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The School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007

Type Statutory-Instrument

Publication 2007-04-26

Last updated 2007-05-25

State In force

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Made: 26th April 2007

Laid before Parliament: 4th May 2007

Coming into force: 25th May 2007

In exercise of the powers conferred upon the Secretary of State by sections 18, 19, 21, 22, 23, 24, 31, 181 and 183 of the Education and Inspections Act 2006[^f00001], the Secretary of State for Education and Skills makes the following Regulations:

Citation, commencement and application

1

(1) These Regulations may be cited as the School Organisation (Prescribed Alterations to Maintained Schools)(England) Regulations 2007 and come into force on 25th May 2007.

(2) These Regulations apply to England only.

Interpretation

2

In these Regulations—

“the Act” means the Education and Inspections Act 2006[^f00002];

“EA 2002” means the Education Act 2002[^f00003];

“EA 2005” means the Education Act 2005[^f00004];

“SSFA 1998” means the School Standards and Framework Act 1998[^f00005];

“the Constitution Regulations” means the School Governance (Constitution) (England) Regulations 2007[^f00006];

“the Foundation Regulations” means the School Organisation (Requirements as to Foundations)(England) Regulations 2007;[^f00007]

“Accessibility Strategy” has the meaning given by section 28D of the Disability Discrimination Act 1995[^f00008];

“admission number” means the number of pupils in any relevant age group that it is intended to admit or (where the context requires) have been admitted as determined by the admission authority (in accordance with section 89 and 89A of the SFFA 1998[^f00009]);

“the capacity guidance” means the Department for Education and Skills Guidance “Assessing the Net Capacity of Schools” issued in August 2002, reference number DfES/0729REV/2001[^f00010] and references to the capacity of a school are references to the net capacity of that school determined in accordance with that guidance;

“change of category to foundation” has the meaning set out in regulation 3;

“Children and Young People’s Plan” means any plan published by the local education authority under section 17 of the Children Act 2004[^f00011];

“date of publication” of proposals is— the date on which the requirements of paragraphs 6, 7 and 21(4) of Schedule 1, 28 and 41(4) of Schedule 3, and 28 and 41(4) of Schedule 5 as applicable, are satisfied; and where different requirements are satisfied on different days, the last of such days;

“Early Years Foundation Stage” means the foundation stage defined by section 81 of EA 2002, or the learning and development and welfare requirements specified by the Secretary of State by order and regulations made under section 39 of the Childcare Act 2006 when they come into force[^f00012];

“extended services” has the same meaning given to it in the publication entitled “Extended Schools Access to Opportunities and Services for All” published by the Department for Education and Skills, dated June 2005 and with ISBN Number 1-84478-451-7;

“foundation proposals” has the meaning set out in regulation 3;

“further education college” means an institution within the further education sector (within the meaning of section 91(3) of the Further and Higher Education Act 1992[^f00013]);

“grammar school” has the same meaning as in Chapter 2 of Part 3 of SSFA 1998;

“implementation date” means the date approved or specified by the governing body, local education authority or adjudicator (as the case may be) as the date on which it is intended that the change of category to foundation or other change of category which falls to be implemented, should take place;

“indicated admission number” means the number of pupils in any relevant age group referred to as such in, and determined in accordance with, the net capacity assessment method set out in the capacity guidance;

“mainstream school” means a maintained school which is not a special school;

“NHS trust” means a body established by the Secretary of State under section 25 of the National Heath Service Act 2006[^f00014];

“NHS foundation trust” has the same meaning as in section 30(1) of the National Health Service Act 2006;

“Primary Care Trust” means a body established or continuing under section 18 of the National Health Service Act 2006;

“representation period” means the appropriate period prescribed in these Regulations in which objections or comments must be made;

“relevant change” has the meaning set out in regulation 3;

“special educational needs” has the meaning given by section 312 of the Education Act 1996[^f00015];

“special school” means a community special school or a foundation special school;

“sponsor governor” means a person who is nominated as a sponsor governor and is appointed as such by the governing body in accordance with Schedule 5 to the Constitution Regulations;

“sixth form education” means full-time education suitable to the requirements of pupils over compulsory school age;

“trustees of the school” means any person (other than the governing body) holding property on trust for the purposes of the school;

“14-16 education” means educational provision for 14-16 year olds;

“16-19 institution” means a maintained school which— provides full-time education suitable to the requirements of pupils over compulsory school age, and does not provide full-time education suitable to the requirements of pupils of compulsory school age; and

any references to section 18, 19, 20, 21 , 23 or 24 is a reference to that section of the Act.

Alterations to maintained schools by governing bodies: foundation proposals

3

(1) The alterations specified in paragraph (2), are to be known as foundation proposals and are—

(a) prescribed under section 18 as alterations that may be implemented in respect of a community, foundation, voluntary aided, voluntary controlled, community special or foundation special school in pursuance of proposals published by the governing body; and

(b) in the case of a community or community special school, are designated under section 19(3) as alterations capable of being proposed by the governing body.

(2) The prescribed alterations are—

(a) a change of category ( a “change of category to foundation”)—

(i) from a community school to a foundation school;

(ii) from a voluntary aided school to a foundation school;

(iii) from a voluntary controlled school to a foundation school;

(iv) from a community special school to a foundation special school;

(b) in relation to foundation and foundation special schools only, the acquisition of a foundation established otherwise than under SSFA 1998;

(c) in relation to foundation and foundation special schools only, where the instrument of government of the school 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 (“a relevant change”).

(3) Part 1 of Schedule 1 provides for the information to be included in, or provided in relation to, foundation proposals.

(4) Part 2 of Schedule 1 provides for the publication, determination and implementation of foundation proposals.

Other alterations to maintained schools by governing bodies

4

(1) The alterations specified in Part 1 of Schedule 2 are (in addition to foundation proposals) prescribed under section 18 as alterations that may be implemented in respect of a foundation or voluntary school in pursuance of proposals published by the governing body of the school.

(2) The alterations specified in Part 2 of Schedule 2 are (in addition to foundation proposals)—

(a) prescribed under section 18 as alterations that may be implemented in respect of a community school, in pursuance of proposals published by the governing body of the school; and

(b) designated under section 19(3) as alterations capable of being proposed by that governing body.

(3) The alterations specified in Part 3 of Schedule 2 are (in addition to foundation proposals)—

(a) prescribed under section 18 as alterations that may be implemented in respect of a community special school or a foundation special school in pursuance of proposals published by the governing body of the school; and

(b) in the case of a community special school, designated under section 19(3) as alterations capable of being proposed by that governing body.

(4) Part 1 of Schedule 3 provides for the information to be included in, or provided in relation to, governing body proposals for alterations other than foundation proposals.

(5) Part 2 of Schedule 3 provides for the publication, determination and implementation of proposals for alterations other than foundation proposals.

(6) Part 3 of Schedule 3 applies in relation to change of category alterations, other than foundation proposals.

Alterations to maintained schools by local education authorities

5

(1) The alterations specified in Part 1 of Schedule 4 are—

(a) prescribed under section 18 as alterations that may be implemented in respect of a community school in pursuance of proposals published by the local education authority; and

(b) designated under section 19(2) as alterations capable of being proposed by the local education authority.

(2) The alterations specified in Part 2 of Schedule 4 are—

(a) prescribed under section 18 as alterations that may be implemented in respect of a community special school in pursuance of proposals published by the local education authority; and

(b) designated under section 19(2) as alterations capable of being proposed by the local education authority.

