Office of Public Sector Information
38.If the employer fails to comply with the requirements in an enforcement notice, section 31provides that a local education authority can issue a penalty notice and states what information the penalty notice must contain. Should the employer fail to pay the financial penalty, the local education authority could pursue the debt in a county court.
39.Section 32 enables a local education authority to withdraw an enforcement notice (provided that, if a penalty notice has been issued, any appeal against it has not yet been determined). Where an enforcement notice is withdrawn, no penalty notice can be issued and any penalty notice already issued ceases to have effect.
40.Section 33 provides for an employer to object to a penalty notice within two weeks of being given the notice under section 31. 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. Under section 34an employer may appeal to the First-tier Tribunal against a penalty notice given under section 31. 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.
41.Section 35 provides that a penalty notice can be withdrawn by a local education authority, until any appeal under section 34 has been determined, regardless of whether a notice of objection has been given. If a penalty is reduced or withdrawn, section 36provides that any sums of money already paid must be repaid to the employer with interest at the appropriate rate.
42.Sections 37, 38 and 39 amend existing legislation to add taking time off or seeking to take time off (or to rearrange working hours) in order to participate in education or training as a result of the duty in section 2 to the grounds on which a person has a right not to suffer detriment, to the grounds on which dismissal is to be treated as automatically unfair, and to the grounds on which selection for redundancy is to be treated as automatically unfair. In order to claim unfair dismissal a person does not need to have the usual period of one year’s continuous employment. Section 39 provides that section 63A of the Employment Rights Act 1996, which establishes a right to paid time off for young people aged 16-19 if they do not already have a level 2 qualification, does not apply to people subject to the duty to participate and will continue to apply only in Wales and Scotland.
43.This Chapter enables local education authorities to take certain enforcement action against parents of young people who are not fulfilling their duty to participate, where this would be in the interests of ensuring that the young person participates.
44.Section 40 confers on local education authorities in England the power to enter into parenting contracts with a parent of a young person who is not fulfilling their duty to participate and where the authority considers that such a contract would be in the interests of the young person’s fulfilment of that duty.
45.A parenting contract is a voluntary agreement. Subsection (6) means that parenting contracts cannot result in certain types of legal action by either party. Those types of legal action are for breach of contract and for civil damages. A parenting contract is a document signed by the parent and on behalf of the local education authority, containing a statement by the parent agreeing to comply with the requirements in the contract, and a statement by the local education authority that it agrees to provide support to the parent for the purpose of complying with the contract’s requirements. The aim is to ensure that the young person fulfils their duty to participate. Parenting contracts under section 40 are similar to parenting contracts under the Anti-Social Behaviour Act 2003. If a parent does not enter into a parenting contract when it is offered, or fails to comply with one, a court must take this into account in deciding whether to make a parenting order (see section 42).
46.Section 41 enables local education authorities to apply to a magistrates’ court for a parenting order in respect of a parent of a young person who is subject to the duty to participate and is not fulfilling that duty. A parenting order requires the parent to comply with the requirements specified in the order, for a specified period not exceeding 12 months. The requirements can include a counselling or guidance programme, part of which may be residential if certain conditions are met. A parent may, under section 43, appeal to the Crown Court against a parenting order. Failure to comply with a parenting order is an offence.
47.Section 42 requires the court, in making a parenting order, to take into account any refusal by the parent to enter into a parenting contract, or any failure to comply with a parenting contract he or she has entered into. But a parenting order can be made without a parenting contract having been entered into.
48.Section 44 provides that local education authorities and responsible officers, in exercising their functions in relation to parenting contracts and parenting orders, must have regard to how a parent’s actions, or lack of, affect a young person’s duty to participate. A responsible officer in relation to a parenting order means an officer of a local education authority who is specified in the order. This section also allows regulations to make provision about the exercise by local education authorities of their functions in relation to parenting contracts and parenting orders, and to require information to be provided by one local education authority to another. The reason for this provision is that a young person who is failing to fulfil the duty may be in the area of one local education authority, but his parent may be in the area of another, and it will need to be clear which authority should lead, and to ensure that both authorities cannot take action against the same parent for the same reason at the same time.
