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Apprenticeships, Skills, Children and Learning Bill

Volume 712: debated on Monday 29 June 2009

Committee (3rd Day) (Continued)

Clause 40 [Education and training for persons over compulsory school age: general duty]:

Amendment 91A

Moved by

91A: Clause 40, page 23, line 8, leave out “secure” and insert “satisfy themselves”

In moving Amendment 91A I shall speak to the other amendments in the group. These amendments are intended to give us a chance to look at Clause 40 as a whole and to discuss how the relationship between a local education authority and the colleges now being brought back under its wing is to be conducted. The Government express the core of this in Clause 40(1) which states:

“A local education authority in England must secure that enough suitable education and training is provided to meet the reasonable needs of persons in their area”.

I take that as pretty strong control and indeed that seems to be the way it is being interpreted by local education authorities, which even now are tramping around colleges saying, “We are not going to allow you to do that because we want you to do this”, and generally putting a rather dirigiste interpretation on how the relationship will run. Indeed, that is the flavour I get from it as well. If a local education authority has a duty to secure that a particular kind of education is available, one that it decides on because it has to settle that the education is suitable, presumably it will use these powers over its colleges to make sure that they provide that education and do not provide other things.

Amendment 91A substitutes for the word “secure” the words “satisfy themselves” to indicate a different kind of relationship where it is the responsibility of the local education authority to make sure that education of a suitable kind is in place, but makes it clear that the authority itself is not responsible for providing that education. An authority will not have to take steps to ensure that the education is provided because, after all, it does not provide the education but merely directs one of the bodies under its control to do so.

That theme is pursued in most of the other amendments in the group, and certainly in Amendments 91B and 91C. Amendment 91D seeks to leave out lines 23 and 24. That is an amplification which really asks why a local education authority should be concerned about,

“the locations and times at which the location or training is provided”.

Again, that moves into the timetables of the colleges subject to the local education authority’s edict. I do not see why those details should be of concern to the authority. Amendment 91E provides that if the authority is going to take on all this control, it ought to be subject to the opinions of the people on whose behalf it says it is acting. Local education authorities appear to be doing this out of their own invention and direction rather than paying any attention to the people they should regard as their customers and, indeed, their masters in this matter.

Amendment 93A follows the general line I have laid out, while Amendments 100A to 100C underline what I said earlier in that they seek to change the relationship of the authority from one of master to provider. In other words, the relationship would change from one of controlling what colleges provide to looking at what the customers—the individuals who require the education or training—actually want.

That is almost the end of the group. Amendment 102B looks at the duty of LEAs to co-operate with each other. It seeks to reinforce the duty requiring local authorities to co-operate, particularly when there are a lot of authorities involved. A large further education college may well be serving 20 or so local education authorities altogether—some of the very big ones rather more than that. I want to increase the duty on local authorities to co-operate and make it clear what sort of co-operation is expected by saying that they have to co-operate not only in the interests of persons resident in their area but in the interests of persons resident in other areas. Colleges that they are responsible for, although in their area, may well be offering education to a very large number of people from outside their area. The whole direction the college takes, and the management of that college, should be in the interests of all the people it serves and not just the people in whose area the college happens to be. It does not seem to me that the local education authority’s duty to those people outside its own area is clear enough. I beg to move.

I am interested in these amendments that the noble Lord, Lord Lucas, has put down—somewhat belatedly, if I might say so. It would have been good if he had alerted us to them a little earlier. I take on board the points he is making.

The noble Lord said that in his experience local education authorities are beginning to lay down the law. That is not my experience. Many local education authorities are only just beginning to wake up to the responsibilities they are going to have under this Bill. A lot of negotiations are taking place among authorities regarding who will be working where. We have run down the capabilities of many local education authorities and this is causing real difficulty. There was a time, 10 or 20 years ago, when local education authorities had very large numbers of advisers and people running them. Authorities that used to be providers of education have become very much commissioners of education. They have very slim-line central secretariats these days; they have been slimmed down to small strategic authorities. Authorities are having now to think about acquiring capabilities that they have lost.

I am interested that the noble Lord feels that they are already adopting a very heavy-handed approach. There are, I know, among the colleges fears of going back to the days when local education authorities ran them. That has been echoed by the noble Lord, Lord Baker. However, the colleges are quite clearly established now as corporations in their own right. Most of them have strong corporations and capable chairs and capable principals. I am interested that he feels that already we are seeing signs of local authorities wanting to extend their empires. We probably also come from, so to speak, a slightly different standpoint. On these Benches our vision is of local education authorities having more of these responsibilities and having a good deal of discretion to run the show and do things and do their own thing rather than being told by the YPLA or the SFA what they ought to be doing.

Our great fear is that these two new authorities, particularly the YPLA, far from being light-touch authorities, are actually going to be strong second-guessing authorities. From reading some of the briefings we have received, it seems that local education authorities are going to have to go cap in hand to the YPLA and show it their plans and get their plans approved. Then they are going to have to go to their sub-regional groupings and regional groupings and so forth. A lot of bureaucracy is still involved.

I am interested in what the noble Lord, Lord Lucas, said, although I do not fully understand where he is coming from and we do not fully sympathise from these Benches with the line that he is taking.

This is a group of very useful amendments and I look forward to the Minister’s response to them.

Does he understand the concerns regarding the devolution of the powers and duty of education of those within the 16-to-19 age group to local authorities? Does he accept that concern is felt that some local authorities will struggle to cope sufficiently to ensure that all receive the high standards of education to which they are entitled?

