Introduction

1.These explanatory notes relate to the Education and Skills Act which received Royal Assent on 26 November 2008. They have been prepared by the Department for Children, Schools and Families and the Department for Innovation, Universities 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.

Summary and Background

3.In July 2007, the Government published World Class Skills: Implementing the Leitch Review of Skills in England which can be accessed at http://www.dius.gov.uk/publications/leitch.html. This document set out the Government’s plans to improve the skill levels of young people and adults.

4.The Green Paper Raising Expectations: staying in education and training post-16, published in March 2007, dealt specifically with young people and set out, for consultation, proposals to raise to 18 the age until which young people must remain in education or training. The Green Paper and a summary of the responses can be found at: http://www.dcsf.gov.uk/publications/raisingexpectations/index.shtml. More detailed legislative proposals drawn up following the consultation were set out in November 2007 in the publication, Raising Expectations: staying in education and training post-16 – from policy to legislation, which can be found at http://www.dcsf.gov.uk/14-19/documents/Raising%20Expectations.pdf.

5.The purpose of the Act is, first, to change the statutory framework to put a duty on all young people in England to participate in education or training until the age of 18, with corresponding duties on local education authorities and employers to enable and support participation. Second, it amends legislation about the provision of adult education and training, and support for young people. Third, the Act changes the regulatory framework for inspection of independent educational institutions, non-maintained special schools and providers of initial teacher training. Fourth, the Act makes changes to the legislative competence of the National Assembly for Wales in the field of education and training. The Act also includes a number of miscellaneous provisions in relation to admissions, behaviour, National Curriculum assessment arrangements, considering the views of children, the Qualifications and Curriculum Authority (QCA) and schools forums.

6.The Act is organised into five Parts with two Schedules. Schedule 1 deals with minor and consequential amendments and Schedule 2 covers repeals and revocations. In summary, the Act:

Part 1: Duty to participate in education or training: England

• Places a duty on young people to participate in education or training until the age of 18 (or until attaining a level 3 qualification if earlier);

• Requires local education authorities to promote the effective participation of young people in their areas who are subject to the duty to participate;

• Allows for the sharing of information between the Secretary of State, certain public bodies and local education authorities to facilitate the provision of support services and enable local education authorities to identify young people who are not participating;

• Makes provision for duties on employers to enable young people who are their employees to participate;

• Sets out the circumstances in which a local education authority may issue a parenting contract or order to a parent of a young person who is failing to fulfil the duty to participate;

• Provides for local education authorities to issue attendance notices to young people who are not participating and to set up independent attendance panels to monitor the ensuing enforcement process and provide a mechanism for appeal;

Part 2: Support for participation in education or training: Young adults with learning difficulties and young people in England

• Places a duty on local education authorities to provide support services to young people to be known as Connexions. Connexions services are currently provided under a power available to the Secretary of State in section 114 of the Learning and Skills Act 2000;

• Places a duty on local education authorities to arrange for an assessment of a person with a statement of special educational needs at some time during the person’s last year of schooling where the local education authority believes that person will leave school at the end of their last year of compulsory schooling or at some time during their current school year to receive post-16 education or training or higher education;

• Confers a power on local education authorities to arrange for an assessment where a person is in his or her last year of compulsory schooling or is over compulsory school age but under 25 years old, where he or she appears to the authority to have a learning difficulty and is likely to receive post-16 education or training or higher education;

• Amends the requirements on maintained secondary schools in England to require them to present careers information in an impartial manner and to provide careers advice which is in the best interests of the pupils;

• Makes explicit the duty on the Learning and Skills Council (LSC) to secure provision of proper facilities for apprenticeships for 16 to 18 year olds, and requires that the LSC secures provision of reasonable facilities for apprenticeships for those aged 19 and over;

• Introduces a requirement on local education authorities to have regard to journey times in preparing their transport statements for people of sixth form age to attend educational establishments;

• Requires local education authorities to co-operate with partners who are responsible for 14-19 education and training;

Part 3: Adult skills

• Places a duty on the LSC to secure the provision of proper facilities for education and training to enable adults to obtain a specified qualification at levels of attainment identified in the Leitch Review of Skills (level 1 literacy, entry level 3 numeracy and level 2);