(3) The alterations specified in Part 3 of Schedule 4 are—

(a) prescribed under section 18 as alterations that may be implemented in respect of a maintained nursery school in pursuance of proposals published by the local education authority; and

(b) designated under section 19(2) as alterations capable of being proposed by the local education authority.

(4) The alterations specified in Part 4 of Schedule 4 are prescribed under section 18 as alterations that may be implemented in respect of a foundation or voluntary school in pursuance of proposals published by the local education authority[^f00016].

(5) The alterations specified in Part 5 of Schedule 4 are prescribed under section 18 as alterations that may be implemented in respect of a foundation special school in pursuance of proposals published by the local education authority[^f00017].

(6) Part 1 of Schedule 5 provides for the information to be included in or provided in relation to, proposals concerning alterations falling within paragraphs (1) to (5).

(7) Part 2 of Schedule 5 provides for the publication, determination and implementation of proposals concerning alterations falling within paragraphs (1) to (5).

Consultation prior to these Regulations

6

If before May 25th 2007 any action was taken which (had it been taken on or after that day) would to any extent have satisfied the requirements of paragraph 5 of Part 2 of Schedule 1, paragraph 27 of Part 2 of Schedule 3 and paragraph 27 of Part 2 of Schedule 5, those requirements are to that extent to be treated as satisfied.

Land transfers

7

Schedule 6 has effect in relation to the transfer of land where a school changes category.

Regard to guidance

8

Any governing body, local education authority or adjudicator (where applicable) when—

(a) consulting on proposals;

(b) considering or determining proposals;

(d) making decisions on matters relating to implementation

must have regard to any guidance given from time to time by the Secretary of State.

Revocation

9

The regulations specified in Schedule 7 are revoked.

SCHEDULE 1 — FOUNDATION PROPOSALS

PART 1 — Information to be included in or provided in relation to foundation proposals

1

All proposals must include the following information—

(a) School Details

The name, address and category of the school for which the governing body are publishing the proposals;

(b) Dates

The proposed implementation date (“implementation date”);

A statement explaining the procedure for making representations, including—

(i) the date pursuant to paragraph 8 by which objections or comments should be sent to the governing body; and

(ii) the address to which objections or comments should be sent;

(d) Consultation

Evidence of the consultation before the proposals were published including—

(i) a list of persons who were consulted;

(ii) minutes of all public consultation meetings;

(iii) the views of the persons consulted;

(iv) a statement to the effect that all applicable statutory requirements in relation to the proposal to consult were complied with; and

(v) copies of all consultation documents and a statement on how these documents were made available;

(e) Alteration description

A statement of which one of, or combinations of, the alterations prescribed in regulation 3 comprise the proposals.

2

Where the prescribed alteration is a change of category to foundation, the proposals must contain the following information—

(a) the rationale for the proposals;

(b) a statement that the school will—

(i) have a foundation established otherwise than under SSFA 1998; or

(ii) belong to a group of schools for which a foundation body acts; or

(iii) be a foundation school not falling within either of sub-paragraphs (i) or (ii); and

(c) where it is a change of category to foundation from a voluntary aided school or voluntary controlled school, a statement that in accordance with section 20, the consent of the trustees and the persons by whom the foundation governors are appointed has been obtained.

3

Where the prescribed alteration is the acquisition of a foundation established otherwise than under SSFA 1998, the proposals must contain the following information—

(a) the name or proposed name of the foundation;

(b) the rationale for acquiring the foundation and the ethos that it will bring to the school;

(d) where the majority of governors are to be foundation governors, a statement that a parent council will be established in accordance with section 23A of EA 2002[^f00018];

(e) the entitlement to appoint charity trustees and the number of trustees to be appointed;

(f) the proposed constitution of the school’s governing body;

(g) details of the foundation’s charitable objects;

(h) whether the foundation already acts as a foundation for any foundation or voluntary schools;

(i) except where the alteration consists of a voluntary aided or voluntary controlled school changing category to a foundation school and it is intended that the foundation should appoint a minority of foundation governors, a statement that the requirements set out in the Foundation Regulations will be met;

(j) a statement and supporting evidence as to how the foundation will contribute to the advancement of education at the school and in particular how it will help to raise standards; and

(k) a statement of how the foundation will contribute to the promotion of community cohesion and the impact the foundation will have on the diversity of school provision in the area.

4

(1) Subject to sub-paragraph (2) where the prescribed alteration is a relevant change at a school for which a foundation already acts, the proposals must include the following information—

(a) the name of the foundation;

(b) the rationale for the change and how it will contribute to the advancement of education at the school and in particular how it will help to raise standards;

(d) details of the foundation’s charitable objects;

(e) a statement that the requirements set out in the Foundation Regulations will be met;

(f) a statement that a parent council will be established in accordance with section 23A of EA 2002;

(g) the proposed constitution of the school’s governing body; and

(h) the entitlement to appoint charity trustees and the number of trustees to be appointed.

(2) In addition where the relevant change relates to—

(a) a foundation school which immediately before the 25th May 2007, was a foundation school having a foundations; or

(b) a foundation school which having been a voluntary school immediately before the 25th May 2007, changed category to a foundation school on or after that date

a statement that in accordance with section 20 the consent of the trustees and the persons by whom the foundation governors are appointed has been obtained.

PART 2 — Publication, determination and implementation of foundation proposals

Consultation on proposals

5

(1) The governing body must, before they publish any proposals, consult the following persons—

(a) any local education authority likely to be affected by the proposals, in particular neighbouring local education authorities where there may be significant cross-border movement of pupils;

(b) families, teachers, and other staff at the school;

(d) families at any other school that may be affected by the proposals including where appropriate parents of pupils at feeder primary schools;

(e) any trade unions who represent staff at the school and representatives of any trade union of any other staff at schools that may be affected by the proposals;

(f) if proposals involve, or are likely to affect a school which has a religious character—

(i) the Diocesan Board of Education for any diocese of the Church of England any part of which is comprised in the area of the local education authority;

(ii) the bishop of a diocese of the Roman Catholic Church any part of which is comprised in the area of the local education authority; or

(iii) the relevant faith group in relation to the school

as appropriate;

(g) if the proposals affect the provision of full-time 14-19 education, the Learning and Skills Council for England;

(h) Members of Parliament whose constituencies include the school that is the subject of the proposals, or whose constituents are likely to be affected by the proposals;

(i) the local district or parish council where the school is situated;

(j) where proposals affect early years provision, the Early Years Development and Child Care Partnership[^f00019], or those who benefit from a contractual arrangement giving them the use of the premises;

(k) where the proposal is one that is a relevant change, the existing trustees;

(l) any other interested party; and

(m) any other persons whom the governing body thinks appropriate.

(2) Where the proposals relate to a special school, the governing body must also consult—

(a) the relevant Primary Care Trust for the area in which the school is situated; and

(b) any NHS trust or NHS foundation trust responsible for a hospital or other provision in the area in which the school is situated.

Manner of publication of proposals

6

(1) The governing body must publish—

(a) the information contained in paragraph 1 of Part 1, except the information relating to consultation prescribed in paragraph 1(d);

(b) where the proposals include the acquisition of a foundation, or a relevant change—

(i) the name or proposed name of the foundation;

(ii) whether the foundation already acts as a foundation for any foundation or voluntary school; and

(iii) details of the membership of the foundation, including the names of the members;

(c) a summary of the rationale for the alterations proposed, the particular contribution they will make, and the direction they will provide to the school; and

(d) details of how complete copies of the proposals can be obtained.