The Minister will doubtless attempt to reassure us that the student is given the right to travel to a different local authority for education and that the funding follows the student. I would welcome such assurances, but the key problem, highlighted by my noble friend’s amendments, is not so much that we dispute the principle of education and training being provided by a functional and co-operating group of local authorities where the funding will follow the student wherever he wishes to go as the question how the Goverment intend to give effect to this proposal.

Can he tell us precisely how he envisages ensuring that local authorities co-operate in such a way that the best education is available to all and that the communication lines between transport, funding and other local services combine to ensure that people are encouraged to go to the area or education establishment which best suits their needs? It would be very useful to hear from the Minister how he envisages this working in practice.

I apologise in advance for what will probably be quite a lengthy contribution, because I want to place on record a range of key principles that have been addressed by the noble Lord, Lord Lucas, and, to some extent, by other noble Lords. Although I echo the point of the noble Baroness, Lady Sharp, about the belated nature of the amendments, we welcome them because they give us an opportunity to air some important issues.

Before I look in depth at the intention of the amendments, I reiterate why we are making these changes. They are driven by our desire to see a single, integrated service for children and young people from nought to 19—somebody from our group said “from cradle to college”, which I thought was quite nice—to ensure that all young people get the best possible start in life and the best preparation to succeed and achieve as they get older. We are making sure that every young person will be entitled to a new curriculum and qualifications. We are making sure that even the most vulnerable of our young people have an offer of a suitable place in education and training, including provision for young offenders and effective progression into learning for ex-offenders, and that young people with learning difficulties or disabilities will have consistency of support from nought to 25.

The historic step to raise the participation age to 17 by 2013 and to 18 by 2015 demonstrated how far this country’s sights have been raised. Through the Bill, we are making sure we have a system in place that achieves this aspiration and can continue to build on the highest-ever levels of participation that were seen for 16 and 17 year-olds this year.

All these changes put the young learner at the heart of a system which must make sure that the learning offer across an area and throughout a region is well planned, of high quality and responsive to meeting the needs of all our young people, irrespective of their age, ability or location. By transferring the duty to secure such a system to local authorities, we will provide the framework and impetus for these changes. Young people will benefit from having a single body which will be responsible for securing sufficient provision alongside information, advice and guidance services, and youth services. These amendments seek reassurance, first, on the ability of local authorities to take on these new responsibilities, and secondly, that they will always commission provision in the best interests of the learner.

I would like to address the concern of the noble Lord, Lord Lucas, about what he described as the dirigiste approach to FE colleges. This is not what we expect, nor, I must concur with the noble Baroness, Lady Sharp, what we have experienced, but if the noble Lord provides examples, we will speak to the LGA and the REACH director to ensure that local authorities are clear that we expect them to show strategic leadership, enabling and building strong, collaborative partnerships with colleges.

Let me look first at the ability and capacity of local authorities to carry out these new duties. Local authorities are uniquely well placed to take on the crucial leadership to continue and increase improvements in participation and achievement. They will have access to detailed intelligence about the needs and aspirations of their communities, through their responsibility for commissioning pre-16 education and through their ownership of Connexions. This intelligence will enable them to commission the 16 to 19 provision which their learners want and need. Local authorities will work together to plan and commission provision, including for our most vulnerable young people, in the full recognition, as noble Lords have already said, that many young people travel outside the local authority area in which they live to their local college or to their employer-based training place.

Immediate capacity will be provided by the transfer of around 950 LSC staff to all 152 local authorities to ensure that they have staff with the appropriate skills. These will be spread proportionately, depending on the size of the local authority. They will be supported by the Young People’s Learning Agency which will use its resources to provide efficient and economic services to local authorities. I realise we will have to go a long way to reassure the noble Baroness, Lady Sharp, that this will be a light touch, rather than the firm smack of dictatorship. We share her view that the partnership between the YPLA and the local authorities should be supportive and collaborative.

Services will include the provision of data analysis to support planning and commissioning, which means, crucially, that the college and school need provide information only once, to be used many times. The YPLA will also have powers to commission provision directly, which we expect to be used where it is sensible to do so, for example, where specialist provision should be commissioned nationally. There are some examples of where there are particular national requirements. I think there is one dealing with veterinary education. I may not have got that right, but there are examples of where we need national commissioning, such as where a local authority is struggling to take on its new role.

Local authorities also have their own pre-existing expertise on which they will build. They have already shown that they can rise to the challenge of improving services for young people through developing their commissioning expertise and we have the success stories to show just how effective giving power to locally accountable councils can be. For example, Bournemouth, by reviewing its services for children in care, developing a planned commissioning approach and redeploying resources to more preventive services, has achieved a reduction in its number of looked-after children from 204 in 2003 to 150 in 2007 and a marked improvement in outcomes for children in care. The authority now scores in the top 25 per cent on indicators for stability of placements and educational outcomes. Surely that is a very welcome improvement and an example of the benefits of the greater involvement of local authorities.

Our performance management structures for local authorities will ensure that we continue to see such improvements in commissioning. From April 2009, local authorities are being assessed and reported on through the new comprehensive area assessment—CAA—undertaken by six inspectorates including Ofsted. There will be an annual CAA report for each local authority area, in November each year. The report will include a rating by Ofsted of the local authority’s performance on children’s services. This will be a key driver for improvement at a local level, helping to develop high-quality services for children, young people and their families.

At a local level, government offices will work with local authorities to improve their performance through identifying and sharing best practice, using knowledge and data to improve performance, negotiating and supporting the new statutory local area agreements and reviewing how local and national priorities, set out in the national indicator set, are being delivered. Nor are these changes imposed on unwilling local authorities. Local authorities have been involved in shaping the system, and are now all enthusiastic about the opportunities that this gives them to improve outcomes for young people in their area.