49.These sections set out the procedure that a local education authority may follow should it believe that a person is failing without reasonable excuse to fulfil the main duty to participate under section 2. The Government intends to issue guidance to local education authorities to assist them in interpreting what would be a reasonable excuse. Section 45 makes clear that before commencing this process, the local education authority must ensure that appropriate support has been made available and that the young person has been given the opportunity to take advantage of services designed to support participation. It provides that the local education authority must then give the young person 15 days’ notice in writing of its intention to issue an attendance notice. If the only way in which the young person is failing to fulfil the duty is that the relevant education or training in which he or she is participating is not “sufficient” (not enough hours in the relevant period), it is for the local education authority to show that there is no reasonable excuse for not having made such arrangements, putting the burden of proof on the local education authority rather than on the young person. This may arise, for example, where a young person needs to await results for one course before enrolling on a subsequent course.
50.If the young person fails to participate without reasonable excuse after the local education authority has given 15 days’ notice in writing, section 46 enables the local education authority to issue an attendance notice. The attendance notice must specify the type of provision that should be undertaken, a description of the course, and details of where and when the young person should attend. An attendance notice ceases to have effect when a young person is no longer subject to the duty to participate, for whatever reason.
51.Section 47 provides that the education or training specified in the attendance notice must be a course provided at a school, college or other education establishment or a contract of apprenticeship, and be a way of fulfilling the section 2 duty. It must be suitable to the person, having regard to their age, ability and aptitude and any learning difficulty he or she may have, and the local education authority must consult the provider of education or training.
52.Section 48 requires a local education authority to set up an attendance panel in accordance with regulations, with a chair that is not a member of the authority. The panel’s functions include hearing appeals against attendance notices (as set out in section 49), appeals against penalty notices (set out insection 54), making recommendations to local education authorities, and considering local education authorities’ intentions to commence court proceedings. Regulations will specify how the panel must be constituted and its procedures in carrying out those functions. Regulations under section 48 may also apply sections 173 to 174 of the Local Government Act 1972 in relation to an appeals panel which put beyond doubt the kinds of allowances that could be paid.
53.Section 50 provides that a local education authority can vary or revoke an attendance notice in certain circumstances, and can specify additional education or training. In particular, where the education or training specified in the notice ends, and the young person is still subject to the duty, the local education authority may specify additional education or training.
54.Section 53 enables a local education authority to issue a penalty notice which gives the young person the opportunity to make a payment to the local education authority in order to release him or her from the possibility of being convicted for the offence of failing to comply with an attendance notice. Regulations can be made to specify the contents of penalty notices and to set out the amount of the penalty (which can be different in different circumstances). The amount of the financial penalty must not exceed the maximum fine that could be imposed on conviction of the offence, which is level 1 on the standard scale of fines for summary offences.
55.There is an enforcement procedure if a young person fails to comply with an attendance notice. Section 51 sets out that non-compliance is a criminal offence and liable to a fine of a maximum of level 1 on the standard scale. Currently level 1 is a maximum of £200, with the actual amount in each case being decided by the court in light of individual circumstances. Section 52 provides that proceedings cannot be commenced unless a penalty notice has first been given under section 53 and has not been paid. The attendance panel must have recommended that proceedings be instituted. Proceedings cannot be started after the young person has ceased to be subject to the duty to participate, or if the young person is participating in some way that is different from the provision specified in the notice but nevertheless fulfils the duty to participate.
56.Section 54 sets up the procedure for appealing to an attendance panel against a penalty notice, which may be further provided for in regulations made under this section.
57.Sections 55 to 60 provide that ordinary adult fine enforcement procedures will not apply in the case of a person who received a fine for an offence under clause 51 of failure to comply with an attendance notice without reasonable excuse.
58.Section 56 applies to a person who reaches 18 after being given a fine. Once the individual turns 18, fine enforcement is transferred from the magistrates’ court to a county court, provided that the magistrates’ court is satisfied that the young person has the means to pay the fine (and any enforcement processes already begun have been completed). The magistrates’ court’s powers (apart from those relating to enforcement processes already started) cease when the person reaches 18, so that subsequent enforcement can take place only in a county court. The county court has no power to impose custody for non-payment. Any amount outstanding in relation to the surcharge and costs orders is transferred to the county court, together with the amount of the fine.
