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Part 2E+WEstablishment, discontinuance or alteration of schools

Establishment of new schoolsE+W

[F16ARequirement to seek proposals for establishment of new AcademiesE+W

(1)If a local authority in England think a new school needs to be established in their area, they must seek proposals for the establishment of an Academy.

(2)The local authority must specify a date by which any proposals sought under subsection (1) must be submitted to them.

(3)After the specified date, the local authority must notify the Secretary of State—

(a)of the steps they have taken to seek proposals for the establishment of an Academy, and

(b)of any proposals submitted to them as a result before the specified date, or of the fact that no such proposals have been submitted to them before that date.

(4)A notification under subsection (3) must—

(a)identify a possible site for the Academy, and

(b)specify such matters as may be prescribed.]

Textual Amendments

F1S. 6A inserted (1.2.2012 for specified purposes, 1.9.2012 for specified purposes) by Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 2; S.I. 2012/84, art. 3 (with art. 4); S.I. 2012/2213, art. 2

7Invitation for proposals for establishment of new schoolsE+W

(1)A [F2local authority] in England may [F3with the consent of the Secretary of State] publish a notice under this section inviting proposals from persons other than [F2local authorities] for the establishment of any new school falling within subsection (2).

(2)The schools falling within this subsection are—

(a)a foundation, voluntary or foundation special school, other than one providing education suitable only to the requirements of persons above compulsory school age, or

(b)an [F4Academy school].

(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 [F2local authority] before the date specified in the notice.

(5)After the date specified in a notice published by a [F2local authority] under this section, the authority—

(a)must publish under this section any proposals submitted pursuant to the notice in accordance with subsection (4),F5...

F5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F6(5A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Regulations may prescribe—

(a)the time within which proposals under this section must be published, [F7and ]

(b)the manner in which they must be published, F8...

F8(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Schedule 2 has effect in relation to the consideration, approval and implementation of proposals under this section.

Textual Amendments

F3Words in s. 7(1) inserted (1.2.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 3(a); S.I. 2012/84, art. 3 (with art. 4)

F4Words in s. 7(2)(b) substituted (1.4.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 13 para. 16(2); S.I. 2012/924, art. 2

F5S. 7(5)(b) and word omitted (1.2.2012) by virtue of Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 3(b); S.I. 2012/84, art. 3 (with art. 4)

F6S. 7(5A) omitted (1.2.2012) by virtue of Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 3(c); S.I. 2012/84, art. 3 (with art. 4)

F7Word in s. 7(6)(a) inserted (1.2.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 3(d); S.I. 2012/84, art. 3 (with art. 4)

F8S. 7(6)(c) and word omitted (1.2.2012) by virtue of Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 3(d); S.I. 2012/84, art. 3 (with art. 4)

Modifications etc. (not altering text)

Commencement Information

I1S. 7 in force at 25.5.2007 by S.I. 2007/935, art. 7(b)

[F97AWithdrawal of notices under section 7E+W

(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, with the consent of the Secretary of State, or

(b)the Secretary of State may direct the local authority to withdraw it.]

Textual Amendments

F108Proposals under section 7 relating to community or community special schoolsE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I2S. 8 in force at 25.5.2007 by S.I. 2007/935, art. 7(b)

9Consultation and publicity in relation to notice and proposals under section 7E+W

(1)Before publishing a notice under section 7, the [F2local 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 [F2local authority] to take prescribed steps for the purpose of promoting public awareness of any proposals published by them under section 7.

Textual Amendments

Commencement Information

I3S. 9 in force at 25.5.2007 by S.I. 2007/935, art. 7(b)

10Publication of proposals with consent of Secretary of StateE+W

(1)A [F2local authority] in England may with the consent of the Secretary of State publish under this section their proposals to establish [F11a new community, community special, foundation or foundation special school, which—

(a)is not to be one providing education suitable only to the requirements of persons above compulsory school age, and

(b)is to replace one or more maintained schools, except where section 11(A2) applies or in a case within section 11(A3).]

(2)Any persons (“proposers”) may with the consent of the Secretary of State publish under this section their proposals to establish (otherwise than pursuant to a notice under section 7) a new foundation, voluntary [F12 controlled] or foundation special school in England other than—

(a)one providing education suitable only to the requirements of persons above compulsory school age, or

(b)one in relation to which proposals fall to be published under section 11 by virtue of subsection [F13 (2)] of that section.

