Education and Inspections Bill

House of Lords

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
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Alterations to schools
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Alterations that may be made under section 19
(1)
Regulations may prescribe alterations to maintained schools that may be
implemented in pursuance of proposals published under section 19.
(2)
The prescribed alterations must include any alteration that involves one or
5
more of the following—
(a)
in the case of a school falling within any of the categories set out in
section 20(1) of SSFA 1998, any change in the category within which the
school falls (other than a change prevented by subsection (4)(c) to (f) of
this section),
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(b)
the acquisition by a foundation or foundation special school of a
foundation established otherwise than under SSFA 1998, and
(c)
in the case of a school whose instrument of government does not
provide for a majority of the governing body to be foundation
governors, any change in the instrument of government which results
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in the majority of governors being foundation governors.
(3)
The prescribed alterations may include other alterations of any nature (other
than those prevented by subsection (4)).
(4)
None of the following alterations may be made to a maintained school—
(a)
any change in the religious character of the school,
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(b)
any change whereby the school would acquire or lose a religious
character,
(c)
any change of category from foundation or voluntary school to
community school,
(d)
any change of category from foundation special school to community
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special school,
(e)
any change of category from mainstream school to community or
foundation special school or from community or foundation special
school to mainstream school,
(f)
any change from maintained nursery school to any other kind of
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maintained school, or from any other kind of maintained school to
maintained nursery school.
(5)
In subsection (4)(e) “mainstream school” means community, foundation or
voluntary school.
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Publication of proposals for alteration of school
35
(1)
Where—
(a)
the local education authority propose to make a prescribed alteration to
a maintained school, and
(b)
the prescribed alteration is one that under subsection (2) is capable of
being proposed by a local education authority,
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the authority must publish their proposals under this section.
(2)
A prescribed alteration is capable of being proposed by a local education
authority if—

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
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(a)
in the case of a community school, a community special school or a
maintained nursery school, it is an alteration designated by regulations
as one capable of being proposed by the local education authority, and
(b)
in the case of a foundation or voluntary school or a foundation special
school, it consists of any one or more of the following—
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(i)
an enlargement of the premises,
(ii)
the establishment or discontinuance of educational provision
for pupils with special educational needs, and
(iii)
the establishment of educational provision suitable to the
requirements of pupils over compulsory school age.
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(3)
Where—
(a)
the governing body of a maintained school propose to make a
prescribed alteration to the school, and
(b)
in the case of a community school, a community special school or a
maintained nursery school, the prescribed alteration is designated by
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regulations under this subsection as one capable of being proposed by
the governing body,

the governing body must publish their proposals under this section.
(4)
If at any time the governing body of a voluntary aided school are unable or
unwilling to carry out their obligations under Schedule 3 to SSFA 1998
20
(funding of foundation, voluntary and foundation special schools), they must
publish proposals under this section for the school to become either a
voluntary controlled school or a foundation school, as the governing body may
determine.
(5)
In this section “prescribed alteration”, in relation to a maintained school, means
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an alteration prescribed under section 18.
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Proposals under section 19: procedure
(1)
Regulations may make provision about the publication and determination of
proposals under section 19 (“proposals”).
(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
19;
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(d)
for the making of objections to or comments on the proposals;
(e)
requiring the proposals to be considered with related proposals
published under section 19 or any other enactment;
(f)
for the consideration and determination of the proposals by a
prescribed person (who may be the person who published the
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proposals);
(g)
for the referral of proposals to the adjudicator in prescribed cases for
consideration and determination by him (instead of by a person
prescribed by virtue of paragraph (f));
(h)
for the referral of proposals to the adjudicator, at the request of a
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prescribed person, after their initial determination by a person other
than the adjudicator;
(i)
for the approval of proposals with or without modification;

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
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(j)
for the making in prescribed cases of a conditional approval;
(k)
for the withdrawal of proposals;
(l)
as to the manner in which, and time within which, anything required
or authorised by the regulations must be done.
(3)
The regulations may confer functions on the local education authority, on any
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other local education authority affected by the proposals, on the governing
body of the school concerned and on the adjudicator.
(4)
Regulations made by virtue of subsection (2)(g) may enable the Secretary of
State by direction to require proposals to be referred to the adjudicator.
(5)
In relation to any proposals for a school to cease to be an establishment which
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admits pupils of one sex only, regulations under this section may enable the
local education authority or the adjudicator to make a transitional exemption
order for the purposes of section 27 of the Sex Discrimination Act 1975 (c. 65)
(exception for single-sex establishments turning co-educational), and to vary
or revoke any order so made.
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(6)
The regulations may require any person 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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Right of governing body to determine own foundation proposals
(1)
Subsection (3) applies to proposals which are published under section 19 by the
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governing body of a community, voluntary controlled or community special
school and relate only to—
(a)
a change of category from community or voluntary controlled school to
foundation school, without the acquisition of a foundation or a relevant
change in the instrument of government, or
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(b)
a change of category from community special school to foundation
special school, without the acquisition of a foundation or a relevant
change in the instrument of government.
(2)
For the purposes of this section a “relevant change” in the instrument of
government of a school is a change which results in the majority of governors
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being foundation governors.
(3)
In relation to proposals to which this subsection applies, regulations under
section 20—
(a)
must provide for the proposals to be determined by the governing
body, and
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(b)
may not make any provision under subsection (2)(g) or (h) of that
section enabling the proposals to be referred to the adjudicator.
(4)
Subsection (5) applies to—
(a)
proposals which are published under section 19 by the governing body
of a community or voluntary controlled school and relate only to a
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change of category from community or voluntary controlled school to
foundation school, together with the acquisition of a foundation or a
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
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category from community special school to foundation special school,

