Part I General

Chapter I The statutory system of education

General

1 The stages of education

(1) The statutory system of public education consists of three progressive stages: primary education, secondary education and further education.

(2) This Part—

(a) confers functions on the Secretary of State and local education authorities with respect to primary, secondary and further education; and

(b) provides for functions with respect to primary and secondary education to be conferred on the funding authorities constituted under Chapter IV.

(3) Part I of the [1992 c. 13.] Further and Higher Education Act 1992 confers functions with respect to further education on the further education funding councils established under section 1 of that Act.

(4) Apart from section 10 (general duty of Secretary of State), nothing in this Act confers any functions with respect to higher education.

2 Definition of primary, secondary and further education

(1) In this Act “primary education” means —

(a) full-time education suitable to the requirements of junior pupils who have not attained the age of 10 years and six months; and

(b) full-time education suitable to the requirements of junior pupils who have attained that age and whom it is expedient to educate together with junior pupils within paragraph (a).

(2) In this Act “secondary education” means—

(a) full-time education suitable to the requirements of pupils of compulsory school age who are either—

(i) senior pupils, or

(ii) junior pupils who have attained the age of 10 years and six months and whom it is expedient to educate together with senior pupils of compulsory school age; and

(b) (subject to subsection (5)) full-time education suitable to the requirements of pupils who are over compulsory school age but under the age of 19 which is provided at a school at which education within paragraph (a) is also provided.

(3) Subject to subsection (5), in this Act “further education” means—

(a) full-time and part-time education suitable to the requirements of persons who are over compulsory school age (including vocational, social, physical and recreational training), and

(b) organised leisure-time occupation provided in connection with the provision of such education,

except that it does not include secondary education or (in accordance with subsection (7)) higher education.

(4) Accordingly, unless it is education within subsection (2)(b), full-time education suitable to the requirements of persons over compulsory school age who have not attained the age of 19 is further education for the purposes of this Act and not secondary education.

(5) For the purposes of this Act education provided for persons who have attained the age of 19 is further education not secondary education; but where a person—

(a) has begun a particular course of secondary education before attaining the age of 18, and

(b) continues to attend that course,

the education does not cease to be secondary education by reason of his having attained the age of 19.

(6) In subsection (3)(b) “organised leisure-time occupation” means leisure-time occupation, in such organised cultural training and recreative activities as are suited to their requirements, for any persons over compulsory school age who are able and willing to profit by facilities provided for that purpose.

(7) References in this section to education do not include references to higher education.

3 Definition of pupil etc

(1) In this Act “pupil” means a person for whom education is being provided at a school, other than—

(a) a person who has attained the age of 19 for whom further education is being provided, or

(b) a person for whom part-time education suitable to the requirements of persons of any age over compulsory school age is being provided.

(2) In this Act—

• “junior pupil” means a child who has not attained the age of 12; and

• “senior pupil” means a person who has attained the age of 12 but not the age of 19.

(3) The definition of “pupil” in subsection (1) also applies (unless the context otherwise requires) for the purposes of any instrument made or having effect as if made under the Education Acts.

Educational institutions

4 Schools: general

(1) In this Act “school” means an educational institution which is outside the further education sector and the higher education sector and is an institution for providing any one or more of the following—

(a) primary education,

(b) education which is secondary education by virtue of section 2(2)(a), or

(c) full-time education suitable to the requirements of persons who are over compulsory school age but under the age of 19,

whether or not the institution also provides part-time education suitable to the requirements of junior pupils, further education or secondary education not within paragraph (b).

(2) For the purposes of this Act an educational institution that would fall within subsection (1) but for the fact that it provides part-time rather than full-time education shall nevertheless be treated as a school if that part-time education is provided under arrangements made under section 19(1) (pupil referral units).

(3) For the purposes of this Act an institution is outside the further education sector if it is not—

(a) an institution conducted by a further education corporation established under section 15 or 16 of the [1992 c. 13.] Further and Higher Education Act 1992, or

(b) a designated institution for the purposes of Part I of that Act (defined in section 28(4) of that Act);

and references to institutions within that sector shall be construed accordingly.

(4) For the purposes of this Act an institution is outside the higher education sector if it is not—

(a) a university receiving financial support under section 65 of that Act,

(b) an institution conducted by a higher education corporation within the meaning of that Act, or

(c) a designated institution for the purposes of Part II of that Act (defined in section 72(3) of that Act);

and references to institutions within that sector shall be construed accordingly.

5 Primary schools, secondary schools and middle schools

(1) In this Act “primary school” means (subject to regulations under subsection (4)) a school for providing primary education, whether or not it also provides part-time education suitable to the requirements of junior pupils or further education.

(2) In this Act “secondary school” means (subject to regulations under subsection (4)) a school for providing secondary education, whether or not it also provides further education.

(3) In this Act “middle school” means a school in respect of which proposals authorised by section 49, 198(6) or 291 are implemented (that is, a school providing full-time education suitable to the requirements of pupils who have attained a specified age below 10 years and six months and are under a specified age above 12 years).

(4) The Secretary of State shall make regulations for determining, or enabling him to determine, whether a middle school is to be treated for the purposes of this Act and the other enactments relating to education as a primary school or as a secondary school.

(5) The powers conferred by sections 49, 198(6) and 291 and subsection (4) above are exercisable—

(a) notwithstanding anything in this Act (and in particular section 1); but

(b) without prejudice to the exercise of any other power conferred by this Act.

6 Nursery schools and special schools

(1) A primary school is a nursery school if it is used mainly for the purpose of providing education for children who have attained the age of two but are under the age of five.

(2) A school is a special school if it is specially organised, and for the time being approved, as mentioned in section 337(1).

Compulsory education

7 Duty of parents to secure education of children of compulsory school age

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—

(a) to his age, ability and aptitude, and

(b) to any special educational needs he may have,

either by regular attendance at school or otherwise.

8 Compulsory school age

(1) Subsections (2) and (3) apply to determine for the purposes of any enactment whether a person is of compulsory school age.

(2) A person begins to be of compulsory school age when he attains the age of five.

(3) A person ceases to be of compulsory school age at the end of the day which is the school leaving date for any calendar year—

(a) if he attains the age of 16 after that day but before the beginning of the school year next following,

(b) if he attains that age on that day, or

(c) (unless paragraph (a) applies) if that day is the school leaving date next following his attaining that age.

(4) The Secretary of State may by order determine the day in any calendar year which is to be the school leaving date for that year.

Education in accordance with parental wishes

9 Pupils to be educated in accordance with parents' wishes

In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State, local education authorities and the funding authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

Chapter II Functions of the Secretary of State

10 General duty of Secretary of State

The Secretary of State shall promote the education of the people of England and Wales.

11 Duty in the case of primary, secondary and further education

(1) The Secretary of State shall exercise his powers in respect of those bodies in receipt of public funds which—

(a) carry responsibility for securing that the required provision for primary, secondary or further education is made—

(i) in schools, or

(ii) in institutions within the further education sector,

in or in any area of England or Wales, or

(b) conduct schools or institutions within the further education sector in England and Wales,

for the purpose of promoting primary, secondary and further education in England and Wales.

(2) The Secretary of State shall, in the case of his powers to regulate the provision made in schools and institutions within the further education sector in England and Wales, exercise his powers with a view to (among other things) improving standards, encouraging diversity and increasing opportunities for choice.

Chapter III Local education authorities

The authorities

12 Local education authorities and their areas

(1) The local education authority for a county in England having a county council is the county council.

(2) The local education authority for a district in England which is not in a county having a county council is the district council.

(3) The local education authority for a London borough is the borough council.

(4) The local education authority for the City of London (which for the purposes of this Act shall be treated as including the Inner Temple and the Middle Temple) is the Common Council of the City of London (in their capacity as a local authority).

(5) As respects Wales—

(a) the local education authority for a county is the county council; and

(b) the local education authority for a county borough is the county borough council.

(6) Any reference in this Act to the area of a local education authority shall be construed in accordance with the preceding provisions of this section.

General functions

13 General responsibility for education

(1) A local education authority shall (so far as their powers enable them to do so) contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient primary education, secondary education and further education are available to meet the needs of the population of their area.

(2) The duty imposed by subsection (1) does not extend to matters in respect of which any duty is imposed on—

(a) the further education funding councils established under section 1 of the [1992 c. 13.] Further and Higher Education Act 1992, or

(b) the higher education funding councils established under section 62 of that Act.

14 Functions in respect of provision of primary and secondary schools

(1) A local education authority shall secure that sufficient schools for providing—

(a) primary education, and

(b) education that is secondary education by virtue of section 2(2)(a),

are available for their area.

(2) The schools available for an area shall not be regarded as sufficient for the purposes of subsection (1) unless they are sufficient in number, character and equipment to provide for all pupils the opportunity of appropriate education.

(3) In subsection (2) “appropriate education” means education which offers such variety of instruction and training as may be desirable in view of—

(a) the pupils' different ages, abilities and aptitudes, and

(b) the different periods for which they may be expected to remain at school,

including practical instruction and training appropriate to their different needs.

(4) A local education authority is not by virtue of subsection (1)(a) under any duty in respect of children under the age of five.

(5) A local education authority may secure the provision for their area of full-time education suitable to the requirements of persons over compulsory school age who have not attained the age of 19, including provision for persons from other areas.

(6) In exercising their functions under this section, a local education authority shall in particular have regard to—

(a) the need for securing that primary and secondary education are provided in separate schools;

(b) the need for securing that special educational provision is made for pupils who have special educational needs; and

(c) the expediency of securing the provision of boarding accommodation (in boarding schools or otherwise) for pupils for whom education as boarders is considered by their parents and the authority to be desirable.

