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Apprenticeships, Skills, Children and Learning Bill

Volume 712: debated on Thursday 2 July 2009

Committee (4th Day)

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

Amendment 93

Moved by

93: Clause 40, page 23, line 33, at end insert—

“( ) consult with local employers and their representatives, including, where appropriate, those persons designated in section 11(1)(b) of the Apprenticeships, Skills, Children and Learning Act 2009 to issue apprenticeship frameworks in particular sectors, as to the availability and suitability of provision within their area;”

This set of amendments is about consultation, asking that local authorities and the chief executive for skills funding consult with employers, trade associations, chambers of commerce and sector skills councils about what sort of training is needed for the local workforce in any particular area.

Amendment 93 relates to Clause 40 and local authority duties. Clause 40(1) states that,

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

aged 16-18 “in their area”. Clause 40(3) defines suitable “reasonable needs” as having regard to “ages, abilities and aptitudes”, “learning difficulties”, the quality available and “locations and times”. Subsection (4) lists a lot of things the local authority must do in performing its duty. It must encourage a diversity of provision, especially for those aged 16 to 18 who have to stay in education and training as a result of the Education and Skills Act 2008. It must think about what others might provide, make good use of resources but not incur disproportionate costs.

Yet it need not take account of the needs of local employers, which is extraordinary. Amendment 93 asks that, in its duty to secure enough suitable education and training, the local authority shall be asked to consult local employers, trade associations, chambers of commerce and, where appropriate, the sector skills council about the availability and suitability of provision in education and training in their particular local area. If the local authority is to be the commissioner of education and training facilities in the local area—including, importantly, training facilities for apprentices—it is vital that it takes account of what the local needs are in relation to the provision already there. The people who know best about this are the employers and their representatives: the chambers of commerce, the trade associations and—at a national level—the sector skills councils. The sector skills councils have their own knowledge of what goes on in localities. Amendment 93 asks directly that there shall be consultation.

Amendments 104 and 105 are applicable to Clause 41. Here again we are dealing with local authorities. Again the Government are laying down what local authorities must do. In Clause 41(1)(a), they must encourage those aged 16 to 18 to participate in education and training and in Clause (41)(1)(b), they must “encourage employers to participate” in this provision. Again there is no mention of consultation. These two little amendments gently suggest it would be better if, rather than banging on about it, local authorities got together with local employers and discussed with them how best to promote such participation.

With Amendments 182, 183 and 188, we jump to Clauses 81 to 83 and the duties of the chief executive of the Skills Funding Agency. In those three clauses, we are still dealing with 16 to 18 year-olds. Clause 81 is about the provision of apprentice training places, Clause 82 is about co-operation with local authorities and Clause 83 is about co-operation with employers. Clause 83 states that the chief executive of the Skills Funding Agency must,

“encourage employers to participate in the provision of training”.

The amendment states that the chief executive, in conjunction with the sector skills councils, should consult and encourage employers and trade associations —in other words, employers’ representatives.

With Amendment 188, we jump forward to Clause 84, providing for those aged 19 or over. The wording is subtly different. There is no more talk about “enough suitable” education and training to meet reasonable needs. We turn to the weasel words of the clause:

“The Chief Executive must secure the provision of reasonable facilities”,

suitable for those aged 19 or over. Subsection (3) defines reasonable, which we shall come back to later when we discuss the clause. Subsection (4) is key to that amendment, as it lists all the things that the chief executive of the Skills Funding Agency must take account of. Subsection (4)(c) states that he or she must,

“take account of the education and skills required in different sectors of employment for employees and potential employees”.

Once again, there is no mention of consultation with employers. This little amendment suggests that, before laying down the law about what is needed locally, the chief executive should consult employers, trade associations, and the sector skills councils—who are, after all, the people who should know what sort of skills training is required. I beg to move.

What arrangements will there be to consult local authorities about apprenticeships for social work? The Government have introduced a degree course in social work, which is very welcome, but it has attracted a younger group of people into social work. There is great advantage in also securing people with life experience and maturity, and apprenticeship is a good route for that. I would be interested in learning from the Minister, perhaps in writing, how consultation about apprenticeships for social work will take place.

It seems totally reasonable to include the amendment in the Bill. Consultation is a part of the process to make certain that we get the right policy. Unless we can be assured that that has happened anyway and will continue as the schemes are put into practice, it would be helpful to have the amendment accepted.

I am pleased to see the amendment. I mention one particular group representing employers, which I believe has a greater role to play than it is currently being enabled to do: the chambers of commerce. Having talked to representatives of chambers of commerce, I know that they are very conscious that in the areas for which they have responsibility, there is great need for consultation between employers and the providers of apprenticeships to make certain that what is being offered is relevant.

In connection with the chambers of commerce—I know that this is not the responsibility of the departments who are handling the Bill, but so many aspects of the various Bills going through the House at the moment impact on what is going on in other ministries—I mention that there is another burgeoning role that might be considered by the Government. Jobcentres are not the ideal places for advising managers on future movement when they are declared redundant. I wonder whether consideration might be given to giving that role to the chambers of commerce, which understand what managers need, what managers’ skills are and where they might be applied. That is particularly relevant to making certain that they, as employers and employers’ representatives, are consulted about all the things to do with employers in the area where they are working.

I think there is a very strong feeling in this Chamber today about the importance of my noble friend’s amendment. Coming from a business background, I feel that there is a great need for consultation not just on local issues, but with the particular requirements of particular businesses in mind.

Like other noble Lords who have spoken, we feel that the noble Baroness, Lady Sharp, has brought forward some very important amendments in this group. The support from these Benches for Amendments 93, 104 and 105 will be clear from the fact that my noble friend Lady Verma and I have added our names to them.

