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.
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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 Annex sets out a summary of the clauses that
contain powers to make secondary legislation.
2.
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
3.
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.
4.
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.
5.
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
6.
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
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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.
7.
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
8.
Clauses 19 to 73 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 about services 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.
9.
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 care plan (“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, nonmaintained 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.
10.
The provisions are also intended to provide parents 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 appeal having to
be made by their parent.
11.
The clauses replace and extend, in relation to England, provisions in
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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 – Childcare etc.
12.
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. A childminder
agency is to be registered with the Chief Inspector before childminders can
register with that agency.
Part 6 – Statutory Rights to Leave and Pay
13.
This Part amends the provisions for parents and adopters to access
statutory leave and pay connected to the birth or adoption of a child.
14.
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.
15.
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.
16.
Clause 94 creates 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.
17.
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.
18.
Clause 96 provides 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.
19.
Clause 97 provides for the abolition of additional paternity leave and
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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
20.
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.
21.
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
22.
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
23.
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, 56 and Schedule 3 make
amendments to other legislation that does apply to Wales, but there are no
delegated powers in those provisions.
Childcare etc.
24.
The provisions extend to England and Wales but only apply in relation
to England.
Statutory Rights to Leave and Pay
25.
The provisions extend to England, Scotland and Wales.
THE DELEGATION OF POWERS
26.
The specific provisions for delegated legislation in these provisions
have been developed on the basis of the following considerations:
a.
b.
c.
the legislative framework must be clearly presented on the face
of the Bill with secondary legislation used to provide the detail;
within that framework, the provisions must also support effective
implementation and contain sufficient flexibility to respond to
changing circumstances;
the power to make regulations, orders or court rules must be
narrowly drawn so that, although there are a number of
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d.
regulation making powers, there is greater clarity of intention
than would be the case with fewer but more general secondary
legislation making powers;
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
27.
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.
28.
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.
29.
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.
30.
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).
31.
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
32.
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
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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
33.
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.
34.
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.
35.
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
36.
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)).
37.
These regulation making powers may 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 authorities must 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.
38.
The Government believes that this level of detail is most appropriately
included in regulations made by the negative resolution procedure. This
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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
39.
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 include the child’s name, age and sex of the child as well as other relevant
information about the child.
40.
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. This power may be used, for example, to provide that the same
information provided to the register by adoption agencies in England
(prescribed under section 125(1)) is provided by Welsh, Scottish and Northern
Irish agencies.
41.
Section 125(3) is also amended to provide that the prohibition on the
register being open to public inspection or search is subject to regulations
made under section 128A. Clause 6(4) inserts a new section 128A (search
and inspection of the register by prospective adopters) to provide for
regulations to be made enabling prospective adopters who are suitable to
adopt a child (i.e. they have been approved by an adoption agency as
prospective adopters) to search and inspect the register for the purposes of
assisting them to find a child for whom they would be appropriate adopters.
Where prospective adopters identify a child their details will be forwarded to
the appropriate adoption agency and it will be for that agency to consider
whether such a placement is in the best interest of that child. Allowing the
register to be searched in this way should enable matches to be made more
quickly leading to children being adopted more speedily.
42.
The regulations will also prescribe the information that prospective
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adopters will have access to. The information will be information which is
necessary to enable them to consider whether the child might be suitable for
them to adopt. For example the power could be used to prescribe that any
sensitive third party information is not open to search.
43.
Section 128A(3) prescribes that access to the register for the purposes
of searching and inspecting may be granted on any prescribed terms and
conditions. This power could be used, for example, to prescribe the method
by which prospective adopters will be allowed to access the information (such
as at the offices of the adoption agency or via a password protected website).
44.
Section 128A(4) provides that the regulations may prescribe the steps
to be taken by prospective adopters in respect of information received by
them as a result of searching the register. This power could be used, for
example, to set out the procedure that a prospective adopter must follow if
they identify a child who they think would be suitable for them to adopt – for
example whether they should contact the registration organisation who will
pass their details onto the child’s adoption agency or whether they should
contact the adoption agency direct.
45.
Section 128A(5) provides that the regulations may make provision
requiring prospective adopters, in prescribed circumstances, to pay a
prescribed fee to the Secretary of State or the organisation running the
register in respect of searching and inspecting the register. This power could
be used to enable the Secretary of State or the registration organisation to
recover the costs related to disclosing information in accordance with section
129 of the 2002 Act.
46.
Paragraph 2 of Schedule 1 inserts a new subsection (2A) into section
129 of the Act to provide that regulations may permit the disclosure of
prescribed information entered in the register or compiled from information
entered in the register to the registers in Wales, Scotland and Northern
Ireland or to English, Welsh, Scottish and Northern Irish adoption agencies for
any prescribed purpose. This power may be used, for example, to enable the
registration organisation or adoption agency to disclose information about any
matches that have been generated in relation to children or prospective
adopters referred to the register by adoption agencies in Scotland, Wales or
Northern Ireland to other adoption agencies. Section 129(4) is amended to
provide that regulations may prescribe the steps to be taken by adoption
agencies in respect of any information received by virtue of section 129(2A).
47.
Section 129(6) is amended to provide that any information disclosed
under section 129(2A) to Welsh, Scottish or Northern Irish adoption agencies
or to be entered into a register in Wales, Scotland or Northern Ireland may be
given on prescribed terms and conditions. This power may be used, for
example, to provide that the information is to be disclosed to a specified
person within an agency.
48.
Section 129(7) is amended to provide that regulations may require
Welsh, Scottish or Northern Irish adoption agencies, as well as adoption
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agencies in England, to pay a prescribed fee in prescribed circumstances and
to provide that the regulations may require any person to whom information is
disclosed under section 129(2A) to pay a prescribed fee. This power may be
used, for example, to enable the Secretary of State or the registration
organisation to charge a fee which covers the cost of disclosing the
information to adoption agencies.
49.
Regulations made under sections 125 to 131 of the Act are subject to
the negative resolution procedure as this is the appropriate level of scrutiny
for regulations providing for this level of operational, administrative and
procedural detail. Before the amendments made by clause 6 and Schedule 1
the register would have been set up by an Order in Council subject to the
affirmative procedure. However as the provisions will now only enable a
register to apply in relation to England the Order in Council procedure is not
necessary or appropriate.
Clause 7 – Contact: children in care of local authorities
50.
Clause 7(4) amends the regulation making power in section 34(8) of
the 1989 Act (children in care – contact) to provide that regulations may make
provision as to the matters to which a local authority in England must have
regard in considering whether contact between a child and any person
mentioned in paragraphs (a) to (d) of subsection (1) is consistent with the
child’s welfare. The power may be used to, for example, provide that the local
authority is to have regard to the child’s care plan (made under section 31A of
the 1989 Act) when deciding upon appropriate contact arrangements.
51.
Any regulations made under this new provision will be subject to the
negative resolution procedure. This is the procedure for making the
regulations under 34(8) that Parliament considered appropriate when enacting
the 1989 Act and is the appropriate level of scrutiny for this level of detail and
is consistent with other powers in Part 3 of the 1989 Act to make provision in
relation to the care planning responsibilities of local authorities.
Clause 8 – Post-adoption contact
52.
Clause 8(1) introduces new sections 51A and 51B into the 2002 Act to
provide for a new order for post adoption contact. The new order applies
where an agency has placed or was authorised to place a child for adoption
and the court is making or has made an adoption order in respect of that child.
In those circumstances the court may make an order requiring the child’s
adoptive parents to allow the child contact with the person named in the order
or prohibiting the person named in the order from having contact with that
child.
53.
New section 51B(4) provides that Rules of court may be made to
specify periods within which certain specified steps must be taken in relation
to proceedings and make other provision with respect to proceedings for the
purpose of ensuring that, so far as is reasonably practicable, that the court
makes determinations under section 51A without delay.
54.
Rules of court are the appropriate vehicle for prescribing details in
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relation to the court process and this is consistent with the approach taken in
other provisions in the 2002 Act. Section 141 (rules of procedure) of the 2002
Act provides that the Rules may make provision in respect of any matter to be
prescribed by rules under the 2002 Act and dealing generally with any matters
of procedure. For the reasons set out in paragraphs 59 and 60 below it is
considered that the negative procedure for the Rules is the appropriate level
of scrutiny in this matter.
Part 2 - Family Justice
Clause 10 – family mediation information and assessment meetings
55.
Clause 10 introduces a requirement for a person to attend a family
mediation information and assessment meeting (“a MIAM”) before making a
relevant family application.
56.
Currently a pre-application protocol (“the Protocol”) annexed to
Practice Direction 3A supporting the Rules sets out an expectation that a
prospective applicant for an order in specified family proceedings will attend a
MIAM before making such an application. The clause will mean a change
from the current expectation to a requirement to attend, unless exempt.
57.
Clause 10 specifies matters in relation to MIAMs for which provision
may be made in the Rules, including exceptions to the requirement to attend a
MIAM, and provision about MIAMs, including the convening and conducting of
them. Subsection (3) provides for “relevant family application” to be defined in
the Rules.
58.
It is intended to ask the FPR Committee to exercise the powers in
clause 10 (2) and (3) to make provision in the Rules for example to:
a.
largely mirror the detailed provision in the Protocol such that
exemptions from the requirement to attend a MIAM will apply
where a MIAM would be inappropriate, including cases which
are urgent, and where domestic violence is an issue;
b.
provide that the court or court officer need only consider the
content of a standard form when determining whether the
requirement to attend a MIAM applies and if so has been
complied with.
59.
The Government considers that the level of detail required in relation to
MIAMs is not appropriate for primary legislation, and is more suited to
secondary legislation which would also give flexibility for amendment to meet
the needs of the family court system and its users in the future. The Rules are
already subject to the negative resolution procedure (section 79(6) Courts Act
2003) and the Government considers that this is appropriate for these new
provisions.
60.
There will be rigorous scrutiny of the Rules by the FPR Committee,
which is comprised of experts in family law and the practice of the family
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courts. The FPR Committee will consult such persons as it considers
appropriate about the content of the Rules (section 79(1)(a) Courts Act 2003).
Clause 12 - Child arrangements orders
61.
Clause 12 replaces the “residence order” and “contact order” with the
“child arrangements order”. A child arrangements order is an order regulating
arrangements relating to with whom a child is to live, spend time or otherwise
have contact and when. Schedule 2 sets out the various consequential
amendments that will be made to the Children Act 1989 as a result of the new
child arrangements order.
62.
The consequential amendment to section 11F of the 1989 Act affects
the exercise of a delegated power. Section 11F allows the Secretary of State
or Welsh Ministers to make provision by regulations authorising him/them to
make payments to assist individuals who are required by a contact activity
direction or condition to take part in an activity. The amendments to section
11F will not affect the enabling power. However the category of individuals to
whom financial assistance could be given is being slightly widened, that is, the
term “contact activity direction or condition” (which relates to promoting
contact with a child) is to be replaced with simply an “activity direction or
condition” which can deal with any activity that is expected to help establish,
maintain or improve the involvement of that or another individual in the life of
a child. The power in section 11F is subject to the negative procedure.
Clause 13 – control of expert evidence, and of assessments, in children
proceedings
63.
When deciding whether to give permission for an expert to be
instructed, a child to be medically or psychiatrically examined or otherwise
assessed for the purpose of provision of expert evidence or for expert
evidence (in any form) to be put before the court the court is to have regard to
a number of matters specified in subsection (7) (a) to (h) of clause 13
including any matters prescribed by the Rules.
64.
