Education and Inspections Bill

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Education and Inspections Bill

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
15

(4)
Subsection (5) applies to—
(a)
proposals which are published under section 18 by the governing body
of a community or voluntary controlled school and relate only to a
change of category from community or voluntary controlled school to
foundation school, together with the acquisition of a foundation or a
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relevant change in the instrument of government (or both),
(b)
proposals which are published under that section by the governing
body of a community special school and relate only to a change of
category from community special school to foundation special school,
together with the acquisition of a foundation or a relevant change in the
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instrument of government (or both), and
(c)
proposals which are published under that section by the governing
body of a foundation or foundation special school and relate only to the
acquisition of a foundation or a relevant change in the instrument of
government (or both).
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(5)
In relation to proposals to which this subsection applies, regulations under
section 19—
(a)
must provide for the proposals to be determined by the governing body
unless the local education authority exercise the right conferred on
them by regulations made by virtue of section 21(1), and
20
(b)
may not make any provision under subsection (2)(g) or (h) of section 19
enabling a person other than the local education authority to require
the proposals to be referred to the adjudicator.
21
Rights of interested bodies in relation to proposals under section 19
(1)
Any regulations under section 19 which enable any proposals falling within
25
subsection (2) which are published by the governing body of the school to
which they relate to be determined by the governing body must include
provision by virtue of subsection (2)(g) of that section enabling the local
education authority to require the proposals to be referred to the adjudicator.
(2)
Proposals fall within this section if the proposed alteration would result in a
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community, voluntary controlled or foundation school or community or
foundation special school becoming either or both of the following—
(a)
a foundation or foundation special school having a foundation
established otherwise than under SSFA 1998;
(b)
a foundation or foundation special school whose instrument of
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government provides for the majority of governors to be foundation
governors.
(3)
Regulations under section 19 may restrict the matters to which a local
education authority may have regard in deciding whether to require proposals
to be referred to the adjudicator in accordance with provision included in the
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regulations by virtue of subsection (1).
(4)
If regulations under section 19 provide for any proposals, other than proposals
to which section 20(3) or (5) applies, to be determined by a person other than
the adjudicator, the regulations must include provision by virtue of section
19(2)(h) enabling each of the following persons to require the proposals to be
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referred to the adjudicator after their initial determination by the other
person—
(a)
the Diocesan Board of Education for any diocese of the Church of
England any part of which is comprised in the area of the authority,

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
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(b)
the bishop of any diocese of the Roman Catholic Church any part of
which is comprised in the area of the authority, and
(c)
where the proposals relate to the provision of education for persons
aged 14 or over, the Learning and Skills Council for England.
(5)
If regulations under section 19 provide for any proposals published by a local
5
education authority in relation to a foundation or voluntary school or a
foundation special school to be determined by the local education authority,
the regulations must include provision by virtue of subsection (2)(h) of that
section enabling each of the following persons to require the proposals to be
referred to the adjudicator after their initial determination by the authority—
10
(a)
the governing body of the school, and
(b)
the trustees of the school.
(6)
In this section “proposals” means proposals under section 18.
22
Proposals under section 18: implementation
(1)
Regulations may make provision in connection with the implementation of—
15
(a)
proposals under section 18 which have been approved in accordance
with regulations under section 19, or
(b)
proposals under section 18 in respect of which approval in accordance
with those regulations is not required, and which the person making
the proposals has determined to implement.
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(2)
Regulations under this section may, in particular—
(a)
enable a prescribed person to determine in prescribed cases that
proposals are not to be implemented or are to be implemented with
modifications,
(b)
enable prescribed matters relating to the implementation of proposals
25
to be referred to the adjudicator in prescribed cases, and
(c)
make provision about the manner in which, and time within which,
anything required or authorised by the regulations must be done.
(3)
Regulations under this section relating to an alteration falling within
subsection (2)(a), (b) or (c) of section 17 may include provision with respect
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to—
(a)
the revision or replacement of the school’s instrument of government
and the reconstitution of its governing body,
(b)
the transfer of property, rights and liabilities (including such a transfer
to or from a foundation body or trustees),
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(c)
the transfer of staff, and
(d)
any transitional matters.
(4)
Regulations made under this section by virtue of subsection (3)(b) in relation
to an alteration falling within section 17(2)(a) may, in particular, make
provision with respect to—
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(a)
restricting the disposal by a local authority of land which is used or
held for the purposes of a school in relation to which proposals to
change category are, or may be, published under section 18, as from—
(i)
the date of publication of such proposals, or
(ii)
such other time as may be prescribed,
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(b)
restricting the taking of action by virtue of which any such land would
cease to be so used or held to any extent,