We have already expressed concern that the involvement of employers and the sector skills councils should be more explicitly laid out in the Bill. Will the Minister not accept that it would be sensible for the authority responsible for securing suitable education and training in the local area to have to consult with local employers and their representatives? It seems to me that this holistic approach would help to ensure that training was suitable not only for those who are going to receive it, but also for those local employers who hope to benefit from having an increasingly skilled workforce.

As the Bill stands, the local authority must already “have regard to” a number of sensible measures, including encouraging diversity in the education and training available, and increasing opportunities for people to choose the programme most suited to them. These are admirable provisions, but they are all from the focus of the learner as the receiver. We think it would also be helpful to have an employer-led influence on this process. The Government themselves have used the expression “demand-led”. We think this is what “demand-led” means.

Amendment 93 would secure that, at the very least, consultation with employers and their representatives would have to take place. In this way, employers could hope to have a direct influence on courses of training and education. Does the Minister not accept that this approach would help local communities match skills to real jobs, which would then help to increase employment? We would argue that, particularly at this time of economic difficulty, it seems not only appropriate, but, indeed, urgent that the Government should do all they can to increase the education, training and skills of our population. The critical focus of this skilling-up should be on how best to match these skills to real jobs, so it seems appropriate that the LEA should have to consult employers and their representatives on the availability and suitability of provision within their area.

Amendments 104 and 105 further develop this point. As the noble Baroness, Lady Sharp, has pointed out, the Bill already states that LEAs must encourage employers to participate in the provision of education and training, so we support the idea that this should also include consultation with employers and their representatives. As it stands, the Bill seems to require only a one-way dialogue. The LEA must “encourage” employers to participate in this provision. We on these Benches would argue that this is completely to miss the point. It is important that there is a two-way conversation between employers and their representatives on the one hand, and the LEA on the other. We should not presume that the LEA is always in a position to command the employer to interact with the education process. It is not inconceivable that the employer might sometimes be better informed as to what new provision would be useful or necessary. So we fully support the amendment in the name of the noble Baroness, Lady Sharp, to make sure that the LEA must also consult employers and their representatives.

Amendments 182, 183 and 188 mean that employers and their representatives must also be included in the consultation process for those areas where the chief executive of Skills Funding is responsible for education. This also seems to be a sensible approach to an area that, after all, must be employer-focused and employer-led. I look forward to the Minister’s response.

I, too, support the amendments. The LEAs will require all the help that they can get to secure these places. I say that not least because I read today in Children & Young People Now that staff will be transferred from the Learning and Skills Council, but that in some places there are no staff, only a massive number of vacancies—for example, in the London area. Will the Minister say what will happen? They will not be transferring staff from the LSC to the local authorities, they will be transferring vacancies, so how will the staff be able to undertake all the extra tasks that they have got to do?

On the face of it, this is a rather sensible group of amendments. Obviously it is very important for LEAs to consult sector skills councils. They are probably a better route than employers’ groups because they think very carefully about education and training needs. My experience of consulting employers more generally is that they are sometimes not terribly clued up about what particular types of education and training are required for the sort of jobs which they seek to fill. However, I am not sure whether this really has to be in the Bill.

I have no idea what the Minister will say, but I am not absolutely convinced by the amendment in that I cannot believe that any local education authority that takes on this general duty, which is what the clause is about, could properly do its job of developing sensible routes down which it should go to ensure that those in the immediate post-compulsory age group of 16 to 18 year-olds have the right opportunities for education and training. I absolutely support the spirit that lies behind this, but it is probably best to consult the sector skills councils than an all-embracing category of employers.

The other point is that social work is, and needs to be, an all-graduate profession, so I am not sure that apprenticeship is the best route for people who will be social workers, although there is a strong case for having an apprenticeship route for those who will be in support roles in residential care for children or the elderly, a small percentage of whom might want to go on to be social workers. That, rather than an apprenticeship for social work per se, is the right way in which to approach this.

I thank the noble Baroness for what she has said. I quite agree that it has been very important to raise the status of social work by introducing a degree. I also quite agree that it is also very important that we recognise that child and family social workers must have a sound understanding of the law and make sound analytical decisions about children in families.

I also hear what the noble Baroness says about certain other circumstances. It has been put to me that it is important to have an apprenticeship route into social work as a starting point from which there is an opportunity to move to a higher academic level—to degree level—so I agree absolutely with what she said. My argument is that at the beginning there might be a foundation stage. One would not be a qualified social worker, but one would take steps towards being one. That would be the apprenticeship aspect of the qualification. The Open University already offers that sort of apprentice first step into social work.

There might have been a little absurdity in what I said about local education authorities consulting local authorities about availability, but I simply want to be reassured that they will look inward as well as outward.

I have just had a brief thought on what the noble Baroness, Lady Blackstone, said about consultation. It is perfectly true that the sector skills councils are where the serious thinking about the nature of training and so on is going on, and consultation with them is key and a starting point. Nevertheless, further education colleges are, by their nature, local institutions and it is the local employers, on the whole, who will be providing the apprenticeships. They are the ones who have to be engaged sufficiently to understand the value of providing apprenticeships. My experience of negotiating with employers is that this is the last thing on their list of priorities. They have other urgent priorities in keeping their businesses afloat and they need a lot of persuasion and engagement if they are going to make a real success of the apprenticeship scheme. So I have a great deal of sympathy with the idea of consulting local employers, getting to know them and pushing ahead in their minds the importance of the apprenticeships that they will offer.