The new subsection (7B) of section 38 of the 1989 Act inserted by
subsection (11) of clause 13 contains mirror provisions to those in subsection
(7) of clause 13 except to the extent that the new section 38(7B) relates to the
court’s direction for examinations or assessments under section 38(6).
65.
By virtue of subsection (6) of clause 13, the court may give permission
relating to obtaining or using expert evidence only if it is of the opinion that the
expert evidence is necessary to assist the court to resolve the proceedings
justly. This meshes with the overriding objective of the Rules, which is to
enable the court to deal with cases justly, having regard to any welfare issues
involved (see rule 1.1(1)), and with the court’s duty under the Rules to give
effect to the overriding objective when exercising its powers (rule 1.2).
66.
The Government is intending to invite the FPR Committee to consider
rule 1.1(2) which describes what dealing with a case justly includes and
whether to prescribe matters under subsection (7)(h) based on Rule 1.1(2)(a)
to (c) to which the court would have particular regard when making decisions
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regarding permission for expert evidence. The FPR Committee will also be
invited to consider whether there are any other matters which should be
prescribed and to review the prescribed matters in the light of case law and
practical experience of the operation of clause 13.The intention is that the
Government will also invite the FPR Committee to consider prescribing similar
matters under the new section 38(7B) of the 1989 Act
67.
The provision in subsection (7) (a) to (h), subsection (11) and the other
matters in clause 13 could have been made in the Rules without the need for
the clause. Rule 25.5 in the new Part 25 of the Rules (inserted by the Family
Procedure (Amendment)(no 5) Rules 2010 (S.I. 2012/3061) sets out matters
to which the court is to have particular regard when giving permission relating
to obtaining or using expert evidence. The new Part 25 is largely a
consolidation of the new rules and the existing ones. The new rules reflect
more closely than the current ones the provisions of clause 13. In particular,
the court’s duty to restrict expert evidence to that which is reasonably required
to resolve the proceedings is changed to one restricting the expert evidence
to that which in the opinion of the court is necessary to assist the court to
resolve the proceedings. The overriding objective of the Rules applies so the
requirement to resolve the proceedings justly applies to the rules as it does in
subsection (6).
68.
The Family Justice Review, however, recommended that these
principles should be “elevated” to primary legislation. One of the key reasons
for this recommendation was that the Review considered that the judicious
use of expert witnesses was so important to the effective running of public law
children proceedings that it must be reflected on the face of primary
legislation.
69.
The intention is that the Part 25 of the Family Procedure Rules will be
amended in consequence of clause 13.
70.
The rules made under section 75 of the Courts Act 2003 are subject to
the negative resolution procedure (section 79(6) of the Courts Act 2003). The
Government does not consider that the new provision in subsection (7) (h)
warrants a change to that procedure.
Clause 14 – care, supervision, and other family proceedings: time limits
and timetables
71.
Clause 14(2) amends section 32 of the 1989 Act by introducing a
maximum time limit of 26 weeks for the disposal of care or supervision order
proceedings, with a discretion (in clause 14(3))for the court to extend this for
up to eight weeks at a time where it considers this is necessary to resolve the
proceedings justly.
72.
Clause 14(3) makes provision (in new subsection 32(9)) for the Lord
Chancellor to make regulations amending the length of time within which
proceedings must be disposed of, and the length of time of any extension.
73.
It is recognised that the time-limit will be challenging, although
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developing local practice suggests it will be achievable, particularly with the
wider programme of support that is already helping the system to prepare for
this change, such as the major programme of work launched by the judiciary
to modernise family courts.
74.
However, the government recognises that it is important to allow for a
different time limit to be set, in the event that it becomes evident that the 26
and eight week time limits are not workable, and to enable the time limit to
adapt to changes over time.
75.
The power to make the changes by regulations is exercisable by the
Lord Chancellor because the regulations in question will impact on case
management and limit the exercise of judicial discretion.
76.
The government thinks it is appropriate that this power is exercised by
the affirmative resolution procedure in order to allow Parliament greater
scrutiny, given the significance of the time limit and the impact it may have on
all care and supervision proceedings. It also recognises the fact that the
power provides for an amendment to primary legislation by secondary
legislation.
77.
Section 32(10) of the 1989 Act (as introduced by clause 14(3)) enables
the FPR Committee, by way of the Rules to specify that the court must or may
or may not have regard to matters specified in the Rules or must take account
of any guidance in the Rules when deciding whether or how to extend the
time limit for a case. For the reasons set out in paragraphs 59 and 60 above,
the Government thinks that the negative procedure for the Rules is
appropriate in this matter.
Clause 15 – care plans
78.
Clause 15 amends section 31 of the 1989 Act to require that, when
deciding whether to make a care order, the court focuses its consideration
only on the “permanence provisions”, which are further explained in new
section 31(3B) as those provisions which provide for the child to live with a
parent or any member or friend of the child’s family, or whether the child is to
be adopted or placed in other long term care.
79.
New section 31(3C) provides the Secretary of State with a power to
alter what, for the purposes of section 31(3A), the permanence provisions are.
This recognises that it may be necessary in the future to broaden or restrict
those areas of the care plan which are considered to be essential for the court
to consider when deciding whether to make a care order.
80.
Given the significance of a power which requires the court to focus only
on particular parts of a care plan when deciding whether or not to make a care
order, and the fact that the power allows an amendment of primary legislation,
the affirmative resolution procedure is proposed. The issue is not just about
the practice and procedure of the courts.
81.
Clause 15(2) makes a further amendment to section 31A of the
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Children Act 1989, by replacing the words “the court may direct” with the
words “may be prescribed”. This has the effect of allowing the Secretary of
State (in relation to England) and the Welsh Ministers (in relation to Wales) to
prescribe in regulations the time within which a local authority must prepare a
care plan when an application is made on which a care order might be made.
This power is currently exercised as a power of direction by the court.
82.
This will bring the procedure for preparing a section 31A plan in line
with the procedure for preparing a care plan in the case of a voluntarily
accommodated child (where the time limit is set out in regulations).
83.
Given the administrative and procedural nature of this matter, the
government believes that the negative resolution procedure is appropriate.
Part 3 - Children and Young people in England with special educational
needs
84.
Regulations will set out the detailed requirements of particular
provisions where this is provided for in the clauses. The regulations will be
drafted, taking account of findings from local pathfinders testing the reforms in
practice and after consultation with interested persons. A Code of Practice will
be developed to provide guidance on the new framework for special
educational needs.
Clause 26 – Joint commissioning requirements
85.
Local authorities and their partner commissioning bodies (the National
Health Service Commissioning Board and the clinical commissioning groups
for the area) are required to make arrangements for securing education,
health and care provision for children and young people in their area with
special educational needs for whom they are responsible. This will include
arrangements for considering and agreeing the provision required locally and
to determine who is going to secure that provision.
86.
The delegated power in clause 26 can be used to prescribe
circumstances in which a clinical commissioning group (“CCG”) is not to be
treated as a partner commissioning body of the local authority. An example of
when this power might be used is where the CCG has a duty under section 3
of the National Health Service Act 2006 to provide emergency care for a child
or young person because they were present in the CCG’s area rather than
because the CCG was responsible for them because they were registered
with a GP who was a member of the CCG or because they were not
registered with any GP but were usually resident in that CCG area, which are
the usual reasons why a CCG is responsible for a person. In such
circumstances, the CCG should not be considered to be a partner
commissioning body in relation to a child or young person who has SEN. The
Government believes that it is appropriate for this technical provision to be
made by the negative resolution procedure.
Clause 28 – Co-operating generally: governing body functions
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87.
Clause 28 imposes a reciprocal duty on local authorities and their
partners (including schools, further education colleges, youth offending teams,
the National Health Service Commissioning Board and clinical commissioning
groups for the area) to co-operate with each other in the exercise of the local
authorities functions under Part 3 of the Bill.
88.
The delegated power in clause 28, like that in clause 26, enables
regulations to be made to prescribe circumstances in which a clinical
commissioning group is not to be treated as a local partner of the local
authority. It is likely to be used in the same circumstances as the power in
clause 26, and the negative resolution procedure is appropriate for the same
reasons.
Clause 30 – Local offer for children and young people with special
educational needs
89.
Local authorities are required to publish information about certain
provision in their area, including education, health and care provision, training
provision and school travel provision.
90.
The delegated power in clause 30 can be used to ensure that, whilst
there is flexibility for each local authority to come up with its own local offer,
certain kinds of information are provided in all local authority areas and that
certain persons are consulted in the preparation and review of the local offer,
including children, young people, and parents, for whom the local offer is
principally intended. It can also be used to set requirements for local
authorities to publish comments on the local offer and their responses to
those comments.
91.
The Government believes that the negative resolution procedure
proposed is appropriate for this level of detail.
Clause 31 - Co-operating in specific cases: local authority functions
92.
Clause 31 requires various bodies, including other local authorities,
youth offending teams and clinical commissioning groups to co-operate with a
local authority where the local authority requests such co-operation in the
exercise of its functions under these provisions. The body concerned must
comply with the request, except where it considers that doing so would be
incompatible with its own duties, or otherwise have an adverse effect of the
exercise of its own functions.
93.
One of the functions for which local authorities may request cooperation is in the assessment of a child or young person under clause 36. It
is important that assessments of a child or young person’s special educational
needs are conducted without delay. Therefore the Government considers that
it is important there is an ability to impose a time period within which other
bodies must comply with a request to co-operate in the assessment of a child
or young person with special educational needs. However, there may be
situations where this is not appropriate, so there is a power to prescribe
exceptions to the requirement to respond within a certain period of time.
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94.
The negative resolution procedure is proposed as this is a technical
and procedural matter and mirrors the procedure that Parliament thought
appropriate for the provision being replaced (section 322(4) Education Act
1996).
Clause 34 – Children and young people with special educational needs
but no EHC plan
95.
Clause 34 requires that children and young people with special
educational needs who do not have an EHC plan are educated in a
mainstream setting, subject to specific exceptions. One of these exceptions is
where the young person is admitted to a special school or special post-16
institution for the purposes of an assessment.
96.
The regulation–making power at subsection (6) enables circumstances
to be prescribed in which a child or a young person can remain at the special
institution following an assessment. The power could be used to enable the
child or young person to remain at the institution following the assessment,
whilst the EHC Plan is finalised.
97.
The negative resolution procedure proposed is suitable for this level of
detail and mirrors the procedure which Parliament considered appropriate for
the provision being replaced (section 316A(2)(b) Education Act 1996).
Clause 36 – Assessment of education, health and care needs
98.
Clause 36 makes provision for the assessment of a child or young
person’s special educational needs. The regulation-making power at
subsection (11) enables provision to be made about the assessment
procedure, including about requests for assessment, how assessments are
conducted, timescales within which actions must be completed and how
parents and young people can ensure that their views are heard, as well as
about the provision of information, advice and support in connection with
assessments. The negative resolution procedure proposed is appropriate for
this kind of procedural detail, and mirrors the procedure which Parliament
considered appropriate in relation to the assessment of children for
statements which this provision replaces (Schedule 26 Education Act 1996)
Clause 41 – independent special schools and special post 16
institutions: approval
99.
Clause 41 makes provision for the Secretary of State to approve
independent schools which are specially organised to make special
educational provision for students with special educational needs and special
post-16 institutions. Once such an institution has been approved by the
Secretary of State, the parent of a child with special educational needs or a
young person can request that that institution is named in the EHC plan for
that child or young person. The regulation making power in clause 41(5)
enables provision to be made about approving and withdrawing approval from
such an institution, such as the types of institutions that can be approved, the
criteria which must be met for approval, and matters that must be taken into
account, as well as in relation to publication of the list of approved institutions.
