Education and Inspections Act 2006
2006 c. 40
An Act to make provision about primary, secondary and further education and about training; to make provision about food or drink provided on school premises or in connection with the provision of education or childcare; to provide for the establishment of an Office for Standards in Education, Children's Services and Skills and the appointment of Her Majesty's Chief Inspector of Education, Children's Services and Skills and make provision about the functions of that Office and that Chief Inspector; to provide for the amendment of references to local education authorities and children's services authorities; to amend section 29 of the Leasehold Reform Act 1967 in relation to university bodies; and for connected purposes.
[8th November 2006]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1 Duties in relation to high standards and the fulfilment of potential
For section 13A of EA 1996 substitute—
Duty to promote high standards and the fulfilment of potential
13A (1) A local authority shall ensure that their functions relating to the provision of education to which this section applies are (so far as they are capable of being so exercised) exercised by the authority with a view to—
(a) promoting high standards,
(b) in the case of a local authority in England, ensuring fair access to educational opportunity, and
(c) promoting the fulfilment by every child concerned of his educational potential.
(2) This section applies to education for—
(a) children of compulsory school age (whether at school or otherwise); and
(b) children under or over that age who are registered as pupils at schools maintained by the authority,
and in subsection (1) “functions” means functions of whatever nature.
(3) In this section “child” means a person under the age of 20.
In section 14 of EA 1996 (functions of local authorities in relation to the provision of primary and secondary education) after subsection (3) insert—
(3A) A local authority in England shall exercise their functions under this section with a view to—
(a) securing diversity in the provision of schools, and
(b) increasing opportunities for parental choice.
After section 14 of EA 1996 insert—
Duty of local authority to consider parental representations
14A (1) Where a local authority in England receive any representation from a parent of a qualifying child as to the exercise by the authority of their functions under section 14, the authority shall—
(a) consider the representation and what action (if any) to take in response to it, and
(b) within a reasonable time provide the parent with a statement setting out—
(i) any action which the authority propose to take in response to the representation, or
(ii) where the authority are of the opinion that no such action is necessary, their reasons for being of that opinion.
(2) In subsection (1) “qualifying child”, in relation to a local authority, means any child in the authority's area who is of or under compulsory school age.
(3) Subsection (1) does not apply in relation to any representation which—
(a) appears to the local authority to be frivolous or vexatious, or
(b) is the same as, or similar to, a representation previously received by the authority from the same person.
(4) In exercising their functions under this section, a local authority must have regard to any guidance given from time to time by the Secretary of State.
4 Duty to identify children not receiving education
(1) In Chapter 2 of Part 6 of EA 1996 (school attendance) before the cross-heading preceding section 437 insert—
Children not receiving suitable education
Duty to make arrangements to identify children not receiving education
436A (1) A local authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—
(a) are not registered pupils at a school, and
(b) are not receiving suitable education otherwise than at a school.
(2) In exercising their functions under this section a local authority must have regard to any guidance given from time to time by the Secretary of State.
(3) In this Chapter, “suitable education”, in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have.
(2) In section 437 of EA 1996, in subsection (8) omit the definition of “suitable education”.
(3) In section 580 of EA 1996 (index) for the entry in the second column which relates to the expression “suitable education (in Chapter 2 of Part 6)” substitute “ section 436A(3) ”.
6 Functions in respect of youth work, recreation etc
(1) Before section 508 of EA 1996 (functions of local authority in respect of facilities for recreation and social and physical training), and immediately after the cross-heading which precedes that section, insert—
Local authorities in England: functions in respect of recreational and training facilities for children under 13
507A (1) A local authority in England must secure that the facilities for primary and secondary education provided for their area include adequate facilities for recreation and social and physical training for children who have not attained the age of 13.
(2) For the purposes of subsection (1) a local authority may—
(a) establish, maintain and manage, or assist the establishment, maintenance and management of—
(i) camps, holiday classes, playing fields, play centres, and
(ii) other places, including playgrounds, gymnasiums and swimming baths not appropriated to any school or other educational institution,
at which facilities for recreation and social and physical training are available for persons receiving primary or secondary education;
(b) organise games, expeditions and other activities for such persons; and
(c) defray, or contribute towards, the expenses of such games, expeditions and other activities.
(3) When making arrangements for the provision of facilities or the organisation of activities in the exercise of their powers under subsection (2), a local authority must, in particular, have regard to the expediency of co-operating with any voluntary societies or bodies whose objects include the provision of facilities or the organisation of activities of a similar character.