These amendments mirror the focus of the debate that we had on our second day in Committee concerning consultation between the National Apprenticeship Service—as part of the Skills Funding Agency—employers, sector skills councils and others. I share the view that local authorities, when engaging in the commissioning process and drawing up plans, need to encourage employers to participate. We could have a semantic debate about exactly what that means but I do not want to. I agree with the point made by the noble Baroness, Lady Sharp, that we want employers to be involved in the consultative process—and not just employers but also sector skills councils and others. The noble Baroness, Lady Perry, rightly reminded us of the reservoir of knowledge and experience that exists in the colleges. They have the contact with the employers and they know exactly what the needs are. We need a coherent, holistic approach to this.

We all agree that partnership working is the way ahead and that consultation will take place. By its very nature as a customer-focused service, having insights into employer needs and getting feedback from employers will be central to the delivery of services by the National Apprenticeship Service and, indeed, all the other services that will be housed within the Skills Funding Agency. This means that active engagement with employers and others will be a part of its core activity. We have already said that we will reflect further on whether direct reference should be made in the Bill to consultation by the chief executive of skills funding with employers, sector skills councils and others, and I repeat our genuine commitment to reflect on that.

Employers will also have a key role to play alongside local authorities in ensuring that there are sufficient high-quality training options for learners, improving the choice available to young people and ensuring that they have a range of options to choose from. We are putting in place arrangements to ensure that this engagement happens at every level, although we have tended to focus on employers, and I understand exactly why we are doing that. The noble Lord, Lord De Mauley, spoke about their role and said that we talk about a demand-led process. We do and we stand by that. But “demand-led” does not just mean employers; it means learners as well. We have to embrace both if we are serious about reflecting on and reaching the needs of young people—and not-so-young people—in this process. I make a plea that in this debate we do not forget, when we talk about this being demand-led, that we are embracing not just employers but also learners.

Clause 41 places a new duty on local authorities to encourage employers to participate in the provision and delivery of post-16 education and training. I echo the point made by my noble friend Lady Blackstone that it is hard to envisage a local authority that would not want to engage with employers, who, after all, are going to be the source of wealth generation within their communities. It is vital that they are brought into a consultative process.

Local authorities are well placed to perform that duty. They have a wealth of experience in dealing with employers, particularly through their education business partnerships and their existing local strategic partnerships. Employers are also critical members of consortia and the 14 to 19 partnerships in delivering 14 to 19 reforms in local areas. When we talk about employers being engaged at every level, we mean that; indeed, they already are. At a regional level, the employer voice will be heard through the regional development agencies and membership of the regional planning groups, which have an interest in ensuring that the economic and skills agency for the region is reflected in local authority commissioning plans.

That said, the arguments in relation to consultation with employers by local authorities are different from those that apply at the national level to the chief executive of skills funding. The main relationship with the sector skills councils will rightly be with the National Apprenticeship Service. Local authority engagement will be through the provision in new Section 15ZA that requires local authorities to co-operate with the chief executive in the provision of apprenticeships for young people. We feel that these are the appropriate channels. Of course, employers make up and lie at the heart of the sector skills councils. A requirement on each of the 152 local authorities to consult directly every sector skills council would place a significant burden on them. They have to be cognisant of what sector skills councils are doing. However, when we talk about placing a requirement on them to consult directly, we have to recognise that there are 25 sector skills councils. We want to ensure that, when local authorities are drawing up their commissioning plans, they are responding to the needs of employers and learners.

While I understand that you might want to include a direct duty on local authorities to consult local businesses on the exercise of their duties under new Section 15ZA, we need to look at how that will function and whether there really is that need to do it in that way. First, it is a natural consequence of the duty in Clause 41 on encouraging local businesses to provide apprenticeships and other training that there will be a consultative dialogue. Secondly, this dialogue is already happening through the education business partnerships, existing local strategic partnerships and, at a regional level, the regional development agencies. It would seem unnecessarily burdensome to overlay that with a further requirement to consult. Thirdly, there is already an expectation that local authorities will consult their communities on issues that affect them, which they would do anyway in the normal course of events. Finally, employers will also be involved in co-operation arrangements with colleges through the duties in Clause 248, which were introduced by amendment in another place. I hope that all this reassures the Committee about the centrality of employers to these reforms.

I turn now to specific points that have been made and, first, to a point made by the noble Lord, Lord Ramsbotham. I agree that chambers of commerce have an important role to play. Last year, I spent a lot of time going around them when they were dealing with things like skills pledges. They will have a seat on the employer reference group. In addition, the Secretary of State will issue guidance to the Skills Funding Agency about whom it should consult. We expect that to include the CBI, the British Chambers of Commerce and, probably, the Federation of Small Businesses.

At the moment, I do not think that I am empowered to deal with the noble Lord’s point about jobcentres and managers. If I had a view, I would not necessarily dismiss the approach, but I would say that we should ensure that jobcentres are able to respond to the circumstances that currently prevail and to deal with a wide range of people. I know that some of those who go into jobcentres and agencies are people who would not normally have been expected to be in that situation. We need to look at how that service is being provided.

The noble Baroness, Lady Morris, asked about LSC staff transferring to local authorities. We are still working to match LSC staff to posts in local authorities. We must and will ensure that local authorities have the skills to conduct these functions. If there are vacancies, we will identify them in time to enable local authorities to access staff with the right skills before the transfer is effected, subject to the passage of the Bill. We take on board the noble Baroness’s point—we have to deal with the vacancy situation.