(2) The governing body must publish the information in sub-paragraph (1)—

(a) by posting it in a conspicuous place in the area served by the school and at or near the main entrance to the school or, if there is more than one main entrance, all of them; and

(b) by publishing it in at least one newspaper circulating in the area served by the school.

(3) The governing body must send a complete set of the proposals to—

(a) the local education authority within 1 week of the date of publication;

(b) the Secretary of State within 1 week of the date of publication; and

7

Where the proposals relate to a special school, the governing body must also send a complete set of the proposals to—

(a) the relevant Primary Care Trust for the area in which the school is situated;

(b) any NHS trust or NHS foundation trust responsible for a hospital or other provision in the area in which the school is situated;

(c) any local education authority who maintain a statement of special needs in respect of a registered pupil at the school;

(d) any local education authority which might be affected by the proposals; and

(e) parents of children who attend the special school.

Objections and comments

8

(1) Except where sub-paragraph (2) applies, any person may send objections or comments in relation to any proposals to the governing body within 4 weeks from the date of the publication of the proposals.

(2) Where proposals have been referred to the adjudicator in accordance with paragraph 10 the governing body must forward any objections or comments they have received under sub-paragraph 1 to the adjudicator within 1 week from the end of the representation period.

Governing body as decision maker

9

For the purpose of section 21(2)(f), the governing body of the school to which the proposals relate is prescribed as the person who (subject to paragraph 10) must consider and determine the proposals.

Referrals to adjudicator for consideration and determination

10

(1) The local education authority may[^f00020], subject to paragraphs 11 and 12,require the governing body to refer proposals falling within sub-paragraph (2)to the adjudicator.

(2) Proposals fall within this sub-paragraph if the proposed alteration would result in a community, foundation, or voluntary controlled 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 schoolwhose instrument of government provides for the majority of governors to be foundation governors.

11

Where the local education authority exercise their right to require a referral to the adjudicator under paragraph 10 they must do so in writing within 4 weeks of the date of the publication of the proposals.

12

The local education authority may only require that the proposals specified in paragraph 10 be referred to the adjudicator if they consider that—

(a) the governing body have failed adequately to fulfil the requirements for consultation set out in these Regulations;

(b) the governing body have failed adequately to have regard to any guidance given by the Secretary of State relating to consultation;

(d) the local education authority consider that the proposals will have a negative impact on standards at the school.

13

Where the governing body is required (under paragraph 10) to refer proposals to the adjudicator, they must also send to the adjudicator within 1 week of the end of the representation period, a copy of the proposals and any objections or comments received.

Withdrawal of proposals

14

Proposals may be withdrawn by the governing body which published the proposals provided that—

(a) such proposals are withdrawn before any determination is made;

(b) written notice is given to—

(i) the local education authority;

(ii) in cases where the proposals have been referred to the adjudicator, the adjudicator and the Secretary of State; and

Consideration and determination by governing body or adjudicator

15

(1) Where any proposals are to be determined by a governing body they may—

(a) reject the proposals;

(b) approve the proposals without modifications; or

(2) Where proposals are approved by the governing body (whether with or without modifications), the approval may be conditional on the occurrence of an event prescribed in paragraph 19.

(3) Any determination under sub-paragraph (1) must be made within the period of 6 months from the date of publication of the proposals.

16

(1) Where proposals have been referred to the adjudicator for determination pursuant to paragraph 10, the adjudicator may—

(a) reject the proposals;

(b) approve the proposals without modifications; or

(2) Where proposals are approved by the adjudicator (whether with or without modifications), the approval may be conditional on the occurrence of an event prescribed in paragraph 19.

Referral to the adjudicator post determination

17

(1) Sub-paragraph (2) applies to proposals which relate to—

(a) a change of category from voluntary aided 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 voluntary aided to foundation school, together with the acquisition of a foundation or a relevant change in the instrument of government (or both).

(2) For the purpose of section 21(2)(h) the prescribed persons at whose request proposals to which this paragraph applies, (after their initial determination by the governing body) must be referred to the adjudicator, are—

(a) the local education authority;

(b) 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;

(c) the bishop of a diocese of the Roman Catholic Church any part of which is comprised in the area of the authority; and

(d) where proposals relate to a school providing, or proposing to provide education for pupils aged 14 or over, the Learning and Skills Council for England.

(3) A request under sub-paragraph (1) must be made within 4 weeks of the initial determination by the governing body.

Provision for notification of decisions

18

(1) The governing body must notify the local education authority and the Secretary of State of their decision together with their reasons.

(2) In the case of any determination made by the adjudicator pursuant to paragraph 16 or 17 the adjudicator must notify the governing body, authority and the Secretary of State of his decision together with his reasons.

(3) Where any determination relates to proposals to which paragraph 17(1) applies the adjudicator must also notify the prescribed persons in paragraph 17(2) of his decision together with his reasons.

Conditional approval

19

The following events are prescribed as specified events which (if the approval is expressed to take effect only if they occur) must occur by the date specified in the approval—

(a) the making of any scheme relating to any charity connected with the school; and

(b) the establishment of a foundation within the meaning of section 23A of SSFA 1998[^f00021].

Duty to implement proposals

20

Subject to the following provisions of this Schedule, foundation proposals must be implemented by the governing body in the form in which they were approved.

Revocation of proposals (after approval)

21

(1) If the governing body are satisfied that—

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

(b) circumstances have so altered since approval was given that implementation would be inappropriate,

the governing body may determine at any time before implementation that paragraph 20 (duty to implement) is to cease to apply to the proposals.

(2) The governing body may only make a determination under sub-paragraph (1) where proposals that they should do so have been published by the governing body under sub-paragraph (3) (“revocation proposals”).

(3) Revocation proposals must contain—

(a) a description of the original proposals as published in accordance with section 19 (3);

(b) the date of publication of the original proposals;

(c) a statement as to why it is proposed that, in accordance with sub-paragraph (1), paragraph 20 should not apply in relation to the original proposals; and

(d) details of how copies of the original proposals can be obtained.

(4) Revocation proposals must be—

(a) posted at or near the main entrance to the school or, if there is more than one entrance, all of them; and

(b) published in at least one newspaper circulating in the area to be served by the school.

(5) Any person may object to or comment on revocation proposals, and such objections and comments must be sent to the governing body within 4 weeks of the date of publication of the proposals.

(6) The governing body must determine the revocation proposals within a period ending 2 months after the end of the representation period.

(7) If the governing body does not make a determination within the period specified in sub–paragraph (6) they must refer the proposals to the adjudicator within 1 week from the end of that period.

(8) Where the original proposals involve a change of category to a foundation school, before determining proposals under sub-paragraph (1) the governing body must consult the local education authority.

(9) Sub-paragraphs (10) to (12) apply where paragraph 17(2) applies to the proposals (voluntary aided to foundation).

(10) The governing body must notify the following persons of each decision taken under sub-paragraph (1) together with their reasons—

(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 a diocese of the Roman Catholic Church which is comprised in the area of the authority;

(c) where proposals relate to a school providing or proposing to provide education for pupils aged 14 or over, the Learning and Skills Council for England; and

(d) the trustees of the school (if any).