Local authorities in England: functions in respect of leisure-time activities etc for persons aged 13 to 19 and certain persons aged 20 to 24
507B (1) A local authority in England must, so far as reasonably practicable, secure for qualifying young persons in the authority's area access to—
(a) sufficient educational leisure-time activities which are for the improvement of their well-being, and sufficient facilities for such activities; and
(b) sufficient recreational leisure-time activities which are for the improvement of their well-being, and sufficient facilities for such activities.
(2) “Qualifying young persons”, for the purposes of this section, are—
(a) persons who have attained the age of 13 but not the age of 20; and
(b) persons who have attained the age of 20 but not the age of 25 and have a learning difficulty (within the meaning of section 13(5)(a) and (6) of the Learning and Skills Act 2000).
(3) For the purposes of subsection (1)(a)—
(a) “sufficient educational leisure-time activities” which are for the improvement of the well-being of qualifying young persons in the authority's area must include sufficient educational leisure-time activities which are for the improvement of their personal and social development, and
(b) “sufficient facilities for such activities” must include sufficient facilities for educational leisure-time activities which are for the improvement of the personal and social development of qualifying young persons in the authority's area.
(4) References in the remaining provisions of this section to “positive leisure-time activities” are references to any activities falling within paragraph (a) or (b) of subsection (1).
(5) For the purposes of subsection (1) a local authority may —
(a) provide facilities for positive leisure-time activities;
(b) assist others in the provision of such facilities;
(c) make arrangements for facilitating access for qualifying young persons to such facilities;
(d) organise positive leisure-time activities;
(e) assist others in the organisation of such activities;
(f) make arrangements for facilitating access for qualifying young persons to such activities;
(g) enter into agreements or make arrangements with any person in connection with anything done or proposed to be done under any of paragraphs (a) to (f);
(h) take any other action which the authority think appropriate.
(6) For the purposes of subsection (5)—
(a) the provision mentioned in paragraph (a) may include establishing, maintaining and managing places at which facilities for positive leisure-time activities are provided;
(b) the assistance mentioned in paragraphs (b) and (e) may include the provision of financial assistance;
(c) the arrangements mentioned in paragraphs (c) and (f) may include the provision of transport, of financial assistance or of information to any person.
(7) Before taking any action for the purposes of subsection (1) (“the proposed action”), a local authority must—
(a) consider whether it is expedient for the proposed action to be taken by another person, and
(b) where the authority consider that it is so expedient, take all reasonable steps to enter into an agreement or make arrangements with such a person for that purpose.
(8) For the purposes of subsection (7)(a) a local authority must consult such persons as the authority think appropriate as to whether it is expedient for the proposed action to be taken by another person.
(9) In exercising their functions under this section a local authority must—
(a) take steps to ascertain the views of qualifying young persons in the authority's area about—
(i) positive leisure-time activities, and facilities for such activities, in the authority's area;
(ii) the need for any additional such activities and facilities; and
(iii) access to such activities and facilities; and
(b) secure that the views of qualifying young persons in the authority's area are taken into account.
(10) A local authority in England must—
(a) publicise information about positive leisure-time activities, and facilities for such activities, in the authority's area, and
(b) keep the information publicised under paragraph (a) up to date.
(11) A local authority may charge in respect of anything provided by the authority under this section where the provision is to a qualifying young person (whether or not in the authority's area).
(12) In exercising their functions under this section a local authority must have regard to any guidance given from time to time by the Secretary of State.
(13) In this section—
“recreation” includes physical training (and “recreational” is to be construed accordingly);
“sufficient”, in relation to activities or facilities, means sufficient having regard to quantity;
“well-being”, in relation to a person, means his well-being so far as relating to—
physical and mental health and emotional well-being;
protection from harm and neglect;
education, training and recreation;
the contribution made by him to society;
social and economic well-being.
(2) Schedule 1 contains amendments related to the provision made by subsection (1).
7 Invitation for proposals for establishment of new schools
(1) This section applies where a local authority in England think that a new school, other than a maintained nursery school, should be established in their area.
(1A) The local authority must (subject to subsection (2A)) publish a notice under this section inviting proposals from persons other than local authorities for the establishment of a new school falling within subsection (2).
(2) The schools falling within this subsection are—
(a) a foundation, voluntary or foundation special school, ...