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100. The Government believes that the negative approval procedure is
appropriate for this level of procedural detail.
Clause 44 – Reviews and re-assessments
101. Once an EHC plan is prepared, it is necessary to keep that EHC plan
under review. It must be reviewed at least every 12 months. In certain
circumstances, it may also be necessary to re-assess the child or young
person. The regulation making power in subsection (7) will enable provision to
be made about when a review or assessment must be conducted, such as at
the end of a particular stage of education. The negative resolution procedure
is appropriate for this procedural detail, and mirrors the procedure that
Parliament thought appropriate for the provisions being replaced (section 328
Education Act 1996).
102. Clause 44(2) requires the local authority to undertake a re-assessment
when requested to do so by the child’s parent or the young person himself, or
by the educational institution the child or young person is attending. This is
subject to any regulations made under subsection (7)(b). The regulation
making power in subsection (7) will enable provision to be made about the
circumstances in which a local authority will review an EHC plan or secure a
re-assessment and about amending or replacing the EHC plan following a
review or re-assessment. It can also be used to avoid the local authority
having to review or re-assess if there has been a previous review or reassessment within a specified period of time. Although this provision was
included in primary legislation in the provision being replaced (section 328(2)
Education Act 1996) and set the time period before which no further reassessment was necessary at 6 months, the Government believes that this is
too inflexible, and regulations made by the negative resolution procedure are
a more appropriate method of fixing those time periods.
Clause 45 – Ceasing to maintain an EHC plan
103. The regulation making power in clause 45(5) enables regulations to
make provision about when it is no longer necessary to maintain an EHC plan
(in addition to when the person no longer requires the special educational
provision), and circumstances in which a local authority may not determine
that an EHC plan is no longer necessary, as well setting out what local
authorities must do before ceasing to maintain an EHC plan. It is important
that local authorities go through certain procedures before determining it is
appropriate to cease maintaining an EHC plan.
104. The power to prevent a local authority from determining that it is no
longer necessary to maintain an EHC plan in certain circumstances can be
used to ensure that a local authority does not cease to maintain a plan as
soon as a young person drops out of education, and can instead require the
local authority to make enquiries to ascertain whether the young person may
return to education or training before determining whether to cease to
maintain the EHC plan. The Government believes that this procedural detail is
most appropriately included in regulations made by the negative resolution
procedure and is too detailed to be included in the primary legislation as is the
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case currently (Schedule 27 Education Act 1996).
Clause 46 – Maintaining an EHC plan after young person’s 25th birthday
105. Clause 46 enables a local authority to continue to maintain a young
person’s EHC plan until the end of the academic year in which the young
person turns 25. In appropriate cases, this will enable the young person to
complete the year with appropriate support, rather than losing that support
part way through the year, on their birthday. Because the dates of academic
years vary depending on the institution it is not appropriate to prescribe that
period in the Bill. Instead a regulation making power will be used to prescribe
the period. It is hoped that by the time the power is exercised, it may be
possible to prescribe a uniform date for all purposes.
Clause 47 – Transfer of EHC Plans
106. Clause 47 enables regulations to be made to make provision
concerning a child or young person with an EHC Plan who moves from one
local authority’s area to another. Regulations will make provision relating to
the original local authority transferring the Plan to the new authority, and for
the new authority to take over that Plan.
107. The Government believes that the negative resolution procedure is
appropriate for this procedural detail, which reflects the procedure thought
appropriate by Parliament in the current provision (paragraph 7 of Schedule
27 Education Act 1996).
Clause 48 – Release of child or young person for whom EHC plan
previously maintained
108. There is a duty on local authorities to review an EHC plan when the
child or young person is released from custody. This will be important,
particularly in cases where that child or young person may not have had all of
their special educational needs met whilst detained. However, there will be
circumstances when this is not appropriate. As with clause 44, the
Government thinks it is important that the local authority is not required to
conduct reviews of EHC plans unnecessarily. Many periods of custody are
short – the average length of stay in a Young Offenders Institute is 74 days –
and if a review was undertaken shortly before a person was detained for a
limited period of time it may not be necessary to conduct another review on
their release from custody.
109. Therefore, regulations made under clause 44 can specify when it is not
necessary to review a plan on release from custody.
Clause 49 – Personal budgets
110. Giving parents and young people the option of a personal budget to
secure provision identified in an EHC plan requires a procedure to be in place
so that people know what they have to do, what the personal budget consists
of and what it relates to. It is also necessary to have safeguards to ensure in
the case of a direct payment representing all or part of the personal budget
that the provision required is purchased, and funds are not used for any other
purpose.
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111. The Government believes that this procedural and technical detail is
most appropriately included in regulations made by the negative resolution
procedure. The Order establishing the original pilot scheme (the Special
Educational Needs (Direct Payments) (Pilot Scheme) (England) Order 2012
[SI 2012/206] made under section 532B and 532C of the Education Act 1996)
was made by the affirmative resolution procedure, but the Government
believes that, with the experience obtained from the pilot schemes, the
negative resolution procedure is now suitable, particularly as the issues have
been subject to a considerable degree of Parliamentary scrutiny through that
process.
Clause 51 - Appeals
112. Although matters which may be appealed to the First-tier Tribunal are
set out in clause 51, it is possible that the need for further rights of appeal
may become apparent over time, particularly as rights are being extended to
young people for the first time. The regulation making power in subsection (4)
enables further rights of appeal in relation to new matters to be added without
the need for primary legislation, if this becomes necessary.
113. It also enables provision to be made about the making of appeals, for
example, when parents and young people must be notified of their right to
appeal and the powers of the Tribunal in relation to the appeals, including
unopposed appeals, for example, whether, in a particular type of appeal, the
Tribunal can dismiss an appeal, order an authority to amend an EHC plan or
to cease to maintain it. The Government believes that it is appropriate to
make provision in relation to these procedural matters in regulations made by
the negative resolution procedure.
Clause 52 – Mediation
114. Subject to specific exceptions, a person must obtain advice and
information about mediation before they can make an appeal to the First-tier
Tribunal. The regulation making power in clause 52 enables provision to be
made about the time limits for obtaining this information and advice, about the
training, experience and qualifications of persons providing the advice
(mediation advisers) and the mediators themselves, making provision about
who may attend any subsequent mediation (for example, “case friends” or
voluntary organisation supporters, in addition to the parent or young person
and the local authority) and the payment of expenses. Provision can also be
made about ascertaining the views of the child, the provision of advocacy and
support and the circumstances in which mediation may not be necessary,
such as where there are genuine reasons why the parent or young person
cannot take part in mediation. The Government believes that it is appropriate
to make this kind of procedural provision in regulations made by the negative
procedure.
Clause 54 – Appeals and claims by children: pilot schemes
115. Appeals on SEN matters and disability discrimination cases against
schools under the Equality Act 2010 have to be taken to the First-tier Tribunal
by parents of children of compulsory school age and below. The right for
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those over compulsory school age to bring their own claims is granted by
clause 51 for SEN appeals and by clause 56 for disability discrimination
claims. Clause 54 enables the Secretary of State to make an order to pilot
giving children the right to bring their own claims and appeals to the First-tier
Tribunal. It is likely that different pilot schemes will give children of different
ages the right to bring their own claims, for example all children, just those
aged 10 – 16 (to give children the opportunity to appeal against the secondary
school named in their plan), or those at secondary school. The pilot scheme
will need to deal with the existing right of parents to bring claims on behalf of
their child and to apply or modify the statutory provisions about appeals, as
well as any advocacy and support services for the children.
116. The Government believes that it is appropriate to establish the pilot
schemes by secondary legislation, and for the order setting out the procedural
details to be made by the negative resolution making procedure.
Clause 55 – Appeals and claims by children: follow-up provisions
117. If the pilot schemes are successful, children will be given the right to
bring their own SEN appeals and disability discrimination claims in all local
authority areas in England to the First-tier Tribunal. This will be achieved by
the order making power in subsection (1), and the order will make provision
about the same sorts of matters as the order establishing the pilot schemes.
Again, the Government believes that it is appropriate to do so by an order
made by the negative resolution making procedure, unless the power to
amend or repeal primary legislation in subsection (3) is used, when the order
will be made by the affirmative procedure.
Clause 63 – SEN co-ordinators
118. Clause 63 requires mainstream schools and maintained nursery
schools to have an SEN co-ordinator in order to co-ordinate the provision for
pupils with SEN. It is important that the SEN co-ordinator has sufficient
experience or qualifications to undertake the role. The Government also
wants to have the ability, as it does now, to confer functions relating to the
SEN co-ordinator. It is intended that the current requirements for SEN coordinators (contained in the Education (Special Educational Needs Coordinators) (England) Regulations 2008 [S.I. 2008/2945]) will be replicated in
regulations made under this provision. The Government believes that it is
appropriate to make this technical provision by regulations made by the
negative resolution procedure, which mirrors the procedure which Parliament
considered appropriate for the provision being replaced (section 317(3B)
Education Act 1996).
Clause 65 – SEN information report
119. Clause 65 requires the governing bodies of maintained schools and
maintained nursery schools and the proprietors of Academy schools to
prepare an SEN information report. The Government wishes to be able to
specify the information about the school’s policy for children with SEN that
must be included in this report and believes that regulations are the
appropriate way to do this. The proposed negative resolution procedure
mirrors that for the current provision in section 317(6) of the Education Act
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1996.
Clause 68 – Making and approval of code
120. Clause 67 requires the Secretary of State to issue a code of practice
giving guidance to local authorities, schools, colleges and providers of
relevant early years education about the exercise of their functions under
these provisions.
121. Clause 68 requires the Secretary of State to consult such persons as
he thinks fit when drafting the code of practice. He must then lay a copy of the
draft before each House of Parliament. He may only issue the code if neither
House has resolved not to approve it within 40 days of the draft being laid.
122. Although this approval procedure does not reflect the procedure for the
current code of practice (which is an affirmative procedure), it does reflect the
procedure for other codes of practice such as the codes under section 43 of
the Mental Capacity Act 2005, section 118 of the Mental Health Act 1983,
section 85 of the School Standards and Framework Act 1998 and section 14
of the Equality Act 2006. The Government believes this approval procedure is
appropriate for approval of the Special Educational Needs code of practice
and that it provides an appropriate level of scrutiny.
123. The code will then come into force on the day appointed by order by
the Secretary of State. This order, made under subsection (5) has no
Parliamentary procedure, as is usual practice for appointed day orders.
Clause 69 – Parents and young people lacking capacity
124. Clause 69 allows regulations to be made which modify statutory
provisions applying to or in relation to a child’s parent or the young person
where they lack capacity within the meaning of the Mental Capacity Act 2005.
Where the person lacks capacity at the relevant time, actions by or in relation
to that person can be undertaken on his or her behalf by the person’s
representative, or where a young person does not have a representative, by
the young person’s parent. The Government believes that it is appropriate for
this kind of technical provision to be made by regulations subject to the
negative resolution procedure.
Part 4 – Childcare etc.
Clause 74 and Schedule 4 – Childminder Agencies
125. Clause 74 and Schedule 4 make amendments to the Childcare Act
2006 so as to enable childminder agencies to be registered on the existing
childcare registers maintained by Her Majesty’s Chief Inspector of Education,
Children’s Services and Skills (“the Chief Inspector”) and to provide for the
registration of childminders (and others who offer childcare on domestic
premises) with those agencies.
126. The provisions in Schedule 4 governing the registration and inspection
of childminder agencies contain a number of new regulation making powers.
