School Standards and Organisation (Wales) Act 2013

PART 3 SCHOOL ORGANISATION

CHAPTER 1 SCHOOL ORGANISATION CODE

38 School Organisation Code

(1) The Welsh Ministers must issue, and may from time to time revise, a code on school organisation (“the Code”).

(2) The Code is to contain provision about the exercise of the functions of the following persons under this Part—

(a) the Welsh Ministers;

(b) local authorities;

(c) governing bodies of maintained schools;

(d) other persons in connection with proposals made (or to be made) by them under this Part.

(3) The Code may impose requirements, and may include guidelines setting out aims, objectives and other matters.

(4) The persons referred to in subsection (2) must, when exercising functions under this Part—

(a) act in accordance with any relevant requirements contained in the Code, and

(b) have regard to any relevant guidelines contained in it.

(5) The duty imposed by subsection (4) also applies to a person exercising a function for the purpose of the discharge of functions under this Part by—

(a) the Welsh Ministers,

(b) a local authority,

(c) the governing body of a maintained school, or

(d) other persons in connection with proposals made (or to be made) by them under this Part.

(6) The Welsh Ministers must publish the Code for the time being in force on their website.

(7) The Welsh Ministers may make separate provision (by means of separate codes) in relation to different functions under this Part of the persons mentioned in subsection (2).

(8) References in this section to “the Code” or to functions under this Part have effect, in relation to a separate code, as references to that code or to functions under this Part to which it relates.

39 Making and approval of School Organisation Code

(1) Before issuing or revising a code under section 38, the Welsh Ministers must consult the following persons on a draft of the code (or revised code)—

(a) each local authority,

(b) the governing body of each maintained school,

(c) Her Majesty’s Chief Inspector of Education and Training in Wales, and

(d) any other person the Welsh Ministers consider appropriate.

(2) If the Welsh Ministers wish to proceed with the draft (with or without modifications) they must lay a copy of the draft before the National Assembly for Wales.

(3) If, before the end of the 40 day period, the National Assembly resolves not to approve the draft of the code, the Welsh Ministers must not issue the proposed code in the form of that draft.

(4) If no such resolution is made before the end of that period—

(a) the Welsh Ministers must issue the code (or revised code) in the form of the draft, and

(b) the code (or revised code) comes into force on the date appointed by order of the Welsh Ministers.

(5) The 40 day period—

(a) begins on the day on which the draft is laid before the National Assembly for Wales, and

(b) does not include any time during which the National Assembly for Wales is dissolved or is in recess for more than four days.

(6) Subsection (3) does not prevent a new draft of a proposed code from being laid before the National Assembly.

(7) References in this section to a proposed code include a proposed revised code.

(8) The requirement to consult imposed by subsection (1) may be satisfied by consultation undertaken before the coming into force of this Part even though the code issued under section 38(1) takes account (to any extent) of any provision made by this Part.

CHAPTER 2 SCHOOL ORGANISATION PROPOSALS

Establishment, alteration and discontinuance of maintained schools

40 Restriction on establishment, alteration and discontinuance of maintained schools

(1) A new community school, voluntary school or community special school may be established in Wales only in accordance with this Part.

(2) No new foundation school or foundation special school may be established in Wales.

(3) A maintained school may be discontinued only in accordance with this Part.

(4) An alteration which is a regulated alteration in relation to the type of school in question may be made to a maintained school only in accordance with this Part.

(5) No alteration may be made to a maintained school that changes the religious character of the school or causes a school to acquire or lose a religious character.

(6) Subsection (3) has effect subject to section 16(5) (power of Welsh Ministers to direct closure of school).

(7) Schedule 2 (which describes regulated alterations) has effect.

41 Proposals to establish mainstream schools

(1) A local authority may make proposals to establish—

(a) a new community school, or

(b) a new maintained nursery school.

(2) Any person may make proposals to establish a new voluntary school.

42 Proposals to alter mainstream schools

(1) A local authority may make proposals—

(a) to make a regulated alteration to a community school;

(b) with the consent of the Welsh Ministers, to make an alteration described in paragraph 6 of Schedule 2 (opening or closing a school’s sixth form) to a voluntary or foundation school;

(c) to make an alteration described in paragraph 10, 11, 12 or 13 of Schedule 2 (increasing and reducing capacity) to a voluntary or foundation school if that school does not have a religious character;

(d) to make a regulated alteration to a maintained nursery school.

(2) The governing body of a foundation or voluntary school may make proposals to make a regulated alteration to the school.

43 Proposals to discontinue mainstream schools

(1) A local authority may make proposals to discontinue—

(a) a community, foundation or voluntary school, or

(b) a maintained nursery school.

(2) The governing body of a foundation or voluntary school may make proposals to discontinue the school.

44 Proposals to establish, alter or discontinue community special schools

A local authority may make proposals—

(a) to establish a new community special school,

(b) to make a regulated alteration to such a school, or

(c) to discontinue such a school.

Changes of category

45 Proposals to change a school’s category

(1) The governing body of a community school may make proposals for the school to become a voluntary aided school or a voluntary controlled school.

(2) The governing body of a voluntary aided school may make proposals for the school to become a community school or a voluntary controlled school (but see subsection (5)).

(3) The governing body of a voluntary controlled school may make proposals for the school to become a community school or a voluntary aided school (but see subsection (5)).

(4) The governing body of a foundation school may make proposals for the school to become a community school, a voluntary aided school or a voluntary controlled school (but see subsection (5)).

(5) No proposals may be made for a foundation or voluntary school which has a religious character to become a community school.

46 Restrictions on changing category of school

(1) A maintained school within one of the categories set out in section 20(1) of the School Standards and Framework Act 1998 may become a school within another of those categories (except a foundation school or foundation special school) only in accordance with this Part.

