Clause 34: Disposal and changes of use of land

152.     This clause introduces Schedule 4 which inserts a new Part A1 into Schedule 22 to the 1998 Act and amends section 77 of that Act. These provisions are both concerned with the disposal, and change of use, of land by maintained schools. The modifications to Schedule 22, which relates to foundation, voluntary and foundation special schools, separate the procedures in England for the disposal of playing field land and non-playing field land.

Schedule 4: Disposals and changes of use of land

153.     Part 1 of Schedule 4 introduces changes in respect of the procedure for the disposal of non-playing field land which has been provided at public expense in England.

154.     Schedule 22 outlines the procedure to be followed by the governing body, trustees or foundation body of a foundation, voluntary or foundation special school when disposing of certain land that had been acquired or enhanced using certain public funds. The Schedule currently requires the Secretary of State's consent to the disposal of any such land by a governing body of a foundation, voluntary or foundation special school, by a foundation body, or (in some cases) by the trustees of a foundation or foundation special school. Paragraph 3 of Schedule 22 also requires the trustees of a foundation, voluntary or foundation special school, in cases not requiring the Secretary of State's consent, to inform the authority that maintains the school in question of the disposal and, depending on the status of the land, to agree a payment to the authority out of the proceeds of disposal or to undertake to use the proceeds of disposal for the purposes of that or another school.

155.      The new provisions inserted by Schedule 4 now provide that when the governing body or the trustees of a foundation, voluntary school or foundation special school, or a foundation body, intend to dispose of publicly funded land they must notify the local education authority of their intention to do so and of the use to which they intend to put the proceeds. The authority may object to such a disposal, or to the intended use of the proceeds. It may also claim some or all of the proceeds. Any objection to the disposal, or to the use of the proceeds, or any claim to some or all the proceeds by the authority which is not agreed with the school, is to be determined by the adjudicator.

156.     It will no longer be necessary for governing bodies, foundation bodies or trustees in England to apply to the Secretary of State for consent to dispose of such non-playing field land.

157.     The Secretary of State currently has power under paragraph 4 of Schedule 22 to the 1998 Act to require certain land that had been provided using public funds and that is no longer required for the purposes of a foundation, voluntary or foundation special school to be used for a new school or as the site to which an existing school is to be transferred. This power is extended, in relation to England, by paragraph A26 of Schedule 22. The categories of land which may be subject to the power are widened; as are the purposes for which the land is required. A local education authority may apply for land to be transferred to it for the purposes of any school or institution which is (or is to be) maintained or assisted by the authority; for the purposes of any of the authority's education functions (as defined by clause 121 of the Bill); or for the provision of services by or on behalf of the local authority which is that authority in the exercise of certain of their functions as described in clause 121(1)(b) to (e)). The power to determine whether or not to agree to such a transfer is transferred from the Secretary of State to the adjudicator.

158.     Part 2 of Schedule 4 amends section 77 of the 1998 Act.

159.     Section 77 of the 1998 Act requires a local authority in England, and in certain circumstances, the governing body of a maintained school or a foundation body, to obtain the Secretary of State's consent before disposing of school playing fields. Schedule 22 to the 1998 Act currently requires the governing body of a foundation, voluntary or foundation special school, or a foundation body, to obtain the Secretary of State's consent before disposing of any land, including playing fields.

160.     The requirement to obtain the Secretary of State's consent before disposing of any non-playing field land is being removed by Part 1 of Schedule 4. In order to ensure that protection is afforded to all school playing fields provided at public expense, Part 2 of Schedule 4 amends section 77 to include all disposals of school playing fields by the governing body, foundation body or trustees of a foundation, voluntary or foundation special school. In the case of trustees the land must have been provided at public expense. The restrictions in section 77(3) on changes of use of playing field land are also extended so that, in addition to local authorities, they also apply to governing bodies of maintained schools and foundation bodies and, where the land was provided at public expense, the trustees of foundation, voluntary or foundation special schools.

161.     Part 3 of Schedule 4 details a number of consequential amendments to other provisions of the 1998 Act.

Clause 35: General duties of governing body of maintained school

162.     Subsection (1) of this clause amends section 21 of the 2002 Act (general responsibility for conduct of school) to impose two new duties on the governing body of maintained schools.

163.     The first of these duties, provided by the new subsection (5) of section 21, requires the governing body of a maintained school in England and Wales to have regard to any relevant Children and Young People's Plan ("CYPP") in exercising their functions in relation to the conduct of the school.

