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Skills And Post-16 Education Act 2022

Contents

Commentary on provisions of Act

Part 1: Skills and Education for Work

Chapter 1: Education and Training for Local Needs

  1. This chapter aims to create a framework to facilitate stronger employer and provider engagement in local skills systems. This framework will ensure employers have more influence over the skills system, which will assist providers to respond to employers’ skills needs and reshape their offer. Employer representative bodies will work with employers, providers and local stakeholders to develop local skills improvement plans that set out the key changes needed to ensure technical education and training is more responsive to local labour market skills needs. 
  2. A new duty will ensure that all colleges and designated institutions regularly review the provision of education in an objective and holistic way, having regard to local needs and encompassing the needs of both learners and employers within a local area.  Creating a statutory duty will strengthen accountability and will ensure that aligning provision with local needs is a priority for governing bodies.   

Local skills improvement plans

Section 1: Local skills improvement plans

  1. This section provides for local skills improvement plans, introducing duties on relevant providers to co-operate with designated employer representative bodies in developing local skills improvement plans and have regard to the plans once they have been developed. Relevant providers are those that provide English-funded post-16 technical education or training that is material to a specified area in England.
  2. Subsections (1), (2) and (3) provide that those relevant providers must co-operate with a designated employer representative body in the development of a local skills improvement plan for a specified area.  
  3. Subsection (4) sets out provisions for relevant providers to assist to keep plans under review and updated as required and to have regard to the latest plan published by the Secretary of State when making decisions on relevant provision in the specified area.  
  4. Subsection (5) sets out that relevant providers must take account of guidance published by the Secretary of State in connection with this section, including in relation to co-operating with designated employer representative bodies in the development of local skills improvement plans.
  5. Subsections (6) and (7) set out specific conditions that must be met in order for the Secretary of State to approve and publish a local skills improvement plan, including adaptation to climate change, the UK net zero target, meeting other environmental goals and consideration of the views of Mayoral Combined Authorities and the Greater London Authority.
  6. Subsection (8) sets out what a local skills improvement plan is and subsection (9) sets out what an approved local skills improvement plan is.

Section 2: Designation of employer representative bodies

  1. This section outlines how employer representative bodies will be designated by the Secretary of State to develop local skills improvement plans.   
  2. Subsection (1) sets out the criteria by which the Secretary of State will designate employer representative bodies to develop and keep local skills improvement plans under review. This includes having the capability to perform in an effective and impartial manner, being reasonably representative of employers within the specified area and consenting to designation.  
  3. Subsection (2) provides for the Secretary of State to set appropriate terms and conditions with subsection (5) providing for changes in terms and conditions.   
  4. Subsections (3) and (4) set out that the Secretary of State must notify the employer representative body of its designation and publish a notice before the designation takes effect. This includes what information should be contained within the notice including name, area specified, effective date and any terms and conditions. 

Section 3: Removal of designations 

  1. Subsection (1) of this section enables the Secretary of State to remove the designation of an employer representative body and confirms the conditions for any removal. The conditions are: failure to continue to meet the criteria for designation, non-compliance with the relevant guidance issued by the Secretary of State and where the Secretary of State considers that the removal is necessary or expedient. The section also sets out how a removal will take effect.  
  2. Subsections (2), (3) and (4) set out that a written notice must be published by the Secretary of State when removing a designation and the information that should be contained within the notice. 

Section 4: Interpretation

  1. This section outlines the definitions used within sections 1, 2 and 3. 
  2. Subsections (2), (3) and (4) provide the definition of English-funded education and training in relation to local skills improvement plans.
  3. Subsection (5) outlines that subsection (1)(d) enables the Secretary of State by regulation to add Local Authorities in England, 16-19 academies and schools in England to the definition of relevant providers. 

Further education institutions: duty in relation to local needs 

Section 5: Institutions in England within the further education sector: local needs  

  1. This section inserts a new section 52B into the Further and Higher Education Act 1992. In new inserted section 52B:
    1. Subsection (1) places a duty on governing bodies of general further education colleges, sixth form colleges and designated institutions (as described in Chapter II of Part 1 of the Further and Higher Education Act 1992) to keep under review how well the education or training provided meets local needs and, in light of their review, to consider what action the institutions might take to meet local needs better. The governing body may decide to take this action alone or in conjunction with any other educational institutions.
    2. Subsection (2) requires the governing body to have regard to any guidance published by the Secretary of State. To support the scrutiny of the section during the passage of the Bill, the Secretary of State published draft statutory guidance on gov.uk. It is intended that the final statutory guidance will be published on gov.uk when the section comes into force.
    3. Subsection (3) requires the governing body to publish the review on the institution’s website. 

