DPRR/12-13/17

The delegated powers memorandum is prepared for the Delegated Powers and Regulatory Reform Committee and is an explanation of the powers to make regulations and orders contained in the Bill.

It sets out why the power has been taken, the proposed use and the approval procedure (negative or affirmative resolution) to be used, together with the reasons why that procedure is thought to be appropriate.

PROVISIONS ABOUT CHILDREN AND YOUNG PEOPLE IN ENGLAND WITH SPECIAL EDUCATIONAL NEEDS

Memorandum prepared by the Department for Education for the Delegated Powers and Regulatory Reform Committee

INTRODUCTION

  1. This Memorandum identifies the provisions in the Children and Families Bill that confer powers, or amend or extend existing powers, to make delegated legislation. The Annexsets out a summary of the clauses that contain powers to make secondary legislation.
  1. The section below headed “Provisions for Delegated Legislation” explains in relation to each power:

a) what the power does;

b) why the power has been taken; and

c) the nature of, and the reason for, the procedure for Parliamentary scrutiny that has been selected.

BACKGROUND

Part 1 – Adoption and children looked after by local authorities

  1. Part 1 of the Bill contains provisions to speed up the adoption process and enable more children to be placed in stable, loving homes with less delay and disruption.
  2. It also amends the Adoption and Children Act 2002 (“2002 Act”) (a) to provide for the Secretary of State to give directions to local authorities to require authorities to make arrangements with other adoption agencies with regard to the recruitment, assessment and approval of prospective adopters; (b)to require local authorities to provide information to prospective adopters and others in relation to adoption support services provided by local authorities as part of their Adoption Service; and (c) to make changes in relation to the Adoption and Children Act Register (“the register”) (these provisions have not yet been commenced) to remove the Order in Council procedure, and for the Secretary of State to establish the register (which will be for England). Regulations will set out the content of the register and make provision in relation to access to the register and disclosure of information.
  3. The clauses also make changes to the Children Act 1989 (“the 1989 Act”) in relation to the contact arrangements for children in the care of the local authority and to the 2002 Act in relation to contact arrangements from the point at which an adoption agency is authorised to place a child for adoption.

Part 2 – Family Justice

  1. Provisions in Part 2 are intended to promote the resolution of disputes away from court wherever possible, to ensure that decisions made by the family courts about the arrangements for children following parental divorce or separation reflect the benefit to the child of maintaining the ongoing involvement of both parents in a child’s life, and to streamline the court process for divorce or dissolution of a civil partnership.
  1. Other family justice provisions in the Bill are intended to ensure the more timely progression of care and supervision proceedings by introducing time limits for the proceedings, and removing time limits for the duration of interim orders, by ensuring decisions regarding the extension of the time limit and drawing up and revising the timetable are made with explicit reference to the child’s welfare, by requiring the court to focus on essential issues when considering the care plan, and by ensuring that expert evidence in all family proceedings concerning children is permitted only when necessary to resolve proceedings justly.

Part 3 – Children and young people in England with Special Educational Needs

  1. Clauses19to73 make provision for identifying children and young people with special educational needs (“SEN”), assessing their needs and making provision for them. They require local authorities to keep local provision under review, to co-operate with their partners to plan and jointly commission provision and publish information aboutservices available. The clauses set out the statutory framework for identifying, and assessing the needs of children and young people who require special educational provision beyond that which is normally available. Statements and learning difficulty assessments are replaced by new education, health and care plans.
  1. Parents of children with statements of special educational needs currently have a right to express a preference for the maintained school they wish their child to attend. The provisions extend the right to express a preference for a particular educational institution to young people with an education, health and careplan (“an EHC plan”) and to enable both young people and parents of children with SEN to express a preference for Academies, further education colleges and sixth form colleges, non-maintained special schools and institutions approved by the Secretary of State (independent “special” schools and independent specialist providers), as well as maintained schools. If one of these institutions is named in a child or young person’s EHC plan, it will be under a duty to admit that child or young person.
  1. The provisions are also intended to provideparents and young people with greater control over the way their support is provided, for example by providing for greater involvement in assessments, and by personal budgets. The provisions introduce a requirement to obtain advice and information about mediation before appeals can be made to the First-tier Tribunal. This is to help resolve disagreements without the need for Tribunal appeals wherever possible. The provisions also include a power to pilot giving children the right to make appeals to the Tribunal themselves, rather than the appealhaving to be made by their parent.
  1. The clauses replace and extend, in relation to England, provisions in Part 4 of the Education Act 1996 (“the 1996 Act”) and associated Schedules and regulations, and sections 139A to 139C of the Learning and Skills Act 2000, which will be repealed in relation to children and young people in England.

Part 4 – Childcareetc.