59.Section 57 makes similar provision in respect of a person who is 18 when given a fine. In that case the fine (and associated surcharge and costs) is enforceable from the outset only in a county court.
60.Subsection (9) of section 56 and section 58 provide for the Lord Chancellor to make further detailed provision by subordinate legislation about the orders, warrants and statutory provisions relating to enforcement of fines, costs or surcharges or to any power to enforce payment of such sums that continue and cease to have effect after the young person reaches 18.
61.Where a person aged under 18 fails to pay a fine, a youth default order could be made under section 39 of the Criminal Justice and Immigration Act 2008. Paragraph 90 of Part 2 of Schedule 1 will amend Schedule 7 to that Act to allow the magistrates’ court to revoke a youth default order relating to a fine in respect of an offence under section 51 once the young person reached the age of 18, and to state how much of the original fine is to be treated as remaining outstanding. In doing that the court can take into account the extent to which the young person has complied with the youth default order. That amount would (if the magistrates’ court so ordered under section 56) be enforceable only in a county court.
62.Chapter 5 of Part 1 makes provision about the actions and proceedings that may be taken if a young person fails to fulfil their duty under clause 2 to participate in education or training. Section 60 provides for a review of, and report on, the initial operation of that Chapter. It is the Government’s intention that this review will be conducted by a person independent of the Government. Under clause 173, Part 1 must be fully in force by the school leaving date for 2015 (and will have come into force for certain year groups before then). The period reviewed will, therefore, cover the first full year for which Part 1 is in force.
63.For the purposes of Part 1, section 61 enables regulations to state who is to be treated as the employer in relation to ways of working prescribed under section 5, and to modify provisions in their application to these prescribed ways of working, to reflect different circumstances. One effect of this section is that persons who are not normally regarded as employers (for example, the person in charge of a young person’s voluntary work) could be treated as employers for these purposes.
64.Section 62 sets out how Crown employees are to be treated in relation to Part 1 of the Act. They are to be treated as if employed under contracts of employment.
65.Although the duties on employers in Chapter 3 of Part 1 apply in relation to employment in the House of Lords and House of Commons respectively in the same way that they do to employment of all other young people, section 63 and subsection (3) of section 64 provide that the powers for local authorities to take enforcement action not to apply.
66.Section 65 provides that financial penalties are payable to the local education authority and that funds from them can only be used for specified functions, which it is intended will be the process of giving and administering of penalty notices, or paid to the Secretary of State. Where a penalty notice has been given to an employer, it is not enforceable whilst a notice of objection or an appeal is outstanding.
67.Section 67 enables the Secretary of State, by order, to make provision for Wales corresponding to the duties on employers in sections 19 to 36, and related provisions in sections 37, 38, 39, 61, 62 and 65. This power would apply only if the National Assembly for Wales made a Measure that appeared to the Secretary of State to correspond to section 2 of the Bill – effectively a Measure raising the participation age in Wales. The National Assembly for Wales could not currently make such a Measure, but could gain the competence to do so in future through a Legislative Competence Order under section 95 of the Government of Wales Act 2006. This section ensures that if the participation age were raised in Wales in future, the duties on employers could be applied in Wales too, and would apply in the same way to employers on either side of the border. Before an order can be made under this section the Welsh Ministers must be consulted.
68.Sections 68 to 79 give effect to proposals set out in the Green Paper Youth Matters http://www.everychildmatters.gov.uk/youthmatters/ (July 2005) to devolve the responsibility for delivering the service known as “Connexions” to local education authorities. The funding for the Connexions service transferred to local education authorities in April 2008. The sections replace sections 114 to 121 of the 2000 Act, but transfer responsibility for provision of the services from the Secretary of State to local education authorities and extend them to adults aged 20 to 24 with learning difficulties. Amendments consequential on these changes are made in Schedule 1 to the Act.