• 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 the duty to secure proper provision;

• Places a duty on the LSC to ensure the provision of sufficient financial resources for the purpose of paying tuition fees for people between 19 and 25 years old to attain their first level 3 qualification;

• Allows the Secretary of State, the devolved administrations and the Commissioners of Revenue and Customs to share information on tax and employment and benefit and training information for defined assessment functions;

Part 4: Regulation and inspection of independent educational provision in England

• Creates a new category of independent educational institution to which the regulatory regime for independent schools in England is extended. That regime (currently in Chapter 1 of Part 10 of the Education Act 2002) is restated with changes in Chapter 1 of this Part;

• Enables the Secretary of State to appoint an independent inspectorate to carry out inspections of registered independent educational institutions and requires the Chief Inspector to prepare a report about independent inspectorates;

• Provides the Secretary of State with the power to require an action plan from a proprietor of an independent educational institution where the standards are not being met;

• Provides a power for the Secretary of State to apply to a justice of the peace to impose an immediate restriction on an independent educational institution in an emergency where there is significant risk of harm to a student at the institution;

• Enables the Secretary of State to make regulations to apply any provisions of the regime for the regulation of independent educational institutions to independent post-16 colleges;

• Provides a right for sixth-form pupils in non-maintained special schools to opt out of religious worship;

• Provides a power to make regulations under which the Secretary of State could apply to a Justice of the Peace for an order to withdraw approval from a non-maintained special school in an emergency where there is significant risk of harm to a pupil at the institution;

• Amends section 347 of the Education Act 1996 which requires the Secretary of State to approve independent schools for the placement by local education authorities of pupils with statements of special educational needs, and to give his consent for the placement of such pupils in “non-approved” independent schools. The amendments alter the section so that the approval and consent for which it provides are only necessary for schools in Wales (where they are given by the Welsh Ministers);

Part 5: Miscellaneous and general

• Amends Part 1 of Schedule 5 to the Government of Wales Act 2006 (legislative competence of the National Assembly for Wales) so as to devolve additional powers to the Assembly in the field of education and training;

• Amends the School Standards and Framework Act 1998 to give young people the right to express a preference as to the school at which they wish to receive sixth form education, and also to appeal against a decision to refuse them a place at that school;

• Places a new duty on local education authorities to produce an annual report to the Schools Adjudicator on school admission arrangements in their areas, and requires the Schools Adjudicator to consider and act on any unlawful admission arrangements which come to his attention;

• Creates a power for governing bodies of maintained schools in England to direct pupils to learn outside the school premises to receive provision to improve their behaviour;

• Extends the circumstances in which parents may be prosecuted for failure to ensure that their child attends school regularly, where a governing body has directed that child to learn offsite;

• Requires maintained schools and local authorities to implement National Curriculum assessment arrangements as they exist at a given time, rather than as they exist at the start of the school year;

• Requires maintained school governing bodies to invite and consider pupils’ views on matters set out in regulations;

• Amends the Learning and Skills Act 2000 to remove the requirement for the Secretary of State or Welsh Ministers to give consent to all decisions of a designated body to approve qualifications as eligible to receive public funding;

• Creates additional functions for the QCA or Welsh Ministers to recognise bodies that wish to award or authenticate qualifications;

• Removes the legislative requirement for the Chief Inspector to notify providers of initial teacher training in England eight weeks before an inspection;

• Enables regulations to require schools forums to include non-schools representatives amongst their members.

Territorial Extent

7.This Act contains provisions that trigger the Sewel Convention under the Scottish Devolution Settlement. The relevant sections, 87 to 91, relate to sharing information on income tax, tax credits, benefits and training for specified purposes. The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. In this case the Scottish Parliament gave its consent for the inclusion of the provisions in this Bill which affect the executive competence of Scottish Ministers on 20^th February 2008.

8.The provisions relating to Northern Ireland concern changes to the remit of the QCA. Section 161 extends the remit of the QCA in Northern Ireland to enable it to develop and publish criteria for the recognition of bodies wishing to award or authenticate qualifications. Section 163 extends the powers of the QCA in Northern Ireland to cover the regulation of vocational qualifications currently excluded from its scope. The Secretary of State is required to consult the Department for Employment and Learning in Northern Ireland before section 161(4) and section 163 can be brought into force.

