2006 Chapter 40

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These notes refer to the Education and Inspections Act 2006(c.40) which received Royal Assent on 8 November 2006

EDUCATION AND INSPECTIONS ACT 2006

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Education and Inspections Act 2006 which received Royal Assent on 8 November 2006. They have been prepared by the Department for Education and Skills in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     The Act implements proposals contained in the White Paper Higher Standards, Better Schools for All (Cm 6677) which was published on 25th October 2005.

4.     This Act also makes provision in consequence of the Chancellor of the Exchequer's announcement in the March 2005 Budget Statement of a reduction in the number of public service inspectorates from eleven to four, with the aim of enabling better co-ordination and reduced duplication.

SUMMARY AND OVERVIEW

5.     The Act is divided into 10 Parts.

6.     Part 1 places new duties on local education authorities to promote the fulfillment by children of their educational potential, to promote diversity and choice in their provision of schools, to consider representations from parents about school provision in their area and to identify children not receiving education. It also places new duties on local education authorities arising from the Green Paper, Youth Matters (Cm 6629).

7.     Part 2 re-enacts much of the current law relating to school organisation for England and creates a new statutory procedure for schools to acquire a foundation and some minimum establishment and status requirements, and places school organisation decisions with local education authorities, abolishing the school organisation committee.

8.     Part 3 creates certain requirements as to foundations, places a duty on governing bodies of certain foundation schools with a foundation to establish parent councils, and places a duty on governing bodies of all maintained schools to promote well-being and community cohesion, and to have regard to the views of parents and the Children and Young People's Plan.

9.     Part 3 also makes some changes to school admissions law, including banning interviewing and changing the duty in respect of the School Admissions Code to one to 'act in accordance with'.

10.     Part 4 gives local education authorities new powers to tackle failing and underperforming schools more quickly and effectively by providing for a new power to force failing and underperforming schools to federate or take another partner for school improvement, and by amending the formal warning notice legislation.

11.     In relation to 14-19 learners Part 5 sets out a new curriculum entitlement in line with that described in the White Paper 14-19 Education and Skills (Cm.6476). It confers powers that are intended to be exercised to provide an entitlement for GCSE pupils to a double science qualification, and an entitlement to new specialised Diplomas.

12.     Part 6 places a new duty on local education authorities to promote sustainable modes of travel to meet the needs of children and sixth form pupils as regards travel to and from schools and other educational establishments. It also places a duty on local education authorities to provide free transport for certain pupils in respect of their attendance at schools and other educational establishments. Part 6 also permits nutritional standards to be applied to food and drink supplied on school premises, and to food and drink provided by local education authorities, or governing bodies, at other places.

13.     Part 7 provides for a new power for teachers and other school staff to discipline pupils, extends the scope of parenting orders and parenting contracts, and requires parents to take responsibility for excluded pupils in their first five days of exclusion.

14.     Part 8 provides for the establishment of the Office for Standards in Education, Children's Services and Skills and a new office of Her Majesty's Chief Inspector of Education, Children's Services and Skills. The new arrangements bring together the existing remit of Her Majesty's Chief Inspector of Schools in England, the children's social care remit of the Commission for Social Care Inspection, the Children and Family Court Advisory and Support Service inspection remit of Her Majesty's Inspectorate of Court Administration and the inspection remit of the Adult Learning Inspectorate.

15.     Part 10 of the Act provides for a framework power which enables the National Assembly for Wales by regulations to make any provision that could be made by an Act of Parliament about any of the matters set out in section 178 of the Act, subject to certain limitations set out in section 179.

TERRITORIAL EXTENT

16.     The Act extends to England and Wales only, with the exception of section 162 and certain general provisions contained in Part 10 which extend to the whole of the United Kingdom.

TERRITORIAL APPLICATION: WALES

17.     The table at Annex A sets out the detail of the territorial application as between England and Wales.

COMMENTARY

18.     The following definitions occur in the notes in relation to the whole of the Act:

     *     1996 Act is the Education Act 1996

     *     1998 Act is the School Standards and Framework Act 1998

     *     2002 Act is the Education Act 2002

     *     2005 Act is the Education Act 2005.

19.     Throughout the notes the term "local education authority" is used to refer to those local authorities with education functions identified in section 12 of the 1996 Act. The term "local education authority" has been in use since 1944 to identify those authorities but it has given rise to some perceptions that a local education authority has an identity of its own separate from the local authority.