(7) The duty imposed by subsection (6)(a) does not apply in relation to middle schools or special schools.

15 Functions in respect of provision of further education

(1) A local education authority shall secure the provision for their area of adequate facilities for further education.

(2) The duty imposed by subsection (1) does not apply in relation to—

(a) education to which section 2(1) of the [1992 c. 13.] Further and Higher Education Act 1992 applies (that is, full-time education suitable to the requirements of persons who are over compulsory school age and under the age of 19); or

(b) education to which section 3(1) of that Act applies (that is—

(i) part-time education suitable to the requirements of persons of any age over compulsory school age, and

(ii) full-time education suitable to the requirements of persons who have attained the age of 19,

where the education is provided by means of a course of a description mentioned in Schedule 2 to that Act).

(3) However, in respect of further education falling within subsection (2)(b), a local education authority may secure the provision for their area of such facilities as appear to them to be appropriate for meeting the needs of the population of their area.

(4) A local education authority may secure the provision of further education for persons from other areas.

(5) In exercising their functions under this section a local education authority shall have regard to—

(a) any educational facilities provided—

(i) by institutions within the higher education sector or the further education sector, and

(ii) by other bodies,

which are provided for, or available for use by persons in, their area, and

(b) the requirements of persons over compulsory school age who have learning difficulties.

(6) Subject to subsection (7), a person has a “learning difficulty” for the purposes of subsection (5) if—

(a) he has a significantly greater difficulty in learning than the majority of persons of his age, or

(b) he has a disability which either prevents or hinders him from making use of facilities of a kind generally provided in pursuance of the duty under subsection (1) for persons of his age.

(7) A person is not to be taken as having a learning difficulty solely because the language (or form of the language) in which he is, or will be, taught is different from a language (or form of a language) which has at any time been spoken in his home.

(8) A local education authority may do anything which appears to them to be necessary or expedient for the purposes of or in connection with the exercise of their functions under this section.

Establishment etc. of schools

16 Power to establish, maintain and assist primary and secondary schools

(1) For the purpose of fulfilling their functions under this Act, a local education authority may—

(a) establish primary schools and secondary schools;

(b) maintain primary and secondary schools, whether established by them or not; and

(c) assist any primary or secondary school which is not maintained by them.

(2) A local education authority may under subsection (1) establish, maintain and assist schools outside as well as inside their area.

(3) A local education authority may not under subsection (1) establish a school to provide—

(a) part-time education suitable to the requirements of persons of any age over compulsory school age; or

(b) full-time education suitable to the requirements of persons who have attained the age of 19.

17 Powers in respect of nursery education

(1) A local education authority may—

(a) establish nursery schools;

(b) maintain nursery schools established by them or by an authority which was a local education authority within the meaning of any enactment repealed by the [1944 c. 31.] Education Act 1944 or an earlier Act; and

(c) assist any nursery school not so established.

(2) Section 14(4) does not affect a local education authority’s power under section 16(1) to establish, maintain and assist schools at which education is provided both for children under the age of five and for older pupils (including schools at which there are nursery classes for children under the age of five).

Other arrangements for provision of education

18 Power to arrange provision of education at non-maintained schools

A local education authority may make arrangements for the provision of primary and secondary education for pupils at schools not maintained by them or another local education authority.

19 Exceptional provision of education in pupil referral units or elsewhere

(1) Each local education authority shall make arrangements for the provision of suitable full-time or part-time education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.

(2) Any school established (whether before or after the commencement of this Act) and maintained by a local education authority which—

(a) is specially organised to provide education for such children, and

(b) is not a county school or a special school,

shall be known as a “pupil referral unit”.

(3) A local education authority may secure the provision of boarding accommodation at any pupil referral unit.

(4) A local education authority may make arrangements for the provision of suitable full-time or part-time education otherwise than at school for those young persons who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.

(5) Any child for whom education is provided otherwise than at school in pursuance of this section, and any young person for whom full-time education is so provided in pursuance of this section, shall be treated for the purposes of this Act as a pupil.

(6) In this section “suitable education”, in relation to a child or young person, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have.

(7) Schedule 1 has effect in relation to pupil referral units.

Chapter IV The Funding Authorities

The Authorities

20 The Funding Agency for Schools

(1) The Funding Agency for Schools shall continue in existence as a body corporate exercising in relation to England the functions conferred on them.

(2) The agency shall consist of not less than 10 nor more than 15 members appointed by the Secretary of State, one of whom shall be so appointed as chairman.

(3) In appointing the members of the agency the Secretary of State shall have regard to the desirability of including—

(a) persons who appear to him to have experience of, and to have shown capacity in, the provision of primary or secondary education or to have held, and to have shown capacity in, any position carrying responsibility for the provision of such education;

(b) persons who appear to him to have experience of, and to have shown capacity in, the provision of education in voluntary schools, or in grant-maintained schools having foundation governors;

(c) persons who appear to him to have experience of, and to have shown capacity in, industrial, commercial or financial matters or the practice of any profession; and

(d) persons who appear to him to have experience of, and to have shown capacity in, providing for children with special educational needs.

(4) Before appointing any member of the agency the Secretary of State shall consult—

(a) a body appearing to him to be representative of the Church of England, and

(b) a body appearing to him to be representative of the Roman Catholic Church,

in matters relating to the provision of education in voluntary schools, or in grant-maintained schools having foundation governors.

(5) Schedule 2 has effect in relation to the agency.

21 The Schools Funding Council for Wales

(1) The Secretary of State may by order make provision for the establishment of a body corporate to be known as the Schools Funding Council for Wales to exercise in relation to Wales, as from such date as may be specified in the order, the functions conferred on them.

(2) The council shall consist of not less than eight nor more than 12 members appointed by the Secretary of State, one of whom shall be so appointed as chairman.

(3) In appointing the members of the council the Secretary of State shall have regard to the desirability of including—

(a) persons who appear to him to have experience of, and to have shown capacity in, the provision of primary or secondary education or to have held, and to have shown capacity in, any position carrying responsibility for the provision of such education;

(b) persons who appear to him to have experience of, and to have shown capacity in, industrial, commercial or financial matters or the practice of any profession; and

(c) persons who appear to him to have experience of, and to have shown capacity in, providing for children with special educational needs.

(4) Schedule 2 has effect in relation to the council.

Functions

22 Functions of funding authorities

(1) The functions which are or may be exercisable by a funding authority include in particular those which are or may be so exercisable by virtue of—

(a) section 23 (value-for-money studies of grant-maintained schools);

(b) section 27 (responsibility for provision of school places to be held together with, or to the exclusion of, local education authority); and

(c) Chapter VI of Part III (funding of grant-maintained schools).

(2) Schedule 3 enables the Secretary of State to transfer to a funding authority certain functions of his with respect to education.

23 Value-for-money studies of grant-maintained schools

(1) Each funding authority shall make arrangements for carrying out such value-for-money studies of grant-maintained schools in England or, as the case may be, Wales as in their opinion are required or as the Secretary of State may direct.

(2) The authority shall, in particular—

(a) in forming an opinion as to whether any value-for-money study is required to be carried out in pursuance of this section, have regard to the desirability of value-for-money studies being carried out at regular intervals, and

(b) in determining the scope of any value-for-money study to be carried out in pursuance of this section otherwise than on the direction of the Secretary of State, have regard to the scope of any value-for-money study which is being or has recently been carried out.

(3) In this section “value-for-money study”, in relation to any grant-maintained school, means—

(a) any examination into the economy, efficiency and effectiveness with which the governing body of the school have, in discharging their functions, used grant made by the authority, and

(b) any study designed to improve economy, efficiency and effectiveness in the management or operations of the school.

24 Supervision of funding authorities by the Secretary of State

(1) In exercising their functions each funding authority shall comply with any directions contained in an order made by the Secretary of State.

(2) In respect of the exercise by the funding authority of functions in respect of any grant-maintained school, such directions may relate to grant-maintained schools generally or to any class or description of such schools.

(3) Before making an order under this section, the Secretary of State shall consult the funding authority unless, for reasons of urgency, it is not in his opinion reasonably practicable for him to do so.

(4) Sections 496 and 497 (powers of Secretary of State where local education authority etc. are acting unreasonably or are in default) shall apply in relation to a funding authority and the functions conferred on them by or under the Education Acts as they apply in relation to local education authorities and the functions conferred on them by or under this Act.

(5) Subsection (4) does not prejudice the generality of subsection (1).

Supplemental

25 Grants to funding authorities

The Secretary of State may make grants to a funding authority of such amounts and subject to such terms and conditions as he may determine.

26 Meaning of “funding authority”

(1) Any reference in this Act to a funding authority—

(a) in relation to schools, or local education authority areas, in England is to the Funding Agency for Schools, and

(b) in relation to schools, or local education authority areas, in Wales is, subject to subsection (2), to the Schools Funding Council for Wales,

and in any other context is to the agency or the council.

(2) Before the Schools Funding Council for Wales begin to exercise their functions, any reference in this Act (other than this Part) to a funding authority in relation to schools, or local education authority areas, in Wales is to be read as a reference to the Secretary of State.

Chapter V Allocation of responsibility for education at school between LEA and funding authority

27 Responsibility for providing sufficient school places

(1) In respect of the area of any local education authority, the Secretary of State may—

(a) where he wishes responsibility for providing sufficient school places to be held by the funding authority as well as the local education authority, make an order under this paragraph, and

(b) where he wishes that responsibility to be held by the funding authority alone, make an order under this paragraph;

and such an order may relate to primary education, to secondary education or to both.