(11) The persons at whose request revocation proposals must after their determination by the governing body be referred to the adjudicator are—

(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 local education authority;

(b) the bishop of a diocese of the Roman Catholic Church any part of which is comprised in the area of the local education authority; and

(c) where proposals relate to a school providing or proposing to provide education for pupils aged 14 or over, the Learning and Skills Council for England.

(12) A request under sub-paragraph (11) must be made within 4 weeks of the initial determination of the revocation proposals by the governing body.

(13) Where a request is made under sub-paragraph (11) the governing body must submit the proposals and any objections or comments relating to the revocation proposals to the adjudicator within 1 week of receiving the request.

Modification post determination

22

(1) The governing body may make modifications to the proposals at any time after determination, but before implementation, and where there has been a conditional approval, specify a later date by which the event in question must occur.

(2) Before modifying proposals for a change of category to a foundation school, the governing body must consult the local education authority.

Proposals not falling to be implemented

23

(1) Where by virtue of paragraph 21, paragraph 20 (duty to implement) ceases to apply to any proposals, those proposals are to be treated for the purposes of this Schedule as if under paragraph 15 or 16 it has been determined that the proposals should be rejected.

(2) Where—

(a) any conditional approval is given to proposals; and

(b) the event specified in paragraph 19 does not occur by the required date

paragraph 20 ceases to apply to the proposals, and these proposals must be considered afresh by the governing body or adjudicator (as the case may be) and paragraph 15 or 16 apply accordingly.

Unimplemented statutory proposals

24

Where a school changes category in accordance with this Schedule and there are other proposals for prescribed alterations falling to be implemented in respect of that school which have not been implemented—

(a) in the case of a school which has changed category from a community or community special school, the proposals must to the extent they have not been implemented, be implemented by the local education authority;

(b) in the case of a school which has changed category from a voluntary aided school, the proposals must to the extent that they have not been implemented, be implemented by the local education authority.

Revision or replacement of the school’s instrument of government

25

(1) The governing body and the local education authority must secure that by the end of the implementation period a new instrument of government is made for the school in accordance with the Constitution Regulations.

(2) The implementation period is the period commencing on the date a proposal is approved under paragraph 15 or 16 and ending on the implementation date.

(3) The new instrument of government is to take effect from the date of making for the purpose of reconstituting the governing body but does not affect the constitution of the governing body conducting the school pending the implementation date.

(4) For all other purposes, the new instrument of government is to take effect from the implementation date.

Reconstitution or replacement of the governing body

26

(1) The governing body and the local education authority must secure that as soon as reasonably practicable after the commencement of the implementation period (and in any event within a period of 3 months beginning on the implementation date) the governing body are reconstituted in accordance with the new instrument of government, and the Constitution Regulations.

(2) The current governing body must exercise their functions under the Act and these Regulations in a manner calculated to enable the authority to fulfil their duties under sub-paragraph (1).

Current governors continuing in office

27

(1) Sub-paragraph (2) applies to any member of a current governing body in respect of which a new instrument of government has been made under these Regulations.

(2) Subject to paragraph 28 a governor to whom this paragraph applies is to continue from the implementation date (or the making of the new instrument of government if later) as a governor of the corresponding category required by the new instrument of government (if any such category exists).

(3) A member of a current governing body who continues as a governor under sub-paragraph (2) holds office for the remainder of the term for which he is originally appointed or elected.

(4) The proceedings of the governing body are not invalidated by the school having more governors of a particular category than are provided for by the new instrument of government, pending removal of the surplus governors pursuant to paragraph 28.

Surplus governors

28

(1) Where—

(a) on or after the implementation date a school has more governors of any of the categories of governors than are required as governors of the corresponding category by the new instrument of government; and

(b) the excess is not eliminated by the required number of governors resigning

such number of that category as is required to eliminate the excess must cease to hold office in accordance with sub-paragraphs (2) and (3).

(2) The governors who are to cease to hold office are to be determined on the basis of seniority, the governor whose current period of continuous service (whether as a governor of one or more than one category) is the shortest being the first to cease to hold office.

(3) Where it is necessary for the purposes of paragraph (2) to select one or more governors from a group of equal seniority, it must be done by drawing lots.

(4) For the purposes of this paragraph, sponsor governors nominated by a particular category of person are treated as if they constituted a separate category of governor.

(5) Any procedure set out in the new instrument of government for the removal of excess foundation governors does not apply to the reconstitution of the governing body under these Regulations.

Transfer of staff for foundation change of category

29

Where a voluntary controlled or community school changes category to a foundation school, or from a community special school to a foundation special school—

(a) the contract of employment between a person to whom this paragraph applies and the local education authority has effect from the implementation date as if originally made between him and the governing body;

(b) all the authority’s rights, powers, duties and liabilities under or in connection with the contract of employment transfer by virtue of this paragraph to the governing body on the implementation date; and

(c) anything done before that date by, or in relation to, the authority in respect of that contract or the employee, is deemed from that date to have been done by or in relation to the governing body.

30

(1) Subject to sub-paragraph (2), paragraph 29 applies to any person who immediately before the implementation date is employed by the authority to work solely at the school who is the subject of the proposals.

(2) Paragraph 29 does not apply to any person whose contract of employment terminates on the day immediately preceding the implementation date or to any person employed by the authority to work at the school solely in connection with the provision of meals.

31

Any person who before the implementation date has been appointed by the authority to work at the school as from the implementation date or a date thereafter is to be treated for the purpose of paragraph 29 as if he had been employed by the authority immediately before the implementation date to do such work at the school as he would have been required to do on or after that date under his contract of employment with the authority.

32

Paragraphs 29 to 31 are without prejudice to any right of an employee to terminate his contract if a substantial change is made to his detriment in his working conditions, but no such right must arise by reason only of the change in employer effected by these Regulations.

SCHEDULE 2 — ALTERATIONS OTHER THAN FOUNDATION PROPOSALS WHICH MAY BE PUBLISHED BY A GOVERNING BODY

PART 1 — Prescribed alterations proposed by the governing body of a foundation or voluntary school.

Enlargement to premises

1

(1) An enlargement of the premises of the school which would increase the capacity of the school by—

(a) more than 30 pupils; and

(b) by 25% or 200 pupils (whichever is the lesser).

(2) Subject to sub-paragraph (3), in this paragraph “an enlargement” of the premises of a school includes—

(a) the proposed enlargement; and

(b) any enlargements made in the 5 years preceding the date when the new enlargement will be made, excluding any temporary enlargements where it is anticipated the enlargement will be in place for less than 3 years; and

(3) Where there have been any enlargements for which proposals have been published and approved under section 28 of SSFA 1998 or section 19 of the Act (“approved proposal”), “enlargement of the premises” includes—

(a) the proposed enlargements; and

(b) any enlargements made in the period since the last approved proposal (excluding any temporary enlargements where it is anticipated the enlargement will be in place for less than the 3 years); and

Increase in number of pupils

2

(1) Subject to sub-paragraphs (2) to (4), an increase in the number of pupils in any relevant age group by 27 or more.

(2) No increase arises for the purpose of sub-paragraph (1) unless the school’s admission number, taking into account the additional pupils, would exceed its highest admission number during the 3 school years immediately preceding the year in which it is intended that the increase will take effect.

(3) This paragraph does not apply in relation to any relevant age group comprising pupils the majority of whom are over compulsory school age.

(4) This paragraph does not apply to temporary increases which it is anticipated will be in place for no more than a year.

