THE CHILDREN AND FAMILIES BILL
Seventh 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, the Fourth Supplementary Memorandum dated 2
December 2013, the Fifth Supplementary Memorandum dated 17
December 2013 and the Sixth Supplementary Memorandum dated 23
January 2014. 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 WITH SPECIAL
EDUCATIONAL NEEDS OR DISABILITIES
New Clause – to be inserted after clause 51 on the right to mediation
2. Clause 52 requires parents and young people to consider mediation
before taking an appeal to the Tribunal. This new clause enables parents
and young people to require local authorities and responsible
commissioning bodies to participate in mediation in relation to matters in
an EHC plan which cannot be appealed, such as the health care provision
and the social care provision included in the plan. Other new clauses
make provision about the mediation
3. The clause requires the local authority to notify the parent or young person
of the right to mediation within a prescribed time period. The Government
believes that it is appropriate for this technical provision to be made by the
negative resolution procedure. Such provision could be made using the
powers in what is currently clause 52(7) (but see paragraph ….below) for
which the negative procedure has been accepted by Parliament as being
appropriate, but it was felt that it would be clearer to the reader to include
an express provision in this clause.
Clause 52 – mediation and new clause to be inserted after clause 52 –
mediation:supplementary
4. The regulation making powers in clause 52(7), to make regulations in
relation to mediation are being moved to subsection (1) of the new clause
for reasons of clarity following the introduction of the new mediation
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provisions referred to above. The provisions are the identical apart from a
small change to reflect the involvement in mediation of commissioning
bodies. The government believes that the negative procedure is still
appropriate for these powers for the reasons set out in the original
Delegated Powers Memorandum.
Clause 73 – code of practice
5. The heads of relevant youth accommodation and youth offending teams
are being added to the list of bodies that have to have regard to the Code
of Practice when carrying out their functions. This is because of the new
provisions relating to children and young people that are being detained
which were inserted into the Bill at Report stage.
PART 5 – WELFARE OF CHILDREN
New Clause – to be inserted after clause 86 on the prohibition of sale of
nicotine products to persons under 18
6. This clause makes provision relating to the sale of non-tobacco nicotine
products such as electronic cigarettes. The regulation making power at
subsection (1) enables the Secretary of State to make provision prohibiting
the sale of nicotine products to persons aged under 18. The Government
considers that it is appropriate to delegate this power in order to provide
the opportunity to carefully consider how to define the nicotine products to
be subject to an age restriction. Bearing in mind that electronic cigarettes
are novel technology, the delegated power will provide a capability to
capture that technology and respond to a rapidly evolving market.
7. The regulation making powers at subsection (6)(a) and (b) enable the
Secretary of State to amend, or apply with modifications the new section
(Purchase of tobacco etc. on behalf of persons under 18), so as to apply it
in relation to nicotine products. These powers may be used to extend this
tobacco “proxy purchasing” offence to nicotine products.
8. While subsection (9) provides a definition of “nicotine product” but the
powers at subsection (7) enable the Secretary of State to limit the scope of
the offence by making provision in relation to nicotine products of a
specified kind, or subject to specified exceptions. These powers may be
exercised for example to exclude vegetables which contain naturally
occurring nicotine. The Government believes that this is a technical matter
which is most appropriately dealt with in regulations.
9. Pursuant to subsection (8) the Secretary of State must obtain the consent
of the Welsh Ministers before making regulations under this section which
would (if contained in an Act of the National Assembly for Wales) be within
the legislative competence of that Assembly.
10. These regulations will have an impact on businesses and consumers. The
power at subsection 6(a) is a power to amend primary legislation. For this
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reason, the Government believes that regulations made under this section
should be subject to the affirmative resolution procedure.