(b) an Academy school , or
(c) an alternative provision Academy,
other than a school providing education suitable only to the requirements of persons above compulsory school age.
(2A) A local authority are not required to publish a notice under this section (but may do so) if—
(a) the school that the local authority think should be established falls within section 10(2A), or
(b) proposals have been published under section 10(2B) by other persons and those proposals have not yet been determined.
(3) A notice under this section must—
(a) identify a possible site for the school,
(b) state whether or not the proposed school is to be a special school,
(c) specify a date, being a date after the prescribed interval, by which proposals must be submitted,
(d) specify such other matters as may be prescribed, and
(e) be published in the prescribed manner.
(4) Proposals made pursuant to a notice under this section must—
(a) contain the prescribed information, and
(b) be submitted to the local authority before the date specified in the notice.
(5) After the date specified in a notice published by a local authority under this section, the authority—
(a) must publish under this section any proposals submitted pursuant to the notice in accordance with subsection (4) , and
(aa) may publish under this section proposals of their own for the establishment of—
(i) a new community, community special, foundation or foundation special school, other than one providing education suitable only to the requirements of persons above compulsory school age, or
(ii) a new pupil referral unit.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) Regulations may prescribe—
(a) the time within which proposals under this section must be published, ...
(b) the manner in which they must be published , and
(c) the information which proposals within subsection (5)(aa) must contain.
(7) Schedule 2 has effect in relation to the consideration, approval and implementation of proposals under this section.
(1) This section applies where a local authority have published a notice under section 7.
(2) At any time before the date specified in the notice—
(a) the local authority may withdraw it ..., or
(b) the Secretary of State may direct the local authority to withdraw it.
(3) If the local authority withdraw the notice in accordance with subsection (2)(a) or (b), the local authority must notify the Secretary of State.
9 Consultation and publicity in relation to notice and proposals under section 7
(1) Before publishing a notice under section 7, the local authority must consult such persons as appear to the authority to be appropriate; and in discharging their duty under this subsection the authority must have regard to any guidance given from time to time by the Secretary of State.
(2) Regulations may require the local authority to take prescribed steps for the purpose of promoting public awareness of any proposals published by them under section 7.
10 Proposals other than proposals pursuant to a section 7 notice: publication etc
(1) Where a local authority in England propose to establish a new maintained nursery school, they must publish their proposals under this section.
(2) Where a local authority in England propose to establish a new school within subsection (2A), they may publish their proposals under this section if there is for the time being no notice under section 7 pursuant to which (by virtue of section 7(5)(aa)) they could publish such proposals.
(2A) A school is within this subsection if it is—
(a) a community, community special, foundation or foundation special school which—
(i) is not to be one providing education suitable only to the requirements of persons above compulsory school age, and
(ii) is to replace one or more maintained schools, or
(b) a pupil referral unit which is to replace one or more pupil referral units.
(2B) Where any persons other than a local authority (“proposers”) propose to establish a new foundation, voluntary or foundation special school in England, they may publish their proposals under this section if there is for the time being no notice under section 7 pursuant to which such proposals could be made.
(3) Proposals under this section must—
(a) contain such information, and
(b) be published in such manner,
as may be prescribed.
(4) Before publishing any proposals under this section, the local authority or proposers (as the case may be) must consult such persons as appear to them to be appropriate; and in discharging their duty under this subsection the authority or proposers must have regard to any guidance given from time to time by the Secretary of State.
(5) Where any proposals are published under subsection (2B)—
(a) the proposers must submit the proposals in accordance with regulations to the local authority who it is proposed should maintain the school , and
(b) the local authority must take such action to publicise the proposals as may be prescribed.
(6) Schedule 2 has effect in relation to the consideration, approval and implementation of proposals under this section.
(1) Proposals under—
(a) section 7 or 10, ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
for the establishment of a new maintained school in England may relate to the establishment of the school as a federated school.
(2) In this section “federated school” has the meaning given by section 24(2) of EA 2002.
13 Schools established outside area of relevant local authority
Regulations may modify the provisions of sections 7 to 12 and Schedule 2 in their application to cases where—
(a) in the case of proposals published under section 7, the school is proposed to be established in an area in England other than that of the local authority who published the notice under that section, or
(b) in the case of proposals published under section 10 ..., the school is proposed to be established in an area in England other than that of the local authority who it is proposed should maintain the school.