Alteration of upper age limit

3

The alteration of the upper age limit by a year or more, except—

(a) an alteration which consists of providing or ceasing to provide education for pupils over compulsory school age who are repeating a course of education completed before they reach compulsory school age;

(b) an alteration resulting from persons being provided with education falling within section 80(1) of SSFA 1998; or

Alteration of lower age limit

4

(1) The alteration of the lower age limit such that when taken with all previous such alterations (if any) taking place since the appropriate date the lower age limit is at least a year higher or lower than the lower age limit on the appropriate date.

(2) In this paragraph—

“the lower age limit” in relation to the school means the lowest age of pupils for whom education is normally provided at the school; and

“the appropriate date” means whichever is the latest of the following dates— the date falling 5 years before the date on which the governing body form the intention to make the alteration in question; the date on which the school was established; where any previous proposals for a change in the lower age limit have been approved, the date (or latest date) on which the last of any such proposals were implemented

(3) This paragraph does not apply where the alteration of the lower age limit is a temporary one which will be in place for no more than 2 years.

Special educational needs

5

In relation to provision for special educational needs—

(a) the establishment of a provision that is recognised by the local education authority as reserved for children with special educational needs;

(b) a change in the type or types of special educational provision that is recognized by the authority as reserved for children with special educational needs; or

(c) discontinuance of provision which is recognised by the authority as reserved for children with special educational needs.

Admissions arrangements

6

The revision of admission arrangements of a grammar school as is mentioned in section 109(1) of SSFA 1998.

Sex of pupils

7

(1) An alteration to a school to provide that—

(a) a school which was an establishment which admitted pupils of one sex only becomes an establishment which admits pupils of both sexes; or

(b) a school which was an establishment which admitted pupils of both sexes becomes an establishment which admits pupils of one sex only.

(2) For the purpose of this paragraph a school is to be treated as an establishment which admits pupils of one sex only if the admission of pupils of the other sex—

(a) is limited to pupils over compulsory school age; and

(b) does not exceed 25% of the number of pupils in the age group in question normally at the school.

Boarding

8

(1) The introduction or ending of boarding provision.

(2) The alteration of boarding provision such that the number of pupils for whom boarding provision is made is increased or decreased by 50 pupils or 50% (whichever is the greater).

Transfer to new site

9

The transfer of a school to a new site except where the main entrance of the school on the proposed new site would be within 2 miles of the main entrance of the school on its current site (unless the school is transferring to a site within the area of another local education authority).

Discontinuance of use of site

10

The discontinuance of provision at any site of a school which occupies more than one site, if the main entrance at any of the school’s remaining sites is 1 mile or more from the main entrance of the site use of which is to be discontinued.

Changes of category

11

A change of category—

(a) from a voluntary controlled school to a voluntary aided school;

(b) from a voluntary aided school to a voluntary controlled school;

(d) from a foundation school to a voluntary aided school.

PART 2 — Prescribed alterations proposed by the governing body of a community school.

Enlargement to premises

12

(1) An enlargement of the premises of the school which would increase the capacity of the school by—

(a) more than 30 pupils; and

(b) by 25% or 200 pupils (whichever is the lesser).

(2) Subject to sub-paragraph (3) in this paragraph—

“an enlargement” of the premises of a school includes— the proposed enlargement; and any enlargements made in the 5 years preceding the date when the new enlargement will be made, excluding any temporary enlargements where it is anticipated the enlargement will be in place for less than 3 years; and the making permanent of any temporary enlargement.

(3) Where there have been any enlargements for which proposals have been published and approved under section 28 of SSFA 1998 or section 19 of the Act (“approved proposal”), “enlargement of the premises” includes—

(a) the proposed enlargements; and

(b) any enlargements made in the period since the last approved proposal (excluding any temporary enlargements where it is anticipated the enlargement will be in place for less than 3 years); and

Increase in number of pupils

13

(1) Subject to sub-paragraphs (2) to (4), an increase in the number of pupils in any relevant age group by 27 or more.

(2) No increase arises for the purposes of sub-paragraph (1) unless the school’s admission number, taking into account the additional pupils, will exceed its highest admission number during the 3 school years immediately preceding the year in which it is intended that the increase will take effect.

(3) This paragraph does not apply in relation to any relevant age group comprising pupils the majority of whom are over compulsory school age.

(4) This paragraph does not apply to temporary increases which it is anticipated will be in place for no more than a year.

Alteration of upper age limit

14

(1) The alteration of the upper age limit so as to provide sixth form education, other than such an alteration resulting from persons being provided with education falling within section 80(1) of SSFA 1998.

(2) In this paragraph “the upper age limit” in relation to a school means the highest age of pupils for whom education is normally provided at the school.

Admission arrangements

15

The revision of admission arrangements of a grammar school as mentioned in section 109(1) of SSFA 1998.

Changes of category

16

A change of category—

(a) from a community school to a voluntary controlled school;

(b) from a community school to a voluntary aided school.

PART 3 — Prescribed alterations proposed by the governing body of a foundation special or community special school

Special education needs

17

A change in the type of special educational needs for which the school is organised to make provision.

Transfer to new site

18

The transfer of a school to a new site except where the main entrance of the school on the proposed new site would be within 2 miles of the main entrance of the school on its current site (unless the school is transferring to a new site within the area of another local education authority).

Increase in number of pupils

19

(1) Except where the school is established in a hospital, any increase in the number of pupils for whom the school is organised to make provision which, when taken together with all such previous increases in the number of pupils would increase the number of such pupils by 10% or the relevant number of pupils (whichever is the lesser) as compared with—

(a) the number of such pupils on the appropriate date; or

(b) if, at any time after that date the number of such pupils was lower than on that date, the lowest number at any such time.

(2) In this paragraph—

the “appropriate date” means whichever is the latest of the following dates— the date falling 5 years before the date on which the governing body publish proposals to increase the number of pupils for which the school is organised to make provision; the date when the school was established; where any proposals for the making of a prescribed alteration to the school consisting of an increase in the number of pupils have been approved under paragraph 3 or 4 of Schedule 6 or paragraph 8 or 9 of Schedule 7 to SSFA 1998, or under these Regulations, the date (or latest date) on which the last of any such proposals were implemented; the “relevant number of pupils” is 5 where the school only makes boarding provision and 20 in any other case.

Decrease in numbers

20

Except where the school is established in a hospital, any decrease in the number of pupils for whom the school is organised to make provision.

Boarding

21

(1) The introduction or ending of boarding provision.

(2) Where the school makes provision for day pupils and boarding pupils, the alteration of boarding provision such that the number of pupils for whom boarding provision is made is increased or decreased by 5 pupils or more.

Alteration of upper or lower age limits

22

The alteration of the upper or lower age limits of the school (that is to say the highest and the lowest ages of pupils for whom education is normally provided at the school).

Sex of pupils

23

(1) An alteration to a school to provide that—

(a) a school which was an establishment which admitted pupils of one sex only becomes an establishment which admits pupils of both sexes; or

(b) a school which was an establishment which admitted pupils of both sexes becomes an establishment which admits pupils of one sex only.

(2) For the purpose of this paragraph a school is to be treated as an establishment which admits pupils of one sex only if the admission of pupils of the other sex—

(a) is limited to pupils over compulsory school age; and

(b) does not exceed 25% of the number of pupils in the age group normally at the school.