Chapter 2: Technical Education Qualifications, Apprenticeships, etc

  1. This chapter extends and refines the existing statutory framework for the approval and regulation of technical education qualifications. The sections introduce new functions for the Institute to support reforms set out in the Post-16 Qualifications Review and the white paper. The functions enable the Institute to approve a broader range of technical education qualifications by introducing a new approval scheme alongside the existing scheme, where qualifications approved under the existing scheme can lead to the issue of a technical education certificate under section A3A of the Apprenticeships, Skills, Children and Learning Act (ASCL 2009) and qualifications approved under the new scheme do not. The functions also require the Institute to keep under review the education and training within its remit to ensure the overall coherence of the system. These sections embed the collaborative relationship between Ofqual and the Institute in exercising their respective functions in relation to technical education qualifications.
  2. The sections amend ASCL 2009. That Act was amended by the Deregulation Act 2015 (in relation to the approved English apprenticeships reforms) and the Enterprise Act 2016 (to, among other things, establish the Institute). The Institute was established in April 2017 with apprenticeships functions. The Technical and Further Education Act 2017 then further amended ASCL 2009 to extend the Institute’s remit to include technical education.  
  3. The final section in this chapter requires maintained schools, academies and pupil referral units in England to give education and training providers access to pupils on at least two occasions during each of the first, second and third key phases of their education, to inform the pupils about approved technical education qualifications or apprenticeships.

Functions of the Institute for Apprenticeships and Technical Education

Section 6: Functions of the Institute: oversight etc.

  1. Subsection (1) sets out that this section amends ASCL 2009.
  2. Subsection (2) amends section ZA2(6) to include in the Institute’s remit other technical education and training which supports entry to occupations published under ZA10. This enables the Institute to play a role in relation to education and training (which links to employer-led standards but does not lead to a qualification), including (under the Institute’s powers in Schedule A1 of ASCL 2009) publishing guidance on how such provision could align with employer-led standards. 
  3. Subsection (3) inserts new section ZA2A into ASCL 2009, which provides the Institute with an oversight function in relation to the technical education and training within its remit. It requires the Institute to keep under review such education and training and the effect of its functions on the range and availability of that education and training. In exercising this duty, the Institute will consider the overall coherence of technical education provision within the system to ensure that the range of apprenticeships, qualifications and other technical education is appropriate. The Institute may report to the Secretary of State on matters arising under its oversight function. 
  4. Subsection (4) amends section ZA3 to state that the Institute’s power to provide advice and assistance to the Secretary of State includes advice and assistance in relation to technical education qualifications.  