The new powers relate to the registration of childminder agencies with the
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Chief Inspector. These largely mirror the existing powers in respect of the
requirements and mechanics of registration of childminders with the Chief
Inspector.
127. As far as the registration of childminders with childminder agencies is
concerned, many of the amendments made in this Part extend the existing
regulation making powers to a new group, namely childminders registering
with agencies.
128. The section numbers referred to in this part of the delegated powers
memorandum refer to section numbers in the Childcare Act 2006 (“the Act”)
Childminder registration
Exemptions from requirement to register
129. Section 33(2) (for early years childminding) and section 52(2) (for later
years childminding) allow the Secretary of State to exempt by order certain
categories of provider from compulsory registration. The Childcare
(Exemption from Registration) Order 2008 (S.I. 2008/979), as amended,
specifies providers who are currently exempt and includes, for example, those
who care for children for less than two hours per day or those who provide
childcare in the child’s own home (nannies). The amendments at paragraphs
4 and 15 of Schedule 4 ensure that this power to exempt categories of
provider covers both exemption from the need to register with the Chief
Inspector and exemption from registration with a childminder agency. The
power itself has not been amended.
Applications for registration
130. Sections 35(2) (for early years) and section 54(2) (for later years)
confer powers to set out in regulations the information that prospective
childminders are required to supply in a registration application to the Chief
Inspector. As a result of the amendments made by paragraphs 6(2) and 17(2)
of Schedule 4 the power to prescribe information about prescribed matters will
also apply to registration applications by childminders to childminder
agencies. The information required is to be set out in secondary legislation to
enable changes to be made by the Secretary of State based on advice from
the Chief Inspector and, in future, taking account of the views of childminder
agencies. The flexibility to change information requirements is needed to
allow for the quick implementation of operational changes which go to
improving the efficiency and effectiveness of the registration system. The
ability to change information requirements quickly by way of regulations is
considered to be equally necessary where childminders are registered directly
with a childminder agency. As now, these provisions relate to the operational
arrangements of the regulatory scheme and are not specified on the face of
the Bill. The registration requirements for childminders registering with
agencies will be similar to those for childminders registering with the Chief
Inspector. Therefore it is considered that the same approach of setting these
requirements out in regulations subject to the negative procedure is
appropriate.
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131. As a result of the consequential amendments by paragraph 6(3) and
17(3) of Schedule 4 to the powers in sections 35(2)(c) and 54(2)(c) the ability
to charge a prescribed fee to accompany the application will only apply to
registration applications to the Chief Inspector. Agencies will set their own
fees.
Prescribed requirements for registration
132. Sections 35(3) and 54(3) provide for the requirements that need to be
met currently by registered childminders, both initially and on an ongoing
basis, to be set out in regulations. New sections 35(4A) and 54(4A) provide
for the requirements that need to be met by providers seeking registration with
a childminder agency similarly to be set out in regulations. Section 35(5) (for
early years childminders) and section 54(5) (for later years childminders) set
out a non-exhaustive list of requirements which may be provided for in
regulations, including requirements relating to the premises, the applicant and
other people who may be on the premises. Paragraphs 6(6) and 17(6) of
Schedule 4 introduce new subsections 35(5)(aa) and (ab) and 54(5)(aa) and
(ab) to provide that the prescribed requirements for registration may also
include requirements prohibiting an applicant from registering with the Chief
Inspector and a childminder agency, or from registering with more than one
agency, at the same time. Such detail is more suited to regulations so that the
detail can be discussed in conjunction with the sector. It also allows for
amendment relatively quickly so that the regulations can take account of
revised requirements. It is therefore considered appropriate that the detailed
requirements for childminders registered with a childminder agency are set
out in regulations subject to the negative procedure. The existing prescribed
requirements for childcare providers are in the Childcare Early Years
Register) Regulations 2008 (S.I. 2008/974) as amended and the Childcare
(General Childcare Register) Regulations 2008 (S.I. 2008/975) as amended.
Registration of other childcare providers
133. By virtue of sections 96(5) and (9) childminders working together on
domestic premises for reward in groups of 3 or more persons are not
described as “childminders” for the purposes of the Act. These providers
come under the provisions for “other early or later year providers” for the
purposes of the requirement to register in sections 34 and 53 and for the
purposes of registration applications made under sections 36 and 55. These
providers will be able to register with a childminder agency in respect of the
premises on which they operate.
Exemption from requirement to register
134. Paragraphs 5 and 16 of Schedule 4 amend sections 34 and 53 in a
similar manner to the amendments described at paragraph 129 above. This
ensures that the power to exempt categories of early and later years provider
covers both exemption from the need to register with the Chief Inspector and
exemption from registration with a childminder agency. The power itself has
not been amended; it simply applies to other providers who can register with
agencies.
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Applications for registration
135. Paragraphs 7 and 18 of Schedule 4 make consequential amendments
to sections 36(2) and 55(2) on providing prescribed information about
prescribed matters for registration applications in a similar manner to the
amendments described at paragraph 130 above. New clause 65A enables
childminders already registered with a childminder agency to also register with
the same agency voluntarily for care which can be voluntarily registered but
for which registration is not compulsory, for example childcare for a child of 8
or over. This clause provides a simplified application procedure and enables
providers to keep all their registrations with either an agency or the Chief
Inspector. In such circumstances agencies must give a registration certificate.
Such a certificate must contain prescribed information about prescribed
matters. This power is similar to the equivalent existing power in section 64(3)
which applies to the special procedure in section 65 relating to the registration
of childminders already registered with the Chief Inspector on the early years
register or Part A of the general childcare register but who also wish to
register on Part B of the general childcare register (the voluntary register). It is
considered that the same approach of setting these requirements out in
regulations subject to the negative procedure is appropriate.
Prescribed requirements for registration
136. The requirements that need to be met, both initially and on an ongoing
basis, by other early or later years providers who register with the Chief
Inspector are currently set out in the Childcare Early Years Register)
Regulations 2008 (S.I. 2008/974) as amended and the Childcare (General
Childcare Register) Regulations 2008 (S.I. 2008/975) as amended. New
sections 36(4A) and 55(4A) provide that the registration requirements for
other providers who seek to register with a childminder agency will also be set
out in regulations. This mirrors the arrangement for childminders seeking to
register with an agency, as described at paragraph 132 above, and, for the
same reasons, it is considered that the detailed requirements for other
providers registering with a childminder agency should be set out in
regulations subject to the negative procedure.
Instruments specifying
requirements
learning
and
development
or
welfare
137. Section 44(2) contains a power to the effect that a relevant instrument
(i.e. a learning and development order under section 41 or welfare regulations
under section 43 of the Act) may confer powers or impose duties on the Chief
Inspector, including a requirement to have regard to certain factors or
standards. Paragraph 11 of Schedule 4 amends section 44 so that the power
can be exercised so as to impose duties and requirements on childminder
agencies as well as the Chief Inspector and any alleged failure to have regard
to such factors or standards may be taken into account by the Chief Inspector
or an agency as the case may be. Paragraph 24 of Schedule 4 makes similar
amendments to section 59 (regulations covering the same matters in the
welfare regulations but for later year provision) and paragraph 31 makes
similar amendments to section 67 (regulations governing the activities of
carers who are voluntarily registered). The powers have not been amended
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but are extended to childminder agencies. It is considered appropriate to
continue to cover these matters in regulations subject to the negative
procedure. The relevant existing regulations are the Early Years Foundation
Stage (Learning and Development Requirements) Order 2007 (S.I.
2007/1772) as amended, the Early Years Foundation Stage (Welfare
Requirements) Regulations 2012 (S.I. 2012/938) and the Childcare (General
Childcare Register) Regulations 2008 (S.I. 2008/975) as amended.
Registration of Childminder Agencies
138. Paragraph 13 (for early years childminder agencies) and paragraph 26
(for later years childminder agencies) of Schedule 4 introduce new Chapters
2A and 3A respectively. These chapters cover the registration requirements
for childminder agencies registering with the Chief Inspector. The provisions
mirror the powers in relation to registration applications made by childcare
providers.
Applications for registration and fees
139. Regulations under new clauses 51A(2) (for early years childminder
agencies) and 61A(2) (for later year childminder agencies) will set out the
information about prescribed matters that prospective childminder agencies
are required to supply to the Chief Inspector in an application. Clauses
51A(2)(c) and 61A(2)(c) contain similar provision for an application fee to be
prescribed. As with the existing regulations for providers under sections 35
and 54, it is considered appropriate that these matters be set out in
regulations subject to the negative procedure so that changes can be made to
reflect operational changes and to maintain the efficiency and effectiveness of
the registration system.
Registration requirements
140. Clauses 51A(3)(b) and 61A(3)(b) provide for the requirements that
need to be met by agencies in order to be registered on the relevant register
to be set out in regulations. Clauses 51A(5) and 61A(5) provide that the
prescribed requirements for registration may include, amongst others,
requirements relating to the provision to the Chief Inspector of information
about providers registered with the agency, the agency’s arrangements for
registering childminders and the agency’s arrangements in relation to training,
monitoring and maintaining standards. It is considered appropriate that the
requirements for agencies registering with the Chief Inspector should be set
out in regulations under this power. Such detail is more suited to regulations
as it needs to be capable of amendment relatively quickly to reflect revised
requirements. As with similar powers in the Act it is considered that the
negative procedure is appropriate.
Certificates of registration
141. Clauses 51B (for early year childminder agencies) and 61B (for later
year childminder agencies) provides for regulations to set out the information
which must be included on a registration certificate. For example a certificate
will show which register the childminder agency is registered on and it will
provide details of any registration conditions. Similar regulations already exist
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covering registration certificates for childminders registered with the Chief
Inspector (see the Childcare (Early Years and General Childcare Registers)
(Common Provisions) Regulations 2008 (S.I. 2008/976)). It is desirable to
have the same flexibility through regulations to change these detailed
requirements in response to changing needs and circumstances for the
registration of childminder agencies and that the negative resolution
procedure provides the appropriate level of Parliamentary scrutiny.
142. Clauses 51B(4) (for early year childminder agencies) and 61B(4) (for
later year childminder agencies) allow for a fee to be prescribed for when the
Chief Inspector issues an agency with a replacement certificate when the
original has been lost or destroyed. It is considered necessary to prescribe the
fee in regulations so that there is flexibility to make changes and to allow for
an appropriate level of scrutiny of fees. As with similar existing fees
regulations under the Act it is considered that the negative procedure provides
an appropriate level of scrutiny.
Inspection and reports
143. New clauses 51D and 61E relate to the inspection of early and later
year childminder agencies respectively. Clause 51D(3) and clause 61E(3)
allow the Chief Inspector to charge a fee, as prescribed in regulations, for an
inspection of a childminder agency, when both an agency has requested an
inspection and the Secretary of State requires it. This is a new fee charging
provision. As with other fee charging regulations it is considered that the
negative procedure provides for an appropriate level of scrutiny. Clauses
51D(4) and 61E(4) enable regulations to be made setting out who should be
notified in the event of an inspection, for instance childminders registered with
an agency and parents who use childminders registered with the agency. As
with the current provisions relating to inspection of childcare providers, it is
considered that the negative procedure is appropriate given the administrative
nature of this power. It is considered that the negative resolution procedure
provides an appropriate level of scrutiny.
144. Clauses 51E (for early year childminder agencies) and 61F (for later
year childminder agencies) contain powers relating to inspection reports.