  1. The provisions introduce a choice in the way childminders are registered and regulated to provide childcare. The aim is to encourage new childminders to the profession and to improve the quality of provision. Currently Part 3 of the Childcare Act 2006 requires childminders (unless exempted) to be registered with, and inspected by, Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (“the Chief Inspector”). Clause 74 and Schedule 4 amend the Childcare Act 2006 to provide for childminder agencies so as to allow a childminder to register with a childminder agency rather than directly with the Chief Inspector. Achildminder agency is to be registered with the Chief Inspector before childminders can register with that agency.

Part 6 – Statutory Rights to Leave and Pay

  1. This Part amends the provisions for parents and adopters to access statutory leave and pay connected to the birth or adoption of a child.
  1. Clauses 89 to 92 amend the Employment Rights Act 1996 (“ERA”) and the Social Security Contributions and Benefits Act 1992 (“SSCBA”) to create a new employment right to shared parental leave and statutory shared parental pay for eligible parents in the period following the birth of a child. It enables a mother on maternity leave or in receipt of statutory maternity pay or maternity allowance to bring an end to that leave and pay (or allowance) and for the mother and/or the father or the mother’s partner to access shared parental leave and pay. The clauses also create analogous rights to shared parental leave and pay for adopters.
  1. Clause 93 amends the ERA to provide that prospective adopters with whom a looked after child is placed for fostering may be entitled to adoption leave and pay and paternity leave and pay.
  1. Clause 94creates statutory rights to leave and pay for applicants for parental orders, so that intended parents in surrogacy cases may access adoption leave and pay and paternity leave and pay.
  1. Clause 95 amends the provisions in the SSCBA concerning paternity pay to enable an increase by regulations of the number of weeks of paternity pay and to allow them to be paid discontinuously.
  1. Clause 96provides that statutory adoption pay shall be paid at an earnings-related rate for 6 weeks, reflecting the arrangements for statutory maternity pay which is paid at 90% of salary for 6 weeks and thereafter at the lower of 90% of salary or the prescribed flat rate.
  1. Clause 97 provides for the abolition of additional paternity leave and additional statutory paternity pay, which are to be replaced by shared parental leave and statutory shared parental pay.

TERRITORIAL COVERAGE

Adoption and children looked after by local authorities

  1. Children’s services and adoption are devolved matters so the changes to the duties on local authorities in the 1989 Act and the 2002 Act extend to England and Wales but apply (other than the change made by clause 7(2) to section 34 (1) of the 1989 Act) in relation to England only. Family proceedings and family law is not devolved so the new section 51A of the 2002 Act which provides for a new order in relation to contact post adoption extends to England and Wales.
  1. Clause 6 amends the territorial extent of sections 125 to 131 of the 2002 Act (Adoption and Children Act Register). The clause removes Wales and Scotland from the scope of these sections and provides for a register that applies in relation to England only.

Family Justice

  1. As family proceedings and family law are not devolved the provisions extend to England and Wales. Clause 15(2)confers a power on Welsh Ministers to prescribe the content of care plans of local authorities in Wales.

Children and Young People in England with Special Educational Needs

  1. The provisions extend to England and Wales but they apply in relation to children and young persons with special educational needs in England, including where those children and young persons receive their education or training in some Welsh institutions. Clauses 50, 56and Schedule 3 make amendments to other legislation that does apply to Wales, but there are no delegated powers in those provisions.

Childcareetc.

  1. The provisions extend to England and Wales but only apply in relation to England.

Statutory Rights to Leave and Pay

  1. The provisions extend to England, Scotland and Wales.

THE DELEGATION OF POWERS

  1. The specific provisions for delegated legislation in these provisions have been developed on the basis of the following considerations:
  1. the legislative framework must be clearly presented on the face of the Bill with secondary legislation used to provide the detail;
  2. within that framework, the provisions must also support effective implementation and contain sufficient flexibility to respond to changing circumstances;
  3. the power to make regulations, orders or court rules must be narrowly drawn so that, although there are a number of regulation making powers, there is greater clarity of intention than would be the case with fewer but more general secondary legislation making powers;
  4. operational, administrative and technical details are not normally set out in primary legislation as too much detail on the face of primary legislation risks obscuring the principal duties and powers from Parliamentary scrutiny. The use of secondary legislation not only ensures appropriate flexibility but also provides additional opportunities to consult on matters of detail with those that will be affected by the provisions.

