House of Lords portcullis
House of Lords
Session 2005 - 06
Internet Publications
Other Bills before Parliament

Education and Inspections Bill


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

13

 

Alterations to schools

18      

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),

10

(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

15

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,

20

(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

25

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

30

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.

19      

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,

40

   

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

14

 

(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—

5

(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.

10

(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

15

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

25

an alteration prescribed under section 18.

20      

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—

30

(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;

35

(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

40

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

45

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

15

 

(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

5

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

10

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.

15

(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.

21      

Right of governing body to determine own foundation proposals

(1)   

Subsection (3) applies to proposals which are published under section 19 by the

20

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

25

(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

30

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

35

(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

40

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

45

category from community special school to foundation special school,

 
 

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

16

 

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

5

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

10

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.

22      

Rights of interested bodies in relation to proposals under section 20

15

(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.

20

(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;

25

(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

30

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

35

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,

40

(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

45

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

17

 

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.

5

23      

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

10

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

15

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.

20

(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,

25

(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

30

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—

35

(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

40

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

45

respect to—

 
 

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

18

 

(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,

5

(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,

10

(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,

15

(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.

20

(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

25

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

30

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

35

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).

40

(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

45

foundation governors will cease to constitute the majority of governors.

 
 

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

19

 

(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

5

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.

15

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;

25

(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”)

30

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;

35

(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

40

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

45

exercising functions under the regulations, to have regard to any guidance

given from time to time by the Secretary of State.

 
 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2006
Revised 26 May 2006