(2) A school may not change category to become a voluntary aided school unless the governing body of the school satisfies the Welsh Ministers that it will be able to carry out its obligations under Schedule 3 to the School Standards and Framework Act 1998 (funding of voluntary aided schools) for a period of at least five years following the date on which it is proposed that the change of category is to take place.

(3) A voluntary or foundation school may not become a community school unless any transfer agreement and transfer of rights and liabilities agreement required by Part 3 of Schedule 4 has been entered into.

47 Effect of change of category

(1) A school’s change of category in accordance with proposals made under section 45 is not to be taken as authorising or requiring any change in the character of the school (including, in particular, any religious character of the school).

(2) A school’s change of category in accordance with proposals made under section 45 is not to be taken as authorising a school to establish, join or leave a foundation body.

Publication, consultation and objections

48 Publication and consultation

(1) A proposer must publish proposals made under this Chapter in accordance with the Code.

(2) Before publishing proposals made under this Chapter, a proposer must consult on its proposals in accordance with the Code.

(3) The requirement to consult does not apply to proposals to discontinue a school which is a small school (see section 56).

(4) Before the end of 7 days beginning with the day on which they were published, the proposer must send copies of the published proposals to—

(a) the Welsh Ministers, and

(b) the local authority (if it is not the proposer) that maintains, or that it is proposed will maintain, the school to which the proposals relate.

(5) The proposer must publish a report on the consultation it has carried out in accordance with the Code.

49 Objections

(1) Any person may object to proposals published under section 48.

(2) Objections must be sent in writing to the proposer before the end of 28 days beginning with the day on which the proposals were published (“the objection period”).

(3) The proposer must publish a summary of all objections made in accordance with subsection (2) (and not withdrawn) and its response to those objections—

(a) in the case of a local authority that is required to determine its own proposals under section 53, before the end of 7 days beginning with the day of its determination under section 53(1), and

(b) in all other cases, before the end of 28 days beginning with the end of the objection period.

Approval and determination of proposals

50 Approval by Welsh Ministers

(1) Proposals published under section 48 require approval under this section if—

(a) the proposals affect sixth form education, or

(b) the proposals have been made by a proposer other than the relevant local authority and an objection has been made by that authority in accordance with section 49(2) and has not been withdrawn in writing before the end of 28 days beginning with the end of the objection period.

(2) Proposals affect sixth form education if—

(a) they are proposals to establish or discontinue a school providing education suitable only to the requirements of persons above compulsory school age, or

(b) they are proposals to make a regulated alteration to a school, the effect of which would be that provision of education suitable to the requirements of persons above compulsory school age at the school increases or decreases.

(3) Where proposals require approval under this section, the proposer must send a copy of the documents listed in subsection (4) to the Welsh Ministers before the end of 35 days beginning with the end of the objection period.

(4) The documents are—

(a) the report published under section 48(5),

(b) the published proposals,

(c) any objections made in accordance with section 49(2) (and not withdrawn), and

(d) where objections have been so made (and not withdrawn), the response published under section 49(3).

(5) Where proposals require approval under this section, the Welsh Ministers may—

(a) reject the proposals,

(b) approve them without modification, or

(c) approve them with modifications—

(i) after obtaining the consent of the proposer to the modifications, and

(ii) (except where the governing body or local authority, as the case may be, is the proposer), after consulting the governing body (if any) of the school to which the proposals relate and the relevant local authority.

(6) An approval may be expressed to take effect only if an event specified in the approval occurs by a date so specified.

(7) The Welsh Ministers may, at the request of the proposer, specify a later date by which the event referred to in subsection (6) is to occur.

(8) Subsection (1) does not prevent proposals from being withdrawn by notice in writing given by the proposer to the Welsh Ministers at any time before they are approved under this section.

(9) No approval is required under this section for proposals made under section 43 or 44 to discontinue a school which is a small school (see section 56).

(10) In this section “relevant local authority” means the local authority that maintains, or that it is proposed will maintain, the school to which the proposals relate.

51 Approval by local authority

(1) Proposals published under section 48 require approval under this section if—

(a) they do not require approval under section 50,

(b) they have been made by a proposer other than the relevant local authority, and

(c) an objection to the proposals has been made in accordance with section 49(2) and has not been withdrawn in writing before the end of 28 days beginning with the end of the objection period.

(2) Where proposals require approval under this section, the proposer must send a copy of the documents listed in subsection (3) to the relevant local authority before the end of 35 days beginning with the end of the objection period.

(3) The documents are—

(a) the report published under section 48(5),

(b) the published proposals,

(c) objections made in accordance with section 49(2) (and not withdrawn), and

(d) the response published under section 49(3).

(4) Where proposals require approval under this section, the relevant local authority may—

(a) reject the proposals,

(b) approve them without modification, or

(c) approve them with any of the modifications specified in subsection (5)—

(i) after obtaining the consent of the Welsh Ministers and the proposer to the modifications, and

(ii) (except where the governing body is the proposer) after consulting the governing body (if any) of the school to which the proposals relate.

(5) The relevant local authority may modify—

(a) the date or dates specified in the published proposals as the date or dates on which the proposals are planned to be implemented;

(b) the number of pupils specified in the published proposals as the number to be admitted to the school (in any age group and in any school year).

(6) An approval may be expressed to take effect only if an event specified in the approval occurs by a date so specified.

(7) The relevant local authority may, at the request of the proposer, specify a later date by which the event referred to in subsection (6) is to occur.

(8) The relevant local authority must make a determination under subsection (4) whether to reject or approve the proposals before the end of 16 weeks beginning with the end of the objection period.