(2) An order under subsection (1) shall state—

(a) the local education authority area to which the order applies;

(b) whether the order is made under paragraph (a) or (b) of that subsection;

(c) the kind (that is primary or secondary) or kinds of education to which the order relates; and

(d) the date as from which the order is to have effect.

(3) No order may be made in respect of any area under subsection (1) unless—

(a) in the case of an order under subsection (1)(a) or (b), it appears to the Secretary of State that subsection (4) is, or has at any time been, satisfied, or

(b) in the case of an order under subsection (1)(b), the local education authority have at any time requested the Secretary of State to make the order and subsection (4) is, or has at any time been, satisfied,

in relation to the kind of education to which the order relates or, as the case may be, each of the kinds of education to which the order relates.

(4) This subsection is satisfied—

(a) for the purposes of—

(i) subsection (3)(a) in its application to an order under subsection (1)(a), or

(ii) subsection (3)(b),

if not less than 10 per cent. of the pupils for whom education is provided in county, voluntary and grant-maintained schools in the area are registered pupils at grant-maintained schools;

(b) for the purposes of subsection (3)(a) in its application to an order under subsection (1)(b), if not less than 75 per cent. of the pupils for whom education is provided in county, voluntary and grant-maintained schools in the area are registered pupils at grant-maintained schools.

(5) For the purposes of subsection (3) the kind of education to which an order relates—

(a) where an order is expressed to relate only to primary education, includes any secondary education provided in a primary school and excludes any primary education provided in a secondary school, and

(b) where an order is expressed to relate only to secondary education, includes any primary education provided in a secondary school and excludes any secondary education provided in a primary school.

(6) The effect of an order under this section is set out in Schedule 4.

(7) The kind or kinds of education to which an order under subsection (1)(a) or (b) relates are referred to in this Act, in relation to such an order, as “relevant education”.

Chapter VI Supplemental

Allocation of functions

28 Resolution of disputes as to allocation of functions

Any dispute as to whether any functions are exercisable by a funding authority or a local education authority shall be determined by the Secretary of State.

Provision of information

29 Provision of information by local education authorities

(1) A local education authority shall—

(a) make such reports and returns to the Secretary of State, and

(b) give to the Secretary of State such information,

as he may require for the purpose of the exercise of his functions under this Act.

(2) A local education authority shall—

(a) make such reports and returns to the funding authority, and

(b) give to the funding authority such information,

as the funding authority may require for the purpose of the exercise of their functions.

(3) A local education authority shall—

(a) compile such information, and

(b) make such provision for conducting, or assisting the conduct of, research,

as may be required for the purpose of providing the Secretary of State and the funding authority, in such form and at such times as may be prescribed, with such information relating to the provision of primary or secondary education in the area of the local education authority as may be prescribed.

(4) The Secretary of State shall exercise his powers under subsection (3) so as to secure, in particular, the provision of information relating to the provision of education for children with special educational needs.

(5) A local education authority shall, at such time or times and in such manner as may be required by regulations, publish such information as may be so required with respect to their policy and arrangements in respect of any matter relating to primary or secondary education.

(6) Nothing in subsection (5) applies in relation to—

(a) nursery schools, or

(b) children who will be under the age of five at the time of their proposed admission.

30 Provision of information by funding authorities

(1) A funding authority—

(a) shall provide the Secretary of State with such information or advice in connection with any function of his relating to the provision of education as he may from time to time require; and

(b) may provide the Secretary of State with such information or advice relating to such provision as they think fit.

(2) The information and advice provided under subsection (1) shall be provided in such manner as the Secretary of State may from time to time determine.

(3) A funding authority shall—

(a) make such reports and returns to any local education authority, and

(b) give to any local education authority such information,

as the local education authority may require for the purpose of the exercise of their functions.

(4) A funding authority shall—

(a) compile such information, and

(b) make such provision for conducting, or assisting the conduct of, research,

as may be required for the purpose of providing the Secretary of State and local education authorities, in such form and at such times as may be prescribed, with such information relating to the provision of education in any area to which an order under section 27 applies as may be prescribed.

(5) The Secretary of State shall exercise his powers under subsection (4) so as to secure, in particular, the provision of information relating to the provision of education for children with special educational needs.

Part II Schools maintained by local education authorities

Chapter I Preliminary

31 County schools and voluntary schools

(1) A primary or secondary school which is maintained by a local education authority is a county school if—

(a) it was established by a local education authority, or

(b) it was not so established but—

(i) it has been maintained as a county school since before the commencement of this Act, or

(ii) it is maintained as a county school in pursuance of proposals under section 35(1)(b), or

(iii) it is maintained as a county school in pursuance of an order under section 50.

(2) A primary or secondary school which is maintained by a local education authority is a voluntary school if it is not within paragraph (a) or (b) of subsection (1).

(3) Nothing in this section applies to—

(a) a nursery school;

(b) a special school; or

(c) a pupil referral unit within the meaning of section 19.

32 Categories of voluntary schools: controlled, aided and special agreement schools

(1) There are three categories of voluntary school—

(a) controlled schools,

(b) aided schools, and

(c) special agreement schools.

(2) A voluntary school is a controlled school if no order such as is mentioned in subsection (3) or (4) is in force in respect of it.

(3) A voluntary school is an aided school if there is in force an order to that effect made under section 48, 51, 54 or 58 of this Act (or under section 15 of the [1944 c. 31.] Education Act 1944, section 2 of the [1946 c. 50.] Education Act 1946 or section 54 of the [1986 c. 61.] Education (No. 2) Act 1986).

(4) A voluntary school is a special agreement school if there is in force an order to that effect made under section 15 of the Education Act 1944 (which provided for the making of such an order where a special agreement had been made in respect of a school).

(5) In this Act “special agreement” means an agreement made under Schedule 3 to the Education Act 1944 or deemed to have been so made by virtue of paragraph 11 of that Schedule (agreement providing for the making of a grant by a local education authority to persons specified in the agreement in consideration of their execution of proposals for the establishment of a school or the alteration of the premises of a school).

(6) Schedule 5 to this Act (which reproduces certain of the provisions of Schedule 3 to that Act) has effect in relation to special agreements.

33 Maintained nursery schools and maintained special schools

(1) In this Act—

• “maintained nursery school” means a nursery school which is maintained by a local education authority; and

• “maintained special school” means (in accordance with section 337(3)) a special school which is maintained by a local education authority.

(2) Chapter II of Part IV (special educational needs) has effect in relation to the establishment and approval of schools as maintained special schools.

34 Meaning of “maintain” etc

(1) In this Act—

(a) in relation to a school maintained (or proposed to be maintained) by a local education authority, “the local education authority” means that authority; and

(b) in relation to schools falling within subsections (2) to (5), “maintain” shall be read in accordance with those subsections.

(2) In the case of a county school, a maintained nursery school or a maintained special school, the local education authority’s duty to maintain the school includes the duty of defraying all the expenses of maintaining it.

(3) In the case of a controlled school, the local education authority’s duty to maintain the school includes—

(a) the duty of defraying all the expenses of maintaining it, and

(b) the duty under section 60 of providing new premises for the school under and in accordance with that section.

(4) In the case of an aided or special agreement school, the local education authority’s duty to maintain the school includes—

(a) the duty of defraying all the expenses of maintaining it, except any expenses that by virtue of section 59 or a special agreement are payable by the governing body, and

(b) the duty under section 61 of providing new premises for the school under and in accordance with that section.

(5) It is hereby declared that for the purposes of this Act the expenses of maintaining a voluntary school include the payment of rates.

Chapter II Establishment, alteration etc. of county and voluntary schools

County schools: establishment, alteration or change of site

35 County school: proposals for establishment, alteration or new site

(1) Where a local education authority intend—

(a) to establish a new county school,

(b) to maintain as a county school a school which is not for the time being a county school,

(c) to make any significant change in the character, or any significant enlargement of the premises, of a county school, or

(d) to transfer a county school to a new site in the area,

then (subject to subsections (2) and (8)) they shall publish their proposals for that purpose in such manner as may be required by regulations and submit a copy of the published proposals to the Secretary of State.

(2) The requirement to publish proposals under subsection (1)(d) does not apply in relation to the transfer of a county school to a new site if—

(a) the school is intended to return to its existing site within three years of the time of the transfer; or

(b) the local education authority are satisfied that it is expedient that the school should be transferred to the new site either—

(i) because it is not reasonably practicable to make to the existing premises of the school the alterations necessary for securing that they conform to the standards prescribed under section 542, or

(ii) in consequence of any movement of population or of any action taken or proposed to be taken under the enactments relating to housing or to town and country planning; or

(c) the transfer is authorised by an order made under section 16(1) of the [1944 c. 31.] Education Act 1944 (transfer of county schools etc. to new sites).

(3) Proposals published under this section shall include particulars—

(a) of the time or times at which it is intended to implement the proposals, and

(b) of the number of pupils intended to be admitted to the school in each relevant age group in the first school year in relation to which the proposals have been wholly implemented,

and shall be accompanied by a statement of the effect of section 36.

(4) For the purposes of subsection (3)(b) pupils intended to be admitted to the school for nursery education shall be disregarded, and pupils—

(a) already admitted to the school for nursery education, and

(b) intended to be transferred to a reception class at the school,

shall be treated as intended to be admitted to the school on their transfer.

(5) Before publishing any proposals under this section a local education authority shall consult such persons as appear to them to be appropriate; and in discharging their duty under this subsection the authority shall have regard to any guidance given from time to time by the Secretary of State.

(6) Before publishing any proposals under subsection (1)(c) which (if implemented) 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, the local education authority shall consult the appropriate further education funding council.