69.Section 68 places a duty on local education authorities in England to make available to young people and relevant young adults for whom they are responsible such services as they consider appropriate to encourage, enable or assist them to engage and remain in education or training. A relevant young adult is a person aged 20 to 24 years who has a learning difficulty within the meaning of subsections (5) and (6) of section 13 of the 2000 Act. The services made available will continue to be known as Connexions services. This section also provides for local education authorities to have regard to any guidance issued by the Secretary of State, and places them under a duty to comply with any directions given by the Secretary of State relating to the exercise of their functions under section 68.
70.Section 68 provides that a local education authority can fulfil the duty to make services available either by providing them itself or by making arrangements with others, which could include other local education authorities. In addition, subsection (5) provides that the duty on a local education authority to make services available to a young person or relevant young adult for whom it is responsible does not apply if another local education authority is also responsible for the person and services are actually being provided to the person by that other authority or under arrangements made by it. Taken together with the definition of which persons are in the scope of a local education authority’s responsibility in section 78(2), section 68(5) addresses the situation where two local education authorities are both potentially under a duty to make services available to the same person.
71.Section 69 gives the Secretary of State the power to give directions about matters specified in the section to a local education authority relating to the exercise of its duty to make support services available for effective participation (subsection (1) of section 68). Directions may specify the services to be made available to young people and relevant young adults (for example, it may be that directions are given about services for young people who are not in education, employment or training). Directions may also specify the descriptions of individuals who may be involved in ways specified in the direction in providing services. This may include specifying minimum qualifications for personal advisers. In addition, directions may require the local education authority to secure that it or its service providers co-operate with the provider of the national telephone helpline and internet-based service for young people, currently known as Connexions Direct (provided under section 74). Local education authorities may be directed to cooperate with those exercising functions or providing services relating to social security or connected with finding suitable employment, education or training, such as JobCentre Plus. Directions may also be given about the use of the Connexions brand, and may impose requirements as to record keeping and the provision of information. Record keeping requirements may include requirements for authorities and their Connexions service providers to maintain a Connexions database so as to help service providers offer the right support services to young people (under Part 2) and support for local education authorities in promoting fulfilment of the duty to participate (under Chapter 2 of Part 1). Directions about the provision of information would include directing authorities to ensure that, where there was a change in statutory responsibility for the provision of Connexions services in respect of a person, information would speedily pass from the earlier authority or its service provider to the authority that was now responsible or its service provider.
72.Subsection (2) allows a direction to require a local education authority to exercise its functions under section 68 in such a way that Connexions services are provided in conjunction with other services or the exercise of other functions specified in the direction. Subsection (3) makes clear that the other functions or services specified in the direction need not relate to education or training and may be functions or services relating to social security. These subsections give the Secretary of State the power to direct local education authorities to ensure that the person providing Connexions services also carries out social security functions under relevant powers contained in social security legislation. Under arrangements made with the Secretary of State, Connexions service providers currently conduct work focused interviews for 16 and 17 year olds within the meaning given in sections 2 and 2AA of the Social Security Administration Act 1992. The interviews aim to enable participation in education or training and focus on training or educational opportunities. The intention is that the direction-making power may be used to ensure that the current arrangements will continue. It is also intended that it may also be used in the future in relation to functions within the Welfare Reform Act 2007 such as:
work focused interviews within the meaning of section 12 of that Act;
work related activity within the meaning of section 13 of that Act; and
action plans within the meaning of section 14 of that Act,
with the aim of helping the person into employment or keeping him or her in employment.
73.Section 70 gives local education authorities the power to enter into arrangements made with them by other local education authorities for the provision of Connexions services (see section 68(1)). It also gives local education authorities the power to provide, secure the provision, or participate in the provision of Connexions services other than in respect of persons for whom they are responsible, including persons from other areas.
74.Section 71 allows the Connexions service provider, as part of the Connexions service, to enter into a learning and support agreement with a young person aged 13 to 19. This includes a young person who is not participating, or at risk of not participating, in education or training as required by section 2.
75.A learning and support agreement comprises agreement by a young person to comply with certain requirements, and agreement by the Connexions service provider to provide specified support (which could, for example, include financial support or an incentive payment) on condition that the young person complies with those requirements. It does not amount to a legally binding contract. The process of entering into a learning and support agreement involves identification and assessment of need, and the young person must be involved in negotiating the agreement.