As Anne Futcher, head of integrated services at Luton borough council, says:

“The transfer of both commissioning and funding provides a very real opportunity for continuity of support for learners with special needs, and it’s one we need to grasp. It will be the first time we have been able to plan for the needs of learners in the round, which can only be good for young people”.

We are building on this existing expertise and enthusiasm as local authorities prepare for their new duties, and have invested in relevant support through both the React—Raising Expectations Action—programme, which has been developed with the Association of Directors of Children’s Services and the Local Government Association. Launched in September 2008, it provides a package of support for local authorities, including a specific strand focused on pre-19 commissioning.

I turn to the vital matter of how the system will ensure that local authorities will always commission in the best interests of the learner, which is after all a shared objective of all of us. I sympathise with the noble Lord’s concerns, and agree that we must make sure that a young person can access the most suitable learning for them—a point that the noble Lord, Lord De Mauley, focused on—no matter whether it lies within or outside a local authority boundary. We all know that young people will travel to learn, often across local authority boundaries, because it makes sense in their circumstances. We are making sure that young people will continue to access that same choice of learning.

The Bill provides that local authorities must secure enough suitable education and training opportunities to meet the reasonable needs of young people and that they cannot constrain the choices of the learner. This will be achieved because the funding will follow the learner; the provider chosen by the young person will get the funding for that young person.

I turn to the importance of the sub-regional group with regard to co-operation between authorities to enable some of this to take place. The sub-regional group will agree a lead commissioner for each institution, which will normally be the local authority in which the institution is based. The local authority will plan and commission provision from those providers in its own area. This commissioning will include provision for young people who travel into the local authority area to study. Each local authority will have an interest in other local authority plans to ensure that all its resident learners are being catered for. To ensure that this happens, local authorities will be required to co-operate with each other when carrying out their new functions. We will expect this duty to be fulfilled largely through coming together in sub-regional groups, which we know broadly reflect travel-to-learn patterns. Forty-three sub-regional groups have now come together and data show that around 90 per cent of learners within each grouping are likely to travel to local authorities within their sub-regional group to learn. I think that takes a lot of account of travel between local authority boundaries.

The key role of sub-regional groups is for the local authorities to work together to build a picture of demand, including the flow of young people across the individual and sub-regional borders, and to make sure that the individual local authority commissioning plans are coherent with each other. I give an example in which the noble Lord, Lord Lucas, might have a particular interest. Greenhead sixth-form college is an excellent college, which in 2007-08 took 16 per cent of learners from outside its home local authority of Kirklees. Kirklees local authority will be expected to reflect this proportion of learners in its commissioning plan, as this is where the young people are choosing to study. If the figure changed substantially in future commissioning plans, the sub-regional group will challenge this decision, as will the college. In that respect, this is similar to the ability of colleges to challenge commissioning plans by the LSC.

We know that sub-regional structures enable local authorities to work together to improve the outcomes for young people. For example, Devon, Cornwall and Torbay, by developing a sub-regional approach to the commissioning of residential placements for children in care, experienced a 450 per cent increase in placement choice as well as improvements in the quality of service received from providers. The sub-regional groupings will also serve to provide peer support and challenge. All local authorities within a sub-regional group will have an interest in ensuring commissioning is working in other local authorities in that group, and this will manifest itself in stronger collaboration.

As I have touched upon, it is even more likely that learners who have learning difficulties or disabilities that require specialist support may need to attend provision that is outside their area. There are additional safeguards in place to ensure these needs are met, and we will go on to consider these in more detail in further amendments, but I wanted to cover them briefly as I know this group of learners is of particular concern to the noble Lord.

Do I understand the Minister right? He said that 90 per cent of students would be picked up by the sub-regional grouping concept. That implies that one in 10 will not be.

I cannot argue with the maths. We would say that on that basis we are picking up a huge amount. There may well be other cases. We would say that we are picking up most of the requirements in that 90 per cent. I will come back to the noble Lord on that 10 per cent.

The learning difficulty assessment, which is undertaken by the resident local authority as part of a wider person-centred planning process, should identify the support and the provision, including the provider and the programme. The local authority will need to have regard to the outcome of the assessment when securing provision. Therefore, if the assessment identifies, for example, a specialist provider that is outside the local authority’s area, this information will be fed into national and regional planning processes so that a place can be commissioned as appropriate.

I want to make sure that I have picked up on all the points raised. The noble Lord, Lord Lucas, expressed a concern about why a local authority should be concerned about the timing and location of provision and whether that was about college timetables. To support participation by all young people, we must ensure that education is accessible. We recognise that people need and want to learn through different methods at different locations—for example, part-time working to satisfy raising participation age requirements around a job to support the worker and their families. Our colleges are used to providing flexible timetables. This is absolutely not a licence for local authorities to dictate college timetables. They will remain a matter for colleges.

On the independence of colleges, colleges will own the land and the buildings. They will remain incorporated bodies, employing their own staff and setting their own vision and direction. In sort, colleges will remain autonomous. It is about getting the right touch and collaboration and co-operation.

As to what happens to the other 10 per cent, they will be commissioned through the YPLA as a support to local authorities. The explicit assurance is—the noble Lord is right to ask—that nobody will lose out. We do have to ensure that.

I apologise once again for the length of the contribution. However, it was necessary, given the importance and complexity of some of these issues. I hope that I have reassured the noble Lord, Lord Lucas, that the system is designed to ensure that young learners are able to access the most suitable provision for them, and not the other way around. This will not lead to parochial commissioning practices within local authorities and will ensure that the best 16-to-19 providers, of whatever form, flourish and expand.

