Children’s Wellbeing and Schools Act 2026 — Delegated Powers Memorandum: Memorandum from the Department for Education to the Delegated Powers and Regulatory Reform Committee

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CHILDREN’S WELLBEING AND SCHOOLS BILL

Memorandum from the Department for Education to the Delegated Powers and
Regulatory Reform Committee

Contents
A. INTRODUCTION
B. PURPOSE AND EFFECT OF THE BILL
C. DELEGATED POWERS
Part 1 – Children’s Social Care Measures
Part 2 – Schools Measures
Part 3 – General Provisions
ANNEX A. SUMMARY OF DELEGATED POWERS
ANNEX B. NON-LEGISLATIVE POWERS
A. INTRODUCTION

1. This memorandum has been prepared for the Delegated Powers and Regulatory Reform
Committee (“DPRRC”) to assist with its scrutiny of the Children’s Wellbeing and Schools
Bill (“the Bill”). The Bill contains 56 provisions that include legislative delegated powers.
This memorandum identifies the provisions of the Bill that confer powers to make
delegated legislation. It explains in each case why the power has been proposed, and
explains the nature of, and the reason for, the procedure selected. Each delegation is
listed in Annex A. This memorandum also lists non-legislative administrative functions
that may be of interest to the Committee in Annex B.
B.
PURPOSE AND EFFECT OF THE BILL

2. The Bill will put children and their wellbeing at the centre of the children’s social care and
education systems and make changes so that they can achieve and thrive.
3. The Bill is structured in 3 parts – Part 1 Children’s Social Care, Part 2 Schools and Part 3
General Provisions – and 2 Schedules.
Summary of regulation making powers in the Bill
4. The Bill intends to achieve the following seven things. Each of these areas contains
clauses with legislative delegated powers.

A. Keep families together and children safe by mandating the offer of family group
decision-making, improving information sharing across and within agencies,
strengthening the role of education in multi-agency safeguarding arrangements and
implementing new multi-agency child protection teams. In relation to this, the Bill
includes four clauses under the Bill headings ‘Family group decision-making’ and
‘Child protection and safeguarding’ and one clause under the Bill heading
‘Employment of children’. There are 8 delegated powers under these headings, 7
within ‘Child protection and safeguarding’, concerning the inclusion of childcare and
education agencies in safeguarding arrangements, information-sharing and

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consistent identifiers and multi-agency child protection teams, and 1 which gives the
Secretary of State a power to make regulations in relation to child employment.

B. Support children with care experience to thrive by extending the virtual school
head role to children in kinship care and those with a social worker, and requiring
local authorities to provide staying close support to eligible care leavers up to the age
of 25 where their welfare requires it (staying close support means support to help find
and keep suitable accommodation and access services). In relation to this the Bill
includes four clauses under the Bill heading, ‘Support for children in care, leaving
care or in kinship care and carers’. There are no delegated powers under this
heading.

C. Make the care system child-centred. In relation to this, the Bill includes:

i. One of the two clauses under the heading, ‘Accommodation of children’’,
which includes 1 delegated power. This concerns an extension of powers to
provide a statutory framework to authorise the deprivation of liberty of children
in accommodation provided for the purposes of care and treatment.

ii. Two clauses under the heading, ‘Care workers’, concerning regulations about
the use of agency workers for children’s social work, ill-treatment or wilful
neglect of children aged 16 and 17. There is 1 delegated power in these
clauses concerning agency workers.

D. Improve the children’s social care placement market and tackle profiteering. In
relation to this, one of the two clauses under the heading ‘Accommodation of
children’, contains 1 delegated power which concerns the strategic accommodation
functions that can be exercised by two or more local authorities in regional co-
operation arrangements (known as regional care cooperatives). It also includes
seven clauses under the Bill heading, ‘Regulation of children’s homes, fostering
agencies etc’. There are 8 delegated powers in these clauses, concerning provisions
such as financial oversight of relevant providers and their parent undertakings and
the power to limit profits of relevant providers.
E. Remove barriers to opportunity in schools to support all children to achieve
and thrive. In relation to this, the Bill includes three clauses under the headings
‘Breakfast clubs etc’ and ‘School uniforms’. There are 3 delegated powers all within
‘Breakfast Clubs’, which include: conferring a new duty on the Secretary of State to
issue statutory guidance; a power to designate a school as one to which the duty to
secure free breakfast club provision does not apply (for exceptional cases only where
running a breakfast club would not be feasible, given a school’s circumstances); and
a power to issue regulations on the application process for seeking an exemption to
the new duty.
F. Create a safer and higher-quality education system for every child. In relation to
this the Bill includes sixteen clauses under the headings ‘Children Not in School’,
‘Independent educational institutions’, ‘Inspections of schools and colleges’, and
‘Teacher misconduct’. There are 18 delegated powers across these clauses. They
include provisions for a duty for local authorities to have and maintain Children Not in
School registers, changes connected to the regulation and inspection of independent
education institutions, and provisions to improve the investigation of serious teacher
misconduct. Many of these provisions were originally in the Schools Bill 2022, though

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changes and additions have been made. For example, additional Children Not in
School measures which did not appear in the Schools Bill include a requirement for
parents to obtain local authority consent before children are removed from school to
be home educated if they are subject to ‘section 47’ enquiries, on a child protection
plan, or attend a special school maintained by a local authority, special academy or
non-maintained special school, or attend an independent special school under
arrangements made by a local authority; and amendments to the School Attendance
Order process. These changes will support the government’s commitment to ensure
all children are safe and raise school standards for every child by supporting
attendance and quality education across all institutions.

G. Drive high and rising standards for every child. In relation to this, the Bill includes
one clause on ‘School teachers' qualifications and induction’, which contains 2 new
delegated powers and 2 amendments of existing delegations. The next four clauses
on ‘Academies’ contain 3 delegated powers, concerning following the National
Curriculum, extending the power to direct pupils off-site to academies, issuing
compliance directions to academy trusts and converting the duty to issue academy
orders to a power. The next two clauses under the Bill heading ‘Teachers’ pay and
conditions’ contain 3 delegated powers. Lastly, there are 8 delegated powers across
nine clauses concerning ‘School places and admissions’ and ‘Establishment of new
schools’.
Henry VIII powers
5. The Bill contains 3 powers to amend primary legislation. These “Henry VIII powers” are
all subject to the affirmative parliamentary procedure.
Abbreviations
6. This Memorandum contains the following abbreviations:

“AA 2010” means Academies Act 2010
“CA 1989” means Children Act 1989
“CA 2004” means Children Act 2004
“CIECSS” means Chief Inspector of Education, Children's Services and Skills
“CMA” means Competition and Markets Authority
“CSA 2000” means Care Standards Act 2000
“CSC” means children’s social care
“CSWA 2017” means Children and Social Work Act 2017
“CYPA 1933” means Children and Young Persons Act 1933
“the Department” means the Department for Education
“DPA” means Data Protection Act 2018
“EA 1996” means Education Act 1996
“EA 2002” means Education Act 2002
“ESA 2008” means Education and Skills Act 2008
“EIA 2006” means Education and Inspections Act 2006
“GDPR” means General Data Protection Regulation
“HRA” means Health Research Authority
“SSFA 1998” means School Standards and Framework Act 1998

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C. DELEGATED POWERS

7. The Bill contains 56 provisions that include legislative delegated powers, which are set
out in Annex A. The Department has considered the use of powers in the Bill as set out
below and is satisfied that they are necessary and justified.

8. This memorandum refers to other powers in the Bill which do not confer powers to make
delegated legislation, but which relate to non-legislative administrative functions that may
be of interest to the Committee. These are listed and summarised separately in Annex B.
Part 1 – Children’s Social Care Measures
Clause 2(4): Amendment of s.16E (new subsection (2A)(b)) of CA 2004 – Power to
make regulations designating childcare or education relevant agencies
Power conferred on: the Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

Context and purpose
9. This clause amends section 16E of the CA 2004 to strengthen multi-agency cooperation
between the statutory safeguarding partners (comprised of the local authority, an
integrated care board and the chief officer of police for a local authority area) and
education and childcare relevant agencies.

10. Clause 2 amends section 16E of the CA 2004 to require the safeguarding partners to
include “those relevant agencies which are designated childcare and education
agencies” in their safeguarding arrangements. Existing section 16E(3) of the CA 2004
defines “relevant agency” as a person who is specified in regulations made by the
Secretary of State and exercises functions in relation to children in a local authority area.
New section 16E(2A) provides that the Secretary of State may designate a relevant
agency as a “designated childcare or education agency” if that relevant agency has
functions in relation to the provision of childcare or education (or both).
Justification for the power
11. The Department considers that it is appropriate to seek a delegated power to designate
certain relevant agencies as childcare or education agencies for the purposes of the new
provisions. Only childcare or education agencies that have already been specified as
relevant agencies in accordance with s.16E(3) can be designated under the new power.
The list of relevant agencies can be amended by regulations under existing powers and
if childcare and education agencies were to be specified on the face of the Bill it would
be necessary to amend the primary legislation to reflect any changes to those
regulations.
Justification for the procedure
12. Any regulations made under this new provision will be subject to the affirmative
resolution procedure.

13. This approach is consistent with the approach taken in relation to the existing regulation
making power in section 16E(3) in respect of relevant agencies.

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Clause 3(2)New section 16EA(2)(b) of CA 2004 – Power to make regulations in
relation to the support provided by multi-agency child protection teams

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

Context and purpose
14. This clause requires the safeguarding partners for any local area in England to establish
a multi-agency child protection team (hereafter MACPT) for their area. MACPTs are a
new type of multi-agency team which will work together to support local authorities to
carry out their core child protection functions. This clause confers a power on the
Secretary of State to make regulations prescribing the support the MACPT is to provide.
The power is limited to setting out support in connection with the local authority’s
discharge of its duties set out in s47 of the CA 1989.

Justification for the power
15. Setting out the detailed operation of MACPTs on the face of the Bill would not allow for
the flexibility required. MACPTs are a new type of multi-agency team, and so the way in
which the support functions will operate will develop organically over time to take
account of evidence gathered from the Families First for Children Pathfinder and
feedback from the safeguarding partners running the existing multi-agency safeguarding
arrangements pursuant to Children Act 2004 duties and statutory guidance, Working
Together to Safeguard Children 2023 (Working Together). Different provision may be
needed in different areas to be responsive to the differing harms children are facing and
the clauses provide for consultation to be carried out so that those needs can be taken
into account before making the regulations.

16. The power is expressly limited by the need for the support to be in connection with the
local authority’s discharge of its duties set out in s47 CA 1989. The support that might
possibly be provided in future which will require specifying include specific details of how
the MACPTs are expected to assist the local authority in its s47 duties, such as: delivery
of the day-to-day details of child protection set out in the guidance, Working Together to
Safeguard Children 2023; details of the provision of resources to the MACPT; and
decision-making frameworks for the MACPT.

Justification for the procedure

17. Regulations made under these new provisions will be subject to consultation and the
affirmative resolution procedure. The Department considers that this will ensure an
appropriate level of scrutiny, given that MACPTs are a new form of multi-agency team
with members drawn from different sectors.

Clause 3(2)New section 16EA(5) and (6) of CA 2004 – Power to make regulations
prescribing the requirements for persons nominated as members of the multi-agency
child protection team

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

Context and purpose

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18. The provisions set out the persons who should make up the multi-agency child protection
teams. They must be persons nominated by the safeguarding partners. The persons
must satisfy any requirements as may be prescribed by the Secretary of State in
regulations. This will include such matters as their minimum qualifications or experience.
This will ensure a consistent standard of expertise is applied to MACPTs nationally.

Justification for the power
19. Operational and detailed matters such as this are appropriate for delegation to
regulations. A level of flexibility is required to accommodate developments in sector
standards (for example if certain qualifications become obsolete) or developing evidence
about what requirements give rise to the most effective teams, gathered from the
Families First for Children Pathfinder, which is testing family help and multi-agency child
protection reforms, including MACPTs.

Justification for the procedure
20. Regulations made under these new provisions will be subject to consultation and the
affirmative resolution procedure. The Department considers that this will ensure an
appropriate level of scrutiny, given that MACPTs are a new form of multi-agency team
with members drawn from different sectors.

Clause 3(2)New section 16EB(2)(a) of CA 2004 – Power to designate the relevant
agencies under a duty to enter into a co-operation memorandum

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative
Context and purpose
21. The provisions set out that, if notified to do so by the safeguarding partners, the relevant
agencies must put a memorandum of co-operation in place. The memorandum will set
out how the relevant agency and the safeguarding partners, through their MACPT, will
work together for the purposes of supporting the local authority in the discharge of its
duties under s47 CA 1989. The relevant agencies in scope will be designated from those
already under a duty to act in accordance with the safeguarding partners’ arrangements,
pursuant to the current s16E(1) and s16G(4) of the CA 2004. Relevant agencies for the
purposes of the CA 2004 are specified in the Child Safeguarding Practice Review and
Relevant Agency (England) Regulations 2018.

Justification for the power
22. Relevant agencies which are considered key to child protection enquiries and activity will
be specified. These will be selected as a focussed sub-set of relevant agencies more
broadly. This will bring national consistency on the key relevant agencies, which can
then be selected as appropriate by safeguarding partners at a local level for
memorandums. It is possible that the range of agencies needed will vary over time as we
understand more about how MACPTs operate and which agencies they need to engage
with to deliver their day-to-day operations in supporting the local authority in discharging
its duties under delivering its section 47 CA1989 duty. Evidence from the Families First
for Children Pathfinder will inform the development of the regulations.

Justification for the procedure
23. Regulations made under these new provisions will be subject to consultation and the
affirmative resolution procedure. The Department considers that this will ensure an

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appropriate level of scrutiny and enable accurate decision making ensuring only those
relevant agencies which are most likely to increase the impact of the MACPT on child
protection are included.

Clause 4New section 16LB(1) of CA 2004 – Power to specify a description of
consistent identifier for children by regulations

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose

24. This clause enables the Secretary of State to specify a description of ‘consistent
identifier’ for children by regulations. ‘Consistent identifier’ means any identifier (such as,
for example, a number or code used for identification purposes) that (a) relates to an
individual, and (b) forms part of a set of similar identifiers that is of general application.

Justification for the power
25. The Department considers that it is appropriate to seek a delegated power to specify the
number or code to be used as a consistent identifier for children as it is not yet known
which identifier will be most appropriate for these purposes. It is also possible that a new
consistent identifier may need to be substituted at some point in the future, in particular if
for any reason that which is specified (for example the NHS number) is one which falls
out of general use, or does not work for the cohort of children to which it will apply. This
is consistent with the approach taken in relation to the specification of a consistent
identifier in relation to adult health and social care, which is also done by way of
regulations subject to the negative procedure.

Justification for the procedure

26. Regulations under this new provision will be subject to the negative resolution procedure.
The Department considers that this will ensure an appropriate level of scrutiny whilst also
providing enough flexibility to enable changes to be made quickly where needed. This
approach is consistent with the Health and Social Care Act 2012 (Consistent Identifier)
Regulations 2015, which were made under s.251A(1) of the Health and Social Care Act
2012 and specify the NHS Number as a consistent identifier for adult health and social
care.

Clause 4New section 16LB(10) of CA 2004 – Power to make regulations designating
persons required to include the consistent identifier when processing information
about a child for the purposes of safeguarding or promoting welfare
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose

27. This clause enables the Secretary of State to designate the persons required to include
the consistent identifier when processing information about a child. The Secretary of
State may specify the persons to whom the requirement applies from a list set out on the
face of the legislation. That list is the same as the list of relevant persons to whom the
duty to share information in new section 16LA(2) applies. It is expected that only local

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authorities will be in scope of the requirement when the number is first specified,
although it may be extended to other agencies in the future.

Justification for the power
28. The Department considers that it is appropriate to seek a narrow delegated power to
specify the persons required to record the number, from a list which is on the face of the
legislation. Those persons will be required to record the number when processing
information about a child where the inclusion of the number is likely to facilitate the
exercise by any person of a function that relates to safeguarding or promoting the
welfare of children. The Department has committed to various pilots which will assess
the extent to which various agencies involved in CSC are able to integrate a consistent
child identifier into their data systems, and whether this would improve information
sharing and interoperability. The power will provide the flexibility to specify certain
agencies that will be required to use the number, for the purposes set out on the face of
the legislation, as and when there is evidence that the use of the number by those
agencies is likely to improve information sharing, and they are ready to begin to use it.

Justification for the procedure
29. Regulations made under this provision will be subject to the negative resolution
procedure.

30. The Department considers that this will ensure an appropriate level of scrutiny whilst
providing the flexibility for changes to be made quickly where needed. The power to
designate the persons required to include the number when processing information
about a child is limited to the list of bodies set out in new section 16LB(11), meaning that
Parliament will have had the opportunity to scrutinise the list of persons who may be
designated in regulations.

Clause 4New section 16LA(6) and 16LB(12) of CA 2004 – Duty to have regard to
guidance in relation to the duty to share information and use of consistent identifiers
for children

Power conferred onSecretary of State
Power exercisable by: Statutory Guidance
Parliamentary Procedure: None

Context and purpose
31. Relevant agencies must have regard to any guidance given by the Secretary of State in
relation to the duty to share information and use the consistent identifier in relation to
children.

Justification for the duty
32. This duty is necessary to ensure that relevant agencies are provided with clear and
accessible information and guidance to support them to comply with the duty to share
information and record the consistent identifier. The guidance will help ensure that all
relevant agencies are aware of the type of information they may need to share and how
to share information in a way that is consistent with the HRA, UKGDPR and the DPA.
This will require detailed practical guidance which would not be appropriate to include in
legislation.

Justification for the procedure

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33. The Department’s view is that statutory guidance containing technical, operational or
practical details does not require parliamentary oversight. The intention is to consult in
relation to any guidance before it is issued, which will ensure that interested persons are
given the opportunity to give their views on the proposed guidance. Such consultation
will ensure a degree of stakeholder involvement and transparency short of parliamentary
scrutiny. This procedure will also enable the guidance to be regularly updated to reflect
experience gained as the new duties come into effect.

Clause 9(2)New section 22J(3)(f) of CA 1989 – Power to add to the strategic
accommodation functions by regulations that can be exercised by two or more local
authorities in regional co-operation arrangements
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative
Context and purpose
34. This measure will give the Secretary of State the power to direct two or more local
authorities to make arrangements to carry out their ‘strategic accommodation functions’
jointly, to direct one authority to carry out those functions on behalf of the others or to set
up a body corporate to support the local authorities in carrying out those functions. The
direction making power is a non-legislative administrative power addressed separately in
annex B. Sub-section (2) defines ‘strategic accommodation functions’ as:
a. assessing current and future requirements for the accommodation of children being
looked after by the local authority,

b. developing and publishing strategies for meeting those requirements,

c. commissioning the provision of accommodation for children being looked after by the
local authority,

d. recruiting prospective local authority foster parents and supporting local authority
foster parents,

e. developing, or facilitating the development of, new provision for the accommodation
of children being looked after by the local authority,

f. any other functions relating to a local authority’s duties under section 22A, 22C or
22G that are specified in regulations made by the Secretary of State.

35. New section 22J(3)(f) gives the Secretary of State a power akin to a Henry VIII power to
add to the above list of strategic accommodation functions by regulations.
Justification for the power
36. The Department has sought to achieve the right balance between confining the scope of
the delegated powers through primary provisions and leaving necessary matters of detail
to regulations. This is the first time the Secretary of State has sought to bring local
authorities together to collaborate in the delivery of their strategic accommodation
functions. Regional co-operation arrangements (known as Regional Care Co-operatives)
(RCCs) are currently being tested via pathfinders (pilots) in two local authority regions.
When the pathfinders are evaluated, the Secretary of State may need to prescribe
additional functions. There may also be a need for additional functions to be specified in

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the future depending on the needs of a particular area and to keep pace with the
changing children’s social care placements market. The power has been limited to one
which enables additional functions to be added to the list in the future. It does not enable
the Secretary of State to amend or remove any of the functions already listed in the
clause and so it is not a Henry Viii power. The Secretary of State’s power to specify
functions is limited by the need for those functions to relate to the local authority’s duties
under sections 22A, 22C or 22G of the CA 1989 (which are the duty to provide
accommodation for children in care, the duty to accommodate and maintain looked after
children and the general duty to secure sufficient accommodation for looked after
children).

Justification of Procedure

37. The Department’s view is that the inclusion of additional strategic accommodation
functions to the list of functions covered by RCCs is likely to be of particular interest to
Parliament, and, given that the power is akin to a Henry VIII power, the Department
considers that the affirmative procedure is appropriate. In addition, the clause contains a
requirement for the Secretary of State to consult with appropriate persons, including local
authorities, before making any regulations as a means of ensuring stakeholder views are
gathered.