14 Local authority in England not to establish school in Wales
No proposals may be published under this Part or any other enactment for the establishment of a school in Wales which is proposed to be maintained by a local authority in England.
15 Proposals for discontinuance of schools maintained by local authority
(1) Where a local authority in England propose to discontinue—
(a) a community, foundation or voluntary school,
(b) a community or foundation special school, or
(c) a maintained nursery school,
the authority must publish their proposals under this section.
(2) Where the governing body of—
(a) a foundation or voluntary school in England, or
(b) a foundation special school in England,
propose to discontinue the school, the governing body must publish their proposals under this section.
(3) Proposals under this section must—
(a) contain such information, and
(b) be published in such manner,
as may be prescribed.
(4) The matters to which the relevant body must have regard in formulating any proposals under this section in relation to a rural primary school include—
(a) the likely effect of the discontinuance of the school on the local community,
(b) the availability, and likely cost to the local authority, of transport to other schools,
(c) any increase in the use of motor vehicles which is likely to result from the discontinuance of the school, and the likely effects of any such increase, and
(d) any alternatives to the discontinuance of the school;
and in considering these matters the relevant body must have regard to any guidance given from time to time by the Secretary of State.
(5) Where any proposals are published under subsection (2), the persons making the proposals must submit the proposals in accordance with regulations to the local authority.
(6) Schedule 2 has effect in relation to the consideration, approval and implementation of proposals published under this section.
(7) In this section—
(a) “the relevant body” means the local authority mentioned in subsection (1) or the governing body mentioned in subsection (2) (as the case may be);
(b) “rural primary school” means a primary school designated as such for the purposes of this section by an order made by the Secretary of State.
(8) In this Part any reference to a local authority—
(a) discontinuing a school, or
(b) implementing proposals to discontinue a school (whether published by the authority or the governing body),
is a reference to the authority ceasing to maintain the school.
16 Consultation in relation to proposals under section 15
(1) Before publishing any proposals under section 15 which relate to a school which is a rural primary school or a community or foundation special school, the relevant body must consult—
(a) the registered parents of registered pupils at the school,
(b) in the case of the rural primary school—
(i) the local authority (where they are not the relevant body),
(ii) where the local authority are a county council, any district council for the area in which the school is situated, and
(iii) any parish council for the area in which the school is situated,
(c) in the case of a community or foundation special school, any local authority which maintain an EHC plan or a statement under section 324 of EA 1996 (statement of special educational needs) or an individual development plan under section 14 or 19 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 in respect of a registered pupil at the school, and
(d) such other persons as appear to the relevant body to be appropriate.
(2) Before publishing any other proposals under section 15, the relevant body must consult such persons as appear to them to be appropriate.
(3) In discharging their duty under subsection (1) or (2) the relevant body must have regard to any guidance given from time to time by the Secretary of State.
(4) In this section “the relevant body” and “rural primary school” have the same meaning as in section 15.
17 Direction requiring discontinuance of community or foundation special school
(1) The Secretary of State may, if he considers it expedient to do so in the interests of the health, safety or welfare of pupils at a community or foundation special school in England, give a direction to the local authority by whom the school is maintained requiring the school to be discontinued on a date specified in the direction.
(2) A direction under subsection (1) may require the local authority to notify any persons or class of persons specified in the direction.
(3) Before giving a direction under subsection (1), the Secretary of State must consult—
(a) the local authority,
(b) any other local authority who would in his opinion be affected by the discontinuance of the school,
(c) in the case of a foundation special school which has a foundation, the person who appoints the foundation governors, and
(d) such other persons as the Secretary of State considers appropriate.
(4) On giving a direction under subsection (1), the Secretary of State must give notice in writing of the direction to the governing body of the school and its head teacher.
(5) Where a local authority are given a direction under subsection (1), they must discontinue the school in question on the date specified in the direction; and nothing in section 15 or 28 applies to any such discontinuance of the school under this section.
(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 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),
(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 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;
(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 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 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
(1) Where—
(a) the local 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 authority,
the authority must publish their proposals under this section.