I cannot say I find myself much reassured by that. We seem to be replacing a system that has relied on the expressed wishes of the individual learners as reflected in their applications to colleges and the colleges’ response to that with one that supposes that half a dozen people transferred from an agency in Coventry can get a grip on exactly what everybody in the local education authority’s area requires by way of 4,000 different qualifications. Moreover, they would need to take into account their,

“ages, abilities, aptitudes … learning difficulties … the locations and times at which the education … is provided”.

I do not begin to understand how local education authorities are going to be capable of planning on that scale and in relation to that complexity. Can the noble Lord start by telling me what is meant by “commissioning”? If the local authority decides that it needs another 20 places for people to study hairdressing, say, how will it go about securing that? Will it issue an instruction to one of its local colleges to provide them? If it does, what happens if all those places are taken up by someone from a neighbouring local authority? How does commissioning and securing work in practice? Can the noble Lord give us an example?

I thought I had endeavoured to cover that. I am happy, however, to return to the issue again. Local authorities are uniquely well placed to take on the crucial leadership to continue and increase the improvements in participation and achievement. They will have access to detailed intelligence about the needs and aspirations of their communities through their responsibility for commissioning pre-16 education and through their ownership of Connexions. That intelligence will enable them to commission the 16-to-19 provision their learners want and need. They have also agreed that they want to work together in sub-regional groupings. They have seen the advantage of that. They already know that they cannot possibly provide every facility in each local authority. A degree of co-operation is required already. Working in sub-regional groupings, which have been agreed to, and supported by, local authorities, ought to enable them to ensure that, when they are commissioning, they are commissioning to meet the needs not just within their local authorities but across the whole of the sub-regional grouping.

The noble Lord dismissed the transfer of LSC staff but we see it as being important; they are people with the appropriate skills. There may be circumstances in which local authorities may need additional help in the commissioning process. Again, the YPLA will have resources to provide efficient and economic services to local authorities. This will include the provision of data analysis to support planning and commissioning, which crucially means that the college and school need provide information only once to be used many times. I can see the importance of getting clarity on the commissioning process, so perhaps there is some value in writing to the noble Lord to give him further details. However, we believe that because of the way in which it has been structured, with the sub-regional groupings and the support of the YPLA, it will be a collaborative process that ensures that commissioning does what it needs to do—to meet the needs of learners.

I am not sure that I am much wiser at the end of that. I agree with the noble Lord that local authorities are in a position of great knowledge and potential leadership, and I hope there is nothing in my amendments that goes against that. What I do not see is how they are in a position to direct.

The noble Lord talks about commissioning in relation to school places and then in relation to colleges. To the extent that a local authority commissions school places, it merely makes sure that places are available without specifying in any way what should be taught. You just commission a school, which acquires a board of governors and a headmaster and then goes off and decides what A-levels and GCSEs it will offer and whether it will have a diploma or vocational qualifications. They are decided entirely by the school. But as I understand it—I am sure that the noble Lord will correct me if I am wrong—commissioning in the sense employed in Clause 40 means specifying what particular courses should be taught and available, because otherwise the word “suitable” becomes quite difficult to parse.

If what is required, as I say, is additional courses in hairdressing, how can the local authority secure it without really getting its fingers inside the operation of a college? What actually is meant by “secure”? If I have to secure the places that are available, it means that I have to ensure that they are not available to anyone else. I need them for people in my local authority area. If I am going to commission 20 new places to study hairdressing at, say, New College in Huddersfield, I am not going to have people in Manchester coming in and taking those places, because that would mean that I had not secured them. To secure them must mean not only directing the college to provide them but also directing it not to admit people from other local authorities.

I must admit that I am now a trifle puzzled by the noble Lord. On the one hand he wants ultimate flexibility, but on the other he is now saying that he does not really want that in his commissioning process. With sub-regional groupings, that is exactly what we need to address. Of course there will have to be a bottom-up process. It will not be the councils not taking any notice of colleges’ current requirements. In arriving at the 14-to-19 partnership strategic plan negotiated by providers and local authorities, they will have to take notice. That is how they will build up a picture of the requirements. If you are serious in saying that you want young people to have the ability to cross boundaries, you have to be able to meet that requirement. The only way in which you can do it is not in the silo of one local authority but by co-operating in these sub-regional groupings that the local authorities themselves have willingly entered into. They believe that they are necessary and will meet 90 per cent of the requirements.

I have some sympathy with the noble Lord, as he has enabled me to explain in detail the precise nature of the commissioning process and to satisfy not only him but the Committee generally that it will be a demand-led process which will reflect the demands of learners and have flexibility. I have offered to write and further explain that process, because I think that that would be helpful.

But none the less what the noble Lord is saying is that the local authorities will have the power to tell colleges what courses they should teach and when and to whom.

I am emphatically not saying that. I do not want to be misrepresented. I am not saying that that is how it will operate. In fact, I have taken great pains to say the complete opposite—that they will be working in partnership to try to assess the nature of demand, not dictating exactly, in the way that the noble Lord has unfortunately misrepresented. Rather than our continuing this rather circular argument, I hope that the noble Lord takes my offer to write and explain further at face value, as a genuine attempt to help.

Yes, I will. There are one or two other points that I want to come on to. If what I said is not true, how is a local education authority to live up to the wording of lines 8 and 9 on page 23, to,

“secure that enough suitable education and training is provided”?

That is the point of my amendment. The noble Lord really has not addressed my amendment at all in its detail. For example, if I am required to “secure” that the noble Lord has an 8 ounce steak for lunch tomorrow, I have to go out and buy it.

