Office of Public Sector Information
PART I continued CHAPTER III continued
(6) The vesting of property, rights, liabilities and obligations under this section shall have effect notwithstanding—
(a) anything to the contrary in; or
(b) any condition relating to the transfer of such property, rights, liabilities or obligations contained in,
any enactment (including an enactment contained in a subordinate instrument whether passed or made before or after the coming into force of this section), rule of law or obligation.
(7) Schedule 3 to this Act shall have effect as regards—
(a) the transfer of property effected by this section; and
(b) the apportionment of such property between colleges of further education or, as the case may be, between education authorities and such colleges.
(8) Schedule 4 to this Act shall have effect as regards commissioners for further education assets.
(9) In this section “the relevant period” is the period commencing on the 22nd March 1991 and ending immediately before the first transfer date.
(1) Not later than such date as the Secretary of State may direct, the education authority and the board of management shall, in respect of each college of further education prescribed by an order made under section 11 of this Act, arrive at a written agreement as to—
(a) the amount of any surplus or deficit in the accounts of the college council for the college as at the day immediately before the first transfer date; and
(b) which of the education authority or board of management any such surplus or deficit or any proportion of such surplus or deficit is to be transferred to and vest in,
and, where the agreement provides for the amount of any surplus or deficit, or any proportion of such surplus or deficit to be transferred and vest as mentioned in paragraph (b) above, such amount together with interest on that amount from the day mentioned in paragraph (a) above, shall be transferred and vest as at the date so directed.
(2) Before making a direction under subsection (1) above as to the date by which an education authority and a board of management are to arrive at a written agreement, the Secretary of State shall consult the education authority and the board of management.
(3) An agreement made under subsection (1) above shall be conclusive evidence of the matters contained therein.
(4) Where it appears to an education authority or a board of management that it is unlikely that they will be able to arrive at a written agreement as mentioned in subsection (1) above the authority or the board may refer the matter to the Secretary of State who shall appoint a commissioner for further education assets.
(5) Where the education authority and the board of management have failed to arrive at an agreement as mentioned in subsection (1) above and neither of them has applied to the Secretary of State under subsection (4) above, the Secretary of State may appoint a commissioner as if a reference had been made to him under the said subsection (4).
(6) Where the failure of an education authority and a board of management to arrive at a written agreement is referred to a commissioner for further education assets under subsection (4) or (5) above, the commissioner shall, after consulting the authority and the board, determine the matter and issue a written determination to them; and a determination under this subsection—
(a) may include any provision which could have been included in an agreement made under subsection (1) above; and
(b) shall have effect for all purposes as if it were an agreement made under that subsection.
(7) No application for the rectification of an agreement made under subsection (1) above or a determination under subsection (6) above may be made to the court under section 8 of the [1985 c. 73.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (rectification of defectively expressed documents) by—
(a) in the case of such an agreement, the education authority or board of management who were a party to it; and
(b) in the case of such a determination, the commissioner or an education authority or board of management who are affected by the determination,
without the prior consent, given in writing, of the Secretary of State.
(8) The education authority and the board of management who are parties to a dispute referred to a commissioner for further education assets under subsection (4) or (5) above shall provide the commissioner with such information and records of accounts as he may require for the purpose of enabling him to make a determination under that subsection.
(1) Subject to subsection (4) below, the board of management of a college of further education shall not dispose of any property to which this section applies without the prior consent, given in writing, of the Secretary of State.
(2) Property to which this section applies is—
(a) property transferred to the board under or in pursuance of any of the provisions of this Part of this Act;
(b) property acquired by the board wholly or partly with assets which represent or in any way derive from any part of the proceeds of or any consideration for the disposal of property so transferred; and
(c) property acquired, improved or maintained wholly or partly, directly or indirectly, out of funds provided under or in pursuance of this Part of this Act by the Secretary of State or from the proceeds of or any consideration for the disposal of any property so acquired, improved or maintained.
(3) The consent of the Secretary of State may be given in respect of a particular disposal of property or of disposals of any class or description and may be given subject to such conditions as the Secretary of State may determine.
(4) The consent of the Secretary of State is not required for the disposal of land which is or forms part of property to which this section applies where the disposal is in consequence of the compulsory acquisition of such land by any authority in pursuance of any power of compulsory acquisition under any enactment; but the board of management shall inform the Secretary of State of any such compulsory acquisition.
(5) Where any property to which this section applies is disposed of, the board of management shall pay to the Secretary of State such portion of the proceeds or value of the consideration for the disposal, after deduction of such expenses as appear to the Secretary of State to have been reasonably incurred in the disposal, as the Secretary of State may, after consultation with the board, determine.