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
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together with the acquisition of a foundation or a relevant change in the
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
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government (or both).
(5)
In relation to proposals to which this subsection applies, regulations under
section 20—
(a)
must provide for the proposals to be determined by the governing body
unless the local education authority exercise the right conferred on
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them by regulations made by virtue of section 22(1), and
(b)
may not make any provision under subsection (2)(g) or (h) of section 20
enabling a person other than the local education authority to require
the proposals to be referred to the adjudicator.
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Rights of interested bodies in relation to proposals under section 20
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(1)
Any regulations under section 20 which enable any proposals falling within
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.
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(2)
Proposals fall within this section if the proposed alteration would result in a
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;
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(b)
a foundation or foundation special school whose instrument of
government provides for the majority of governors to be foundation
governors.
(3)
Regulations under section 20 may restrict the matters to which a local
education authority may have regard in deciding whether to require proposals
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to be referred to the adjudicator in accordance with provision included in the
regulations by virtue of subsection (1).
(4)
If regulations under section 20 provide for any proposals, other than proposals
to which section 21(3) or (5) applies, to be determined by a person other than
the adjudicator, the regulations must include provision by virtue of section
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20(2)(h) enabling each of the following persons to require the proposals to be
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,
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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 20 provide for any proposals published by a local
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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

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
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section enabling each of the following persons to require the proposals to be
referred to the adjudicator after their initial determination by the authority—
(a)
the governing body of the school, and
(b)
the trustees of the school.
(6)
In this section “proposals” means proposals under section 19.
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Proposals under section 19: implementation
(1)
Regulations may make provision in connection with the implementation of—
(a)
proposals under section 19 which have been approved in accordance
with regulations under section 20, or
(b)
proposals under section 19 in respect of which approval in accordance
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with those regulations is not required, and which the person making
the proposals has determined to implement.
(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
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modifications,
(b)
enable prescribed matters relating to the implementation of proposals
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.
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(3)
Regulations under this section relating to an alteration falling within
subsection (2)(a), (b) or (c) of section 18 may include provision with respect
to—
(a)
the revision or replacement of the school’s instrument of government
and the reconstitution of its governing body,
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(b)
the transfer of property, rights and liabilities (including such a transfer
to or from a foundation body or trustees),
(c)
the transfer of staff, and
(d)
any transitional matters.
(4)
Regulations made under this section by virtue of subsection (3)(b) in relation
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to an alteration falling within section 18(2)(a) may, in particular, make
provision with respect to—
(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 19, as from—
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(i)
the date of publication of such proposals, or
(ii)
such other time as may be prescribed,
(b)
restricting the taking of action by virtue of which any such land would
cease to be so used or held to any extent,
(c)
the consequences of any contravention of any such restriction as is
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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
to an alteration falling within section 18(2)(a) may also make provision with
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respect to—

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
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(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
acquired or incurred, for the purposes of more than one school or for
the purposes of one or more schools and for other purposes,
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(b)
excluding from transfer in certain circumstances property, rights and
liabilities which would otherwise fall to be transferred under any such
transfer,
(c)
identifying and defining the property, rights and liabilities which fall to
be transferred,
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(d)
requiring prescribed persons to enter into agreements and execute
instruments,
(e)
the resolution of disputes relating to a transfer,
(f)
the construction of agreements,
(g)
the position of third parties affected by a transfer,
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(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
evidence as to whether or not any property, rights or liabilities were
transferred by virtue of the regulations.
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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)
Regulations under this section may, in particular, make provision
corresponding to that made by any provision of paragraphs 21 to 31 of
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Schedule 2 (implementation of proposals for establishment or discontinuance).
(8)
A school’s change of category in pursuance of proposals published under
section 19 is not to be taken as authorising any change in the religious character
of the school, or the acquisition or loss of religious character.
Removal of foundation or reduction in foundation governors
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24
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,
has been established with a foundation or with an instrument of
government providing for the majority of governors to be foundation
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governors (or both), or
(b)
in pursuance of proposals falling to be implemented under regulations
under section 23, has acquired a foundation or an instrument of
government providing for the majority of governors to be foundation
governors (or both).
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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.

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(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).
(4)
Subsection (3) does not require the governing body of a foundation or
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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
(b)
at any time within a prescribed period beginning with the date on
10
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 25.
(5)
In this section “foundation” means a foundation established otherwise than
under SSFA 1998.
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25
Proposals under section 24: procedure
(1)
Regulations may make provision about the publication and determination of
proposals under section 24.
(2)
The provision that may be made includes provision—
(a)
about the information to be included in, or provided in relation to, the
20
proposals;
(b)
about consultation on the proposals;
(c)
about the manner in which proposals are to be published under section
24;
(d)
for the making of objections to or comments on the proposals;
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(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
pursuance of a requirement under section 24(3) (“required proposals”)
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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
by the governing body;
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(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.
(3)
Regulations under this section may in prescribed cases enable any matter
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relating to any payment which might be required to be made by virtue of
subsection (3) or (4) of section 26 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
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exercising functions under the regulations, to have regard to any guidance
given from time to time by the Secretary of State.