20.     In line with government policy to improve outcomes for children by promoting greater cooperation between agencies delivering children's services, and the introduction of the post of director of children's services and lead member for children's services in the Children Act 2004, local authority children's services (mainly education and children's social services) are being integrated. To reflect this it is now government policy that the terms "local education authority" and "children's services authority" should no longer be used. To make this fully effective requires an equivalent change in the terminology used in legislation.

21.     Education legislation, however, uses the term "local education authority" and, as the Act both amends and builds on a number of Education Acts, it has been necessary to continue to use the term local education authority in the Act. It is therefore used throughout these notes (and, where appropriate, is abbreviated to LEA). But in due course an order made under section 162 will convert references in legislation to "local education authority" (and references in legislation to "children's services authority") to references to "local authority".

PART 1: EDUCATION FUNCTIONS OF LOCAL AUTHORITIES

Section 1: Duties in relation to high standards and the fulfilment of potential

22.     This section re-enacts, with amendments, section 13A of the 1996 Act, which was inserted by the 1998 Act and which places a general duty on local education authorities to promote high standards. The substituted section 13A will now require local education authorities to exercise their functions with a view to promoting the fulfilment by every child of his educational potential, and, in the case of local education authorities in England, with a view to ensuring fair access to educational opportunity, as well as with a view to promoting high standards. The reference to every child in new section 13A(1)(c) is a reference to those children set out in subsection (2). Section 13A(3) defines "child" for the purposes of this section.

Section 2: Duties in relation to diversity and choice

23.     This section amends section 14 of the 1996 Act, inserting a new subsection (3A) to require local education authorities in England, when exercising their functions on the provision of schools in their area under that section, to do so with a view to securing diversity in the provision of schools and increasing opportunities for parental choice.

Section 3: Duty to consider parental representations

24.     This section inserts a new section 14A into the 1996 Act to require local education authorities in England to respond to parental representations in relation to the exercise of their functions under section 14 of that Act (as amended by section 2). Local education authorities must consider what action to take in response to such representations and provide a statement to the parent setting out any action which the authority propose to take in response or, where relevant, their reasons for taking no action, in each case having regard to guidance from the Secretary of State. The guidance to authorities will set out how local education authorities might reasonably respond to parental representations on the opportunities for choice and the diversity of schools in their area.

Section 4: Duty to identify children not receiving education

25.     This section amends Chapter 2 of Part 6 of the 1996 Act (school attendance), by inserting a new section before section 437. This new section requires all local education authorities to make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are not receiving a suitable education.

26.     The duty applies in relation to children of compulsory school age who are not on a school roll, and who are not receiving a suitable education otherwise than by being at school (for example, at home, privately, or in alternative provision).

27.     This section moves the definition of "suitable education", previously in section 437(8) of the 1996 Act, to the new inserted section 436A, and amends a cross-reference to that definition. The definition itself is unchanged.

28.     The section also provides that local education authorities must have regard to statutory guidance issued by the Secretary of State in relation to England, and the National Assembly in relation to Wales, in making arrangements to enable them to identify children missing education.

Section 5: School improvement partners

29.     This section requires local education authorities in England to appoint school improvement partners (SIP) to each of the maintained schools in their area in line with a commitment in the White Paper: Higher Standards, Better Schools for All (Cm.6677). Maintained nursery schools are not included within the scope of this duty. SIPs will act on behalf of the local education authority, providing challenge and support to a school in order to help improve the attainment and outcomes of pupils.

30.     Subsection (2) provides that only persons who have been accredited by the Secretary of State or by persons appointed by the Secretary of State can be appointed as SIPs by the authority for the purposes of this section.

31.     Subsections (3) and (4) enable the Secretary of State to prescribe other requirements relating to the appointment of SIPs and to confer functions on local education authorities and school governing bodies in relation to SIPs in line with Departmental policies. If authorities consistently appointed SIPs in a way that did not meet the non-statutory Departmental policies relating to SIPs, these regulation-making powers could be used to enforce them. However, it is not intended to exercise these regulation-making powers at the outset; they are provided by way of a reserve power.

32.     Subsection (5) enables the Secretary of State by regulations to provide for persons employed or engaged by local education authorities before the commencement of this section to be taken to have been appointed as SIPs.

Section 6: Functions in respect of recreation etc

33.     This section inserts new sections 507A and 507B in the 1996 Act, while also amending existing section 508 to apply only in respect of Wales. In England the duty under section 508(1) is re-enacted, in relation to children under 13, in new section 507A.