(7) Before formulating any proposals under subsection (1)(c) or (d) in respect of a school which is (within the meaning of Part III) eligible for grant-maintained status, the local education authority shall consult the school’s governing body.

(8) No proposals shall be published under this section in respect of any school in respect of which proposals for acquisition of grant-maintained status have been approved under section 194.

36 Objections to proposals under section 35

(1) Objections to any proposals published by a local education authority under section 35 may be submitted to the authority by any of the following—

(a) any ten or more local government electors for the authority’s area,

(b) the governing body of any school affected by the proposals,

(c) the appropriate further education funding council (if the proposals affect the provision of education to which section 2(1) of the [1992 c. 13.] Further and Higher Education Act 1992 applies), and

(d) any other local education authority concerned.

(2) Objections may be so submitted within the period of two months after the first publication of the proposals.

(3) Where—

(a) an order under section 27 (allocation of responsibility for providing sufficient school places) applies to the area of a local education authority, and

(b) the authority publish proposals under section 35 which affect the provision of relevant education in that area,

the funding authority shall be included among the persons who may submit objections under subsection (1) to the proposals.

(4) Within one month after the end of the period mentioned in subsection (2), the local education authority by whom the proposals were published shall transmit to the Secretary of State copies of all objections made (and not withdrawn in writing) within that period, together with the authority’s observations on them.

(5) For the purposes of this section proposals under section 35 shall be taken to have been first published—

(a) on the day on which the requirements of regulations with respect to the publication of the proposals are satisfied; or

(b) where different such requirements are satisfied on different days, on the last of those days.

(6) Where any such requirement imposes a continuing obligation with respect to the publication of any proposals, the requirement shall for the purposes of subsection (5) be taken to be satisfied on the first day in respect of which it is satisfied.

37 Approval or rejection by Secretary of State of proposals under section 35

(1) Proposals published by a local education authority under section 35 require the approval of the Secretary of State if subsection (2), (3) or (4) applies.

(2) This subsection applies if the proposals are for the maintenance as a county school of a school which is for the time being a voluntary school.

(3) This subsection applies if either—

(a) the Secretary of State, within two months after the submission to him of the published proposals, gives notice to the local education authority that the proposals require his approval, or

(b) objections have been made under section 36 and any of them have not been withdrawn in writing within the period specified in subsection (2) of that section.

(4) This subsection applies if either—

(a) the proposals are first published after proposals for acquisition of grant-maintained status for the school have been published under section 193 but before those proposals are determined or withdrawn, or

(b) after the proposals have first been published but before they are determined or withdrawn, proposals for acquisition of grant-maintained status for the school are published under section 193;

and references in this subsection to proposals being first published shall be construed in accordance with section 36(5) and (6).

(5) Where any proposals require the approval of the Secretary of State under this section, he may (subject to subsections (6) to (8))—

(a) reject them,

(b) approve them without modification, or

(c) after consultation with the local education authority, approve them with such modifications as he thinks desirable.

(6) In a case where subsection (2) applies, the Secretary of State shall not approve the proposals unless he has, in accordance with Schedule 6, approved an agreement under that Schedule between the local education authority and the school’s governing body for the transfer to the authority of all necessary interests in the school premises.

(7) In a case where subsection (4) applies, the Secretary of State—

(a) shall consider both sets of proposals together, but

(b) shall not determine the proposals published under section 35 until he has made his determination with respect to the proposals published under section 193.

(8) If the Secretary of State approves the proposals published under section 193, he shall approve the proposals published under section 35 if—

(a) they are proposals under subsection (1)(c) or (d) of that section, and

(b) the governing body incorporated under section 195 give their consent,

but otherwise he shall reject the proposals published under section 35.

(9) Any proposals under section 35(1)(c) or (d) which are approved under subsection (8) shall be treated for the purposes of Part III (grant-maintained schools) as if they had been—

(a) published under section 259 (change of character etc. of grant-maintained school), and

(b) approved under section 261,

and section 262 (approval of school premises) shall apply accordingly.

38 Determination by LEA whether to implement proposals under section 35

(1) Where any proposals published by a local education authority under section 35 do not require the approval of the Secretary of State under section 37, the authority shall determine whether the proposals should be implemented.

(2) The determination must be made not later than four months after the submission of the proposals to the Secretary of State under section 35.

(3) A local education authority shall notify the Secretary of State of any determination made by them under this section.

39 Approval of school premises

(1) Where a local education authority publish proposals under section 35, they shall submit to the Secretary of State for his approval such particulars with respect to the premises or proposed premises of the school as he may require.

(2) The particulars shall be so submitted at such time, and in such form and manner, as the Secretary of State may direct.

(3) Schedule 6 has effect in relation to agreements for the transfer of premises in pursuance of proposals for a voluntary school to become a county school, and the approval of such agreements by the Secretary of State.

40 Implementation of proposals under section 35, etc

(1) Subject to subsection (3), a local education authority shall implement any proposals of theirs—

(a) which have been approved by the Secretary of State under section 37, or

(b) which they have determined under section 38 to implement.

(2) Where any particulars have been submitted under section 39 in connection with the proposals, the proposals shall be implemented in accordance with the particulars as approved by the Secretary of State.

(3) The Secretary of State may, at the request of a local education authority, modify any proposals which the authority are required to implement by virtue of this section.

(4) Subject to subsection (5), neither a local education authority nor any other person shall do or undertake to do anything for which proposals are required to be published and submitted under section 35 until the requirements of that section and section 39 have been complied with and any approval necessary under section 37 or 39 has been given.

(5) The Secretary of State may in any case allow such steps to be taken pending compliance with any such requirements and the giving of any such approval as he considers reasonable in the circumstances.

Voluntary schools: establishment, alteration or change of site

41 Voluntary school: proposals for establishment, alteration or new site

(1) Where any persons propose—

(a) that a school which they or persons whom they represent propose to establish should be maintained by a local education authority as a voluntary school, or

(b) that a school established by them or by persons whom they represent which is not a voluntary school should be so maintained as a voluntary school,

then (subject to subsection (9)) they shall publish proposals for that purpose in such manner as may be required by regulations and submit a copy of the published proposals to the Secretary of State.

(2) Where the governing body of a school which is maintained by a local education authority as a voluntary school intend—

(a) to make a significant change in the character, or a significant enlargement of the premises, of the school, or

(b) to transfer the school to a new site,

then (subject to subsections (3) and (9)) they shall publish proposals for that purpose in such manner as may be required by regulations and submit a copy of the published proposals to the Secretary of State.

(3) The requirement to publish proposals under subsection (2)(b) does not apply in relation to the transfer of a voluntary school to a new site if—

(a) the transfer is authorised by an order made under section 47(1) of this Act (or under section 16(1) of the [1944 c. 31.] Education Act 1944); or

(b) the school is intended to return to its existing site within three years of the time of the transfer.

(4) No proposals under subsection (1) shall be approved by the Secretary of State under section 43 if the school or proposed school is to provide—

(a) part-time education suitable to the requirements of persons of any age over compulsory school age, or

(b) full-time education suitable to the requirements of persons who have attained the age of 19 years;

and the reference in subsection (2)(a) to a change in the character of a school does not include a change in character resulting only from persons beginning or ceasing to be provided with education falling within paragraph (a) or (b) above.

(5) Proposals published under this section shall include particulars—

(a) of the time or times at which it is intended to implement the proposals, and

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

and shall be accompanied by a statement of the effect of section 42.

(6) For the purposes of subsection (5)(b) pupils intended to be admitted to the school for nursery education shall be disregarded, and pupils—

(a) already admitted to the school for nursery education, and

(b) intended to be transferred to a reception class at the school,

shall be treated as intended to be admitted to the school on their transfer.

(7) Before publishing any proposals under this section, the persons concerned shall—

(a) in the case of proposals under subsection (1), consult the local education authority, and

(b) in the case of proposals under either subsection (1) or subsection (2), consult such other persons as appear to them to be appropriate;

and in discharging their duty under this subsection they shall have regard to any guidance given from time to time by the Secretary of State.

(8) Before publishing any proposals under subsection (2)(a) which (if implemented) 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, the governing body shall consult the appropriate further education funding council.

(9) No proposals shall be published under this section in respect of any school in respect of which proposals for acquisition of grant-maintained status have been approved under section 194.

42 Objections to proposals under section 41

(1) Objections to any proposals published under section 41 may be submitted to the Secretary of State by any of the following—

(a) any ten or more local government electors for the area of the local education authority referred to in subsection (1) or (as the case may be) subsection (2) of that section,

(b) the governing body of any school affected by the proposals,

(c) the appropriate further education funding council (if the proposals affect the provision of education to which section 2(1) of the [1992 c. 13.] Further and Higher Education Act 1992 applies), and

(d) any local education authority concerned.

(2) Objections may be so submitted within the period of two months after the first publication of the proposals.

(3) Where the proposals are to transfer a school to a site in a different area, objections under subsection (1) to the proposals may also be so submitted by any ten or more local government electors for that area.

(4) Where—

(a) an order under section 27 applies to the area of a local education authority, and

(b) any persons publish proposals under section 41 which affect the provision of relevant education in the area,

the funding authority shall be included among the persons who may submit objections under subsection (1) above to the proposals.

(5) For the purposes of this section proposals under section 41 shall be taken to have been first published—

(a) on the day on which the requirements of regulations with respect to the publication of the proposals are satisfied; or

(b) where different such requirements are satisfied on different days, on the last of those days.

(6) Where any such requirement imposes a continuing obligation with respect to the publication of any proposals, the requirement shall for the purposes of subsection (5) be taken to be satisfied on the first day in respect of which it is satisfied.

43 Approval or rejection by Secretary of State of proposals under section 41

(1) Proposals published under section 41 require the approval of the Secretary of State.

