THE CHILDREN AND FAMILIES BILL

Supplementary Memorandum prepared by the Department for Education

For the Delegated Powers and Regulatory Reform Committee

Introduction

  1. This Memorandum supplements the Memorandum submitted to the Committee in June 2013. It contains further information for the Committee on certain of the provisions in the Children and Families Bill that confer powers on the Secretary of State to make delegated legislation, in addition to the changes being made to the Bill in response to the Committee’s previous report.

Clause 6 – The Adoption and Children Act Register

  1. Clause 6 of the Bill makes amendments to the Adoption and Children Act 2002. The amendment to this clause amends section 140(7) (orders, rules and regulations) of the Adoption and Children Act 2002 to provide that delegated legislation made under the Act may make different provision for different areas as well as for different purposes.
  2. This amendment is necessary to ensure that the regulations to be made under new section 128A of the Adoption and Children Act 2002 (inserted by clause 6(4) of the Bill), which enables prospective adopters to search the register, can be piloted in certain local authority areas only.
  3. In accordance with the amendment being made to clause 6 of the Bill as a result of the Committee’s original report regulations made under section 128A will subject to the affirmative resolution procedure for the first use of the power and the negative resolution procedure for any subsequent uses.

Clause 37 – Education, health and care plans

  1. The amendments to clause 37 of the Bill enables regulations to make provision about amending and disclosing EHC plans, in addition to making them about the preparation, content and maintenance. This amendment is necessary to enable the regulations to make provision about making minor amendments to EHC plans without the need for a full review of the plan or a reassessment of the child. This ability currently exists in paragraph 2A(5) of Schedule 27 to the Education Act 1996. They also require that any amendment to the plan applies clause 33, which requires that children and young people with a plan be educated in mainstream provision other than in specified circumstances.
  2. We think it is most appropriate for the details of legislation regarding EHC plans to be in regulations, including the procedure for making minor amendments. The Government’s approach has been to include in regulations some provisions that are currently in primary legislation.This is both to allow maximum time for learning from the pathfindersand others before finalising the detail of regulations and to make it easier to respond to excellent practice as it emerges over time. It also means that everything relating to the procedure for making and amending EHC plans is in one place.
  3. The amendment also enables regulations to make provision for disclosure of EHC plans. This replicates the current power in paragraph 7 of Schedule 27 to the Education Act 1996.
  4. The government believes that the negative resolution procedure is appropriate for these additional procedural matters, as it is for the original power in clause 37. It also replicates the procedure for disclosure of EHC plans in paragraph 7 of Schedule 27 to the Education Act 1996.

Department for Education

2 October 2013