DD2282 Legal costs - delegation of AEB functions to the Mayor

London, and seven Mayoral Combined Authorities, are expecting to take on responsibility for the Adult Education Budget (AEB) in their respective areas from the 2019/20 Academic Year (1 August 2019) subject to a formal transfer of functions from the Secretary of State for Education.

The principal purpose of the AEB is to engage adults and provide the skills and learning they need to equip them for work, an apprenticeship or further learning. It also enables more tailored programmes of learning to be made available, which do not need to include a qualification, to help those furthest from learning or the workplace.

In support of the transfer of these powers, the Mayor must satisfy the Secretary of State that the functions will be implemented and delivered effectively and put in place the necessary processes to deliver a successful programme of activity.

When the statutory functions are formally delegated to the Mayor (expected in early 2019), he will be required to take all AEB related decisions personally . In advance of this, all AEB decisions are being treated as though they are a matter reserved by law and for the personal exercise of the Mayor only under the Mayoral Decision-Making in the Greater London Authority protocol.

MD2255 - Devolution of the Adult Education Budget to the Mayor provides further information on the Mayor’s decision to accept the AEB functions, subject to the final arrangements being confirmed by the Secretary of State for Education.

Given this is a new delivery area for the Mayor, with a circa £311m annual budget involving the discharge of sector specific statutory functions, specialist legal advice is required. Eversheds Sutherland have been engaged (via TfL’s legal panel) to provide these services given their expertise in educational law and ability to advise on matters including procurement of delivery providers and contracts and grant arrangements.

To support this process, external legal advice has and continues to be sought on a range of matters and this Director Decision seeks approval for expenditure £150,000 on the same.

Eversheds Sutherland are working and will continue to work with the GLA and TfL legal to provide a range of specialist legal advice required to enable the GLA’s informed consideration, preparation for the delegation to it, and its subsequent implementation and delivery of a programme for the delivery of the Adult Education Budget (AEB) functions concerned.

Given that details of the delegation continue to evolve so does the scope, nature and volume of legal advice and so it is not possible to set a fixed price for legal services. Officers are minded at present to allocate £150,000 for such advice although in the event that further expenditure is required in this regard further approvals will be sought.

TfL legal are separately supporting all work related to the statutory delegation of powers.

This DD deals solely with the legal costs associated with the delegation of certain educational functions from HM Government to the Mayor. The Public Sector Equality Duty under section 149 of the Equality Act 2010 will be relevant to the exercise of any delegated functions, but is not considered relevant for the purposes of this decision.

Eversheds Sutherland were appointed, via the existing Transport for London (TfL) Legal panel as they demonstrated a particular expertise in educational law. Any legal advice provided by them seeks to mitigate all legal risks for the overall AEB Programme, particularly on key issues such as our procurement approach and contract/grant management.

The estimated costs of up to £150,000 for the proposed legal services will be funded from the Adult Education Implementation budget for 2018-19 held within the Skills & Employment Unit. If further advice beyond the initial budget resources allocated is required, this will be subject to further approval via the Authority’s decision-making process.

The decisions requested of the Director concern preparation for the exercise of powers proposed to be delegated to the Mayor by the Secretary of State under section 39A of the Greater London Authority Act 1999 (GLA Act). Under section 34 of the GLA Act, the GLA may do anything which is calculated to facilitate, or is conducive or incidental to, the exercise of any functions of the GLA.

In taking the decision requested, the Director must have due regard to the Public Sector Equality Duty; namely the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Equality Act 2010, and to advance equality of opportunity and foster good relations between persons who share a relevant protected characteristic (race, disability, sex, age, sexual orientation, religion or belief, pregnancy and maternity and gender reassignment) and persons who do not share it (section 149 of the Equality Act 2010). To this end, the Director should have particular regard to section 3 (above) of this report.

The agreement between the GLA and Eversheds Sutherland will be monitored by TfL Legal and the GLA to ensure any advice sought is reasonable and proportionate. As noted at section 2.3 above whilst officers are minded to allocate £150,000 for legal costs at this point the project and need for legal advice continues to evolve. The need for additional expenditure in this regard is therefore, not unlikely. Approval for such additional expenditure will be sought by way of further Decisions.