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Education briefing - The Skills and Post-16 Education Bill – what does it mean for further education institutions?

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On 18 May the Government published the Skills and Post-16 Education Bill, following on from January’s White Paper – Skills for Jobs: Lifelong Learning for Opportunity and Growth.

Our briefing on that White Paper is available here.

So now that the Bill has been published what is in it?

The Bill is divided into a number of chapters:

  • education and training for local needs
  • technical education qualifications
  • lifelong learning
  • quality of provision
  • regulation of post-16 education or training providers
  • education administration and administration of further education bodies

Education and training for local needs

This contains the legislation in relation to local skills improvement plans (LSIP) and reflects the Government’s plans to put employers at the heart of post-16 skills. The provisions apply to “a relevant provider” – this is one that provides post-16 technical education or training that is material to a specified area. Education or training is “material” to a specified area if it could reasonably be regarded as material or potentially material to the skills, capabilities or expertise that are, or may in the future be, required by employers operating within the specified area, having regard to all the circumstances and any guidance published by the Secretary of State.

Where there is already an approved LSIP for the area (ie one that has been approved and published by the Secretary of State), the relevant provider must co-operate with the employer representative body for that area to assist the body to keep the plan under review and replace it where appropriate. The provider must also have regard to the plan in making decisions in relation to the provision of post-16 technical education or training that may be relevant to the skills, capabilities or expertise that are, or may in the future be, required in the area.

If, however, there is no approved LSIP for the area, the relevant provider must co-operate with the employer representative body for that area to assist it in, developing one for submission to the Secretary of State for approval and publication.

The Bill also amends the Further and Higher Education Act 1992 by requiring the governing body of a further education institution in England to review, from time to time, how well the education or training provided by the institution meets local needs, and, in the light of that review, to consider what action the institution might take (alone or in conjunction with action taken by one or more other educational institutions) in order to meet those needs better. In carrying out its review, the governing body must have regard to any guidance published by the Secretary of State and publish the review on its website.

There could have been a risk that implementation of these provisions could arguably have changed the mission of colleges and even their charitable objects. But by drafting these provisions as statutory obligations which colleges must follow, the risk here should be minimal provided that the provisions are sensibly enforced.

The obligations in this section are not to absolutely comply with an LSIP. The obligations are to “have regard” to it and to work with employers to develop it. This should allow some leeway for colleges to choose not to follow every aspect of an LSIP, provided that any such decision is properly reasoned. The risk here though would be the intervention rights which the FE Commissioner now has into colleges which are not meeting the needs of their area (see below).

Technical education qualifications

This strengthens the functions of the Institute for Apprenticeships and Technical Education by requiring it to keep under review the education and training within its remit, and the effect that the exercise of the its functions has had, or might have, on the range and availability of that education and training.

It also:

  • gives the Institute additional powers to approve technical education qualifications
  • gives it the ability to provide advice and assistance, or take other steps for the purpose of enabling approved technical education qualifications to be made available to be obtained  by persons outside England
  • requires it and Ofqual to co-operate with one another in the exercise of their respective functions relating to technical education qualifications and to provide each other with assistance
  • takes 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.

This section is a good demonstration of the Government’s stated objective of putting technical qualifications at the heart of the education system.

Lifelong learning

This proposes changes to existing legislation to make specific provision relating to the introduction of a Lifelong Loan Entitlement which will give individuals access to the equivalent of up to four years’ worth of student loans for level 4-6 qualifications that they can use flexibly across their lifetime, at colleges as well as universities.

The White Paper stated that this would make it easier for adults and young people to study more flexibly, allowing them to space out their studies, transfer credits between institutions, and partake in more part-time study. For example, the Bill provides that regulations may prescribe the meaning of “module” in relation to a higher education course or further education course.

The intention is that this new system will commence in 2025.

The extension of loans to more further education courses and the modularisation of further and higher education are again signs of a Government which is seeking to strengthen technical education in comparison to academic programmes.

Quality of provision

There are two elements to this section.

The first is to give the Secretary of State the power to make regulations for the purpose of securing or improving the quality of courses of initial teacher training for further education provided by educational institutions in England.

These regulations may (among other things) make provision for: accrediting an institution and courses; prohibiting the provision of such specified courses by an institution; setting conditions that must be complied with by an institution; and requiring the governing body of an institution that provides such specified courses to have regard to guidance issued by the Secretary of State.

The second element sets out the ability of the Office for Students (OfS) to assess the quality of higher education provided by registered higher education providers in England (including therefore colleges registered with the OfS) to specifically state that the factors that may be taken into account include the student outcomes of the institution. In addition it provides that:

  • student outcomes can be measured by any means that the OfS considers appropriate, including course continuation rates, completion rates, and progression of students to further study or employment;
  • the OfS may publish minimum levels for particular measures of student outcomes; and
  • the OfS is not required to determine and publish different levels to reflect differences in student characteristics, types of institution, subjects or courses, or any other such factor.

It is telling that, for an FE focussed Bill, the only HE specific provisions are intended to make HE delivery more outcomes focussed.

Regulation of post-16 education or training providers

The first section of this concerns funding arrangements with post-16 education or training providers. The Bill gives the Secretary of State the power to make regulations in relation to the keeping of a list of certain post-16 education or training providers which meet specified conditions. In particular this will relate to independent training providers.

Relevant funding authorities (including devolved ones) will not be able to enter into funding arrangements or allow sub-contracting with a relevant provider who is not on the list and such funding arrangements and sub-contracts must allow for termination should a provider cease to be on the list.

This appears to be a wider and more closely regulated version of the Register of Training Organisations. It seems likely to be closer in style to the Office for Students’ own register than previous FE focussed registers. With a focus on learner protection and clear concerns about provider failure, it is obvious that this is a market which concerns Government. It will be interesting to see what the entry requirements are for the new list and how they differ from existing checks.

The second section deals with the Government’s aim of strengthening the system of accountability by extending the existing circumstances where the Secretary of State can intervene in colleges to include where they are satisfied that the education or training provided by the institution does not adequately meet local needs. In coming to this decision the Secretary of State must take into account any approved LSIP that applied to the institution when the education or training was provided. This could be the most controversial element of the Bill, depending on how it is implemented. Colleges are not used to being told what provision they must deliver. Intervention by the Secretary of State purely because of the type of delivery carried out by a college would be a shock to the system. It could also potentially raise questions as to whether that college could continue to be classified as a private body for ONS purposes.

The Bill clarifies the power to make a direction requiring the governing body to transfer property, rights or liabilities of a college and to consult the Competition and Markets Authority and may give financial assistance (by way of grant, loan, guarantee or any other form) to any person in connection with such a direction. These are powers which the Secretary of State arguably already had, but had chosen not to use. The very fact that the Bill clarifies this arguably shows that: (1) any past failure to use these powers may have been due to questions over an ability to do so; and (2) if Government feels the need to make certain that it has these powers, then it clearly thinks that it may use them in the future. An intervention regime in which colleges are forced to merge or take other action at the request of the Secretary of State would again be a significant shift in the sector.

Education administration and administration of further education bodies

This section is another one in which rights which the Secretary of State already probably had are put beyond doubt. These rights relate to transfer schemes and Company Voluntary Arrangements in a situation where a college is insolvent. So again, whilst these sections may not change the law, they clearly show that the Secretary of State still considers college insolvency to be possible in the future.

What is not in the Bill

Many elements of the White Paper are not reflected in the Bill at all, such as changes to college governance and changes to further education funding. This is likely to be positive for the sector, as legislation for legislation’s sake would only add to the burden on colleges. However, it does mean that we must wait for funding and policy changes to see what the future holds.