76.Section 45(5) requires a local education authority to ensure that Connexions support has been offered to a young person to whom Part 1 applies before taking enforcement action for failure to comply with the duty imposed by section 2. Entering into a learning and support agreement is an example of the kind of support that might be offered in this situation.
77.Section 72 sets out the information that educational institutions must provide to persons involved in the provision of Connexions services to help ensure that all young people or relevant young adults are offered support appropriate to their circumstances and, in particular, that any not in education, employment or training are identified and offered prompt support. The section also sets out what information a pupil or student (or their parent, where the person is younger than 16) can instruct not to be provided.
78.The purpose of section 73 is to allow Connexions services to be provided at schools and other educational institutions that young people attend. It places a duty on the responsible persons for educational institutions to allow Connexions service providers reasonable access to pupils and students and to provide reasonable facilities on the institution’s premises for providing services, when requested to do so by a Connexions service provider.
79.Section 74 gives the Secretary of State the power to provide or secure the provision of remote Connexions services on a national basis, for example, through the internet and other electronic media, for all 13-19 year olds and for “relevant young adults”.
80.Section 75 places a duty on the Chief Inspector to inspect and report on Connexions services (provided under sections 68 and 74), when requested to do so by the Secretary of State. In addition, the section gives the Chief Inspector the power to carry out such other inspections of the provision of those services as the Chief Inspector thinks fit.
81.Subsection (5) gives the person carrying out or participating in the inspection the necessary powers concerning rights of access to the premises and records of Connexions service providers. Subsection (6) provides the Chief Inspector with the power to report on and publish his findings. Subsection (7) makes it a criminal offence for anyone to wilfully obstruct an inspection.
82.Under section 76, social security information may be supplied by the Secretary of State (or a person providing services to the Secretary of State), to a local education authority or other person involved in the provision of Connexions services for young people, for the purposes of the provision of those services. 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. Information may only be supplied in respect of young people, not relevant young adults, because the concern is to ensure that Connexions services are aware of all young people who may not be in education, employment or training and for whom it is a policy priority to provide support. Section 77 gives the persons and bodies listed in subsection (2) the power to supply information about a young person or relevant young adult to any other person or body involved in the provision of Connexions services for the purposes of the provision of those services.
83.Paragraph 74 of Part 2 of Schedule 1 amends the Welfare Reform and Pensions Act 1999. This is to ensure that social security information may be shared between the Department for Work and Pensions (DWP) and a county council, where that county council is exercising social security functions in respect of a young person for whom they are required to provide support via the Connexions services. Regulations made under this social security legislation define a “local authority” by reference to the Social Security Administration Act 1992. The definition of local authority in that Act does not include a county council in England. Therefore, but for these amendments, the current data sharing would not be able to continue where a county council is exercising Connexions functions. Other minor and consequential amendments are made in Schedule 1.
84.Section 79 repeals sections 114 to 121 of the 2000 Act which provided for the establishment in England of the Connexions service by the Secretary of State.
85.Section 80 inserts sections 139A to 139C into the 2000 Act. The effect is to transfer to local education authorities, and to expand, the existing duty of the Secretary of State to arrange for assessments of a person’s educational and training needs in certain circumstances, and his power to arrange such assessments. New subsections 139A (2) and (4) place a duty on a local education authority to arrange for an assessment of a person in respect of whom it maintains a statement of special educational needs, who is either in his or her last year of compulsory schooling or over compulsory school age but still at school, at some time during the person’s last year of schooling. In either case, the assessment is only required where it is believed that the person will leave school at the end of their last year of compulsory schooling or during or at the end of their current school year to pursue post-16 education, training or higher education. This expands on the current duty on the Secretary of State under section 140 of the 2000 Act to arrange for these assessments at some time in year 11 (the last year of compulsory schooling), where the Secretary of State believes that the person will be leaving school at the end of that year to receive post-16 education or training.