(9) Subsection (1) does not prevent proposals from being withdrawn by notice in writing given by the proposer to the relevant local authority at any time before they are approved under this section.

(10) No approval is required under this section for proposals made under section 43 or 44 to discontinue a school which is a small school (see section 56).

(11) In this section “relevant local authority” means the local authority that maintains, or that it is proposed will maintain, the school to which the proposals relate.

52 Related proposals

(1) A proposer must send to the Welsh Ministers proposals (“proposals B”) it has made if—

(a) it considers that they are related to proposals requiring approval under section 50 (“proposals A”), and

(b) the proposer has not determined whether to implement proposals B under section 53 before the Welsh Ministers approve or reject proposals A.

(2) If the Welsh Ministers consider that proposals B are related to proposals A, proposals B are to be treated as requiring approval under section 50.

(3) A proposer must send to a local authority proposals (“proposals D”) it has made if—

(a) it considers that they are related to proposals requiring the local authority's approval under section 51 (“proposals C”), and

(b) the proposer has not determined whether to implement proposals D under section 53 before the local authority approves or rejects proposals C.

(4) If the local authority considers that proposals D are related to proposals C, proposals D are to be treated as requiring approval under section 51.

(5) The Welsh Ministers may require any other proposals to be treated as requiring approval under section 50 if—

(a) they consider that they are related to proposals requiring their approval under section 50, and

(b) the proposer has not determined whether to implement them under section 53 before the Welsh Ministers approve or reject the proposals requiring approval.

(6) A local authority may require any other proposals to be treated as requiring approval under section 51 if—

(a) it considers that they are related to proposals requiring its approval under section 51, and

(b) the proposer has not determined whether to implement them under section 53 before the local authority approves or rejects the proposals requiring approval.

(7) This section does not apply to proposals referred to a local inquiry under section 61 (local inquiry into proposals for the rationalisation of school places).

53 Determination

(1) Where any proposals published under section 48 do not require approval under section 50 or 51, the proposer must determine whether the proposals should be implemented.

(2) If a determination under subsection (1) is not made before the end of 16 weeks beginning with the end of the objection period, the proposer is to be taken to have withdrawn the proposals.

(3) Before the end of 7 days beginning with the day of its determination under subsection (1), the proposer must notify the following of the determination—

(a) the Welsh Ministers;

(b) (except where it is the proposer) the local authority that maintains, or that it is proposed will maintain, the school to which the proposals relate;

(c) (except where it is the proposer) the governing body (if any) of the school to which the proposals relate.

54 Referral to the Welsh Ministers

(1) This section applies if a local authority has—

(a) determined to approve or reject proposals under section 51(4), or

(b) determined under section 53(1) to implement proposals to which there was an objection made in accordance with section 49 (and which was not withdrawn in writing before the end of 28 days beginning with the end of the objection period).

(2) Before the end of 28 days beginning with the day of the local authority’s determination under section 51(4) or 53(1), the following may refer the proposals to the Welsh Minister—

(a) another local authority which is likely to be affected by the proposals;

(b) a local authority in England which is likely to be affected by the proposals ;

(c) the appropriate religious body for—

(i) the school to which the proposals relate if it is, or is intended to be, a school which has a religious character, or

(ii) any other school which has a religious character and which is likely to be affected by the proposals;

(d) if the school to which the proposals relate is a foundation or voluntary school, the governing body of the school;

(e) a trust holding property for the purpose of the school to which the proposals relate;

(f) an institution within the further education sector which is likely to be affected by the proposals.

(3) Whether an authority, school or institution is likely to be affected by the proposals for the purpose of subsection (2) is a question to be determined by the Welsh Ministers.

(4) The Welsh Ministers must consider proposals referred to them under this section afresh and subsections (5) to (8) of section 50 apply as if the proposals required their approval under that section.

(5) Proposals made under section 43 or 44 to discontinue a school which is a small school (see section 56) may not be referred to the Welsh Ministers under this section.

(6) Proposals which the Welsh Ministers are required to consider under this section are not to be treated for the purposes of section 55 or 61 as proposals approved under section 51 or as proposals that the proposer has determined to implement under section 53.

(7) Proposals approved in accordance with this section are to be treated for the purposes of section 55 as proposals approved under section 50.

(8) Proposals rejected in accordance with this section are to be treated for the purposes of paragraph 35(3)(e) of Schedule 4 as proposals rejected under section 50.

55 Implementation

(1) This section applies to—

(a) proposals approved under section 50 or 51, or

(b) proposals which the proposer has determined under section 53 to implement.

(2) The proposals must (subject to the following provisions of this section) be implemented in the form in which they were approved or determined to be implemented—

(a) in the case of proposals made under section 41, 42, 43 or 44 (establishment, alteration or discontinuance of schools), in accordance with Schedule 3;

(b) in the case of proposals made under section 45 (change of category), in accordance with Schedule 4.

(3) The proposer may (subject to subsection (6)) determine to delay implementation for a period of up to three years from the date or dates specified in the proposals (as approved or determined) as the date or dates on which they are to be implemented, if it is satisfied—

(a) that implementation of the proposals on that date or those dates would be unreasonably difficult, or

(b) that circumstances have so altered since the proposals were approved under section 50 or 51 or determined under section 53, that implementation of the proposals on that date or those dates would be inappropriate.

(4) In the case of proposals to discontinue a school made under section 43 or 44, the proposer may (subject to subsection (6)) determine to bring forward implementation by a period of up to 13 weeks from the date or dates specified in the proposals (as approved or determined) as the date or dates on which they are to be implemented.

(5) The proposer may (subject to subsection (6)) determine that subsection (2) does not apply to proposals if it is satisfied—

(a) that implementation of the proposals would be unreasonably difficult, or

(b) that circumstances have so altered since the proposals were approved under section 50 or 51 or determined under section 53, that implementation of the proposals would be inappropriate.