New Clause – to be inserted after clause 86 Amendments consequential
on section (Prohibition of sale of nicotine products to persons under 18)
11. The sale of tobacco to persons under 18 is already prohibited. This clause
makes consequential amendments to integrate the new nicotine products
offence into that existing tobacco regime. The amendments to section 5 of
the Children and Young Persons (Protection from Tobacco) Act 1991
extend the existing enforcement regime applicable to the existing offence
of sale of tobacco to persons under 18 (found at section 7 of the Children
and Young Persons Act 1933), to the new offence of sale of nicotine
products to persons under 18. The consequential amendments to
sections 12A to 12D of the Children and Young Persons Act extend the
existing regime addressing persistent sales of tobacco to persons under
18, to persistent sales of nicotine products to persons under 18. In this
context subsection (8) provides a power to make further consequential
amendments to primary or secondary legislation in connection with
provision made by or under section (Prohibition of sale of nicotine products
to persons under 18). As this power is a power to amend primary
legislation, the government believes that regulations made using this
power should be subject to the affirmative procedure.
New Clause to be inserted after clause 89 (young carers) – Parent Carers
12. This new Clause consolidates existing rights for persons who are aged 18
or over with parental responsibility for disabled children (“parent carers”)
for whom they provide or intend to provide care to have a needs
assessment under the Carers and Disabled Children Act 2000 (“CDCA
2000”)1 and inserts new sections into Part 3 of the Children Act 1989. The
new sections will also make it easier for parent carers to get an
assessment and to support whole family approaches in line with provisions
in the Care Bill, and for young carers in this Bill. In conjunction with
provisions in this Bill for young carers and in the Care Bill for adult carers,
they will do this by–
a. simplifying the legislation relating to parent carers, making rights
and duties clearer to both parent carers and practitioners;
b. making it clear to local authorities that they must carry out an
assessment of a parent carer's needs for support on request or on
the appearance of need; and
c. providing the appropriate links between children's and adults'
legislation to facilitate local authorities’ combining assessments of
parent carers with assessments of the children they care for. This
facilitates local authorities consideration of the needs of the whole
family and their delivery of coordinated packages of support.
New section 17ZE(4)
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It is currently intended that the repeal of the CDCA 2000 will be commenced in April 2015 by
way of orders to be made under powers in the Care Bill and this Bill.
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13. This enables the Secretary of State to make regulations making provision
about the carrying out of a parent carer’s needs assessment. Those
regulations may, in particular, specify matters to which a local authority is
to have regard or is to determine in carrying out the assessment, the
manner in which an assessment is to be carried out and the form that
assessment is to take.
14. Section 6(3) of the CDCA 2000 enables the Secretary of State to give
directions to local authorities about the manner in which parent carers’
assessments under that Act are to be carried out and the form that such
assessments must take. The reason for taking a regulation-making power
rather than a direction-giving one is because the Government wishes that
the provisions about how parent carers’ needs assessments are carried
out reflect the provisions for the assessment of the needs of adult carers,
as provided for under the Care Bill, and young carers, as provided for in
this Bill. In addition, the proposed new regulation-making power goes
further than the direct-giving power in section 6(3) of the CDCA 2000, for
example by enabling the Secretary of State to specify matters to which the
local authority is to have regard or to determine.
15. The Government believes that matters concerning the carrying out of
parent carers’ needs assessments are procedural detail that is most
appropriately included in regulations which are made by the negative
resolution procedure. This procedure, whilst still providing a sufficient level
of scrutiny, also provides for the appropriate level of flexibility as it will
enable changes to the detail of the carrying out of assessments to be
made without undue delay. It also reflects the procedure for similar
regulations to be made under the Care Bill and, in relation to young carers,
under this Bill.
New section 17ZE(5)
16. This section enables the Secretary of State to make regulations which
amend the list of enactments set out in new section 17ZD(8)(b) of the
Children Act 1989 by adding, removing or varying entries. New section
17ZD(8) defines a “care-related assessment” for the purposes of the new
section 17ZD: an assessment carried out under the provisions listed in
17ZD(8)(b) is a care-related assessment. The Government considers it
necessary to have a power to amend that list by regulations because, in
due course, it is likely to be necessary to alter that list to reflect changes to
legislation or the creation of new types of assessment.
17. The Government considers it appropriate that this power is exercised by
the affirmative resolution procedure because the power provides for an
amendment to primary legislation by secondary legislation.
Department for Education
31 January 2014
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