34.     The new section 507B of the 1996 Act imposes a duty on local education authorities to promote the well-being of persons aged 13 - 19 (and of persons aged up to 25 with learning difficulties) by securing access for them to sufficient educational and recreational leisure-time activities and facilities, so far as is reasonably practicable. The section provides that an authority can fulfil this duty by providing activities and facilities, assisting others to do so, or by making other arrangements to facilitate access, which can include the provision of transport, financial assistance or information. Furthermore, local education authorities are required to supply and keep up to date information regarding those leisure-time activities and facilities that are available locally.

35.     In performing its duty under new section 507B the authority is required to ascertain from young people in the authority's area their views on existing provision and the need for any additional provision, and to take those views into account.

36.     Before taking any action the authority is also required to take steps to assess whether it is beneficial for other agencies and individuals to provide services in its place and, where appropriate, to secure that those services are provided by such agencies or individuals.

37.     Section 507B also includes the power to levy charges and places a requirement on authorities to have regard to any guidance given by the Secretary of State when exercising their functions under the section.

Schedule 1: Amendments relating to section 6

38.     Paragraph 1 amends paragraph 1 of Schedule 4C to the Disability Discrimination Act 1995 by amending the definition of "recreational or training facilities" in the substituted section 28R to include facilities secured by local education authorities in England under the new provisions inserted by section 6 as well as facilities secured by an authority in Wales under section 508 of the 1996 Act.

39.     The Schedule also makes amendments to four sections of the 1996 Act: sections 312, 508, 510 and 547.

40.     Paragraph 3 amends section 312(2) so that it excludes section 507B from the definition of 'special educational needs' provided in section 312. This is because section 507B applies part of the definition of "learning difficulty" in section 13 of the Learning and Skills Act 2000, rather than the definition in section 312 of the 1996 Act.

41.     Paragraph 4 amends section 508, subsections (1) and (1A) to ensure their application to Wales only.

42.     Paragraph 5 amends section 510 (provision of clothing) so that the local education authority has the power to provide articles of clothing to users of facilities for physical training secured under sections 507A or 507B.

43.     Paragraph 6 amends section 547 which addresses nuisance or disturbance on premises. Subsection (2A)(a) of the section is amended so as to include premises provided by the local education authority under section 507A or 507B, thereby ensuring that any person unlawfully present on the premises and causing or permitting nuisance or disturbance to the annoyance of persons who lawfully use the premises is guilty of an offence and is liable to be fined. Section 547 also ensures that a police constable or person authorised by the local education authority may remove from the premises any person they have reasonable cause to suspect of committing or having committed an offence under the section.

PART 2: ESTABLISHMENT, DISCONTINUANCE OR ALTERATION OF SCHOOLS IN ENGLAND

44.     Part 2 re-enacts much of the current law relating to school organisation for England, extends the requirement for a competition for new schools to special and primary schools, requires Secretary of State consent for new community schools, creates a new statutory procedure for schools to acquire a foundation and some minimum establishment and status requirements, and places school organisation decisions with local education authorities, abolishing the school organisation committee.

45.     Annex B contains a table which compares the position of foundation schools and community schools.

Section 7: Invitation for proposals for establishment of new schools

46.     This section provides that a local education authority in England may publish a notice inviting proposals (other than from local education authorities) for the establishment of a new foundation, voluntary, or foundation special school, or Academy.

47.     Its provisions in part re-enact those of section 66 of the 2005 Act, which applied to secondary schools only, and now extends them to primary schools and special schools.

48.     Subsection (3) specifies the basic information that the notice must contain, and provides that other information, and the manner in which the notice must be published, may be prescribed in regulations.

49.     Subsection (4) provides that regulations shall prescribe the information that proposals brought forward in response to the notice must contain, and that they shall be submitted to the authority before the date specified in the notice.

50.     Subsection (5) provides that after the date specified in the notice, a local education authority must publish any proposals received, and may publish proposals of its own for a foundation or foundation special school or, in cases where section 8 allows this, for a community or community special school.

51.     Subsection (6) provides that regulations may prescribe the time within which proposals must be published, the manner in which they must be published, and the information which they must contain.

52.     Subsection (7) provides for Schedule 2 to have effect in relation to the consideration, approval, and implementation of proposals.