86.Inserted section 139A(5) gives local education authorities a power to arrange for an assessment at any time of a person:
who is in their last year of compulsory schooling; or
who is over compulsory school age but has not reached the age of 25; and
who appears to the authority to have a learning difficulty within the meaning of section 13 of the 2000 Act; and
who is either already receiving, or likely to receive in the opinion of the authority, post-16 education, training or higher education.
87.Inserted section 139C of the 2000 Act applies the assessment provisions to those being educated at home. In relation to England, these new sections replace the existing provision for assessments in section 140 of the 2000 Act.
88.Consequential amendments to the 2000 Act are made in paragraphs 75 to 77 of Schedule 1.
89.Section 81 amends Part 7 of the 1997 Act which requires state secondary schools to provide all pupils with a programme of careers education and appropriate information, and up-to-date reference materials related to career options. Section 44 of the Act requires schools to provide access to external careers advisers to provide career advice and guidance to pupils. Subsection (2) of this section requires all local education authority maintained secondary schools in England to present careers information in an impartial manner and to provide careers advice which is in the best interests of the pupil, and not to promote the interests of the school or other persons or institutions contrary to the pupil’s interests. Subsection (3) requires the information and reference materials provided to present a full range of learning and career options and not to promote unduly one option over another. Subsection (4) requires schools to have regard to guidance issued by the Secretary of State, which is intended to support them in delivering effectively the duties in Part 7 of the 1997 Act, as amended by subsections (2) and (3) of section 81.
90.This section amends sections 2, 3 and 4 of the 2000 Act to make clear that the LSC is under a duty to provide proper facilities for apprenticeships for 16 to 18 year olds and reasonable facilities to those over the age of 19. The section also requires the LSC to encourage employers to offer apprenticeship contracts and contracts of employment where training is provided. The wording of the section makes clear that it covers all forms of apprenticeship.
91.Local education authorities must prepare transport policy statements each academic year, which set out transport arrangements for people of sixth form age to attend educational establishments. Transport statements are required under section 509AA of the 1996 Act (inserted by the 2002 Act). Section 83 introduces a requirement on local education authorities to have regard to journey times in preparing their transport statement. This section has the effect of ensuring that travelling time will be one of a range of factors a local education authority must consider, along with cost, the distance a young person will have to travel and the need for choice of education provision.
92.The proposed Learner Transport (Wales) Measure was passed by the National Assembly for Wales on 30 September 2008. If approved by Her Majesty in Council, it will confine the application of section 509AA of the 1996 Act to England, so section 83 would not affect local education authorities in Wales.
93.Section 84 deals with the duties placed upon a local education authority with regards to the religion or belief of young people of sixth form age. Where local education authorities already have regard, in exercising their functions in relation to transport, to a parent’s wishes where these are based on religion or belief, this section has the effect of ensuring that the local education authority must also consider the wishes of a young person of sixth form age where these are based on religion or belief.
94.Section 85 deals with local collaborative arrangements in relation to the education and training of 14 to 19 year olds. It refers to section 10 of the Children Act 2004. That section places a duty on children’s services authorities (i.e. local authorities) to make arrangements to promote co-operation between the authorities, specified partners and other relevant persons with a view to improving the well-being of children relating to a range of factors, including education and training. Section 85 provides that the arrangements under section 10 of the Children Act 2004 must include arrangements to promote co-operation between the children’s services authority and its partners and persons who are responsible for providing 14-19 education or training. Section 85 provides that the arrangements under section 10 must include arrangements to promote co-operation between the local education authority, its partners and persons who are responsible for providing 14-19 education or training. The section also enables children’s services authorities to set up joint arrangements for co-operation on 14-19 education or training covering the areas for which they are responsible.
95.Section 86 inserts three new sections and a new Schedule 1A into the 2000 Act. New section 4A places a new duty on the LSC to secure the provision of proper (rather than reasonable) facilities for education and training to enable adults who lack particular skills to obtain relevant qualifications. The qualifications will typically be those at relatively low levels of learning, which are designed to equip people with basic and intermediate skills for work and everyday living.
96.The broad standards of achievement (or “learning aims”) for this purpose are set out in Schedule 1A. They are level 1 literacy, entry level 3 numeracy and level 2. The Secretary of State may specify in regulations the qualifications to which the duty applies.
