: Financial resources: conditions

289.This section permits the Chief Executive to attach conditions to the financial resources which he or she makes available. Subsection (2) provides that these conditions may in particular fall into three categories: information, operational or repayment. For example, information conditions may include a requirement to provide information to the Chief Executive or other persons so designated by the Chief Executive and could also enable the Chief Executive and designated persons to have access to the accounts and computers, for example, of funded persons (subsection (3)).

290.Subsections (4) and (5) define “operational conditions”; these include a requirement on the provider to charge fees by reference to specified criteria, the making of awards and recovery of costs from other persons in accordance with criteria established by the Chief Executive. Operational conditions may also place a requirement on a provider to make available provision which meets requirements identified in learning difficulty assessments conducted under section 139A or 140 of the Learning and Skills Act 2000.

Section 102: Performance assessments

291.This section re-enacts the performance assessment elements of section 9 of the Learning and Skills Act 2000, but conferring functions on the Chief Executive of Skills Funding rather than the LSC. It enables the Chief Executive to adopt or develop schemes for the assessment of the performance of individual providers of education and training. The Chief Executive may take this assessment into account when deciding which providers he or she will continue to fund under powers in section 100.

Section 103: Means tests

292.This section re-enacts the means testing elements of section 9 of the Learning and Skills Act 2000, but conferring functions on the Chief Executive of Skills Funding rather than the LSC. It enables the Chief Executive to carry out means tests or arrange for others to do so in order to establish how much financial support students may be eligible to receive in respect of the costs of education or training, which may include childcare or transport costs, or where living costs are a concern.

Section 104: Assistance and support in relation to apprenticeship places

293.This section places a duty on the Chief Executive to provide or secure provision of services to assist people to find apprenticeships. The section provides the statutory basis for the services provided by the National Apprenticeships Vacancy Matching Service launched in December 2008 which include a web based service for individuals, employers and providers which enables employers to advertise their apprenticeship vacancies through a national portal. The Government’s expectation is that the portal will provide information to assist people interested in apprenticeships to understand the opportunities that exist for them and where appropriate apply on-line for those opportunities that interest them.

Section 105: Promoting progression from level 2 to level 3 apprenticeships

294.This section places a duty on the Chief Executive of Skills Funding to promote the progression to a level 3 apprenticeship where a person has completed a level 2 apprenticeship.

Section 106: Advice and assistance in relation to apprenticeships

295.This section allows the Secretary of State to require the Chief Executive of Skills Funding to provide advice and assistance to enable the Secretary of State to discharge responsibilities for statutory apprenticeships set out in Chapter 1 of Part 1. These include responsibility for the specification of apprenticeship standards for England and giving directions and guidance in relation to the issue of English frameworks.

Provision of services and assistance
Section 107: Provision of services

296.This section re-enacts section 11 of the Further Education and Training Act 2007, but conferring functions on the Chief Executive of Skills Funding rather than the LSC. It provides the powers for the Chief Executive to provide services for individuals and to bodies exercising education and training functions in relation to those functions. It enables the Chief Executive to offer support services such as management information systems, software management systems, payroll administration, human resources functions, finance services and procurement services, including to people and to bodies outside England where that is appropriate, and required by the devolved administrations. Such services may include the provision of accommodation or facilities where that is appropriate to the delivery or provision of the service.

297.The Chief Executive may provide these services to: publicly-funded education and training providers (including schools and universities); publicly-funded institutions that have functions relating to the provision of education and training; and persons or bodies specified by order (who may or may not be publicly funded but have functions relating to education or training).

298.Subsection (3) provides that the terms and conditions of such arrangements may include provision for making payments to the Chief Executive in respect of costs incurred in performing any function under the arrangements. This might be used where the delivery of services requires the Chief Executive to incur costs that might not normally be incurred in the delivery of services in England alone. This might include costs associated with adapting systems, providing “additional” services, or simply providing the service to devolved administrations.

299.Subsection (4) defines “permitted recipients”, which are those persons with whom the Chief Executive may make arrangements under this section and subsection (8) defines “the appropriate national authority”.

300.The orders specifying additional persons or bodies as permitted recipients may be made by the Secretary of State or, where a person or body has education and training functions only in Wales, Scotland or Northern Ireland, by the relevant devolved administration.

301.In Wales, Scotland and Northern Ireland, these services will be supplied only with the consent of the respective devolved administrations. Separate consent will be required from each administration for each type of service.

302.The Chief Executive will need to obtain the consent of the Secretary of State before making arrangements to provide support services to a person or body operating in Wales, Scotland or Northern Ireland.