(1) Where, immediately before the first transfer date in relation to any college of further education prescribed by the Secretary of State under section 11 of this Act, an educational endowment is to any extent vested in an education authority or an officer of such an authority solely for the purposes of benefiting—
(a) the college; or
(b) students of the college,
such endowment shall, on that date, to that extent and for those purposes, be transferred to and vest in the board of management of the college.
(2) Where, immediately before the first transfer date, an educational endowment is vested in an education authority or one of their officers —
(a) for the benefit of all colleges of further education in the area of the authority; or
(b) for the benefit of any group of such colleges; or
(c) for the benefit of students of such colleges,
and any such college is a college prescribed as mentioned in subsection (1) above, the authority or, as the case may be, their officer shall continue to apply such endowment for the benefit of such college or, as the case may be, students of such college as if it had not been so prescribed.
(3) The Secretary of State may by order make such modifications as he thinks fit—
(a) to the purposes to which any relevant educational endowment may be applied; and
(b) to any conditions or provisions regarding such application,
provided that following any such modifications the purposes to which the endowment may be applied shall continue to be charitable purposes within the meaning of the Income Tax Acts.
(4) Before making any modifications under subsection (3) above to the purposes to which a relevant educational endowment may be applied, the Secretary of State shall, so far as it appears to him practicable to do so, consult—
(a) the board of management; and
(b) where any other person is empowered, by whatever means, to modify the purposes to which the endowment may be applied, that person.
(5) For the purposes of subsections (3) and (4) above, a “relevant educational endowment” is an educational endowment which is transferred to and vested in the board of management of a college of further education as mentioned in subsection (1) above.
(1) Without prejudice to section 19(3) of this Act, the Secretary of State may by order make such modifications as he thinks fit of any trust deed relating to any land or other property held by any person for the purposes of any college of further education prescribed under section 11 of this Act.
(2) Before making any modifications under subsection (1) above of any trust deed the Secretary of State shall, so far as it appears to him practicable to do so, consult—
(a) the board of management of the college; and
(b) where any other person is empowered, by whatever means, to modify the trust deed, that person.
(1) The Secretary of State may give boards of management directions of a general or specific character with regard to the discharge of their functions; and it shall be the duty of a board of management to whom any such directions are given to comply with the directions.
(2) A direction given under this section may be varied or revoked by a subsequent direction so given.
(3) A direction given under this section may be addressed to one or to more than one board of management.
(1) Every board of management shall, not later than such date in every financial year as the Secretary of State may determine, submit to the Secretary of State a college development plan in respect of their college.
(2) The college development plan shall be prepared in respect of the academic year commencing in the next following financial year and the succeeding two academic years.
(3) The college development plan shall contain a statement of—
(a) the number of persons the board estimates will be students of the college;
(b) the programmes of learning of further education (within the meaning of section 1(5)(b) of the 1980 Act) which the board proposes to provide or secure the provision of;
(c) the capital expenditure proposed by the board and their estimate of the recurrent expenditure and income of the college; and
(d) such other matters as may be determined by the Secretary of State,
as regards each academic year to which the plan relates.
(4) In preparing their development plan, a board of management—
(a) shall have regard to any guidance issued to them by the Secretary of State; and
(b) shall consult with the education authority in whose area the college is situated and the local enterprise company for the area in which the college is situated,
and in this subsection “local enterprise company” has the meaning given by paragraph 3(5) of Schedule 2 to this Act.
(5) A development plan prepared in pursuance of this section shall be in such form as the Secretary of State may determine.
(6) Any power of the Secretary of State under this section to make a determination may be exercised differently in respect of different colleges.
A board of management shall, when requested to do so by an education authority in whose area their college is situated, provide to the authority as soon as is reasonably practicable such information or advice as the authority may reasonably request from the board to facilitate the carrying out by the authority of their duty under section 65B of the 1980 Act (provision for recorded children over school age) to consider in relation to any recorded child what provision would benefit him after he ceases to be of school age and to make a report thereon.
(1) If it appears to the Secretary of State that the affairs of the board of management of any college of further education have been or are being mismanaged, he may by order—
(a) remove all of the members of the board or any of them (other than the principal of the college); and
(b) as regards those members not appointed in pursuance of sub-paragraphs (b), (c) and (d) of paragraph 3(2) of Schedule 2 to this Act, appoint new members to the board in place of those so removed.
