Education and Inspections Bill

House of Lords

Session 2005 - 06
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Education and Inspections Bill

132
Education and Inspections Bill
Schedule 1 — Amendments related to section 6

Schedules
Schedule 1
Section 6

Amendments related to section 6
Disability Discrimination Act 1995 (c. 50)
1     (1)
In paragraph 1 of Schedule 4C to the Disability Discrimination Act 1995
5
(modifications of Chapter 2 of Part 4 of the Act where further education etc.
is provided by an LEA), the substituted section 28R is amended as follows.
      (2)
For subsection (12) substitute—
“(12)
“Recreational or training facilities” means—
(a)
in the case of a local education authority in England, any
10
facilities secured by the authority under section 507A or 507B
of the Education Act 1996 (functions of LEAs in England in
respect of recreation etc), and
(b)
in the case of a local education authority in Wales, any
facilities secured by the authority under subsection (1), or
15
provided by them under subsection (1A), of section 508 of
that Act (functions of LEAs in Wales in respect of recreation
and social and physical training).”
Education Act 1996 (c. 56)
2
EA 1996 is amended as follows.
20
3
In section 312 (meaning of “special educational needs”), in subsection (2),
after “or 15B” insert “or section 507B”.
4
In section 508 (functions in respect of facilities for recreation etc.)—
(a)
in subsections (1) and (1A), after “local education authority” insert
“in Wales”, and
25
(b)
in the heading, for “Functions” substitute “LEAs in Wales:
functions”.
5
In section 510 (provision of clothing), in subsection (4)(c), for “made
available for them by the authority under section 508(2)” substitute “secured
by the authority under section 507A or 507B (if the authority are in England)
30
or made available by the authority for such persons under section 508(2) (if
the authority are in Wales)”.
6
In section 547 (nuisance or disturbance on school premises), in subsection
(2A)(a), for “section 508” substitute “section 507A or 507B (if the authority
are in England) or section 508 (if the authority are in Wales)”.
35

Education and Inspections Bill
Schedule 2 — Proposals for establishment or discontinuance of schools in England
Part 1 — Introductory
133

Schedule 2
Sections 7, 10, 11 and 15

Proposals for establishment or discontinuance of schools in England
Part 1
Introductory
Application of Schedule
5
1     (1)
This Schedule applies to proposals published under section 7, 10, 11 or 15.
      (2)
Accordingly, in this Schedule, unless a contrary intention appears,
“proposals” means proposals published under any of those sections.
“The relevant authority”
2
In this Schedule “the relevant authority” means—
10
(a)
in the case of proposals under section 7, the local education authority
who published the notice under that section, and
(b)
in the case of proposals under section 10, 11 or 15, the local education
authority who maintain the school or (in the case of a new school)
who it is proposed should maintain the school.
15
“Proposers”
3
In this Schedule “proposers”, in relation to any proposals, means the persons
who made the proposals, but does not include a local education authority.
References to persons by whom proposals are made
4
For the purposes of this Schedule—
20
(a)
proposals under section 7 are to be taken to be made by the person
who submitted them to the relevant authority under subsection
(4)(b) of that section, or in the case of proposals published by the
relevant authority under subsection (5)(b) of that section, by the
relevant authority, and
25
(b)
proposals under section 10, 11 or 15 are to be taken to be made by the
persons who published them.
Objections and comments
5
Regulations may make provision—
(a)
for the making of objections or comments in relation to the proposals
30
within a prescribed period to the relevant authority, and
(b)
requiring the relevant authority, in any case where proposals are
referred to the adjudicator, to forward to the adjudicator objections
or comments made in relation to the proposals in accordance with
the regulations.
35

Education and Inspections Bill
Schedule 2 — Proposals for establishment or discontinuance of schools in England
Part 2 — Consideration of proposals by local education authority or adjudicator
134