303.An example of such a support service is the Further Education Data Service which the Government intends that the Chief Executive will operate as a shared service across the Further Education and skills sector. This service will collect information from colleges and providers and produce and disseminate reports on performance of the further education sector to all those with a direct interest in the performance of particular colleges and providers, for example the colleges and providers themselves; local education authorities and the Young People’s Learning Agency.

304.Another example of such a support service is the Managing Information Across Partners (MIAP) Learner Registration and Learner Record Service through which the Chief Executive will provide services, when requested to do so, which support the sharing of data with the aim of benefiting individual learners. The Chief Executive will manage these services on behalf of participating partners. The Welsh Assembly and Northern Ireland Government have already asked the LSC to provide such services and this section will enable the Chief Executive to carry out the same functions.

Section 108: Assistance with respect to employment and training, Section 109: Assistance with respect to employment and training: Northern Ireland

305.Sections 108 and 109 give the Chief Executive the same powers as the LSC currently has under section 12 and 13 of the Further Education and Training Act 2007, to allow him or her to take part in arrangements in relation to Wales, Scotland and Northern Ireland for assisting persons to select, train for, obtain and retain employment. Consent of the Welsh and Scottish administrations will be required for arrangements made by the Secretary of State in relation to Wales and Scotland. The consent of the Secretary of State will be required for arrangements made by all the devolved administrations which involve the Chief Executive. Arrangements may include a loans scheme for learners such as Career Development Loans (CDLs) or its successor Professional and Career Development Loans (under which commercial lenders provide loans to help pay for learning) which operate throughout Great Britain and are currently administered by the LSC on behalf of the devolved administrations.

Miscellaneous
Section 110: Research, information and advice

306.This section sets out the role of the Chief Executive in relation to research and the provision of information and advice, and the establishment of systems for collecting information. The Chief Executive has a duty to report to the Secretary of State on such matters as the Secretary of State may require. In practice, this is likely to include information about progress towards the Government’s targets and priorities in connection with post-19 learning; a description of the Chief Executive’s learning and skills funding strategy; and information on the application of funding. This will also include information about apprentices aged 16 to 18.

307.Subsection (4) gives the Chief Executive the power to provide information to any person designated by the Secretary of State, in relation to a function of the Chief Executive. This will, for instance, enable the Chief Executive to provide the Office of Qualifications and Examinations Regulation (Ofqual) (if so designated) with information to assist with the establishment and maintenance of the framework of qualifications and monitoring of the standards of qualifications.

308.Subsection (6) allows the Chief Executive to secure the provision of facilities and services for providing information, advice or guidance about education or training or connected matters.

Section 111: Power to confer supplementary functions on Chief Executive

309.This section enables the Secretary of State to confer by order additional functions on the Chief Executive, which are connected to the functions of the Secretary of State and relevant to the provision of facilities for education or training within the remit of the Chief Executive.

Chapter 3: Chief Executive’s functions: supplementary
Strategies
Section 112: Strategies for functions of Chief Executive

310.This section re-enacts with modifications, existing powers under section 24A of the Learning and Skills Act 2000. It allows the Secretary of State by order to specify an area of England as an area for which a specified body (which could either be a body that already exists or one which is specifically set up), to put in place and keep under review a strategy for how education and training for those persons that the Chief Executive is responsible for, will be delivered. This would typically be a city region, for which a specified body — for example, an Employment and Skills Board — is able to set out a strategy for the actions of the Chief Executive in that particular area. The Secretary of State may not specify an area comprising Greater London or a part of it because specific powers in respect of Greater London apply and are set out in section 113.

311.Subsection (4) allows the Secretary of State to give directions and guidance to the specified body in relation to the formulation and review of its strategy, including such matters as form and content of the strategy, updating and reviewing the strategy and those bodies which need to be consulted on the formulation and review of the strategy. The specified body must comply with any directions and have regard to any guidance given by the Secretary of State.

312.Subsection (6) allows the Chief Executive to reimburse this body for costs and expenses it incurs in formulating and reviewing its strategy.

Section 113: Strategy for functions of Chief Executive: Greater London

313.This section re-enacts with modifications section 24B of the Learning and Skills 2000 (which was inserted by the Further Education and Training Act 2007) This section requires the Secretary of State to provide, by regulations, for the establishment of a London body to formulate a strategy setting out how certain functions of the Chief Executive are to be carried out in Greater London and keep it under review.

314.The body that is established must include the Mayor of London and other members appointed by the Mayor in accordance with the regulations and the Mayor must be the chairman of the body.