SCHEDULE 3 — GOVERNING BODY PROPOSALS FOR ALTERATIONS OTHER THAN FOUNDATION PROPOSALS

PART 1 — Information to be included in or provided in relation to proposals

School and governing body’s details

1

The name, address and category of the school for which the governing body are publishing the proposals.

Implementation and any proposed stages for implementation

2

The date on which the proposals are planned to be implemented, and if they are to be implemented in stages, a description of what is planned for each stage, the number of stages intended and the dates of each stage.

Objections and comments

3

A statement explaining the procedure for making representations, including—

(a) the date prescribed in accordance with paragraph 29 of this Schedule by which objections or comments should be sent to the local authority; and

(b) the address of the local education authority to which objections or comments should be sent.

Alteration description

4

A description of the proposed alteration and in the case of special school proposals, a description of the current special needs provision.

School capacity

5

(1) Where the alteration is an alteration falling within any of paragraphs 1 to 4, 8 and 9, 12 to 14 and 18 to 21 of Schedule 2 the proposal must also include—

(a) details of the current capacity of the school and, where the proposals will alter the capacity of the school, the proposed capacity of the school after the alteration;

(b) details of the number of pupils to be admitted to the school in each relevant age group in the first school year in which the proposals will have been implemented;

(c) where it is intended that proposals should be implemented in stages, the number of pupils to be admitted to the school in the first school year in which each stage will have been implemented; and

(d) where the number of pupils in any relevant age group is lower than the indicated admission number for that relevant age group, a statement to this effect and details of the indicated admission number in question.

(2) Where the alteration is an alteration falling within any of paragraphs 1, 2, 9, 12, 13, and 18 to 21 of Schedule 2 a statement of the number of pupils at the school at the time of the publication of the proposals.

Implementation

6

Where the proposals relate to a foundation or voluntary controlled school a statement as to whether the proposals are to be implemented by the local education authority or by the governing body, and, if the proposals are to be implemented by both, a statement as to the extent to which they are to be implemented by each body.

Additional Site

7

(1) A statement as to whether any new or additional site will be required if proposals are implemented and if so the location of the site if the school is to occupy a split site.

(2) Where proposals relate to a foundation or voluntary school a statement as to who will provide any additional site required, together with details of the tenure (freehold or leasehold) on which the site of the school will be held, and if the site is to be held on a lease, details of the proposed lease.

Changes in boarding arrangements

8

(1) Where the proposals are for the introduction or removal of boarding provision, or the alteration of existing boarding provision such as is mentioned in paragraph 8 or 21 of Schedule 2—

(a) the number of pupils for whom it is intended that boarding provision will be made if the proposals are approved;

(b) the arrangements for safeguarding the welfare of the children at the school;

(c) the current number of pupils for whom boarding provision can be made and a description of the boarding provision; and

(d) except where the proposals are to introduce boarding provision, a description of the existing boarding provision.

(2) Where the proposals are for the removal of boarding provision or an alteration to reduce boarding provision such as is mentioned in paragraph 8 or 21 of Schedule 2—

(a) the number of pupils for whom boarding provision will be removed if the proposals are approved; and

(b) a statement as to the use to which the former boarding accommodation will be put if the proposals are approved.

Transfer to new site

9

Where the proposals are to transfer a school to a new site the following information—

(a) the location of the proposed site (including details of whether the school is to occupy a single or split site), and including where appropriate the postal address;

(b) the distance between the proposed and current site;

(d) the accessibility of the proposed site or sites;

(e) the proposed arrangements for transport of pupils to the school on its new site; and

(f) a statement about other sustainable transport alternatives where pupils are not using transport provided, and how car use in the school area will be discouraged.

Objectives

10

The objectives of the proposals.

Consultation

11

Evidence of the consultation before the proposals were published including—

(a) a list of persons who were consulted;

(b) minutes of all public consultation meetings;

(d) a statement to the effect that all applicable statutory requirements in relation to the proposals to consult were complied with; and

(e) copies of all consultation documents and a statement on how these documents were made available.

Project costs

12

A statement of the estimated total capital cost of the proposals and the breakdown of the costs that are to be met by the governing body, the local education authority, and any other party.

13

A copy of confirmation from the Secretary of State, local education authority and the Learning and Skills Council for England (as the case may be) that funds will be made available (including costs to cover any necessary site purchase).

Age range

14

Where the proposals relate to a change in age range, the current age range for the school.

Early years provision

15

Where the proposals are to alter the lower age limit of a mainstream school so that it provides for pupils aged between 2 and 5—

(a) details of the early years provision including the number of full-time and part-time pupils, the number and length of sessions in each week, and the services for disabled children that will be offered;

(b) how the school will integrate the early years provision with childcare services and how the proposals are consistent with the integration of early years provision for childcare;

(d) assessment of capacity, quality and sustainability of provision in schools and in establishments other than schools who deliver the Early Years Foundation Stage within 3 miles of the school; and

(e) reasons why such schools and establishments who have spare capacity, cannot make provision for any forecast increase in the number of such provision.

Changes to sixth form provision

16

Where the proposals are to alter the upper age limit of the school so that the school provides sixth form education or additional sixth form education, a statement of how the proposals will—

(a) improve the educational or training achievements;

(b) increase participation in education or training; and

for 16-19 year olds in the area.

17

Where the proposals are to alter the upper age limit of the school so that the school ceases to provide sixth form education, a statement of the effect on the supply of 16-19 places in the area.

Special educational needs

18

Where the proposals are to establish or change the type of provision for special educational needs—

(a) a description of the types of learning difficulties in respect of which education will be provided;

(b) any additional specialist features that will be provided;

(d) details of how the provision will be funded;

(e) a statement as to whether the education will be provided for children with special educational needs who are not registered pupils at the school to which the proposals relate;

(f) a statement as to whether the expenses of the provision will be met from the school’s delegated budget;

(g) the location of the provision if it is not to be established on the existing site of the school; and

(h) where the provision will replace existing educational provision for children with special educational needs, a statement as to how the governing body believes that the new provision is likely to lead to improvement in the standard, quality and range of the educational provision for such children.

19

Where the proposals are to discontinue provision for special educational needs—

(a) details of alternative provision for pupils for whom the provision is currently made;

(b) details of the number of pupils for whom provision is made that is recognised by the local education authority as reserved for children with special educational needs during each of the 4 school years preceding the current school year;

(c) details of provision made outside the area of the local education authority for pupils whose needs will not be able to be met in the area of the authority as a result of the discontinuance of the provision; and

(d) a statement as to how the governing body believes the proposals are likely to lead to improvement in the standard, quality and range of the educational provision for such children.

20

Where the proposals will lead to alternative provision for children with special educational needs, as a result of the establishment, alteration or discontinuance of existing provision, the specific educational benefits that will flow from the proposals in terms of—

(a) improved access to education and associated services including the curriculum, wider school activities, facilities and equipment with reference to the local education authority’s Accessibility Strategy;

(b) improved access to specialist staff, both educational and other professionals, including any external support and outreach services;

(d) improved supply of suitable places.

Sex of pupils

21

Where the proposals are to make an alteration to provide that a school which was an establishment which admitted pupils of one sex only becomes an establishment which admits pupils of both sexes—

(a) details of the likely effect which the alteration will have on the balance of the provision of single-sex education in the area;

(b) evidence of local demand for single-sex education; and

(c) details of any transitional period which the body making the proposals wishes specified in a transitional exemption order (within the meaning of section 27 of the Sex Discrimination Act 1975[^f00022]).