Clause 10(6) and (7)Amendments to s.25 of CA 1989 – An extension of powers to
relevant accommodation for deprivation of liberty

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose
38. This clause enables the family court under section 25 CA 1989 to authorise the
deprivation of liberty of a child in accommodation where the primary purpose of the
accommodation is to provide care and treatment and where restrictions that amount to a
deprivation of liberty, if required to keep the child safe, can also be imposed. The current
provision made by s.25 CA 1989 is to authorise deprivation of liberty of children for
certain welfare reasons in secure accommodation which is designed for or has as its
primary purpose deprivation of liberty. There are existing powers to enable the Secretary
of State to set out in regulations the maximum period or a further period that a child can
be kept in secure accommodation, provided that applications to the court may only be
made by local authorities in England or Wales and make provision to apply s.25 CA 1989
with or without modifications or disapply s.25 CA 1989 to children of a description as
prescribed in regulations. Additionally, the existing powers enable the Secretary of State
to set out in regulations that a child may only be placed in secure accommodation that is
of a description prescribed and this may include by reference to whether it has been
approved by the Secretary of State. These existing powers as regards secure
accommodation will be extended to also apply to relevant accommodation that is
provided for care and treatment purposes.

Justification for the power
39. These powers are consistent with the existing powers in respect of secure
accommodation and will allow for a more tailored and specific approach to the use of this
new type of accommodation which is being facilitated through this new measure. It would
not be practicable to include such requirements in the primary legislation as they will
likely need to be changed once it is clearer what sort of accommodation is being brought

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on stream for this purpose and the cohorts of children that local authorities are looking to
place in this alternative accommodation using these new powers.

Justification for the procedure
40. The procedure will allow sufficient oversight by Parliament and allow enough flexibility to
make changes quickly where needed. The procedure is also consistent with the existing
procedure for secure accommodation and therefore would be appropriate for this new
type of accommodation to be provided for by this measure.

Clause 11(4)New subsection (2A) of section 22 of CSA 2000 – Extending the power to
make regulations specifying when a person is not fit to carry on an establishment or
agency

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose
41. Clause 11 provides powers to the CIECSS to require improvement action to be taken by
a parent undertaking in relation to the parent undertaking’s subsidiary or subsidiaries
registered with the CIECSS to carry on an establishment or agency where the CIECSS
has a reasonable suspicion that there are grounds to cancel its or their registration in
respect of at least two establishments or agencies. Clause 13 introduces a financial
oversight regime that will also apply to parent undertakings.

42. The existing power in section 22 CSA 2000 to make regulations in relation to the carrying
on or management of establishments and agencies is amended by this measure. Section
22(2)(a) of the CSA 2000 already enables the Secretary of State to make provision by
regulations as to the persons who are fit to carry on or manage an establishment or
agency such as a children’s home (see for example regulation 26 of the Children’s
Homes (England) Regulations 2015) or an independent fostering agency. The existing
power could be used to prescribe that breaches of the provider oversight or financial
oversight requirements by a registered provider go to a person’s fitness for the purposes
of carrying on or managing an establishment or agency. Clause 11(4) makes it explicit
that a breach of a provider oversight or financial oversight requirement by a parent
undertaking of a person carrying on an establishment or agency may also be included in
regulations as grounds for the CICESS to conclude that the person is not fit to do so.

Justification for the power
43. This fits in with the broader powers in the CSA 2000 to regulate the carrying on and
management of establishments and agencies by way of regulations rather than being set
out in the primary legislation and will allow the Secretary of State discretion to include
such provision as regards the impact of actions taken against a parent undertaking.
Including this within existing powers also carries a duty on the Secretary of State to
consult with persons he or she considers appropriate before making regulations where
they are considered to effect a substantial change. Further, all provisions relating to the
fitness of registered providers are contained in regulations. It would look out of place for
one particular aspect of fitness to be contained in primary legislation when all others are
contained in secondary legislation.

Justification for the procedure

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44. The procedure is already provided for in the CSA 2000 in respect of this existing power
which is being amended. Again, it would look out of place if this addition were to apply a
different procedure to one regulation of many and may lead to an assumption that any
future requirements must adopt the affirmative resolution procedure. It provides sufficient
parliamentary scrutiny opportunity and carries with it a duty to consult before the
regulations are made, where the change is substantial.

Clause 12(2)New section 30ZD(1) of CSA 2000 – Power to make provision requiring
the CIECSS to publish information about monetary penalties imposed
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose

45. This clause provides CIECSS with a power to apply monetary penalties, as an
alternative to criminal prosecution, in respect of specific offence provisions under the
CSA 2000 and in respect of breaches of requirements imposed on parent undertakings.
The key principles of the monetary penalties powers will be set out in the primary
legislation: the behaviour that will lead to a monetary penalty (specific offences already
subject to criminal prosecutions under Part II CSA 2000), the standard of proof required,
the maximum amount of the monetary penalty, the process for the issue of the monetary
penalty and the applicable appeals process. Prosecutions can take a long time and are
not being used by CIECSS. Non-compliance figures indicate criminal sanctions are not
an effective deterrent. Monetary penalties are designed to be a more practical solution
for Ofsted and are considered likely to have a better deterrent effect.

46. This delegated power allows the Secretary of State to set out by regulations provision
requiring the CIECSS to publish information about monetary penalties imposed by the
CIECSS which may include information identifying the persons on whom the monetary
penalties have been imposed.

Justification for the power
47. We consider that it is appropriate to seek a delegated power to specify the detail of the
information to be published by the CIECSS as this is new enforcement provision and at
this stage it is not clear exactly what information it would be helpful to require the
CIECSS to publish. It may also be the case that the information that is to be published
changes as the power is used and therefore it is not feasible for the matters to be
included in the primary legislation as that would not allow for changes to be made
speedily.

Justification for the procedure
48. Regulations made under these new provisions will be subject to the negative resolution
procedure, which the Department considers will ensure an appropriate level of scrutiny
whilst also giving enough flexibility to enable changes to be made quickly where needed.
This approach is consistent with other powers in the CSA 2000.

Clause 13(2)New section 30ZE(2) of CSA 2000 – Power to prescribe conditions as to
the application of the Financial Oversight Scheme
Power conferred on: Secretary of State
Power exercisable by: Regulations

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Parliamentary ProcedureAffirmative

Context and purpose
49. The Secretary of State will have the power to prescribe in regulations a set of conditions
which, if met, may subject a registered provider of children’s homes or independent
fostering agencies, or their corporate owners, to the Financial Oversight Scheme. While
the conditions will be set out in affirmative regulations, the relevant clause provides that
they may include certain characteristics such as the number of establishments owned by
the relevant person, or market share. The Secretary of State will then determine in each
case whether the conditions are met, and notify providers of her or his decision. The
current policy intention is to apply the subsequent provisions of the oversight scheme to
the largest or most “difficult to replace” children’s social care providers and their
corporate owners.
Justification for power
50. It is not possible to set the conditions which will render a relevant provider or its parent
undertaking subject to the oversight scheme on the face of the Bill, because those
conditions will be both variable and subject to change over time. Regulations will provide
the Department with the requisite flexibility to enable us to respond quickly and
sensitively to market changes (such as the percentage of market share providers have or
their geographic concentration) in order to make the provision operate as intended. The
current policy intention is to capture those providers and undertakings which are
particularly “difficult to replace” by reference to their size (e.g. the number of
establishments and agencies they run), the number of looked after children they
accommodate or provide services for and their market share either nationally or by
reference to a particular geographic area (with these being matters to which the
conditions may relate, as set out in the Bill). However, the market is subject to constant
fluctuation, with non-local authority providers entering and exiting it constantly, and with
the picture of both needs and provision from local authority to local authority changing
constantly. When it comes to prescribing particular conditions for the application of the
scheme – such as the percentage of establishments operated, or children looked after in
a particular area in comparison with total provision – we need to be able to adjust the
precise conditions applicable to certain areas, so that we have the right ones in place in
each part of the country.

51. The power is limited by an express requirement for the Secretary of State to have regard
to the public interest in securing that providers, or the relevant provider group to which
they belong, are subject to financial oversight if they occupy a position of strategic
significance.
Justification for procedure
52. It is accepted that these regulations setting conditions for the scheme to apply are
sufficiently important in nature for the affirmative procedure to apply in each case.
Clause 14(2): New section 30ZK(1) to CSA 2000 – Power to limit profits of relevant
providers
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

14

Context and purpose
53. The purpose of these measures is to bring some level of control to levels of profit arising
from the accommodation or placement of our most vulnerable children, by enabling the
Secretary of State to prescribe a cap to the levels of profit made by non-local authority
providers of children’s homes and independent fostering agencies. While the
government acknowledges the important role of profit-making private provision within the
market, it wants to bring an end to profiteering. This Bill provision confers on the
Secretary of State a power to prescribe appropriate maximum levels of profit by way of
regulations (although the present Secretary of State does not intend to do so until it is
evident whether other market shaping measures, both legislative and non-legislative,
have had an effect).
Justification for power
54. There are three principal reasons why a maximum profit level cannot be set out on the
face of the Bill. The first is that the word “profit” is not necessarily a universally
understood concept on its own. There are different possible measures of profit, all
involving different complex methodologies, with some being accepted as more suitable
for some businesses, and others for others. The CMA suggested eight possible different
measures in its 2022 report. The Department would wish to consult widely (consultation
with local authorities and representatives of providers is a Bill requirement), including
with economic experts and the children’s social care sector, as well as providers
themselves, before arriving at one or more preferred models.

55. The second reason is that the power to prescribe a profit cap is intended to signal to
providers that a cap will be introduced in the future, if their behaviour does not change
now. The government has set out a clear strategy for how it intends to rebalance the
children’s social care placements market, which consists of other legislative and non-
legislative measures. It is only if these other measures are unsuccessful in reining in
profiteering that the Secretary of State would use the power to cap profits.

56. The third reason is that the children’s social care market fluctuates greatly, with varying
levels of supply and demand affecting the costs that providers are able to charge. Given
that the Secretary of State does not intend to use the power to cap profits immediately,
market conditions at the time of introduction will inevitably be different than they are now,
including as a result of the other market intervention measures being implemented. The
Secretary of State would need to consider market conditions, and the result of the
consultation required before introduction of the cap, before determining the appropriate
level at which to set the profit cap. It may also be necessary to adjust the prescribed cap
over time.

57. The provisions include on the face of the Bill a “necessity test” acting as a threshold to
the making of regulations, and matters to which the Secretary of State must have regard
which indicate the scope of the power. The necessity test is that the Secretary of State
may not make regulations prescribing a profit cap unless she or he is satisfied that it is
necessary to do so in the public interest of ensuring that children’s social care
placements are provided on terms which secure value for money. Then, when making
any regulations prescribing a profit cap, the Secretary of State must have regard to (i)
the interests of registered providers, including the opportunity to make a profit, (ii) the
welfare of children being looked after by local authorities in England, and (iii) the
interests of local authorities in England.

15

Justification for procedure
65. It is accepted that the affirmative procedure is appropriate for any regulations prescribing
a profit cap.
Clause 14(2): New section 30ZK(4), (5) and (6)(b) to CSA 2000 – Power for regulations
prescribing profit caps to make provision as to how profit is determined, including to
specify adjustments for ‘disguised profit arrangements’
Power exercisable by: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

Context and purpose
66. As stated above, there are many possible methodologies which could be used to
determine a profit figure which the Department will consult on. Further, the Department is
aware that when undertaking relevant calculations, some entities may seek to adopt
arrangements with the intention and effect of artificially reducing the level of their profits
for the purposes of avoiding exceeding the profit cap. In order to ensure that entities are
not able to circumvent the system in this way, the Secretary of State wishes to prescribe
those elements of revenue which will or will not be considered to be profit for the
purposes of the profit cap.
Justification for power
67. The Secretary of State needs to consider carefully which determination of profit is the
most appropriate one for this market. The one selected may not always be appropriate
and therefore we may need to be able to amend it or opt for a different one through
amending regulations. As to “disguised profits”, the Bill indicates at a high level what is
meant by the term disguised in the Bill – arrangements which it would be reasonable to
conclude have as their main purpose, or one of them, the reduction of profit. However,
the Department wishes to be in a position to respond flexibly to changes in practice over
time, in order to ensure that relevant behaviours are captured. The Department has
sought to provide additional protection to providers by including a necessity test in
subsection (7) (to the effect that the Secretary of State can only make regulations when
satisfied that it is necessary to do so, having regard to the public interest in securing
value for money). Finally, prior to making regulations, the Secretary of State must have
regard to certain matters set out in subsection (8), including both the welfare of looked-
after children and the interests of relevant providers.
Justification for procedure
68. It is accepted that the affirmative resolution procedure is appropriate for this power.
Clause 14(2): New section 30ZL (1) of CSA 2000 – Power to make provision about
annual returns from relevant providers
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose

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69. This power enables the Secretary of State to require, by regulations, each registered
provider to provide an annual return to enable compliance with the profit cap to be
assessed. Regulations may prescribe the content of the return and the time by which it
must be submitted.
Justification for power
70. Before it is known which methodology will be used to measure profit, it is not possible to
specify with precision either the information that will be required in the annual return and
when precisely it will be needed. This will therefore be prescribed by regulations, in the
event that it is decided that a profit cap is necessary and following consultation on which
profit methodology is appropriate.
Justification for procedure
71. The Department considers that the negative procedure is sufficient for these regulations
as the Secretary of State will be prescribing which technical information relating to
revenue and costs should be recorded in an annual return. It is not considered that
matters of this level of granular and technical detail are appropriate for more studied
review by Parliament.
Clause 15: New section 30ZM(1) of CSA 2000 and clause 16: new section 30ZN
introducing Schedule 1A, paragraph 4(2) of Schedule 1A CSA 2000 – Power to impose
monetary penalties
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

Context and purpose
72. The Secretary of State has the power on the face of the Bill to issue a monetary penalty
to a registered provider which is in breach of the profit cap regime, or to a provider or
parent undertaking which is in breach of the financial oversight scheme. A maximum
level of penalty that can be imposed by either the Secretary of State or by the CIECSS to
a parent undertaking in breach of the provider oversight regime may be prescribed in
regulations.
Justification for power
73. The detailed processes and procedures applicable to any decision to impose a monetary
penalty are set out on the face of the Bill – for example relating to a notice of intention to
issue a penalty, a time period for representations from the provider or undertaking, notice
of final decision to impose a penalty and time limits applicable to such a notice, and
rights of appeal to the First-tier Tribunal. Only a maximum amount of penalty may be
prescribed in regulations. This is to ensure that the maximum is pitched at the right level
and can be amended flexibly in response to changing market conditions. This may
require swift action unsuitable for primary legislation but necessary in order to ensure the
stability of continued provision for looked after children – for example, if it transpires that
the maximum set is so high that it drives providers from the market.
Justification for procedure
74. It is accepted that the affirmative procedure is appropriate where a maximum financial
penalty is prescribed.

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Clause 18(1)New section 32A(1) of the CSWA 2017 – Power to make regulations
regarding local authorities’ use of agency workers to carry out their children’s social
care functions
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

Context and purpose
75. New section 32A of the CSWA 2017, confers a power on the Secretary of State to make
regulations prohibiting English local authorities from entering into arrangements for
children’s social care work to be carried out by individuals who are not workers of the
local authority and imposing requirements in respect of those arrangements.

76. The policy intention is to alleviate significant affordability and stability challenges that
have arisen within the CSC workforce. Historically, most staff carrying out CSC functions
on behalf of local authorities were directly employed by those local authorities. However,
they are increasingly supplied to local authorities by third party agents. This practice has
had several adverse impacts, including a substantial increase in the cost to the public
purse and reduced consistency of care for vulnerable children.

Justification for the power
77. The Bill creates a power to make regulations in respect of individuals who are ‘agency
workers’; that is, individuals who are not in the direct employment of the local authority,
but are supplied by an intermediary, and are carrying out children’s social care work (as
defined) for the local authority. The regulations may require the local authority to ensure
that these individuals meet certain requirements, may make provision about the
management of such persons, and may make provision about the terms on which they
may be supplied, including the amounts which may be paid.

78. The regulations are likely to include technical details for each of the different types of
worker covered by the regulations. For example, minimum experience requirements will
differ depending on whether the worker holds a professional registration. For these
reasons, the regulations are likely to be detailed and lengthy, and to set out a level of
technical information inappropriate for primary legislation. In addition, the requirements
set out therein are likely to alter over time in response to changes both in, for example,
sector qualification norms and changing pressures in the workforce.

79. It is anticipated that the regulations themselves will include:

a. Governance arrangements for supply of workers via a project team or packaged
model to ensure that local authorities retain oversight and clear accountability
over the CSC practice of workers not in direct employment of the local authority
b. Minimum notice periods to reduce instability caused by abrupt departures
c. Minimum post-qualifying experience
d. Requirement to both seek and provide references for CSC staff

80. The CSC sector, and particularly the agency workforce within it, is an evolving area and
it will be necessary for regulations to be updated and amended in the future. A regulation
making power is needed in order that the legal framework can be quickly changed to
take account of the fast-evolving nature of the roles, the range of CSC workers and the
fluctuations in workforce pressures. It is imperative that the government can respond

18

swiftly and effectively to changes in workforce cost pressures and to ensure the financial
requirements relating to pay and labour costs remain relevant and robust.

Justification for the procedure
81. The Department considers that the affirmative procedure is appropriate given the
significance of the power to the CSC policy landscape, ensuring Parliament can debate
and approve the regulations to which local authorities are subject, and any later
amendments made to them. A statutory requirement to consult is included in the clause.
The Department also intends to consult extensively on draft regulations with local
authorities, employment businesses and with those working in CSC, along with other
interested parties to ensure that stakeholder views are taken into account and to avoid
any potential unforeseen consequences.

Clause 20(2)New sections 17A and 17B of CYPA 1933 – Power to make regulations in
relation to child employment in England

Power conferred onthe Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose
82. Part II of the CYPA 1933 makes provision for the employment of children. Section 18(1)
of the CYPA 1933 sets out age limits and restrictions on the hours that children can work
and the type of work they can do.

83. Local authorities currently have the power to make byelaws under s.18(2) of the CYPA
1933. Local authority byelaws may, to a limited extent, relax some of the restrictions in
s18(1), prohibit the employment of a child in any specified occupation and make
provision in relation to child employment permits.

84. This clause inserts sections 17A and 17B into the CYPA 1933 which will replace section
18 so far as the CYPA 1933 applies to children who are employed to work in England. It
includes a power for the Secretary of State to make regulations in relation to children
who are employed to work in England. This will replace the power currently conferred on
local authorities in England to make byelaws and is in substantially similar terms.

85. Regulations made under the new power may:

a. Prohibit the employment of a child to do work of a specified description (17A (1)(c)).
b. Make provision in relation to child employment permits, including providing
exceptions, making provision in relation to the application process, granting,
suspending or revoking permits, appeals against a decision to reject an application or
revoke a permit and record keeping (17A (3), (4) and (5)).
c. Authorise the employment of 13-year-old children in specified descriptions of light
work (17A (2)).
d. Specify the number of hours in each day, or in each week, and the times of a day at
which a child may be employed (subject to the restrictions in the CYPA 1933)
(17A(6)).
e. Specify the intervals to be allowed to children for meals and breaks when in
employment (subject to the restrictions in the CYPA 1933) (17A(6)).
f. Make provision about entitlement to leave (17A(6)).
g. Specify other conditions to be met in relation to the employment of children (17A(6)).

19

86. New section 17B makes further provision in relation to regulations made under section
17A.
Justification for the power
87. The power is necessary to ensure that the regulation of child employment keeps pace
with social change, and to make detailed provision in relation to a permit scheme which
the Department considers would be more appropriately dealt with in secondary
legislation.

88. A power to prohibit the employment of a child to do work of a specified description is
needed to ensure that the legislation keeps pace with social change. As the types of
work people do changes, it may be necessary to add new types of work to the list of
prohibited employment if that work is unsuitable for children. Conversely if the way in
which work is carried out changes such that new processes mean certain types of work
become suitable for children, previous restrictions may need to be removed. This will
ensure that children can take up suitable employment, whilst ensuring that their health,
development and education are not adversely affected. Any changes to the list of
prohibited employment will be subject to the overall safeguards in the CYPA 1933,
including that children are only permitted to do light work, as defined in that Act.

89. The power to further restrict the hours that children may work and to prescribe any other
conditions that must be observed in relation to their employment is limited in scope as it
is subject to the overarching safeguards in the CYPA 1933. It is intended to mirror the
current arrangements and to ensure that additional safeguards can be put in place to
safeguard children if needed.

90. The power for the Secretary of State to make regulations in relation to child employment
will replace a power which is currently conferred on local authorities in England to make
byelaws. It will therefore ensure greater consistency as it will ensure that the same
regulations apply across England, rather than having an approach which can lead to
variation across different local authorities.