(2) The Secretary of State may (subject to subsections (3) to (6))—

(a) reject such proposals,

(b) approve them without modification, or

(c) after consultation with the persons making the proposals and the local education authority by whom the school is, or is to be, maintained, approve them with such modifications as he thinks desirable.

(3) This subsection applies if either—

(a) the proposals are first published after proposals for acquisition of grant-maintained status for the school have been published under section 193 but before those proposals are determined or withdrawn, or

(b) after the proposals have first been published but before they are determined or withdrawn, proposals for acquisition of grant-maintained status for the school are published under section 193;

and references in this subsection to proposals being first published shall be construed in accordance with section 42(5) and (6).

(4) In a case where subsection (3) applies, the Secretary of State—

(a) shall consider both sets of proposals together, but

(b) shall not determine the proposals published under section 41 until he has made his determination with respect to the proposals published under section 193.

(5) If the Secretary of State approves the proposals published under section 193, he—

(a) shall approve the proposals published under section 41 if they were made for the purpose of ensuring consistency in the provision of education made in the area of the local education authority, but

(b) shall otherwise reject the proposals published under that section.

(6) Any proposals under section 41 which are approved under subsection (5) shall be treated for the purposes of Part III as if they had been—

(a) published under section 259 (change of character etc. of grant-maintained school), and

(b) approved under section 261,

and section 262 (approval of school premises) shall apply accordingly.

(7) Where the proposals published under section 41 are to transfer the school to a site in a different area, subsection (2)(c) above requires consultation with the local education authority by whom the school is maintained as well as with the authority by whom it is to be maintained.

44 Approval of school premises

(1) Where any proposals are published under section 41, the persons making the proposals shall submit to the Secretary of State for his approval such particulars in respect of the premises or proposed premises of the school as he may require.

(2) The particulars shall be so submitted at such time, and in such form and manner, as the Secretary of State may direct.

(3) Before submitting any particulars under this section, the persons making the proposals shall consult the local education authority by whom the school is, or is to be, maintained.

(4) Where the proposals published under section 41 are to transfer the school to a site in a different area, subsection (3) requires consultation with the local education authority by whom the school is to be maintained.

45 Implementation of proposals under section 41, etc

(1) Subject to subsections (2) and (4), where any proposals are approved under section 43, they shall be implemented—

(a) in the case of proposals published under section 41(1), by the persons making them or the persons whom they represent (as the case may require) and by the local education authority referred to in that subsection, or

(b) in the case of proposals published under section 41(2), by the school’s governing body.

(2) Subject to subsection (4), it shall be the duty of the local education authority—

(a) in the case of any proposals so approved for the transfer of a controlled school to a new site, to implement the proposals (and any associated proposals for a change in the character of the school) so far as they involve the provision of premises or the removal or provision of equipment; and

(b) in any other case, to implement so much of any proposals so approved as relates to the provision of—

(i) playing fields, or

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

(3) Where any particulars have been submitted under section 44 in connection with the proposals, the proposals shall be implemented in accordance with the particulars as approved by the Secretary of State.

(4) The Secretary of State may modify any proposals required to be implemented by virtue of this section, but shall do so—

(a) in the case of proposals published under section 41(1), only at the request of the local education authority referred to in that subsection, and

(b) in the case of proposals published under section 41(2), only at the request of the governing body of the school.

(5) Subject to subsection (6), no person shall do or undertake to do anything for which proposals are required to be published and submitted under section 41 until the requirements of that section and section 44 have been complied with and any approval necessary under section 43 or 44 has been given.

(6) The Secretary of State may in any case allow such steps to be taken pending compliance with any such requirements and the giving of any such approval as he considers reasonable in the circumstances.

(7) Where proposals for the transfer of a school to a site in a different area are approved under section 43, then—

(a) in the case of any voluntary school—

(i) the reference in subsection (2) above to the local education authority is to be read as referring to the authority for the new area, and

(ii) upon the transfer the duty to maintain the school shall transfer to that authority; and

(b) in the case of any controlled school, section 60 (together with section 62) shall apply as if the duty to maintain the school had been transferred to the local education authority for the new area.

46 Establishment of a new voluntary school in substitution for an old one

(1) This section applies where—

(a) proposals for the establishment of any school or schools are submitted to the Secretary of State under section 41(1); and

(b) in connection with those proposals it is claimed that the school or schools should be maintained by the local education authority as a voluntary school or voluntary schools in substitution for any other voluntary school or schools (whether maintained by that or another local education authority) which is or are to be discontinued.

(2) If the Secretary of State—

(a) approves the proposals under section 43, and

(b) is satisfied that the new school or schools will be maintained as mentioned in subsection (1)(b) above,

he may by order direct that the new school or schools shall be established in substitution for the school or schools which is or are to be discontinued.

(3) Where an order is made under this section, section 173 shall not apply with respect to the discontinuance of that school or those schools.

(4) Before making an order under this section, the Secretary of State shall consult—

(a) any local education authority who in his opinion will be affected by the making of the order; and

(b) the governing body of any voluntary school which in his opinion will be so affected.

(5) An order under this section may—

(a) impose such conditions on any such local education authority or governing body, and

(b) contain such incidental and consequential provisions,

as the Secretary of State thinks fit.

47 Order authorising transfer of voluntary school to new site

(1) Where the Secretary of State is satisfied that the transfer of a voluntary school to a new site is expedient—

(a) because it is not reasonably practicable to make to the existing premises of the school any alterations necessary to secure that they conform to the standards prescribed under section 542, or

(b) in consequence of any movement of population or of any action taken or proposed to be taken under the enactments relating to housing or to town and country planning,

he may by order authorise the transfer of the school to the new site.

(2) The Secretary of State shall not, however, make any such order in the case of an aided or special agreement school unless he is satisfied that the school’s governing body will be able and willing, with the assistance of any grant made under section 65, to defray the expenses mentioned in section 59(5).

(3) Before making an order under this section the Secretary of State shall consult—

(a) any local education authority who in his opinion will be affected by the making of the order; and

(b) the governing body of any voluntary school which in his opinion will be so affected.

(4) An order under this section may—

(a) impose such conditions on any such local education authority or governing body, and

(b) contain such incidental and consequential provisions,

as the Secretary of State thinks fit.

Status of new voluntary school

48 Order that school is to be controlled or aided school

(1) Where, at or before the time when any proposals are submitted to the Secretary of State under section 41(1), an application is duly made to the Secretary of State with respect to the school to which the proposals relate, he may (subject to the following provisions of this section) by order direct—

(a) that the school shall be a controlled school; or

(b) that the school shall be an aided school.

(2) Where on an application for an order under subsection (1)(b) the Secretary of State is satisfied that the governing body of the school will be able and willing, with the assistance of grants under section 65, to defray the expenses that would fall to be borne by them by virtue of section 59(2) and (3) as the governing body of an aided school, he shall make an order directing that the school shall be an aided school.

(3) Where on an application for an order under subsection (1)(b)—

(a) the Secretary of State is not satisfied that the governing body will be able to defray those expenses without the assistance of both—

(i) grants under section 65, and

(ii) a loan under section 67, and

(b) it appears to him that the area to be served by the school will not be also served by a county or controlled school,

he shall comply with subsection (4) before determining the application.

(4) The Secretary of State—

(a) shall consult such persons or bodies of persons as appear to him to be representative of any religion or religious denomination which, in his opinion having regard to the circumstances of the area, is likely to be concerned, and

(b) unless he is satisfied after that consultation that the holding of a local inquiry is unnecessary, cause such an inquiry to be held.

Proposals for a middle school

49 Proposals under section 35 or 41 for a middle school

Proposals published under section 35 or 41 with respect to a school maintained or to be maintained by a local education authority may, if the authority or persons making them think fit—

(a) specify an age below 10 years and six months and an age above 12 years, and

(b) provide that the school is to be a school for providing full-time education suitable to the requirements of pupils whose ages are between the ages so specified.

Division of a single school into two or more schools

50 Division of a county school

(1) Where—

(a) a county school is organised in two or more departments, and

(b) the local education authority submit to the Secretary of State proposals that the school should be divided into two or more separate schools,

the Secretary of State may by order direct that the school shall be divided into two or more separate county schools.

(2) Any such order shall come into operation on such date as may be specified in the order; and as from that date the local education authority shall maintain as a county school each of the separate schools constituted in pursuance of the order.

(3) An order under this section may contain such incidental, consequential and supplemental provisions as the Secretary of State thinks fit, and may, in particular, include provision for defining the premises of each of the separate schools to be constituted in pursuance of the order.

(4) The constitution of a separate school in pursuance of an order under this section does not amount to the establishment of a new school for the purposes of section 35(1).

(5) In this section “department”, in relation to a school, means a part of the school organised under a separate head teacher.

51 Division of a voluntary school

(1) Where—

(a) a controlled or aided school is organised in two or more separate departments, and

(b) the governing body, after consulting the local education authority, submit to the Secretary of State proposals that the school should be divided into two or more separate schools,

the Secretary of State may by order direct that the school shall be divided into two or more separate voluntary schools.

(2) Where the school is a controlled school, the order shall direct that each of the schools into which it is to be divided shall be a controlled school.

(3) Where the school is an aided school, the order shall direct that each of the schools into which it is to be divided shall be an aided school; except that, if the governing body request the Secretary of State to direct that all or any of those schools shall be controlled schools, the order shall direct accordingly.

(4) An order under this section shall come into operation on such date as may be specified in the order; and as from that date the local education authority shall maintain as a voluntary school each of the separate schools constituted in pursuance of the order.

