THE CHILDREN AND FAMILIES BILL
Fifth Supplementary Memorandum prepared by the Department for
Education
For the Delegated Powers and Regulatory Reform Committee
Introduction
1. This Memorandum supplements the Memorandum submitted to the
Committee in June 2013, the Supplementary Memorandum submitted to
the Committee dated 2nd October and the Second Supplementary
Memorandum submitted to the Committee dated 7 October 2013, the
Third Supplementary Memorandum submitted to the Committee dated 5
November 2013 and the Fourth Supplementary Memorandum dated 2
December 2013. It contains further information for the Committee on new
provisions to be included in the Children and Families Bill that confers
power on the Secretary of State to make delegated legislation.
PART 3 – CHILDREN AND YOUNG PEOPLE IN ENGLAND WITH SPECIAL
EDUCATIONAL NEEDS
Amendment to clause 30
2. Amendments to clause 30 ensure that disabled children without special
educational needs are considered as part of the local offer. As part of this
the regulation making power in sub-section (8) has been amended so that
regulations can make provision about how the local authority involves
disabled children and young people, and the parents of disabled children
in the preparation and review of the local offer. The regulation making
power in sub-section (9) has been amended so that the regulations may
make provision relating to information about sources of information, advice
and support for disabled children and young people, and those who care
for them.
3. As with other regulations concerning the local offer, these regulations will
be made by the negative resolution procedure, which the Committee has
already considered.
New Clause – application of part to detained persons
4. This new clause is part of a suite of amendments to make provision
concerning EHC plans in respect of children and young people aged 18
and under who are detained in relevant youth accommodation. Some
provisions in Part 3 are disapplied in relation to such people, and others
are applied with modification.
5. Sub-section (3) of this new clause is a power to apply further provisions in
the part to detained people. Such a power can only be exercised after
consulting the Welsh Ministers in relation to those who are detained in
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Wales.
6. As the regulations would be applying primary legislation, with or without
modification, to such people, the government thinks it appropriate for such
a power to be exercised by the affirmative resolution procedure.
7. Many of the new duties in relation to those who are detained are imposed
on the home authority for that particular child or young person. Home
authority is defined in section 562J of the Education Act 1996 as the
authority in which the child is ordinarily resident, or for looked after
children, the local authority which has been looking after the child.
8. These new duties are to be imposed on the local authority that would
maintain an EHC plan for the looked after child. In many cases this will be
the home authority. However, in cases where the looked after child is
placed outside of that local authority’s area, for example with foster
parents in another local authority’s area the duty should be imposed upon
the local authority where the child is placed, as that is the authority that
would be responsible for maintaining a plan for the child. Sub-section (7)
of this new clause allows regulations to be made to apply the definition of
‘home authority’ with modifications in such circumstances.
9. The government believes that the negative resolution procedure is
appropriate for a technical provision like this. This procedure also
replicates the procedure for making regulations under section 562J of the
Education Act 1996.
New clause – assessment of post-detention education, health and care
needs of detained persons
10. This clause makes provision for the education, health and care needs of a
child or young person under 19 to be assessed whilst they are detained in
relevant youth accommodation (within the meaning of section 562(1A)(b)
of the Education Act 1996). Sub-section (11) of the new clause provides
for regulations to be made about detained persons EHC needs
assessments. This power mirrors that in clause 36 relating to the
assessment of the education, health and care needs for those who are not
detained.
11. It 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.
12. As with clause 36, the government believes that the negative resolution
procedure proposed is appropriate for this kind of procedural detail, and
mirrors the procedure which Parliament considered appropriate in relation
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to the assessment of children for statements which this provision replaces
(Schedule 26 Education Act 1996).
New clause – EHC plans for certain detained persons: appeals and
mediation
13. This clause allows detained persons to appeal to the First-tier Tribunal in
relation to the matters specified in sub-section (2) – a decision not to
secure an assessment, a decision not to make an EHC plan following an
assessment, and the name of the school or other institution to be named in
the plan (to be attended once the detained person leaves detention.
14. Sub-section (4) of the new clause is similar to clause 51 and enables
regulations to be made about the making of appeals, the powers of the
Tribunal, and unopposed appeals. As with clause 51, the Government
believes that it is appropriate to make provision in relation to these
procedural matters in regulations made by the negative resolution
procedure.
15. The Committee, in its 7th Report of session 2013 – 2014, expressed
concern that the powers of the Tribunal were not set out on the face of the
Bill. The government’s response to this report explained that the reason
these provisions were to be placed in regulations was to be more helpful to
the readers of legislation, by ensuring that the powers of the Tribunal, and
the timescales relevant to the appeal were together in one place.
16. The government said it would listen to concerns raised in committee in
relation to the powers in clause 51, but no concerns were raised, and to
date, no amendments on this matter have been tabled for Report.
Therefore the government proposes to keep the negative resolution
procedure for these provisions
17. Sub-section (8) of the new clause enables regulation made under clause
52 of the Bill (concerning mediation) to make provision in relation to
detained person by importing reference to detained persons. This is a
technical provision, and as with regulations made under clause 52(7) such
regulations should be made by the negative resolution procedure.
New clause – Duty to keep EHC plans for detained persons
18. This new clause requires a detained person’s home local authority to keep
the EHC plan whilst the person is detained, and to use its best endeavours
to arrange appropriate special educational provision whilst the person is
detained.
19. Sub-section (3) enables regulations to be made about the keeping and
disclosure of EHC plans whilst the child or young person is in detention.
This is similar to the power in clause 37(5) for those who are not detained.
The power will be used to set out procedural requirements for keeping a
plan, and the Government believes that it is appropriate for such
regulations to be made by the negative resolution procedure.
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PART 5 – WELFARE OF CHILDREN
New Clause – to be inserted before clause 80 on the Regulation of retail
packaging etc of tobacco products
20. The powers under this section are to enable the Secretary of State to
standardise tobacco packaging, and elements of the tobacco product, if he
decides to do so. Sub-section (4) of the new clause provides a power to
make regulations about the retail packaging of tobacco. Sub-section (5)
sets out the elements of tobacco retail packaging that regulations under
sub-section (4) may provide for. Sub-section (6) provides a power to make
regulations about the tobacco products themselves and sets out the
elements of tobacco products that the regulations may provide for.
21. Sub-section (7) gives a power to make regulations which create offences
for the production or supply of tobacco products the retail packaging of
which breaches the regulations made under sub-sections (4) and (6).
22. Sub-section (8) gives a power to make regulations to provide that the
regulations made under sub-sections (4) and (6) incorporate the
enforcement procedures in the Consumer Protection Act 1987 (for safety
regulations), which are already used for existing tobacco control measures
in the Tobacco Products (Manufacture, Presentation and Sale) (Safety)
Regulations 2002.
23. Sub-section (9) gives a power for regulations to make provision amending,
repealing, revoking or otherwise modifying any provisions made by or
under an enactment in connection with provisions made under subsections (4),(6),(7) or (8). The primary reason for the inclusion of this
power is that regulations will need to provide for how tobacco related
trademarks, which are affected by these packaging regulations, are to be
treated under the Trade Marks Act 1994.
24. Regulations under sub-sections (4), (6), (7) and (8) will provide the detail
of how the government’s policy will be provided for. These regulations will
be novel, and will have an impact on businesses and consumers.
Regulations made under sub-section (10) include powers to amend
primary legislation. For these reasons, the Government believes that
regulations made under this new section should all be subject to the
affirmative resolution procedure.
Department for Education
17 December 2013
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