91. A power to make provision in relation to a permit scheme is necessary to ensure that the
detailed arrangements for the scheme can be set out in secondary legislation. The
regulations will deal with the technical implementation of the policy and will make
detailed provision in relation to matters such as the application process, the information
that must be contained in the application and the form and content of the permit, which
are more suited to secondary legislation. It is also necessary to have enough flexibility to
make minor changes to the application process in light of practical experience once the
policy is implemented.

Justification for the procedure
92. Any regulations made under this new provision will be subject to the negative resolution
procedure.

93. The Department considers that this will ensure an appropriate level of scrutiny whilst also
giving enough flexibility to enable changes to be made quickly where needed. For
example, it may be necessary to add a new type of work or job to the list of prohibited
employment where evidence comes to light that it may be detrimental to a child’s welfare
to do that type of work.

94. This approach is also consistent with the approach taken in relation to the licensing of
children who take part in public performances and paid sport and modelling. The
Children (Performances and Activities) (England) Regulations 2014 (“the 2014

20

Regulations”) set out the licensing requirements which apply to children taking part in
these activities. They also set restrictions in relation to the time a child may spend
rehearsing or performing and the breaks they should receive etc. The power under which
the 2014 Regulations were made provides for a negative resolution procedure.
Part 2 – Schools Measures

Clause 21New section 551C of EA 1996 – Power to designate a school as one to
which the duty to secure free breakfast club provision does not apply
Power conferred on: Secretary of State
Power exercisable by: Notice
Parliamentary Procedure: None

Context and purpose
95. This clause gives the Secretary of State the power to designate a school as one in which
the duty to secure breakfast club provision does not apply, if satisfied that i) operating a
breakfast club at the relevant school would seriously prejudice the efficient use of
resources; or ii) operating the breakfast club at the relevant school would be contrary to
the best interests of the children registered at the school, having regard to the particular
circumstances of the school or of qualifying pupils at the school or any other relevant
factor.
Justification for the power
96. Through early engagement with stakeholders, the Department has identified that there
may be exceptional cases where the feasibility of running a breakfast club would be
totally disproportionate to the aims of the policy due to lack of parental demand or
practicalities which could not be overcome without significant expense and resources.
To ensure breakfast clubs remain viable and meet the intended policy aims, the
Department believes an exemption to the duty is required. The power will allow the
Secretary of State to designate a school as one which is exempt from the duty, only
where it can satisfy that operating a breakfast club at the relevant school would seriously
prejudice the efficient use of resources; or would be contrary to the best interests of the
children registered at the school – which represents a high bar to exemption. This
threshold test is on the face of the Bill along with the requirement on the appropriate
authority of the relevant school to consult with parents of children registered at the
school and the local authority before making an application. This is an administrative
function, and arguably non-legislative, but this is included in this part of the
memorandum because the exercise of this power has the effect of disapplying the
legislative provision. Any such designations must be published.
Justification for the procedure
97. We consider the lack of parliamentary procedure is appropriate because the Secretary of
State will be exercising an administrative function which does not normally require
parliamentary oversight. The decision will involve the weighing up of various factors
against the threshold test and will need to be made swiftly which may be problematic if
parliamentary oversight is required. The scope of the power is limited, and the threshold
must be met before the Secretary of State can exercise the power. Parliament will have
the opportunity to scrutinise the threshold test as the Bill passes through Parliament.
Additional restrictions and safeguards on the power include the requirement for the
appropriate authority of the relevant school applying for a designation to consult parents

21

and the local authority before applying; and the requirement on the Secretary of State to
keep a list of relevant schools in relation to which a designation has been made and
ensure the list is publicly available.
Clause 21: New section 551D of EA 1996 – Requirement on Secretary of State to issue,
and schools to have regard to, guidance on running breakfast clubs and designation
Power conferred on: Secretary of State
Power exercisable by: Statutory Guidance
Parliamentary Procedure: None

Context and purpose
98. This clause confers a new duty on the Secretary of State to issue statutory guidance to
the appropriate authorities of relevant schools in England with respect to — (a) the
discharge of the duty to secure breakfast club provision; (b) applications to be
designated as a school to which the duty to secure breakfast club provision does not
apply; and (c) the exercise by the Secretary of State of the power to designate a school
as one in which the duty to secure breakfast club provision does not apply. The
appropriate authority of a school must have regard to the guidance in connection with (a)
and (b).

99. The content of this guidance is still being determined, however it is likely to include key
principles the school should follow in designing the breakfast club; how schools should
go about meeting the School Food Standards; minimum childcare standards; and SEND
and allergies advice. It will also include guidance on how to make an application for
designation, such as details on the type of evidence needed to support an application
and the appropriate authority of the relevant school’s duty to take into consideration the
parent’s views before seeking designation. Lastly the guidance will also set out how the
Secretary of State will exercise the power to designate a school including guidance on
the threshold.
Justification for the power
100. The duty on schools to have regard to guidance on the breakfast club duty is
necessary to support schools in the implementation and maintenance of the minimum
provision breakfast club and to set out how schools may wish to discharge their
breakfast club duty. The diversity of school settings that will be subject to the duty (in
relation to size, delivery feasibility, building structure, etc.) means that flexibility is
essential to the successful implementation of this duty. Statutory guidance will help
support the accuracy and consistency of approach between schools. It will also allow
for regular and routine updates to the administration of the new duties based on
schools’ experiences in implementing them, to ensure that schools are able to operate
breakfast clubs as efficiently as possible. The guidance will be limited to the execution
of the statutory duty, although schools will be able, as they currently are, to offer
breakfast clubs which go beyond the statutory minimum.

101. It is necessary to have guidance on the process schools should follow when applying
to the Secretary of State to designate the school as one in which the breakfast club duty
does not apply, to ensure an efficient and effective administrative process. Providing
guidance on the procedure will allow the Secretary of State to provide detailed guidance
and maintain the ability to adapt swiftly if required. The prescribed procedure will be set
out in regulations and with some key information on the face of the Bill. Any failure of a
school to follow the guidance will not bar it from making an application nor will its
application be automatically refused.

22

102. It is necessary to provide guidance on how the Secretary of State will exercise the
power to designate a school to ensure that the process is transparent, fair and
accessible to schools. The aim of the guidance is to ensure schools and parents
understand the high threshold and the issues which may give rise to a designation
notice. It is our intention to engage in non-statutory consultation with schools and other
interested parties prior to issuing this guidance and thereafter consult as needed on any
substantive changes.

Justification for the procedure
103. The Department does not consider it necessary or appropriate for the statutory
guidance to be subject to any parliamentary procedure as this would prevent regular and
routine updates in response to feedback from schools. The guidance will not create any
new duties on schools, rather it will support and explain the duty to secure breakfast club
provision and the operational process of seeking a designation.

104. The threshold to designate a school as one in which the breakfast club duty does not
apply will be set out in the Bill and subject to parliamentary scrutiny. The purpose of the
guidance is to ensure that the administrative process of considering any application and
decision making is fair, transparent and easily accessible to school leaders, local
authorities and parents.
Clause 21: New clause 551C(3) EA 1996 – Regulations prescribing the application
process for seeking an exemption to the breakfast club duty
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose
105. This clause will grant the Secretary of State the power to issue regulations prescribing
the application process a school must adhere to when applying for an exemption to the
breakfast club duty.

106. The details of the application process are likely to include the prescribed form and
timeframe for making an application; any required evidence supporting the application;
and timeframes for challenging a decision.
Justification for the power
107. The power is required in order for the Secretary of State to prescribe certain
procedural elements to the application process to ensure the procedure is fair,
transparent and efficient. Failure to comply with the process will enable the Secretary of
State to refuse applications and will be an important procedural safeguard to ensure
that only exceptional cases which are fully evidenced meet the threshold test.
Justification for the procedure
108. The process to be prescribed is technical in nature and will not impose any
burdensome new duties on schools. The threshold for the exemption and the
requirement on the appropriate authority of the schools to consult with parents and the
local authority before applying for an exemption is set out on the face of the Bill and
subject to parliamentary scrutiny. Given the technical nature of the regulations we think
that the negative procedure gives Parliament the appropriate level of scrutiny for
procedural matters such as this.

23

Clause 25(2)New section 436B(6) of EA 1996 – Power to make regulations on when a
child is to be regarded as falling or not falling within eligibility for registration relating
to children not in school
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative first time and Negative thereafter

Context and purpose

109. This clause requires each local authority in England to keep a register of certain eligible
children in their area. The following types of children of compulsory school age will be
eligible: firstly those who are not registered as pupils or as students at ‘relevant schools’,
secondly children who are registered as a pupil at a relevant school but do not attend full
time and it has been agreed that they can receive some or all of their education
otherwise than at a school (for example, they are flexi-schooled or the local authority has
placed them in an alternative provision setting), and thirdly children who are a student
registered at a further education setting that provides education for children aged 14 and
above but they attend that setting on a part-time basis and do not also attend another
relevant school. Subsection (6) of new section 436B of the EA 1996 gives the Secretary
of State the power to make regulations clarifying whether certain cases fall within or
outside the second and third categories of eligibility and specifying circumstances where
a child is not eligible despite falling within the category.
Justification for the power
110. The second and third categories of eligibility are intended mainly to cover children who
are flexi-schooled and those who are in certain kinds of alternative provision or only
attend further education part time. However, it could, without further provision, also
capture children who have relatively short or minor absences, such as visits to museums
or for pupils to receive lessons off-site. This could cause children to move into and out of
eligibility rapidly and unpredictably, having the adverse effect of creating unnecessary
administrative work for parents and local authorities.

111. Cases of this kind are likely to be varied and fact-specific, potentially requiring detailed
exceptions not appropriate for primary legislation. They may also need to be adjusted
from time to time as different situations come to light, as flexi-schooling and alternative
provision can take many forms and it may not be possible to identify and describe them all
without observation of the system operating in practice.
Justification for the procedure
112. The Department has determined that the situations to be removed from scope using
this power will be technical and should only impact a low number of parents whose
children may have flexi-schooling arrangements or are placed in particular kinds of
alternative provision. The intention is to use this power to ensure children are not
unintentionally brought in scope when they should not be, for example where a school
has made arrangements for pupils to receive swimming lessons at their local leisure
centre.

113. It is expected that there could be some interest in the groups of children to be initially
ruled out of scope of the registers and so the Department’s view is that there would be
benefit in having full parliamentary scrutiny of the first exercise of this power. Thereafter,
we expect public interest to be minimal as any further changes to narrow the scope of
those eligible for registration are likely to be minor technical adjustments. The use of the
affirmative procedure the first time the powers are used, and use of the negative

24

procedure thereafter is considered to offer Parliament an appropriate level of scrutiny, as
this provision will be used to narrow the scope of application rather than to expand it.

Clause 25(2)New section 436C(2) of EA 1996 – Regulations prescribing specific
details to be included in registers

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

Context and purpose
114. This clause inserts a new section 436C into the EA 1996. Subsection (1) sets out the
information that a local authority must include in their register in relation to a registered
child. Subsection (2) confers on the Secretary of State the power to make regulations
specifying other information about the child’s education that must be included in the
register if the local authority has or can reasonably obtain that information.

Justification for the power
115. This power will allow for the provision of additional useful information which may be
pertinent to a child’s background and characteristics, enabling their needs to be better
met by a local authority. While the inclusion of the existing section 436C(1) information
about the child’s name, date of birth, home address and the name and home of address
of each parent, should be sufficient to support the existing duties of a local authority to
try to identify those children not in school and ensure they are receiving an efficient and
suitable education, there may be other types of data that it would be helpful to capture in
registers – for example, a child’s ethnicity and other key demographics, whether they
have special educational needs or have an education, health and care plan, reasons
behind their parent’s decision to home educate, or whether there are any safeguarding
concerns and linked current or historic local authority action. This would assist local
authorities in targeting support to those families who need it most, as well as support the
Department’s evaluation of the impact of the registration system and wider education
and children’s social care reform priorities. The data collected may need to be adjusted
as factors come to light, and more frequently than would be appropriate for primary
legislation. The ability to specify additional information in regulations is aligned with other
legislation stipulating what information is required to be collected in a register, such as
section 434 of Education Act 1996, which delegates power to prescribe the particulars to
be included in schools’ registers of pupils.

Justification for the procedure
116. The regulations will be subject to the affirmative resolution procedure to allow
Parliament the opportunity to debate the specific additional information that local
authorities will be required to record in their children not in school registers. While other
regulations outlining the data requirements to be included are typically subject to the
negative procedure, given that this will be the first time that local authorities will be
legally required to collect information on electively home educated children, and potential
stakeholder concerns about what data the register might hold, it is the Department’s view
that Parliament should be afforded greater parliamentary scrutiny when this power is
used.

Clause 25(2)New section 436C(4) of EA 1996 – Regulations about the keeping of
registers and how time is to be recorded by a parent or carer
Power conferred on: Secretary of State

25

Power exercisable byRegulations
Parliamentary Procedure: Affirmative first time and Negative thereafter

Context and purpose
117. Subsection (4) of new section 436C of the EA 1996 confers on the Secretary of State
the power to make regulations about various administrative matters concerning the
keeping of registers. This enables the Secretary of State, if necessary, to provide for
consistency among local authorities in areas such as how, and how often, they check
whether the information in the registers is still correct, how amendments are to be made
(for example whether any record should be made of the date of the amendment or the
reason for it), the form of registers (for example whether they should be kept
electronically), how time spent receiving education is to be recorded, whether and how
registers should be published, and whether a standard registration form should be used.

Justification for the power
118. Many local authorities already voluntarily maintain a register of children not in school or
electively home educated, developed based on local needs. Therefore, initially, there
may only be a need to issue guidelines to local authorities on how registers should be
maintained. However, to ensure the accuracy of data, the Department considers that the
option needs to be available for the Secretary of State to be able to prescribe processes
in relation to the maintenance and upkeep of registers. Such matters may also require
adjustment over time, for example to account for differences in local authority structure
or internal processes, so regulations are appropriate.

119. There is precedent for such matters to be prescribed in regulations, for example in the
case of sections 9D(3) and 9E(2) of the Representation of the People Act 1983, which
allow for regulations to make provision about the manner and format in which the annual
electoral canvass must be conducted, and how invitations to register on the electoral
register must be given.

120. There is similar precedent for how registers should be made available to certain
persons or published to be set out regulations, in sections 10A and 10B of Schedule 2 of
the Representation of the People Act 1983.

Justification for the procedure

121. The regulations would largely cover operational processes and procedures for local
authorities, which may be subject to further adjustment and minor changes over time.
The Department considers that the first time the power is used will be the point of
potential greatest impact to local authorities, and of interest to the parents of children
eligible for registration. Similar to the previous clauses, the Department considers there
would be benefit in full parliamentary scrutiny the first time the power is used, and that it
would be appropriate for the exercise of this power to be subject to the negative
procedure thereafter.

122. As any subsequent changes to the regulations will largely be operational and technical
in nature and likely follow engagement with local authorities and other interested
stakeholders, the Department considers that this will ensure an appropriate level of
scrutiny whilst also giving enough flexibility to enable changes to be made quickly where
needed.

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Clause 25(2)New clause section 436E(1)(a) of EA 1996 – Regulations setting a
threshold for providers of out-of-school education to provide information

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

Context and purpose
123. This clause inserts new section 436E of the EA 1996, which enables local authorities to
require certain persons to provide information. This applies only where a local authority
reasonably believes that the person is providing out-of-school education for more than a
prescribed amount of time to an eligible child without any parent of the child being
actively involved in the tuition or supervision of the child. The time threshold will be set in
regulations.

Justification for the power
124. This duty on out of school providers is necessary to ensure the registration system is as
effective as possible in safeguarding children from harm and ensuring children are not
missing education or attending illegal schools. It is also needed so that local authorities
can ensure the accuracy of their registers. The Department considers that there should be
a threshold at which this duty should apply, to ensure that it only targets those providers
most likely to be used by parents for a substantial proportion of their elective home
education.

125. Where this threshold is set may vary depending on the types of arrangements parents
are using and could be subject to change from time to time because the individual
parent arrangements can vary and because current data on how parents are using such
provision is limited. Observation of the system will likely be required on an ongoing basis to
ensure this threshold is set at an appropriate level, and to monitor potential impact on
providers.

Justification for the procedure
126. The regulations will be subject to the affirmative resolution procedure to allow Parliament
the opportunity to debate the threshold before the regulations initially come into force
and prior to any subsequent changes. The Department considers that changes to the
threshold could have a substantial impact on providers of out-of-school education, for
example by bringing many in or out of scope, and the exercise of powers would therefore
benefit from the parliamentary scrutiny afforded by the affirmative resolution procedure.
Clause 25(2): New section 436E(7) of EA 1996 – Regulations making exceptions to duty
to provide information
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

Context and purpose
127. Subsection (7) of new section 436E confers on the Secretary of State the power to
create exceptions to the duty to provide information when required by a local authority to
provide it.

Justification for the power

27

128. This power is to some extent consequential on the power in new section 436E(1), to set
the threshold for a local authority to be able to require persons to provide information.
Since the threshold is to be set in regulations, it would be challenging and inappropriate
for exceptions to be set out in the Act itself as those exceptions are dependent on the
threshold. Moreover, as the threshold may be adjusted from time to time, exceptions
may also need to be adjusted as a result.

129. As an example, if the threshold were set as 9 hours per week, this might capture
informal groups of home educating parents who may come together and take it in turns to
teach their own and their friends’ children collaboratively, or a museum that offers an
extensive educational programme for children, which is open to all members of the public.
Without being able to exclude such cases from scope, potentially unreasonable
requirements could be placed on such providers that might serve to discourage the
provision of these activities.

Justification for the procedure
130. Although the power will likely be used to narrow the scope of application rather than to
expand it, the Department considers that the regulations should be subject to the
affirmative resolution procedure to allow Parliament the opportunity to debate which
providers of out-of-school education would be exempt from the duty.

131. In line with the justification offered for the regulations setting a threshold for providers of
out-of-school education to provide information, the Department considers that, together
with amendments to the threshold, any changes to those subsequently excluded from
scope of the duty could have a significant impact on out-of-school education providers,
and potentially the effectiveness of the duty in terms of supporting the identification of
children eligible for registration.

132. For example, if exceptions from the duty were to be substantially reduced it could result
in large swathes of providers of out-of-school education being required to supply
information to the local authority, or conversely significantly increase those out of scope
of the duty, potentially reducing the effectiveness of the duty as a tool to support local
authorities to identify children missing education. The Department considers that use of
the power would therefore benefit from the parliamentary scrutiny afforded by the
affirmative procedure.
Clause 25(2): New section 436E(9) of EA 1996 – Regulations to set a monetary
penalty for failure to provide information – and inserting Schedule 31A paragraph 5
to provide regulations setting the increase in the penalty if provided late

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative first time and Negative thereafter

Context and purpose
133. When a person does not provide the required information (or provides incorrect
information) under new section 436E(1) to (3) and is not within the exceptions prescribed
under subsection (7), the local authority may require that person to pay a monetary
penalty. This clause, via subsection (9), provides for the amount of the penalty to be set
in regulations.

134. This clause also inserts Schedule 31A among the Schedules to the EA 1996, making
provision about penalties and appeals. Paragraph 5 of Schedule 31A provides that if a

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person does not pay the penalty within the deadline, the amount of the penalty increases
by a percentage set out in regulations.

Justification for the power
135. The level of monetary penalties needs to be adjusted periodically to account for economic
factors, such as inflation, to keep them in-step with other comparable penalties. It may
also be necessary to adjust the level of the penalty in light of experience of the system in
operation, as the out-of-school education sector is very varied and it is not easy to
predict what level of penalty will be most effective. The Department considers that setting
these amounts in regulations is appropriate. In an education context, existing monetary
penalties are set in regulations in relation to, for example, school attendance (sections
444A and 444B of the EA 1996) and allowing an excluded pupil to be in a public place
(sections 105 and 106 of the EIA 2006).

Justification for the procedure
136. This power will set the level of one penalty, which will impact a very small number of
providers of out-of-school education that do not comply with a local authority request for
information on eligible children; therefore the affirmative procedure would be
disproportionate to use on every occasion. However, the first time the power is used is
also likely to be the point of most significance and potential impact on providers of out-of-
school education, being the first time that a monetary penalty is set (with there never
having been such a monetary penalty on these providers previously).

137. We would also expect the initial use of the power to set the tone for the level of penalty,
and while significant amendments could be possible, we believe these to be unlikely. We
would expect any subsequent changes to be in response to stakeholder feedback and
experience of the system, or otherwise in response to economic factors (such as
inflation); and as already highlighted only likely to impact a very small number of
providers. For this reason, the Department considers that there would be benefit in
greater parliamentary scrutiny the first time the power is exercised, and that any
subsequent use thereafter be subject to the negative procedure. The negative procedure
would afford the appropriate level of scrutiny in subsequent usage of the power, and
there is already precedent for the negative procedure in line with other regulations that
set monetary amounts (e.g.
(Fixed Penalties) (England) Regulations 2017
(legislation.gov.uk)), and the Environmental Offences (Fixed Penalties) (England)
Regulations 2017 (legislation.gov.uk)).