Part 2
Consideration of proposals by local education authority or adjudicator
Proposals requiring consideration under paragraph 8
6
All proposals under section 7, 10 or 11 require consideration under
paragraph 8.
5
7     (1)
Proposals under section 15 require consideration under paragraph 8 unless
sub-paragraph (2) applies.
      (2)
Proposals under section 15 fall to be dealt with under paragraph 19 (and do
not require consideration under paragraph 8) if the proposals were made by
the relevant authority and either—
10
(a)
no objections were made in relation to the relevant proposals in
accordance with regulations under paragraph 5, or
(b)
all objections so made were withdrawn in writing within the period
prescribed as that within which any objections must be made.
Consideration of proposals
15
8     (1)
Proposals which require consideration under this paragraph, other than
proposals to which paragraph 10 applies, must be considered in the first
instance by the relevant authority.
      (2)
Sub-paragraphs (3) and (4) apply in relation to the relevant authority unless
the authority is required by any of paragraphs 10 to 13 and 15 to refer the
20
proposals to the adjudicator.
      (3)
In a case where the proposals were published under section 7 and two or
more sets of proposals were published, the authority may—
(a)
reject all the proposals,
(b)
approve any of the proposals without modification, or
25
(c)
approve any of the proposals with such modifications as the
authority think desirable, after consulting such persons as may be
prescribed.
      (4)
In any other case, the authority may—
(a)
reject the proposals,
30
(b)
approve the proposals without modification, or
(c)
approve the proposals with such modifications as the authority think
desirable, after consulting such persons as may be prescribed.
      (5)
Any approval given under this paragraph may be expressed to take effect
only if an event specified in the approval occurs by a date so specified; and
35
regulations may prescribe the events that may be so specified.
      (6)
When deciding whether or not to give any approval under this paragraph,
the relevant authority must have regard to any guidance given from time to
time by the Secretary of State.
Consideration of proposals that are related to other proposals
40
9     (1)
The requirement to consider proposals under paragraph 8 only applies if, at
the time when the proposals fall to be considered, the relevant authority are

Education and Inspections Bill
Schedule 2 — Proposals for establishment or discontinuance of schools in England
Part 2 — Consideration of proposals by local education authority or adjudicator
135

satisfied that the proposals do not relate to any proposals under section
113A of the Learning and Skills Act 2000 (c. 21) which fall to be determined
by the Secretary of State but have not yet been determined by him.
      (2)
Where proposals under section 7, 10, 11 or 15 appear to the relevant
authority to be related to—
5
(a)
other proposals published under any of those sections and not yet
determined, or
(b)
proposals published under Schedule 7 to the Learning and Skills Act
2000 (c. 21) and not yet determined,

the authority must consider the proposals together.
10
      (3)
In deciding for the purposes of this paragraph whether proposals are related
to other proposals, the relevant authority must have regard to any guidance
given from time to time by the Secretary of State.
Duty to refer to adjudicator certain proposals made by or involving relevant authority
10    (1)
The relevant authority must refer to the adjudicator, within a prescribed
15
time—
(a)
all the proposals published under section 7 in response to a notice
under that section, if they consist of or include any proposals
which—
(i)
are made by the relevant authority, or
20
(ii)
relate to the establishment of a foundation school with a
foundation falling within sub-paragraph (2);
(b)
any proposals under section 10 or 11 which—
(i)
are made by the relevant authority, or
(ii)
relate to the establishment of a foundation school with a
25
foundation falling within sub-paragraph (2).
      (2)
A foundation falls within this sub-paragraph if it is to be established
otherwise than under SSFA 1998 and any of the following applies—
(a)
the relevant authority or any person appointed by the relevant
authority is to be a member of the foundation,
30
(b)
any person appointed by the relevant authority is to be a charity
trustee (within the meaning of the Charities Act 1993 (c. 10)) of the
foundation, or
(c)
any voting rights in the foundation are to be exercisable by the
relevant authority or persons appointed by the relevant authority.
35
      (3)
Regulations may make provision for the making by the relevant authority to
the adjudicator of objections to any proposals which are required to be
referred to the adjudicator under this paragraph.
Duty to refer proposals to adjudicator in prescribed cases
11
Regulations may make provision requiring the relevant authority in
40
prescribed cases to refer to the adjudicator within a prescribed time
proposals requiring consideration under paragraph 8 (or in the case of
proposals under section 7 all the proposals requiring consideration under
that paragraph), together with any comments made on the proposals (or in
the case of proposals under section 7, any of the proposals) by the authority.
45