(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 [F2local 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 (2), the proposers must submit the proposals in accordance with regulations to the [F2local authority] who it is proposed should maintain the school.

(6)Schedule 2 has effect in relation to the consideration, approval and implementation of proposals under this section.

Textual Amendments

F11Words in s. 10(1) substituted (1.2.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 6(2); S.I. 2012/84, art. 3 (with art. 4)

F12Word in s. 10(2) inserted (1.2.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 6(3)(a); S.I. 2012/84, art. 3 (with art. 4)

F13Word in s. 10(2)(b) substituted (1.2.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 6(3)(b); S.I. 2012/84, art. 3 (with art. 4)

Modifications etc. (not altering text)

Commencement Information

I4S. 10 in force at 25.5.2007 by S.I. 2007/935, art. 7(b)

11Publication of proposals to establish maintained schools: special casesE+W

[F14(A1)Subsection (A2) applies where a local authority in England publish a notice under section 7 (notice inviting proposals for establishment of new schools), and—

(a)no proposals are made pursuant to the notice, or

(b)proposals are made pursuant to the notice but none of the proposals are approved under Schedule 2 or result in Academy arrangements being entered into.

(A2)The local authority may publish under this section proposals of their own to establish a new community, community special, foundation or foundation special school, which is not to be one providing education suitable only to the requirements of persons above compulsory school age.

(A3)Where a local authority in England propose to establish a new community, community special, foundation or foundation special school, which—

(a)is to be a primary school, and

(b)is to replace a maintained infant school and a maintained junior school,

the authority must publish their proposals under this section.]

(1)Where a [F2local authority] in England propose to establish—

(a)a new maintained nursery school, or

F15(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the authority must publish their proposals under this section.

[F16(1A)Where any persons (“proposers”) propose to establish a new voluntary aided school in England, they may publish their proposals under this section.]

(2)Where any persons (“proposers”) propose to establish a new foundation, voluntary [F17controlled] or foundation special school in England which—

F18(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F19(aa)is to replace one or more foundation or voluntary schools which have a religious character,]

(b)is to replace an independent school that is not an Academy, a city technology college or a city college for the technology of the arts, or

(c)in the case of a new foundation special school, is to replace a non-maintained special school,

they must publish their proposals under this section.

[F20(2A)For the purposes of subsection (2)(aa), a new foundation or voluntary controlled school replaces a foundation or voluntary school which has a religious character if it is proposed that the new school—

(a)should have the same religious character,

(b)should have a different religious character, or

(c)should not have a religious character.]

(3)A new foundation, voluntary [F21controlled] or foundation special school is not to be regarded for the purposes of subsection (2)(b) as replacing an independent school unless—

(a)the independent school has been registered under [F22Chapter 1 of Part 4 of the Education and Skills Act 2008 (regulation of independent educational institutions in England)] for a continuous period of at least two years ending with the date of the publication of the proposals under this section, and

(b)it is proposed that the independent school should continue in existence but should then close as an independent school immediately before the proposals are implemented.

(4)A new foundation special school is not to be regarded for the purposes of subsection (2)(c) as replacing a non-maintained special school unless—

(a)the non-maintained special school has been approved under section 342 of EA 1996 (approval of non-maintained special schools) for a continuous period of at least two years ending with the date of the publication of the proposals, and

(b)it is proposed that the non-maintained special school should continue in existence but should then close as a non-maintained special school immediately before the proposals are implemented.

(5)Proposals under this section must—

(a)contain such information, and

(b)be published in such manner,

as may be prescribed.

(6)Before publishing any proposals under this section, the 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.

(7)Where any proposals are published under subsection [F23(1A) or] (2), the proposers must submit the proposals in accordance with regulations to the [F2local authority] who it is proposed should maintain the school.

(8)Schedule 2 has effect in relation to the consideration, approval and implementation of proposals under this section.

(9)[F24In this section “non-maintained special school” means a school which is [F25approved] under section 342 of EA 1996.]