I will have one more go. “Secure” means reaching an agreement with the college on how much it can deliver on each course. If it cannot deliver for all demand, of course the local authority will need to look elsewhere. So it is a collaborative process, involving discussions with the colleges about the nature of the demand and the courses that they can deliver. That has to be part of the process.

Fine. If the local authority “agrees with”, it is getting into the interstices of a college and telling it, “We are going to fund this sort of course, and that is what you will provide”. Not only that but, in order to “secure” it, it must ensure that the capacity that it has generated is not then used by people outside its area. That is what I am getting at in my amendment. The Government are placing a duty on local education authorities that will require them to interfere deeply with how individual colleges are run. The noble Lord has not disabused me of that at all.

My Amendment 91E, to add the interests and views of the learners who are supposed to be provided for to subsection (3) of new Section 15ZA, has not been addressed at all. Nor has my Amendment 102B. I do not see how a local authority can, of its constitution, without something in statute, “have regard to” the interests of people outside its area. Just a duty to co-operate with other local authorities presumes that it, as part of its duty to its constituents, will have an interest in those pupils going outside its borders. This is not how local authorities have generally behaved in the past. For instance, in the transport provision made for students who wish to attend Greenhead College, co-operative arrangements on post-16 transport have been in place for some while. Do they extend to students who want to travel from Manchester to Greenhead? No. Local authorities have chosen not to co-operate in helping students to go outside their boundaries.

We had in London some long while ago the Greenwich judgment about students travelling between one borough and another in order to get their ordinary education. That caused an immense ruckus and there are still continuing attempts by London local authorities to restrict access to their schools to pupils who live within the boundaries of the borough. I suppose that one could justify not allowing students to travel on the basis that they should not be consuming all the energy and transport fuel required to do it.

It is not part of the pattern that local authorities want to provide or use facilities beyond their boundaries. It is not part of the pattern of education in this country that specialist provision is well used and celebrated by local education authorities. Many good specialist colleges find it extremely hard to come by students. The noble Lord is living in cloud-cuckoo-land if he thinks that the Stalinist-style co-operation that he is proposing will work in the best interests of students. However, I look forward to his magnum opus coming my way. I shall be able to read out large sections of it on Report. If no one else wants to intervene, I beg leave to withdraw the amendment.

Amendment 91A withdrawn.

Amendments 91B to 91E not moved.

Amendment 92

Moved by

92: Clause 40, page 23, line 27, after “diversity” insert “and inclusion”

I shall speak also to Amendments 97, 99 and 100, which fall in the same grouping. Before I address them, perhaps I may say that I hope that the letter that the Minister is to send to the noble Lord, Lord Lucas, will be shared with us all, as I think that we would all be interested in seeing it.

The only point that I might have made on the previous grouping was that at present the LSC commissions places at colleges, as the noble Lord well knows. Essentially, it commissions places generally for those aged 16 to 19. It does not commission specific provision, although there is some negotiation with the LSC about that. If there is excess demand, essentially the local authority negotiates with the LSC about whether funding is available. As I see it, that is where the difficulty for local authorities lies. The LSC has a very large pot of money, whereas local authorities have a much more limited pot, which frequently has many other calls on it. That is where the difficulties would arise.

I shall now address the amendments. As the noble Lord, Lord Lucas, said, we have shifted our attention from issues such as apprenticeships and time off for training to the role of local authorities in the provision of nought to 19, cradle to college, education. Here, we are looking particularly at the provision of education for 16 to 19 year-olds. That is to go back to local authorities, which will now have a new duty. In particular, under Clause 40(1) it will be incumbent on them to meet the reasonable needs of learners in the area that they serve and, under subsection (3)(b), to have particular regard to any learning difficulties that individual learners may have. To some extent, we have already rehearsed the fact that the record of local authorities in this area is, to say the least, somewhat mixed. As a result, we have sought, through a succession of education Bills in this House, to make more explicit the precise duties of local authorities in this regard. These amendments are in that tradition. They pick up the whole question of what local authorities’ duties are to those with learning difficulties and they try to probe further precisely what they should be.

Amendment 92 would ensure that local education authorities have due regard to their responsibility to promote inclusion. Clause 40(4) places a duty on local authorities to act with a view to increasing diversity in education and training, which, to my mind, in government-speak means increasing the choice of courses available to the individual. However, that is not the same as inclusion, which means more attention being paid to person-centred assessments and advice and guidance in the choice of courses. Amendment 92 suggests that we should have not only diversity but diversity and inclusion. To some extent, we have spelt that out in Amendment 99 in my name and that of the noble Lord, Lord Low of Dalston, which says that local authorities need to take account of,

“good provision of information … transparency in how the available levels of support are determined … integrated assessment … participation of disabled children and their families in local services; and … accessible feedback and complaints procedures”.

That spells out in greater detail precisely what we mean by inclusion.

I have a specific question for the Minister that has been put by the disability lobby relating to the responsibilities on the part of the YPLA on the issue of inclusion. Will those with learning difficulties be able to participate in mainstream courses, as much as in discrete courses? The experience of many of those involved in the commissioning of the education of those with learning difficulties is that frequently there has been provision of discrete courses but not inclusion within some of the mainstream ones. Will the Minister clarify whether it is Parliament’s intention that diversity of provision should include choice of mainstream courses for all those with learning difficulties who are being funded either by the YPLA or the SFA, for those with learning difficulties who are over 25, and that it is not just the provision of special courses, so that the concept of inclusion has its true meaning? They should be able to participate in mainstream courses and specialist support should be provided in those circumstances. Amendment 92 wants inclusion to be separate from diversity. The amendment is a probing one, and we want the Government to explain what they mean by diversity in this context and spell out in more detail what might be included.