(2) Where the Secretary of State exercises the power conferred by subsection (1) above to remove members of the board, he shall give notice in writing to any members and to the board of such removal.
(3) In making any appointment under this section the Secretary of State shall comply with the requirements of paragraphs 2, 3, 6 and 7 of Schedule 2 to this Act as to the appointment of members of boards of management; and any reference in those paragraphs to the board of management doing or being required to do anything shall, for the purposes of this section, be construed as a reference to the Secretary of State doing or being required to do that thing.
(4) An appointment made under this section shall have effect as if made under paragraph 3 of the said Schedule 2.
(5) A person appointed under this section shall hold office until the expiry of the period of office of the person he was appointed to replace.
(1) Where the Secretary of State determines, after such consultation as is required by section 5 of this Act, to make an order—
(a) closing a college of further education; or
(b) designating a college such as is mentioned in paragraph (b) of subsection (2) of that section as a designated institution within the meaning of Part II of this Act,
the order shall contain provision winding-up the board of management of the college, and the provisions of this section shall have effect.
(2) An order made for the purposes mentioned in subsection (1) above may include provision—
(a) for the property, rights, liabilities and obligations of the board of management to transfer to and vest in—
(i) the Secretary of State;
(ii) subject to subsection (7) below, such other board of management established or to be established in pursuance of this Part of this Act as may be specified in the order; or
(iii) subject to subsection (7) below, such other person as may be so specified;
(b) for the payment by the Secretary of State of any expenses incurred in the closure or winding-up;
(c) imposing such duties or conferring such additional powers in relation to the closure or winding-up as the Secretary of State may consider appropriate;
(d) for the exercise of any of the board’s functions by any member of the board specified by the Secretary of State in the order;
(e) for the appointment of a person to administer the closure or winding-up, and any person so appointed shall have such powers and duties as appear to the Secretary of State necessary or expedient for such purposes and as are specified in the order;
(f) of such incidental, supplementary, transitional or ancillary nature as appears to the Secretary of State to be necessary or expedient for the purposes of the closure or winding-up.
(3) Notwithstanding that an order has been made for the winding-up of the board of management—
(a) the Secretary of State may continue to issue directions to the board of management under section 21 of this Act; and
(b) such board of management shall continue to comply with any directions given by the Secretary of State whether before or after the making of such an order.
(4) Directions under the said section 21 may be given to a person appointed under subsection (2)(e) above, and such person shall be under the like duty as the board of management to comply with any such directions.
(5) When the winding-up of the board of management of a college of further education under this section is completed, the Secretary of State shall by order dissolve the board of management of that college.
(6) In this section, references to the closure of a college include references to the college being merged with one or more other colleges; and different provision may be made under this section as regards different colleges to be merged with one another.
(7) An order under subsection (1) above shall not contain provision transferring and vesting property, rights, liabilities and obligations as mentioned in sub-paragraph (ii) or (iii) of subsection (2)(a) above unless the body or person mentioned in that sub-paragraph has consented to the transfer and vesting.
(1) This section applies to any college of further education within the meaning of the 1989 Act, not being a college which is prescribed under section 11 of this Act.
(2) With effect from the first transfer date—
(a) the college council for every college of further education to which this section applies shall cease to exist;
(b) any functions delegated to such college council by virtue of a delegation scheme under section 56 of the 1989 Act shall revert to the education authority in whose area the college is situated; and
(c) any property, rights, liabilities and obligations of such college council shall, by virtue of this section, transfer to and vest in such education authority.
(1) The Secretary of State may by regulations require the board of management of a college of further education to publish such information as may be prescribed as to—
(a) the educational provision made or proposed to be made for students of the college (including students with learning difficulties);
(b) the educational achievements of such students while students of the college (including the results of examinations, tests and other assessments);
(c) the careers of such students after leaving the college; and
(d) the facilities provided or proposed to be provided for students of the college who have learning difficulties and disabled staff of the college.
(2) For the purposes of subsection (1)(c) above, a person’s career includes any education, training, employment or occupation; and the regulations may in particular require the published information to show—
(a) the numbers of students not undertaking any career; and
(b) the persons providing students with education, training or employment.
(3) The information shall be published in such form and manner and at such times as may be prescribed.
(4) The published information shall not disclose the name of any student to whom it relates without the prior consent, given in writing, of such student.
(1) This section applies to any land which, at any time during the period beginning on 22nd March 1991 and ending on the first transfer date, was owned, held, used or obtained by an education authority wholly or partly for or in connection with the purposes of a college of further education which, at any time during that period—
(a) was under the management of the education authority (whether or not any functions had been delegated to a college council in pursuance of a delegation scheme under section 56 of the 1989 Act); and
(b) was providing at least one full-time programme of further education.