(5) An order under this section may contain such incidental, consequential and supplemental provisions as the Secretary of State thinks fit, and may, in particular, include provision for defining the premises of each of the separate schools to be constituted in pursuance of the order.

(6) The constitution of a separate school in pursuance of an order under this section does not amount to the establishment of a new school for the purposes of section 41(1).

(7) No order shall be made under this section for the division of a school in respect of which a special agreement is in force.

(8) In this section “department”, in relation to a school, means a part of the school organised under a separate head teacher.

Change of status from controlled school to aided school

52 Proposals for changing a controlled school to an aided school

(1) Where the governing body of a controlled school propose to apply for an order under section 54 directing that the school should become an aided school, they shall, after consultation with the local education authority—

(a) publish their proposals in such manner as may be required by regulations, and

(b) submit a copy of the published proposals to the Secretary of State.

(2) Proposals published under this section shall be accompanied by a statement which—

(a) explains the effect of section 53; and

(b) specifies the date on which the proposals are intended to be implemented.

(3) A governing body who submit proposals to the Secretary of State under this section shall provide him with such information as he may reasonably require in order to be able to give proper consideration to them.

53 Objections to proposals

(1) Objections to any proposals published under section 52 may be submitted to the Secretary of State by any of the following—

(a) any ten or more local government electors for the area of the local education authority by whom the school is maintained;

(b) the governing body of any voluntary school affected by the proposals; and

(c) any local education authority concerned.

(2) Objections may be so submitted within the period of two months beginning with the date on which the proposals are first published.

(3) For the purposes of this section proposals under section 52 shall be taken to have been first published—

(a) on the day on which the requirements of regulations under that section with respect to the publication of the proposals are satisfied; or

(b) where different such requirements are satisfied on different days, on the last of those days.

(4) Where any such requirement imposes a continuing obligation with respect to the publication of any proposals, the requirement shall for the purposes of subsection (3) be taken to be satisfied on the first day in respect of which it is satisfied.

54 Order by Secretary of State

(1) On an application duly made to him by the governing body of any controlled school the Secretary of State may by order direct that, as from such date as is specified in the order, the school shall be an aided school.

(2) The Secretary of State shall not make an order under this section unless he is satisfied that the governing body will be able and willing—

(a) with the assistance of grants under section 65, to defray the expenses mentioned in section 59(2) and (3), and

(b) to pay to the local education authority any compensation payable by the governing body under section 56.

(3) Where the Secretary of State proposes, in making an order under this section, to specify under subsection (1) a date which is different from that specified in pursuance of section 52(2)(b), he shall first consult the governing body and the local education authority as to the date which it would be appropriate to specify in the order.

(4) Where, in consequence of an order made under this section, an amount will be payable by a governing body by way of compensation under section 56, the order—

(a) shall specify the amount of the compensation so payable and the date by which it must be paid; and

(b) may impose such conditions in relation to its payment as the Secretary of State thinks fit.

(5) An order under this section may make such provision (including provision modifying any provision made by or under this Act) as the Secretary of State considers appropriate in connection with the transition of the school in question from controlled to aided status.

(6) In particular, an order under this section may make provision—

(a) as to the circumstances in which, and purposes for which, the school is to be treated before the date specified under subsection (1) as if it were an aided school;

(b) as to the time by which the new instrument of government and articles of government (appropriate for an aided school) are to be made for the school, and the consent and consultation required before they are made;

(c) where the local education authority propose to pass a resolution under section 89 to group the school when it becomes an aided school, as to the consent required before that resolution is passed;

(d) as to the appointment and dismissal of staff for the school;

(e) as to the arrangements to be made in relation to the admission of pupils to the school; and

(f) as to functions exercisable by, or in relation to, the governing body or the governors of any category specified in the order.

55 Variation of order under section 54

(1) Where the Secretary of State has made an order under section 54, he may, on the application of the local education authority or the foundation governors of the school, by order vary the order under that section so as to specify—

(a) a different date from that specified under subsection (1) of that section, or

(b) a different amount from that specified under subsection (4) of that section.

(2) The foundation governors of a school shall consult the other governors before applying to the Secretary of State under this section.

(3) Before making an order under this section the Secretary of State shall consult—

(a) the local education authority, where the application is by the foundation governors, and

(b) the foundation governors, where the application is by the local education authority.

(4) Where foundation governors are consulted by the Secretary of State under subsection (3), they shall, before giving him their views, consult the other governors of the school.

56 Compensation payable by governing body to local education authority

(1) Where a controlled school becomes an aided school by virtue of an order under section 54, the governing body shall pay to the local education authority, in accordance with the order, an amount by way of compensation for relevant capital expenditure incurred in respect of the school by the authority or a predecessor of theirs.

(2) In subsection (1) “relevant capital expenditure” means—

(a) expenditure incurred under section 60 (or under paragraph 1 of Schedule 1 to the [1946 c. 50.] Education Act 1946) in providing buildings which form part of the school premises;

(b) expenditure incurred under section 63 (or under section 2 of the [1953 c. 33.] Education (Miscellaneous Provisions) Act 1953) in defraying expenses of establishing the school; or

(c) expenditure incurred under section 64 (or under section 1 of the Education Act 1946) in defraying expenses of enlarging the school.

(3) The amount payable by way of compensation under this section shall be—

(a) such as may be agreed by the governing body and the local education authority, or

(b) failing such agreement, such as the Secretary of State thinks fit, having regard to the current value of the property in question.

(4) The Secretary of State may, for the purpose of assisting him in any determination which he is required to make under subsection (3), appoint such person as he thinks competent to advise him on the valuation of property.

(5) No contribution, grant or loan shall be paid, or other payment made, by the Secretary of State to the governing body of a controlled school in respect of any compensation payable by them under this section.

Change of status from aided or special agreement school to controlled or aided school

57 Change to controlled school where governing body unable or unwilling to carry out financial obligations

(1) If at any time the governing body of an aided school are unable or unwilling to carry out all their obligations under section 59, they shall apply to the Secretary of State for an order revoking—

(a) the order made under section 48, 54 or 58 (or under section 15 of the [1944 c. 31.] Education Act 1944 or section 54 of the [1986 c. 61.] Education (No. 2) Act 1986), or

(b) the direction in an order made under section 51 (or under section 2 of the [1946 c. 50.] Education Act 1946),

by virtue of which the school is an aided school.

(2) If at any time the governing body of a special agreement school are unable or unwilling to carry out all their obligations under section 59, they shall apply to the Secretary of State for an order revoking the order made under section 15 of the Education Act 1944 by virtue of which the school is a special agreement school.

(3) For the purposes of this section the governing body of an aided school or a special agreement school shall not be regarded as unable to carry out any of their obligations under section 59 if they are able to carry them out with the benefit of assistance under section 68 of this Act.

(4) Where an application is made to him under this section, the Secretary of State shall by order revoke the order or direction in question, and the school in question shall thereupon become a controlled school in accordance with section 32(2).

58 Change to controlled or aided school on repayment of grant under special agreement

(1) Where the Secretary of State is satisfied that the grant made in respect of a school in pursuance of a special agreement has been repaid as mentioned in paragraph 5 of Schedule 5, he shall, on an application made for the purpose by the school’s governing body, by order revoke the order under section 15 of the Education Act 1944 by virtue of which the school is a special agreement school.

(2) Where the Secretary of State—

(a) makes an order under this section, and

(b) is satisfied that the governing body of the school will be able and willing, with the assistance of grants under section 65, to defray the expenses that would fall to be borne by them by virtue of section 59(2) and (3) as the governing body of an aided school,

he shall by order direct that the school shall be an aided school.

(3) Where in any other case the Secretary of State makes an order under this section, the school in question shall thereupon become a controlled school in accordance with section 32(2).

Chapter III Funding of voluntary schools

Obligations of governing bodies

59 Obligations of governing bodies of voluntary schools

(1) The governing body of a controlled school are (in accordance with section 34(3)) not responsible for any of the expenses of maintaining the school.

(2) In the case of an aided or special agreement school, the expenses of discharging any liability incurred by or on behalf of—

(a) the governing body of the school,

(b) any former governors of the school, or

(c) any trustees of the school,

in connection with the provision of premises or equipment for the purposes of the school are payable by the governing body of the school.

(3) In addition, any expenses incurred—

(a) in making to the school buildings of an aided or special agreement school such alterations as may be required by the local education authority for the purpose of securing that the school premises conform to the standards prescribed under section 542, or

(b) in effecting repairs to the school buildings, other than repairs falling within subsection (4),

are payable by the governing body of the school.

(4) The governing body of an aided or special agreement school are not responsible—

(a) for repairs to the interior of the school buildings, or

(b) for repairs to those buildings necessary in consequence of the use of the school premises, in pursuance of a direction or requirement of the local education authority, for purposes other than those of the school.

(5) Where an order is made under section 47 authorising the transfer of an aided or special agreement school to a new site, the expenses of providing any school buildings to be provided on the new site are payable by the governing body of the school.

Obligations of LEAs as regards new sites and buildings

60 Obligation of LEAs to provide new sites and buildings for controlled schools

(1) In the case of a controlled school, the local education authority shall provide—

(a) any new site which is to be provided in addition to, or instead of, the school’s existing site (or part of its existing site), and

(b) any buildings which are to form part of the school premises,

other than any site or buildings that persons other than the authority are under a duty to provide by virtue of proposals required to be implemented under section 45 (or, where a special agreement is in force in respect of the school, under that agreement).

(2) Where a new site is provided for a school under this section, the local education authority shall convey their interest in the site, and in any buildings on the site which are to form part of the school premises, to the trustees of the school to be held on trust for the purposes of the school.