Amendment 97 is again a probing amendment to clarify how the Government intend to audit LEA compliance with their duties towards young people with learning difficulties. A robust needs analysis must be carried out to ensure that provision is an integral part of the widely supported sufficiency duty in the recent Childcare Act. When a similar amendment was debated in the Commons, the Government argued that structures were already in place to ensure that local authorities could be held to account for the delivery of these new duties in the Bill. In particular, they argued that the outcomes-focused performance management systems now set up within the framework of the local area agreements, combined with assessment and inspection by Ofsted, should provide sufficient pressures towards compliance.

Coming from the county of Surrey, whose children’s services were judged inadequate by Ofsted, but which until that external check had been very complacent about the quality of its own provision, I have to admit that it is extremely important that these audit procedures are acted upon and are not allowed to continue without action. Amendment 97 would make sure that any such Ofsted or audit procedures are heeded and that their recommendations are followed.

Amendment 100 picks up the issue of what is disproportionate. Clause 40(5) states:

“Provision is not to be considered as giving rise to disproportionate expenditure only because it is more expensive than comparable provision”.

The amendment adds the rider,

“particularly when it is required to make provision for those with learning difficulties or other disabilities”.

The Government know that the Special Educational Consortium is very unhappy about subsections (4)(e) and (5). It feels that the duty to secure a sufficient supply of post-16 education is unhelpfully qualified by a requirement that LEAs should avoid provision that gives rise to disproportionate expenditure. The probing amendment was withdrawn when the Government indicated that Clause 45 specifically states that provision is not to be viewed as giving rise to disproportionate expenditure and that an individual can challenge an LEA if it does not meet that criterion.

The Special Educational Consortium feels that this is not a sufficient safeguard, and it should not be left to the individual to enforce the duty on the LEA. The SEC is seeking further clarification from the Minister as to why the Government believe that this qualification is necessary, particularly where there is a clear duty to secure suitable education and training that meets reasonable needs of people in their area. These four amendments seek to probe a little further and clarify precisely how the Government see the local educational authority provision meeting the needs of those with learning difficulties. I beg to move.

There appears to be a certain amount of cross-fertilisation between the amendments of the noble Baroness, Lady Sharp, and my Amendments 94 and 143, which I hope will arrive this evening but will probably arrive on Thursday. Amendment 94 would get rid of lines 36 to 41, which the noble Baroness has been addressing, and make further substitutions available to your Lordships. I hope that my amendments will receive approval. As an interim measure, I support the noble Baroness, Lady Sharp.

The noble Baroness, Lady Sharp, raises some important points. We have already held extensive debates on the merits of the transfer of duties of education of 16 to 19 year-olds to local authorities, not least on the previous group of amendments. Noble Lords will be relieved to hear that I do not propose to rerun these debates now. However, the noble Baroness has raised some important related issues in this group. If these duties are to be transferred to local authorities, which already have strained budgets and capacities, we must ensure that certain safeguards are built into the structure. As the Committee will be aware, as I have said before, and as we will be discussing later, we on these Benches have serious misgivings about transferring these functions to local authorities.

Nevertheless, if the Bill as it stands is accepted, we would wish to support those who intend to ensure that safeguards are in place to protect those who might be most at risk from budgetary or staff constraints. Amendment 92 widens the scope of the local authority’s obligations, asking that it should have regard not only to diversity, but to inclusion, with which we have some sympathy. Amendment 97 requires recommendations from its own audit process and from Ofsted to be taken into account and seems sensible. In an ideal world, we would hope that local authorities would regard this as an implicit and obvious function of their duties. Will the Minister confirm that he would expect that to happen? Does he have any concerns that it might not? Will he assure us that local authorities will see this issue as a priority in order to ensure that the highest standards of education are provided?

Amendment 99 also raises concern about the delegation of those powers and duties to local authorities. It demands that they must take into account provision of information, transparency, assessment, participation of disabled children and feedback and complaints procedures. Those all appear to be sensible to ensure that if local authorities cannot cope under the strain of those duties, it does not go unnoticed. We would all agree that it is of vital importance that if a lack of capacity in a local authority has the consequence that people are not receiving the education to which they are entitled, an open and transparent process would allow that to be brought to the attention of the appropriate authority. Will the Minister tell us whether, as the Bill stands, the appropriate authority to deal with an underperforming local authority would be the YPLA?

Amendment 100 seeks to ensure that those who have learning difficulties or other disabilities are not excluded from provision simply because it may give rise to increased expenditure. I hope that that will not be the case and look forward to the Minister’s response.

I will join the Committee debate for the first time. When I looked at the Bill and the type of briefing that came through, as my noble friend suggested, it was a step down memory lane. It seemed that a type of provision that we had almost taken as read in other education Bills was being ignored. It may well be that a series of protections about special educational needs and learning disabilities are entrenched in the Bill, but it is not obvious to those outside. The noble Lord, Lord Rix, is nodding his head in agreement. Many people feel that something has been missed, and that it is missing in the tone and presentation of the Bill. I would be happy if the Minister could give us a hint that the provision is in place because the idea hinted at in “disproportionate expenditure” is that something that is simply too expensive will be removed.

I would have thought that the idea of reasonableness encapsulated in the DDA would have covered that with the cross-fertilisation of legislation. We have spent years trying to make sure that legislation applies across, yet something in the Bill seems to contradict that. People are starting to get worried. I hope that the Minister will be able to dispel a few of the demons that the Government have summoned. Are they going to make sure that arbitrary blocks will not be placed in the way of the education of those who have a slightly different learning pattern? What level does “disproportionate expenditure” mean? I do not know. In the past, it has meant something new and difficult. The Minister looks slightly perplexed, but let me assure him that I have sat in this Chamber for more than 20 years and have talked to various Ministers of various colours for whom doing something new and difficult was shocking and dreadful.