[F24In this section—

Textual Amendments

F14S. 11(A1)-(A3) inserted (1.2.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 7(2); S.I. 2012/84, art. 3 (with art. 4)

F17Word in s. 11(2) inserted (1.2.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 7(4)(a); S.I. 2012/84, art. 3 (with art. 4)

F21Word in s. 11(3) inserted (1.2.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 7(6); S.I. 2012/84, art. 3 (with art. 4)

F23Words in s. 11(7) inserted (1.2.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 7(7); S.I. 2012/84, art. 3 (with art. 4)

F24S. 11(9) substituted (1.2.2012 for certain purposes) by Education Act 2011 (c. 21), s. 82(3), Sch. 11 para. 7(8); S.I. 2012/84, art. 3 (with art. 4)

Modifications etc. (not altering text)

Commencement Information

I5S. 11 in force at 25.5.2007 by S.I. 2007/935, art. 7(b)

12Establishment of school as federated schoolE+W

(1)Proposals under—

(a)section 7, 10 or 11, or

F26(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

for the establishment of a new [F27maintained] 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.

Textual Amendments

Commencement Information

I6S. 12 in force at 25.5.2007 by S.I. 2007/935, art. 7(b)

13Schools established outside area of relevant [F28local authority] E+W

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 [F2local authority] who published the notice under that section, or

(b)in the case of proposals published under section 10 or 11, the school is proposed to be established in an area in England other than that of the [F2local authority] who it is proposed should maintain the school.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I7S. 13 in force at 25.5.2007 by S.I. 2007/935, art. 7(b)

14 [F28Local authority] in England not to establish school in WalesE+W

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 [F2local authority] in England.

Textual Amendments

Commencement Information

I8S. 14 in force at 25.5.2007 by S.I. 2007/935, art. 7(b)

Discontinuance of schoolsE+W

15Proposals for discontinuance of schools maintained by [F2local authority] E+W

(1)Where a [F2local 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 [F2local 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 [F2local 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 [F2local 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 [F2local 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.

Textual Amendments

Modifications etc. (not altering text)

C8Ss. 15-17 excluded (29.7.2010) by Academies Act 2010 (c. 32), ss. 6(9), 19(2); S.I. 2010/1937, art. 2, Sch. 1

Commencement Information

I9S. 15 in force at 25.5.2007 by S.I. 2007/935, art. 7(b)

16Consultation in relation to proposals under section 15E+W

(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 [F2local authority] (where they are not the relevant body),

(ii)where the [F2local 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 [F2local authority] which maintain [F29an EHC plan or] a statement under section 324 of EA 1996 (statement of special educational needs) [F30or 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.

Textual Amendments

Modifications etc. (not altering text)

C8Ss. 15-17 excluded (29.7.2010) by Academies Act 2010 (c. 32), ss. 6(9), 19(2); S.I. 2010/1937, art. 2, Sch. 1

Commencement Information

I10S. 16 in force at 25.5.2007 by S.I. 2007/935, art. 7(b)

17Direction requiring discontinuance of community or foundation special schoolE+W

(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 [F2local 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 [F2local 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 [F2local authority],

(b)any other [F2local 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 [F2local 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.

Textual Amendments

Modifications etc. (not altering text)

C8Ss. 15-17 excluded (29.7.2010) by Academies Act 2010 (c. 32), ss. 6(9), 19(2); S.I. 2010/1937, art. 2, Sch. 1

Commencement Information

I11S. 17 in force at 25.5.2007 by S.I. 2007/935, art. 7(b)

Alterations to schoolsE+W

18Alterations that may be made under section 19E+W

(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.

Commencement Information

I12S. 18(1)-(3) in force at 1.4.2007 by S.I. 2007/935, art. 5(b)

I13S. 18(4)(5) in force at 25.5.2007 by S.I. 2007/935, art. 7(c)

19Publication of proposals for alteration of schoolE+W

(1)Where—

(a)the [F2local 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 [F2local authority],

the authority must publish their proposals under this section.

(2)A prescribed alteration is capable of being proposed by a [F2local 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 [F2local 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—

Textual Amendments

Commencement Information

I14S. 19 in force at 25.5.2007 by S.I. 2007/935, art. 7(d)

20Restriction on power of governing body to publish foundation proposalsE+W

(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
SchoolPrescribed 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—

Commencement Information

I15S. 20 in force at 25.5.2007 by S.I. 2007/935, art. 7(d)

21Proposals under section 19: procedureE+W

(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 [F2local authority], on any other [F2local 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 [F2local authority] or the adjudicator to make a transitional exemption order for the purposes of [F31paragraphs 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.