Clause 25(2)New section 436F(1) of EA 1996 – Regulations prescribing information
local authorities must provide to the Secretary of State

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative first time and Negative thereafter

Context and purpose
138. This clause inserts section 436F into the EA 1996. Section 436F(1) provides that if the
Secretary of State directs a local authority to provide her or him with information from
their register, then they must do so. The types of information the Secretary of State can
direct them to provide are to be set out in regulations.

Justification for the power

29

139. As discussed above, regulations under new section 436C(2) may prescribe some of the
information to be included in registers. It is therefore also necessary for the Secretary of
State to have power to prescribe the information from registers that must be provided, so
that it can be set and adjusted in light of the prescription of information that must be
included in registers in the first place.

140. This power will also provide the ability to amend data collection requirements to
respond to unforeseen situations or circumstances, which could be influencing an
increase or decrease in those children being registered. For example, allowing for data
collection to measure the impact of situations, such as the COVID-19 pandemic.

Justification for the procedure
141. Although there is precedent for data collection regulations to be subject to the negative
procedure – for example, in the case of similar Department for Education data collection
regulations (see Education (Information About Individual Pupils) (England) Regulations
2013 and the Education (Information About Children in Alternative Provision) (England)
Regulations 2007) – the Department considers that it would be beneficial to give
Parliament a greater level of scrutiny the first time this power is used.

142. Similarly to the regulations prescribing certain details to be included in registers (at the
new section 436C(2), the Department considers that the first time of use is likely to be
the point at which there is the most public interest in the information to be provided to the
Department, particularly from parents of children eligible for registration and by local
authorities who will be directly impacted by the power. However, the Department would
expect less interest thereafter, where any subsequent changes would likely be technical
in nature, or otherwise in response to learning from implementation of the system and
engagement with stakeholders.

143. The power to require local authorities to share information also has a narrow scope, as
only information included within a local authority register can be shared. Furthermore, the
information collected will be used for straightforward reasons: for the Department to
analyse, identify trends and feed this into policy development; maintain integrity of the
register; and support safeguarding, so any information held by a local authority can be
provided when needed and permitted. Therefore, beyond the first use of the power, the
Department considers that the detail of what data the Secretary of State requires local
authorities to share does not need greater parliamentary oversight than the negative
procedure affords.

Clause 25(2)New section 436F(2) of EA 1996 – Regulations prescribing persons to
whom Secretary of State may provide information

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

Context and purpose
144. New section 436F(2) confers on the Secretary of State the power to provide information
received from a local authority register under s436 F(1) to other persons in certain
circumstances. Regulations will prescribe the persons to whom the Secretary of State
may provide this information.

Justification for the power

30

145. Under these clauses, the Secretary of State will receive information from local
authorities’ Children Not in School registers – at both an individual and aggregate level.
The Department intends to collate this information and share it with relevant persons to
fulfil the following objectives:

• Match information on individual children from local authority Children Not in
School registers to help local authorities to identify children that have gone
“missing” from their registers – for instance, due to moving to another local
authority in England or even out of the country without notifying their original
local authority.
• Create a consistent view of a child’s education – particularly where a child
has moved across different education settings, so that children could benefit
from more tailored support from the local authority or other professionals.

146. The Secretary of State will therefore need to share certain information with relevant
persons – for example, relevant local authorities, education providers, or other
organisations connected with promoting the education or wellbeing of children in
England. In order to determine who the Secretary of State should be able to share
information with, the Department plans to engage with stakeholders, such as local
authority Children Missing Education teams, to fully understand which organisations
need to see the information in order to achieve these objectives.

147. However, as these endeavours have not been attempted before on a national scale, it
is likely that post-implementation it will be necessary to update the list of people from
time to time as new situations come to light that demonstrate that additional
organisations concerned with promoting or safeguarding the welfare or education of
children need to see relevant information. There is also the possibility that new
organisations will be created, with whom it would be useful to share information in the
future. Given that this information sharing can be about safeguarding, it may be
necessary to make changes particularly quickly and it would be inappropriate to have to
rely on finding an opportunity to amend primary legislation.

Justification for the procedure
148. The regulations will be subject to the affirmative resolution procedure to allow
Parliament the opportunity to debate the proposed persons with whom the Secretary of
State will be able to share information. Sharing details from the registers is likely to be
contentious and particularly important to the impacted families. It is therefore the
Department’s view that greater parliamentary scrutiny is necessary when this power is
used.
Clause 26(2): New section 436I(5)(b) of EA 1996 (regulations made under section
550ZA(3)(f) of EA 1996) – Prescribed form of school attendance order

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose

149. This clause inserts new section 436I into the EA 1996. This is one of a series of new
sections dealing with school attendance orders in England, which reproduces existing
sections 437 to 443 with certain changes. New section 436I(5)(b) replicates part of
current section 437(3) by requiring the form of a school attendance order to be
prescribed in regulations. The current regulations are the Education (School Attendance

31

Order) Regulations 1995. Prescribing a form for school attendance orders ensures that
such orders contain the right information for their recipients.

Justification for the power

150. The Department assesses that the exact form of an administrative order is a matter of
detail not appropriate for primary legislation and would not be a good use of
parliamentary time. It may also be necessary to adjust the form of school attendance
orders from time to time to ensure they remain easily intelligible and accessible for
recipients. The essential contents of a school attendance order are set out in new section
436I itself, therefore the regulations will deal only with the precise wording, the order in
which the required information is presented, and the inclusion of any less crucial
information. A delegated power to do this enables an appropriate level of parliamentary
scrutiny.

Justification for the procedure
151. The negative procedure applies to the current power in section 437(3) and the
Department considers this an appropriate level of scrutiny given the minor impact of the
regulations and is in line with equivalent power in Wales. The administrative power is
very narrow, as the key information is already in primary legislation (437B) and therefore
is focused on the form of the order.
Clause 28: New section 436R of EA 1996 (regulations made under section 550ZC(7) of EA
1996) – Guidance on registration

Power conferred onSecretary of State
Power exercisable by: Statutory Guidance
Parliamentary Procedure: None
Context and purpose
152. This clause inserts Section 436Q into the EA 1996 and confers on the Secretary of
State the power to give guidance to local authorities about the exercise of their functions
related to the registration of children under new sections 436B to 436P.

Justification for the power
153. This power is necessary to support local authorities in the implementation and
maintenance of the registration system, and to set out how they may wish to discharge
their duty of support. The provision of statutory guidance will also help support the
accuracy and consistency of approach between local authorities, including in relation to
local authorities’ implementation of the school attendance order process, and provide
scope to give guidance on the management of day-to-day operations. This will allow for
regular and routine updates to consider experiences of administering the new duties, to
ensure that they are able to be operated as efficiently as possible.

Justification for the procedure
154. The Department considers that absence of parliamentary scrutiny is justified as the
guidance will support and explain the duties on local authorities with regard to the
practicalities of keeping their registers, including the types of support they may wish to
consider offering to parents who electively home educate, and how they may wish to
work together with other persons or bodies for the purpose of maintaining their registers.
It will similarly support and explain operational practicalities in relation to the school

32

attendance order process, including myth-busting in response to any frequently asked
questions.

155. The guidance will not create any new legal obligations and will only describe the law
and offer advice about related matters. This is in keeping with the arrangements for other
statutory guidance documents, such as “Keeping Children Safe in Education” and
“Working Together to Safeguard Children”. The Department’s intention is to consult with
local authorities and other interested parties prior to issuing the first edition of this
guidance and thereafter consult as needed on any substantive changes. This is a well-
established precedent that the Department, and other government departments, follows
for changes to existing statutory and non-statutory guidance and we would therefore not
expect any deviation from such a consultation process being followed in future.

Clause 30(2)New section 92(5) of ESA 2008 – Regulation-making power to prescribe
what, and how, factors are to be taken into account in determining whether education
is full time and to make interpretative provision

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

Context and purpose

156. This is a Henry VIII power. This clause amends the definition of “independent
educational institution” in section 92 of the ESA 2008 and therefore changes what
institutions will be subject to the regime in Chapter 1 of Part 4 of that Act. For example,
an institution under the new definition must provide full-time education to children of
compulsory school age. Under new section 92(3), an institution is taken to provide “full-
time education” for a child if the child could be expected to receive all, or a majority of
their, education there. New section 92(4) lists the factors which are to be taken into
account in determining whether that test is met. New section 92(5) contains a regulation-
making power to amend or add factors to, or remove factors from, section 92(4), and to
make provision about how the factors in section 92(4) are to be taken into account. In
addition, it allows for regulations to amend section 92 so as to add, remove or amend
provision about the interpretation of the factors in subsection (4).
Justification for the power
157. This clause contains novel provision because for the first time, at least for the purposes
of the ESA 2008, it defines what constitutes full-time education – a difficult concept to
grapple with. The main institutions regulated under Chapter 1 of Part 4 of the 2008 Act
are independent schools and in order to be such an institution, full-time education needs
to be provided, but the Department has very significant experience of persons seeking to
avoid regulation under Chapter 1 of Part 4 of the ESA 2008 by, for example, claiming
that insufficient hours of education are being provided for there to be full-time education.
The Department has no good reason to believe that attempts to avoid regulation will
cease. In addition, the sector is innovative in coming up with different models of
providing full-time education – such as institutions providing education wholly or partly
online, providing teaching by tutors both at home and at premises owned by a third party,
or different arrangements for “home-education” that are beyond parents simply educating
their own children at home. For example, by setting up home education clubs with
different sets of parents sharing responsibility for educating their children collectively.

158. The power will enable the Secretary of State to address unforeseen defects in how
“full-time education” is defined by reference to the factors in new section 92(4). This

33

seems to the Department to be a pragmatic response to the innovation of defining this
concept for the first time in this legislation.

159. In addition, it will give the Secretary of State power to respond to both new models of
delivering full-time education within the sector, models that are not yet commonplace or
are unforeseen, and attempts to avoid regulation through settings deliberately structuring
their provision to achieve just that. This seems appropriate to the Department to ensure
that the regulatory arrangements remain effective to protect, and promote the interests
of, children in fulltime education.

160. An illustrative example of how the regulation-making power might be used is as follows.
The factors to be taken into account which are currently in the Bill are focused on
attendance by children at an institution. This points towards an interpretation that
“independent educational institutions” do not include providers that educate children
entirely remotely online or with a mix of such teaching and in-person teaching at a child’s
home. To provide for further clarity on this point an exclusion might be made under the
power described below in this memo to prescribe ‘excepted institutions’. However, as
new models of such provision develop (and the number of children who make use of
such provision as their sole source of education increases), it may become appropriate
to regulate some of them under Chapter 1 of Part 4. Being able to amend the factors, or
prescribing how they are to be taken into account, would enable for this to occur and
provide clarity to proprietors, parents, commissioners and others about what settings are
caught and what are not. How settings of this sort may deliver education to children in
the future is difficult to fully foresee and the powers here provide the scope to address
the inventiveness of providers.

161. There is provision in this power (see subsection (5)(b)) specifically addressed at the
interpretation of the factors. There is already a provision in new section 92 on
interpretation that relates to one of the factors – see new section 92(6), which defines
“academic year” for the purposes of section 92(4)(b). This is the only term in the factors
that needs, in the Department’s view, an express definition in section 92. However,
should factors be amended or added, it is in the nature of legislation that it may be
appropriate to provide definitions of any terms used. Subsection (5)(b) expressly allows
for this – rather than, more cumbersomely, it being necessary to incorporate the
definitional element into the wording of the new or amended factor.

162. The powers are analogous to powers which are currently in section 92(3)(b) and (c) of
the ESA 2008 since these permit regulations to be made changing what constitutes a
part-time institution for the purposes of section 92(1)(b). There is also a further
analogous power found in section 132(5)(b) and (c) of that Act – which permits changes
to be made to alter the definition of an “independent post-16 college”.

Justification for the procedure
163. The Department considers that the affirmative resolution procedure is appropriate for
this regulation-making power since it is a Henry VIII power. The procedure will give
Parliament the opportunity to scrutinise and approve any change in the factors that are
used to determine whether an institution is providing “full-time” education, and in how the
factors are to be taken into account.

Clause 30(2)New section 92(9)(g) of ESA 2008 – Regulation-making power to except
institutions from the definition of ‘independent educational institution’

Power conferred onSecretary of State

34

Power exercisable byRegulations
Parliamentary Procedure: Affirmative

Context and purpose
164. As explained above, this clause amends section 92 of the ESA 2008, redefining what
constitutes an “independent educational institution” for the purposes of Chapter 1 of Part
4 of that Act. The new definition of “independent educational institution in new section
92(1) is to the effect that an institution is not an “independent educational institution” if it
is an “excepted institution”. The definition of “excepted institution” is found in new
subsection (9) and includes both a list of institutions and a power to specify additional
institutions of a description specified in regulations. “Regulations” in the ESA 2008
means regulations made by the Secretary of State (see section 168(1)). Therefore, a
regulation-making power is provided to the Secretary of State to exclude descriptions of
institutions from being “independent educational institutions”.

Justification for the power
165. As explained above, in redefining what is an “independent educational institution” the
legislation will be doing something novel. It will be defining, for the first time, what
constitutes full-time education for the purposes of Chapter 1 of Part 4 of the ESA 2008.
In addition, the approach is also novel because for the full-time institutions to be
governed by Chapter 1 of Part 4, it will not be any longer necessary for them to be
schools. Specifically, schools are defined as “educational institutions” in section 4(1) of
the EA 1996 and the qualification of “educational” is not adopted in the new definition. In
addition, the effect of the EA1996 Act is that in order for an institution to be a “school”, it
needs to have as its purpose the provision of education suitable to the requirements of
children of compulsory school age. This element of what a school constitutes is also lost
(so as to capture institutions irrespective of the breadth and nature of their curriculum).

166. Given both the novelty and scope of what the legislation is doing, the regulation-making
power is considered by the Department appropriate in order to exclude niche cases of
institutions it would be inappropriate to regulate under Chapter 1 of Part 4 of the ESA
2008, both in terms of current forms of settings and to cover future developments to
education provision. The independent education sector is diverse and therefore there is
an inherent difficulty in identifying or anticipating all those full-time settings which it would
be inappropriate to regulate under the ESA 2008. An example of how the power could be
used could relate to alternative provision-type settings, where it may be decided in the
future to regulate certain categories of these setting differently. This regulation-making
power could then be used to give clarity to proprietors, parents, commissioners and
others, by avoiding overlapping systems of regulation. Or, instead, another example
might be institutions that teach English as a foreign language but have a minority of
foreign pupils of compulsory school age.

167. The power can only be used to exclude institutions from regulation and therefore could
not be used to expand the purview of Chapter 1 of Part 4, in order to regulate more
institutions.

Justification for the procedure
168. The Department considers that the affirmative resolution procedure is appropriate for
this regulation-making power since it is akin to a Henry VIII power. It will give Parliament
the opportunity to scrutinise and approve any regulations that bring institutions outside
the regulatory regime in Chapter 1 of Part 4 of the ESA 2008.

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Clause 31(2)New section 94(1A) and (3A) of ESA 2008 – Extending the regulation-
making powers to make independent educational institution standards
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose
169. Under section 94 of the ESA 2008, the Secretary of State is required to make
standards, by regulations, for the purposes of Chapter 1 of Part 4 of that Act. These are
standards that the proprietors of independent educational institutions are required to
comply with and if they do not, then they face the possibility of regulatory or enforcement
action under sections 114 to 116 of the ESA 2008.

170. This clause makes two amendments to the regulation-making powers in section 94 of
the ESA 2008. Firstly, the insertion of a new subsection (1A) expands on the power to
make standards relating to the suitability of proprietors of independent educational
institutions. In particular, with this new provision, standards will be able to be made which
require that an individual proprietor, or an individual who has the general management
and control of a proprietor body or is legally responsible and accountable for such a
body, must be a person who is, in the opinion of the Secretary of State, a fit and proper
person to be involved in the running of an independent educational institution (“the first
amendment”).

171. Secondly, a new subsection (3A) is inserted which permits standards to be made
(which fall within the subject-matter of section 94(1)(a) to (h)), by reference to whether or
not the proprietor of an independent educational institution has regard to guidance
issued, or a document published, by the Secretary of State from time to time (“the
second amendment”).
Justification for the power
172. The first amendment is an extension of the existing power to make provision about the
suitability of proprietors (see section 94(1)(d)). In particular, it allows for a discretion to be
conferred on the Secretary of State to decide whether someone is fit and proper to
participate in the management of an independent educational institution. This will allow
for workable decisions to be made, and on a legally certain basis, to exclude from their
running, those who are unsuitable to be involved in the running of independent
educational institutions.

173. The second amendment will put beyond doubt that standards can be made requiring
proprietors to have regard to other guidance, and documents published, by the Secretary
of State (from time to time). There is, for example, the obligation in section 175 of the EA
2002 imposed on governing bodies of maintained schools, in their duty to make
arrangements to safeguard and promote the welfare of children, to have regard to
guidance issued by the Secretary of State. This has been transposed in relation to
independent schools in the current Education (Independent Schools) Standards
Regulations 2014.

Justification for the procedure
174. The current procedure for making regulations under section 94 is the negative
resolution procedure and the Department does not think the extension made by these
proposed provisions requires a different approach. This is since the expanded powers
will remain broadly similar in nature and impact to the existing regulation-making powers.

36

Clause 31(6)(b)New section 125(10) of ESA 2008 – Tribunal rules about stays of
suspensions of registration and stop-boarding requirements
Power conferred on: The Tribunal Procedure Committee
Power exercisable by: Rules
Parliamentary Procedure: Negative

Context and purpose
175. Clause 31 amends the ESA 2008, amongst other things, to confer powers on the
Secretary of State to temporarily suspend the registration of an independent educational
institution, and to impose “a stop boarding requirement” (where the institution’s
registration is suspended). It will be possible for the Secretary of State to extend the
period of a suspension of registration and to extend the period in which boarding must
cease. In addition, there will be connected criminal liability for a proprietor where
education or supervised activity is provided at an institution when its registration is
suspended or where a stop boarding requirement is breached.

176. Proprietors of affected institutions will have rights of appeal to the First-tier Tribunal
against decisions to suspend registration, to impose stop boarding requirements and to
extend the duration of a suspension or a stop boarding requirement. This clause amends
section 125 of the ESA 2008 to enable Tribunal Procedure Rules to be made (see
section 22 of the Tribunals, Courts and Enforcement Act 2007 – “the 2007 Act”) which
will allow for affected proprietors to apply for a stay of any suspension or a stop boarding
requirement.

Justification for the power
177. The approach follows that to be found in section 87(3B) of the Immigration and Asylum
Act 1999 and section 146(1)(b) of the Gambling Act 2005 – under which provision on
stays is to be covered by the Tribunal Procedure Rules. See further rules 19A(1) and (2)
and 20 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber)
Rules 2009. The Department, therefore, considers that the Rules are an established
vehicle for conferring powers to grant stays of decisions and the connected procedures
for making applications for a stay.

178. Tribunal Procedure Rules can cover a wide range of matters relating to the practice and
procedure in the First-tier Tribunal – see Schedule 5 to the 2007 Act. This can include
case management powers, striking out a party’s case and the time within which
proceedings must be brought.

Justification for the procedure
179. The Department considers a negative procedure to be appropriate because this is the
established procedure for making Tribunal Procedure Rules. In addition, the exercise of
the power to make Tribunal Procedure Rules is informed by certain principles – including
securing that in proceedings before the First-tier Tribunal that justice is done, and that
the tribunal system is fair. Furthermore, before making rules, the Tribunal Procedure
Committee must consult such persons as it considers appropriate.

Clause 33(2)Amendments to s.98(3), and new section 98(3A), of ESA 2008 – Duties to
make regulations related to accommodation provided by third parties and the
buildings that will be occupied and regulation-making power to prescribe types of
special educational need

37

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose
180. Section 98(2) and (3) of the ESA 2008 provide regulation-making powers to prescribe
the content of applications for the registration of independent educational institutions.
They include duties for regulations to require an application to provide information about
whether the institution provides boarding and, in the case of a “special institution”, to
specify the type or types of special educational needs for which the institution is specially
organised to make special educational provision.

181. Clause 33(2) amends section 98 in three ways. First, it amends section 98(3) to impose
an obligation on the Secretary of State to make regulations that require applications to
include information not only about whether accommodation is provided by the institution
itself but also whether it is to be provided under arrangements with third parties (“third
party accommodation”). Secondly, it amends the same subsection to impose a duty on
the Secretary of State to make regulations requiring an application to contain the
address and a description of the buildings occupied by an institution and made available
for student use. Finally, clause 33(2) makes an amendment to the effect that regulations
under section 98(2) can define what types of special educational needs applications for
the registration of (what are commonly called) “special institutions” must provide
information about. These are institutions that are specially organised to make special
educational provision for students with such needs (and for definitions of relevant terms
here see sections 21 and 22 of the Children and Families Act 2014).