Can the Minister give us an idea of where the Government’s thinking is going in the round, what they expect not to happen and how flexible they are going to be in the introduction of new technology and other things? All these things have recently been challenged in the press. I always talk about dyslexia on these occasions. We were recently told by one or two people that it does not exist. On one occasion, it was by a member of the Minister’s party—he looks surprised. It is true that he was flattened by members of his own party for that; the rest of us were queuing up to do it, but they got there first. Reassurance is required here. Can the Minister assure us that the existing safeguards and the structure that we expect are in place?

I support these amendments. It is important that we consider them both as specifics and in the wider world in which they will be applicable. A number of us have tabled amendments. My name is attached to an amendment tabled by my noble friend Lord Ramsbotham, but we are clearly not going to reach it tonight, so we shall see whether it is relevant to raise it on a different occasion. The point about inclusion raised by the noble Baroness, Lady Sharp, is crucial. Does inclusion mean that those with special difficulties will be equipped with whatever is required for them to take part in the ordinary, normal procedures of the learning process in a particular course? Auditing what is achieved by these amendments is equally important.

The other point concerns what is disproportionate extra expenditure. That has been gone into in quite some detail. Nevertheless, it is an area where we will need more reassurance that different LEAs will not interpret this phrase in different ways.

There is a lot for the Minister to take on board. Perhaps he will not be able to answer all the queries tonight. I am pretty certain that many them will come back on Report, if not the day after tomorrow when we continue our trek.

I turn first to the opening remarks of the noble Baroness, Lady Sharp, on expenditure. We are not talking about a small sum of money. The national figure for participation for 16 to 19 year-olds for the academic year 2009-10 is £6.8 billion, according to the Secretary of State for the DCSF. The London region has more than £1 billion. These are not small sums, and they are part of the September guarantee.

I will return to the subject of inclusion, which lies at the heart of what we are trying to do. On the one hand, people call for inclusion, which is quite right. On the other, they call for specialist provision. What we want is choice. We have to try to meet those needs. Inclusion in the mainstream will suit some young people and will be what some parents want, but not what all parents want. Some parents are just as focused on specialist provision. We have tried to meet a wide range of needs. I reassure the noble Baroness that local authorities will need to act in a way that encourages young people with special needs to exercise choice in the same way as other young people. Specific provision for choice is made in Clause 40(4)(b).

I reassure the noble Lord, Lord Rix, that we will come to his superb amendments—superb just in their structure, of course—in a later group, and will address them then. The noble Lord, Lord De Mauley, asked about local authorities that cannot cope. It will be the YPLA that assists them.

I will pick up on a point made by the noble Lord, Lord Addington, and remind him that the Bill says clearly, in Clause 40(5):

“Provision is not to be considered as giving rise to disproportionate expenditure only because it is more expensive than comparable provision”.

That should not rule out special provision. I trust that we have come a long way since the outdated attitudes to dyslexia. We have recently announced a considerable number of specialist assistants for dyslexia. I will come back to some of his points if I need to.

I understand the concerns that the Special Educational Consortium and others have about Clause 15ZA(4)(e), which requires local authorities to make best use of their resources and avoid provision that gives rise to disproportionate expenditure. We will debate that in more detail in a future group. For now, I will concentrate on Amendment 100. It is an important principle that public bodies must make best use of their resources. Local authorities must commission provision in a way that provides value for money, as the LSC is currently required to do. Section 2 of the Learning and Skills Act 2000 contains a similar provision.

I reassure the Committee that the clause is not about excluding young people—particularly the most vulnerable—from access. The duty of local authorities to secure education and training for all young people, including those with learning difficulties and disabilities, is set out clearly in new Clause 15ZA. For the avoidance of doubt, subsection (5) makes it clear that provision is not to be considered disproportionate just because it is more expensive than comparable provision. Amendment 100 would emphasise that this safeguard should apply particularly where it concerns provision for learners with learning difficulties and disabilities. However, this safeguard is intended to apply not just to young people with learning difficulties and disabilities, but to all young people, such as teenage mothers or young people with behavioural problems who may require additional support. For that reason, we would prefer not to single out one group, however important, in the Bill.

I agree with the sentiment behind Amendment 97, which would require local authorities when commissioning provision under Section 15ZA of the 1996 Act, to take account of recommendations which arise from their internal audit processes and from any assessment and inspection by Ofsted. But these are essentially operational matters that relate to how local authorities fulfil the four tests in subsection (3) of new Section 15ZA. I am not persuaded that they should feature in the Bill.

However, it may be helpful to set out how, in practice, we will ensure that local authorities take account of these important issues. All local authorities will have to abide by statutory guidance issued by the YPLA through the national commissioning framework. On the quality test, local authorities will be expected in making their commissioning decisions to take account of a range of data on the quality of providers, including performance indicators within the Framework for Excellence, Ofsted inspection findings and providers’ own self assessments. They should use this information to set out clear expectations of the standards of performance expected, and support and challenge good schools and colleges to become excellent, as well as provide a focus on underperformance. Local authorities’ own performance of their duty to ensure best value in commissioning will also be informed by internal audit reports, as well as best practice reviews by the Audit Commission.