The noble Earl, Lord Listowel, asked about apprenticeships in social work. That is being considered by the social work task force. We are talking about a work-based qualification. I noted the range of views that were expressed on this issue. I share the perspective of the noble Earl, who said that we should not rule out an apprenticeship route. We may in the end determine that a degree is required, but a vocational route would seem to be of benefit in attracting a wide range of people to social services. That is not to denigrate in any way the requirement for degree qualifications.

In conclusion, I say that wherever you look in the process of commissioning and engagement, we are involving employers. I stress that we need to ensure also that young people between 14 and 19 have real choice through information, advice and guidance. We want to ensure that the autonomous providers—schools with sixth forms, FE colleges, academies, private training providers—can each determine their capacity, ethos, curriculum and methods of delivery, own their own buildings and land and employ their own staff. They clearly possess autonomy and are involved in the commissioning process. Local authorities are strategic leaders in their area, bringing a holistic view to the commissioning of all services for young people. Employers, as I said, engage through local strategic partnerships, which drive local area agreements.

I repeat our commitment in relation to putting sector skills councils in the Bill. We indicated our concern not to introduce anything that would make the Bill a hybrid. We will look at that concern. I repeat also our assurance that we are as concerned as all noble Lords to ensure that there is a clear understanding. We are talking not just about participation by employers but about making sure that they are involved in the consultation process. We will look also at that and come back to noble Lords to make clear exactly where employers will be involved in the commissioning process.

Certainly they have been framed in a way that specifically does not mention sector skills councils. I do not feel absolutely confident, but clearly that was the intention. I assure noble Lords that I am not attempting to dismiss the amendments on those grounds.

We understand noble Lords’ concerns that we get this right. I have tried to make the point that, when we are talking about consulting, with each local authority consulting sector skills councils, we need to get that right, bearing in mind that there are currently 25 of them. We want to make sure that, in getting employer consultation right, which we need to do, we do not create a burden that they cannot fulfil.

I repeat the two commitments that we have made on this issue, in relation to employers and the role of sector skills councils. I hope, in pointing out the areas where employers are already both represented and part of that commissioning process, that the mover of the amendment will be prepared to withdraw it. We will come back before the Report stage. That is a clear commitment.

I am grateful to the Minister for his reply and to all Members of the Committee who have supported me on these amendments. The Minister made the important point that we are talking not just about participation but about involvement. The noble Baroness, Lady Blackstone, said that she does not think that this needs to be in the Bill. I think that this notion of consultation does need to be in the Bill, because of this element of involvement. That would be very helpful. I take on board the fact that the Minister is thinking hard about whether we can accommodate the sector skills councils. I would point out that, as far as Amendment 93 is concerned, we are not suggesting that local authorities need to consult all the sector skills councils. The amendment says “including, where appropriate” the sector skills councils, and it would be only those sector skills councils that were involved with the particular industries in the locality—at least, that is what I envisage.

I think that the notion of consultation is important. A great many employer organisations have been talking to many of us about their feeling that employers are a little bit taken for granted. Clause 40 is all about local education authorities having to take a view on what is needed in the provision of education for 16 to 18 year-olds in their area. I agree that “demand-led” refers both to employers and to young people—that is also important—but to some extent young people vote with their feet. We need to know that, if there is a shortage of a particular skill in an area, that is taken into account in the planning process. That is where the whole process of consultation comes in. I am grateful to the Minister for his commitment to think about this further and bring it back. With those assurances, I beg leave to withdraw the amendment.

Amendment 93 withdrawn.

Amendment 93A not moved.

Amendment 94

Moved by

94: Clause 40, page 23, leave out lines 36 to 41

As your Lordships know, the Bill transfers the duty to secure learning provision for 16 to 19 year-olds from the Learning and Skills Council to local authorities. LEAs will specifically have regard to the learning difficulties of their population of learners in determining provision, including those under 25 subject to a learning difficulty assessment. Furthermore, there is a clear duty on LEAs to secure only “suitable education and training” to meet the “reasonable needs” of persons in the area. This is a straightforward and equitable way of allocating resources. The long-standing concept of reasonableness is well established and of course is understood in law. It limits access to provision which may be unnecessary and, importantly, reasonableness takes into account financial cost. In addition, local authorities are required to provide for the efficient and effective use of public funds and, of course, are audited on that basis.

Despite these clear limits on what LEAs have a duty to provide, the Bill offers a further qualification for LEAs to avoid post-16 education provision that gives rise to “disproportionate expenditure”. I am grateful to the noble Baroness, Lady Sharp, who has already expressed our shared fundamental concern about this issue, and indeed our amendments could well have been debated together. I ought to clarify that the Special Educational Consortium shares our discomfort with the term “disproportionate expenditure”, particularly in relation to local education authorities, and agrees that reference to it should be deleted from Clause 40 altogether, as per this amendment.

I am also concerned that the extra barriers faced by disabled people in developing their skills are most likely to incur additional costs that could be judged as disproportionate. LEAs may refuse a service by arguing that the provision is either unsuitable or unreasonable, but where these arguments have failed, I strongly believe that they should not have this further get-out option. The Government have argued that new Section 15ZA(5) specifically states that the provision is not to be viewed as giving rise to disproportionate expense just because it is more expensive than something comparable. In practice, this does not set any restrictions on how LEAs can define “disproportionate expenditure”. On the contrary, where a learner has identified suitable education provision that meets their reasonable needs, they should have the right to access it whether or not they are disabled.