97.The duty will apply only to a learner’s first qualification at the specified level. For example, the LSC 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 (under section 4C(1)) 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.
98.Facilities are proper if they are of a sufficient quantity and adequate quality to meet the reasonable needs of individuals. In performing its duty, the LSC must take account of a number of factors, such as the education and training needs in different sectors of employment, and of any guidance issued by the Secretary of State. The LSC must also act with a view to encouraging diversity in education and training and to increasing opportunities for individuals to exercise choice.
99.For example, in respect of courses for which there are high levels of demand fairly consistently across the country – such as NVQ level 2 in Health and Social Care – the duty would be satisfied if provision for learners were accessible widely across many institutions and with a good regional distribution. This position would differ where demand both for courses and for skills is more limited. For aerospace courses, for example, the LSC must have regard to proportionate expenditure; the duty may require a more limited offer of places concentrated in geographical areas with links to the industry. Learners seeking to access these more unusual courses may need to travel to take up courses or the offer of a course which is analogous to the aerospace qualification, for example, engineering.
100.Section 4B places a duty on the LSC to ensure that learners will not be liable to pay fees for courses of study provided as a result of section 4A. The learner must be at least 19 years of age and following a course of study for a specified qualification as set out in Schedule 1A (at level 1 literacy, entry level 3 numeracy or level 2). Fees include the course fees, but the Secretary of State may also specify in regulations that other fees relating to the course, e.g. examination fees and costs of diagnostic assessment, are included. Costs which are not fees (for example, the costs of buying books, equipment and materials) will not come within the scope of the duty.
101.There is also a duty for the LSC to secure the provision of sufficient financial resources for the purpose of paying tuition fees for people aged 19 up to 25 years old to attain their first level 3 qualification.
102.The Secretary of State may amend the relevant provisions of section 4B so as to vary the ages at which learners qualify for financial help under that section. This will be subject to the affirmative resolution procedure.
103.The Schedule sets out the learning aims for people aged 19 or over i.e. the broad categories from which qualifications may be specified as qualifications for which the LSC must secure proper facilities (new section 4A) or pay for tuition fees (new section 4B).
104.These categories are:
level 1 literacy (the level of attainment at which an adult’s skills are functional and sufficient for operating effectively in day-to-day life);
entry level 3 numeracy (the functional level of attainment for numeracy);
level 2;
level 3.
105.The Secretary of State may by regulations specify particular qualifications or descriptions of qualifications which are to fall within scope of the duties. Qualifications which might be specified through regulations include the following:
level 1 literacy
level 1 certificate in Adult Literacy
entry level 3 numeracy
entry level 3 certificate in Adult Numeracy
level 2
level 2 National Vocational Qualifications (NVQs)
Vocationally Related Qualifications (VRQs) at level 2 of 325 guided learning hours or more
level 3
2 or more A-levels
1 or more A-level double Award
level 3 NVQs
level 3 Diplomas
International Baccalaureate
Access to HE certificate/diploma
106.The Secretary of State may amend the Schedule in order to specify that a particular category of qualification is no longer within scope of the duties or to add a new category of qualification. This will be subject to the affirmative resolution procedure.
107.These sections allow for the sharing of information between Her Majesty’s Revenue and Customs (HMRC), the Department for Work and Pensions (DWP), the Department for Innovation, Universities and Skills (DIUS) and the devolved administrations. The information will be shared in order to assess: the effectiveness of education or training of those aged 19 and over; policy in relation to the provision of such education or training; and policy in relation to social security or employment as it affects the provision of, or participation in, such training or education.
108.Section 87allows for information about individuals’ benefit to be disclosed to the devolved administrations. It also allows information about individuals’ learning activities to be disclosed in either direction between the devolved administrations and the Secretary of State (DIUS and DWP). This reflects the devolved nature of education and training. Finally, it allows for information relating to education and training and information relating to benefits to pass between DIUS and DWP. Section 87 also defines the important concept of an assessment function in subsection (4) which is then referred to in sections 88(1), 89(1), 89(2) and 90(2).
Education and Skills Act 2008