(6) In the case of proposals which have been approved under section 50 or 51, the proposer may only make a determination under subsection (3), (4) or (5) with the agreement of the Welsh Ministers.

(7) Before the end of 7 days beginning with the day of the determination, the proposer must notify the following of any determination it makes under subsection (3), (4) or (5)—

(a) the Welsh Ministers;

(b) (except where it is the proposer) the local authority that maintains, or that it is proposed will maintain the school to which the proposals relate;

(c) (except where it is the proposer) the governing body (if any) of the school to which the proposals relate.

(8) Where, by virtue of subsection (5), subsection (2) ceases to apply to any proposals, those proposals are to be treated as if they had been rejected under section 50(5)(a) or 51(4)(a) or as if the proposer had determined under section 53 not to implement them.

56 Interpretation of Chapter 2

(1) In this Chapter—

• “the Code” (“y Cod”) means the code on school organisation issued under section 38(1);

• “objection period” (“cyfnod gwrthwynebu”) has the meaning given by section 49(2);

• “proposer” (“cynigydd”), in relation to proposals made under section 41, 42, 43, 44 or 45, is the local authority, the governing body or other person who has made the proposals;

• “regulated alteration” (“newid rheoleiddiedig”) means an alteration described in Schedule 2;

• “small school” (“ysgol fach”) means a school with fewer than 10 registered pupils on the third Tuesday in the January immediately preceding the date on which the proposals are made.

(2) The Welsh Minsters may by order amend the definition of “small school” in subsection (1) so as to substitute a reference to a different date for the reference to the date for the time being specified.

CHAPTER 3 RATIONALISATION OF SCHOOL PLACES

Directions to make proposals for rationalisation of school places

57 Directions to make proposals to remedy excessive or insufficient provision

(1) This section applies where the Welsh Ministers are of the opinion that there is excessive provision, or that there is, or there is likely to be, insufficient provision, for primary or secondary education in maintained schools—

(a) in the area of a local authority, or

(b) in a part of such an area.

(2) The Welsh Ministers may—

(a) direct the local authority to exercise its powers to make proposals to establish, alter or discontinue schools, and

(b) direct the governing body of a foundation or voluntary school maintained by the authority to exercise its powers to make proposals to alter its school.

(3) A direction under subsection (2) must—

(a) require the proposals to be published no later than the date specified in the direction,

(b) require the proposals, in giving effect to the direction, to apply any principles specified in it, and

(c) where the Welsh Ministers are of the opinion that there is, or there is likely to be, insufficient provision, specify the additional number of pupils to be accommodated.

(4) A direction under subsection (2)(a) may not require the proposals to relate to a named school.

58 Further provision about proposals made after a direction under section 57(2)

(1) Proposals made in accordance with a direction under section 57(2) may not be withdrawn without the consent of the Welsh Ministers.

(2) The Welsh Ministers may give consent for the purposes of subsection (1) subject to conditions.

(3) The local authority must reimburse expenditure reasonably incurred by a governing body of a school maintained by it in making proposals in accordance with a direction under section 57(2).

(4) Despite anything in Part 1 of Schedule 3 (responsibility for implementation of statutory proposals), the local authority must meet the cost of implementing proposals made by a governing body of a school maintained by the authority in accordance with a direction under section 57(2) which have been approved or determined to be implemented.

Proposals by Welsh Ministers to rationalise school places

59 Making and publication of proposals by Welsh Ministers

(1) This section applies where—

(a) the Welsh Ministers have made a direction under section 57(2), and

(b) either—

(i) proposals have been published in accordance with the direction, or

(ii) the time allowed under the direction for the publication of the proposals has expired.

(2) The Welsh Ministers may make any proposals that could have been made in accordance with the direction.

(3) The proposals must be published in accordance with the code issued under section 38(1) for the time being in force.

(4) The Welsh Ministers must send a copy of the proposals—

(a) to the local authority for the area, and

(b) to the governing body of each school to which the proposals relate.

Procedure for dealing with proposals under section 59

60 Objections

(1) Any person may object to proposals published under section 59.

(2) Objections must be sent in writing to the Welsh Ministers before the end of 28 days beginning with the day on which the proposals were published.

61 Local inquiry into proposals

(1) This section applies where the Welsh Ministers have made proposals under section 59 (other than proposals made by virtue of section 62(1)) which they have not withdrawn.

(2) If objections have been made in accordance with section 60(2), then, unless all objections so made have been withdrawn in writing within the 28 days referred to in that section, the Welsh Ministers must cause a local inquiry to be held.

(3) The purpose of the local inquiry is to consider the Welsh Ministers’ proposals, any other proposals the Welsh Ministers refer to the inquiry and the objections mentioned in subsection (2).

(4) Proposals referred to a local inquiry under this section are to be determined under section 62, and sections 50, 51, 53, 54, 70 and 73 do not apply to them.

(5) Where a local inquiry is required to be held, the Welsh Ministers must refer the proposals listed in subsection (6) to the inquiry if the proposals—

(a) have not been determined before the proceedings on the inquiry begin, and

(b) appear to the Welsh Ministers to be related to the proposals made under section 59 in respect of which the inquiry is to be held.

(6) The proposals to be referred are—

(a) any other proposals published under section 59 in relation to the area of the local authority (and not withdrawn);

(b) any proposals made by that authority in the exercise of their powers to make proposals to establish, alter or discontinue schools (and not withdrawn);

(c) any proposals made by the governing body of a foundation or voluntary school in the area in the exercise of its powers to make proposals to alter its school (and not withdrawn);

(d) any proposals made under section 68 or 71 (and not withdrawn).