Justification for the power
182. The Department considers that the information which an application should contain is
the type of administrative matter commonly dealt with by means of a power to make
delegated legislation, rather than being put on the face of an Act of Parliament.

183. The first amendment requires the Secretary of State to make regulations that make it
mandatory for applicants to provide information about whether boarding provision is to
be provided via someone other than the institution (and not just by the institution). This is
something which the Department already considers that there is the regulation-making
power to require. However, an obligation is being imposed on the Secretary of State to
make such regulations because an amendment is made elsewhere in the same clause to
the effect that it will be a material change where an institution provides boarding itself or
under arrangements with someone else. The second amendment similarly imposes a
duty for regulations under section 98(2) to relate to a specific matter which the
Department already considers the Secretary of State has power to cover in section 98(2)
regulations. However, the duty is similarly being imposed to ensure that regulations
cover the provision of information about this specific matter since it will become a
material change, under other provisions in the same clause, for there to be a change of
the buildings occupied by an institution and made available for student use.

184. To have effective oversight of this new sort of material change (as well as over third-
party accommodation), the Department will need to have information about the buildings
an institution occupies and uses for student when first registered (and whether or not
boarding is third party accommodation).

185. The final amendment constitutes a slight extension to the powers currently in section
98(2) and (3) and will enable greater certainty to be provided to applicants for registration

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about precisely what special education needs they need to provide information on. It is
also connected to amendments made to the material change regime under clause 33(5)
– where it will become a material change for a special institution to change the type or
types of special educational needs it caters for, as prescribed under this new regulation-
making power.

Justification for the procedure
186. Acts of Parliament commonly provide for the negative resolution procedure for
subordinate legislation prescribing the contents of applications and the regulation making
powers in section 98(2) and (3) of the ESA 2008 are currently subject to the negative
resolution procedure. The Department, therefore, considers that it is appropriate to
continue with the same level of parliamentary scrutiny for the new regulation-making
power and duties. In addition, in the Department’s view, adopting the affirmative
resolution procedure would involve a disproportionate use of parliamentary time.

Clause 33(6)Amendment of s.102 – new subsection (3) of ESA 2008 – Regulation-
making power to prescribe form and content of applications for material change
approval

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose
187. Some changes (“material changes”) in how a registered independent educational
institution operates, including where there is a change of proprietor or whether or not
boarding is provided, will require the prior approval of the Secretary of State (see
sections 101 and 102 of the ESA 2008 as amended by clause 33(5) of the Bill).

188. An application needs to be made for that approval. This clause inserts a new power into
section 102 of the ESA 2008 for the Secretary of State to be able to make regulations as
to the form applications for material change approval must take, and what information
they must contain.

Justification for the power
189. Unlike applications for registration of an independent educational institution,
applications for material change approval are not currently subject to any statutory
requirements, except that they need to be in writing and must be made by a proprietor or
by the proposed new proprietor (where there is to be a change of proprietor).

190. The power enables requirements to be imposed on applicants as to the contents of
applications and the method for making them. This will improve the efficiency of the
administration and consideration of material change applications including enabling
improved administrative processes and minimising delays caused by missing
information.

191. The Department considers that the form which applications need to take and what
information they should contain fall within the type of technical, administrative matters
that are commonly dealt with by means of delegated legislation.

Justification for the procedure

39

192. Acts of Parliament commonly provide for the negative resolution procedure for
subordinate legislation prescribing the contents and form of applications. For example,
there is a similar power in section 98(2) of the ESA 2008 which is subject to the negative
resolution procedure. The Department therefore considers that this will ensure an
appropriate level of scrutiny.

Clause 37(2)New section 137A of ESA 2008 – Regulation-making power to apply
enactments, that apply in relation to independent schools, in relation to independent
educational institutions

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative
Context and purpose
193. Some institutions that provide full-time education to children of compulsory school age
do not fall within the definition of “independent school”. They therefore fall outside the
regulatory regime in Chapter 1 of Part 4 of the ESA 2008 which means that the children
that attend them are not, for example, protected under this regime in terms of
safeguarding or the quality of education that they receive. They are not “independent
schools” and fall outside of the regulatory regime because the curriculum that they teach
is too narrow. However, in other respects, these institutions are school-like and children
spend the ‘normal school day’ in these institutions receiving education. The amendments
to section 92 intend to remedy this. For instance, it will become possible to subject these
institutions, where registered, to regular inspection against standards prescribed under
section 94 of the ESA 2008 and the Secretary of State will be able to take regulatory
action against such registered institutions which fail to meet these standards

194. This clause provides a regulation-making power to the Secretary of State, in a new
section 137A of the ESA 2008, to apply to independent educational institutions
enactments that apply in England in relation to independent schools. Just as the
amendments to section 92 mean that independent educational institutions that are not
independent schools are to be subject to Chapter 1 of Part 4 of the ESA 2008, the
regulation-making power allows for other legislation which applies in England in relation
to independent schools to be applied in relation to these institutions.

195. The enactments which may be applied are enactments made before or in the same
session that this Bill becomes an Act of Parliament. Later legislation cannot be applied.

Justification for the power
196. As set out above, the changes to section 92 of the ESA 2008 will bring into the scope of
Chapter 1 of Part 4 of that Act more independent institutions that provide full-time
education to children of compulsory school age. As a result, the affected settings will be
treated in the same way as independent schools, since Chapter 1 of Part 4 is the
principal piece of primary legislation that regulates independent schools in England.

197. However, there is other legislation which already applies in England in relation to
independent schools, which won’t apply in relation to independent educational
institutions that are not independent schools without further legislation. See, for instance,
sections 87 to 87D of the CA 1989 and section 547 of the EA 1996.

198. Once it is established that the institutions in question should be treated as equivalent to
independent schools in England under the principal piece of legislation relating to such

40

schools, the Department considers that it is important for other legislation that applies in
England in relation to independent schools to be considered for application in relation to
these institutions.

199. This approach allows for parliamentary scrutiny of the current Bill to focus on the
principle of bringing under regulation more settings which provide full-time education in
the same way as already-regulated independent schools, whilst permitting detailed
debate on the practical impact of this principle in relation to other individual pieces of
legislation through the affirmative resolution procedure.

200. The Department considers the powers to be analogous to those found in paragraph 3 of
Schedule 1 to the EA 1996, which relate to pupil referral units and allow for legislation,
relating to maintained schools, to be applied in relation to such units with or without
modifications.

Justification for the procedure
201. The Department considers that the affirmative resolution procedure is appropriate for
this regulation-making power since, although not a Henry Viii power, it is a power that
allows for primary legislation to be modified when it is applied. It will give Parliament the
opportunity to scrutinise and approve any regulations that amend the effect of primary
legislation.

Clause 39(3)New section 141AA of EA 2002 – Power to amend the definition of online
education provider

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Affirmative

Context and purpose

202. This provision extends the jurisdiction of the Teaching Regulation Agency (TRA) to
allow it to regulate those teaching in online schools. A power is conferred on the
Secretary of State to amend, by regulations, the definition of online education provider
set out on the face of the bill and as such is a narrow Henry VIII power.

Justification for the power

203. Online education has changed hugely in the last few years and continues to evolve.
How it will change in the next few years is unknown and unforeseeable. The Department
therefore anticipates that the definition of online education providers will need to be
updated in the future to keep pace with technological changes and that the power to
amend the definition by way of secondary legislation is appropriate.

Justification for the procedure
204. The Department considers it appropriate for this power to be subject to the affirmative
parliamentary procedure because it is a Henry VIII power and Parliament will likely have
a strong interest in who and what is to be regulated by England’s Teaching Regulation
Agency.

Clause 40(2)Amendment to s.133(6) EA 2002 – power allowing to set out in
regulations the type of academy settings the requirement to be qualified will apply to

41

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose
205. Section 133(1) of the EA 2002 enables the Secretary of State to make regulations
which may provide that specified work may not be carried out by a person in a school
unless they are a qualified teacher or satisfy specified requirements. Section 133(6) of
the 2002 Act sets out that these regulations will only apply to maintained primary,
secondary and special schools in England (where funding is provided through local
authorities).

206. This clause amends s.133(6) to confer on the Secretary of State the power to set out in
regulations the type of academy settings the QTS requirement will apply to.

207. Regulations may currently be made under section 133 to provide that “specified work”
may not be carried out by a person in a maintained school in England, or a special
school, unless they are a qualified teacher or satisfy specified requirements (section 133
(1)). The Regulations specifying work may make provision by reference to specified
activities or the circumstances in which activities are carried out (section 133 (2)). The
schools to which section 133 applies are listed in subsection (6). There is no power to
amend the list of schools in subsection (6).

208. The effect of this clause is to extend the existing delegated power in section 133(1) so
that the same power will allow for regulations to be made in respect of specified primary
and secondary academies. This will bring academies in line with local authority-
maintained schools and will standardise the approach across state-funded schools in
relation to the requirement that all new teachers to the classroom either have, or are
working towards, QTS.

Justification
for the power
209. The requirement to be qualified is already dealt with by delegated legislation in relation
to local authority maintained schools, and so it is appropriate to extend the power to
enable the Secretary of State to require that new teachers to the classroom in primary
and secondary academies will either have, or be working towards, QTS, meaning that
the QTS requirement will operate in the same way in relation to academies as it does for
maintained schools. The Department thinks the proposed approach is the only sensible
approach in order to fit with the existing legislative framework. It is appropriate to deal
with the detail of the QTS requirement in regulations, as requirements and exemptions in
relation to this may be subject to change in the future.

Justification for the procedure

210. The current procedure for making regulations under section 133 is the negative
resolution procedure and the Department does not consider the extension made by
these proposed provisions to require a different approach. This is because the expanded
powers will remain broadly similar in nature to the existing power. The Department
considers that this will ensure an appropriate level of scrutiny. The new power contained
at section 133(6)(c) is inspired by section 1D of the Academies Act 2010 (which allows
regulations to be made that provide for statutory provisions relating to maintained
schools and Academies, Academy schools and 16 to 19 academies to apply in relation
to alternative provision academies or a description of alternative provision academy, with
or without modifications). Section 1D of the Academies Act 2010 is subject to the

42

negative procedure. The Department does not think that the new power inspired by this
provision requires a different approach.

Clause 40(3)Amendment to s.135A (4) EA 2002 – a power to set out in regulations the
type of academy settings the requirement to undertake statutory induction will apply
to

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative
Context and purpose
211. Section 135A(1) enables the Secretary of State to make regulations which provide that
qualified teachers are required to have satisfactorily completed an induction period in
order to be employed as a qualified teacher in a “relevant school” (a maintained school;
a non-maintained special school; a maintained nursery school; a nursery school that
forms part of a maintained school; a local authority maintained children’s centre; or a
pupil referral unit, subject to specified exceptions set out in regulations) “the Induction
requirement”.

212. There is no power to amend the definition of “relevant school” at s.135A(4). This clause
extends the existing delegated power in section 135A to allow for regulations to be made
in respect of specified primary and secondary academies and so confers on the
Secretary of State the power to set out in regulations the type of academy settings the
Induction requirement will apply to. This will bring academies in line with local authority-
maintained schools and will standardise the approach across state-funded schools in
relation to the requirement for teachers that have satisfactorily completed an induction
period.

Justification for the power
213. The requirement to have satisfactorily completed an induction period is already dealt
with by delegated legislation in relation to relevant schools, and so the Department
considers it appropriate to extend the power to enable the Secretary of State to require
qualified teachers in specified primary and secondary academies to have satisfactorily
completed an induction period to work as a teacher there (as is required in a relevant
school). The expanded power will remain broadly similar in nature to the existing power.

214. The Department thinks the proposed approach is the only sensible approach in order to
fit with the existing legislative framework in respect of the detail of the induction
requirement. It is equally appropriate to specify primary and secondary academies in
relation to this induction requirement as this may be subject to change in the future given
the evolving nature of academies.

Justification for the procedure
215. The Department seeks to maintain the same level of parliamentary scrutiny that
Parliament deemed appropriate for the existing power and considers that the negative
procedure remains appropriate for the extension of these powers. The expanded power
will remain broadly similar in nature to the existing power.

216. The new power also contained at section 135A is inspired by section 1D of the
Academies Act 2010 (which allows regulations to be made that provide for statutory
provisions relating to maintained schools and academies, academy schools and 16 to 19

43

academies to apply in relation to alternative provision Academies or a description of
alternative provision Academy, with or without modifications). Section 1D of the
Academies Act 2010 is subject to the negative procedure. The Department does not
consider that the new power requires a different approach.

Clause 41(2) and (3)Amendments to s.1A and s.13 of AA 2010 – Curriculum:
Consequential amendment to section 87(7) of EA 2002
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: None

Context and purpose
217. This clause consequentially amends section 87(7) of the EA 2002 to expand the bodies
upon which the Secretary of State may confer or impose functions in respect of key
stage assessment arrangements to include academy proprietors. This existing
regulation-making power at section 87(3)(c) of the 2002 Act allows for the Secretary of
State to make assessment arrangements for national curriculum foundation subjects in
respect of Key Stages 1-3.

Justification for the power
218. This existing regulation-making power at section 87(3)(c) of the EA 2002 allows for the
Secretary of State to make assessment arrangements for national curriculum foundation
subjects in respect of Key Stages 1-3.

219. By expanding this power to include academy proprietors, this clause will ensure the
national curriculum assessment arrangements operate in the same way for academies
as they do for maintained schools. The delivery, method, monitoring and moderation of
assessment arrangements changes regularly so this is appropriate detail to include by
way of delegation rather than on the face of the legislation.

220. The Department considers that the changing nature of the curriculum and assessments
are the sort of detailed technical, administrative matters that are appropriate for
delegated legislation, particularly given that the evidence for what works in relation to the
focus of assessment arrangements for different key stages is likely to change over time.

Justification for the procedure
221. Part VI of the EA 2002 provides for the negative resolution procedure for subordinate
legislation prescribing the contents and form of national curriculum assessment
arrangements, attainment targets and programmes of study so that changes can be
made as and when the curriculum or assessment practice changes. If it was not possible
to frequently update the subordinate legislation, schools would have to adhere to
outdated practices. The Department considers that the same procedure is appropriate
for the amendment to the power.

Clause 41(2)New subsection to section 1A inserted after subsection (3) of AA 2010 –
Consequential amendment to sections 90(1) and 91 of EA 2002
Power conferred on: Secretary of State
Power exercisable by: Directions (90(1)) and Regulations (91)
Parliamentary Procedure: No procedure (90(1)) Negative (91)

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Context and purpose
222. This clause consequentially amends section 90(1) and 91 of the EA 2002 so that the
requirement for academy schools to teach the national curriculum does not apply to the
extent that (a) a direction under section 90(1) (development work and experiments), or
(b) regulations under section 91 of that Act (exceptions), provide that the national
curriculum does not apply in relation to that educational institution.

Justification for the power
223. These existing direction- and regulation-making powers allow for the Secretary of State
to make directions or regulations: in the case of directions under section 90(1), to exempt
maintained schools from the national curriculum in respect of development work and
experiments or to exempt them with modifications for the period of time specified in the
direction. Regulations under section 91 permit the Secretary of State to exempt
maintained schools from the national curriculum or that it should apply with
modifications.

224. These are existing delegated powers which need to also apply to academy proprietors
in order for the national curriculum to operate in the same way in relation to academies
as it does for maintained schools.

225. In the Department’s view, the changing nature of the curriculum and the short-term
needs of pupils are the sort of technical, administrative matters that are commonly dealt
with by means of delegated legislation.

Justification for the procedure
226. The Department considers that requiring regulations to be made by the affirmative
resolution procedure would necessitate a disproportionate use of parliamentary time and
hinder the intention of the power, which is to make directions amending the application of
the national curriculum for a limited period of time and allow flexibility as to the
revocation and variation of such a direction.

Clause 42(1)New subsection 29A(5) of EA 2002 – Off-site direction (information and
reviews etc.)
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose

227. Section 29A(1) of the EA 2002 confers on the governing body of a maintained school
the power to require a pupil to attend a place outside the school premises to receive
education intended to improve their behaviour. Section 29A(3) and (4) confers on the
Secretary of State the power (and, in the case of subsection (3), the duty) to make
regulations about the information that has to be provided when a pupil is required to
attend off-site, how the requirement must be kept under review, and other matters. The
current regulations are the Education (Educational Provision for Improving Behaviour)
Regulations 2010 and they are subject to negative procedure.

228. This clause gives the Secretary of State the power to make regulations extending this
power of off-site direction, and the associated regulations, to cover academy trusts as
well as maintained schools. The subject-matter to be covered by the regulations in
relation to academy trusts will be the same as for maintained schools.

45

Justification for the power
229. The approach of using regulations to extend this provision to academies is consistent
with how similar matters are handled elsewhere in Part 3 of the EA 2002. That Part is
concerned with various powers and duties of governing bodies of maintained schools, so
it would be inappropriate to amend it to apply some provisions to academies directly. The
proposed approach is already taken in section 51A of the 2002 Act, which directly
confers a power to exclude a pupil from a maintained school, but leaves it to regulations
to extend that power to academies. It is the creation of the delegated power itself that
decides the principle that academy trusts should have the same power of off-site
direction as maintained school governing bodies, and that decision is appropriately made
by Parliament. The exact application of section 29A to academies is a minor technical
matter that can appropriately be delegated.

230. The intention is that it will be applied with minimal modification, and the procedural
safeguards for academies will be substantially the same as for maintained schools. They
may need to be varied from time to time, in light of experience and wider changes. For
example, a number of amendments were made in 2012 following a review of current
practice by the government’s expert advisor on behaviour at that time, and subsequent
consultation. The review had found, among other things, that the previous requirements
about reviewing off-site directions were disproportionately onerous in practice and were
not meeting pupils’ needs. Another example is that requirements about what information
must be provided may need to change as methods and norms of communication
change, while evidence of best practice may prompt adjustments to the frequency of
reviews.

Justification for the procedure

231. The Department considers the negative procedure to be appropriate because the
existing power to make regulations in relation to maintained schools is subject to the
negative procedure, consistent with many other regulation-making powers that deal with
procedural issues. The power is relatively narrow and future uses are likely to be
uncontroversial and analogous to existing regulations. Comparable regulations made
under section 51A of the EA 2002 (mentioned above) are subject to the negative
procedure.

Clause 45(3)Expansion of s.122 of EA 2002 – Extension of statutory pay and
conditions arrangements to Academy teachers (extension of scope of pay order)

Power conferred onSecretary of State
Power exercisable by: Order
Parliamentary Procedure: Negative

Context and purpose
232. Section 122 of the EA 2002 confers on the Secretary of State the power to determine
remuneration and other conditions of employment (which relate to their professional
duties or working time) for teachers in maintained schools. This is by way of an order,
following a 2-stage statutory consultation process part of which includes the School
Teachers Review Body. This clause will extend the scope of the delegated power to
allow the Secretary of State to determine the remuneration and conditions of
employment of school teachers in academy schools and alternative provision
academies.

46

233. The effect of this is that these teachers will now be bound by decisions made by the
Secretary of State in respect of teacher remuneration and other conditions of
employment alongside teachers in maintained schools. The purpose of the extension to
the power is to standardise the approach across state-funded schools and for those
decisions to be imported into contracts of employment for these teachers in academy
schools and in alternative provision academies.

Justification for the power

234. The extension of the order-making power to teachers in academy schools and
alternative provision academies will enable the legislative regime to work in these
schools in the same way that it has since 2002 in relation to teachers in maintained
schools. The changes to the Statutory Pay and Conditions Document are determined
each year by way of the annual statutory consultation process and therefore secondary
legislation is needed to implement these changes annually – which would not be
possible if amendments could only be made by way of primary legislation as there is not
a guaranteed legislative vehicle each year. Annual pay reviews are appropriate in order
to be able to respond to recommendations on teacher pay and conditions from industry
experts who consider evidence from a range of stakeholders, including unions and
employer representatives on economic considerations including school budgets and
inflation, and recruitment and retention of school teachers. The amendment ensures that
academy schools and alternative provision academies and maintained schools will be on
an equal footing and that the annual approach is standardised across state-funded
schools, as defined by the Bill.

Justification for the procedure

235. The Department considers a negative procedure to be appropriate because this is an
extension of the existing power, which is subject to the negative procedure and an
affirmative resolution procedure would necessitate a disproportionate use of
parliamentary time. The extension of the power is relatively narrow and the use of the
power in the context of academies is unlikely to require additional scrutiny. The statutory
consultation process ensures that the views of those affected are properly taken into
account.