We do not expect a blank cheque, of course. However, the issue of expense often arises where the needs of a learner with a disability can be met only in an expensive, out-of-county residential placement. Where this happens, we believe the problem to be the lack of good quality local options rather than a person with a disability claiming disproportionate resources. Until the system can offer a better choice of provision, we hope that individual disabled people will not have their life chances curtailed because the only suitable placement is relatively expensive. In terms of redress, during the Committee debate in another place, the Government indicated that an individual may challenge an LEA if they feel that the authority is wrongly using disproportionate expenditure as a defence. However, I feel that it is not appropriate to leave it to the individual to enforce the duty on the LEA through judicial review where this will be an additional barrier to disabled people as well, of course, as associated costs. I am deeply concerned about the responsibility this places on people with a learning disability, particularly those with limited support, and so I fear that failure to provide them with suitable education and training may frequently go unchallenged.

I have a number of specific questions around disproportionate expenditure about which the Minister has been given prior notice. Perhaps noble Lords would like to hear them. If expenditure is to be deemed disproportionate, what would it be disproportionate to? For instance, should it be measured against a local authority’s overall budget, the education budget, expenditure on other students or limits set by other local authorities? New subsection (5) states that:

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

Is expenditure therefore disproportionate if it is significantly more expensive? If so, how much more? Would it be twice as much, or perhaps 20 per cent more? I hope that the Minister can clarify how local authorities should measure expenditure in order to judge what is disproportionate.

The word “reasonable” is well established and understood by the courts in relation to disability legislation, and it includes cost considerations, but so far as I am aware, the meaning of “disproportionate expenditure” has not been decided by a court. Why is this confusing term being used instead? How do reasonable needs and disproportionate expenditure interact? Is it possible to have a need that is completely reasonable, bearing in mind that “reasonable” is a term that considers cost, and yet for that need not to be met if it is considered to incur disproportionate expenditure?

Finally, it is dubious why provision that specifically “might give rise to” disproportionate expenditure should be avoided. The wording implies that potential future costs should be considered by the local authority. Does this, for instance, mean that someone might be denied provision in their local authority just because years later it could oblige an authority to provide that provision to many more learners?

As regards Amendment 143, Clause 40 creates a general duty on LEAs to secure suitable provision for post-16 education, but it does not give any more entitlement to provision than already exists. This means that, to a large extent, the provision available will be at the discretion of the LEA. While this is not necessarily a bad thing, it will be absolutely vital to ensure that LEAs are required to monitor and report on their performance so that they can be held accountable to the public for their decisions.

In Committee in another place, the Government argued that structures are already in place to ensure that local authorities can be held to account for the delivery of their new duties under the Bill. LEAs will become part of the existing outcomes-focused performance management system supported by government offices, and they will also be assessed and inspected by Ofsted. We feel that these mechanisms are not robust enough to ensure LEA accountability and we need a far more targeted accountability mechanism.

The amendment is particularly concerned with how an LEA’s performance of this duty towards learners with learning difficulties will be audited and how, in particular, the failure to provide suitable education to learners with more complex needs will be monitored and addressed. However, improving accountability can only benefit all learners and allow LEAs to map provision and address gaps in the market appropriately.

The amendment mirrors the sufficiency duty contained in the recent Childcare Act, a widely supported measure at the time. The Government state in their guidance that the childcare sufficiency duty is designed to help local authorities to identify the nature and extent of the need for provision and, where there are gaps, plan how to support the market to address them. The measure includes giving scope for a three-yearly review of the provision for people with disabilities and learning difficulties. Young people with disabilities and learning difficulties would be involved in the audit and the results of the audit would be published. This process will go to the heart of ensuring that the apprenticeship scheme leads to truly positive outcomes for learners with a learning disability and would avoid the past mistakes of many courses which ultimately lead nowhere. I beg to move.

I must advise the Committee that if the amendment is agreed to I shall not be able to call Amendment 100 because of pre-emption.

My name is linked with those of the noble Lords, Lord Rix and Lord Low, on the amendment, to which I happily give support. The key issue has been raised by the noble Lord, Lord Rix: that is, what is disproportionate? How do we judge disproportionate in this sense? I look forward to hearing what the Minister has to say.

As to the proposed new clause in Amendment 143, again as the noble Lord, Lord Rix, has said, it is necessary that local authorities should have a more targeted approach to those with learning difficulties. The proposed new clause sets out in detail precisely what is required. We have all had experience of how there are often difficulties in delivery despite the legislation that has already been passed, and it is useful to spell out in some detail precisely what is required. I give my wholehearted support to both amendments.

Like the noble Baroness, Lady Sharp, I have put my name to Amendment 94 of the noble Lord, Lord Rix, not because I want to see subsection (4)(e) of new Section 15ZA of the 1996 Act removed from the Bill but because it is important to probe the Government’s intention on this point. The paragraph enters the proviso that the LEA must make the best use of its resources and must not provide for anything that would,

“give rise to disproportionate expenditure”.

I am curious about how the Government intend to enforce this area of the Bill. While it is admirable, it will be difficult to enforce for two main reasons. First, it will be difficult to measure what the best use would be of an authority’s resources, given that it will have to provide very different services for a range of diverse groups of people. Each group will have its own needs and concerns, and I cannot see how the LEA will decide which service will accord with the best use of its resources.

Secondly, and this echoes the concerns expressed by other noble Lords, this provision may provide the get-out clause for local education authorities that are on a tight budget and might therefore seek to reduce spending on providing for those with learning difficulties or other disabilities. I sympathise with the LEAs in this respect; we on these Benches think that the devolution of the duties involved in providing education will stretch resources and put a great deal of strain on already struggling authorities. Nevertheless, it is also vital that those with learning difficulties or any form of disability are not left behind.