Under clause 51E(2)(c) and section 61F(2)(c) the Chief Inspector must ensure
that copies of reports or the relevant parts of them are sent to prescribed
persons. This could be childminders registered with the agency and parents
who use childminders registered with the agency. Clauses 51E(3) and 61F(3)
enable regulations to be made that require agencies to make copies of reports
available for inspection, to provide copies of reports to prescribed people and
authorising agencies to charge a fee for providing copies of reports. It is
considered that this type of detail is better suited to being included in
regulations and that the negative procedure provides a suitable level of
scrutiny.
Cancellation, termination, suspension and disqualification
Cancellation, termination and suspension of registration with a Childminder
Agency
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145. Paragraph 35 introduces new clause 69A which permits regulations to
be made concerning the cancellation, termination and suspension of a
provider’s registration with a childminder agency. Regulations may cover
termination of a provider’s registration, the creation of offences relating to
things done by a provider whilst registration has been suspended and
provision for the resolution of disputes between a provider and an agency.
The clause provides that any offence may only be triable summarily and is
punishable by a fine which may not exceed level 5 on the standard scale. It is
likely the regulations will address different scenarios relating to operational
matters and concerns the type of detail which would benefit from discussions
with the sector and which is more suited to regulations. The regulations will
also need to be capable of amendment so that any necessary changes can
be made relatively quickly. The power to make criminal offences in regulations
is not unusual. Any offences created cannot be subject to a custodial
sentence and it is considered that the matters are suitable to be included in
regulations subject to the negative procedure.
Cancellation and suspension of a Childminder Agency’s registration
146. Paragraph 36 introduces new clause 69B which allows the Chief
Inspector to cancel an agency’s registration in prescribed circumstances. The
types of matters which may lead to cancellation are where the prescribed
requirements for registration have ceased to be satisfied, the person has
failed to comply with a registration condition, the person has failed to comply
with a requirement imposed under Chapters 2A, 3A or 5 of the Act or the
agency has failed to pay a prescribed fee. Regulations under 69B(4) may also
make provision about the effect of the cancellation of a childminder agency’s
registration on providers registered with that agency. For example if an
agency’s registration has been cancelled for non-payment of fees, it is
envisaged that regulations may provide for a childminder to be provisionally
registered with the Chief Inspector or another agency for a period of time to
enable childminders to continue to operate in the interim period prior to being
fully registered with the Chief Inspector or a new agency. These regulations
cover operational matters which need to be developed in conjunction with the
sector and which need to be capable of amendment relatively quickly. The
matters are considered suitable for regulations subject to the negative
procedure.
147. New section 69C provides for the suspension of childminder agencies’
registration. Regulations may provide for a childminder agency’s registration
to be suspended for reasons and a period set out in regulations. Such
regulations must include rights of appeal to the Tribunal and may make
provision as to the effect of an agency’s suspension on a provider registered
with that agency. As with regulations on cancellation of registration these
regulations cover operational matters the detail of which is suitable for
regulations subject to the negative procedure.
Disqualification from registration for Childminder Agencies
148. Paragraph 46 of Schedule 4 introduces new section 76A which enables
regulations to be made setting out the circumstances in which a person can
be disqualified from registration as a childminder agency. It is important that
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this detail is contained in secondary legislation so that any changes to the
offences or circumstances which disqualify someone from registration can be
changed quickly. Regulations under clause 76A(3) may also provide for
circumstances where a person is not disqualified if the person has disclosed
the fact to the Chief Inspector and the Chief Inspector has consented in
writing to the person not being disqualified and has not withdrawn that
consent. As with similar existing regulations for the disqualification of
childcare providers, the regulations are subject to the negative procedure.
Information sharing
Supply of information to HMRC and local authorities
149. Paragraph 53 of Schedule 4 introduces new section 83A which enables
regulations to be made to require childminder agencies to provide prescribed
information to the Secretary of State, Her Majesty’s Revenue and Customs
and to a relevant local authority when an agency registers a person as a
childminder under Chapters 2, 3 or 4 and where it takes any other steps of a
prescribed description. This could include steps relating to the suspension or
cancellation of a person’s registration. Clause 83A(2) ensures that the
prescribed information is information that the Secretary of State may require
for functions relating to universal credit under Part 1 of the Welfare Reform
Act 2012, Her Majesty’s Revenue and Customs may require for functions
relating to tax credits or, in the case of a local authority, for discharging
functions under section 12 (duty to provide information, advice and assistance
relating to childcare and information of benefit to parents and children). The
clause strikes a balance between setting out on the face of the Bill that the
information must relate to the functions of the Secretary of State, HMRC or a
local authority but allowing the detail of the actual information to be prescribed
in regulations subject to the negative procedure. The clause is similar to
section 83 of the Act which provides for the supply of information by the Chief
Inspector to HMRC and local authorities (and to the Secretary of State as of
29th April 2013).
Supply of information for certain purposes
150. Section 84 enables regulations to set out the information the Chief
Inspector holds about registered providers which may be made available to
help parents or prospective parents in choosing a provider or for the purposes
of protecting children from harm or neglect. The current regulations are the
Childcare (Supply and Disclosure of Information) (England) Regulations 2007
(S.I. 2007/722) as amended. In future regulations may also cover information
the Chief Inspector holds about childminder agencies. Section 84(3) enables
regulations to require the Chief Inspector to provide prescribed information
about registered persons to prescribed persons. Paragraph 55 of Schedule 4
introduces new section 84A. That provision enables similar regulations to be
made setting out the information childminder agencies hold which may be
made available to parents and prospective parents for the same purposes
(helping choose a provider and protecting children from harm or neglect). We
consider that, as with the existing power, this type of detailed information
which is subject to review, is more suited to regulations and that the
appropriate procedure is the negative resolution procedure. The regulations
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under the existing powers described in this paragraph and paragraph 149
above are the Childcare (Supply and Disclosure of Information) (England)
Regulations 2007 (S.I. 2007/722), as amended.
Miscellaneous provisions
Fees
151. Regulations under section 89 may require persons registered under
Chapters 2 to 4 to pay to the Chief Inspector prescribed fees of prescribed
amounts. As a result of the amendments at paragraph 57 of Schedule 4the
power will only apply to the fees of those registered in the early years register
or in the general childcare register including fees that childminder agencies
are required to pay to the Chief Inspector. Agencies will set their own fees in
relation to the registration of childminders.
Cases where consent to disclosure withheld
152. Section 90 provides for regulations to be made allowing the Chief
Inspector to take a refusal to, or withdrawal of, consent to the disclosure of
information to the Chief Inspector as a reason to treat the prescribed
requirements for registration as not being satisfied or having ceased to be
satisfied. In future the power will also apply where consent to disclosure is
withheld in connection with the registration of a childminder agency. The
existing regulations under this section are the Childcare (Early Years and
General Childcare Registers) (Common Provisions) Regulations 2008 (S.I.
2008/976). It is considered appropriate to continue to provide for this in
regulations under the existing negative resolution procedure.
Combined certificates of registration
153. Section 92(3) provides for regulations to set out the detail that must be
included on a combined registration certificate. The detail is set out in the
regulations referred to in paragraph 141 above. This power will apply to
combined registration certificates for childminder agencies registering with the
Chief Inspector, although the power itself has not been amended. The
Government considers it is appropriate to continue to provide for this in
regulations under the existing negative resolution procedure.
Applications in respect of multiple premises
154. Section 94 provides a power for Part 3 of the Act to be amended to
allow for registration in respect of multiple premises. Exercising the power
would allow early or later year providers who operate out of more than one
premises and are required to register in respect of each premises to register
in respect of all of them. Paragraph 60 of Schedule 4 contains a
consequential amendment to the power as a result of drafting amendments to
sections 36, 55 and 63 so that the provision will apply to providers registered
with an agency in respect of multiple premises. The amendments do not
change the power in any way.
Clause 75 – Inspection at request of providers of childcare to young
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children
155. Clause 75 provides that the Chief Inspector may charge a prescribed
fee for conducting inspections which are made at the request of the early
years provider, and where such a requested inspection is also required by the
Secretary of State. The fees are to be prescribed in secondary legislation in
order to allow sufficient flexibility for the Secretary of State to respond quickly
to changing costs, as identified by the Chief Inspector. It is appropriate that
the fee is set by the Secretary of State rather than the Chief Inspector to
ensure that adequate account is taken of the impact on providers and as a
safeguard to operational efficiency. Fees are currently prescribed in the
Childcare (Fees) Regulations 2008 (S.I. 2008/1084), as amended.
Part 6 – Statutory Rights to Leave and Pay
156. In deciding what Parliamentary scrutiny the Department has followed
the precedent in relation to delegated powers which currently exist under the
provisions on additional paternity leave (sections 80AA and 80BB
Employment Rights Act 1996 – “ERA”) and on additional statutory paternity
pay (sections 171ZEA to 171ZEE Social Security Contributions and Benefits
Act 1992 – “SSCBA”) which were introduced by the Work and Families Act
2006. The provisions on shared parental leave and statutory shared parental
pay replace those relating to additional paternity leave and additional statutory
paternity pay. The Department considers that the effect of the new provisions
on shared parental leave and statutory shared parental pay will be certainly
no less significant than those on additional paternity leave and additional
statutory paternity pay and so the same level of Parliamentary scrutiny should
be maintained.
Clause 89 – Shared parental leave
157. Clause 89 inserts new sections 75E, 75F, 75G, 75H and 75I into Part 8
of the ERA (leave for family reasons). The new sections apply following the
birth or adoption of a child and entitle employees to be absent from work on
shared parental leave for the purpose for caring for the child.
158. The new sections delegate powers to the Secretary of State to make
regulations entitling an employee to be absent from work following a birth if
the mother and another person satisfy certain conditions. The employed
mother must satisfy the conditions set out at subsection 75E(1). The other
person must satisfy the conditions set out at subsection 75E(4).
159. The new section 75E subsection (1) gives the Secretary of State
powers to make regulations to specify the conditions by which an employee
who is the mother of the child and who is caring or intending to care for the
child with another person (“P”), can be absent on shared parental leave for
the purpose of caring for the child. The regulations may include conditions
relating to duration of employment; entitlement (or absence of entitlement) to
maternity leave, statutory maternity pay or maternity allowance and the
exercise and extent of such entitlement; notice requirements; and consent of
P.
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160. Subsection (2) allows the Secretary of State in making regulations to
specify that regulations made by the Secretary of State may provide that the
employed mother’s entitlement is subject to satisfaction by P of specified
conditions as to P’s employment or self-employment and earnings of a
specified amount or for a specified period, P’s caring or intending to care with
the mother for the child, and P’s relationship with the child or the employee.
We intend that P should be the child’s father or the mother’s partner, whom
currently regulations specify are entitled to additional paternity leave.
161. Subsection (3) provides that regulations made by the Secretary of
State concerning notice of an intention to exercise shared parental leave may
require the mother to give notice to the employer concerning the maximum
amount of shared parental leave available, how much the mother intends to
exercise, and the extent to which P intends to exercise a right to shared
parental leave or statutory shared parental pay.
162. Subsection (4) provides a power for the Secretary of State to make
regulations entitling another employee who shares or intends to share care of
the child with the child’s mother (and whom we intend to be the father of the
child or the mother’s partner) to be absent from work on shared parental
leave.
Such regulations may specify conditions as to the duration of
employment of the other employee, as to the relationship with the child or the
child’s mother, as to caring for the child with the child’s mother, notice to
exercise any entitlement, and as to the consent of the child’s mother to the
amount of leave the employee intends to take.