(7) If, before the proceedings on the inquiry begin, the Welsh Ministers form the opinion that any proposals should be implemented, subsection (5) does not require them to refer those proposals to the inquiry unless they form a different opinion before—

(a) the proceedings on the inquiry are concluded, or

(b) (if earlier) the proposals are determined.

(8) It is not open to the inquiry to question the principles specified in the direction under section 57(2).

(9) References in this section to the determination of proposals are to—

(a) a determination whether or not to adopt or approve the proposals under section 50, 51, 62, 70 or 73;

(b) a determination whether or not to implement the proposals under section 53;

(c) a determination whether or not to approve proposals referred to the Welsh Ministers under section 54.

62 Adoption of proposals

(1) Where a local inquiry has been held, the Welsh Ministers may, after considering the report of the person appointed to hold the inquiry, do one or more of the following—

(a) adopt, with or without modifications, or determine not to adopt any of the proposals made by the Welsh Ministers (including proposals made by them referred under section 61(5)) and considered by the inquiry;

(b) approve, with or without modifications, or reject any other proposals which were referred to the inquiry under section 61(5);

(c) make further proposals under section 59.

(2) If the Welsh Ministers make further proposals under section 59 in accordance with subsection (1)(c), the requirement in section 61(2) to cause a local inquiry to be held does not apply.

(3) Where the Welsh Ministers have published proposals under section 59 which are not required to be considered by a local inquiry, they may, after considering any objections made in accordance with section 60(2) (and not withdrawn)—

(a) adopt the proposals with or without modifications, or

(b) determine not to adopt the proposals.

(4) The adoption or approval of proposals may be expressed to take effect only if an event specified in the adoption or approval occurs by a date so specified.

63 Implementation of proposals

(1) Proposals adopted or approved by the Welsh Ministers under section 62 have effect as if they had been approved by the Welsh Ministers under section 50 after having been made—

(a) by the local authority under its powers to make proposals to establish, alter or discontinue schools, or

(b) in the case of proposals to alter a foundation or voluntary school, by the governing body under its powers to make proposals to alter its school.

(2) Despite anything in Part 1 of Schedule 3 (responsibility for implementation of statutory proposals), the local authority that maintains the school in question must meet the cost of implementing proposals adopted or approved under section 62 which have effect as mentioned in subsection (1)(b).

CHAPTER 4 REGIONAL PROVISION FOR SPECIAL EDUCATIONAL NEEDS

64 Meaning of “regional provision” and “special education functions”

In this Chapter—

• “regional provision” (“darpariaeth ranbarthol”) means—

  (a)

  provision of education for children belonging to the areas of different local authorities, at a school maintained by one of those authorities, or

  (b)

  provision made by two or more local authorities for goods or services to be supplied by one of the authorities—

  (i)

  to the other or others, or

  (ii)

  to one or more governing bodies of schools maintained by the other authority or authorities;

• “special education functions” (“swyddogaethau addysg arbennig”) means functions under Part 4 of the Education Act 1996 (special educational needs).

65 Direction to consider making regional provision

(1) The Welsh Ministers may direct local authorities to consider whether they (or any of them) would be able to carry out their special education functions, in respect of children with the special educational needs specified in the direction, more efficiently or effectively if regional provision were made.

(2) The authorities to whom a direction is given must report their conclusions to the Welsh Ministers no later than the time specified in the direction.

(3) A direction under this section may be given to local authorities generally or to one or more authorities specified in the direction.

66 Directions to make proposals to secure regional provision

(1) This section applies where the Welsh Ministers are of the opinion that two or more local authorities would be able to carry out their special education functions, in respect of children falling within a particular description, more effectively or efficiently if regional provision were made in relation to the areas of those authorities.

(2) The Welsh Ministers may give one or more of the directions specified in subsection (3) for the purpose of securing that regional provision is made in relation to the description of children from the areas specified in the direction.

(3) The directions are—

(a) that a local authority exercise its powers to make proposals to establish, alter or discontinue schools;

(b) that the governing body of a foundation or voluntary school exercise its powers to make proposals to alter its school;

(c) that two or more local authorities make arrangements under which—

(i) provision for education is made by one of the authorities in respect of persons from the area (or areas) of the other authority (or authorities), and

(ii) provision is made for determining the payments to be made under the arrangements in respect of the provision of that education;

(d) that two or more local authorities make arrangements that provide for one of those authorities to supply to the other (or others) goods or services to be specified in the arrangements on terms (including terms as to payment) to be so specified;

(e) that a local authority and the governing bodies of one or more foundation or voluntary schools make arrangements that provide for the authority to supply to the governing bodies goods or services to be specified in the arrangements, on terms (including terms as to payment) to be so specified.

(4) Where the Welsh Ministers give a direction under subsection (3)(c) and a direction under subsection (3)(a) or (3)(b), the payments to which subsection (3)(c) refers may include an amount in respect of the costs connected with the establishment, alteration or discontinuance of the school in question.

(5) A direction under subsection (3)(a) or (3)(b)—

(a) must require the proposals in question to be published no later than the date specified in the direction, and

(b) must require the body making the proposals to send a copy of the published proposals, together with other information (of a kind specified in the direction) in connection with those proposals to the Welsh Ministers.

67 Further provision about proposals made after a direction under section 66

(1) Proposals made in accordance with a direction under section 66 may not be withdrawn without the consent of the Welsh Ministers.

(2) The Welsh Ministers may give consent for the purposes of subsection (1) subject to conditions.

(3) The local authority must reimburse expenditure reasonably incurred by the governing body of a school maintained by it in making proposals in accordance with a direction under section 66.