Subsection (5) of the new section attempts to clarify that expenditure should not be considered disproportionate just because it may be more expensive than comparable provision. However, as the noble Baroness, Lady Sharp, said, more clarity is still needed if we are to ensure that LEAs are able to run educational provision that will include all relevant people while simultaneously making the best use of resources.

Amendment 143 seeks to ensure that local authorities have a duty to carry out assessments of the sufficiency of the provision of suitable education for learners with learning difficulties. I will be interested to listen to the Minister’s response to it, given that I am not sure how, without such assessments, it would be possible to ensure that provision for learners with learning difficulties was being adequately provided. If such an assessment cannot be made, how will it be possible to make improvements to the system? I look forward to hearing the Minister’s response.

I cannot believe that the Government intend by the inclusion of this clause to hit the provision of education and training for young people with learning difficulties or with a disability. While I entirely support what the noble Lord, Lord Rix, and two opposition Front Bench spokesmen are saying about the importance of providing adequate provision for those who have special needs, and about the fact that such provision might cost more than would be the case for young people without those special needs, I cannot believe that that is what lies behind the inclusion of this clause. I am sure that the Minister will put us right on that issue.

My problem with the clause is that I cannot quite understand why we need to say in legislation of this sort that a local education authority should make the best use of its resources and that it should avoid provision that gives rise to disproportionate expenditure. It goes without saying that every local authority should make the best use of its resources in everything it does and should not have disproportionate expenditure, which I take to mean unnecessarily high expenditure when it could be done just as well for less money.

Why has this clause been put in the Bill? It looks like central government, in teaching-grandmothers-to-suck-eggs mode, telling local government what to do. We already have extensive regulation of local government expenditure, with a lot of pressure on value for money through the work of the Audit Commission. We already have Ofsted inspecting local education authorities—not just their educational provision but the work of the authorities right across the piece. In that inspection of work, Ofsted is looking at value for money and at whether a local authority is having regard to its expenditure and making the best use of scarce resources. This, frankly, is overegging the pudding.

This is, effectively, the second go we have had. The previous time the Committee sat, more or less the last thing we discussed was—as the first amendment of the noble Lord, Lord Rix, puts it—these few lines in question. As the noble Baroness, Lady Blackstone, has pointed out, they merely add to the confusion and raise worries that may prove to be false. That may not be the Government’s intention but these lines are quite clearly confusing the issue. Which bits of these six lines are the most important in which situation? That is one question that we have not had answered.

I gave examples from my own experience of where people say, “We can’t do it if it’s something new”. There is a huge history of that in all forms of special educational needs provision—“Oh, they can’t do that because they’ve never done it”. Even if the current Government are better than any Government before, which is a defence that the Government make, my standard response to that is that they should be; they have more resources, more knowledge and more ability.

What is the benefit of these six confusing lines? The noble Lord, Lord Rix, pointed out that we have a good concept of reasonableness established in law, while the noble Baroness, Lady Blackstone, has said that this seems to be confusing because there are already audits and tests for what is best value for money on various occasions. Why do the Government desperately need this? If they get rid of it and go back to established principles, they will probably save everyone a great deal of time and energy.

Surely the answer to that is simple. The Government know exactly what is going on at the moment; they know the current form of words that the noble Lord, Lord Rix, explained so cogently, and they have chosen a different form of words in order to alter the entitlement of the people who are subject to this subsection. Is it to increase their entitlement or decrease it? I think I know the answer to that.

I strongly support what my noble friend Lord Rix has said. I cannot help but reflect on one word that crops up over and again when one considers the provision of these services: consistency. My noble friend has already mentioned that there is a problem; certainly, in different parts of the country there are different provisions for people with the same need. That is something that I am sure we would all like to see eliminated.

As my noble friend has said, Clause 40 says that,

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

However, there is another complicating factor on top of the inconsistency that that will expose between all the local education authorities. Clause 59, which we have not yet come to, says that the Young People’s Learning Agency,

“must secure the provision of financial resources to … local education authorities, for the purposes of their functions in relation to education or training”.

So on top of the inconsistency of the local education authority provision, we now have the YPLA responsible for funding. Is there any intention that the YPLA should be directed to make certain that there is consistent funding for all this provision? Otherwise, what is the situation into which we are going to be launched?

I sympathise with the amendment and thoroughly support the way in which my noble friend Lord Rix presented it. From some of the briefing that I have had from the department, I think that the intention behind this was in fact a good one: at the same time as hoping that there would be value for money, which is a perfectly sensible thing to say, the intention was that the local education authority would take into account the special needs of people with disabilities. I have some sympathy with the Government, but equally I feel that they have made the situation worse. Maybe the answer will be to take the whole thing back and try to do it as simply as possible to get the message across.

Above all, I was going to make the same point as my noble friend Lord Ramsbotham. We all know that there is inconsistency and a postcode lottery as far as local education authorities are concerned. By no means are those with most resources necessarily the most generous. Let us put it like that. I hope very much that we will get some reassurance. I hope that there will be something rather more dramatic from the Government, and that they will take this whole thing away. Quite clearly, it is not going to work. That was outlined in the other place and it was definitely stated again in your Lordships’ House.

I too support Amendment 94 and express my gratitude to the noble Lord, Lord Rix, for tabling it. I will concentrate particularly on the use of the word “might” rather than “would” in line 37 of subsection (4)(e) of new Section 15ZA of the 1996 Act. It seems quite inevitable that this subsection will lead to less provision for those with learning difficulties because the way in which it is phrased means that a local authority is bound to pay what seems unnecessarily immense caution to just the possibility that there might be disproportionate expenditure in the future. I am aware of how much effort and energy goes into providing often excellent provision for those with learning difficulties. There will, it seems, inevitably be a restriction in that provision if we do not do something about this whole section of the Bill and, in particular, line 37. I hope that the Minister will be able to comment on the use of the word “might” in that line.