164.     A relevant CYPP is defined (in the new subsection (7)(a) of section 21) in relation to a school in England, as a plan published by the local education authority under section 17 of the Children Act 2004 or, in relation to a local education authority that is exempt from the requirements in that section, a similar plan setting out the authority's strategic plan for their delivery of children's services. The Children and Young People's Plan Regulations (England) 2005 exempt local authorities that are classified as 'excellent' under Comprehensive Performance Assessment from the requirement to produce a statutory plan. A relevant CYPP is defined (in subsection (7)(b)) in relation to a school in Wales, as a plan published by the local education authority under section 26 of the Children Act 2004 or, in relation to a local education authority that is exempt from the requirements in that section, a similar plan setting out the authority's strategic plan for their delivery of children's services. This subsection will apply the duty to schools in authorities that choose to produce a CYPP even though they are not required to do so.

165.     The new subsection (6) of section 21 requires governing bodies of maintained schools in England, in the discharge of their functions, to have regard to any views expressed by parents of registered pupils. It will be for individual schools to determine how and when to seek the views of parents. Under the new Ofsted inspection framework introduced in September 2005 all schools will have to demonstrate that they have listened to and taken into account parental views. This subsection does not apply to governing bodies of maintained schools in Wales.

166.     Subsection (2) of this clause amends section 28 of the 2002 Act (limit on power to provide community facilities etc.) to require governing bodies to take into account the CYPP (new subsections (4A) and (4B) of section 28) and the views of parents (new subsection (4C)), in each case in providing extended services for the wider community.

Clause 36: General restriction on selection by ability

167.     This clause, which applies to both England and Wales, re-enacts the prohibition on selection on the basis of a pupil's ability in any maintained school, subject to the exceptions referred to in section 99(2) of the 1998 Act.

168.     Subsection (4) repeals section 99(1) of the 1998 Act (which is re-enacted by subsection (1) of the clause) and amends section 99(2) of the 1998 Act so that the permitted forms of selection under that section become permitted forms of selection for the purposes of subsection (1) of the clause.

Clause 37: Code for school admissions

169.     This clause makes provision for both England and Wales.

170.     It modifies sections 84 and 85 of the 1998 Act to strengthen the status of the school admissions code of practice. At present this is referred to in section 84(1) as a code of practice containing practical guidance and section 84(2) provides that it may contain guidelines. Relevant bodies, such as governing bodies of maintained schools, are required 'to have regard to' the code.

171.     Subsections (3) to (5) amend section 84(1) to (3) to strengthen the force of the code by requiring relevant bodies to act in accordance with it, and to provide that it may impose requirements and may include guidelines.

172.     Subsection (3) also amends section 84(1) so that admission forums are included within the list of bodies to whose functions the code applies.

173.     Subsection (7) inserts a definition of 'admission forum' into section 84(6).

Clause 38: Role of admission forums

174.     This clause relates to the functions of admission forums in England. It amends Chapter 1 of Part 3 of the 1998 Act to extend the role of admission forums.

175.     Subsection (3) gives admission forums the power to prepare and publish reports on matters connected with admissions to maintained schools in their area. It also enables them to request from the local education authority, neighbouring authorities, and governing bodies, any information they require to fulfil this function and places a duty on those bodies to comply with such a request.

176.     Subsection (4) enables regulations to be made in relation to the preparation and publication of reports.

177.     Subsection (5) enables regulations to be made modifying any provision of Chapter 1 of Part 3 of the 1998 Act in its application to a joint admission forum.

178.     Subsection (6) enables regulations to be made with respect to the expenses of an admission forum. These expenses will usually be defrayed by the local education authority. The regulations may set out any exceptions to this.

179.     Subsection (7) substitutes a new subsection (10) in section 89 of the 1998 Act. The effect of the amendment is to broaden the existing definition of 'appropriate body' to include admission forums in England. In consequence of this amendment, admission forums must be:

a)     notified by admission authorities of their admission arrangements following determination;

b)     notified by an admission authority of any referral it has made to the adjudicator for a variation of its admission arrangements; and

c)     notified by the relevant admission authority of the effect of any adjudicator's determination following such a referral.

180.     Subsection (8) amends section 90(1) and inserts a new subsection (11) in section 90. The effect of the amendment is to allow an admission forum in England to refer an objection about the admission arrangements of any maintained school in its area to the adjudicator.

Clause 39: Support for parental preferences

181.     This clause applies only to England. It amends section 86 of the 1998 Act to insert a new subsection (1A) to require local education authorities to provide advice and assistance to parents of children living in the area of the authority to help them in the formulation of their preference on a school for their child.

182.     Advice and assistance includes providing parents with good, easy to understand information and advice about the schools in their area, and neighbouring areas where applicable, in a form that fits the needs of the parent. This might include how the admission arrangements work and the level of priority their child will have for a place, whether their child will be entitled to school transport and how that will work if the child does not live within walking distance of the school, and whether the school has any special features that may of interest to the parent.

183.     Advice and assistance may also include the development of a cadre of Choice Advisers to provide practical support to parents most likely to need extra help to make a fully informed choice of secondary school for their child. The Government is investing £12m to support local authorities to do this by 2008.