(4) Despite anything in Part 1 of Schedule 3 (responsibility for implementation of statutory proposals), the local authority must meet the cost of implementing proposals made by the governing body of a school maintained by the authority in accordance with a direction under section 66 which have been approved or determined to be implemented.

68 Proposals by Welsh Ministers

(1) This section applies where—

(a) the Welsh Ministers have given a direction under section 66, and

(b) either—

(i) proposals have been published in accordance with the direction, or

(ii) the time allowed under the direction for the publication of the proposals has expired.

(2) The Welsh Ministers may make any proposals that could have been made in accordance with the direction.

(3) Before publishing proposals under this section, the Welsh Ministers must consult on the proposals in accordance with the code issued under section 38(1) for the time being in force.

(4) The proposals must be published in accordance with the code issued under section 38(1) for the time being in force.

(5) The Welsh Ministers must send a copy of the proposals to—

(a) local authorities whose areas are affected by the proposals, and

(b) the governing body of each school to which the proposals relate.

69 Objections

(1) Any person may object to proposals published under section 68.

(2) Objections must be sent in writing to the Welsh Ministers before the end of 28 days beginning with the day on which the proposals were published.

70 Adoption of proposals

(1) The Welsh Ministers may, after considering any objections made in accordance with section 69 (and not withdrawn)—

(a) adopt the proposals with or without modifications, or

(b) determine not to adopt the proposals.

(2) The adoption of proposals may be expressed to take effect only if an event specified in the adoption occurs by a date so specified.

(3) Proposals adopted by the Welsh Ministers have effect as if they had been approved by the Welsh Ministers under section 50 after having been made—

(a) by the local authority under its powers to make proposals to establish, alter or discontinue schools, or

(b) in the case of proposals to alter a foundation or voluntary school, by the governing body under its powers to make proposals to alter its school.

(4) Despite anything in Part 1 of Schedule 3 (responsibility for implementation of statutory proposals), the local authority that maintains the school in question must meet the cost of implementing proposals adopted under subsection (1) which have effect as mentioned in subsection (3)(b).

CHAPTER 5 PROPOSALS FOR RESTRUCTURING SIXTH FORM EDUCATION

Making and determining proposals

71 Welsh Ministers’ powers to restructure sixth form education

(1) The Welsh Ministers may make proposals under this section for—

(a) the establishment by a local authority of one or more new community or community special schools to provide secondary education suitable to the requirements of sixth formers (and no other secondary education);

(b) an alteration described in paragraph 6 of Schedule 2 to one or more maintained schools;

(c) the discontinuance of one or more maintained schools which provide secondary education suitable to the requirements of sixth formers (and no other secondary education).

(2) A “sixth former” is a person who is above compulsory school age but below the age of 19.

72 Consultation, publication and objections

(1) Before publishing proposals made under section 71, the Welsh Ministers must consult on the proposals in accordance with the code issued under section 38(1) for the time being in force.

(2) The Welsh Ministers must publish proposals made under section 71 in accordance with the code issued under section 38(1) for the time being in force.

(3) Any person may object to the proposals.

(4) Objections must be sent in writing to the Welsh Ministers before the end of 28 days beginning with the day on which the proposals were published.

73 Determination by Welsh Ministers

(1) After the end of the 28 days referred to in section 72(4), the Welsh Ministers must determine whether to—

(a) adopt the proposals, with or without modifications, or

(b) withdraw the proposals.

(2) In making a determination under subsection (1), the Welsh Ministers must have regard to any objections made in accordance with section 72(4) and not withdrawn.

(3) Before adopting proposals subject to modifications, the Welsh Ministers must consult such persons as they consider appropriate.

(4) The adoption of proposals may be expressed to take effect only if an event specified in the adoption occurs by a date so specified.

(5) If the event does not occur by the specified date the Welsh Ministers must reconsider their determination under subsection (1).

(6) The Welsh Ministers may withdraw their proposals at any time before they make a determination under subsection (1).

Implementation of proposals for restructuring sixth form education

74 Form of implementation

(1) This section applies to proposals which have been adopted by the Welsh Ministers under section 73.

(2) The proposals must (subject to the following provisions of this section) be implemented in the form in which they were adopted.

(3) At the request of a specified body, the Welsh Ministers—

(a) may modify proposals adopted under section 73 after consulting the specified bodies, and

(b) where the adoption of proposals was expressed to take effect subject to the occurrence of a specified event, may specify a later date by which that event must occur.

(4) The Welsh Ministers may determine that subsection (2) does not apply to the proposals if they are satisfied, after consulting the specified bodies—

(a) that implementation of the proposals would be unreasonably difficult, or

(b) that circumstances have so altered since the proposals were adopted that implementation of the proposals would be inappropriate.

(5) Each of the following is a “specified body” for the purposes of subsections (3) and (4)—

(a) the governing body of the school to which the proposals relate;

(b) in the case of a proposal to establish a new school, the temporary governing body constituted in accordance with arrangements made under section 34 of the Education Act 2002;

(c) the local authority that maintains, or that it is proposed will maintain, the school to which the proposals relate;

(d) where the school to which the proposals relate is a community special school each local authority which maintains a statement of special educational needs under Part 4 of the Education Act 1996 in respect of a registered pupil at the school.

75 Responsibility for implementation

(1) Proposals to establish a school must be implemented by the local authority that it is proposed will maintain the school.

(2) Proposals to make an alteration described in paragraph 6 of Schedule 2 must be implemented—

(a) in the case of proposals relating to a community school, by the local authority that maintains the school;

(b) in the case of proposals relating to a voluntary aided school—

(i) so far as relating to the provision of any relevant premises, by the local authority that maintains the school, and

(ii) otherwise, by the local authority that maintains the school and the governing body of the school to the extent (if any) as the proposals provide for each of them to do so;

(c) in the case of proposals relating to any other school, by the local authority that maintains the school and the governing body of the school to the extent (if any) as the proposals provide for each of them to do so.