Territorial Application: Wales

9.The Act confers a number of new or expanded powers on the Welsh Ministers, in line with changes being made to certain powers of the Secretary of State in relation to England. Table 1 lists the provisions that affect the existing powers of the Welsh Ministers, confer new powers on them, or otherwise affect Wales.

Table 1: Sections which affect the existing powers of the Welsh Ministers, confer new powers on them, or otherwise affect Wales

Commentary on Sections

10.The following definitions apply in the notes in relation to the whole of the Act:

• 1996 Act is the Education Act 1996

• 1997 Act is the Education Act 1997

• 1998 Act is the School Standards and Framework Act 1998

• 2000 Act is the Learning and Skills Act 2000

• 2002 Act is the Education Act 2002

• 2005 Act is the Education Act 2005

• 2006 Act is the Education and Inspections Act 2006

• LSC is the Learning and Skills Council

• QCA is the Qualifications and Curriculum Authority

• The Chief Inspector is Her Majesty’s Inspector of Education, Children’s Services and Skills

Local education authority

Legal background

11.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.

12.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.

13.Education legislation, for the time being, 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. An order may be made under section 162 of the 2006 Act to convert references in legislation to “local education authority” (and references in legislation to “children’s services authority”) to references to “local authority”.

Part 1: Duty to participate in education or training: England

Sections 1 and 2: Duty to participate in education or training

14.The first two sections establish a duty on young people to participate in a form of education or training, and set out the young people to whom that duty applies. Section 2 creates the central duty (“the duty to participate in education or training”) and details the ways in which young people may fulfil that duty. The eligible forms of education or training are:

15.Section 1 sets out the people subject to the duty to participate in education or training. It applies to any person who is resident in England, has ceased to be of compulsory school age but not yet reached the age of 18, and has not attained a prescribed qualification at level 3.

Sections 3 to 9: Interpretation

16.In section 3, level 3 is defined as the level of attainment which is demonstrated by two A levels. The section enables regulations to set out the qualifications that will count for this purpose. It is intended that these will include the Progression Diploma and the Advanced Diploma once these are available. Sections 4to 9 provide detail and definitions for the types of participation that will fulfil the duty. Section 4 defines appropriate full-time education or training as full-time education or training suitable to the person’s age, ability, aptitude and any learning difficulty he or she has, provided at a school, college of further education or otherwise. For example, this provides that home education and programmes of learning provided by voluntary sector organisations would fulfil the central duty to participate. “Full-time” in relation to a particular description of education provided otherwise than at school or training, may be defined in regulations under subsection (2) of section 4. “Full-time” is not defined in legislation for compulsory school age, but, otherwise, this section substantially mirrors section 7 of the 1996 Act which provides for compulsory education pre-16.

17.For the purposes of this Part, section 5 defines full-time occupation as working for 20 hours or more per week under a contract of employment or in any other way which may be prescribed in regulations. Section 5 provides for regulations to be made determining whether people should be treated as working 20 hours where their normal working hours vary from week to week. Regulations made under subsection (1)(b) can prescribe any other kinds of occupation that should count for these purposes, including volunteering, agency work and working as the holder of an office (for example, police officers or public appointees). By virtue of section 62, Crown employment (for example, civil servants or those in the armed forces) counts as work under a contract of employment.

18.Section 6 defines relevant training or education for people who are fulfilling the duty to participate through the route described in subsection (1)(c) of section 2. It must consist of a course or courses leading towards a qualification accredited by the QCA.

19.Where a person is not fulfilling the duty to participate through full-time education or training or under a contract of apprenticeship, the person should be fulfilling the duty in accordance with section 2(1)(c). The time when the person should be fulfilling the duty in this way is divided into relevant periods and the person must participate in sufficient relevant training or education in each of those periods. Section 7provides for the dates on which relevant periods begin and end to be set by regulations (except in the case of relevant periods at the beginning or end of a time when the person should be fulfilling the duty in this way).