Having arrived late for the debate I will restrict my comments to an endorsement of one of the points made by the noble Baroness, Lady Blackstone, namely the unacceptability of paragraph (e) of the new section. It activates a principle that is often referred to in this House—inclusio unius est exclusio alterius. If you apply a specific requirement to a particular category, it implies that all the other categories are not included. Therefore, it gives precedence to making the best use of resources only in this case, and reduces the pressure on local authorities in any other provision within this statute. I have been told by lawyers again and again that that is the effect of doing this sort of thing, so I hope that the Government will pay close attention to what the noble Baroness, Lady Blackstone, said.

I support Amendment 143 in the name of my noble friend Lord Rix, having taken part in the Childcare Act, which placed a duty on local authorities to secure sufficiency of childcare places. I think it established the principle that there needed to be assessments if the duty was to be complied with. I also ask the Minister—perhaps he would be kind enough to write to me—to assure the Committee that there is a sufficient mechanism to ensure that there is an assessment of whether the learning needs of young people in care and care leavers are met. I am grateful for what has already been done in the Bill for care leavers, particularly in securing sufficient apprenticeships as young people leave local authority care. A local authority should have a fair idea of how many young people leave care each year and should be able to seek employment opportunities and apprenticeships to meet that need. I would be grateful to hear what sort of mechanisms are in place in that regard, especially since we know that local authorities have not, until now, been very good at providing apprenticeships.

As my noble friend Lady Blackstone reminded us, we need to establish that making the best use of their resources is a key principle of how all public bodies do business. Subsections (4)(e) and (5) ensure that. That is in learners’ interests because if local authorities commission particular provision in a way that does not give value for money, there will be less money available to support other learners. I know that throughout this debate noble Lords have taken the view that this is somehow a get-out clause and that is its sole purpose. That is by no means the intention and I will demonstrate why that is the case as I proceed.

There is a real need for us to ensure that, even in special needs provision, we are still getting value for money. It is not an attempt to say that we do not want to go down a particular route. I am sure that the noble Lord, Lord Rix, could find a number of examples of where he would have to choose between providers and might find that one offered better value for money than another. It is not an attempt to avoid responsibilities or not provide a service. We are trying to make sure that, in getting the best value for money, we can reach the widest possible group of people who need this service. We are all starting from the same intention and should not see value for money as meaning that we will deny people rights and opportunities. I would argue that it is the other way round. We are making sure that more people get the opportunities, services and support that they need.

This is not about comparing the provision needed for one group of learners against the provision needed for different groups with different needs and saying that meeting the needs of one group, because it is more expensive, involves incurring disproportionate expenditure. It is about looking at the needs of young people and the provision available and commissioning the provision that meets those needs, while also providing value for money. Requiring value for money when commissioning education and training is not a new requirement. Under Section 2(3)(e) of the Learning and Skills Act 2000 the Learning and Skills Council is required to,

“make the best use of the Council’s resources and in particular avoid provision which might give rise to disproportionate expenditure”.

There is no suggestion that this requirement has in any way affected the LSC’s ability to provide appropriate learning provision for young people with learning difficulties and disabilities. Indeed, one consistent message to come from the conversations that I have had with Skill, the RNIB and others in the past few weeks is that the LSC has a very good track record in this area, despite having this disproportionate expenditure criterion.

The Learning and Skills Council was a centralised funding programme with annual targets set each year by the Secretary of State. Local authorities are entirely different. They have complex structures, increasingly stretched budgets and political considerations. There will be far more scope for local variability and considerable risk that some disabled people will miss out, based on a local authority’s circumstances and their particular problem.

I will return to that point. I think that that is where the role of the YPLA will prove important.

It was felt that it would be helpful to replicate this provision for local authorities. Although they already have a general duty, under the Local Government Act 1999, to secure value for money, this does not apply to the YPLA. By giving both local authorities and the YPLA a comparable duty which specifically relates to education and training provision, we can be sure that they approach such issues in the same way. If the proposed amendment was made, the commissioning system could, in fact, be less effective.

There can be no question that replicating this clause is somehow a get-out clause for local authorities. As I have already mentioned, their duties to secure provision for all young people in their area, including those with learning difficulties or disabilities, is set out clearly in new Section 15ZA. We would not want to do anything to undermine this.

Let us look at the track record. Funding for specialist provision has increased significantly over recent years, from £35 million to fund 3,000 learners in 2000, to £180 million for 3,500 learners in 2006-07. The DCSF has made available additional funds through the Invest to Change programme to improve provision for learners with learning difficulties locally. We are committed to continued investment in this area and we have been clear that this will remain a priority when responsibilities transfer to local authorities. This clause is about ensuring that we make the very most of this investment for the benefit of the young people at whom it is aimed. Ensuring value for money when commissioning provision will free up resources to support those young people with the most profound needs.

Amendment 143 would introduce a new duty on local authorities to conduct a full assessment of the suitability of provision for learners with learning difficulties and/or disabilities at least every three years. The noble Lord, Lord Rix, raised this issue at Second Reading and this amendment has been modelled on that included in the Childcare Act 2006. As my noble friend Lady Morgan has written to the noble Lord to explain, we are putting in place a system to ensure that this planning function takes place. However, we do not feel it necessary to legislate for this specific administrative process and I am happy to set out the reasons why for the Committee now.