Education and Inspections Bill
Schedule 2 — Proposals for establishment or discontinuance of schools in England
Part 2 — Consideration of proposals by local education authority or adjudicator
136

Duty to refer proposals to adjudicator in pursuance of direction by Secretary of State
12    (1)
The Secretary of State may at any time give a direction to a local education
authority requiring them to refer to the adjudicator by a specified time—
(a)
any proposals which have been published by the authority under
section 7 but which, at the time when the direction is given, have not
5
been determined by the authority, and
(b)
all subsequent proposals published by the authority under that
section until the direction is revoked,

together with any comments made on any of the proposals by the authority.
      (2)
Where a direction under sub-paragraph (1) is given to a local education
10
authority at a time when the authority are considering proposals which
consist of or include proposals published under section 7 to establish an
Academy, the authority must complete any consultation required by
paragraph 18 before referring the proposals to the adjudicator.
      (3)
References in this paragraph to the determination of any proposals are
15
references to—
(a)
a determination whether or not to approve the proposals under
paragraph 8, or
(b)
where by virtue of paragraph 7(2) the proposals fall to be dealt with
under paragraph 19, a determination under paragraph 19 whether or
20
not to implement the proposals.
Duty to refer proposals to adjudicator where determination delayed
13
If by the end of such period as may be prescribed the relevant authority have
not determined whether to give any approval under paragraph 8(3) or (4),
they must within a prescribed time refer to the adjudicator—
25
(a)
in the case mentioned in paragraph 8(3), all the proposals published
under section 7, and
(b)
in the case mentioned in paragraph 8(4), the proposals concerned,

together with any comments made on the proposals by the authority.
Reference to adjudicator at request of aggrieved person after determination under paragraph
30
8(4)
14    (1)
The relevant authority must if so requested within a prescribed time by any
relevant person refer to the adjudicator within a prescribed time any
proposals under section 10, 11 or 15 which the relevant authority have
determined under paragraph 8(4), together with any reasons given by the
35
authority for their determination.
      (2)
The following are relevant persons for the purposes of sub-paragraph (1)—
(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 relevant
authority;
40
(b)
the bishop of any diocese of the Roman Catholic Church any part of
which is comprised in the area of the relevant authority;
(c)
in the case of proposals made under section 10 or 11 by a person
other than the relevant authority and rejected by the authority under
paragraph 8(4)(a), the proposers;
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Education and Inspections Bill
Schedule 2 — Proposals for establishment or discontinuance of schools in England
Part 2 — Consideration of proposals by local education authority or adjudicator
137

(d)
in the case of proposals published under section 15, the governing
body or trustees of any foundation, voluntary or foundation special
school which is the subject of the proposals;
(e)
where the proposals relate to a school or proposed school providing
education for persons aged 14 years or over, the Learning and Skills
5
Council for England.
Duty to refer related proposals
15
Where the relevant authority are required under any of paragraphs 10 to 14
or under Schedule 7 to the Learning and Skills Act 2000 to refer any
proposals (“the relevant proposals”) to the adjudicator, the authority must
10
also within a prescribed time refer to the adjudicator—
(a)
any other proposals under section 7, 10, 11 or 15 which relate to the
area of the relevant authority and which by virtue of paragraph 9(2)
fall to be considered with the relevant proposals, and
(b)
where the relevant proposals are referred to the adjudicator by virtue
15
of paragraph 14, any other proposals under section 10, 11 or 15 which
by virtue of paragraph 9(2) were determined by the relevant
authority with the relevant proposals.
Withdrawal of proposals before determination
16    (1)
Nothing in paragraph 8(1) to (4) prevents the proposers by whom any
20
proposals have been made from withdrawing those proposals by notice in
writing—
(a)
to the relevant authority, and
(b)
in a case where the proposals have been referred to the adjudicator,
also to the adjudicator,
25