(2) Subject to subsections (3) and (5) below, an education authority shall not dispose of or enter into any agreement or unilateral obligation for the disposal of any land to which this section applies without the prior consent, given in writing, of the Secretary of State.
(3) The consent of the Secretary of State is not required for the disposal of any land in pursuance of any requirement of an order of any court, anything in any enactment (including an enactment contained in a subordinate instrument) or any rule of law.
(4) Any consent for the purposes of this section may be given—
(a) either in respect of a particular disposal or in respect of disposals of any class or description; and
(b) either unconditionally or subject to conditions.
(5) Nothing in this section shall affect anything required to be done by an education authority in pursuance of an obligation entered into by them before 22nd March 1991 and, if the obligation is a unilateral obligation, notified by them to the beneficiary before that date.
(6) This section shall have effect notwithstanding anything in section 74 of the [1973 c. 65.] Local Government (Scotland) Act 1973 or in any other enactment (including an enactment contained in a subordinate instrument) relating to the disposal of land held by a local authority.
(1) This section applies to all property to which section 28 of this Act does not apply which, at any time during the period beginning on 22nd March 1991 and ending on the first transfer date, was owned, held, used or obtained by an education authority wholly or partly for or in connection with the purposes of a college such as is mentioned in that section.
(2) Subject to subsections (3) and (5) below, an education authority shall not, without the prior consent, given in writing, of the Secretary of State—
(a) dispose of or enter into any agreement or unilateral obligation for the disposal of; or
(b) remove or cause to be removed or enter into any agreement or unilateral obligation for the removal from any premises owned, held, used or obtained by them wholly or partly for or in connection with the purposes of such a college of,
any property to which this section applies.
(3) The consent of the Secretary of State is not required for the disposal or removal of any property in pursuance of any requirement of an order of any court, anything in any enactment (including an enactment contained in a subordinate instrument) or any rule of law.
(4) Any consent for the purposes of this section may be given—
(a) either in respect of a particular disposal or in respect of disposals of any class or description; and
(b) either unconditionally or subject to conditions.
(5) Nothing in this section shall affect anything required to be done by an education authority in pursuance of an obligation entered into by them before 22nd March 1991 and, if the obligation is a unilateral obligation, notified by them to the beneficiary before that date.
(1) This section applies to any contract which—
(a) is entered into by an education authority after 21st March 1991 and before the first transfer date; and
(b) would, if the college were prescribed under section 11 of this Act, be binding on the board of management of the college of further education with effect from the first transfer date.
(2) Notwithstanding any other provision of this Part of this Act, an education authority shall not enter into a contract to which this section applies without the prior consent, given in writing, of the college council for the college.
(3) Without prejudice to section 28 or 29 of this Act, an education authority shall not enter into a contract to which this section applies in respect of which the consideration or, where the consideration is not expressed as an amount of money, the value of the consideration exceeds £50,000 without the prior consent, given in writing, of the Secretary of State.
(4) For the purposes of subsection (3) above, the consideration or value of the consideration in respect of a contract of employment exceeds £50,000 if, in respect of any period of 12 months, the aggregate amount of the remuneration payable to and value of other benefits receivable by the employee exceeds £50,000.
(5) Any consent for the purposes of this section may be given in respect of a particular contract or in respect of contracts of any class or description; and such consent may be given unconditionally or subject to conditions.
(6) Where any contract entered into by an education authority whether on, before or after 21st March 1991 is varied after that date and the effect of such variation is as mentioned in paragraph (b) of subsection (1) above, the contract shall be treated, for the purposes of this section, as if it were a contract entered into after that date.
(1) This section and section 32 of this Act shall have effect in the case of any disposal or removal made by an education authority or any agreement or unilateral obligation for such disposal or removal entered into in contravention of section 28 or 29 of this Act or any contract entered into by them in contravention of section 30 of this Act.
(2) Where any land to which section 28 of this Act applies is disposed of by an education authority in contravention of that section, the board of management may, with the consent of the Secretary of State, compulsorily acquire the land.
(3) In any case where an education authority—
(a) has agreed to a disposal of land in contravention of section 28 of this Act; or
(b) has agreed to a disposal of other property or to the removal of any such property in contravention of section 29 of this Act; or
(c) has entered into a contract in contravention of section 30 of this Act; or
(d) has entered into a unilateral obligation to dispose of or remove any property in contravention of the said section 28 or 29,
and the agreement, contract or other obligation, has not been implemented, or has been implemented only in part, then to the extent that it has not been so implemented, the board of management may repudiate the agreement, contract or obligation in accordance with subsection (4) below.