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
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(c)
the consequences of any contravention of any such restriction as is
mentioned in paragraph (a) or (b), and
(d)
conferring on any prescribed body such functions as may be prescribed
with respect to any such contravention.
(5)
Regulations made under this section by virtue of subsection (3)(b) in relation
5
to an alteration falling within section 17(2)(a) may also make provision with
respect to—
(a)
the division and apportionment of property, rights and liabilities any
part of which fall to be transferred by or under the regulations where
the property has been used or held, or the rights or liabilities have been
10
acquired or incurred, for the purposes of more than one school or for
the purposes of one or more schools and for other purposes,
(b)
excluding from transfer in certain circumstances property, rights and
liabilities which would otherwise fall to be transferred under any such
transfer,
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(c)
identifying and defining the property, rights and liabilities which fall to
be transferred,
(d)
requiring prescribed persons to enter into agreements and execute
instruments,
(e)
the resolution of disputes relating to a transfer,
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(f)
the construction of agreements,
(g)
the position of third parties affected by a transfer,
(h)
the production or delivery of documents, or the provision of
information, by a prescribed person to another prescribed person, and
(i)
enabling a certificate issued by a prescribed person to be conclusive
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evidence as to whether or not any property, rights or liabilities were
transferred by virtue of the regulations.
(6)
Regulations under this section may require any prescribed person, in
exercising functions under the regulations, to have regard to any guidance
given from time to time by the Secretary of State.
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(7)
Regulations under this section may, in particular, make provision
corresponding to that made by any provision of paragraphs 21 to 31 of
Schedule 2 (implementation of proposals for establishment or discontinuance).
(8)
A school’s change of category in pursuance of proposals published under
section 18 is not to be taken as authorising any change in the religious character
35
of the school, or the acquisition or loss of religious character.
Removal of foundation or reduction in foundation governors
23
Proposals for removal of foundation or reduction in foundation governors
(1)
This section applies to any foundation or foundation special school which—
(a)
in pursuance of proposals falling to be implemented under Schedule 2,
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has been established with a foundation or with an instrument of
government providing for the majority of governors to be foundation
governors (or both), or
(b)
in pursuance of proposals falling to be implemented under regulations
under section 22, has acquired a foundation or an instrument of
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government providing for the majority of governors to be foundation
governors (or both).

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
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(2)
The governing body of any foundation or foundation special school to which
this section applies may at any time publish proposals under this section for
either or both of the following alterations to the school—
(a)
the removal of the foundation, or
(b)
the alteration of the instrument of government in such a way that
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foundation governors will cease to constitute the majority of governors.
(3)
A prescribed proportion of the governors of a foundation or foundation special
school to which this section applies may in the prescribed manner require the
governing body of the school to publish proposals under this section for either
or both of the alterations mentioned in subsection (2).
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(4)
Subsection (3) does not require the governing body of a foundation or
foundation special school to publish proposals under this section—
(a)
at any time within a prescribed period beginning with the date on
which the most recent proposals mentioned in subsection (1)(a) or (b)
were implemented, or
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(b)
at any time within a prescribed period beginning with the date on
which previous proposals published under this section in pursuance of
a requirement under subsection (3) were rejected by the governing
body in accordance with regulations under section 24.
(5)
In this section “foundation” means a foundation established otherwise than
20
under SSFA 1998.
24
Proposals under section 23: procedure
(1)
Regulations may make provision about the publication and determination of
proposals under section 23.
(2)
The provision that may be made includes provision—
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(a)
about the information to be included in, or provided in relation to, the
proposals;
(b)
about consultation on the proposals;
(c)
about the manner in which proposals are to be published under section
23;
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(d)
for the making of objections to or comments on the proposals;
(e)
for the withdrawal of proposals in prescribed cases;
(f)
for the consideration of the proposals by the governing body;
(g)
enabling the governing body to approve or reject the proposals;
(h)
enabling the governing body to reject any proposals published in
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pursuance of a requirement under section 23(3) (“required proposals”)
only by a decision made with the support of a prescribed proportion of
the governors;
(i)
for the approval of required proposals given in the prescribed manner
by a prescribed proportion of the governors to be treated as approval
40
by the governing body;
(j)
for the approval of proposals either without modifications or in
prescribed cases with modifications of a prescribed kind;
(k)
as to the manner in which, and time within which, anything authorised
or required by the regulations must be done.
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(3)
Regulations under this section may in prescribed cases enable any matter
relating to any payment which might be required to be made by virtue of

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
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subsection (3) or (4) of section 25 if proposals were approved to be referred to
the adjudicator for a provisional determination before the proposals are
determined.
(4)
Regulations under this section may req uire any prescribed person, in
exercising functions under the regulations, to have regard to any guidance
5
given from time to time by the Secretary of State.
25
Proposals under section 23: implementation
(1)
Regulations may make provision in connection with the implementation of
proposals under section 23 which have been approved in accordance with
regulations under section 24.
10
(2)
Regulations under this section may, in particular—
(a)
make provision for the revision or replacement of the school’s
instrument of government and the reconstitution of its governing body,
(b)
make provision for the transfer of property, rights and liabilities,
(c)
make provision about the manner in which, and time within which,
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anything required or authorised by the regulations must be done.
(3)
Where—
(a)
any land forming part of the school premises (“the excluded land”) is
not transferred to the governing body, and
(b)
the governing body, a local education authority or a prescribed person
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has incurred capital expenditure in relation to the excluded land or in
relation to other land the proceeds of the disposal of which were used
to acquire or enhance the value of the excluded land,

regulations under this section may authorise or require the foundation to pay
any part of the value of the excluded land to the governing body, the local
25
education authority or a prescribed person.
(4)
Where—
(a)
any land forming part of the school premises (“the transferred land”) is
transferred to the governing body, and
(b)
the foundation has incurred capital expenditure in relation to the
30
transferred land or in relation to other land the proceeds of the disposal
of which were used to acquire or enhance the value of the transferred
land,

regulations under this section may authorise or require the governing body to
pay any part of the value of the transferred land to the foundation.
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(5)
Regulations under this section may—
(a)
enable any question arising by virtue of subsection (3) or (4) to be
determined by agreement or to be referred to the adjudicator for
determination, and
(b)
provide for the making of representations to the adjudicator.
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(6)
Regulations under this section may require any prescribed person, in
exercising functions under the regulations, to have regard to any guidance
given from time to time by the Secretary of State.
(7)
In this section “foundation” means a foundation established otherwise than
under SSFA 1998.
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