(2) A prescribed alteration is capable of being proposed by a local authority if—
(a) in the case of a community school, a community special school or a maintained nursery school, it is an alteration designated by regulations under this subsection as one capable of being proposed by the local authority,
(b) in the case of a foundation or voluntary school, it consists of any one or more of the following—
(i) an enlargement of the premises,
(ii) an increase in the number of pupils in any relevant age group,
(iii) the establishment or discontinuance of educational provision for pupils with special educational needs, and
(iv) the establishment of educational provision suitable to the requirements of pupils over compulsory school age, and
(c) in the case of a foundation special school, it consists of any one or more of the following—
(i) an enlargement of the premises,
(ii) an increase in the number of pupils for whom the school is organised to make provision, and
(iii) a change in the type of special educational needs for which the school is organised to make provision.
(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 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 (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) This section has effect subject to section 20.
(6) In this section—
“prescribed alteration”, in relation to a maintained school, means an alteration prescribed under section 18;
“relevant age group” has the same meaning as in SSFA 1998.
20 Restriction on power of governing body to publish foundation proposals
(1) The governing body of a school specified in the first column of the Table below may not publish proposals under section 19 for a prescribed alteration of a kind specified in the second column, except with the consent of—
(a) the trustees of the school, and
(b) the person or persons by whom the foundation governors are appointed.
TABLE
School | Prescribed alteration
1. A foundation school which, immediately before the commencement date, was a foundation school having a foundation. | A relevant change in the instrument of government.
2. A voluntary school. | A change of category from voluntary controlled school or voluntary aided school to foundation school.
3. A foundation school which, having been a voluntary school immediately before the commencement date, changed category to foundation school on or after that date. | 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 being foundation governors.
(3) In this section—
“the commencement date” means the day on which this Part comes into force, otherwise than merely for the purpose of enabling orders or regulations to be made;
“prescribed alteration”, in relation to a maintained school, means an alteration prescribed under section 18.
(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—
(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;
(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 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 prescribed person, after their initial determination by a person other than the adjudicator;
(i) for the approval of proposals with or without modification;
(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 authority, on any other local 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 admits pupils of one sex only, regulations under this section may enable the local authority or the adjudicator to make a transitional exemption order for the purposes of paragraphs 3 and 4 of Schedule 11 to the Equality Act 2010 (single-sex schools turning co-educational), and to vary or revoke any order so made.
(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.
22 Right of governing body to determine own foundation proposals
(1) Subsection (3) applies to proposals which are published under section 19 by the 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
(b) a change of category from community special school to foundation special school, without the acquisition of a foundation.
(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 being foundation governors.
(3) In relation to proposals to which this subsection applies, regulations under section 21—
(a) must provide for the proposals to be determined by the governing body, and
(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 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 category from community special school to foundation special school, together with the acquisition of a foundation or together with both the acquisition of a foundation and a relevant change in the instrument of government, 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).
(5) In relation to proposals to which this subsection applies, regulations under section 21—
(a) must provide for the proposals to be determined by the governing body unless the local authority exercise the right conferred on them by regulations made by virtue of section 23(1), and
(b) may not make any provision under subsection (2)(g) or (h) of section 21 enabling a person other than the local authority to require the proposals to be referred to the adjudicator.
23 Rights of interested bodies in relation to proposals under section 21
(1) Any regulations under section 21 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 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 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 government provides for the majority of governors to be foundation governors.
(3) Regulations under section 21 may restrict the matters to which a local authority may have regard in deciding whether to require proposals to be referred to the adjudicator in accordance with provision included in the regulations by virtue of subsection (1).
(4) If regulations under section 21 provide for any proposals, other than proposals to which section 22(3) or (5) applies, to be determined by a person other than the adjudicator, the regulations must include provision by virtue of section 21(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,
(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) If regulations under section 21 provide for any proposals published by a local authority in relation to a foundation or voluntary school or a foundation special school to be determined by the local 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—
(a) the governing body of the school, and
(b) the trustees of the school.
(6) In this section “proposals” means proposals under section 19.
(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 21, or
(b) proposals under section 19 in respect of which approval in accordance 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 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.
(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,
(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 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—
(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 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 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 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,
(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,
(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 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.
(7) Regulations under this section may, in particular, make provision corresponding to that made by, or that which may be made by regulations under, 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 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.
(9) In subsection (4) “local authority” includes a non-metropolitan district council for an area for which there is a county council.
25 Proposals for removal of foundation or reduction in foundation governors
(1) This section applies to any foundation or foundation special school having a foundation if either or both of the following conditions is met.
(2) Condition A is that the school was established (whether or not as a foundation or foundation special school) in pursuance of proposals falling to be implemented under Schedule 2.