I should like to reassure the Committee and my noble friend that we are putting in place a system which will ensure that this essential planning process takes place annually, as part of the annual commissioning cycle, and not just every three years, as proposed by the amendment. Local authorities will not be on their own. They will come together, and they have already agreed to do this, as sub-regional groupings that will act as planning bodies. We will support them to build on their existing expertise in this area. They will be required to have regard to guidance on this annual commissioning cycle—this is the point made by the noble Lord, Lord Rix—which will be set out by the YPLA in a national commissioning framework. This guidance is currently being developed in collaboration with our key delivery partners and stakeholder groups, including the National Association of Specialist Colleges. We are not trying to develop this guidance on our own. We are consulting the people and the representative bodies that we know are experts in this field.

There will be a dedicated national team in the Young People’s Learning Agency for learners with learning difficulties and disabilities. Regional specialists will provide advice and expertise to local authorities to help them in, among other things, planning specialist provision across local borders, something we know is vital. The React team based at the Local Government Association is already working with authorities to prepare them to take on their new responsibilities. It is also important to remember that local authorities will not be starting from a zero base. Local authorities will already have been working with many of the young people concerned as they were growing up. They already hold a significant amount of information about their needs through the client case load information system database and will be further supported in future with strategic analysis and historic data on learner trends and local needs, provided by the YPLA.

Accountability was raised by a number of noble Lords. There is a range of ways in which local authorities will be held to account. As part of the existing system, local authorities will be performance-managed in relation to the outcomes of young people in their area. Government offices will provide support and challenge to ensure satisfactory performance. Assessments and inspections by Ofsted and other inspectorates will provide a further check on local authority performance. In addition, as I mentioned earlier in the debate, the YPLA will have a clear role in assuring coherence of regional plans.

I want to come back to some points that were made. The noble Lord, Lord Ramsbotham, raised the issue of consistency. As I said to the noble Lord, Lord Rix, the consistency we hope to achieve will be through the national commissioning framework and a national funding formula and we seek consistency in all areas. If necessary, the YPLA can be directed by the Secretary of State, through Clause 73, and we will examine whether there is a problem as this rolls out, subject to the passing of the Bill.

I know that the noble Lord, Lord Lucas, tends to see the glass as half-empty rather than as half-full, in this area, certainly, and maybe in others. We will seek to increase the entitlement because, by providing value for money, more money will be available for more learners who need it most. The right reverend Prelate expressed his concern that the driving force would be to have less provision. We would say, look at the track record. We still had disproportion there. In fact, we have increased support and that is right, because we know that demand has increased.

I was asked about “disproportionate” as a comparator. The comparison is between the provision and its cost. Is the cost proportionate, taking all relevant considerations into account? This is about value for money. That is why new Section 15ZA(5) says what it says. Relative cost is not the only thing for local authorities to consider. Others will explain better than I can that value for money is not necessarily about getting the cheapest—we know that from bitter experience in many circumstances—but about getting the best that you can for the money. A local education authority will have to make its own decisions about the best use of resources. It will definitely have to consider its own budget and may well look at what other LEAs are spending for guidance.

My noble friend Lady Blackstone says she cannot believe that what we are doing is necessary; that it goes without saying. Why are we doing this? Well, there is a general duty, as I think she referred to, in the Local Government Act 1999, which already applies to local authority functions, but not to the Young People’s Learning Agency, which has specific value-for-money duties similar to those in Clause 40(4)(e) and (5).

I absolutely accept that there may be a need to apply this to the Young People’s Learning Agency, but what I cannot understand is why, because it is necessary in that respect, it also has to be applied to local authorities, when there is already a general duty on local authorities in the 1999 Act. The danger is that every single piece of legislation brought to this House or another place that entails expenditure by local authorities will then have these clauses put in them. That is what I am seeking to prevent. Perhaps the Minister will take this back and consider whether we need to replicate it here. I can see why the Government may have needed it when legislation was introduced on the Learning and Skills Council some years back, but it looks to me as if there has been an automatic application of what applied to the Learning and Skills Council to local authorities when it is not necessary, because it is already embodied in legislation.

I am conscious of the time. I take account of the concerns that have been raised, which I understand. As I said, we are still in discussion with the SEC. We have already said that we do not want to do anything which in any way undermines the role of local authorities in meeting these vital needs. The best thing that I can do in the circumstances is to take away the points that have been raised and come back to noble Lords before Report. On the basis of that assurance, I hope that the amendment will be withdrawn.

I apologise for doubting the Government’s intentions. The noble Lord has made it perfectly clear that their intentions are pure, and that this is just a bit of drafting mess, which as the noble Baroness, Lady Blackstone, so rightly says, deserves to be cleared up. If the noble Lord’s explanation of the word “disproportionate” and its effects is right—I cannot see how that can be construed from the clause as it sits—and if it is intended to mean what the noble Lord said it is intended to mean, it is entirely unnecessary because it falls exactly within the duties as specified by the noble Baroness, Lady Blackstone.

Care leavers may be outwith this amendment, but at the very welcome annual meeting of the regional commissioning for educational provision an item might be put on the agenda suggesting that talks be held with the YPLA about local authority apprenticeship provision for care leavers. That would involve only a few children leaving care each year. There should be some mechanism to ensure that local authorities think very carefully about this and supply as many as possible.

I am most grateful to all noble Lords who have spoken in support of these amendments. I am very grateful to the Minister for saying that he will take the provision back, look at it and consult again with the SEC. I hope that I can be present at one of those meetings, which will probably take place during the recess as I cannot believe that we will reach Report before October. In that case, and as I have just had a message to telephone my home urgently, I beg leave to withdraw the amendment.

Amendment 94 withdrawn.

House resumed.