Clause 45(3)New section 122(4A)(d) of EA 2002 – Extension of statutory pay and
conditions arrangements to Academy teachers, power to exclude prescribed persons
from scope

Power conferred onSecretary of State
Power exercisable by: Regulations made by statutory instrument
Parliamentary Procedure: Negative

Context and purpose

236. Clause 45(3) inserts new section 122(4A) of the EA 2002, which further extends the
scope of the statutory pay framework to school teachers in academy schools and
alternative provision academies who do not have qualified teacher status but are
permitted by the Education (Specified Work) (England) Regulations 2012 made under
s.133(1)(b) to carry out “specified work” (which is, broadly, teaching work) because they
meet the requirements or conditions set out in the schedule to those regulations. That
schedule lists a broader group of people that can carry out “specified work” than those
intended to be captured within the statutory pay framework for school teachers.

47

237. The discretionary power in new section 122(4A)(d) will allow the Secretary of State to
make regulations to exclude particular categories of prescribed persons in academy
schools and alternative provision academies from the scope of the statutory pay
framework so the employers of excluded persons are not bound by decisions made by
the Secretary of State in respect of teacher remuneration and other conditions of
employment. New section 122(4B) makes it clear that regulations under new section
122(4A)(d) may, in particular, describe excluded persons by reference to their duties or
by any provisions for a person’s remuneration and conditions of employment to be
determined other than pursuant to section 122 of the EA 2002.

Justification for the power

238. This power will provide flexibility to exclude specific groups of workers in academies
from this measure in future. There is insufficient information on how to define people who
are teaching in academies and therefore how to define those the government would want
to capture within the STRB’s remit – but this provision ensures that the included groups
do not have to mirror exactly the persons prescribed under section 133(1)(b), which may
be more broadly defined than those which are intended to fall within the STRB’s remit.

Justification for the procedure

239. The regulation making power will be used to narrow the scope of application rather than
to expand it. The Department considers that the negative resolution is appropriate due to
the discrete issue covered by these regulations. An affirmative resolution procedure
would necessitate a disproportionate use of parliamentary time.

240. The use of the power in the context of academies is unlikely to require additional
scrutiny. Any changes to those subsequently excluded from scope of this power will be a
response to the expected evolving nature of academy trusts and those they employ.

Clause 45(6)Amendment to s.127(2) and (4) EA 2002 – Extension of statutory pay and
conditions arrangements to Academy teachers (extension of scope of guidance)

Power conferred onSecretary of State
Power exercisable by: Statutory Guidance
Parliamentary Procedure: None

Context and purpose
241. Section 127 of the EA 2002 allows the Secretary of State to issue guidance in relation
to the implementation of the teacher pay orders noted above, to which local authorities
and governing bodies of schools must have regard. Clause 45 amends Part 8 of the EA
2002 to confer on the Secretary of State the power to impose changes to the terms and
conditions of employment of teachers in academy schools and alternative provision
academies as well as maintained schools, so Clause 45(6) is needed to require
academy proprietors to have regard to guidance issued concerning the implementation
of teacher pay orders.

Justification for the power
242. For the sake of consistency in respect of guidance which maintained schools must have
regard to, it is necessary for the Secretary of State to have the power to give the same
guidance to academy trusts in scope. The list of statutory consultees will include

48

representative bodies for academy trusts in scope and the teachers they employ which
may change over time. Best practice included in guidance may also change over time in
response to the annual pay order and central government guidance can help academy
trusts in scope in implementing their obligations in respect of that pay order in line with
the way in which they are implemented by maintained schools.

Justification for the procedure
243. The Department does not consider that it would be necessary or appropriate for the
statutory guidance to be subject to any parliamentary procedure. The guidance needs to
be swiftly amendable to reflect the annual changes to the pay order. The key
requirements will be set out in the pay order which is subject to the negative procedure.
Guidance will expand upon technical detail to enable operational logistics for academy
trusts to comply with the annual pay order. The existing power in respect of guidance
(under s.127 of the EA 2002) is already subject to a statutory consultation process with
statutory consultees which will include representative bodies reflecting the interests of
academy trusts and their teachers in scope.

Clause 49(2)New section 96(1A) of SSFA 1998 – Power to specify in School
Admissions Code circumstances in which a local authority can direct a school to
admit a child

Power conferred onSecretary of State
Power exercisable by: Statutory School Admissions Code
Parliamentary Procedure: Negative

Context and purpose

244. This clause confers on the Secretary of State the power to specify in the statutory
School Admissions Code additional circumstances in which a local authority (LA) can
initiate a direction to a school to admit a child in their area. These circumstances are
limited to two:

a) where a “relevant procedure has been invoked” – this is a reference to the current
fair access protocols (FAPs) – the mechanism for securing school places for those
struggling to secure one via the usual admissions processes – or any equivalent
procedure the School Admissions Code may set out. The School Admissions Code
requires LAs to agree a FAP with schools in their area which aims to ensure such
children are allocated a school place as soon as possible. Where the FAP or
equivalent procedure fails to secure a place, this measure extends the power of LAs
to direct a school to admit them.

b) in relation to previously looked after children.

Justification for the power

245. The requirement for LAs to have a FAP is set out in the School Admissions Code. It
includes steps for consulting on and participating in the protocol, such as schools making
representatives available for discussions and local authorities giving notice of those
discussions. These practical arrangements are more suitable for the statutory code
rather than legislation. The Code also sets out the categories of children to which the
FAP applies, for example children in refuges or children from the criminal justice system.
These categories may need to be changed to reflect changing need amongst vulnerable
children or to reflect changes in the way other legislation categorises or describes them.

49

246. This measure also extends LAs' powers of direction in relation to previously looked
after children. The Code currently sets out the practical steps that must be taken before
a direction can be made in relation to previously looked after children, such as
consultation by the LA and steps the school should take to appeal a direction decision.
Similar arrangements will be made in relation to previously looked after children, and
such practical steps are best detailed in the statutory code, rather than primary
legislation.

Justification for the procedure

247. Section 85 of the SSFA 1998 contains a power to issue or revise the School Admission
Code subject to a duty to consult on the draft and the negative procedure. The
Department therefore considers the negative procedure to be appropriate to define these
circumstances in the Code.

Clause 50(2)New section 88IA(6) of SSFA 1998 – Power to make regulations about
the adjudicator’s exercise of power to set a Published Admission Number

Power conferred onSecretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose
248. School admission authorities are required to decide and publish the intended number of
pupils to be admitted to each main year of entry into a school, known as a published
admission number (PAN). In certain circumstances, a school’s determined PAN can be
appealed to the independent Schools Adjudicator. Clause 50 gives the adjudicator the
power to decide the PAN where they uphold such objections.

249. This clause confers on the Secretary of State the power to make regulations setting out
matters the adjudicator must and must not take into account when deciding a PAN and
preventing the adjudicator from making a determination where it would have an effect
specified in the regulations. For example, not setting a PAN that causes a school to
breach the infant class size limit and requiring the adjudicator to consult the admission
authority about the impact of the PAN on the school.

Justification for the power
250. The power to set a PAN transfers powers away from admission authorities to the
adjudicator in certain circumstances, enabling an independent body to take a decision
which the school will then need to accommodate. This clause allows the Secretary of
State to ensure, by regulations, that operationally important matters are taken into
account by the adjudicator when making their determination. These may change over
time to account for pupil demographics, or more rapidly if we encounter specific events
that need to be addressed like major migration events. We would also want the
adjudicator’s PAN determinations to align with up-to-date guidance or requirements in
the School Admissions Code on how schools should set their PAN, and other relevant
regulations like infant class size limits. Finally, the adjudicator may be asked to consider
non-statutory information or resources, like the Net Capacity Assessment, that may
change in name or form over time.

Justification for the procedure

50

251. Schedule 5 to the SSFA 1998 at paragraph (5) sub paragraphs (1)-(2) contains a power
subject to the negative procedure to make regulations relating to the adjudicator’s
decision-making procedure but is confined to measures set out in that Act. The
Department therefore considers the negative procedure to be appropriate because the
clause deals with similar matters relating to the new power to set a PAN.

Clause 51(3)(e)Amendment to s.7 of EIA 2006 – Power to prescribe information that
must be included in proposals for new state schools published by a local authority as
part of an invitation process
Power
conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose
252. This clause amends a process for a local authority to invite others to propose the
establishment of new schools. This is done by amendments to section 7 of the EIA 2006.
Section 7(4)(a) already enables regulations to prescribe the content of proposals
submitted by other proposers in response to a local authority’s invitation. Clause 51(3)(d)
of the Bill enables the local authority to publish their own proposals alongside those
submitted by others. Clause 51(3)(e) therefore confers on the Secretary of State the
power to prescribe information by regulations that must be contained in such proposals.

Justification for the power

253. The information needed to assess a proposal may change from time to time with
changes to various aspects of school life. For example, a change to school admissions
law or practice might make it necessary for different information about the proposed
admission arrangements of a school to be stated in a proposal. The level of detail that it
is appropriate to mandate may change, for example if a trend emerges of proposals
being too detailed or not detailed enough. These relatively minor procedural matters are
appropriate to deal with in secondary legislation. For example, the current regulation
under section 7(4)(a) of the EIA 2006 is regulation 6 of the School Organisation
(Establishment and Discontinuance of Schools) Regulations 2013. Further, since
provision about the required content of proposals submitted by other proposers is
already made in regulations, making a similar delegation of power in relation to local
authorities’ own proposals enables provision about the content of both types of proposals
to be made in the same instrument, which will be helpful to the reader.

Justification for the procedure

254. The Department considers the negative procedure to be appropriate because the
existing power to make regulations under section 7(4)(a) of the EIA 2006 is subject to the
negative procedure, consistent with many other regulation-making powers that deal with
procedural issues. The power deals with a narrow procedural matter of the information to
be included in a proposal for a new school, which is likely to be of interest largely to local
authorities.

Clause 52(2)(c)Amendment to s.10 of the EIA 2006 – Power to prescribe steps
towards publicising certain proposals under section 10 of the EIA 2006
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

51

Context and purpose
255. Clause 52 revises the processes set out in section 10 of the EIA 2006 for local
authorities and others to publish their own proposals for the establishment of new
schools in certain circumstances without going through the process set out in section 7
of the EIA 2006. Section 10(5) requires that when a proposer (other than a local
authority) publishes certain proposals they submit those proposals to the local authority
in accordance with regulations. Clause 52(2)(c) of the Bill amends section 10(5) of the
EIA 2006 to add a requirement for the local authority to take prescribed steps to publicise
the proposals. This is to help ensure that members of the public and relevant
organisations have the opportunity to find out about such proposals. In particular,
regulations under this power are likely to require the local authority to publish information
on their website, drawing attention to the proposals and stating where they can be found.

Justification for the power

256. The precise details of how a proposal should be publicised by a local authority are
appropriate matters to be dealt with in secondary legislation as they are merely
procedural. Such details may need to be changed from time to time to reflect changes in
communication methods, local authority workloads, and other circumstances. For
example, regulations have previously required proposers to publish information in
newspapers but feedback from stakeholders indicate that this is no longer effective. In
the current technological environment, a more practical requirement would be for the
proposers to publish their proposals on a website and for the local authority to be
required to sign-post that website on their own website (which is where most people and
organisations are likely to look for information of this kind). But this may change again in
the future.

Justification for the procedure

257. The Department considers the negative procedure to be appropriate because the
existing power to make regulations under section 10(5) is subject to the negative
procedure, consistent with many other regulation-making powers that deal with
procedural issues. The power deals with narrow procedural matters, which are likely to
be of interest largely to local authorities and potential proposers.

Clause 54 and Schedule 2 paragraph 12Amendment to paragraph 10(3) Schedule 2 of
EIA 2006 – Power to make provision relating to referral of proposals to Secretary of
State or adjudicator
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose

258. Clauses 51 and 52 amend a process for a local authority to invite others to propose the
establishment of new schools, and for the local authority to put forward their own
proposals. They also revise the processes for local authorities and others to publish their
own proposals for the establishment of new schools in certain circumstances without
going through the process set out in section 7 of the EIA 2006. Schedule 2 paragraphs
10 to 15 to the 2006 Act requires a local authority, in certain cases, to refer proposals to
the adjudicator to be determined, and confers on the Secretary of State the power to
make provision, by regulations, for persons to object to such proposals. Schedule 2 to
this Bill, introduced by clause 54, amends those provisions so that in some cases
proposals are to be referred to the Secretary of State rather than to the adjudicator.

52

Paragraph 12(3) and (4) of that Schedule therefore amends the existing power in
paragraph 10(3) of Schedule 2 to the EIA 2006 and adds a new sub-paragraph (4) to
paragraph 10 so that provision can be made for objections to the Secretary of State as
well as the adjudicator, depending on the case.

Justification for the power
259. This is another power to make provision for procedural matters. Such provision is
appropriately made in secondary legislation because of its nature and to accommodate
the possibility of its needing to be changed from time to time. By way of illustration, the
current provision made under paragraph 10(3) of Schedule 2 to the EIA 2006 is for
regulation 13 of the School Organisation (Establishment and Discontinuance of Schools)
Regulations 2013. It is also appropriate for the new provision in relation to objections to
the Secretary of State to be made in regulations alongside provision in relation to
objections to the adjudicator so that both are found in the same place for the
convenience of the reader.

Justification for the procedure

260. The Department considers the negative procedure to be appropriate because the
existing power to make regulations under paragraph 10 of Schedule 2 to the EIA 2006 is
subject to the negative procedure, consistent with many other regulation-making powers
that deal with procedural issues. Exercise of the power is unlikely to be sufficiently
contentious to justify requiring Parliament to vote every time it is used.

Clause 54 and Schedule 2 paragraph 16Amendment to paragraph 13 Schedule 2 of
EIA 2006 – Power to make provision regarding referral of proposals to adjudicator
where determination delayed
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose

261. Schedule 2 paragraph 13 to the EIA 2006 currently requires local authorities to refer
certain proposals to the adjudicator if they fail to approve or reject them within a certain
time. The paragraph confers a power to make regulations setting the time after which the
proposals must be referred, and the deadline for referring them. Clause 54 of and
Schedule 2 paragraph 16 to this Bill make consequential amendments to that paragraph
but preserve the existing delegated powers to set the point after which undecided
proposals must be referred, and how quickly after that point they must be referred.

Justification for the power

262. The power replicates an existing power. It deals with procedural practicalities that are
appropriate to be handled through delegated legislation. Provision made using this
power may need to be changed from time to time: for example, changes in local
authorities’ workloads and pressures, or the development of new and more efficient
processes or technologies, may make it appropriate from time to time to allow authorities
more or less time to decide proposals and to refer them to the adjudicator. The current
provision made using the power that is being replicated here is found in regulations 14
and 17 of the School Organisation (Establishment and Discontinuance of Schools)
Regulations 2013.

53

Justification for the procedure

263. The Department considers the negative procedure to be appropriate because the
existing power to make regulations under paragraph 13 of Schedule 2 to the EIA 2006 is
subject to the negative procedure, consistent with many other regulation-making powers
that deal with procedural issues. Exercise of the power is unlikely to be sufficiently
contentious to justify requiring Parliament to vote every time it is used.

Clause 54 and Schedule 2 paragraph 22New paragraph 17A of Schedule 2 to the EIA
2006 – Proposals to establish Academy: power to make provision regarding
consultation and notification
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

Context and purpose

264. Clause 51 of the Bill enables local authorities to invite proposals for new schools, which
may include proposals for new academy schools or alternative provision academies.
Such proposals are to be approved or rejected by the local authority, except in certain
cases. Since the establishment of a new academy requires the proposer to enter into a
funding agreement with the Secretary of State, clause 54 and Schedule 2 paragraph 22
make provision to ensure that such decisions are co-ordinated with the Secretary of
State. They insert a new paragraph 17A into Schedule 2 to the EIA 2006. One of the
provisions of the new paragraph 17A, in sub-paragraph (3), is that regulations may
impose requirements about how, including how quickly, a local authority must carry out
their duty to consult the Secretary of State before approving an academy proposal. Sub-
paragraph (4) then provides that the authority may not approve an academy proposal
unless the Secretary of State has notified them that she would be willing to commence
negotiations for the required funding agreement, in accordance with regulations.

Justification for the power

265. These are procedural matters that can be appropriately provided for in subordinate
legislation. The deadline for consulting the Secretary of State, for example, may need to
be varied from time to time to respond to changes in local authorities’ workloads and
capacities, and changes in the internal organisation and processes of the Department for
Education may necessitate changes in the means by which local authorities consult, or
are notified by, the Secretary of State.

Justification for the procedure

266. The negative procedure is appropriate for procedural matters such as these, which are
likely to be of interest mainly to officials in local and central government. This is
consistent with similar powers already set out in Schedule 2 to the 2006 Act.

Clause 54 and Schedule 2 paragraph 24Amendment of paragraph 21(6) Schedule 2
EIA 2006 – Power to make provision regarding referral of implementation decisions to
Secretary of State
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary Procedure: Negative

54

Context and purpose

267. Where proposals for a new school have been approved and must then be implemented,
paragraph 21 of Schedule 2 to the EIA 2006 provides for the local authority to make
certain changes to the proposals or their implementation in light of subsequent events
(for example where the timetable has to be adjusted because of unavoidable delays in
construction work). The paragraph also provides, at sub-paragraph (6), for regulations to
prescribe a time after which, if the local authority has not already made such a decision
that falls to be made, they must refer the decision to the adjudicator within a prescribed
time. As part of changes made by clauses 51 to 54 of the Bill which, among other things,
give the Secretary of State a decision-making role in relation to some kinds of proposals
for new schools (those under section 7 of the EIA 2006), paragraph 24 of Schedule 2 to
the Bill amends paragraph 21 of Schedule 2 to the EIA 2006 limiting the adjudicator’s
role to proposals that are not made under section 7. Specifically, the sub-paragraph (6)
power described above is amended so that it does not apply to section 7 proposals.

Justification for the power

268. This is a narrowing of an existing delegated power to reflect the fact that clauses 51 to
54 give the Secretary of State, in some cases, a similar decision-making role to that
currently given to the adjudicator, and therefore confine the adjudicator’s role to other
cases. These are procedural matters that can appropriately be delegated to subordinate
legislation, especially as they may need to change from time to time as the practical
realities of planning and building new schools may change over time.

Justification for the procedure

269. This is an existing regulation-making power that is subject to the negative procedure,
and this Bill makes no change to that position. It appropriately reflects the procedural and
administrative nature of the matters dealt with by the regulations.
Part 3 – General Provisions
Clause 56(1): Consequential provision
Power conferred on: Secretary of State
Power exercised by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution Procedure, unless the power is exercised to
modify primary legislation etc, then Affirmative Resolution Procedure
Context and Purpose
270. This provides the Secretary of State with a power to make consequential provision in
connection with this Bill. Regulations made using this power may modify primary
legislation. In consequence, this is a Henry VIII power.
Justification for taking the power
271. This power may only be exercised to make provision which is consequential on the Bill.
It is not possible to establish in advance all of the consequential provision that may be
required; a power is needed to avoid any legal uncertainty or legal lacunas after the Act
comes into force.
Justification for the procedure

55

272. The Department considers that the affirmative resolution procedure should apply where
the power is exercised to modify primary legislation. The Department considers that the
negative resolution procedure is appropriate in all other cases.