(3) Condition B is that the school acquired its foundation in pursuance of proposals falling to be implemented under regulations under section 24.
(4) 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 foundation governors will cease to constitute the majority of governors.
(5) 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 (4).
(6) Subsection (5) 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—
(i) proposals for the establishment of the school were implemented under Schedule 2, or
(ii) proposals for the acquisition of a foundation, for a relevant change in the instrument of government or for a change of category to foundation school or foundation special school were implemented under regulations under section 24, or
(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 (5) were rejected by the governing body in accordance with regulations under section 26.
(7) In subsection (6)(a)(ii) “relevant change”, in relation to the instrument of government of a school, is to be read in accordance with section 22(2).
(8) In this section “foundation” means a foundation established otherwise than under SSFA 1998.
(1) Regulations may make provision about the publication and determination of proposals under section 25.
(2) The provision that may be made includes provision—
(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 25;
(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 pursuance of a requirement under section 25(5) (“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 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.
(3) Regulations under this section may in prescribed cases—
(a) require the governing body to ensure that matters relating to—
(i) any transfer which may be required by virtue of subsection (2)(b) of section 27, or
(ii) any payment which might be required by virtue of subsection (4) or (5) of that section,
are agreed or determined before the proposals are published, and
(b) enable or require any such matter to be referred to the adjudicator for determination before the proposals are published.
(4) 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.
(1) Regulations may make provision in connection with the implementation of proposals under section 25 which have been approved in accordance with regulations under section 26.
(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, anything required or authorised by the regulations must be done.
(3) Regulations made by virtue of subsection (2)(b) may make provision about any of the matters mentioned in section 24(5)(a) to (i).
(4) 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 authority or a prescribed person 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 authority or a prescribed person.
(5) 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 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.
(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) The implementation of proposals under section 25 is not to be taken as authorising any change in the religious character of the school or the loss of religious character.
(8) In this section “foundation” means a foundation established otherwise than under SSFA 1998.
28 Restriction on establishment, alteration or discontinuance of schools
(1) Except in pursuance of proposals falling to be implemented under this Part ...—
(a) no maintained school may be established or discontinued;
(b) no prescribed alteration may be made to a maintained school.
(2) In subsection (1)(b) “prescribed alteration”, in relation to a maintained school, means an alteration prescribed under section 18.
(3) Subsection (1) has effect subject to—
(a) sections 17(5) and 68(4) (which relate to powers of the Secretary of State to require a maintained school to be discontinued),...
(b) section 30(9) of SSFA 1998 (notice by governing body to discontinue foundation or voluntary school), and
(c) section 6(2) of the Academies Act 2010 (requirement to cease to maintain school in respect of which Academy order has effect).
(4) Except in pursuance of proposals falling to be implemented under section 27, no alteration falling within section 25(4)(a) or (b) may be made to a foundation or foundation special school.
(5) A pupil referral unit may not be established except in pursuance of proposals falling to be implemented under this Part.
Section 24 of, and Schedule 4 to, SSFA 1998 (which require local authorities in England to establish a school organisation committee for their area) cease to have effect.
(1) The Secretary of State may by regulations make such transitional provision as he considers appropriate in connection with the commencement of this Part.
(2) Regulations under this section may, in particular, make provision with respect to—
(a) the determination or implementation of proposals made under the previous enactments,
(b) references made to school organisation committees or adjudicators under the previous enactments.
(3) This section does not limit the powers conferred by section 183.
(4) In this section “the previous enactments” means—
(a) sections 28, 28A, 29, 31 and 35 of, and Schedules 6 and 8 to, SSFA 1998 (establishment, alteration, discontinuance or change of category of schools) so far as applying to England, and
(b) sections 66 and 67 of, and Schedules 10 and 11 to, EA 2005.
(1) In this Part, except where the contrary intention appears—
“adjudicator” is to be read in accordance with section 25(3) of SSFA 1998;
“discontinue”, in relation to a maintained school, is to be read in accordance with section 15(8);
“foundation”, in relation to a foundation or voluntary school, has (subject to sections 25(8) and 27(8)) the meaning given by section 21(3) of SSFA 1998;
“ local authority”, in relation to a school maintained (or proposed to be maintained) by a local authority, means that authority;
“maintain”, in relation to a maintained school, has the same meaning as in SSFA 1998;
“maintained school” means any of the following schools in England—
a community, foundation or voluntary school,
a community or foundation special school, or
a maintained nursery school;
“prescribed” means prescribed by regulations;
“regulations” means regulations made under this Part by the Secretary of State.