Textual Amendments

F31Words in s. 21(5) substituted by 2010 c. 15, Sch. 26 Pt. 1 para. 93 (as inserted (1.10.2010) by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 6 (see S.I. 2010/2317, art. 2))

Commencement Information

I16S. 21 in force at 1.4.2007 by S.I. 2007/935, art. 5(c)

22Right of governing body to determine own foundation proposalsE+W

(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 [F2local 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 [F2local authority] to require the proposals to be referred to the adjudicator.

Textual Amendments

Commencement Information

I17S. 22 in force at 1.4.2007 by S.I. 2007/935, art. 5(c)

23Rights of interested bodies in relation to proposals under section 21E+W

(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 [F2local 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 [F2local 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

F32(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)If regulations under section 21 provide for any proposals published by a [F2local authority] in relation to a foundation or voluntary school or a foundation special school to be determined by the [F2local 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.

Textual Amendments

Commencement Information

I18S. 23 in force at 1.4.2007 by S.I. 2007/935, art. 5(c)

24Proposals under section 19: implementationE+W

(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.

[F33(9)In subsection (4) “local authority” includes a non-metropolitan district council for an area for which there is a county council.]

Textual Amendments

Commencement Information

I19S. 24 in force at 1.4.2007 by S.I. 2007/935, art. 5(c)

Removal of foundation or reduction in foundation governorsE+W

25Proposals for removal of foundation or reduction in foundation governorsE+W

(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.

Commencement Information

I20S. 25(1)-(4) (8) in force at 25.5.2007 by S.I. 2007/935, art. 7(e)

I21S. 25(5)-(7) in force at 1.4.2007 by S.I. 2007/935, art. 5(d)

26Proposals under section 25: procedureE+W

(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.

Commencement Information

I22S. 26 in force at 1.4.2007 by S.I. 2007/935, art. 5(e)

27Proposals under section 25: implementationE+W

(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 [F2local 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 [F2local 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.

Textual Amendments

Commencement Information

I23S. 27(1)-(6) (8) in force at 1.4.2007 by S.I. 2007/935, art. 5(f)

I24S. 27(7) in force at 25.5.2007 by S.I. 2007/935, art. 7(f)

GeneralE+W

28Restriction on establishment, alteration or discontinuance of schoolsE+W

(1)Except in pursuance of proposals falling to be implemented under this Part F34...—

(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),F35...

(b)section 30(9) of SSFA 1998 (notice by governing body to discontinue foundation or voluntary school)[F36, 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.

Textual Amendments

F35Word in s. 28(3) omitted (29.7.2010) by virtue of Academies Act 2010 (c. 32), s. 19(2), Sch. 2 para. 20; S.I. 2010/1937, art. 2, Sch. 1

F36S. 28(3)(c) and word inserted (29.7.2010) by Academies Act 2010 (c. 32), s. 19(2), Sch. 2 para. 20; S.I. 2010/1937, art. 2, Sch. 1

Commencement Information

I25S. 28 in force at 25.5.2007 by S.I. 2007/935, art. 7(g)

29Abolition of school organisation committeesE+W

Section 24 of, and Schedule 4 to, SSFA 1998 (which require [F2local authorities] in England to establish a school organisation committee for their area) cease to have effect.

Textual Amendments

Commencement Information

I26S. 29 in force at 25.5.2007 by S.I. 2007/935, art. 7(g)

30Amendments relating to school organisationE+W

Schedule 3 contains amendments relating to school organisation.

Commencement Information

I27S. 30 in force at 25.5.2007 by S.I. 2007/935, art. 7(g)

31Transitional provisionsE+W

(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.

Commencement Information

I28S. 31 in force at 1.4.2007 by S.I. 2007/935, art. 5(g)

32Interpretation of Part 2E+W

(1)In this Part, except where the contrary intention appears—

(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.

Textual Amendments

Commencement Information

I29S. 32 in force at 1.4.2007 by S.I. 2007/935, art. 5(g)