20.Section 8 provides that if a person fulfils the duty to participate by working and pursuing part time education or training towards an accredited qualification, then the training provided by a person’s employer, or any other education or training towards accredited qualifications, must be equivalent to 280 guided learning hours per year. It establishes that those guided learning hours may be actual hours of guided learning or a value assigned to an accredited qualification by the QCA. Regulations will prescribe what constitutes sufficient education or training where this option is pursued for relevant periods of less than a whole year, for instance where a young person changes the way he or she is fulfilling the duty mid-way through a year, or because their 18th birthday falls before the end of the year. Section 9 requires the QCA to assign guided learning hours in accrediting qualifications.

Chapter 2: Local education authorities and educational institutions etc

Section 10: Duty to promote fulfilment of duty imposed by section 2

21.Section 10 establishes a duty on local education authorities to promote participation in education or training of young people in their area who are subject to the duty to participate under section 2.

Section 11: Duty to promote good attendance

22.Section 11 places a new duty on certain educational institutions in England to promote attendance for the purpose of enabling young people to meet the duty to participate under section 2. The duty applies to the governing body of community, foundation or voluntary schools, of community or foundation special schools, of pupil referral units, and of further education institutions. The LSC will be asked to place the same duty on the private providers that it funds, through its existing power to attach conditions to funding under section 6 of the 2000 Act.

Section 12: Duty to make arrangements to identify persons not fulfilling duty imposed by section 2

23.This section places a duty on local education authorities to identify those young people in their area who are subject to the duty to participate and are not participating.

Sections 13 to 17: Information

24.Educational institutions are under a duty to notify the appropriate service provider if a person is not participating in education or training and they believe that the person is not fulfilling the duty (section 13). If the young person belongs to a different local authority area, the notification should be passed on to the service provider for that other area. The local education authority is responsible for ensuring that this happens, either by passing on the notification, where it receives it itself, or by arranging for its service provider to do so. The section sets out to which institutions the duty applies, and who is the appropriate service provider. “Service provider” means the local education authority, where the authority provides services in exercise of its functions under section 68 or, alternatively, where, in the exercise of those functions, the authority makes arrangements for the provision of those services, the person providing those services. These services are currently provided under arrangements made by the Secretary of State and are known as “Connexions”. This name will be retained when the responsibility for providing the Connexions service is transferred to local education authorities in accordance with the provisions in Part 2. An institution’s local Connexions office will be the “appropriate service provider” for the purposes of this section.

25.Section 14 sets out the information that educational institutions must provide to enable local education authorities to identify those young people who are not participating, and what information the young person (or their parent, where the young person is younger than 16) can instruct not to be provided.

26.Under section 15, social security information may be supplied by the Secretary of State (or a person providing services to the Secretary of State) to enable a local education authority to fulfil its functions under this Part. The section sets out under what circumstances further disclosure of this information is permissible, under what circumstances it is a criminal offence and the penalty that may be imposed.

27.Section 16 sets out certain public bodies that may share information about a young person with a local education authority in order for it to fulfil its duty. It is primarily an enabling provision as, without it, there might be doubt as to whether the particular public body involved had the legal power to share information for the purposes of fulfilling local authority functions under Part 1. Section 17allows information held by local education authorities and information held by their service providers to be shared and used, either for purposes under Part 1 of the Act, or for the purposes of sections 68 to 79. The intention is that local education authorities or service providers will continue to maintain the database currently established and maintained under the 2000 Act to help them provide the right support services to young people (under Part 2 of this Act) and promote and ensure fulfilment of the duty to participate (under Part 1).

Section 18: Guidance

28.This section requires local education authorities when exercising their functions under this Part to have regard to any guidance given by the Secretary of State.

Chapter 3: Employers

Sections 19 and 20: Interpretation

29.Section 19 defines the contracts of employment to which duties in this Chapter apply. These are contracts with a duration of more than eight weeks and which include more than 20 hours work per week. Section 20 explains what counts as making appropriate arrangements. A person has made appropriate arrangements if he or she has enrolled on a course or courses constituting relevant education or training (defined in section 6), or arrangements have otherwise been made for him or her to receive relevant education or training, or if he or she is participating in full-time education or training. A person does not need to have enrolled for sufficient (that is, enough hours in the relevant period) relevant education or training in order to count as having made appropriate arrangements. For example, he or she may be waiting for a course to end before enrolling on another.