315.Under subsection (4), the Secretary of State may give directions and guidance to the London body in relation to the formulation and review of the strategy, including such matters as the form and content of the strategy; updating it; procedures to be followed when formulating or reviewing the strategy; and the consultation procedures to be followed.

316.The London body must act in accordance with any such directions and have regard to guidance given by the Secretary of State (subsection (5)) and it must publish the strategy, or the revised strategy (subsection (6)).

317.The Chief Executive may contribute to costs and expenses incurred by the London body or the Greater London Authority (subsections (8) and (9)).

Section 114: Strategies: duty of Chief Executive

318.This section puts the Chief Executive under a duty to implement any strategy formulated by a body set up under the powers contained in sections 112 and 113.

319.The section sets out circumstances in which the Chief Executive may refuse to comply with the strategy. This might be for example where the strategy has been formulated without compliance with any directions or regard to guidance concerning its formulation or review. If provision in a strategy conflicts with provisions of strategies of different specified bodies, the Chief Executive may disregard relevant provision in one or both of the strategies (subsection (4)).

320.The Chief Executive is not required to carry out his or her functions in accordance with a strategy in a manner that he or she is satisfied might involve disproportionate cost or in a manner which he or she considers to be unreasonable (subsection (6)).

321.The Chief Executive may not carry out a function in accordance with a strategy if to do so would mean failing to comply with a duty imposed on him or her by or under any enactment (subsection (3)). Where the Chief Executive proposes not to, or does not, carry out a function in compliance with a strategy, the Chief Executive must refer the matter to the Secretary of State (and the strategy setting body may also refer the matter to the Secretary of State) (subsection (7)). In such circumstances, the Secretary of State may give such direction to the Chief Executive as he or she thinks fit regarding the carrying out of that function (subsection (8)).

Section 115: Persons with learning difficulties

322.This section provides that in performing the functions of the office, the Chief Executive must have regard to the needs of persons who are aged 19 or over who have learning difficulties (other than person aged under 25 who are subject to a learning difficulty assessment (under section 139A of the Learning and Skills Act 2000)) and persons with learning difficulties who are subject to adult detention. “A learning difficulty” is defined in subsections (2) and (3).

Section 116: Persons subject to adult detention

323.This section provides that the Chief Executive must have regard to the needs of persons in prisons and adult young offender institutions in the performance of the functions of the office.

Section 117: Use of information by Chief Executive

324.This section provides that the Chief Executive must have regard to any information which has been provided by a person designated by the Secretary of State for the purposes of this section.

Section 118: Guidance

325.This section sets out a requirement similar to that imposed on the Learning and Skills Council in section 14A of the Learning and Skills Act 2000 (inserted by section 7 of the Further Education and Training Act 2007). It places a duty on the Chief Executive to have regard to any guidance given by the Secretary of State. In particular, guidance may relate to consultation with learners, potential learners (who fall within the Chief Executive’s remit) and employers; and taking advice from such persons or descriptions of persons as may be specified in the guidance. In relation to consultation with learners and potential learners, the guidance must provide for the views of such persons to be considered in the light of their age and understanding.

Section 119: Directions: funding of qualifications

326.This section provides for the Secretary of State to direct the Chief Executive to secure (by way of imposing a condition) that funding he provides is not used to make payments in respect of certain specified qualifications. The direction from the Secretary of State would be expected to specify the qualification or qualifications which he considers to be inappropriate for public funding and should therefore be excluded, and may set out the details under which financial resources should not be provided, such as a course leading to a qualification, or exam fees for a qualification.

327.Subsection (2) defines the terms “an excluded payment” and “relevant institution or employer” for the purposes of this section.

328.The overall purpose of the section is to ensure that the funding provided by the Secretary of State to the Chief Executive is used to fund qualifications which the Secretary of State thinks are appropriate to receive public funding, and provides a mechanism for the Secretary of State to prevent the public funding of qualifications where he deems it inappropriate to provide such funding.

Section 120: Other directions relating to the functions of the office

329.This section allows the Secretary of State to give directions to the Chief Executive about what overarching objectives he or she should be seeking to achieve in performing the functions of the office, and by when. This section also allows the Secretary of State to intervene if he or she considers that the Chief Executive has failed to discharge a statutory duty or has acted or is proposing to act unreasonably in the exercise of his or her functions.

330.Directions under the section may not relate to the funding of specific individuals or individual bodies. This is to ensure that the Chief Executive has responsibility for funding decisions, without influence from the Secretary of State.

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