(1)Subject to subsection (3), a local education authority shall not, if it appears to them that subsection (2) applies in relation to any school, specify the school in a notice under section 438(2) unless they are responsible for determining the arrangements for the admission of pupils to the school.
(2)This subsection applies where, if the child concerned were admitted to the school in accordance with a school attendance order resulting from the notice, the number of pupils at the school in the child’s age group would exceed the number [F1fixed in accordance with section 93 of the School Standards and Framework Act 1998 (fixing admission numbers) as the number] of pupils in that age group which it is intended to admit to the school in the school year in which he would be admitted.
(3)Subsection (1) does not prevent a local education authority specifying in a notice under section 438(2) any maintained F2. . . school if—
(a)there is no maintained F2. . . school in their area which—
(i)the authority are not (apart from this subsection) prevented by subsection (1) from specifying, and
(ii)is, in the opinion of the authority, a reasonable distance from the home of the child concerned, and
(b)in the opinion of the authority, the school in question is a reasonable distance from the home of the child concerned.
(4)A local education authority shall not specify in a notice under section 438(2) a school from which the child concerned is permanently excluded.
[F3(4A)A local education authority shall not specify a school in a notice under section 438(2) if the admission of the child concerned would result in prejudice of the kind referred to in section 86(3)(a) of the School Standards and Framework Act 1998 (parental preferences) by reason of measures required to be taken as mentioned in subsection (4) of that section.]
(5)Before deciding to specify a particular maintained F2. . . school in a notice under section 438(2) a local education authority shall consult—
(a)the governing body, and
(b)if another local education authority are responsible for determining the arrangements for the admission of pupils to the school, that authority.
(6)Where a local education authority decide to specify a particular maintained F2. . .school in a notice under section 438(2) they shall, before serving the notice, serve notice in writing of their decision on—
(a)the governing body and head teacher of the school, and
(b)if another local education authority are responsible for determining the arrangements for the admission of pupils to the school, that authority.
(7)A governing body or local education authority on whom notice is served under subsection (6) may, within the period of 15 days beginning with the day on which the notice was received, apply to the Secretary of State for a direction under this section and, if they do so, shall inform the local education authority which served the notice.
(8)Where the Secretary of State gives a direction under this section, the school or schools to be specified in the notice under section 438(2) shall be determined in accordance with the direction.
Textual Amendments
F1Words in s. 439(2) substituted (1.9.1999) by 1998 c. 31, s. 140(1), Sch. 30 para. 115(2) (with ss. 138(9), 144(6)); S.I. 1999/2323, ar. 2(1), Sch. 1
F2Words in s. 439(3)(5)(6) repealed (1.9.1999) by 1998 c. 31, s. 140(1)(3), Sch. 30 para. 115(3), Sch.31 (with ss. 138(9), 144(6)); S.I. 1999/2323, art. 2(1), Sch. 1.
F3S. 439(4A) inserted (1.9.1999) by 1998 c. 31, s. 140(1), Sch. 30 para. 115(4) (with ss. 138(9), 144(6)); S.I. 1999/2323, art. 2(1), Sch. 1
Modifications etc. (not altering text)
C1S. 439 modified (temp. from 1.9.1998) by S.I. 1998/1948, reg. 3, Sch. para. 8
C2S. 439 applied (with modifications) (18.10.1999) by S.I. 1999/2666, reg. 8, Sch. paras. 1(a), 2-8
s. 439 applied (with modifications) (1.9.1999) by S.I. 1999/2800, reg. 7, Sch. paras. 1, 2-8