22

Where the proposals are to make an alteration to a school to provide that a school which was an establishment which admitted pupils of both sexes becomes an establishment which admits pupils of one sex only—

(a) details of the likely effect which the alteration will have on the balance of the provision of single-sex education in the area; and

(b) evidence of local demand for single-sex education.

Extended services

23

If the proposed alterations affect the provision of the school’s extended services, details of the current extended services the school is offering and details of any proposed change as a result of the alterations.

24

If the proposals involve adding places—

(a) a statement and supporting evidence of the need or demand for the particular places in the area;

(b) where the school has a religious character, a statement and supporting evidence of the demand in the area for education in accordance with the tenets of the religion or religious denomination; and

(c) where the school adheres to a particular philosophy, evidence of the demand for education in accordance with the philosophy in question and any associated change to the admission arrangements for the school.

25

If the proposals involve removing places—

(a) a statement and supporting evidence of the reasons for the removal, including an assessment of the impact on parental choice; and

(b) a statement on the local capacity to accommodate displaced pupils.

Additional information in the case of special schools

26

Where the proposals relate to a special school the following information must also be provided—

(a) information as to the numbers, age range, sex and special educational needs of the pupils (distinguishing boarding and day pupils) for whom provision is made at the school;

(b) information on the predicted rise or fall (as the case may be) in the number of children with particular types of special educational needs requiring specific types of special educational provision;

(d) where the proposals would result in the school being organised to make provision for pupils with a different type or types of special educational needs, with the result that the provision which would be made for pupils currently at the school would be inappropriate to their needs, details of the other schools which such pupils may attend including any interim arrangements and transport arrangements to such schools;

(e) where the proposals relate to a foundation special school, a statement as to whether the proposals are to be implemented by the local education authority, or by the governing body, and if the proposals are to be implemented by both, a statement as to the extent to which they are to be implemented by each body.

PART 2 — Publication, determination and implementation of proposals

Consultation on proposals

27

(1) The governing body must, before they publish any proposals, consult the following persons—

(a) any local education authority likely to be affected by the proposals, in particular neighbouring local education authorities where there may be significant cross-border movement of pupils;

(b) families, teachers and other staff at the school;

(d) families at any other school that may be affected by the proposals including where appropriate parents of pupils at feeder primary schools;

(e) any trade unions who represent staff at the school and representatives of any trade unions of any other staff at schools that may be affected by the proposals;

(f) the trustees of the school (if any);

(g) if proposals involve, or are likely to affect a school which has a religious character—

(i) 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;

(ii) the bishop of a diocese of the Roman Catholic Church any part of which is comprised in the area of the authority; or

(iii) the relevant faith group in relation to the school

as appropriate;

(h) if the proposals affect the provision of full-time 14-19 education, the Learning and Skills Council for England;

(i) Members of Parliament whose constituencies include the school that is the subject of the proposals or whose constituents are likely to be affected by the proposals;

(j) the local district or parish council where the school is situated;

(k) where proposals affect early years provision, the Early Years Development and Child Care Partnership[^f00023], or those who benefit from a contractual arrangement giving them the use of the premises;

(l) any other interested party; and

(m) any other persons whom the governing body thinks appropriate.

(2) Where the proposals relate to a special school, the governing body must also consult—

(a) the relevant Primary Care Trust for the area in which the school is situated; and

(b) any NHS trust or NHS foundation trust responsible for a hospital or other provision in the area in which the school is situated.

Manner of publication of proposals

28

(1) The governing body must publish—

(a) the information contained in paragraphs 1 to 7(1), 8(1)(a) and (b), 9(a) and 19(a) of this Schedule;

(b) details of how complete copies of the proposals can be obtained.

(2) The governing body must publish the information in sub-paragraph (1)—

(a) by posting it in a conspicuous place in the area served by the school and at or near the main entrance to the school or, if there is more than one main entrance, all of them; and

(b) publishing it in at least one newspaper circulating in the area served by the school.

(3) The governing body must send a complete set of the proposals to—

(a) the relevant local education authority within 1 week of the date of publication;

(b) the Secretary of State within 1 week of the date of publication; and

(4) Where the proposals relate to a special school, the governing body must also send a complete set of the proposals to—

(a) the relevant Primary Care Trust for the area in which the school is situated;

(b) any NHS trust or NHS foundation trust responsible for a hospital or other provision in the area in which the school is situated;

(c) any local education authority which maintains a statement of special needs in respect of a registered pupil at the school;

(d) any local education authority which might be affected by the proposal; and

(e) parents of children who attend the special school.

Objections and comments

29

(1) Except where sub-paragraph (2) applies, any person may send objections or comments in relation to any proposals to the local education authority within 6 weeks from the date of publication of the proposals.

(2) Where the proposal is for an excepted expansion any objections or comments must be sent to the authority within 4 weeks from the date of the publication of the proposals.

(3) For the purpose of this Schedule an excepted expansion means, in respect of primary schools and secondary schools except grammar schools, a prescribed alteration falling within paragraphs—

(a) 1, 2 and 3 (but in respect of paragraph 3 only where the alteration of the upper age limit is being made so as to provide sixth form education) of Part 1 to Schedule 2;

(b) 12, 13 and 14 (but in respect of paragraph 14 only where the alteration of the upper age limit is being made so as to provide sixth form education) of Part 2 to Schedule 2;

(c) 19 and 22 (but in respect of paragraph 22 only where the alteration of the upper age limit is being made so as to provide sixth form education) of Part 3 to Schedule 2.

(4) The representation period means the period starting on the date of publication of the proposals and ending 6 or 4 weeks later, as appropriate.

Local education authority as decision maker

30

(1) For the purpose of section 21(2)(f) the local education authority is prescribed as the person who (subject to the remaining provisions of this Schedule) must consider and determine the proposals.

(2) Where paragraph 36 applies, (transfer to a different local education authority area) the local education authority referred to in sub-paragraph (1) is the local education authority described in paragraph 36 as Local Education Authority A.

Consideration and determination of proposals by the local education authority or adjudicator

31

(1) In determining proposals to which this Schedule applies the local education authority may—

(a) reject the proposals;

(b) approve the proposals without modification; or

(2) Before approving any proposals with modifications the authority must consult the governing body (unless the modifications are proposed by the governing body).

(3) Where proposals are approved by the authority (whether with or without modifications) the approval may be conditional on the occurrence of an event prescribed in paragraph 38.

(4) Any determination under sub-paragraph (1) must be made within the period of 2 months from the end of the representation period.

(5) Where the authority does not make a determination within the period prescribed by sub-paragraph (4), the proposals must be referred to the adjudicator.

32

(1) Where any proposals have been referred to the adjudicator pursuant to paragraphs 31(5) or 34, the adjudicator may—

(a) reject the proposals;

(b) approve the proposals without modifications; or

(2) Before approving any proposals with modifications, the adjudicator must consult the relevant governing body and the local education authority (unless they proposed the modification).

(3) Where the proposals are approved by the adjudicator (whether with or without modifications) the approval may be conditional on the occurrence of an event prescribed in paragraph 38.

Referral to adjudicator post determination

33

(1) For the purpose of section 21(2)(h), the prescribed persons at whose request proposals must, after their initial determination by the local education authority, be referred to the adjudicator are—

(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 a diocese of the Roman Catholic Church any part of which is comprised in the area of the authority;

(c) where proposals relate to a school providing, or proposing to provide education for pupils aged 14 or over, the Learning and Skills Council for England;

(d) where proposals relate to a community school, and the proposal is an excepted expansion (as defined in paragraph 29) the governing body.