Technical education qualifications

Section 7: Additional powers to approve technical education qualifications

  1. Subsection (1) sets out that this section amends ASCL 2009 to provide the Institute with additional powers to approve technical education qualifications. 
  2. Subsection (2) inserts new sections A2D1 and A2D2. Section A2D1 provides an overview of the framework for approval of technical education qualifications by the Institute. It sets out two schemes for approval of technical education qualifications by the Institute: 
    1. The scheme under section A2D3 provides for qualifications that can lead to the award of a technical education certificate by the Secretary of State and in relation to which copyright in relevant course documents can transfer to the Institute (for example, T Levels).  
    2. The other scheme (under new section A2D5 inserted by subsection (4)) provides for the approval of new categories of technical education qualification where the Institute does not consider it appropriate for these categories of qualification to be approved under A2D3. Qualifications approved under this scheme are those which do not lead to the award of a technical education certificate by the Secretary of State and in relation to which no copyright may transfer to the Institute on approval. 
  3. New section A2D2 provides for the Institute to specify the categories of technical education qualification that will be approved under new sections A2D3 and A2D5. It sets out requirements for the Institute to publish information showing the categories and their associated requirements. For the categories of qualification approved under section A2D5, the Institute is also required to identify and publish information showing the test against which it will approve qualifications within that category.  The test must be one of the three tests set out in new section A2D5(3)-(5). Section A2D2(7) places a requirement on the Institute to consult prior to specifying the categories, including consultation with the Secretary of State and other appropriate persons (for example, employers). 
  4. Subsection (3) amends section A2D3 (as renumbered) of ASCL 2009 as a consequence of the provision for the Institute to specify categories of technical education qualification.
  5. Subsection (4) inserts new section A2D5 which gives the Institute the power to approve technical education qualifications within the categories that will be approved via the scheme described in paragraph 56.ii. It sets out the circumstances in which the Institute may approve such qualifications and the tests that it must apply. To be approved, a qualification must meet the employer demand test (A2D5(6)) as well as the appropriate test for its category (A2D5(3)-(5)). The tests under sections A2D5(3)-(5) provide for the approval of qualifications that relate to employer-led standards in different ways. They set out the outcomes that must be attained when a person obtains the qualification. The outcomes are contained in employer-led standards or relate to occupations that are published by the Institute. 
  6. New sections A2D6 and A2D7 allow the Institute to make any arrangements that it considers appropriate to ensure that technical education qualifications are available for approval. The sections provide the supplemental powers that the Institute needs to run its scheme of qualifications approval, including the ability to withdraw approval.
  7. Section A2D6(4) places a requirement on the Institute to publish the matters it will take into consideration when making decisions about approval and or withdrawal under either section A2D3 or new section A2D5. These criteria may differ depending on the category or occupation that the technical education qualification relates to. New section A2D7 sets out requirements in relation to publication of information regarding approved qualifications. This includes information about how approved qualifications relate to occupations published under section ZA10(5). Under section A2D7(3) the Secretary of State may make regulations authorising the Institute to charge fees in connection with approvals. 
  8. New section A2D8 places a duty on the Institute to review approved technical education qualifications at regular intervals and to publish information about when the reviews will occur. In conducting such reviews, the Institute will determine whether each qualification should continue to be approved, whether approval should be withdrawn or whether qualifications should be revised. 
  9. New section A2D9 allows the Institute to impose a moratorium on the approval under A2D5 of qualifications of a particular kind, should it determine that there is an appropriate number of qualifications of that kind already approved. It sets out a requirement for the Institute to consult the Secretary of State in relation to the introduction and ending of a moratorium. The purpose of this power is to give the Institute an additional function to manage the proliferation of technical education qualifications. 
  10. Subsections (5) and (6) make amendments to ASCL 2009 which are consequential on there now being more than one scheme for approval.  
  11. Subsection (7) inserts new section A12 which provides for interpreting chapter A1 of ASCL 2009. 

Section 8: Functions of the Institute: availability of qualifications outside England 

  1. This section inserts new section A2IB into ASCL 2009 which allows the Institute to provide advice and assistance and take steps it considers appropriate in order that T Levels could be made available in areas of the UK other than England as well as internationally. 

Section 9: Technical education qualifications: co-operation between the Institute and Ofqual 

  1. This section inserts new section A2D11 into ASCL 2009 which establishes a cooperative framework for the approval, regulation and other oversight of technical education qualifications falling within the functions of the two bodies.   
  2. New subsection (1) requires Ofqual and the Institute to cooperate in exercising their respective statutory functions in relation to technical education qualifications.  
  3. New subsection (2) empowers either body to provide advice and assistance to the other and requires either body to have regard to any advice and assistance it receives. 

Section 10: Application of accreditation requirement in relation to technical education qualifications 

  1. This section amends section 138 of ASCL 2009 to ensure that individual technical education qualifications may not be subject both to accreditation by Ofqual and approval by the Institute under their respective powers in ASCL 2009. It does this by:
    1. taking a qualification out of scope for accreditation by Ofqual if it is a technical education qualification that has been approved by the Institute or if the Institute has notified Ofqual that approval is being considered but a decision has not yet been made.   
    2. requiring that where the Institute has notified Ofqual that an approval is being considered, it must also notify Ofqual of its decision. 

Section 11: Information sharing in relation to technical education qualifications 

  1. Subsection (1) states that this section inserts new section 40AB into ASCL 2009. It supports effective collaboration between Ofqual and other bodies with functions in relation to technical education qualifications, by introducing information-sharing provisions similar to those relating to the Institute under section 40AA of ASCL 2009. Ofqual and the Institute are already able to share information with each other under section 40AA of ASCL 2009. The provision under new section 40AB will enable Ofqual to share information with other relevant bodies.
  2. Subsection (2) sets out that in new inserted section 40AB:
    1. Ofqual may disclose information to a relevant person for the purpose of a relevant function. A relevant person may also disclose information to Ofqual for the same reasoning.
    2. A "relevant person" is specified as the Secretary of State, the OfS, Ofsted and a prescribed person.
    3. A "relevant function" is in relation to the Secretary of State, Ofqual, the OfS or Ofsted, a technical education function of that body so far as the function relates to England. With reference to a "prescribed person", this is a prescribed technical education function of that person, so far as the function relates to England.
    4. Ofqual, the OfS and Ofsted have the same meanings as in section 40AA of ASCL 2009 and "technical education function" means a function that relates to technical education qualifications approved, or that may be approved, by the Institute for Apprenticeships and Technical Education under section A2D3 or A2D5.
  3. Subsection (3) inserts "Technical Education Qualifications" in the heading of Part 1A, after "Apprenticeships".
  4. Subsection (4) inserts "(azb) regulations under section 40AB;" in section 262 (orders and regulations), subsection (6), after the paragraph.