(2) For the purposes of this Part, a foundation or voluntary school has a religious character if it is designated by order under section 69(3) of SSFA 1998 as a school having such a character.
(1) After section 23 of SSFA 1998 insert—
Foundation and foundation special schools: requirements as to foundations
23A (1) This section applies to any foundation or foundation special school having a foundation if any one or more of the following conditions is met.
(2) Condition A is that the school was established as a foundation or foundation special school in pursuance of proposals falling to be implemented under Schedule 2 to the Education and Inspections Act 2006.
(3) Condition B is that the school—
(a) acquired its foundation, or
(b) became a school whose instrument of government provides for the majority of governors to be foundation governors,
in pursuance of proposals falling to be implemented under regulations under section 24 of that Act.
(4) Condition C is that the school changed category from voluntary aided school to foundation school in pursuance of proposals falling to be implemented under regulations under section 24 of that Act and has an instrument of government providing for the majority of governors to be foundation governors.
(5) No institution may act as the foundation of a school to which this section applies unless—
(a) it is a body corporate of a prescribed description,
(b) it is a charity (whether by virtue of section 23(3) or otherwise), and
(c) it has as its purpose, or one of its purposes, the advancement of the education of pupils at the school or schools in respect of which it acts as the foundation.
(6) The foundation of a school to which this section applies shall, in carrying out its functions in relation to the school, promote community cohesion.
(7) Where any members of the foundation are to be local authorities or persons appointed by local authorities, the proportion of voting rights exercisable by such members must not exceed 20 per cent. of the total voting rights exercisable by members.
(8) Where any of the charity trustees in relation to the foundation are to be appointed by local authorities—
(a) the proportion of the charity trustees who are appointed by local authorities must not exceed 20 per cent. of the total number of charity trustees, and
(b) the voting rights exercisable by the charity trustees who are appointed by local authorities must not exceed 20 per cent. of the total voting rights exercisable by charity trustees.
(9) Regulations may disqualify persons from acting as charity trustee in relation to a school to which this section applies.
(10) In this section and section 23B—
“charity” has the same meaning as in the Charities Act 1993;
“charity trustee”, in relation to a school to which this section applies, means any individual who is for the purposes of the Charities Act 1993 a charity trustee in relation to the school's foundation;
“foundation” means a foundation established otherwise than under this Act;
“institution” has the same meaning as in the Charities Act 1993;
“purpose” includes object.
Powers of Secretary of State in relation to charity trustees of foundations
23B (1) Regulations may make provision enabling the Secretary of State in prescribed cases by direction—
(a) to remove any charity trustee of a school to which section 23A applies, even though the person is not disqualified by virtue of subsection (9) of that section;
(b) to appoint a person to be a charity trustee of such a school (whether in place of a trustee removed by him under paragraph (a) or otherwise).
(2) Regulations under subsection (1) may make provision as to the effect of a direction given by the Secretary of State under the regulations, and may in particular provide for any such direction to have the same effect as an order of the Charity Commission for England and Wales under section 18 of the Charities Act 1993 for the removal or appointment of a charity trustee.
(3) Nothing in this section affects the powers of the Charity Commission for England and Wales under any enactment.
(2) In relation to any time before the commencement of section 1A(1) of the Charities Act 1993 (c. 10) (which provides for the establishment of the Charity Commission for England and Wales as a body corporate), any reference in section 23B of SSFA 1998 (as inserted by subsection (1) of this section) to the Charity Commission for England and Wales is to be read as a reference to the Charity Commissioners for England and Wales.
34 Parent councils for certain foundation or foundation special schools
After section 23 of EA 2002 insert—
Parent councils
23A (1) A school is for the purposes of this section a “qualifying school” if—
(a) it is a foundation or foundation special school in England,
(b) it has a foundation established otherwise than under the School Standards and Framework Act 1998, and
(c) the instrument of government for the school provides that the majority of governors are to be foundation governors.
(2) The governing body of any qualifying school must establish in accordance with regulations a body to be known as a parent council.
(3) The purpose of a parent council is to advise the governing body on matters relating to the conduct of the school and the exercise by the governing body of their powers under section 27.
(4) Regulations may make provision as to—
(a) the person or persons by whom, and the manner in which, members of a parent council are to be elected or appointed,
(b) eligibility for election or appointment,
(c) the duration of membership, and
(d) meetings and proceedings of a parent council.