(3) In subsection (2) “relevant premises” means—

(a) playing fields, or

(b) buildings which are to form part of the school premises but are not to be school buildings.

(4) Proposals to discontinue a school must be implemented—

(a) in the case of proposals relating to a community or community special school, by the local authority that maintains the school, and

(b) in any other case, by the local authority that maintains the school and the governing body of the school.

(5) If a school changes category from a community school after proposals have been published under section 72 but before they have been implemented, the proposals (to the extent that they have not been implemented) must be implemented by the local authority that maintains the school (despite subsections (2) and (4)).

76 Further provision as to implementation

(1) Where a local authority is required by virtue of section 75 to provide a site for a foundation or voluntary controlled school, paragraph 7 of Schedule 3 (provision of site and buildings for foundation or voluntary controlled school) applies as it applies in the circumstances mentioned in sub-paragraph (1) of that paragraph.

(2) Paragraph 8 of Schedule 3 (grants in respect of certain expenditure relating to voluntary aided schools) applies in relation to the obligation under section 75(2)(b)(ii) as it applies in relation to the obligations referred to in paragraph 8(1)(a) of that Schedule.

(3) Paragraph 9 of Schedule 3 (assistance from local authority in respect of voluntary aided schools) applies in relation to obligations imposed on the governing body of a voluntary aided school under section 75(2)(b)(ii) as it applies in relation to the obligations referred to in that paragraph 9, and paragraph 11 of that Schedule (duty on local authority to transfer interest in premises provided under paragraph 9 or 10) applies accordingly.

Supplementary

77 Consequential amendments to inspection reports on sixth form education

After section 44 of the Education Act 2005 insert—

“Sixth forms requiring significant improvement in Wales

44A Schools with sixth forms

(1) Sections 44B to 44D apply to a maintained school in Wales which—

(a) provides full-time education suitable to the requirements of pupils over compulsory school age, and

(b) provides full-time education suitable to the requirements of pupils of compulsory school age.

(2) For the purposes of those sections a school requires significant improvement in relation to its sixth form if—

(a) the school is failing to give its pupils over compulsory school age an acceptable standard of education, or

(b) in relation to its provision for pupils over compulsory school age, the school is performing significantly less well than it might in all the circumstances reasonably be expected to perform.

44B Inspection reports on schools with sixth forms requiring significant improvement

(1) Where a person inspecting a school under Chapter 3 is of the opinion that the school requires significant improvement in relation to its sixth form, the provisions specified in subsection (2) apply (with the necessary modifications) as they apply where the person is of the opinion that special measures are required to be taken in relation to the school.

(2) Those provisions are section 34(1) to (6) (registered inspectors) or, as the case requires, section 35(1) of that Act (members of the Inspectorate).

44C Report after area inspection on schools with sixth forms requiring significant improvement

(1) This section applies if in the course of an area inspection under section 83 of the Learning and Skills Act 2000 the Chief Inspector forms the opinion that a school requires significant improvement in relation to its sixth form.

(2) The Chief Inspector must make a report about the school stating that opinion.

(3) The report is to be treated for the purposes of this Part as if it were a report of an inspection of the school under section 28.

44D Copies of report and action plan

(1) This section applies to a report of an inspection under Chapter 3 which—

(a) states an opinion that a school requires significant improvement in relation to its sixth form, and

(b) is made by a member of the Inspectorate or states that the Chief Inspector agrees with the opinion.

(2) The person making the report must send a copy (together with a copy of the summary, if there is one)—

(a) to the Welsh Ministers, and

(b) if the person making the report is a member of the Inspectorate, to the appropriate authority for the school.

(3) The following provisions apply (with the necessary modifications) in relation to a report to which this paragraph applies—

(a) section 38(2) (additional copies),

(b) section 38(4) (publication by appropriate authority),

(c) section 39 (action plan by appropriate authority), and

(d) where the local authority receives a copy of a report about a school the governing body of which have a delegated budget, section 40(2) and (3) (measures by local authority).

(4) In the application of those provisions—

(a) a reference to a report and summary is to be taken as a reference to a report and, if there is one, its summary, and

(b) a reference to a summary alone is to be taken, in a case where there is no summary, as a reference to the report.

44E Report on sixth form schools causing concern after area inspection

(1) This section applies if in the course of an area inspection under section 83 of the Learning and Skills Act 2000 the Chief Inspector forms the opinion that—

(a) special measures are required to be taken in relation to a sixth form school, or

(b) that a sixth form school requires significant improvement.

(2) The Chief Inspector must make a report about the school stating that opinion.

(3) The report is to be treated for the purpose of this Part as if it were a report of an inspection of the school under section 28.

(4) A “sixth form school” is a maintained school which—

(a) provides full-time education suitable to the requirements of pupils over compulsory school age, and

(b) does not provide full-time education suitable to the requirements of pupils of compulsory school age.

44F Interpretation of sections 44A to 44E

In sections 44A to 44E—

• “the appropriate authority”, in relation to a maintained school, means the school’s governing body or, if the school does not have a delegated budget, the local authority;

• “the Chief Inspector” means Her Majesty’s Chief Inspector of Education and Training in Wales;

• “maintained school” means a community, foundation or voluntary school or a community special school;

• “member of the Inspectorate” means the Chief Inspector, any of Her Majesty’s Inspectors of Education and Training in Wales and any additional inspector appointed under paragraph 2 of Schedule 2.”

CHAPTER 6 MISCELLANEOUS AND SUPPLEMENTAL

78 Federated schools

Proposals made under this Part to establish a new school may relate to the establishment of the school as a federated school (within the meaning given by section 21(1) of the Education (Wales) Measure 2011).