(4) A repudiation under subsection (3) above shall be effected by the board of management serving notice in writing of the repudiation on the education authority and—
(a) in the case of an agreement or contract, on the parties to the agreement or contract and any other person who is a beneficiary under the agreement or contract;
(b) in the case of a unilateral obligation, on any beneficiary under the obligation.
(5) A repudiation under subsection (3) above shall have effect as if made by the education authority.
(6) The [1947 c. 42.] Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply to the compulsory acquisition of land under this section as if this section had been in force immediately before the commencement of that Act and, in relation to such acquisition, the board of management shall be treated as if they were a local authority within the meaning of that Act.
(7) For the purposes of a compulsory acquisition of land under this section, the board of management shall be treated as a public authority for the purposes of section 278 of the [1972 c. 52.] Town and Country Planning (Scotland) Act 1972 (general vesting declarations on compulsory acquisition).
(8) For the purposes of this section and section 32 of this Act, references to the board of management shall be construed as references to—
(a) in the case of land disposed of in contravention of section 28 of this Act, the board of management of the college of further education for or in connection with the purposes of which the land was owned, held, used or obtained;
(b) in the case of other property disposed of or removed in contravention of section 29 of this Act, the board of management of the college of further education for or in connection with the purposes of which the property was owned, held, used or obtained; and
(c) in the case of a contract entered into in contravention of section 30 of this Act, the board of management of the college of further education which would, by virtue of section 16 of this Act, be bound by the contract,
and any reference in this subsection to the disposal of land or to the disposal or removal of other property shall include a reference to an agreement or unilateral obligation for such disposal or removal.
(1) Where an education authority has, in relation to any college of further education, done or permitted anything to be done in contravention of anything in sections 28 to 30 of this Act, the board of management of the college shall be entitled to recover from the education authority the amount of any loss or damage, as determined in accordance with this section, incurred by the board in consequence of—
(a) the doing of that thing; and
(b) any action taken by the board in pursuance of section 31 of this Act,
and the board of management may raise proceedings for the recovery of the amount of such loss or damage.
(2) The loss or damage referred to in subsection (1) above includes—
(a) where any land is compulsorily acquired in pursuance of subsection (2) of the said section 31, the amount of compensation paid in respect of such compulsory acquisition;
(b) in the case of any land which is not so acquired, the amount of the value of the land assessed as at the first transfer date;
(c) in the case of an agreement, contract or unilateral obligation which has been repudiated in pursuance of subsection (3) of the said section 31, the amount of any loss suffered by the board of management in consequence of the repudiation;
(d) in the case of an agreement, contract or unilateral obligation which has not been so repudiated, the amount of any loss sustained by the board of management in consequence of the implementation of the contract;
(e) in any case, any other loss or any expenses incurred by the board of management in consequence of the disposal or removal of property or an agreement, contract or unilateral obligation having been made or entered into,
together with interest on such amount or expenses from, in the case of loss or damage referred to in paragraph (b) above, the first transfer date and in any other case, such date after that date when the loss or damage occurred.
(1) This section applies to any contract made during the period commencing on 4th November 1991 and ending on the day before the first transfer date (or made before but varied during that period) between an education authority and a person to whom this section applies, not being a contract made in contemplation of the employee’s pending dismissal by the authority by reason of redundancy.
(2) This section applies to a person if—
(a) it is a condition of his contract of employment that he is employed to work exclusively at a college of further education under the management of the authority (whether or not any functions have been delegated to the college council for the college in pursuance of a delegation scheme under section 56 of the 1989 Act), being a college which at any time during the period beginning with 4th November 1991 and ending on the date the contract was made or, as the case may be, varied was providing at least one full-time programme of further education; or
(b) it is not such a condition of his contract of employment, but the terms of his contract are such that the authority is entitled to assign him to work at a college such as is mentioned in paragraph (a) above during the period mentioned in subsection (1) above.
(3) In so far as any contract to which this section applies provides that the employee—
(a) shall not be dismissed by reason of redundancy; or
(b) if he is so dismissed, shall be paid a sum in excess of the sum which the employer is liable to pay to him under section 81 of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978,
the contract shall be void and of no effect.
(1) This section shall apply to the college council of every college of further education prescribed by order made under section 11 of this Act.
Further and Higher Education (Scotland) Act 1992