Section 12: Technical education qualifications: minor and consequential amendments 

  1. Subsection (1) sets out that this section amends ASCL 2009.
  2. Subsection (2) inserts new section ZA8A which ensures that there is a consistent interpretation of certain terms throughout the relevant chapters of ASCL 2009.
  3. Subsections (3) to (10) make a number of minor amendments to ASCL 2009 and to other existing legislation to ensure that technical education qualifications approved under the new scheme are appropriately referenced alongside those approved under the existing scheme.

Section 13: Renumbering of provisions relating to technical education qualifications 

  1. This section renumbers sections of ASCL 2009 to ensure the numbering is easier to follow after insertion of new provisions.
  2. Subsections (3) to (7) make minor amendments to ASCL 2009 as a consequence of renumbering.
  3. Subsection (8) clarifies that the renumbering does not alter the effect of anything done under a renumbered provision and to clarify that references elsewhere to the previous provisions should be taken as references to the renumbered provisions.

Information about technical education and training

Section 14: Information about technical education and training: access to English schools 

  1. This section amends section 42B of the Education Act 1997, inserted by section 2 of the Technical and Further Education Act 2017. This requires maintained schools, academies and pupil referral units in England to allow education and training providers to access their pupils in order to inform pupils directly about approved technical education qualifications or apprenticeships. In practice, this means providers informing pupils in the school year in which the majority reach the age of 13 to the year in which the majority reach the age of 18 (typically school years 8-13) about the courses and qualifications that they offer.
  2. Subsections (1), (2) and (3) modify section 42B to specify that schools must give access to pupils on at least two occasions during each of the first, second and third key phases of their education.
  3. Subsection (4) inserts new subsection (2A) which states that the school must ensure that all pupils meet, on at least two occasions, at least one provider during each of the first and second key phases of their education, or any other number of providers that is set out in secondary legislation. The encounters during the third key phase are optional for pupils to attend.
  4. Subsection (4) also requires schools to ask each provider to provide information to pupils that includes:
    1. information about the provider and approved technical education qualifications or apprenticeships that the provider offers;
    2. information about the careers to which those technical education qualifications or apprenticeships might lead;
    3. a description of what learning or training with the provider is like; and
    4. response to questions from pupils about the provider or approved technical education qualifications and apprenticeships.
  5. Subsection (4) also inserts new subsection (2B) which clarifies that access to providers must be for a reasonable period of time during the standard school day.
  6. Subsection (5) specifies additional content of the policy statement that schools must prepare, publish and follow, setting out the circumstances in which a provider will be allowed access to pupils. It requires schools to set out in their policy statement the times at which access is to be given. It also requires schools to explain in their policy statement how they will meet the new legal requirements imposed under subsection (2A).
  7. Subsection (6) gives the Secretary of State the power to set out further detail about the meetings with providers that all pupils must attend, as required by subsection (2A), in secondary legislation. For example, this could be further provision about the number and type of providers that pupils must meet.
  8. Subsection (7) defines the key phases of a pupil’s education in which each provider encounter must take place:
    1. The first key phase is the school year in which the majority reach the age of 13 or 14 (typically school years 8 or 9).
    2. The second key phase is the school year in which the majority reach the age of 15 or 16 (typically school years 10 or 11).
    3. The third key phase is the school year in which the majority of pupils reach the age of 17 or 18 (typically school years 12 or 13).
    4. The provider encounters are to be held between 1 September and 28 February if for pupils in school years 9, 11 or 13.

Chapter 3: Lifelong Learning

  1. This chapter makes changes to primary legislation to make specific provision relating to the introduction of a lifelong loan entitlement, to support reforms set out in the white paper. It makes changes to the regulation-making powers of the Secretary of State to provide student finance in order to make specific provision for funding of modules of higher education and further education courses. It also makes clear that maximum amounts in relation to any loan or payment can be provided for on a basis other than academic year. This Chapter also amends the definition of "higher education course" for the purposes of the Higher Education and Research Act 2017 ("HERA 2017") to make it clear that the regulatory regime provided for under Part 1 of HERA 2017 applies to a module of a course, where it is undertaken otherwise than as part of that course.  This would mean that modules offered by a provider which usually form part of a full course, but can be taken separately from the full course, would fall under the OfS regulatory regime.