79 Prohibition on local authorities establishing schools in England

No proposals may be made for the establishment of a school in England which is proposed to be maintained by a local authority in Wales.

80 Notice by governing body to discontinue foundation or voluntary school

(1) The governing body of a foundation or voluntary school may discontinue the school by giving the Welsh Ministers and the local authority that maintains the school two years’ notice of its intention to do so.

(2) The Welsh Ministers’ consent is required before giving a notice under this section if expenditure has been incurred on the school premises (otherwise than in connection with repairs)—

(a) by the Welsh Ministers, or

(b) by any local authority.

(3) The governing body must consult the Welsh Ministers before giving a notice under this section if discontinuing the school would affect the facilities for full-time education suitable to the requirements of persons over compulsory school age who have not attained the age of 19.

(4) If, while a notice under this section is in force, the governing body informs the local authority that it is unable or unwilling to carry on the school until the notice expires, the authority—

(a) may conduct the school for all or part of the unexpired period of the notice as if it were a community school, and

(b) is entitled to use the school premises free of charge for that purpose.

(5) While the school is being so conducted—

(a) the authority must keep the school premises in good repair, and

(b) any interest in the premises which is held for the purposes of the school is to be treated, for all purposes relating to the condition, occupation or use of the premises, or the making of alterations to them, as vested in the authority.

(6) Despite subsection (5) the governing body may use the premises, or any part of them, when not required for the purposes of the school to the same extent as if it had continued to carry on the school during the unexpired period of the notice.

(7) A notice under subsection (1) may not be withdrawn without the consent of the local authority.

(8) If a foundation or voluntary school is discontinued under this section, the duty of the local authority to maintain the school as a foundation or voluntary school ceases.

(9) Nothing in section 43 applies in relation to the discontinuance of a foundation or voluntary school under this section.

(10) Subsection (11) applies where—

(a) land occupied by the school is held by any trustees for the purposes of the school,

(b) the trustees (being entitled to do so) intend to give notice to the governing body of the school to terminate the school's occupation of that land, and

(c) the termination of the school’s occupation of that land would have the result that it was not reasonably practicable for the school to continue to be conducted at its existing site.

(11) The notice given by the trustees to the governing body to terminate the school’s occupation of the land must be at least two years; but if, during the first twelve months of that notice period, the governing body gives notice under subsection (1), the trustees’ notice does not have the effect of terminating the school’s occupation of the land until the expiry of the governing body’s notice.

(12) A copy of the trustees’ notice must also be given to the Welsh Ministers and the local authority at the time when the notice is given to the governing body.

(13) Where trustees give, at the same (or substantially the same) time, notices purporting to terminate a foundation or voluntary school’s occupation of two or more pieces of land held by the trustees for the purposes of the school, then for the purpose of determining whether subsection (10)(c) applies in relation to any of those pieces of land, regard may be had to the combined effect of terminating the school’s occupation of both or all of them.

(14) If a question arises as to whether the termination of a school’s occupation of any land would have the result mentioned in subsection (10)(c) (including a question as to whether subsection (13) applies in any particular circumstances), it is to be determined by the Welsh Ministers.

81 Direction requiring discontinuance of community special school

(1) The Welsh Ministers may direct a local authority to discontinue a community special school maintained by it on a specified date, if they consider it expedient to do so in the interests of the health, safety or welfare of pupils at the school.

(2) A direction under subsection (1) may require the local authority to notify specified persons or a specified class of persons.

(3) Before giving a direction under subsection (1), the Welsh Ministers must consult—

(a) the local authority,

(b) any other local authority that would in their opinion be affected by the discontinuance of the school, and

(c) any other persons the Welsh Ministers consider appropriate.

(4) On giving a direction under subsection (1), the Welsh Ministers must give notice in writing of the direction to the governing body of the school and its head teacher.

(5) A local authority to which a direction is given under subsection (1) must discontinue the school in question on the date specified in the direction.

(6) Nothing in section 44 applies to the discontinuance of a school under this section.

82 Transitional exemption orders for purposes of Equality Act 2010

(1) This section applies to proposals for a school to cease to be a single-sex school.

(2) The making of such proposals under section 59, 68 or 71 is to be treated as an application by the responsible body to the Welsh Ministers for a transitional exemption order under the 2010 Act, and the Welsh Ministers may make such an order accordingly.

(3) In this section—

• “the 2010 Act” (“Deddf 2010”) means the Equality Act 2010;

• “make” (“gwneud”), in relation to a transitional exemption order, includes vary or revoke;

• “the responsible body” (“y corff sy’n gyfrifol”) has the same meaning as in section 85 of the 2010 Act;

• “single-sex school” (“ysgol un rhyw”) has the same meaning as in paragraph 1 of Schedule 11 to the 2010 Act;

• “transitional exemption order” (“gorchymyn esemptio trosiannol”) has the same meaning as in paragraph 3 of Schedule 11 to the 2010 Act.

83 Interpretation of Part 3

(1) In this Part—

• “powers to make proposals to establish, alter or discontinue schools” (“pwerau i wneud cynigion i sefydlu, newid neu derfynu ysgolion”) means all or any of the powers of a local authority to make proposals under section 41, 42, 43 or 44;

• “powers to make proposals to alter its school” (“pwerau i wneud cynigion i newid ei ysgol”), in relation to the governing body of a foundation or voluntary school, means its powers to make proposals under section 42(2).

(2) A reference in this Part to a school’s category means one of the categories set out in section 20(1) of the School Standards and Framework Act 1998 (and references to a change of category are to be read accordingly).

(3) A reference in this Part to the discontinuance of a maintained school is a reference to the local authority ceasing to maintain it.