Clause 40: Prohibition on interviews

184.     This clause applies to both England and Wales and inserts section 88A after section 88 of the 1998 Act to prohibit interviewing as part of the admission process in any maintained school.

185.     Subsection (2) disapplies subsection (1) in relation to interviews which are intended to assess suitability for a boarding place at a school with boarding accommodation.

186.     Subsection (3) makes it clear that this section does not prevent schools with permissible selective admission arrangements from conducting assessments to ascertain an applicant's aptitude.

Clause 41: Restriction on alteration of admission arrangements

187.     This clause, which relates only to admission arrangements for maintained schools in England, modifies sections 89 and 90 of the 1998 Act. It adds a subsection (1ZA) to section 89, cross-referencing it to two sections that have been added: sections 89D and 90A.

188.     Subsection (1) provides that section 89 of the 1998 Act (which requires the admission authority to decide the admission arrangements for each school year) has effect subject to the new provisions in sections 89D and 90A.

189.     Subsection (2) inserts section 89D. This provision relates to approval of proposals to establish new schools or to expand existing schools. While the admission arrangements are one of the factors considered by decision-makers in determining whether to approve a proposal, the present system would enable schools to change the arrangements the year after approval of a proposal. The clause enables regulations to be made which have the effect of "freezing" approved admission arrangements for a prescribed period, so that those considered and approved by decision-makers remain in place for a reasonable period.

190.     Regulations will set out in more detail the period for which admission arrangements must remain unchanged, and the exceptional circumstances in which admission authorities may apply to the adjudicator for variations of those arrangements within the prescribed period.

191.     Subsection (3) inserts section 90A. At present, section 90(8) of the 1998 Act makes an adjudicator's determination of an objection binding on parties to the objection for the school year to which the admission arrangements relate. This can result in admission criteria, which the adjudicator has determined are unfair, being reinstated the following year. This, in turn, can lead to repeats of earlier objections to the adjudicator. This clause has the effect that determinations by the adjudicator will generally remain effective for a prescribed number of school years. Regulations will also enable admission authorities to apply to the adjudicator for variations of those arrangements within the prescribed period if there are exceptional reasons for doing so.

Clause 42: Objections to admission arrangements

192.     This clause, which relates to admission arrangements for maintained schools in England and Wales, modifies section 90 of the 1998 Act. Section 90 makes provision for objections to such admission arrangements to be referred to the adjudicator (in relation to England) and the National Assembly (in relation to Wales). (The functions of the Secretary of State in relation to Wales were transferred to the National Assembly by the Transfer of Functions Order (SI 1999/672)).

193.     In relation to England, section 90(3) allows regulations to be made prescribing cases in which the adjudicator must refer objections to the Secretary of State. The department has no current intention to provide for any objections to be referred to the Secretary of State.

194.     Subsection (2) inserts new subsections (5A), (5B) and (5C) into section 90.

195.     Subsection (5A) gives the adjudicator or the Secretary of State (in relation to England) or the National Assembly (in relation to Wales) powers to consider any aspect of a school's admission arrangements, on referral of an objection to a school's admission arrangements.

196.     Subsections (5B) and (5C) set out the requirement for the adjudicator or Secretary of State (in relation to England) or the National Assembly (in relation to Wales) to publish a report in relation to any decision on referred admission arrangements. The report must include the decision on the objection, any decision on whether any changes should be made to the admission arrangements and the reason(s) for the decisions. The report may specify the modifications to be made to the admission arrangements.

197.      Subsection (4) substitutes a new section 90(8). It provides that the decisions of the adjudicator or Secretary of State (in relation to England) or the National Assembly (in relation to Wales) mentioned in new subsections 5B(a) and (b) are binding on the admission authority and on persons by whom an objection may be made under section 90(1) or 90(2). It also requires any changes required by the adjudicator or Secretary of State (in relation to England) or the National Assembly (in relation to Wales) to be implemented by the admission authority.

198.     Subsection (5)(a) inserts a new paragraph (ba) after section 90(9)(b). It enables regulations to be made requiring the admission authority of a maintained school in England to provide prescribed information requested by the adjudicator to assist in consideration of an objection referred to him about the school's admission arrangements.

199.     Subsection (5)(b) makes minor amendments to section 90(9) of the 1998 Act to refer to the 'report' required by subsection (5B) rather than the 'decision' under the repealed section 90(7).

200.     Subsection (6) repeals subsection (10) of section 90 of the 1998 Act. The effect of this is that the adjudicator is no longer required to refer to the Secretary of State objections concerned with admissions criteria relating to a person's religion or religious denomination.

