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MD2384 Legal costs - delegation of Adult Education Budget functions

Key information

Decision type: Mayor

Reference code: MD2384

Date signed:

Decision by: Sadiq Khan, Mayor of London

Executive summary

In support of the delegation of certain Adult Education Budget (AEB) functions to the Mayor at the start of the 2019/20 academic year, the Mayor must put in place the necessary processes to deliver a successful programme of activity and satisfy the Secretary of State that the functions will be implemented and delivered effectively.

Under cover of DD2282, up to £150,000 on associated legal costs was approved. Implementing AEB functions requires a substantial procurement exercise in which further specialist external legal advice is required. This Mayoral Decision seeks approval for further expenditure of up to £100,000 for legal advice relating to AEB activity. This will take the total allowance of expenditure up to £250,000 for external legal services. We expect this expenditure will be predominantly related to AEB procurement costs. It is possible that there may be other legal costs associated with implementing the AEB; it is anticipated that the expenditure proposed in this Mayoral Decision will be sufficient to cover any additional costs.

Decision

That the Mayor approves:

Further expenditure of £100,000, allowing a total of up to £250,000 on specialist legal services from Eversheds Sutherland in preparation for the Secretary of State for Education delegating Adult Education Budget (AEB) statutory functions to the Mayor of London from the 2019/20 Academic Year onwards.

Part 1: Non-confidential facts and advice

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) onwards, 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 that 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.

This Mayoral Decision seeks approval for further expenditure of £100,000 for specialist legal advice from Eversheds Sutherland, taking the total expenditure up to £250,000.

Eversheds Sutherland have been engaged (via Transport for London’s [TfL] legal panel, using the standard legal panel terms and conditions) owing to their expertise in educational law and ability to advise on matters including procurement of delivery providers and contracts and grant arrangements. Their advice will support the GLA’s preparation for delegation, and its subsequent implementation of a programme for the delivery of the Adult Education Budget (AEB) functions concerned.

As details of the delegation continue to evolve, so do the scope, nature and volume of legal advice required, meaning it is not possible to set a fixed price for legal services. Officers anticipate that the expenditure requested in this Mayoral Decision will enable the GLA to sufficiently cover all further legal costs associated with AEB implementation.

TfL Legal is separately supporting all work related to the statutory delegation of powers.

Under s149 of the Equality Act 2010 (the Equality Act), as a public authority the Mayor must have due regard to the need to eliminate discrimination, harassment and victimisation, and any conduct that is prohibited by or under the Equality Act; and to advance equality of opportunity and foster good relations between people who share a relevant protected characteristic and those who do not (the Public Sector Equality Duty “PSED”).

Officers have considered this Mayoral Decision having due regard to the PSED, and as it deals solely with the legal costs associated with the delegation of certain educational functions from HM Government to the Mayor, officers have concluded that there are no additional measures which ought to be taken to discharge their duties. That said, the PSED will be relevant to the exercise of any delegated functions.

Eversheds Sutherland were appointed, via the existing TfL Legal panel as they demonstrated an expertise in educational law. Any legal advice provided by them is sought by the GLA to mitigate legal risks for the overall AEB Programme, particularly on key issues such as our procurement approach and contract/grant management.

DD2282 (October 2018) approved expenditure of up to £150,000 for legal costs incurred in this process. Officers are seeking approval for further expenditure of £100,000 to Eversheds Sutherland by way of this Mayoral Decision due to the volume of work necessary to prepare compliant procurement documents in accordance with the Public Contract Regulations 2015.

DD2282 stated that there was an expectation that the need for legal advice would be likely to continue to evolve, which would require additional expenditure.

The additional expenditure of up to £100,000 on specialist legal services with Eversheds Sutherland will be funded from the AEB implementation budget for 2018-19 and 2019-20 held within the Skills & Employment Unit, thus bringing the total value of permitted legal costs with Eversheds for the AEB programme to £250,000.

The foregoing sections of this report indicate that:

(a) the decisions requested of the Mayor concern the exercise of the GLA’s general powers under the Greater London Authority Act 1999 (GLA Act), falling within the GLA’s statutory powers to do such things considered to further or which are facilitative of, conducive or incidental to the promotion of economic development and wealth creation, social development or the promotion of the improvement of the environment in Greater London; and

(b) in formulating the proposals in respect of which a decision is sought officers have complied with the Authority’s related statutory duties to:

- pay due regard to the principle that there should be equality of opportunity for all people;
- consider how the proposals will promote the improvement of health of persons, health inequalities between persons and to contribute towards the achievement of sustainable development in the United Kingdom; and
- consult with appropriate bodies.

Section 39A of the GLA Act permits delegation of functions by the Secretary of State to the Mayor, but excludes the operation of section 38 of the GLA Act – under which the Mayor may normally delegate functions to, for example, employees of the GLA – in relation to functions delegated by the Secretary of State.

In taking the decisions requested, the Mayor 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 between persons who share a relevant protected characteristic (age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation) and those who do not share it, and to foster good relations between persons who share a relevant protected characteristic and persons who do not share it (section 149 of the Equality Act 2010). To this end, the Mayor should have particular regard to section 3 (above) of this report.

Officers have indicated in section 2.1 that appropriate contract documentation was put in place and executed by the proposed service provider and the GLA, and officers should ensure that the scope of service is extended (if considered necessary) before the commencement of the required services.

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. If further expenditure is required, approval will be sought by way of a further Mayoral Decision.

Signed decision document

MD2384 Legal costs - delegation of AEB functions to the Mayor

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