(3) If any doubt or dispute arises as to the persons to whom the authority are required to make the conveyance, it shall be made to such persons as the Secretary of State thinks proper.

(4) Where—

(a) an interest in premises which are to be used for the purposes of a school is conveyed under this section, and

(b) the conveyance is made to persons who possess, or are or may become entitled to, any sum representing proceeds of the sale of other premises which have been used for the purposes of the school,

those persons or their successors shall pay to the local education authority so much of that sum as the Secretary of State may determine to be just having regard to the value of the interest conveyed.

(5) In subsection (4)(b) the reference to proceeds of the sale of other premises includes a reference to consideration for the creation or disposition of any kind of interest in other premises.

(6) Any sum paid under subsection (4) shall be treated for the purposes of section 14 of the [1841 c. 38.] Schools Sites Act 1841 (which relates to the sale or exchange of land held on trust for the purposes of a school) as a sum applied in the purchase of a site for the school.

(7) The Secretary of State shall not make a determination under subsection (4) in respect of any property subject to a trust which has arisen under section 1 of the [1987 c. 15.] Reverter of Sites Act 1987 (right of reverter replaced by trust for sale) unless he is satisfied that steps have been taken to protect the interests of the beneficiaries under the trust.

61 Obligation of LEAs to provide new sites for aided and special agreement schools

(1) In the case of an aided or special agreement school, the local education authority shall provide any new site—

(a) which is to be provided in addition to or instead of the school’s existing site (or part of its existing site), and

(b) which is not a site that persons other than the authority are under a duty to provide by virtue of proposals required to be implemented under section 45 or under a special agreement.

(2) Where a new site is provided for a school under this section, the local education authority shall convey their interest in the site, and in any buildings on the site which are to form part of the school premises, to the trustees of the school to be held on trust for the purposes of the school.

(3) If any doubt or dispute arises as to the persons to whom the authority are required to make the conveyance, it shall be made to such persons as the Secretary of State thinks proper.

(4) Where—

(a) a new site is provided for a school under this section, and

(b) work is required to be done to the site for the purpose of clearing it or making it suitable for building purposes,

the local education authority and the governing body of the school may make an agreement providing for the making of such payments, or of such other adjustments of their respective rights and liabilities, as will secure that the cost of the work is borne by the authority.

(5) Where—

(a) a new site is provided for a school under this section, and

(b) there are buildings on the site which are of value for the purposes of the school,

the local education authority and the governing body of the school may make an agreement providing for the making of such payments, or of such other adjustments of their respective rights and liabilities, as appear to be desirable having regard to the governing body’s duties under section 59 with respect to the school buildings.

(6) Where it appears to the Secretary of State that provision for any payment or other adjustment ought to have been made under subsection (4) or (5) but has not been made, he may give directions providing for the making of such payment or other adjustment as he thinks proper.

62 Provisions supplementary to sections 60 and 61

(1) In sections 60(1) and (2) and 61 “site” does not include playing fields but otherwise includes any site which is to form part of the premises of the school in question.

(2) Where, after premises have been conveyed to the trustees of a school under section 60 or 61, a person acquires the premises or part of them from the trustees (whether compulsorily or otherwise), the Secretary of State may require the trustees or their successors to pay to the local education authority by whom the premises were conveyed so much of the compensation or purchase money paid in respect of the acquisition as he thinks just having regard—

(a) to the value of the premises conveyed by the authority, and

(b) to any sums received by the authority in respect of the premises under section 60 or 61.

(3) In subsection (2) “premises” includes any interest in premises.

(4) Subsection (2) does not apply in the case of an institution which is, or has at any time been, within the further education sector.

Financial assistance for controlled schools

63 Payment by LEA of expenses of establishing controlled school

(1) Where—

(a) proposals for the establishment of a school are submitted to the Secretary of State under section 41(1),

(b) no application is made under section 48 for an order directing that the school shall be an aided school, and

(c) the persons submitting the proposals and the local education authority satisfy the Secretary of State that subsection (3) below applies,

the Secretary of State may by order direct that the whole or a specified part of the promoters' expenses of establishment shall be defrayed by the local education authority.

(2) In subsection (1) “the promoters' expenses of establishment” means so much of the cost incurred in establishing the school as would, but for the order, fall to be defrayed by the persons who establish it.

(3) This subsection applies if the establishment of the school is required for the purpose of providing accommodation for pupils for whom, or for a substantial proportion of whom, accommodation would have been provided in some other school—

(a) which is or was a voluntary school, or

(b) which is or was a grant-maintained school, having been a voluntary school immediately before it became grant-maintained,

if that other school had not been discontinued or had not otherwise ceased to be available for the purpose.

64 Payment by LEA of expenses of enlarging controlled school

(1) Where the Secretary of State—

(a) is satisfied, on an application made to him by the governing body of a controlled school and the local education authority—

(i) that there should be a significant enlargement of the school premises, and

(ii) that subsection (2) or subsection (3) applies, and

(b) approves proposals for the enlargement under section 43,

he may by order direct that the cost of implementing the proposals shall be defrayed by the local education authority.

(2) This subsection applies if the enlargement is wholly or mainly required for the purpose of providing accommodation for pupils for whom accommodation would have been provided in another voluntary school if that other school had not been discontinued or had not otherwise ceased to be available for the purpose.

(3) This subsection applies if the enlargement is desirable for either or both of the following reasons—

(a) for the better provision of primary or secondary education at the premises to be enlarged;

(b) for securing that enough suitable primary or secondary schools are available for the area of the authority.

Financial assistance by Secretary of State for aided and special agreement schools

65 Grants in respect of expenditure on premises or equipment

(1) The Secretary of State may—

(a) in the case of any aided school or special agreement school, or

(b) where proposals have been approved under section 43 for a school or proposed school to be maintained as a voluntary school and the Secretary of State has made an order under section 48 directing that the school is to be an aided school,

make grants to the governing body in respect of qualifying expenditure incurred by them.

(2) In subsection (1) “qualifying expenditure” means expenditure in respect of the provision, alteration or repair of premises or equipment for the school or proposed school.

(3) The amount of any grant paid under this section to the governing body in respect of any such expenditure—

(a) shall not exceed 85 per cent. of the expenditure, and

(b) in the case of any prescribed class or description of such expenditure, shall be such as may be determined in accordance with regulations.

(4) The times at which, and the manner in which, payments are made in respect of grant under this section shall be such as may be determined from time to time by the Secretary of State.

(5) Without prejudice to any other duty of his, the Secretary of State shall, in performing functions relating to the exercise of the power under this section to make grants in respect of expenditure on—

(a) such alterations to school buildings as are referred to in section 59(3)(a), or

(b) the repair of school buildings,

give priority to paying grant in respect of expenditure which is necessary for the performance by governing bodies of their duties; and the amount of any grant paid in the exercise of that power in respect of such expenditure on the repair of school buildings shall be 85 per cent. of the expenditure.

(6) A governing body to whom any payment is made in respect of grant under this section shall comply with such requirements determined by the Secretary of State as he may from time to time impose.

(7) Such requirements—

(a) may be imposed on, or at any time after, the making of any payment by reference to which they are imposed, and

(b) may at any time be waived, removed or varied by the Secretary of State.

(8) Such requirements may, in particular, if any conditions specified in the requirements are satisfied, require the payment to the Secretary of State of the whole or any part of the following amount.

(9) That amount is—

(a) the amount of the payments made in respect of the grant under this section, or

(b) so much of the value of any premises or equipment in respect of which grant was paid under this section as is determined in accordance with the requirements to be properly attributable to the payment of such grant,

whichever is the greater.

(10) No such requirement as is referred to in subsection (8) may be imposed where any payment is made in respect of grant under this section if—

(a) the grant is made in respect of the provision, alteration or repair of premises for a school or proposed school, and

(b) any freehold interest in the premises in respect of which the grant is made is, or is to be, held on trust for the purposes of the school.

(11) No grant may be paid under this section—

(a) in respect of any expenses incurred in the provision of any premises which it is the duty of the local education authority to provide, or

(b) in the case of a special agreement school, in respect of expenses incurred in the execution of proposals to which the special agreement relates or of repairs or alterations for the execution of which provision is made by the agreement.

(12) In relation to a proposed school, the references in this section to the governing body, in relation to any time before such a body are constituted, are to the persons who propose to establish the school; and where requirements are imposed in relation to grant paid under this section to such persons, the requirements shall be complied with by the governing body, when they are constituted, as well as by those persons.

(13) In this section “repair” does not include repair falling within section 59(4).

66 Grants in respect of preliminary expenditure

(1) The Secretary of State may pay grants to the governing body of an aided or special agreement school in respect of any preliminary expenditure incurred by them for the purposes of a scheme for the transfer of the school to a new site or the enlargement or alteration of the school premises.

(2) Where any persons propose or are considering whether to propose—

(a) that a school established by them, or by persons whom they represent, should be maintained by a local education authority as an aided school, or

(b) that a school which may be so established should be so maintained,

the Secretary of State may pay grants to them in respect of any preliminary expenditure incurred by them for the purposes of a scheme for the provision of a site for the school or of any buildings which would be school buildings.

(3) Grants under subsection (1) or (2) may be paid in respect of a scheme such as is mentioned in that subsection whether or not—

(a) the details of such a scheme had been formulated at the time when the expenditure was incurred,

(b) where such details were not formulated at that time, they are subsequently formulated,

(c) the governing body or persons in question had determined to proceed with such a scheme at that time, or

(d) where they had not determined to proceed with such a scheme at that time, they subsequently determine to proceed with such a scheme.