(5) Regulations—
(a) must require the majority of members of a parent council to be parent members, and
(b) may enable a person who is not the parent of a registered pupil to be a member of a parent council if appointed in accordance with the regulations by the parent members.
(6) Regulations may confer functions relating to parent councils on the governing bodies of qualifying schools.
(7) The governing body of a qualifying school must, in exercising their functions under this section with respect to the school's parent council, have regard to any guidance given from time to time by the Secretary of State.
(8) The reference in subsection (1)(b) to a foundation is to be read in accordance with section 21 of the School Standards and Framework Act 1998.
(9) In this section “parent member”, in relation to a parent council, means a member of the council who is the parent of a registered pupil at the school.
35 Funding of voluntary aided schools: meaning of “capital expenditure”
(1) Part 2 of Schedule 3 to SSFA 1998 (funding of voluntary aided schools) is amended as follows.
(2) In paragraph 3, as it applies in relation to England, omit sub-paragraph (3) (the definition of “capital expenditure” for the purposes of the Schedule).
(3) After paragraph 9 insert—
Meaning of “capital expenditure”
9A (1) This paragraph applies for the purposes of this Schedule as it applies in relation to England.
(2) Subject to sub-paragraphs (3) and (4), references in this Schedule to capital expenditure, in relation to an appropriate body or the promoters, in the case of a voluntary aided school, are references to—
(a) expenditure of the body or, as the case may be, the promoters which falls to be capitalised in accordance with proper accounting practices, or
(b) expenditure which would fall to be so capitalised were it to be incurred by the body or, as the case may be, the promoters.
(3) The Secretary of State may by regulations prescribe classes or descriptions of expenditure which are to be treated for the purposes of this Schedule as being, or as not being, capital expenditure in relation to—
(a) any appropriate body, or any prescribed class or description of appropriate body;
(b) any promoters, or any prescribed class or description of promoters.
(4) The Secretary of State may by direction provide that, in the case of a particular voluntary aided school—
(a) expenditure of a particular appropriate body which is expenditure of a particular class or description;
(b) expenditure of particular promoters which is expenditure of a particular class or description,
is to be treated for the purposes of this Schedule as being, or as not being, capital expenditure in relation to that body, or as the case may be, those promoters.
(5) Directions under sub-paragraph (4) may be expressed to have effect in specified circumstances or subject to specified conditions.
(6) In this paragraph an “appropriate body”, in the case of a voluntary aided school, means—
(a) the governing body of the school, or
(b) a relevant body in relation to the school (within the meaning of paragraph 5).
9B (1) For the purposes of paragraph 9A, “proper accounting practices”, in relation to an appropriate body or the promoters, in the case of a voluntary aided school, means those accounting practices—
(a) which, whether by virtue of any enactment or by reference to any generally recognised published code or otherwise, are regarded as proper accounting practices to be followed in the keeping of accounts by the appropriate body, or as the case may be, the promoters, or
(b) which, whether by virtue of any enactment or by reference to any generally recognised published code or otherwise, are regarded as proper accounting practices to be followed in the keeping of accounts by the local authority.
(2) In the event of conflict between the accounting practices falling within paragraph (a) of sub-paragraph (1) and those falling within paragraph (b) of that sub-paragraph, only those falling within paragraph (a) are to be regarded as proper accounting practices.
(3) In this paragraph an “appropriate body”, in the case of a voluntary aided school, has the same meaning as in paragraph 9A.
Schedule 4 contains amendments of—
(a) Schedule 22 to SSFA 1998 (disposals of land by foundation, voluntary or foundation special schools and disposals on discontinuance), and
(b) section 77 of that Act (control of disposals or changes of use of school playing fields in relation to England),
and amendments which are consequential to those amendments.
37 Staff at foundation or voluntary schools with religious character
(1) In section 58 of SSFA 1998 (appointment and dismissal of certain teachers at schools with a religious character), omit subsection (4) (which prevents the head teacher of a foundation or voluntary controlled school being a reserved teacher).
(2) In section 60 of SSFA 1998 (staff at foundation or voluntary school with religious character)—
(a) in subsection (4), after “(whether foundation or voluntary controlled)” insert “ in a case where the head teacher is not to be a reserved teacher ”, and
(b) in subsection (6), after “voluntary aided school” insert “ in Wales ”.