Sections 21 to 26: Commencement of employment

30.Section 21 places a duty on employers not to employ a person unless they have taken reasonable steps to check that the person has made appropriate arrangements to participate in relevant education or training. The duty does not require the employer to check that the arrangements cover relevant training or education that is sufficient (that is enough hours in the relevant period). For example, an employer would check that a potential employee could produce a letter from a learning provider indicating that he or she had enrolled on a course. The section provides for an exception to this if the contract is made conditional on the person making arrangements to undertake appropriate education or training, in which case he or she must have done so before employment commences. This enables an employer to have a role in a young person’s decision about the type of education or training to pursue.

31.If an employer does not fulfil this duty, section 22 provides for a local education authority to serve a penalty notice on the employer and sets out the circumstances in which the notice can be given. It provides for the amount of the financial penalty to be determined by regulations, and sets out the requirements for what is included in the notice. Should the employer fail to pay the financial penalty, the local authority could pursue the debt in a county court.

32.Section 23 provides for an employer to object to a penalty notice within two weeks of being given the notice under section 22. The local education authority must consider the employer’s notice of objection and either withdraw the penalty notice, reduce the amount of the penalty (if the amount was incorrect) or confirm the penalty notice. The local education authority must then notify the employer of its decision within a prescribed time period.

33.Section 24 enables an employer to appeal to the First-tier Tribunal against a penalty notice given under section 22. The employer could appeal on the grounds that: they did not commit the contravention stated in the penalty notice; the circumstances in which the contravention took place make the penalty notice unreasonable; or the amount stated in the penalty notice is too high. Any appeal must be made within the time limit set by the Tribunal Procedure Rules under paragraph 4 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007. The First-tier Tribunal has the power to: allow the appeal and cancel the penalty notice; replace the penalty with a smaller amount (if the amount was incorrect); or dismiss the appeal. If an appeal has been made, but not yet determined, section 25 provides the local education authority with the power to withdraw the penalty notice. Section 26 sets out the sums that must be repaid to an employer if a penalty notice is withdrawn under sections 23 or 25.

Sections 27 to 36: Employer to enable participation in education or training

34.These sections place a duty on employers to permit an employee, who is subject to the duty in section 2, to participate in education or training. Sections 27and 28 set out how a young person can notify an employer of the arrangements for appropriate education or training that he or she has made, what form that notification should take and what information the young person must tell the employer. Where a young person notifies the employer before beginning employment, the employer may fulfil the duty by arranging the employee’s working hours around the time he or she is required to attend training, by allowing the employee time off to participate, or through a combination of these two mechanisms. Hours spent training will not count towards the 20 hours of work per week a young person must be doing to be counted as being in full-time occupation. This may mean that the employee needs the employer to rearrange working hours rather than allowing time off during working hours, in order not to take the employee below the 20 hours per week required.

35.If notification is given after employment has begun, for example where arrangements have changed, under section 28 the employer must, so far as is reasonable, permit the employee to participate in education or training in accordance with appropriate arrangements. The employer may fulfil the duty by offering to vary the terms and conditions of the employment contract, or by permitting the employee to take time off to participate, as far as is reasonable. What is reasonable is determined by having regard to the needs of the young person in fulfilling the duty to participate, the circumstances of the employer’s business and the effect of the person’s absence from work on the running of the business.

36.Section 29 provides that if a person reaches 18 years of age, remains in employment and has been participating in education or training in order to fulfil the main duty, the duty on the employer remains in place until the course finishes, the young person ceases to be resident in England, the person attains a level 3 qualification or the person attains the age of 19.

37.Section 30 provides that an enforcement notice may be issued by the local education authority where the employer has not fulfilled the duty to enable participation. The Government’s intention is to issue guidance to local education authorities to the effect that an employer should first be asked to fulfil the duty and given the chance to remedy the mistake voluntarily before an enforcement notice is issued. The notice sets out the steps the employer must take in order to meet the duty. Section 18 requires local education authorities to have regard to such guidance issued by the Secretary of State.