56

Annex A – Summary of Delegated Powers
Clause/Schedule Power conferred Parliamentary
procedure
Part 1 – Children’s social care provisions
Clause 2(4): Amendment of
s.16E (new subsection (2A)(b))
of CA 2004
Power to make regulations designating childcare or education relevant agencies Affirmative
Clause 3(2): New section
16EA(2)(b) of CA 2004
Power to make regulations in relation to the support provided by multi-agency
child protection teams
Affirmative
Clause 3(2): New section
16EA(5) and (6) of CA 2004
Power to make regulations prescribing the requirements for persons nominated as
members of the multi-agency child protection team

Affirmative
Clause 3(2): New section
16EB(2)(a) of CA 2004
Power to designate the relevant agencies under a duty to enter into a co-operation
memorandum
Affirmative
Clause 4: New section 16LB(1)
of CA 2004
Power to specify a description of consistent identifier for children by regulations Negative
Clause 4: New section 16LB(10)
of CA 2004
Power to make regulations designating persons required to include the
consistent identifier when processing information about a child for the purposes
of safeguarding or promoting welfare
Negative
Clause 4: New section 16LA(6)
and 16LB(12) of CA 2004
Duty to have regard to guidance in relation to the duty to share information and
use of consistent identifiers for children

None
Clause 9(2): New section
22J(3)(f) of CA 1989
Power to add to the strategic accommodation functions by regulations that can be
exercised by two or more local authorities in regional co-operation arrangements
Affirmative
Clause 10(6) and (7):
Amendments to s.25 of CA 1989
An extension of powers to relevant accommodation for deprivation of liberty

Negative
Clause 11(4): New subsection
(2A) of section 22 of CSA 2000
Extending the power to make regulations specifying when a person is not fit to
carry on an establishment or agency

Negative
Clause 12(2): New section
30ZD(1) of CSA 2000
Power to make provision requiring the CIECSS to publish information about
monetary penalties imposed
Negative
Clause 13(2): New section
30ZE(2) of CSA 2000
Power to prescribe conditions as to the application of the Financial Oversight
Scheme
Affirmative

57

Clause 14(2)New section
30ZK(1) to CSA 2000
Power to limit profits of relevant providers Affirmative
Clause 14(2): New section
30ZK(4),(5) and (6)(b) to CSA
2000
Power for regulations prescribing profit caps to make provision as to how profit is
determined, including to specify adjustments for ‘disguised profit arrangements’
Affirmative
Clause 14(2): New section 30ZL
(1) of CSA 2000
Power to make provision about annual returns from relevant providers Negative
Clause 15: New section 30ZM(1)
and clause 16: new section
30ZN introducing Schedule 1A,
paragraph 4(2) of CSA 2000
Power to impose monetary penalties Affirmative
Clause 18(1): New section
32A(1) of CSWA 2017
Power to make regulations regarding local authorities’ use of agency workers to
carry out their children’s social care functions
Affirmative
Clause 20(2): New sections 17A
and 17B of CYPA 1933
Power to make regulations in relation to child employment in England

Negative
Part 2: Schools provisions
Clause 21: New section 551C of
EA 1996
Power to designate a school as one to which the duty to secure free breakfast
club provision does not apply
None
Clause 21: New section 551D of
EA 1996
Requirement on Secretary of State for Education to issue, and schools to have
regard to, guidance on running breakfast clubs and designation
None
Clause 21: New clause 551C(3)
of EA 1996
Regulations prescribing the application process for seeking an exemption to the
breakfast club duty
Negative
Clause 25(2): New section
436B(6) of EA 1996
Power to make regulations on when a child is to be regarded as falling or not
falling within eligibility for registration relating to children not in school
Affirmative first
time and Negative
thereafter
Clause 25(2): New section
436C(2) of EA 1996
Regulations prescribing specific details to be included in registers Affirmative
Clause 25(2): New section
436C(4) of EA 1996
Regulations about the keeping of registers and how time is to be recorded by a
parent or carer
Affirmative first
time and
Negative
thereafter
Clause 25(2): New clause
section 436E(1)(a)
Regulations setting a threshold for providers of out-of-school education to provide
information
Affirmative
Clause 25(2): New section Regulations making exceptions to duty to provide information Affirmative

58

436E(7) of EA 1996
Clause 25(2): New section
436E(9)
Regulations to set a monetary penalty for failure to provide information – and
inserting Schedule 31A paragraph 5 to provide regulations setting the increase in
the penalty if provided late
Affirmative first
time and
Negative
thereafter
Clause 25(2): New section
436F(1) of EA 1996
Regulations prescribing information local authorities must provide to the
Secretary of State
Affirmative first
time and
Negative
thereafter
Clause 25(2): New section
436F(2) of EA 1996
Regulations prescribing persons to whom Secretary of State may provide
information
Affirmative
Clause 26(2): New section
436I(5)(b) of EA 1996
(regulations made under section
550ZA(3)(f) of EA 1996)
Prescribed form of school attendance order. Negative
Clause 28: New section 436R of
EA 1996 (regulations made under
section 550ZC(7) of EA 1996)
Guidance on registration None
Clause 30(2): New section 92(5)
of ESA 2008
Regulation-making power to prescribe what, and how, factors are to be taken into
account, in determining whether education is full time and to make interpretative
provision
Affirmative
Clause 30(2): New section
92(9)(g) of ESA 2008
Regulation-making power to except institutions from the definition of ‘independent
educational institution’
Affirmative
Clause 31(2): New section
94(1A) and (3A) of ESA 2008
Extending the regulation-making power to make independent educational
institution standards
Negative
Clause 31(6)(b): New section
125(10) of ESA 2008
Tribunal rules about stays of suspensions of registration and stop-boarding
requirements
Negative
Clause 33(2): Amendments to
s.98(3), and new section 98(3A),
of ESA 2008
Duties to make regulations related to accommodation provided by third parties
and the buildings that will be occupied and regulation-making power to prescribe
types of special educational need

Negative
Clause 33(6): Amendment of
s.102 – new subsection (3) of
ESA 2008
Regulation-making power to prescribe form and content of applications for
material change approval
Negative

59

Clause 37(2)New section 137A
of ESA 2008
Regulation-making power to apply enactments, that apply in relation to
independent schools, in relation to independent educational institutions
Affirmative
Clause 39(3): New section
141AA of EA 2002
Power to amend the definition of online education provider Affirmative
Clause 40(2): Amendment to
s.133(6) EA 2002
Power allowing to set out in regulations the type of academy settings the
requirement to be qualified will apply to
Negative
Clause 40(3): Amendment to
s.135A (4) EA 2002
Power to set out in regulations the type of academy settings the requirement to
undertake statutory induction will apply to
Negative
Clause 41(2) and (3):
Amendments to s.1A and s.13 of
AA 2010
Curriculum: Consequential amendment to s.87(7)

None
Clause 41(2): New subsection to
section 1A after subsection (3) of
AA 2010
Consequential amendment to sections 90(1) and 91 No procedure
(90(1)) and
Negative (91)
Clause 42(1): New subsection
29A(5) of EA 2002
Off-site direction (information and reviews etc.) Negative
Clause 45(3): Expansion of
s.122 of EA 2002
Extension of statutory pay and conditions arrangements to Academy teachers
(extension of scope of pay order)
Negative
Clause 45(3) – New section
122(4A)(d) of EA 2002
Extension of statutory pay and conditions arrangements to Academy teachers,
power to exclude prescribed persons from scope

Negative
Clause 45(6): Amendment to
s.127 (2) and (4) of EA 2002
Extension of statutory pay and conditions arrangements to Academy teachers
(extension of scope of guidance)
None
Clause 49(2): New subsection
96(1A) of SSFA 1998
Power to specify in School Admissions Code circumstances in which a local
authority can direct a school to admit a child
Negative
Clause 50(2): New section
88IA(6) of SSFA 1998
Power to make regulations about the adjudicator’s exercise of power to set a
Published Admission Number
Negative
Clause 51(3)(e): Amendment to
s.7 of EIA 2006
Power to prescribe information that must be included in proposals for new state
schools published by a local authority as part of an invitation process
Negative
Clause 52(2)(c): Amendment to
s.10 of EIA 2006
Power to prescribe steps towards publicising certain proposals under section 10 of
the EIA 2006
Negative
Clause 54 and Schedule 2
paragraph 12: Amendment to
Power to make provision relating to referral of proposals to Secretary of State or
adjudicator
Negative

60

paragraph 10(3) Schedule 2 of
EIA 2006
Clause 54 and Schedule 2
paragraph 16: Amendment to
paragraph 13 Schedule 2 of EIA
2006
Power to make provision regarding referral of proposals to adjudicator where
determination delayed

Negative
Clause 54 and Schedule 2
paragraph 22: New paragraph
17A of Schedule 2 to the EIA
2006
Proposals to establish Academy: power to make provision regarding consultation
and notification

Negative
Clause 54 and Schedule 2
paragraph 24: Amendment of
paragraph 21(6) Schedule 2 EIA
2006
Power to make provision regarding referral of implementation decisions to
Secretary of State

Negative
Clause 56(1) Consequential provision

Negative
Resolution
Procedure, unless
the power is
exercised to
modify primary
legislation etc,
then Affirmative
Resolution
Procedure

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ANNEX BNon-legislative powers
The below table lists powers which are considered not to be legislative with an explanation
of why this is thought to be the case.

Clause Power
Clause 9 Power to direct 2 or more local authorities to make Regional Co-
operation Arrangements and the form in which they should be set
up, as well as to terminate such arrangements if necessary
Clause 13 Power to determine whether a person or undertaking meets the
prescribed conditions of the financial oversight scheme and through
a notice of determination to require the person to appoint a person
with a significant management role to ensure compliance with the
financial oversight scheme.
Clause 13 Power to require provision of a Recovery and Resolution Plan by
notice by a specified date, and to provide an explanation of any
information included in the plan.
Clause 13 Power to require Information from a person subject to financial
oversight by notice, and to require an explanation of any information
provided.
Clause 25 Power to decide what to add to the register of children not in school
Clause 25 Power to direct a local authority to provide the Secretary of State
with information of a prescribed description from the register
Clause 26 Powers to make administrative decisions relating to preliminary
notices and school attendance orders
Clauses 31(3) and
33(7)
Powers to direct inspections by the Chief Inspector in connection to
appeals against refusals to register or to grant approval for a
material change
Clause 31(4) Powers to suspend registration of an independent educational
institution and to impose a stop-boarding requirement
Clause 35(2) Power to impose a relevant restriction where there is an unapproved
material change
Clause 38 Reports from the Chief Inspector about the quality of independent
inspectorates and other inspectors
Clause 41 Academy schools: duty to follow National Curriculum
Clause 45 Academies: power to secure performance of proprietor’s duties etc
Clause 46 Repeal of the duty to make Academy order in relation to a school
causing concern
Clause 48 Power for local authorities to direct the admission authority of an
Academy school to admit a child
Clause 50 Power for the adjudicator to determine a revised admission number
in a school’s admission arrangements

Clause 54 and
Schedule 2
paragraph 14
Power to direct a local authority to refer proposals under section 7 to
the Secretary of State for decision
Clause 54 and
Schedule 2
paragraph 24
Power to direct a local authority to refer a decision about the
implementation of proposals under section 7 to the Secretary of
State

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Clause 9New Section 22J inserted into Children Act 1989 – Power to direct 2 or more
local authorities to make Regional Co-operation Arrangements and the form in which
they should be set up, as well as to terminate such arrangements if necessary

Power conferred onSecretary of State
Power exercisable by: Direction
Parliamentary Procedure: None

Context and purpose
1. The regionalisation of the commissioning and quality assurance of places for looked after
children to be accommodated in, and of certain fostering functions, is considered an
effective mechanism for driving down the increasing costs for local authorities meeting
their statutory duties to looked after children. Benefits will be realised through economies
of scale, as well as making it easier for neighbouring authorities to manage the
availability of places across a broader regional area.

2. Local authorities already have powers to work together to exercise their statutory
functions, but they are not obliged to. The Secretary of State wishes to be able to require
local authorities to make regional co-operation arrangements where it is appropriate.

3. Regional co-operation arrangements are currently being tested through pathfinders
(pilots). The pathfinders are currently in the setup phase and are due to begin next year
in Greater Manchester and the South East. We want to prescribe the local authority
strategic accommodation functions that will be carried out regionally in the Bill. The local
authorities participating in the pathfinders will be exercising these functions via their
regional co-operation arrangements. The outcome of the pathfinders will provide
valuable evidence to inform the exercise of the direction making power. Regional
circumstances differ greatly in terms of demand and supply of places and what may be
right for one area may not be right for another.

4. These measures will give the Secretary of State power to direct two or more local
authorities to make arrangements to carry out their ‘strategic accommodation functions’
jointly, to direct one authority to carry out those functions on behalf of the others or direct
local authorities to establish a body corporate to support them to carry out those
functions. If a direction is made requiring or permitting local authorities to make
arrangements with a body corporate the direction may require a body corporate of a
specified kind be established. These measures will allow the Secretary of State to direct
which of the arrangements the local authorities should make or specify more than one of
the arrangements and permit the local authorities to determine which arrangements to
make. The Secretary of State may also direct which local authority is to carry out the
functions or require that the local authorities themselves determine which of them is to
carry out the functions. In addition, the Secretary of State may make a direction requiring
the local authority to terminate a direction made in accordance with a direction.

5. Sub-section (2) defines ‘strategic accommodation functions’ as:

a) assessing current and future requirements for the accommodation of children
being looked after by the local authority,

b) developing and publishing strategies for meeting those requirements,

c) commissioning the provision of accommodation for children being looked after
by the local authority,

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d) recruiting prospective local authority foster parents and supporting local
authority foster parents,

e) developing, or facilitating the development of, new provision for the
accommodation of children being looked after by the local authority.

6. The direction making power will give the Secretary of State the ability to compel local
authorities to work together to deliver certain prescribed functions. Currently, local
authorities can work together to deliver their functions but can’t be compelled to do so.
This is a power to make directions to compel local authorities to work together which will
have a local effect, in specific cases and areas only. The facts which give rise to the
need to issue a direction will be different in each case, depending on local factors. The
Secretary of State is therefore much better placed to make a decision on the need for
such a direction than Parliament. The power limits the direction to certain prescribed
functions (strategic accommodation functions) and sets out broad criteria as to what
directions made under the power may cover.

7. Administrative procedures, such as directions, are more suitable and appropriate to
manage situations where different provision will be made for different local authority
areas.

8. The issuing of directions is an administrative act and, as is normal, the power is not
subject to parliamentary control. When the power is used it will be in relation to specific
cases and specific local authority areas. It will need to be issued in a timely way following
engagement with the local authorities involved. Directions are also intended to be
published. The Department’s view is that an administrative procedure is better suited to
decisions such as these than a parliamentary procedure.

Clause 13New section 30ZE of the CSA 2000 – Power to determine whether a person
or undertaking meets the prescribed conditions of the financial oversight scheme and
to require the appointment of a person with a significant management role
Power conferred on: Secretary of State
Power exercisable by: Determination
Parliamentary Procedure: N/A

Context and purpose
9. Once the Secretary of State has made regulations setting conditions for the application
of the financial oversight, the Secretary of State may then determine that a provider or
undertaking meets them or not as the case may be.

10. The conditions for the application of the oversight scheme are likely to be based in the
main on measurable criteria such as number of establishments and agencies, but they
could also be based on more subjective assessments of value such as degree of
specialism in looking after children with particular vulnerabilities, or the availability of
specialist facilities, hence the need for some discretion in determining whether a person
or undertaking meets the conditions or not.

11. As it would be very difficult to prescribe degrees of specialism in regulations, we consider
a power to determine whether the conditions are met to be appropriate.
Clause 13: New section 30ZG of the CSA 2000 – Power to require provision of a
Financial Sustainability, Recovery and Resolution Plan

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Power conferred onSecretary of State
Power exercisable by: Notice
Parliamentary Procedure: N/A

12. Upon the Secretary of State determining that the conditions of the Financial Oversight
Scheme apply to a person or undertaking, then that person is required on notice from the
Secretary of State to submit a Financial Sustainability, Recovery and Resolution Plan to
the Secretary of State. The Bill sets out the matters about which such a plan contains
information and therefore the Secretary of State does not have any powers to prescribe
or otherwise control the content of the plan. The Secretary of State will also have the
power to require the submission of a new plan, upon the request. That might be the case
where the Secretary of State considers that the existing plan is inadequate, or where
changes to an undertaking’s financial position has rendered it outdated. We consider
such a power to require a new plan by notice to be justifiable as it still does not give the
Secretary of State any powers to dictate the content of the plan, but it will give the
Secretary of State some control over ensuring that plans are up to date, which is
essential if the Secretary of State is to be able to assess the risks to a local authority
resulting from the business failure of a particular provider or undertaking. The Secretary
of State will also be able to require the provision of a plan by a particular date, by notice.
We do not consider this a particularly controversial power, as it just means that providers
or undertakings will not be able to be dilatory in the preparation and submission of their
plans.
Justification for procedure
13. As the power is not for the Secretary of State to impose requirements as to what a plan
must contain, or to give the Secretary of State any power of approval of a plan – it
merely confers a power to notify when a plan must initially be submitted by and when a
new plan must be provided – we consider the notice procedure to be sufficient.
Clause 13(2): New section 30ZH of the CSA 2000 – Power to require information
Power conferred on: Secretary of State
Power exercisable by: Notice
Parliamentary Procedure: N/A

Context and purpose
14. If the conditions of the Financial Oversight Scheme are determined to apply to a person
or undertaking, that person will become subject to an obligation to provide such financial
information as the Secretary of State may require by notice. The purposes for which such
information may be required are set out on the face of the Bill (for example for
ascertaining the true ownership structure of a corporate group, or for assessing the risks
to the financial sustainability of a person or undertaking). However, the precise types of
financial information which the Secretary of State may need to assess financial
sustainability and other matters will be many and varied and will differ from undertaking
to undertaking, depending on their nature and size. It would not be possible to set these
out in any complete sense in primary or secondary legislation.

15. Given the above, the power to require the provision of information by notice is
considered appropriate.

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Clause 25New section 436C(3) – Power to decide what to add to the register of
children not in school

Power conferred onlocal authority
Power exercisable by: No method prescribed by statute
Parliamentary Procedure: None

Context and Purpose
16. Local authorities in England must maintain Children not in School registers which must
contain certain specified information described in new section 436C(1). The register must
also contain certain other specified information listed in new section 436C(2) but only if
the local authority has or can reasonably obtain it.

17. New clause 436C(3) adds to these duties a power which enables a local authority to
include any additional information that they hold which is not already contained in the
register but which the local authority considers to be appropriate to be included. This
does not place a new obligation on parents to provide further information because the
power relates only to information already collected by the local authority.
Clause 25: New section 436F(1) – Power to direct a local authority to provide the
Secretary of State with information of a prescribed description from the register
Power conferred on: Secretary of State
Power exercisable by: No method prescribed by statute
Parliamentary Procedure: None

Context and Purpose
18. Local authorities must maintain a children not in school register of eligible children which
contains certain prescribed information relating to the child and the organisations which
are providing education to the child without active involvement or supervision by a
parent.

19. New clause 436F(1) provides a power for the Secretary of State to direct a local authority
to provide her or him with certain information contained in a local authority’s register. This
will be limited to information from the register which is described in regulations.
Clause 26: New sections 436H-436O – Powers to make administrative decisions
relating to preliminary notices and school attendance orders

Power conferred onLocal authority
Power exercisable by: No method prescribed by statute
Parliamentary Procedure: None

Context and Purpose

20. Under existing section 437 Education Act 1996 local authorities already have powers to
issue school attendance orders where it appears that a child of compulsory school age is
not receiving suitable education. The new clauses enhance the scheme and improve its
efficiency. The powers will be used in a case specific and child specific context and
would not be appropriate for parliamentary scrutiny.

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Clauses 31(3) and 33(7)Powers to direct inspections by the Chief Inspector in
connection to appeals against refusals to register or to grant approval for a material
change

Powers conferred onSecretary of State
Powers exercisable by: Direction
Parliamentary Procedure: None
Context and Purpose
21. Clauses 31(3) and 33(7) amend the ESA 2008 to, amongst other things, provide the
Secretary of State with new direction-making powers to require His Majesty’s Chief
Inspector of Education, Children’s Service and Skills (“the Chief Inspector”) to inspect an
independent educational institution in connection with two types of appeals to the First-
tier Tribunal. These are appeals under section 125(1)(a), against a refusal to register an
institution and appeals, and under section 125(1)(b), against a refusal to grant approval
for a material change.

22. The direction-making powers simply build on pre-existing provisions in the ESA 2008 –
namely i. the duty imposed on the Chief Inspector, in section 99(1), to inspect an
institution in connection with the determination of an application to register it, and ii. the
power, currently in section 103(1), to direct the Chief Inspector to inspect an institution in
connection with an application for material change approval. The new powers enable an
inspection to be carried out, where one of the appeals in question takes place, in order to
give the Tribunal an up-to-date picture at an institution so as to better inform its decision-
making.

23. The issuing of directions is an administrative act and, as is usual, the new powers here
are not subject to parliamentary controls. This is the case with another power in the ESA
2008 to direct the Chief Inspector to carry out an inspection (that in section 109) and
which is commonly used to direct an inspection for the purposes of different types of
appeals; namely, appeals to the First-tier Tribunal, under section 124(1)(d) or section
125(1)(c), against enforcement action.
Clause 31(4): New sections 118A to 118F ESA 2008 – Powers to suspend registration
of an independent educational institution and to impose a stop-boarding requirement
Power conferred on: Secretary of State
Power exercisable by: Other
Parliamentary Procedure: None

Context and Purpose
24. Under the ESA 2008, there are enforcement powers available to the Secretary of State
for the purposes of enforcing the independent educational institution standards (see
section 94 regarding these standards – “the standards”). These powers are limited to
either the Secretary of State imposing a relevant restriction or removing the institution
from the register of independent educational institutions (see sections 115 to 117).

25. This clause adds to these powers by giving the Secretary of State the power to
temporarily suspend the registration of an institution where there are breaches of the
standards and as a result of the breaches, the Secretary of State considers that there is
a risk of harm to students at the institution. In addition, it confers a power on the

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Secretary of State to impose a requirement on the proprietor of an institution that
provides boarding to its students, to cease to do so (where its registration is also
suspended). This is called a “stop boarding requirement”. The proprietor of an affected
institution will be criminally liable where education or supervised activity is provided to
students at an institution whilst its registration is suspended or where a stop boarding
requirement is breached.