53.     Schedule 2 provides for the proposals to be decided by the local education authority or adjudicator, in place of the school organisation committee and adjudicator. Amongst other things the Schedule includes provision for objections and comments to be made in respect of proposals; for related proposals to be decided together; for proposals under section 7, 10 or 11 to be decided by the adjudicator if they include proposals by local education authorities or relate to the establishment of certain foundation schools; for the Secretary of State to be able to direct that proposals under section 7 should be decided by the adjudicator; and for diocesan authorities, the Learning and Skills Council for England, proposers and governing bodies to be able to ensure that proposals are referred to the adjudicator in certain circumstances. It also makes provision for the implementation of proposals.

Section 8: Proposals under section 7 relating to community or community special schools

54.     This section sets out the circumstances in which local education authorities are permitted to publish proposals for a community school or community special school. Subsection (1) provides that in general such proposals may be published only where prescribed conditions are met and only with the consent of the Secretary of State. The consent of the Secretary of State is however not required in cases where further prescribed conditions are also met. This is intended to prevent authorities who fail to meet certain minimum standards from applying for consent and to enable authorities who meet demanding standards to publish proposals for new community schools in competitions without obtaining consent. All other authorities would have to obtain the consent of the Secretary of State.

55.     Subsection (2) provides that the conditions must include conditions relating to the standards achieved by the authority in relation to its functions in respect of education, children's social services and childcare. It is intended that this will be measured by the annual performance assessment (APA) score.

56.     Subsection (3) provides that further conditions that may be prescribed are conditions relating to the standards of schools in the local authority area or the extent of diversity among of any such schools.

57.     Subsection (4) provides that in considering whether to give consent, the factors to which the Secretary of State must have regard include prescribed matters.

58.     Subsection (5) provides that regulations may prescribe standards by reference to the opinion of the Chief Inspector or any rating awarded by the Chief Inspector following an inspection or review.

Section 9: Consultation and publicity in relation to notice and proposals under Section 7

59.     This section provides that before publishing a notice under section 7, local education authorities in England must consult such persons as they consider to be appropriate, and in discharging this duty they must have regard to any guidance given by the Secretary of State. Subsection (2) provides that regulations may require local education authorities to take further steps to promote public awareness of the proposals brought forward.

Section 10: Publication of proposals with consent of Secretary of State

60.     Subsection (1) provides that local education authorities in England may, with the consent of the Secretary of State, publish proposals for a new community, foundation, community special or foundation special school otherwise than under section 7. The subsection does not cover maintained nursery schools or 16-19 foundation or foundation special schools. Proposals for these may be published under section 11 without any need for the Secretary of State's consent.

61.     Subsection (2) provides that other persons (proposers) may, with the consent of the Secretary of State, publish proposals for a foundation school, a voluntary school or a foundation special school otherwise than under section 7. The subsection does not cover 16-19 schools, schools to replace independent schools or new foundation special schools to replace non-maintained special schools. Proposals for these may be published under section 11 without any need for the Secretary of State's consent.

62.     Subsection (3) provides that regulations may prescribe the information the proposals must contain and how they must be published.

63.     Subsection (4) provides that before publishing proposals the local education authority or proposers must consult such persons as appear to them to be appropriate, having regard to any guidance given by the Secretary of State.

64.     Subsection (5) provides for proposals from proposers to be submitted to the local education authority who it is proposed should maintain the school, in accordance with regulations.

65.     Subsection (6) provides for Schedule 2 to have effect in relation to the consideration, approval and implementation of proposals under this section.

Section 11: Publication of proposals to establish maintained schools: special cases

66.     Subsection (1) provides for local education authorities to publish proposals to establish a new maintained nursery school or a new 16-19 foundation school or foundation special school.

67.     Subsection (2) provides for other persons (proposers) to publish proposals to establish a new foundation school, voluntary school or foundation special school which is a 16-19 school or is to replace an independent school. Provision is also made for proposers to publish proposals for a new foundation special school to replace a non-maintained special school.

68.     Subsection (3) provides that a foundation, voluntary or foundation special school is to be regarded as replacing an independent school if the independent school has been registered as such for two years and closes immediately before the proposals for the new school are implemented. Subsection (4) makes comparable provision for when a new foundation special school is to be regarded as replacing a non-maintained special school.

69.     Subsection (5) provides that regulations may prescribe the information that proposals must contain and how they must be published.

70.     Subsection (6) provides that before publishing proposals the local education authority or proposers must consult such persons as appear to them to be appropriate, having regard to any guidance given by the Secretary of State.

71.     Subsection (7) provides for regulations to set out arrangements under which proposals from proposers must be submitted to the local education authority which is to maintain the school, and subsection (8) provides for Schedule 2 to have effect in relation to the consideration, approval and implementation of proposals.