Adult Education

February 11th, 2019 by James Goudie KC

From August 2019, some functions which relate to adult education, and the associated adult education budget, will be devolved to 6 Mayoral Combined Authorities (“MCAs”), and delegated to the Mayor of London (“MoL”). The Secretary of State for Education (“the SoS”) has entered into a Memorandum of Understanding (“MoU”) with the MCAs, and a separate MoU with the MoL.  Both MoUs relate to functions set out in the Apprenticeships, Skills, Children and Learning Act 2009 (“ASCAL 2009”), and exercised through the Education and Skills Funding Agency (“the ESFA”). In the case of the MoL the (revocable) delegated functions are exercisable by him only and are not capable of further delegation. The functions are to be carried out in accordance with the Greater London Authority Act 1999.

In the case of the MCAs, the transfer is by way of Orders made in respect of each MCA under the Local Democracy, Economic Development and Construction Act 2009.  The provisions of the MoU include:-

 “1.3 This MoU sets out jointly agreed working arrangements between the Parties which relate to this new legal framework.  It builds on the collaborative working relationship between the Parties, which were established as part of the transitional year, 2018/19 arrangements, and set out in an MoU for that year.

1.4 Each Party is committed to agreeing an approach and future relationship that will ensure national and local priorities for residents funded by the AEB are delivered in the most effective way possible and that the wider context of post-16 learning and skills provision funded by the Parties is considered.  This MoU sets out an agreed approach to relevant matters following devolution of the adult education functions.”

“2.3 The following conditions are set on the exercise of the transferred functions:

• the CA must adopt rules of eligibility for awards by an institution to which it makes grants, loans or other payments under section 100 of ASCAL 2009 in accordance with any direction given by the Secretary of State; and

• in exercising the transferred functions, the CA must have regard to guidance issued by the Secretary of State (as amended from time to time or replaced by a subsequent document).  The CA will give effect to the guidance within the context of local strategic priorities and circumstances.”

“2.5 This MoU sets out agreed ways of working between the Parties to support the carrying out of the transferred functions by the CA, in addition to matters set out in the statutory guidance. The Department acknowledges that in order for the CA to carry out the functions within its area, it must receive funds from the Secretary of State each year.”

“3.1 The purpose of this MoU is to establish ways of working and an agreed approach to the discharge of the respective responsibilities of the Parties in relation to devolution of the adult education functions. …

4.1 The Key Objective is to achieve effective engagement between the Parties, including coordinated local engagement with providers of adult further education (‘Providers’).”

Section 5 of the MCA MoU sets out principles of collaboration and the parties’responsibilities.  Section 6 sets out ways of working, with reference to financial resources, funding decisions, insolvency, lender protection, quality/intervention, fund management, data, commissioning (including, where appropriate, in the case of contracts with e.g. providers, complying with public procurement requirements), skills planning/priorities, and governance.

Section 7 relates to costs and liabilities; Section 8 to confidentiality; Section 9 to data protection and record keeping; Section 10 to assurance and audit; Section 11 to duration; Section 12 to review and amendments; Section 13 to communications; and Section 14 to “escalation procedure”.

The MoU concludes:-

“15.1 This MoU does not confer any rights on any third party. Nothing in this MoU shall be interpreted as limiting, superseding, or otherwise affecting either Party’s normal operations in carrying out its statutory, regulatory or other duties.  This MoU does not limit or restrict either Party from participating in similar activities or arrangements with other entities.

15.2 Nothing in this MoU shall create a partnership or joint venture between the Parties, nor shall this MoU constitute one Party as the agent of another Party nor the employees, contractors or consultants of one Party as those of another Party.  No Party shall have authority to enter into any contract, warranty or representation as to any matter on behalf of another Party.  No Party shall be bound by the acts or conduct of another Party.

16.1 This MoU is not intended to be legally binding and no legal obligations or legal rights shall arise between the Parties from this MoU.  The Parties enter into the MoU intending to honour it.

17.1 This MoU shall be governed by and construed in accordance with English law.”
Appendix A to the MoU sets out the Nolan principles. Appendix B relates to allocations and payments.

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