26. The powers are intended to add to the remedies which are available to the Secretary of
State, to enable swifter and more appropriate action to be taken where there are
breaches of the standards that give rise to a risk of harm to students. In the
Department’s view, it is essential that the Secretary of State has the flexibility to be able
to take action to quickly to address such situations – to seek to put students out of
harm’s way.

27. For instance, currently, before enforcement action may be taken under sections 115 and
116, the Secretary of State must have first required a proprietor to produce an action
plan – effectively, to first give an opportunity to the proprietor to rectify failings against
the standards. This will not be a requirement in the case of the new powers and
therefore, the Secretary of State will be able to move quickly to suspending registration
or imposing a stop boarding requirement without the delay that requiring an action plan
would involve.

28. In addition, where there is a perceived risk of harm to pupils the Secretary of State may
apply to the Magistrates’ Court for an order under section 120 of the ESA 2008.
However, a court here can order de-registration which would mean permanent closure of
an institution. That may be considered inappropriate where changes would be made
relatively quickly at the institution to rectify the situation. Alternatively, the court might
impose a relevant restriction, but that may not be a suitable remedy where there are
widespread failings at an institution.

29. A power to suspend registration, or impose a stop boarding requirement, will enable the
Secretary of State to respond appropriately to breaches of the standards that put
children at risk. Analogous powers are available under other regimes, in similar
circumstances – for example, see regulations 8 and 9 of the Childcare (Early Years and
General Childcare Registers) (Common Provisions) Regulations 2008 and section 31 of
the Health and Social Care Act 2008.

30. The Department’s view is that the new powers here are administrative in nature,
because they are powers to make decisions in respect of individual institutions (where
there are breaches of the standards, that in the specific circumstances risk student
safety).

31. In addition, other administrative decisions made by the Secretary of State under the ESA
2008 are not subject to a parliamentary procedure, including the current power to
deregister in section 105 and the powers to de-register or impose relevant restrictions
under sections 115 and 116. Further, other amendments made by this clause will enable
proprietors affected by a suspended registration or a stop boarding requirement to
appeal against them to the First-tier Tribunal.

Clause 35(2)New section 105(1A) of the ESA 2008 – Power to impose a relevant
restriction where there is an unapproved material change

Power conferred onSecretary of State
Power exercisable by: Other
Parliamentary Procedure: None

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Context and purpose

32. Clause 33 of the Bill makes various amendments to the material change regime in the
ESA 2008 – a regime that requires the prior approval of the Secretary of State before
certain changes are made in how an independent educational institution operates or
where it has a change of proprietor. Section 105 of that Act already provides the
Secretary of State with a power to de-register an institution where there is an
unapproved material change. Amendments made by clause 35 would add to those
powers and enable the Secretary of State to impose a “relevant restriction” where there
has been an unapproved material change. In broad terms, a relevant restriction is a
restriction imposed on the proprietor of an independent educational institution, restricting
how the institution may operate (see section 117 of the ESA 2008). It would be an
offence for a proprietor to breach a relevant restriction imposed under the new power (as
it is the case where a relevant restriction is imposed under other powers currently in the
ESA 2008).

33. Mechanisms need to be in place to enforce the material change regime, to allow for the
Secretary of State (as the regulatory of independent educational institutions in England)
to take action in appropriate cases where there are unapproved material changes; for
example, to require proprietors to correct unapproved material changes where there are
connected breaches of the independent educational institution standards under section
94 of the ESA 2008. Without such mechanisms, the regime will fall into disrepute.

34. Currently, under section 105, the Secretary of State is limited to de-registering an
institution, which would require its closure (since it is a criminal offence to conduct an
unregistered independent educational institution). That is likely to be a disproportionate
response in many cases. Therefore, the new power to impose a relevant restriction is
proposed to enable the Secretary of State to more appropriately respond to unapproved
material changes.

35. The Department considers that the power is not in the nature of a legislative power. It is
an administrative power to make decisions in respect of individual institutions – as
opposed to one, for example, to make rules of general application to independent
educational institutions.

36. Other administrative decisions, made by the Secretary of State under the ESA 2008, are
not subject to a parliamentary procedure. For example, the current power to deregister in
section 105 and the powers to de-register or impose relevant restrictions under sections
115 and 116. In addition, because of other amendments made by the clause, a
proprietor affected by a relevant restriction under the new power may appeal to the First-
tier Tribunal against it.

Clauses 38New section 87BA(1) of the CA 1989 and section 107(1) of the ESA 2008 –
Reports from the Chief Inspector about the quality of independent inspectorates and
other inspectors

Power conferred onSecretary of State
Power exercisable by: Requirement
Parliamentary Procedure: None

Context and Purpose

37. Under section 107 of the ESA 2008, the Chief Inspector (His Majesty’s Inspector of
Education, Children’s Services and Skills) is currently obliged to provide, at least

69

annually, to the Secretary of State a report about each independent inspectorate – for
the purposes of quality assurance. These are bodies appointed under section 106 of the
ESA 2008 to inspect independent educational institutions, instead of the Chief Inspector.
There is a similar obligation imposed on the Chief Inspector under section 87BA of CA
1989 to report on inspectors appointed (instead of the Chief Inspectors) to consider
whether schools and colleges in England are complying with their duty under section
87(1) of the CA 1989 to safeguard and promote the welfare of their boarders.

38. Amendments made by clause 38 removes this duty, of at least annual reporting, by
instead imposing a duty on the Chief Inspector to report as and when required by the
Secretary of State. They also allow for additional flexibility in permitting the Secretary of
State to require reports on one or all inspectorates (or inspectors) or about a class of
them.

39. Currently, there is only one independent inspectorate (the Independent Schools
Inspectorate – “ISI”) and it is also appointed under the CA 1989 to inspect independent
schools against the duty in section 87(1). With ISI being a long established and
experienced inspectorate, it now appears unnecessary that the Chief Inspector should
have to report at least annually on it. Instead, more flexibility within the system is
desirable to be able to require reports as and when appropriate – and even more so
should further less experienced inspectorates be appointed in the future.

40. The Department considers that the power is not in the nature of a legislative power. It is
in the nature of an administrative power, akin to a direction-making power, and,
therefore, not one that would ordinarily be expected to be either in a statutory instrument
or conditional on an opportunity for parliamentary debate.

Clause 41Academy schools: duty to follow National Curriculum

Power conferred onSecretary of State
Power exercisable by: Direction of Secretary of State
Parliamentary Procedure: None

Context and purpose
41. This clause consequentially amends s.90(1) of the 2002 Act to expand the list of bodies
who may be subject to a direction by the Secretary of State modifying the application of
the national curriculum, in order to enable development work or experiments be carried
out, to include academy schools.

Justification for the power
42. This existing direction-making power allows for the Secretary of State to make directions
(upon application by a maintained school’s governing body), modifying the application of
the national curriculum in respect of maintained schools for a period of time to enable the
school to carry out curriculum development work or experiments.

43. These are existing direction making powers which need to also apply to academy
schools in order for the national curriculum (and powers to modify application of the
national curriculum) to operate in the same way in relation to academies as it does for
maintained schools. The Department considers that given the changing nature of the
curriculum, applications for a direction to disapply the national curriculum in order for the
school to pursue short term curricula development work and experiments are the sort of
technical, administrative matters that are commonly dealt with by means of a direction
making power.

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44. The Department considers no procedure to be appropriate for a non-legislative
administrative power of this nature. This clause represents a consequential amendment
to an existing power to make directions. If it was not possible for directions to be made in
line with new developmental work or experiments this would frustrate the intention of the
power.

Clause 43Academies: power to secure performance of proprietor’s duties etc

Power conferred onSecretary of State
Power exercisable by: Direction
Parliamentary Procedure: None

Context and purpose

45. The measure confers on the Secretary of State the power to issue a direction to an
academy trust when the academy trust is not complying with a legal duty or complying
with a duty in an unreasonable way or exercising a power in an unreasonable way. The
Secretary of State may give directions as she or he considers appropriate to secure the
proper performance of the relevant duty or as to the exercise of the relevant power.
Compliance with the direction will be enforced by application for a mandatory order. The
compliance direction replicates similar powers relating to maintained schools in section
496 and section 497 of the Education Act 1996.

46. The purpose of the power is to enforce compliance by academy trusts with legal
requirements and prevent the unreasonable use of their powers. It is a stand-alone
power (relative to other enforcement measures), enforceable by mandatory order.

47. The power will improve the Secretary of State’s ability to intervene in academies. It
replicates a power to make compliance directions to governing bodies and local
authorities responsible for maintained schools, who the Secretary of State assesses to
be failing to comply with their legal obligations, or complying with their duties in an
unreasonable way, or exercising powers in an unreasonable way. Currently, when an
academy is not complying with their legal obligations the only option available to the
Secretary of State is to issue a termination warning notice to the relevant academy trust,
threatening to terminate the funding agreement for the academy (and thereby remove
the academy from the academy trust). This is not proportionate for all breaches, many of
which are minor and easily remedied. A compliance direction is an effective alternative to
the termination warning notice procedure, requiring the trust to remedy the breach
without the threat of removing the school from their care.

48. This is a power to make an administrative direction that has local effect in a specific case
only. The facts which give rise to the need to issue a direction will be different in each
case. The Secretary of State is therefore much better placed to make the decision on
whether to issue a compliance direction in a particular case than Parliament, and the
power sets out the broad circumstances where a direction will be appropriate, so limiting
the discretion so it may only be exercised where legal duties are not being met or the
behaviour is unreasonable. Administrative procedures are more suitable and appropriate
to manage specific cases, such as this.

49. The issuing of directions is an administrative act and, as is normal, the power is not
subject to parliamentary control. When the power is used it will be in relation to specific
cases and will need to be issued in a timely way following engagement with those
involved. Directions are also intended to be published. In the event the conditions arise
where a compliance direction could be issued, the information required to make a

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decision on whether to issue a direction will be fact based, local and specific. The
Department’s view is that an administrative procedure is better suited to make these
decisions than parliamentary procedure.

50. A compliance direction may also need to be made urgently, to remedy an action taken by
an academy trust that risks harm to pupils or other persons. Waiting for parliamentary
approval would be problematic in such cases.

Clause 44Repeal of duty to make Academy order in relation to school causing
concern
Power conferred on: Secretary of State
Power exercisable by: Order
Parliamentary Procedure: None

Context and purpose

51. An academy order has the effect of converting a maintained school into an academy.
Currently, the Secretary of State is under a duty in section 4(A1) of the Academies Act
2010 to issue an academy order to maintained schools that are assessed to be in a
statutory category causing concern (‘requires significant improvement’ or requires
‘special measures’ per section 44 of the Education Act 2005). An academy order is not a
statutory instrument (section 4(6) Academies Act 2010). This clause converts that duty
into a power.

52. Converting a maintained school into an academy under the sponsorship of a high
performing multi-academy trust is one way of seeking to improve the performance of a
maintained school. These clauses allow for a more flexible approach to school
intervention based on the needs of the school and range of intervention options
available. Accordingly, this clause removes the duty to make an academy order in
relation to schools in categories causing concern and instead gives the Secretary of
State the discretion to do so.

53. The Secretary of State already has a discretionary power to make an academy order in
respect of schools that are ‘eligible for intervention’. This measure effectively just
expands that power to include schools in a ‘category causing concern’.

54. This power will improve the Secretary of State’s ability to flexibly intervene in the worst
performing schools. Currently the only intervention option available to the Secretary of
State in those schools is to academise them. However, there may not be an appropriate
trust, or one who is performing well enough locally, to take on the maintained school.
The maintained school may have special characteristics (e.g. a religious character) that
make it difficult to find an appropriate trust to take on the school. Converting the duty to a
power gives the Secretary of State the option of using the range of other intervention
options available to improve the school, such as requiring the school to seek external
assistance.

55. The decision on whether to academise a school in a category causing concern is a fact
specific, local decision that depends on the application of a policy which is likely to
change from time to time, to a particular set of facts. These decisions are likely to fall to
be made frequently; every time a maintained school is assessed as being in a category
causing concern and they relate only to one school. There is provision in the legislation
for copies to be provided to those affected. Such decisions are more appropriately made
by the Secretary of State based on factors which may alter over time and are not
legislative in nature.

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56. These decisions are already made with respect to the existing discretionary power above
and in relation to whether to revoke academy orders made under the existing duty. The
administrative procedures therefore exist to make these decisions effectively and fairly
and that the decisions under this power are taken in the same manner.

57. We note that, in relation to the existing power to make an academy order located in
section 4 of the Academies Bill 2010, the House of Lords Delegated Powers and
Regulatory Reform Committee report concluded that academy orders are not legislative
in nature and there is no reason that Parliament would wish to have control over them.
The Committee did not report on the relevant provision of the Education and Adoption
Bill 2016 which amended the power to make academy orders to a duty in respect of
schools causing concern.

58. An academy order is an administrative measure which will be used in relation to specific
cases. A large number of academy orders may be issued and the information required to
make a decision whether to issue an academy order will be local and specific. The
Department’s view is that an administrative procedure is better suited to determine these
decisions than parliamentary procedure.

Clause 48Power for local authorities to direct the admission authority of an Academy
school to admit a child

Power conferred onLocal authorities
Power exercised by: s97 School Standards and Framework Act 1998
Parliamentary Procedure: None

Context and purpose

59. The vast majority of pupils secure school places through the usual admissions
processes, by way of the standard school admissions procedure administered by the
local authority, with applications made by a cut-off date before the school year starts, or
else by way of in-year applications. However, where that is not the case a small number
of pupils are unable to secure a school place in this way and the statutory School
Admissions Code (the Code) sets out the requirement for each local authority to have a
Fair Access Protocol (FAP) in place. This is to ensure that unplaced and vulnerable
children, and those who are having difficulty in securing a school place in-year, are
allocated a school place within 20 days. The Code also requires schools to participate in
their local FAP, which includes admitting children referred to their school via the FAP.

60. Sections 96 and 97A of the School Standards and Framework Act 1998 (SSFA 1998)
give local authorities the power to direct a maintained school, for which they are not
themselves responsible for admissions, to admit a child in their area. Section 97A
enables local authorities to direct the admission of a child they look after to any
maintained school in the country. Section 96 enables local authorities to direct the
admission of all other children who are not looked after into a maintained school within
its own area, where the child has been refused admission to or excluded from every
suitable school within a reasonable distance of their home and which provides suitable
education.

61. Local authorities’ powers to direct cannot be used to direct admission to a school which
has excluded that child. The effect of the direction is that the governing body must admit
the child. Section 97 and 97B of the SSFA 1998 set out the statutory process for making
a direction, including consultation and the opportunity for the governing body to refer the
matter to the Schools Adjudicator.

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62. This measure extends sections 96 and 97A so that local authorities can direct academy
schools (except special schools) to admit a child in the relevant circumstances, as well
as maintained schools. It means where a local authority seeks to place a child into an
academy, it can do so via a more direct route, minimising the time the child is out of
school.

63. Currently local authorities cannot direct academy schools to admit a child and must ask
the Secretary of State to exercise separate powers of direction set out in the academy’s
funding agreement. This process involves local authorities submitting a request and the
Secretary of State taking the advice of the Schools Adjudicator before coming to a
decision on whether to direct the school, which can delay getting the child into
school. Data currently suggests that there is an average delay of 38 days between a
request being made and a child being admitted to school, not including time the child is
out of school while the local authority attempts to resolve the matter itself and then
compiles the paperwork necessary for a request.

Clause 50New section 88IA School Standards and Framework Act 1998 – power for
the adjudicator to determine a revised admission number in a school’s admission
arrangements

Power conferred onAdjudicator
Power exercised by: No method prescribed by statute
Parliamentary procedure: None

Context and purpose

64. Schools’ admission authorities are required to determine the admission arrangements
that will apply to the school for the coming year. This includes setting a Published
Admission Number (PAN): the number of pupils it is intended to admit that year for each
of the main points of entry to the school, e.g. reception or Year 7. Objections to
admission arrangements can be made to the schools adjudicator who must decide
whether to uphold the objection, and where they do, to publish reasons. Those decisions
are binding, but it is up to admission authorities to decide how best to give effect to the
adjudicator’s determination that a PAN is unlawful.

65. This clause gives the adjudicator the power to determine a PAN when they uphold an
objection wholly or partly about a PAN. Admission authorities will then need to amend
their admissions arrangements to reflect the PAN specified by the adjudicator, meaning
admission authorities will no longer have discretion over how to give effect to this aspect
of the adjudicator’s determination. The broader measure also includes a power for
regulations to specify which matters the adjudicator must or must not take into account
when determining a PAN (clause 50(2)).

66. Any person or body can object to a PAN reduction but the government also intends to
give local authorities, through changes to The School Admissions (Admission
Arrangements and Co-ordination of Admission Arrangements) (England) Regulations
2012, the power to object where a PAN is being maintained or increased. This clause
therefore gives local authorities greater influence over place planning in their area,
helping them to meet their duty to provide sufficient suitable school places for their area
and respond to the needs of the local community, including tackling issues like surplus
places.

67. Schools’ admission authorities will continue to be able to vary their PAN in light of a
major change in circumstances, subject to any restrictions set out in regulations provided

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for by section 88E of the Schools Standards and Framework Act 1998 and the statutory
School Admissions Code.

Clause 54 and Schedule 2 paragraph 14 – Power to direct a local authority to refer
proposals under section 7 to the Secretary of State for decision

Power conferred onSecretary of State
Power exercised by: Direction
Parliamentary procedure: None

Context and purpose

68. Clauses 51 to 54 make changes to the processes for establishing certain new state
schools in Part 2 of and Schedule 2 to the Education and Inspections Act 2006 (“the
2006 Act”). Currently section 7 of and Schedule 2 to the 2006 Act provide for local
authorities to invite proposals for certain types of new schools and for those proposals to
be decided by the local authority or, in some cases, the adjudicator. Paragraph 12 of
Schedule 2 to the 2006 Act gives the Secretary of State the power to direct a local
authority to refer to the adjudicator any proposals for new schools that have been
published under section 7 of the Act but have not yet been decided. Clauses 51 and 54
of this Bill, and other paragraphs of Schedule 2 to the Bill, have the effect that it is to be
the Secretary of State, rather than the adjudicator, who decides section 7 proposals in
cases where the local authority themselves are not the decision-maker. Consequently
paragraph 14 of Schedule 2 to this Bill amends paragraph 12 of Schedule 2 to the 2006
Act so that the Secretary of State’s power of direction becomes a power to direct referral
of proposals to herself or himself and not to the adjudicator.

69. This is a power to make an administrative direction that has local effect in a specific case
only. The facts which give rise to the need to issue a direction will be different in each
case. It is an existing power that has been in place since 2006. As is normal, the power
is not subject to parliamentary control. All that is being changed is the person to whom
the Secretary of State may direct proposals to be referred. A direction does not change
the law or create any general or ongoing legal effect.

Clause 54 and Schedule 2 paragraph 24 – Power to direct a local authority to refer a
decision about the implementation of proposals under section 7 to the Secretary of
State

Power conferred onSecretary of State
Power exercised by: Direction
Parliamentary procedure: None

Context and purpose

70. Clauses 51 to 54 make changes to the processes for establishing certain new state
schools in Part 2 of and Schedule 2 to the Education and Inspections Act 2006 (“the
2006 Act”). Currently section 7 of and Schedule 2 to the 2006 Act provide for local
authorities to invite proposals for certain types of new schools and for those proposals to
be decided by the local authority or, in some cases, the adjudicator. Paragraph 21 of
Schedule 2 to the 2006 Act makes provision for various decisions to be made about the
implementation of proposals that have been approved, and paragraph 21(6) provides for
a local authority who have not made such a decision by a prescribed time to be required
to refer the decision to the adjudicator.

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71. Clauses 51 and 54 of this Bill, and other paragraphs of Schedule 2 to the Bill, have the
effect that it is to be the Secretary of State, rather than the adjudicator, who decides
section 7 proposals in cases where the local authority themselves are not the decision-
maker. Consequently it would no longer be appropriate for decisions about the
implementation of such proposals to be referred to the adjudicator. Paragraph 24 of
Schedule 2 to this Bill therefore amends paragraph 21 of Schedule 2 to the 2006 Act.
Rather than creating a new delegated legislative power requiring referral in a general
class of cases, it provides that the Secretary of State may direct referral to herself or
himself on a case-by-case basis. This enables the Secretary of State to make a fact-
sensitive decision about whether, for example, a local authority is taking too long to make
a decision about a given case.

72. This is a power to make an administrative direction that has local effect in a specific case
only. The facts which give rise to the need to issue a direction will be different in each
case. As is normal, the power is not subject to parliamentary control. A direction does not
change the law or create any general or ongoing legal effect.