Section 15: Support for lifelong learning

  1. This section inserts new section 28A into the Teaching and Higher Education Act 1998 ("THEA 1998") to make modifications to Chapter 1 of Part II of THEA 1998 which allows for financial provision for higher and further education.  
  2. Section 22 subsection (1) of THEA 1998 provides the Secretary of State with a wide regulation-making power to make regulations authorising or requiring him to make grants or loans for any prescribed purposes to eligible students in connection with their undertaking higher or further education courses designated by or under regulations. Section 22 subsection (2)(a) to (k) then provides a non-exhaustive list of the matters which regulations made under section 22 may provide in particular.  
  3. Section 28 provides that "higher education courses" and "further education courses" have the meaning given by regulations made under section 22. 
  4. This section inserts new section 28A after section 28 of THEA 1998. New inserted section 28A modifies sections 22, 23 and 28 of THEA 1998 as follows: 
    1. Subsection (1)(a) modifies section 22(1) of THEA 1998 to have effect as if to insert specific reference to modules of higher education and further education courses. 
    2. Subsection (1)(b) modifies subsections (2) to (3) and (4B) of section 22 of THEA 1998 so that references to "a higher education course or a further education course" have effect as if to include specific references to modules of a higher education course or further education course. Subsection (2) makes the equivalent modification to the reference in section 23(1)(b) to courses and subsection (3) makes the equivalent modifications to the references in section 28(2) to "courses". 
    3. Subsection (1)(c) modifies subsection (2) of section 22 of THEA 1998 to have effect as if to insert a new paragraph (ba) which makes specific provision for regulations made under section 22 to prescribe or provide for the determination of an overall maximum ("lifetime limit") that may be available to learners over their lifetime.  
    4. Subsection (1)(d) modifies subsection (2) of section 22 of THEA 1998 to have effect as if there were inserted new paragraph (ca), allowing regulations to provide for two or more modules to be treated as a single module for a purpose of the regulations. A module or course will be funded only if it is designated. 
    5. Subsection (1)(e) modifies section 22 of THEA 1998 to have effect that after subsection (2) there were inserted new subsections (2ZA) and (2ZB). New subsection (2ZA) enables the Secretary of State to define the meaning of "module" in relation to a higher or further education course in regulations and provides some examples of what the definition may include. New subsection (2ZB) makes clear that the Secretary of State’s powers to prescribe maximum amounts in relation to loans or payments (as provided for under section 22(2)(b) of THEA 1998) can be provided for otherwise than in relation to an academic year.  
    6. Subsection (1)(f) modifies section 22 of THEA 1998 to have effect that after subsection (2A) there were inserted new subsection (2B). This makes it clear that a lifetime limit in relation to a person provided for in subsection (2)(ba) may be amended by the Secretary of State.  
    7. Subsection (2) provides that section 23 of THEA 1998, in so far as it relates to the Secretary of State’s regulation making powers under section 22, has effect as if a reference in subsection (1)(b) to courses included a reference to modules of higher or further education courses.  
    8. Subsection (3) provides that in subsection (2) of section 28 of THEA 1998 references to courses shall include modules, in so far as it confers a power exercisable by the Secretary of State.  
  5. Subsection (2) has the effect that the references to "alternative payments" which are to be treated as inserted by new section 28A(1) will not have effect until section 86 subsection (2) of HERA 2017 come into force. 

Section 16: Lifelong learning: amendment of the Higher Education and Research Act 2017

  1. This section makes amendments to HERA 2017 to amend the definition of "higher education course" and to make other provision as to the regulation of modular study.
  2. Subsection (2) amends section 9 (the mandatory transparency condition for certain providers) which creates a duty on registered higher education providers to provide information to the OfS about offers and acceptances, completion rates and attainment. This amendment is intended to reduce the administrative burden on providers, by ensuring information sharing and/or publication requirements do not apply any more onerously in relation to modules than to full courses.
  3. Subsection (3) amends section 83 subsection (1) of HERA 2017 to substitute a new definition of higher education course to mean a course of any description mentioned in Schedule 6 to the Education Reform Act 1988, or a module of such a course (if it is not undertaken as part of such a course). 
  4. Subsection (4) further amends section 85, to clarify the two categories of higher education course for the purpose of Part 1 of HERA 2017 are full courses and modules of full courses where they are undertaken other than as part of full courses. Together with the amendments to 83(1) these clarify that for the purposes of HERA 2017 there are two categories of higher education course: a) full courses and b) modules of full courses, when taken other than as part of those courses and have the explicit consequence of applying the OfS’s regulatory powers to modular study.

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