163. Subsection (5) allows the Secretary of State to make provisions that
the other employee’s entitlement is subject to the child’s mother satisfying
specified conditions as to her employment or self-employment, earnings or a
specified amount for a specified period, as to her sharing the care of the child
with the employee, as her entitlement or lack of entitlement to maternity leave,
statutory maternity pay or maternity allowance, and as to her exercise and the
exercise and extent of exercise of such entitlement.
164. Subsection (6) provides that regulations made by the Secretary of
State concerning notice by an employee (other than the mother) of an
intention to exercise shared parental leave may require the employee to give
notice to the employer concerning the maximum amount of shared parental
leave available, how much the employee intends to exercise, and the extent
to which the child’s mother intends to exercise a right to shared parental leave
or statutory shared parental pay.
165. The new section 75F sets out further provisions about how the powers
to make regulations under section 75E are exercised and what the regulations
must, and may, include.
166. Subsection (1) makes further provisions for entitlement to leave under
the previous section and requires that the regulations made by the Secretary
of State under powers conferred in section 75E are to include provisions for
the amount of leave to which an employee (either the mother or the other
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employee) is entitled and when such leave may be taken. Subsection (2)
requires that any entitlement to which an employee is entitled does not
exceed the relevant amount of time specified under subsection (3) less any
maternity leave taken by the child’s mother; or, where the mother is not
entitled to maternity leave, the number of weeks of statutory maternity pay or
maternity allowance received by the child’s mother.
167. It is the Government’s intention that the amount of shared parental
leave that will be jointly available to the mother and her partner will be the
length of maternity leave, less the number of weeks of maternity leave that the
mother has taken or the number of weeks for which she has been paid
statutory maternity pay or maternity allowance. The intention is that the total
amount of leave of combined maternity leave and shared parental leave will
not exceed the current 52 weeks of maternity leave. It is intended that the
number of weeks of shared parental leave will be the untaken balance of 52
weeks when maternity leave has ended. However, the number of weeks of
shared parental leave is not set at 52 weeks in the legislation so that the
number of weeks can be changed to mirror any changes in ordinary maternity
leave or additional maternity leave. This would leave open the option of the
Secretary of State varying the number of weeks of shared parental leave in
line with any changes to the length of maternity leave.
168. We are consulting on whether the 52 weeks of leave that we are
proposing to be set will have to be taken within 52 weeks of the start of
maternity leave (or statutory maternity leave or maternity allowance was first
paid) or whether the shared parental leave may be taken in the period up to
the child’s first birthday, which is the time period within which additional
paternity leave may be taken.
169. Subsection (4) provides that the total amount of shared parental leave
available to each employee (the mother and the father or the mother’s
partner) is reduced by the amount of leave, or the amount of weeks of pay,
taken by the other employee.
170. Subsections (8) – (12) allow the Secretary of State in the regulations
made under section 75E to:
a.
require an employee to give an employer notice of the period or
periods of leave he wishes to take;
b.
enable an employer to refuse a proposal from an employee of a
pattern of discontinuous leave and require the employee to take
the leave notified in a single, continuous block;
c.
provide that such a single period of leave would start on a date
specified by the employee, or in the absence of such a date, on
the first day of the leave proposed by the employee in the
original notice;
d.
enable an employee to vary the period(s) of leave, subject to
notice and the employer requiring the leave to be taken in a
block; and to vary the overall amount of leave, subject to notice,
and subject to the consent of the other employee, and to the
employee providing information as to the amount of leave taken
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or intended to be taken by the employee or by the other
employee.
171.
Subsection (14) allows the Secretary of State in his regulations to:
a.
define “caring for a child”;
b.
confine leave to one child in the event of multiple births in a
single pregnancy;
c.
specify the minimum period of leave which may be taken;
d.
make provision about how leave may be taken;
e.
specify how an employee may work for an employer during a
period of shared parental leave without bring the leave to an end
(“keeping in touch” days);
f.
specify circumstances in which a person may be on shared
parental leave other than for the purpose of caring for a child
without bringing the leave to an end;
172. Subsection (16) contains a power to disapply certain provisions in
cases where the child's mother dies before entitlement to shared parental
leave is generated.
173. The clause inserts new sections 75G and 75H which give the Secretary
of State powers to make regulations to entitle adoptive parents to take shared
parental leave which correspond to the arrangements for birth parents. There
is also a power for the Secretary of State to make provision in regulations for
modifications to the entitlement in circumstances concerning overseas
adoptions and in circumstances concerning intended parents in surrogacy
arrangements who have applied or who intend to apply for a parental order.
174. Section 75I specifies that regulations made under sections 75E and
75G may address the relationship between shared parental leave and
conditions of employment and terms of return for birth parents and adopters.
It is anticipated that these regulations will set out similar arrangements as are
currently in place in respect for additional paternity leave.
175. The new section 75I of the ERA requires that regulations made by the
Secretary of State under powers conferred by section 75E or section 75G
must secure that parents and adopters on shared parental leave are entitled
to the same benefits of terms and conditions that would have applied if they
were at work (with the exception of remuneration); and are bound by the
same obligations arising from those terms and conditions as if they had been
at work; and that a person returning from leave is entitled to return to a job of
a kind prescribed by regulations.
176. The new section 75J of the ERA gives the Secretary of State power to
make regulations about redundancy or dismissal of an employee during a
period of shared parental leave that may include provision requiring an
employer to offer alternative employment and provisions for failure by an
employer to comply with the regulations on dismissal and redundancy.
177.
The new section 75K gives the Secretary of State power to make
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supplementary provisions about:
a.
notices to be given and evidence to be produced by the
employees, employers and relevant persons in connection with
shared parental leave;
b.
record keeping;
c.
consequences of failure to give notices, produce evidence and
keep records and comply with procedural requirements;
d.
special provisions about contractual rights which correspond to
the statutory rights to shared parental leave;
e.
make provisions modifying the effects of Chapter 2 of the ERA
(calculation of a week’s pay) and applying, modifying or
excluding an enactment in relation to a person taking shared
parental leave.
178.
These powers are subject to the affirmative procedure.
179. The Government consulted on shared parental leave in the
consultation on Modern Workplaces, which ran from May to November 2011.
There are some differences between the shared leave model on which we
consulted and the model set out in the Government Response to the Modern
Workplaces consultation, published on 13 November 2012. It is intended that
where the mother or the adopter, and the child’s father, or the other adopter,
or the mother’s or adopter’s partner, are economically active, then the mother
or adopter may bring to an end her maternity or adoption leave and the
balance of untaken leave (and pay) may be available for the two people to
share. Each of them will have to meet individual qualifying requirements for
the leave and pay. The total amount of shared parental leave taken jointly by
the parents, may not exceed a total of 52 weeks, when combined with
maternity leave/adoption leave or weeks of maternity pay/maternity allowance
or adoption pay.
180. The regulation making powers conferred on the Secretary of State by
this clause will be used to set out the details of how the shared parental leave
system will work for birth mothers and their partners and for adoptive parents.
181. The Secretary of State may make regulations setting out the
requirements that both the mother (or adopter) and the other person have to
satisfy in order that they can benefit from shared parental leave. We
anticipate that the Secretary of State will set a requirement to satisfy a work
and earnings requirement for an employee’s partner to satisfy if the employee
is to qualify for shared parental leave. Specifically, that in a 66 week test
period leading up to the expected week of child birth (or week of adoptive
matching or “fostering for adoption” matching of the child) that the person has
worked for 26 weeks and earned a minimum amount (currently £30) for 13 of
those weeks. This is well-established proxy for economic activity which
currently applies for a mother to qualify for maternity allowance. We expect
similar length of service and minimum earnings level to apply to qualify for the
leave and pay that is currently in place for an employee to qualify for statutory
maternity pay or ordinary and additional paternity leave and pay, that is, that
the employee has completed 26 weeks of continuous employment with the
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same employee at the 15th week before the expected date of child birth and
that the employee has earned at least the Lower Earnings Level (currently
£107 a week).
182. The Secretary of State may make regulations about the notice period
to be given by employees to their employers, about how much shared
parental leave is available and how much each employee will take. The
Government will propose that the notice period is 8 weeks, reflecting the
current arrangement for additional paternity leave, but we intend to consult on
these notice periods.
183. The Secretary of State may by regulation specify the time period within
which statutory parental leave must be taken.
184. The Government intends to retain the power to specify in regulations
what is to be regarded as caring for the child. This power currently exists in
respect of additional paternity leave, although it has not to date been
exercised as we are not aware of instances where a father has abused
additional paternity leave.
Clause 90 – Exclusion or curtailment of other statutory rights to leave
185. Clause 90 amends the existing power at section 71 ERA for the
Secretary of State to make regulations concerning maternity leave.
Subsection (2)(a)(ba) provides that regulations made under section 71 ERA
may also allow an employee to choose the date on which an ordinary
maternity period ends, subject to prescribed restrictions and meeting
prescribed conditions, specifically that the ordinary maternity period may only
be brought to an end if the employee (the mother) and another person (the
father or the mother’s partner) intend that one or both of them should take
statutory shared parental leave and/or pay, for which provision is made in
clauses 86 and 88 in this Bill; and subsection (2)(a)(bb) allows regulations to
specify the circumstances in which an employee may revoke such a choice.
186. Similarly, the existing power in section 73(3) ERA is amended to allow
regulations to allow a woman to choose to end her additional maternity leave.
187. The Secretary of State has made the Maternity and Parental Leave
Regulations 1999 under powers in section 71 and section 73 ERA.
188. This clause inserts the possibility for prescribed conditions to be set in
regulation in respect of a woman choosing to end her ordinary or additional
maternity leave when the mother and another person (the father or the
mother’s partner) intend that one or both of them should take shared parental
leave and/or statutory shared parental pay. It also provides that regulations
may specify the circumstances in which an employee may revoke the choice
to end her maternity leave.
189. We intend that a woman can bring her maternity leave to an end at any
time after the compulsory period of absence from work following birth (4
weeks for factory workers and 2 weeks in other circumstances) and that the
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balance of untaken leave and pay or allowance is available to be taken by the
woman and her partner as shared parental leave and statutory shared
parental pay.
190. We intend to provide that where a woman has given notice before the
birth to bring her maternity leave to an end on a specific date, that she may
revoke this notice at any time during a specific period following the birth. We
intend to consult on whether the period in which revocation is permissible
should be 4 or 6 weeks.
191. In addition, we anticipate a woman being able to revoke her notice to
bring her maternity leave in the 8 weeks after tendering the notice should she
discover that either she or the other person does not meet the individual
qualifying criteria required for shared parental leave and/or statutory shared
parental pay.
192. We do not anticipate the Secretary of State providing for revocation of
notice in any other circumstances in respect of notice to end maternity leave.
193. The clause inserts a similar provision into sections 75A and 75B ERA
to allow regulations to be made to enable an adopter to choose to end his or
her period of ordinary or additional adoption leave early. We intend that
similar conditions applying to the end of maternity leave will apply to the end
of adoption leave, but with the placement of the child replacing the birth.
194. Subsections (6) and (7) of this clause amends sections 80A and 80B
ERA to require regulations to be made to the effect that the taking of shared
parental leave prevents an employee from subsequently exercising the right
to take ordinary paternity leave. This ensures that paternity leave must be
taken before shared parental leave and there is no more entitlement to any
untaken paternity leave once shared parental leave has been taken.