(4) Expenditure in respect of which such grants are payable includes, in particular, costs incurred in connection with—

(a) the preparation of plans and specifications for any proposed construction, enlargement or alteration of buildings which are or would be school buildings, and

(b) estimating the sums which would be expended if any such works were carried out,

but does not include any sums expended in carrying out any such works.

(5) A grant under subsection (1) or (2) shall not exceed 85 per cent. of the expenditure in respect of which it is paid.

(6) Where—

(a) a grant is paid under subsection (1) in the case of any school, or

(b) a grant is paid under subsection (2) in the case of any school which becomes, or is established as, a voluntary school,

the grant shall for the purposes of section 173 be treated as expenditure incurred by the Secretary of State (otherwise than in connection with repairs) in respect of the school premises.

67 Loans in respect of initial expenses

(1) Where, on the application of the governing body of an aided or special agreement school and after consulting persons representing the governing body, the Secretary of State—

(a) is satisfied that the governing body’s share of any initial expenses required in connection with the school premises will involve capital expenditure, and

(b) having regard to all the circumstances of the case, considers that that expenditure ought properly to be met by borrowing,

he may make a loan to the governing body for the purpose of helping them meet that expenditure.

(2) The amount, rate of interest and other terms and conditions applicable to the loan shall be such as may be specified in an agreement made between the Secretary of State and the governing body with the consent of the Treasury.

(3) For the purposes of this section “initial expenses” are expenses of any of the following categories—

(a) expenses to be incurred in pursuance of a special agreement;

(b) expenses to be incurred in providing school buildings on a site to which the school is to be transferred pursuant to an order under section 47;

(c) expenses to be incurred in providing a site or school buildings on a significant enlargement of the school premises or on the transfer of the school to a new site, being expenses in respect of which grants may be paid under section 65;

(d) expenses to be incurred in providing a site or school buildings for a new school, being expenses in respect of which grants may be paid under section 65.

(4) For the purposes of this section the governing body’s share of any initial expenses shall be taken to be so much of the expenses as remains to be borne by the governing body after taking into account the amount of any grant under section 65 or under a special agreement that may be paid or payable in respect of them.

Assistance by LEAs for governing bodies of aided and special agreement schools

68 Assistance in respect of maintenance and other obligations of governing body

A local education authority may give to the governing body of an aided or special agreement school such assistance as the authority think fit in relation to the carrying out by the governing body of any obligation under—

(a) section 45(1), or

(b) section 59.

Assistance by LEAs for promoters of new voluntary schools

69 Assistance for promoters of new voluntary school

A local education authority may give to persons required under section 45(1) to implement proposals involving the establishment of a school such assistance as the authority think fit in relation to the carrying out by those persons of their obligations under that provision.

Miscellaneous and supplemental

70 Duty to convey interest in premises provided under section 68 or 69

(1) Where assistance under section 68 or 69 consists of the provision of any premises for use for the purposes of a school, the local education authority shall convey their interest in the premises to the trustees of the school to be held on trust for the purposes of the school.

(2) If any doubt or dispute arises as to the persons to whom the authority are required to make the conveyance, it shall be made to such persons as the Secretary of State thinks proper.

(3) Where trustees make a disposal of an interest conveyed to them by a local education authority under subsection (1), they shall be liable to pay to that authority an amount equal to the net proceeds of the disposal.

(4) In subsection (3)—

• “disposal” includes part disposal; and

• “net proceeds”, in relation to a disposal, means the amount accruing on the disposal less any expenditure reasonably incurred for the purposes of making it.

71 Powers of Secretary of State where LEA make default in maintaining voluntary school

(1) Where it appears to the Secretary of State that a local education authority have made default in the discharge of their duties relating to the maintenance of a voluntary school, he may—

(a) direct that any act done by or on behalf of the school’s governing body for the purpose of securing the proper maintenance of the school shall be taken to have been done by or on behalf of the authority, and

(b) reimburse to the governing body any sums which in his opinion they have properly expended for that purpose.

(2) The amount of any sum reimbursed under subsection (1) shall be recoverable by the Secretary of State as a debt due to him from the authority; and without prejudice to any other method of recovery the whole or any part of any such sum may be deducted from any sums payable to the authority by the Secretary of State in pursuance of any regulations relating to the payment of grants.

72 Endowments for maintenance of voluntary schools

Where any sums accruing in respect of the income of an endowment are required by virtue of the provisions of a trust deed to be applied towards the maintenance of a voluntary school, those sums shall not be payable to the local education authority but shall be applied by the governing body of the school—

(a) towards the discharge of their obligations, if any, under section 59, or

(b) in such other manner, if any, as may be determined by a scheme for the administration of the endowment made after 1st April 1945.

73 Sums paid for letting or hiring of premises of voluntary schools

Any sum which is paid to the governing body or trustees of a voluntary school in respect of the letting or hiring of any part of the school premises other than school buildings shall be paid over to the local education authority.

74 Execution by LEA of certain works in case of controlled schools

(1) Where a local education authority are liable to defray the cost of carrying out any building work, repair work or work of a similar character which is required for the purposes of a controlled school, the work shall, if the authority so determine, be carried out by employees of theirs.

(2) If the authority make such a determination, the governing body and any trustees of the school shall provide the authority and the authority’s employees with all such facilities as they may reasonably require for the purpose of securing that the work is carried out properly.

75 Disapplication of restriction on local authority disposals

Subsection (2) of section 123 of the [1972 c. 70.] Local Government Act 1972 (local authority prohibited from making disposal of land under that section below market value without consent of the Secretary of State) shall not apply in the case of a disposal—

(a) to the governors of an aided or special agreement school, or

(b) to persons proposing to establish a school which is proposed to be maintained by a local education authority as a voluntary school and to be an aided school.

Chapter IV Government of county, voluntary and maintained special schools

Instruments of government

76 Instruments of government

(1) For every county, voluntary and maintained special school there shall be an instrument (known as the instrument of government) providing for the constitution of the school’s governing body.

(2) The instrument of government shall be made by order of the local education authority.

(3) The instrument of government—

(a) shall contain such provisions as are required by this Chapter or by any other enactment; and

(b) shall not contain any provision which is inconsistent with any provision made by or under this Act or any other enactment.

(4) The instrument of government shall comply with any trust deed relating to the school.

(5) This section has effect subject to section 89 (grouping of two or more schools under a single governing body) and sections 96 and 97 (temporary governing body for new school pending constitution of its governing body).

77 Procedure for making and altering instruments of government

(1) Before making an order under section 76, a local education authority shall consult the governing body and the head teacher of the school concerned.

(2) Before making an order under section 76 in respect of a voluntary school, a local education authority shall also—

(a) secure the agreement of the governing body to the terms of the proposed order;

(b) secure the agreement of the foundation governors to any provisions which are of particular concern to those governors; and

(c) have regard to the way in which the school has been conducted.

(3) Where the governing body of a county, voluntary or maintained special school make a proposal to the local education authority for the alteration of the provision made by the instrument of government for the school, the authority shall consider their proposal.

(4) Where—

(a) the foundation governors of a voluntary school make a proposal to the local education authority for the alteration of the provision made by the instrument of government for the school, and

(b) the proposal relates solely to one or more matters which are of particular concern to those governors,

the authority shall consider their proposal.

(5) Where a local education authority—

(a) propose to make an order under section 76 but cannot secure any agreement required by subsection (2), or

(b) refuse, in the case of a voluntary school, to make such an order in response to a proposal of a kind mentioned in subsection (3) or (4),

the authority or (as the case may be) the governing body or foundation governors may refer the matter to the Secretary of State.

(6) On a reference to him under subsection (5), the Secretary of State shall give such direction as he thinks fit having regard, in particular, to the status of the school as a controlled, aided or (as the case may be) special agreement school.

(7) Where it appears to the Secretary of State—

(a) that an order, or proposed order, under section 76 is in any respect inconsistent with the provisions of any trust deed relating to the school concerned, and

(b) that it is expedient in the interests of the school that the provisions of the trust deed should be modified for the purpose of removing the inconsistency,

he may by order make such modifications in the trust deed as appear to him to be just and expedient for that purpose.

(8) References in this section to an order, or proposed order, under section 76 are references to an order, or proposed order, under that section embodying or varying an instrument of government.

Categories of governor

78 Categories of governor

(1) In this Act “co-opted governor”, in relation to a county, voluntary or maintained special school, means a person appointed to be a member of the school’s governing body by being co-opted by those governors of the school who have not themselves been so appointed (and accordingly does not include a governor of the school appointed in accordance with any provision made by virtue of section 81 (appointment of parent governors by governing body as a whole)).

(2) In this Act “foundation governor”, in relation to a voluntary school, means a person appointed to be a member of the school’s governing body, otherwise than by a local education authority or a minor authority, for the purpose of securing (so far as is practicable)—

(a) that the character of the school as a voluntary school is preserved and developed, and

(b) in particular, that the school is conducted in accordance with the provisions of any trust deed relating to it.

(3) In this Act “parent governor”, in relation to a county, voluntary or maintained special school, means—

(a) a person who is elected as a member of the school’s governing body by parents of registered pupils at the school and is himself such a parent at the time when he is elected, or

(b) (in the case of a county, controlled or maintained special school) a person who is appointed as a member of the governing body in accordance with any provision made by virtue of section 81.

(4) In this Act “teacher governor”, in relation to a county, voluntary or maintained special school, means a person who is elected as a member of the school’s governing body by teachers at the school and who is himself such a teacher at the time when he is elected.

(5) In relation to any group of schools under section 89 for which the instrument of government makes by virtue of section 93 provision with respect to the election of parent or teacher governors, any reference in subsection (3) or (4) to a person being elected as there mentioned is a reference to his being so elected in accordance with any such provision made by