at any time before the proposals are determined under paragraph 8 by the
authority or by the adjudicator.
      (2)
Nothing in paragraph 8(1) to (4) prevents the relevant authority from
withdrawing any proposals made by the authority themselves by notice in
writing to the adjudicator at any time before the proposals are determined
30
under paragraph 8 by the adjudicator.
Effect of referring proposals to adjudicator
17    (1)
Where any proposals are referred to the adjudicator under any provision of
this Part of this Schedule—
(a)
he must consider the proposals or, in a case where the proposals
35
have previously been determined by the relevant authority, must
consider them afresh,
(b)
the following provisions of paragraph 8 apply to him in connection
with his decision on the proposals as they apply to the relevant
authority—
40
(i)
sub-paragraph (3) or (4) (as the case requires), and
(ii)
sub-paragraphs (5) and (6), and
(c)
paragraph 9 applies to him as it applies to the relevant authority.
      (2)
The revocation of a direction under paragraph 12(1) does not affect the
determination by the adjudicator of any proposals referred to him before the
45
revocation.

Education and Inspections Bill
Schedule 2 — Proposals for establishment or discontinuance of schools in England
Part 2 — Consideration of proposals by local education authority or adjudicator
138

Proposals to establish Academy
18    (1)
Regulations may provide that, where proposals published under section 7
consist of or include proposals to establish an Academy, the relevant
authority must within the prescribed period consult the Secretary of State in
accordance with regulations, before taking any decision under paragraph 8.
5
      (2)
The relevant authority may not approve under paragraph 8 proposals to
establish an Academy unless the Secretary of State, on being consulted
under sub-paragraph (1), has indicated in accordance with regulations that,
if the proposals were approved, he would be willing to commence
negotiations with a view to entering into an agreement under section 482 of
10
EA 1996 for the establishment of an Academy.
      (3)
If—
(a)
the proposals have been referred to the adjudicator under paragraph
10, 11, 12, 13 or 15, or
(b)
a direction under paragraph 12(1) is in force in relation to the
15
relevant authority and the case does not fall within paragraph 12(2),

the reference in sub-paragraph (1) to the authority is to be read as a reference
to the adjudicator.
      (4)
Sub-paragraph (2) has effect in relation to a decision of an adjudicator under
paragraph 8 as it has effect in relation to a decision of the relevant authority
20
under that paragraph.
      (5)
Approval under paragraph 8 by the relevant authority or the adjudicator of
proposals to establish an Academy does not oblige the Secretary of State to
enter into, or seek to enter into, an agreement under section 482 of EA 1996.
Determination whether to implement proposals not requiring consideration under paragraph 8
25
19    (1)
Where any proposals have been made under section 15 by the relevant
authority and paragraph 7 does not require the proposals to be considered
under paragraph 8, the authority must (subject to the following provisions
of this paragraph) determine whether the proposals should be implemented.
      (2)
Any determination under sub-paragraph (1) must be made within a
30
prescribed period.
      (3)
The requirement to make a determination under sub-paragraph (1) only
applies if, at the time when the proposals fall to be considered, the relevant
authority are satisfied that the proposals do not relate to any proposals
under section 113A of the Learning and Skills Act 2000 (c. 21) which fall to
35
be determined by the Secretary of State but have not yet been determined by
him.
      (4)
The requirement to make a determination under sub-paragraph (1) does not
apply where the proposals appear to the relevant authority to be related to—
(a)
other proposals published under section 15 and not yet determined,
40
(b)
proposals published under section 7, 10 or 11 and not yet
determined, or
(c)
proposals published under Schedule 7 to the Learning and Skills Act
2000 and not yet determined.