Clause 91 – statutory shared parental pay
195. Clause 91 contains a new delegated power in relation to pay enabling
the Secretary of State to make regulations providing that the mother of a child
(the primary claimant) may be entitled to statutory shared parental pay if she
satisfies all of a number of conditions, both relating to the person herself and
to the child’s father or her partner. Within this power the following subordinate
powers are contained for the Secretary of State:
a.
to prescribe the mother's relationship with another person and
having, or expecting to have, responsibility for care of the child;
b.
to prescribe that the other person satisfies conditions relating to
employment or self-employment, as to the relationship with the
child, and as to the other person’s relationship with the child;
c.
to prescribe by regulations the length of his continuous
employment and prescribed point by which it must be
determined;
d.
to prescribe by regulations the reference period for calculation of
applicable earnings and point at which it must be calculated;
e.
to provide in regulations (should he wish to do so) that the
37
DPRR/12-13/17
f.
g.
h.
i.
j.
k.
l.
person must have continuation of employment up to a
prescribed date;
to require that the mother became entitled, by reference to the
birth of the child, to statutory maternity pay;
to prescribe that a mother must satisfy certain conditions set out
in regulations as to the reduction of her maternity pay period;
to require in regulations that the mother give notice to her
employer of the number of weeks she intends to take statutory
shared parental pay, the number of weeks the child’s father or
her partner intends to claim statutory shared parental pay and
the period(s) during which she intends to claim statutory shared
parental pay;
to prescribe a time by which such notice may be given and to
prescribe that consent of the other person is to be given;
to require that it is the mother’s intention to care for the child
during each week in which statutory shared parental pay is paid
to her;
to prescribe that if the mother is entitled to shared parental leave
then she must be absent on shared parental leave during each
week for which shared statutory parental pay is paid to her;
to prescribe that if the mother is not entitled to shared parental
leave that she is absent from work for each week in which
statutory shared parental pay is paid to her.
196. The Clause sets out similar powers for the Secretary of State in relation
to the other person, be it the child’s father or the mother’s partner, where this
person is sharing the care of the child with the mother. In addition, the clause
also creates a power for the Secretary of State to provide:
a.
the extent of a person’s entitlement to statutory shared parental
pay to take into account another person’s entitlement to such
pay in respect of the same child;
b.
when statutory shared parental pay is payable;
c.
the conditions under which the periods during which the pay is
to be claimed or the number of weeks of which it is intended to
claim can be varied.
197. The Clause also provides a new section 171ZW which enables the
Secretary of State to make regulations dealing with a number of general
provisions relating to an employee’s entitlement to statutory shared parental
pay. It allows for:
a.
some of the conditions of entitlement to pay and the conditions
relating to variations relating to pay not to have effect in
prescribed circumstances;
b.
the imposition of requirements about evidence of entitlement or
procedures to be followed;
c.
a person to be treated as having a continuous period of
employment and to aggregate amounts earned under separate
contracts of service;
d.
aggregation of amounts earned under separate contracts of
service with the same employer for the purpose of the provisions
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DPRR/12-13/17
e.
on statutory shared parental pay;
the specification of the manner or the basis on which a person’s
earnings is to be calculated or estimated for the purpose of the
provisions on statutory shared parental pay.
198. This Clause inserts a new section 171ZX into the SSCBA which sets
out the liability to pay statutory shared parental pay, with the concurrence of
the Commissioners for Her Majesty's Revenue and Customs, to be a liability
of the Commissioners and requires that regulations address the liability of a
former employer to pay statutory shared parental pay, and where, with the
concurrence of the Commissioners for Her Majesty's Revenue and Customs,
the liability to pay is a liability of the Commissioners; the liability of a former
employer to pay statutory shared parental pay where a contract has been
terminated for the purpose of avoiding liability for statutory shared parental
pay.
199.
This Clause provides in new section 171ZY of the SSCBA which gives:
a.
a power for the Secretary of State to prescribe the fixed or
earnings-related weekly rate and to prescribe different rates for
different cases;
b.
a power for the Secretary of State to prescribe the beginning of
a period during which statutory shared parental pay is payable;
c.
a power for the Secretary of State to prescribe the beginning of
a period during which statutory shared parental pay is payable;
d.
a power for the Secretary of State to prescribe cases when
statutory shared parental pay is payable during a week during
which the employee works for an employer;
e.
a power to specify cases where there is no liability to pay
statutory shared parental pay.
200. These powers reflect the powers in place in section 171ZEC for
additional statutory paternity pay, which will be superseded by the provisions
for statutory shared parental leave after a transitional period.
201. The Secretary of State has power under sections 171ZZ1 and 171ZZ3
to provide by regulation which payments are or are not to be treated as
contractual remuneration for the purposes of the provision concerning the
relationship of statutory shared parental pay with contractual remuneration.
The Secretary of State is also given a power, with the concurrence of the
Treasury, to make regulations:
a.
modifying any provisions in this Part in respect of its application
to any person who is, has been or is to be employed on board a
ship, vessel, hovercraft or aircraft; outside Grate Britain at any
prescribed time or in any prescribed circumstances; or in
prescribed employment in connection with continental shelf
operations;
b.
providing that this Part may apply to any person where it would
not normally apply, or to disapply it where it would normally
apply, and for excepting any person from the provisions where
the person is neither domiciled or resident in GB; and for the
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DPRR/12-13/17
taking of evidence for the determination of any questions arising
under any such provisions, by a British consular official or other
specified person.
202. The Secretary of State, with the concurrence of Her Majesty’s Revenue
and Customs, is also provided with a power to make regulations to provide:
a.
for cases where a person is to be treated as an employee and
where he is not;
b.
where two or more employers are to be treated as one;
c.
where two or more contracts of service in respect of the same
person are to be treated as one.
203.
A power is also created for the Secretary of State:
a.
to make regulations to enable a health service employee to elect
for two or more contracts to be treated as one for the purpose of
statutory shared parental pay and to prescribe conditions that
apply to this;
b.
to make regulations specifying when a person who does not fall
within the definition of employee is to be treated as an employee
for the purposes of the provisions on statutory shared parental
pay;
c.
to make regulations specifying when a person who does fall
within the definition of employee is not to be so treated;
d.
to make regulations specifying when 2 or more employers or 2
or more contracts of service are to be treated as one.
204. The clause also creates, with relation to adoptive parents’ entitlement
to shared parental pay, analogous regulation-making powers to those set out
above in respect of birth parents (new clause 171ZV onwards). These
regulations may also make provision for the application of shared parental pay
(on the same basis as for "ordinary" adopters) for applicants of parental
orders and for adoptive parents who are adopting a child from outside the
United Kingdom (new clause 171ZZ5), and for prospective adopters with
whom looked after children are placed under section 22C of the Children Act
1989 (new clause171ZV(18)).
Clause 92 – curtailment of statutory pay periods and exclusion of
statutory pay
205. Clause 92 amends existing powers in sections 35, 165A, 171ZE and
171ZN of the SSCBA for the Secretary of State to make regulations setting
out the impact of a notice exercising the right to share parental pay on the
duration of the mothers maternity pay period, or maternity allowance period
(or statutory adoption period) as the case may be.
206. We intend to create a new right for a woman to bring an end to her
maternity pay period or maternity allowance period on a specified date in
circumstances where the woman and another person are entitled to and
intend that one or both should receive statutory shared parental pay. There is
a power for the Secretary of State to make similar regulations in respect of
40
DPRR/12-13/17
bringing to an end statutory adoption pay.
Clause 93 – Statutory rights to leave and pay of prospective adopters
with whom looked after children are placed
207. Clause 93 amends section 75A of the ERA (ordinary adoption leave)
to enable conditions that may be prescribed by the Secretary of State to
include:
a.
being a local authority foster parent;
b.
being approved as a prospective adopter;
c.
being notified by a local authority that a child is to be, or
expected to be, placed with the employee.
208. The Clause also amends the Secretary of State’s power to make
regulations under section 80B ERA (entitlement to ordinary paternity leave:
adoption) to enable an employee to take paternity leave when a child has
been placed, or expects to be placed, with a foster parent who has been
approved as a prospective adopter.
Clause 94 – Statutory rights to leave and pay of applicants for parental
orders
209. Clause 94 introduces a new provision for intended parents in surrogacy
arrangements, who are entitled and intend to make an application for a
parental order under section 54 of the Human Fertilisation and Embryology
Act 2008, to be entitled to paternity leave and pay and to adoption leave and
pay in respect of the child who is the subject of the order.
210. The clause amends existing powers in the ERA for the Secretary of
State to make regulations, and enables the provisions for ordinary adoption
leave and additional adoption leave to apply to an employee who is entitled
and has applied or intends to apply, with another person, for a parental order
under section 54 of the Human Fertilisation and Embryology Act 2008 in
respect of the child who is the subject of the parental order.
211. Subsection (3) amends section 75D ERA to enable the Secretary of
State in when making regulations concerning ordinary or additional adoption
leave which concern cases involving an application for a parental order to
require the employee to provide a statutory declaration as to the eligibility of
the employee, with another person, to apply for a parental order and as to the
intention to make such an application.
212. Since there is no “certificate of surrogacy” comparable to the statutory
MATB1 form which is provided to a pregnant woman stating the expected due
date of her baby, and it is open to eligible persons to apply for a parental
order up to 6 months following the birth, we intend to provide that an eligible
employee might provide a statutory declaration of eligibility and intention to
apply for a parental order in order to have access to adoption leave from the
time they start to care for the child.
41
DPRR/12-13/17
213. Subsection (4) amends section 80 of the ERA to enable the Secretary
of State to make regulations to provide that paternity leave following adoption
is available in cases where an employee, with another person, is eligible and
intends to apply for a parental order in respect of the child who is the subject
of such an order.
214. In addition, subsection (5) inserts into section 171ZK SSCBA a new
subsection (2) that provides a power for the Secretary of State to apply
paternity pay for adopters to cases involving parental orders.
215. Subsection (6) inserts into section 171ZT SSCBA new subsections (2)
and (3) that provides a regulation making power for the Secretary of State to:
a.
apply statutory adoption pay to cases involving employees who
are intended parents in surrogacy arrangements who are eligible
to and intend to apply for a parental order; and
b.
to require a statutory declaration from the intended parents as to
their eligibility and intention to make such an application.
216. The powers for the Secretary of State to make regulations in this
clause are subject to the affirmative procedure.
Clause 95 – Statutory paternity pay: notice requirement and period of
payment
217. Clause 95 amends the provisions for statutory paternity pay to enable
the Secretary of State to set the period of pay in regulations.
218. Subsection (2) removes the restriction in section 171ZE SSCBA to
statutory paternity pay being two weeks and inserts a new subsection 2A that
amends the Secretary of State’s power to make regulations that may provide
for payment of paternity pay for a specified number of weeks, within a
minimum number of 2 weeks. New subsection 2B allows the Secretary of
State to make regulations providing that pay may be made in respect of nonconsecutive weeks.
219. This clause provides that statutory paternity pay is payable for more
than the current 2 weeks. This is dependent on the weeks of paternity leave
being increased, which can be effected through secondary legislation. Whilst
a policy decision has been taken recently not to increase the number of
weeks of paternity leave, the Government is committed to keeping this under
review and may decide at a later date to increase the number of weeks of
paternity leave by secondary legislation. Subsection (2)(d) gives the Secretary
of State powers to set the number of weeks of statutory paternity pay in
regulations. This will enable increases to paternity leave and pay to be made
in secondary legislation.
220. It is intended that these regulations will be subject to the affirmative
resolution procedure to ensure appropriate Parliamentary scrutiny of the
extension of, and associated changes to, paternity pay.
Schedule 7 – Statutory Rights to Leave and Pay: Further Amendments
42
DPRR/12-13/17
221. Schedule 7 to the Bill will make minor amendments to delegated
powers in existing legislation. In order to aid the Committee’s understanding
as to how these changes will take effect, details are set out below.