Clause 43: Pupil banding

201.     This clause modifies sections 101 to 103 of the 1998 Act, in order to allow for additional forms of banding. All children applying for a place at a school using banding are assessed or tested and placed into a number of ability bands, as decided by the admissions authority. Under the current law, places may then be allocated to ensure that the intake is representative of all levels of ability among applicants to the school for admission in that age group. If there are more applicants within a particular band of ability than there are places, the places within that band are then allocated on the basis of the other published oversubscription criteria, not on the ranking of test results.

202.     Subsection (1) adds to section 101 a new subsection (1A) which applies only to England. It allows admission authorities of maintained schools to introduce three additional forms of banding: the first across the full ability range of children applying to any of two or more schools in a local education authority area, the second across the full ability range of the relevant age group within the local education authority area, the third across the full ability range of the relevant age group within England. It also requires that, where (in England) the admission authority is the local education

authority, it must secure the consent of the governing body before introducing such arrangements as set out in section 101(1A).

203.     Subsection (1) also amends subsections (3) and (4) of section 101 so as to remove (for England) the requirement that the adoption of banding arrangements must be a "prescribed alteration" that can only be made after publication of statutory proposals.

204.     The amendments of subsection (5) of section 101 ensure that, where schools select up to 10% of their intake by reference to their aptitude in a prescribed subject under section 102(1) of the 1998 Act, such schools are able to admit up to 10% by aptitude irrespective of any banding arrangements adopted.

205.     Subsection (2) modifies section 102(3) of the 1998 Act to ensure that its provisions (i.e. that aptitude selection is permissible when banding arrangements take place but not when any other form of selection by ability takes place) apply to all permissible forms of banding, including the new forms introduced by subsection (1A).

206.     Subsection (3) makes amendments of section 103 of the 1998 Act which are consequential on Part 2 of the Bill and on the amendments of section 101.

Clause 44: School funding

207.     This clause introduces Schedule 5 which contains provisions relating to the duties and powers of local education authorities in relation to the financing of maintained schools and the role of schools forums.

208.     Section 47A of the 1998 Act as amended by the 2005 Act imposes an obligation on local education authorities to establish schools forums and provides for the constitution and function of schools forums to be set out in regulations. Paragraph 2 amends section 47A of the 1998 Act to enable schools forums to exercise any function imposed on them by the Act (as amended here and elsewhere), and to omit the power to enable the Secretary of State or Assembly to remove a non-schools member of the forum.

209.     Section 48 and Schedule 14 of the 1998 Act place a duty on a local education authority to establish a scheme which deals with matters connected to the financing of maintained schools. All local education authorities have existing schemes. Paragraphs 3 and 5 amend the duty to establish to one that requires a local education authority to maintain such a scheme and enables regulations to be made governing the approval of revisions to such schemes. This includes arrangements under which schools forums may approve revisions with or without modifications and the circumstances under which such revisions may be submitted to the Secretary of State or National Assembly for Wales for approval. It also removes the power of the Secretary of State or Assembly to impose a scheme on a local education authority.

210.     Section 49 of the 1998 Act places a duty on local education authorities to provide the schools they maintain with a delegated budget share. Paragraph 4 amends section 49 to enable regulations to be made that require local education authorities to give all new schools budget shares from a date determined in accordance with regulations by the schools forum or the Secretary of State or Assembly.

211.     Paragraph 6 amends Schedule 15 to the 1998 Act which currently makes provision for the circumstances under which a local education authority may withdraw delegated budget responsibility from a maintained school and the process it must follow in doing so. The amendments remove the right of a governing body to appeal to the Secretary of State or Assembly against the withdrawal of their right to a delegated budget.

Clause 45: Removal of requirement to issue code of practice as to relationships between LEAs and maintained schools in England etc

212.     This clause amends section 127 of the 1998 Act to remove the requirement for the Secretary of State to issue a Code of Practice on relationships between local education authorities and schools maintained by them. The Code currently provides statutory guidance for LEAs and schools on how to work together effectively to raise standards.

213.     Section 127 will continue to apply in Wales with some amendments. Subsection (2)(d) of this clause substitutes a new paragraph (b) in section 127(1), the effect of which (taken with the removal of section 127(6) by subsection (6) of this clause) is that the Code of Practice in Wales may relate to the discharge of such functions exercisable by or behalf of the local education authority that the National Assembly for Wales may determine, rather than to a specified list of functions as at present.

PART 4: SCHOOLS CAUSING CONCERN

Clause 46: Meaning of "maintained school" and "eligible for intervention"

214.     This clause defines the expressions "maintained school" and "eligible for intervention" for the purposes of this Part of the Bill. Subsection (1) defines "maintained school" as any school in England which is a community, foundation or voluntary school, a community or foundation special school, or a maintained nursery school.

215.     Subsection (2) provides that the expression "eligible for intervention" must be read in accordance with clauses 47, 48 and 49.