439 Specification of schools in notices under section 438(2).E+W
(1)Subject to subsection (3), a [F1local 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 [F2[F3determined in accordance with section 89 of the School Standards and Framework Act 1998 (determination of 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 [F1local authority] specifying in a notice under section 438(2) any maintained F4. . . school if—
(a)there is no maintained F4. . . 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 [F1local authority] shall not specify in a notice under section 438(2) a school from which the child concerned is permanently excluded.
F5[(4A)A [F1local 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 F4. . . school in a notice under section 438(2) a [F1local authority] shall consult—
(a)the governing body, and
(b)if another [F1local authority] are responsible for determining the arrangements for the admission of pupils to the school, that authority.
(6)Where a [F1local authority] decide to specify a particular maintained F4. . .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 [F1local authority] are responsible for determining the arrangements for the admission of pupils to the school, that authority.
(7)A governing body or [F1local 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 [F1local 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 Act substituted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), Sch. 2 para. 7(2) (with Sch. 2 para. 7(4)(5))
F2Words 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
F3Words in s. 439(2) substituted (1.10.2002 for E., 1.2.2006 for W.) by Education Act 2002 (c. 32), s. 216(4), Sch. 4 para. 14 (with ss. 210(8), 214(4)); S.I. 2002/2439, art. 3 (with art. 4, Sch. paras. 310); S.I. 2006/172, art. 4, Sch.
F4Words 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.
F5S. 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
C3S. 439 applied (with modifications) (E.) (8.5.2003) by The New School (Admissions) (England) Regulations 2003 (S.I. 2003/1041), regs. 1(1), 9, Sch. para. 1(a)
C4S. 439 applied (with modifications) (W.) (1.2.2006) by The New School (Admissions) (Wales) Regulations 2006 (S.I. 2006/175), regs. 1(1), 9, Sch. (with reg. 2(2))
C5S. 439(2) transitional provisions for effects of 2002 c. 32, Sch. 4 para. 14 (W.) (1.2.2006) by The Education Act 2002 (Transitional Provisions and Consequential Amendments) (Wales) Regulations 2006 (S.I. 2006/173), regs. 1(1), 9