(2) A request under sub-paragraph (1) must be made within 4 weeks of the initial determination of the proposal by the authority.

(3) Where a request is made under sub-paragraph (1) the authority must submit the proposals and any objections or comments made in relation to the proposals to the adjudicator within 1 week of receiving the request.

Provision for notification of decisions

34

(1) The local education authority must notify the following persons of each decision under paragraph 31, together with their reasons—

(a) the governing body;

(b) the trustees of the school (if any);

(d) where proposals include provision for 14-16 education or sixth form education, the Learning and Skills Council for England;

(e) 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;

(f) the bishop of any diocese of the Roman Catholic Church any part of which is comprised in the area of the authority;

(g) where the proposals relate to a special school—

(i) the relevant Primary Care Trust for the area in which the school is situated, and

(ii) any NHS trust or NHS foundation trust responsible for a hospital or other provision in the area in which the school is situated;

(h) subject to sub-paragraph (3), each objector to the proposals; and

(i) the adjudicator.

(2) In the case of any determination made by the adjudicator pursuant to paragraph 31(5) or 33, the adjudicator must notify the local education authority and the persons in sub-paragraphs (a) to (h) of sub-paragraph (1) of each decision, together with his reasons.

(3) Where objections to a proposal take the form of a petition (that is to say a document containing the text of one objection signed by more than one objector) the authority or adjudicator (as the case may be) may comply with sub-paragraph (1)(h) by—

(a) notifying the person (if any) who appears to them to have arranged for the petition to be sent to the authority; or

(b) if there is no such person, notifying the objector whose name appears first on the petition.

35

(1) Where proposals appear to be related to other proposals the local education authority or adjudicator, as the case may be, must consider the related proposals together.

(2) Where the authority are required under paragraph 31(5) or 33 to refer any proposals to the adjudicator, the authority must also within 1 week refer to the adjudicator any other proposals which appear to them to be related.

Determination of proposals where the school is transferring to a different local education authority

36

(1) This paragraph applies to the determination of any proposals for the transfer of the school to a new site falling within paragraph 9 or 18 of Schedule 2, where the new site is in an area other than that of the local education authority who maintain the school.

(2) The local education authority who maintain the school (“Local Education Authority A”) must send a copy of the proposals, together with all objections and comments received, to the local education authority for the area where it is proposed that the school will be situated (“Local Education Authority B”).

(3) Local Education Authority A must send the documents required under sub-paragraph (2) within 1 week from the end of the representation period.

(4) Before determining the proposals in accordance with paragraph 30, Local Education Authority A must first seek the recommendation of Local Education Authority B on how the proposals should be determined.

(5) Any determination made under sub-paragraph (1) must be made within the period of 2 months from the end of the representation period.

Transitional exemption orders under the Sex Discrimination Act 1975

37

(1) This paragraph applies to proposals for a school to cease to be an establishment which admits pupils of one sex only.

(2) Sub-paragraph (3) applies where such proposals fall within paragraph 7 or paragraph 23 of Schedule 2, and in accordance with paragraph 28(3)(a) of this Schedule the governing body sends a copy of the published proposals to the local education authority.

(3) Sending the published proposals is to be treated as an application to the local education authority for a transitional exemption order under section 27 of the Sex Discrimination Act 1975, and the local education authority must make such an order accordingly.

(4) Where—

(a) the authority have failed to make a transitional exemption order; or

(b) the authority refer the proposals to the adjudicator under paragraph 31(5) or 33

they must refer the question whether to make a transitional exemption order to the adjudicator.

(5) Where that question is referred to the adjudicator—

(a) he must consider the matter afresh, and

(b) he may make a transitional exemption order accordingly.

(6) In this paragraph “make”, in relation to the transitional exemption order, includes (so far as the context permits) vary or revoke.

Conditional approvals

38

(1) The following events are prescribed as specified events which (if the approval is expressed to take effect only if they occur) must occur by the date specified in the approval—

(a) the grant of planning permission under Part 3 of the Town and Country Planning Act 1990[^f00024];

(b) the acquisition of any site required for the implementation of the proposals;

(d) the securing of any necessary access to a site referred to in sub-paragraph (b) or playing fields referred to in sub-paragraph (c);

(e) the private finance credit approval given by the Department for Education and Skills following the entering into a private finance contract by a local education authority;

(f) the entering into an agreement for any necessary building project supported by the Department for Education and Skills in connection with the programme known as “Building Schools for the Future”;

(g) in the case of mainstream schools, the agreement to any change to the admission arrangements ofany other school or schools, as specified in the approval;

(h) the making of any scheme relating to any charity connected with the school;

(i) the formation of any federation (within the meaning of section 24(2) of EA 2002) of which it is intended that the school should form part, or the fulfilling of any other condition relating to the school forming part of a federation;

(j) the Secretary of State giving approval under regulation 5(4) of the Education (Foundation Body)(England) Regulations 2000[^f00025] to a proposal that a foundation body must be established and that the school must form part of a group for which a foundation must act;

(k) the Secretary of State making a declaration under regulation 22(3) of the Education (Foundation Body) (England) Regulations 2000 that the school should form part of a group for which a foundation body acts; and

(l) where the proposals in question depend upon any of the events specified in paragraphs (a) to (g) occurring by a specified date in relation to proposals relating to any other school or proposed school, the occurrence of such an event.

(2) For the purpose of paragraph (g) above a change to the admission arrangements is agreed—

(a) in the case where the change arises from the admission arrangements for the school year in question being different from the admission arrangements for the previous school year, if the admission arrangements are determined under section 89(4) of SSFA 1998 and either—

(i) no objection is made to the change in accordance with section 90 of SSFA 1998, or

(ii) if an objection to the change is made and referred to the adjudicator in accordance with section 90 of SSFA 1998, the objection is not upheld;

(b) in a case where the change arises from a variation made under section 89(5) of SSFA 1998 or made under The School Admissions (Alteration and Variation of, and Objections to, Arrangements) (England) Regulations 2007[^f00026], where the variation is required to be referred to the adjudicator, if the adjudicator determines that the variation should have effect without modifications; and

(c) in a case where the change arises from a variation made under those regulations where the variation is not required to be referred to the adjudicator, when the variation is made.

Withdrawal of proposals

39

Proposals may be withdrawn by the governing body which published the proposals provided that—

(a) such proposals are withdrawn before any determination is made,

(b) written notice is given to—

(i) the local education authority;

(ii) in cases where the proposals have been referred to the adjudicator, the adjudicator and the Secretary of State; and

(c) written notice is placed at the main entrance to the school or, if there is more than one main entrance, all of them.

Duty to implement proposals

40

(1) Subject to the following provisions of this Schedule proposals must be implemented in the form in which they were approved.

(2) Where the local education authority or adjudicator have approved any proposals then the proposals must be implemented by the governing body in the form in which they were approved.

Revocation of proposals (after approval)

41

(1) If the local education authority, or adjudicator (where the original proposals were referred to him under paragraph 31(5) only, or a referral is made to him under sub-paragraph (9)) are satisfied that—

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

(b) circumstances have so altered since approval was given that implementation would be inappropriate,

the authority or adjudicator as appropriate may determine that paragraph 40 (duty to implement) is to cease to apply to the proposals.

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