I understand the intention behind Amendment 92, which would require local authorities when securing provision under Section 15ZA, to act with a view to encouraging inclusion, as well as the diversity of provision. Requiring local authorities to promote diversity of provision does not mean that we are turning our back on our long and successful policy of ensuring that mainstream schools and colleges are inclusive and accessible to young people with learning difficulties and disabilities. We want to ensure that learner choice is respected and that appropriate provision is made available to all young people. It is the learner who should be at the centre of the system and their needs that should drive commissioning decisions, as I endeavoured to make clear in the previous debate. There are many examples of mainstream further education colleges making arrangements to ensure that their mainstream courses are accessible for learners with learning difficulties.

However, as we have discussed before, there will be some young people for whom this type of provision is not appropriate and who will require specialist provision, perhaps delivered by a specialist college. Later, in relation to Clause 45, we will debate amendments also tabled by the noble Baroness, Lady Sharp, which I believe stem from a concern that this specialist provision should be maintained.

It is important that we strike a balance here and I am reluctant to accept the addition suggested in Amendment 92 as it risks sending the message to local authorities that inclusion is always the correct approach and that specialist provision should not be made available when appropriate. However, I hope what I have said will reassure the Chamber that we are committed to provision that is high quality and accessible to all learners, that there is much good work being undertaken in this area and that, by putting the learners’ needs and choices at the centre, Clause 40 as currently drafted will support this.

Amendment 99 deals with a number of important matters concerning the local authority’s role, particularly in respect of learners with learning difficulties and disabilities. While in my view we already have the legislative bases covered, I certainly agree with the sentiment behind the amendments that we must ensure that the duties imposed through legislation are delivered on the ground.

It may be helpful if I set out the sort of service that young people with learning difficulties and disabilities should expect to receive and I will deal with each of the five elements of the amendment in turn. On information, young people with learning difficulties and disabilities will be able to go to their local Connexions service, or have it come to their school, for advice and guidance between the ages of 13 and 19, or up to the age of 25 if they have an assessment of learning difficulties. In line with the quality standards, they can expect to receive additional guidance and support, including a transition plan from year 9 of school and a Section 139A assessment at year 11, or later if needed, to ensure that they are able to progress and achieve in the route of learning they choose.

On transparency and integration of the assessment process, as a result of the Bill, young people with learning difficulties or disabilities can expect that the same local authorities responsible for assessing their needs will also be responsible for ensuring that their needs are met up to the age of 16, as they are now, and beyond. That will ensure greater continuity of support.

On child and parental involvement, young people and their parents can expect to have a key role in the development of their transition plan and to review it annually with their Connexions adviser or other lead professional. The learning difficulty assessment under Section 139A will build on this process. The draft statutory guidance, which is currently out for consultation, will mean that parents and carers can expect to have an important role to play in the assessment process. That is surely something that we all want. Every effort should be made to ensure that the young person understands the purpose and process for carrying out the assessment. If implemented, the guidance will mean that the assessment report should identify the provision, the provider and the programme of learning that young people need to progress. It should also include the support that they need to access learning provision. For example, if it is felt that the most appropriate placement is with a mainstream college, specialist provider or an apprenticeship, this should be stated in the report. The outcomes of all these assessments will feed into local, regional and national planning processes. The national commissioning framework will require local authorities to take account of the outcome of young people’s assessment reports.

On complaints, where young people or their parents feel that an assessment has not been carried out appropriately, or where it is felt that the provision made available does not meet the requirements set out in the assessment report, they may already complain to their local authority and then to the Local Government Ombudsman. Rather than constructing a new bureaucratic structure to deal with complaints, we think that it is better to use these established mechanisms. We will ensure that young people and their parents are aware of their rights to complain and of where they can access advice and support in exercising that right.

I will give as an example of inclusion Kensington and Chelsea College. It has made adjustments to the standard curriculum to deliver a photography course that is accessible to deaf learners. This has proved particularly successful and is being accessed by a number of learners. The college also holds information, advice and guidance sessions aimed particularly at young people with learning difficulties and disabilities. The sessions provide access to interpreters and support workers and enable learners to consider the full range of courses available at the college and to talk to teachers about what they involve. The college sees this type of consultation and conversation as key, as it enables young people, alongside college staff, to think about their own limitations and how they get around them with support, so that they can get the most out of their time in college.

In conclusion, at local authority level, the duty in Clause 40 will also be part of the existing local authority performance management system. In addition, the YPLA holds the final agreement to fund local commissioning plans. Plans endorsed by the regional planning groups will be considered by the YPLA to ensure, at a national level and across each of the regions, that the best balance of provision has been achieved to meet young people’s needs. I hope that, on the basis of these assurances, noble Lords will be persuaded not to press their amendments.

To a degree, I am reassured by what the Minister has said and I thank him very much for the full answer that he has given on these various amendments. His point—that the learner needs to be at the centre of the system—is the key issue here. I questioned him about participation in mainstream activities and he quite rightly pointed out that the key issue is choice on the part of the learner. There are some, however, who, rather than being sent off to special classes because they have learning difficulties, actually want to be included. We all know that, in that sense, the concept of inclusion is very important, both in terms of building one’s own self-confidence and in terms of one’s feeling of one’s own stature within society. So this is important.

I am grateful to the Minister for spelling out the ways in which he sees these different services panning out. In terms of the year 9 and transition assessments, the record of local authorities on those with learning difficulties is not a good one and we have yet to see how far this system, which under Clause 40 extends the old system of assessments through to young people from 16 to 19, will go. We live in hope that the new assessments will translate into something meaningful for these young people. However, as I say, I am grateful to the Minister for his full reply and I beg leave to withdraw the amendment.

Amendment 92 withdrawn.

House resumed.

House adjourned at 9.50 pm.