PARLIAMENTARY SCRUTINY

  1. All powers for the Secretary of State to make orders or regulations under these provisions are exercisable by statutory instrument. The Government has considered on a case by case basis the appropriate procedure to be followed in making orders and regulations. The general reliance on the negative resolution procedure reflects our view, in each case, that the relevant matters are of operational, administrative or procedural detail. In many cases, we have retained the same Parliamentary scrutiny for the new provision as that contained in the provision that is being amended or repealed.
  1. The power to issue the SEN code of practice is subject to Parliamentary scrutiny by the negative resolution procedure common to many codes of practice.
  1. The power for the Secretary of State to give directions under clause 3 is not subject to any Parliamentary procedure as is usual for direction giving powers where no statutory instrument is made.
  1. Family Procedure Rules (“the Rules”) are made by the Family Procedure Rule Committee (“the FPR Committee”) and allowed by the Lord Chancellor. They are subject to the negative resolution procedure (section 79 Courts Act 2003).
  1. In the case of the appointed day order under clause 68(5), orders making transitional, transitory or saving provision under clause 109 and commencement orders under clause 111, no Parliamentary procedure is required, in line with standard practice.

PROVISIONS FOR DELEGATED LEGISLATION

Part 1 - Adoption and children looked after by local authorities

Clause 3 – recruitment, assessment and approval of prospective adopters

  1. New clause 3A(1) gives the Secretary of State the power to give directions requiring any or all local authorities to make arrangements for their functions with respect to the recruitment, assessment and approval of persons to be prospective adopters (the functions are set out in subsection (2)) to be carried out by other adoption agencies. Such directions may be given, for example, to a number of local authorities within a region enabling more effective recruitment of prospective adopters within that region. As is usual for such powers of direction there is no Parliamentary procedure.

Clause 4 – Adoption support services: personal budget

  1. Clause 4 inserts a new section 4A into the 2002 Act to make provision for personal budgets. A local authority must prepare a personal budget at the request of an adopted person or the parent of an adopted person (“the recipient”). The authority does so where they identify an amount as available to secure the adoption support services the authority have decided to provide.
  1. Subsection (4) enables regulations to be made to set out the detail of personal budgets and how they will operate in practice. The regulations may make provision, in particular for the matters set out in subsection (4)(a) to (j). That provision may include provision for direct payments to be made in order for the recipient to secure the provision themselves (and adoption support services secured by means of a direct payment are to be treated as adoption support services provided by the authority for all purposes – see subsection (6)). The regulations will make detailed provision in relation to personal budgets – particularly the process so that those receiving the personal budget know what they have to do, what the personal budget consists of and what it relates to. It is also necessary to put in place safeguards to ensure that personal budgets are not used for any other purpose than the provision of the identified adoption support service.
  1. The Government believes that this procedural and technical detail is most appropriately included in regulations made by the negative resolution procedure.

Clause 5 – Adoption support services: duty to provide information

  1. Clause 5 inserts a new section 4B into the 2002 Act which provides that, except in circumstances prescribed by regulations, a local authority is under a duty to provide, to prospective adopters and those who have adopted children and come to the attention of the local authority or at their request, the information set out in subsection (2) and any other information prescribed by regulations (subsection (2)(d)).
  1. These regulation making powersmay be used, for example, to provide that local authorities do not need to provide the information in subsection (2) to a person (mentioned in subsection (1)) where they have already provided that person with the information within say the last twelve months and to provide that local authoritiesmust inform eligible people about their entitlements to adoption leave and pay, about how to raise a complaint against the local authority under the local complaints process and about their entitlements to support under the mental health legislation.
  1. The Government believes that this level of detail is most appropriately included in regulations made by the negative resolution procedure. This procedure, whilst still providing a sufficient level of scrutiny, also provides for the appropriate level of flexibility as it will enable changes to the detail of the duty to inform to be made without undue delay, for example, to amend the information prescribed under section 4B(2)(d) in light of new services for adopters becoming available. This level of procedure is also consistent with the other adoption support order making powers in the 2002 Act – for example sections 2(6) and 4 of that Act.

Clause 6 – The Adoption and Children Act Register

  1. Clause 6 amends sections 125 to 131 of the 2002 Act in a number of respects. The Order in Council procedure is removed and the Secretary of State has the power to establish a register that applies in relation to England only. The consequential amendments are set out in Schedule 1. Section 125 (1) is amended firstly to provide that regulations made under that section may also provide that the register may contain prescribed information about children for whom a local authority in England is considering adoption. This enables information about children who are in a ‘fostering for adoption’ placement or for whom the local authority are pursuing a concurrent planning policy to be included in the register as well as prescribed information about children that are suitable for adoption (i.e. children whom the adoption agency have decided are suitable for adoption in accordance with the Adoption Agencies Regulations 2005). The type of information that may be prescribed will includethe child’s name, age and sex of the child as well as other relevant information about the child.
  1. Paragraph 3 of Schedule 1 inserts a new section 125(1A) to enable regulations to provide that the register may contain prescribed information about children that a Welsh, Scottish or Northern Irish adoption agency are satisfied are suitable for adoption and prospective adopters that a Welsh, Scottish or Northern Irish adoption agency are satisfied are suitable to adopt a child.