222. Paragraph 9 amends section 4C(11) of the Social Security
Contributions and Benefits Act 1992 which defines what is a statutory
payment by omitting the reference to additional statutory paternity pay and
inserting a reference to statutory shared parental pay. Under section 4C(1)
the Treasury has power to make such provision by regulation as is expedient
relating to statutory payments in consequence of provision made under
section 4B(2) (power to make retrospective provision in consequence of
retrospective tax legislation)
223. Paragraph 24 amends section 5 of the Social Security Administration
Act 1992 which provides a power for regulations to be made governing claims
for and payment of benefit. Section 5(5) sets out what payments the section
applies to, and the subsection is amended by replacing the reference to
additional statutory paternity pay with a reference to statutory shared parental
pay.
224. Paragraph 31 amends section 47C of the Employment Rights Act
1996. Section 47C(1) provides that an employee has the right not to be
subjected to detriment by any act by that person’s employer done for a
prescribed reason. Section 47C(2) provides that a prescribed reason is one
which is prescribed by regulations which relates to certain specified reasons.
The amendment would replace the reference in this subsection to a reason
relating to additional paternity leave with a reference to a reason relating to
shared parental leave.
225. Paragraph 39 amends section 99 of the Employment Rights Act 1996
Section 99(1) provides that an employee who is dismissed is to be regarded
as unfairly dismissed if the reason is one of a prescribed kind. Section 99(3)
sets out what the reason prescribed must relate to. The amendment would
replace the reference in this subsection to a reason relating to additional
paternity leave with a reference to shared parental leave.
226. Paragraphs 45 and 47 amend sections 8 and 14 of the Social Security
Contributions (Transfer of Functions etc.) Act 1999 which cover the powers of
Revenue and Customs to make decisions relating to certain statutory
payments and the power to make regulations concerning matters while such a
decision is pending The amendments change the reference to the statutory
payment in question by substituting the reference to additional statutory
paternity pay with statutory shared parental pay.
227. Paragraph 51 amends section 7 of the Employment Act 2002. Section
7 provides for regulations to be made providing for the payment by employers
of certain statutory payments to be funded by Revenue and Customs. The
amendment changes the statutory payments concerned by replacing
additional statutory paternity pay with a reference to statutory shared parental
pay.
43
DPRR/12-13/17
228. Paragraph 52 amends section 8 of the Employment Act 2002. Section
8 provides for regulations to be made with respect to the payments by
employers of certain statutory payments including matters relating to records
to be kept and the production of evidence. The amendment changes the
statutory payments specified in section 8 by replacing additional statutory
paternity pay with a reference to statutory shared parental pay.
229. Paragraph 53 amends section 10 of the Employment Act 2002. Section
10 provides for regulations to be made as to the production of documents for
the purposes of determining whether certain statutory payments are payable.
The amendment changes the statutory payments specified in this section by
replacing the reference to additional statutory paternity pay with a reference to
statutory shared parental pay.
Part 9 - General provisions
Clause 108 – Consequential amendments, repeals and revocations
230. Clause 106 enables the Secretary of State or the Lord Chancellor to
make provision that arises as a consequence of this Bill. This power includes
a power to amend, repeal, revoke or otherwise modify any provision. Where
the provision concerned amends, repeals or revokes any provision in primary
legislation, the order must be approved by the affirmative resolution
procedure. In all other cases the negative resolution procedure applies.
Clause 109 – Transitional, transitory or saving provision
231. Clause 109 enables the Secretary of State or the Lord Chancellor to
make transitional, transitory or saving provision in connection with this Bill by
order. This order making power will enable the Secretary of State to make
transitional provisions to ensure that children with statements of special
educational need and young people with learning difficulty assessments retain
the provision they currently receive until their statement or learning difficulty
assessment is replaced with an EHC plan.
232. As is usual for transitional, transitory and saving provisions, there is no
Parliamentary procedure for such orders.
Clause 111 - Commencement
233. The provisions in the Bill, other than clause 18 which comes into force
two months after Royal Assent, come into force on the day appointed by the
Secretary of State (or the Lord Chancellor for clauses 10, 13 and 17). As is
usual practice for commencement orders, there is no Parliamentary procedure
for such orders.
Department for Education
June 2013
44
DPRR/12-13/17
PROVISIONS ABOUT CHILDREN AND YOUNG PEOPLE IN ENGLAND
WITH SPECIAL EDUCATIONAL NEEDS
Annex to the Memorandum prepared by the Department for
Education for the Delegated Powers and Regulatory Reform
Committee
Clause
Number
3
4
5
6
7
8
10
12
13
14
15
26
28
30
31
34
Title
Procedure
Adoption
Recruitment, assessment and
approval of prospective
adopters
Adoption support services:
personal budgets
Adoption support services: duty
to provide information
The Adoption and Children Act
Register
Contact: children in care of
local authorities
Post-adoption contact
Family Justice
Family mediation information
and assessment meetings
Child arrangement orders
Control of expert evidence, and
of assessments, in children
proceedings
Care, supervision and other
family proceedings: time limits
and timetables
Care plans
Special Educational Needs
Joint commissioning
arrangements
Co-operating generally: local
authority functions
Local offer for children and
young people with special
educational needs
Co-operating in specific cases:
local authority functions
Children and young people with
45
New or Reinstatement
No
procedure
New
Negative
New
Negative
New
Negative
New
Negative
New
Court Rules
New
Negative
New
Negative
Negative
New
New
Affirmative
New
Negative
New
Negative
New
Negative
New
Negative
New
Negative
Reinstatement
Negative
Reinstatement
DPRR/12-13/17
36
37
41
44
45
special educational needs but
no EHC plan
Assessment of education,
health and care needs
Education, health and care
plans
Independent special schools
and special post-16 institutions:
approval
Reviews and re-assessments
Negative
Reinstatement
Negative
New
procedure
New
Negative
Negative
Ceasing to maintain an EHC
plan
Maintaining an EHC plan after
young person’s 25th birthday
Transfer of EHC Plans
Negative
Negative
49
Release of child or young
person for whom ECH plan
previously maintained
Personal budgets
51
Appeals
Negative
52
54
Mediation
Appeals and claims by children:
pilot schemes
Appeals and claims by children:
follow-up provision
Negative
Negative
46
47
48
55
63
65
68
SEN co-ordinators
SEN information report
Making and approval of code
69
Parents and young people
lacking capacity
Negative
Negative
Negative
Negative
(Affirmative
where
primary
legislation is
amended or
repealed)
Negative
Negative
Negative
Negative
New
procedure
New
procedure
New
Reinstatement
New
New
procedure
New
procedure
New
New
New
Reinstatement
Reinstatement
New
procedure
New
Childcare etc.
Childminder Agencies
74 and
Schedule 4
Paragraph 4 Requirement to register: early
years childminders
(exemptions)
Section 33 Childcare Act 2006
46
Negative
Existing
power but will
apply to those
who, would
otherwise be
DPRR/12-13/17
(“CA 2006”)
Paragraph 5 Requirement to register: other
early years providers
(exemptions)
Negative
obliged to
register with a
CMA
Existing
power but will
apply to those
who, would
otherwise be
obliged to
register with a
CMA
New
Negative
New
Negative
New
Negative
Existing
power will
apply to early
years CMAs
Negative
New
Negative
Section 34 CA 2006
Paragraphs
6(5) and (6)
Paragraphs
7(5) and (6)
Applications for registration:
early years childminders
(prescribed requirements for
registration)
Section 35 CA 2006
Applications for registration:
other early years providers
(prescribed requirements for
registration)
Section 36 CA 2006
Paragraph 9 Early years childminder
agencies: registers and
certificates
New section 37A
Paragraph
11
Instruments specifying learning
and development or welfare
requirements
Section 44 CA 2006
Paragraph
13
Regulation of early years
childminder agencies
New section 51A – applications
for registration
New section 51B – entry on the
register and certificates
New section 51D – inspections
of early years childminder
agencies
New section 51E – inspection
47
DPRR/12-13/17
reports
Paragraph
15
Requirement to register: Later
years childminders
(exemptions)
Negative
Negative
Existing
power but will
apply to those
who, would
otherwise be
obliged to
register with a
CMA
Existing
power but will
apply to those
who, would
otherwise be
obliged to
register with a
CMA
New
Negative
New
Negative
New
Negative
New
Section 52 CA 2006
Paragraph
16
Requirement to register: Other
later years providers
(exemptions)
Negative
Section 53 CA 2006
Paragraph
17(5) and
(6)
Applications for registration:
later years childminders
(prescribed requirements for
registration)
Section 54 CA 2006
Paragraphs
18(5) and
(6)
Applications for registration:
other later years providers
(prescribed requirements for
registration)
Section 55 CA 2006
Paragraph
20
Later years childminder
agencies: registers and
certificates
New section 56A
Paragraph
29
Simplified procedure for
persons already registered with
childminder agencies who also
want to register voluntarily for
care (e.g. for over 8s) in
respect of which registration is
possible but not mandatory
New section 65A
Paragraph
24
Regulations governing activities Negative
48
Existing
power will
apply to later
DPRR/12-13/17
Section 59 CA 2006
Paragraph
26
years CMAs
Regulation of later years
childminder agencies
Negative
New
New section 61A – Applications
for registration
New section 61B – Entry on the
register and certificates
New section 61E – Inspection
of later years childminder
agencies
New section 61F – Reports of
inspections
Paragraph
31
Regulations governing activities Negative
Negative
Existing
power will
apply to
CMAs
New
Negative
New
Negative
New
Negative
New
Negative
New
Negative
New
Section 67 CA 2006
Paragraph
35
Cancellation, termination and
suspension of registration with
a childminder agency
New section 69A
Paragraph
36
Cancellation of registration:
childminder agencies
New section 69B
Paragraph
36
Suspension of registration:
childminder agencies
New section 69C
Paragraph
46
Disqualification from
registration: childminder
agencies
New section 76A
Paragraph
53
Supply of information to the
Secretary of State, HMRC and
local authorities by childminder
agencies
New section 83A
Paragraph
Disclosure of information for
49
DPRR/12-13/17
55
certain purposes: childminder
agencies
New section 84A
Paragraph
58
Cases where consent to
disclosure withheld
Negative
Existing
power will
apply to
CMAs
Negative
Existing
power will
apply to
CMAs
Negative
New
Affirmative
Affirmative
New
New
New
sections
171ZU to
171ZY and
affirmative
New
Section 90 CA 2006
Paragraph
60
Power to amend Part 3:
applications in respect of
multiple premises
Section 94 CA 2006
75
89
90
91
92
93
94
95
Inspection at request of
providers of childcare to young
children
Statutory rights to leave and
pay
Shared parental leave
Exclusion or curtailment of
other statutory rights to leave
Shared statutory parental pay
Exclusion or curtailment of o
other statutory rights to pay
Statutory rights to leave and
pay of prospective adopters
with whom looked after children
are placed
Statutory rights to leave and
pay of applicants for parental
orders
Statutory paternity pay: notice
requirement and period of
payment
50
New
sections
171ZZ1 and
171ZZ3 and
negative
Negative
New
Affirmative
New
Affirmative
New
Affirmative
(period of
payment)
New
DPRR/12-13/17
Negative
(notice
requirement)
108
109
110
General provisions
Consequential amendments,
repeals and revocations
Transitional, transitory or
saving provision
Commencement
51
Negative or
affirmative
depending
on whether
primary
legislation is
affected
None
None