PART 4 continued CHAPTER 1 continued
(4) The first condition is that—
(a) the Secretary of State has, during the period of three years before the enforcement action is taken, required the proprietor of the institution to submit one or more action plans under section 114, and
(b) any action plan required as mentioned in paragraph (a)—
(i) has not been submitted, and the date specified by the Secretary of State under section 114(5)(b) has passed,
(ii) was submitted but was rejected, or
(iii) was approved but was subsequently not complied with.
(5) The second condition is that—
(a) at least two years before the enforcement action is taken the Secretary of State required the proprietor of the institution to submit an action plan,
(b) at least one inspection of the institution has been carried out, by the Chief Inspector or an independent inspectorate approved under section 106 in relation to the institution, since that requirement was imposed, and
(c) the Secretary of State has not at any time since that requirement was imposed been satisfied that the institution was meeting all of the independent educational institution standards.
(1) Where the Secretary of State is entitled under section 115(3) to take enforcement action against the proprietor of an institution, the Secretary of State may—
(a) impose a relevant restriction on the proprietor, or
(b) remove the institution from the register.
(2) The Secretary of State must notify the proprietor of the institution in question of any decision to take enforcement action under subsection (1).
(3) A decision to take enforcement action under subsection (1) does not have effect during the period in which—
(a) an appeal may be brought under section 124 or 125 against the decision, or
(b) where such an appeal has been brought, the appeal has not been determined, withdrawn or otherwise disposed of.
(1) In this Chapter a “relevant restriction” imposed on the proprietor of a registered independent educational institution is a requirement that the proprietor take one or more of the following steps by a specified time or by specified times—
(a) to cease to use any part of the institution’s premises for all purposes or specified purposes;
(b) to close any part of the institution’s operation;
(c) to cease to admit any new students or new students of specified descriptions.
(2) In subsection (1) “specified” means—
(a) in the case of a relevant restriction imposed by the Secretary of State under section 116(1)(a), specified by the Secretary of State;
(b) in the case of a relevant restriction imposed by an order of a justice of the peace under section 120, specified in the order;
(c) in the case of a relevant restriction imposed by an order of the Tribunal under section 124, 125 or 126, specified in the order.
(1) This section applies where the proprietor of an institution is subject to a relevant restriction imposed by the Secretary of State under section 116(1)(a).
(2) If the proprietor fails to comply with the relevant restriction the proprietor is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 5 on the standard scale (or to both).
(3) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c. 44), for “51 weeks” in subsection (2) substitute “six months”.
(4) The proprietor may apply to the Secretary of State for the restriction to be varied or revoked.
(5) On an application under subsection (4) the Secretary of State must—
(a) vary or revoke the restriction as requested in the application, if the Secretary of State is satisfied that it is appropriate to do so because of any change of circumstance, and
(b) in any other case, refuse to do so.
(6) The Secretary of State must notify the proprietor of the decision made under subsection (5).
(7) A decision to vary or revoke the restriction has effect as from the date on which the proprietor receives notice of it.
(1) The Secretary of State may remove an institution from the register if satisfied that a person to whom subsection (2) applies—
(a) carries out work of a prescribed kind in relation to the institution, or
(b) is the proprietor of the institution.
(2) This subsection applies to any person who is subject to a direction, order or decision of a prescribed description made under any prescribed enactment having effect in any part of the United Kingdom.
(3) The Secretary of State must notify the proprietor of an institution of any decision to remove it from the register under this section.
(4) The Secretary of State’s decision does not have effect during the period in which—
(a) an appeal may be brought under section 124 against the decision, or
(b) where such an appeal has been brought, the appeal has not been determined, withdrawn or otherwise disposed of.
(5) The reference in subsection (1) to the proprietor of the institution is—
(a) in a case in which the proprietor is a company, a reference to any director of the company;
(b) in a case in which the proprietor is any other body of persons, whether corporate or unincorporate, a reference to any member of the body.
(1) The Secretary of State may apply to a justice of the peace for—
(a) an order imposing a relevant restriction on the proprietor of a registered independent educational institution, or
(b) an order that such an institution be removed from the register.
(2) If it appears to the justice that a student at the institution in question is suffering or is likely to suffer significant harm, the justice may make the order.
(3) An application under this section may be made without notice.
(4) An order under this section must be in writing.
(5) A copy of an order under this section must be served on the proprietor of the institution by the Secretary of State as soon as reasonably practicable after the order is made.
(6) An order under this section has effect from the time the copy is served on the proprietor (and, accordingly, in the case of an order under subsection (1)(b), the Secretary of State must not remove the institution from the register in pursuance of the order before that time).
(7) For the purposes of this section, “harm” has the same meaning as in the Children Act 1989 (c. 41) and the question of whether harm is significant is to be determined in accordance with section 31(10) of that Act.
(1) This section applies where the proprietor of an institution is subject to a relevant restriction imposed by an order of a justice of the peace under section 120(1)(a).
(2) If the proprietor fails to comply with the relevant restriction, the proprietor is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 5 on the standard scale (or to both).
(3) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c. 44), for “51 weeks” in subsection (2) substitute “six months”.
(1) The Secretary of State must comply with this section as soon as reasonably practicable after an order is made under section 120 against the proprietor of an institution.
(2) The Secretary of State must serve on the proprietor—
(a) a copy of any written statement in support of the application for the order, and
(b) notice of the right of appeal conferred by section 126.
(3) In the case of an order made against the proprietor of a special institution, the Secretary of State must notify the following that the order has been made—
(a) the local education authority in whose area the institution is situated;
(b) any other local education authority that the Secretary of State, after reasonable enquiry, is aware has specified the institution in a statement of special educational needs in respect of a student at the institution.
(4) In this section “a special institution” means an institution that is specially organised to make special educational provision for students with special educational needs.
(1) Regulations may make provision for requiring the proprietor of a registered independent educational institution to provide the Secretary of State, on request, with such particulars relating to the institution as may be prescribed.
(2) Regulations under this section may in particular—
(a) require the provision of such information as is needed by the local authority in whose area the institution is situated for the purpose of determining whether the institution is a children’s home within the meaning of the Care Standards Act 2000 (c. 14) (see section 1 of that Act);
(b) provide for the Secretary of State to remove from the register any institution in respect of which any requirement imposed by or under the regulations is not complied with;
(c) provide that a person who fails to comply with any specified provision of the regulations is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(3) In subsection (2) “specified” means specified in regulations under this section.
(4) Regulations that include provision by virtue of subsection (2)(b) must include the provision required by subsections (5) and (6).
(5) The regulations must require the Secretary of State to notify the proprietor of an institution of any decision to remove the institution from the register by virtue of subsection (2)(b).
(6) The regulations must provide that a decision by the Secretary of State to remove an institution from the register by virtue of subsection (2)(b) does not have effect during the period in which—
(a) an appeal may be brought under section 124 against the decision, or
(b) where such an appeal has been brought, the appeal has not been determined, withdrawn or otherwise disposed of.
(1) The proprietor of a registered independent educational institution may appeal to the Tribunal against a decision of the Secretary of State to remove the institution from the register—
(a) under section 100 (no longer required to register),
(b) under section 105 (unapproved material change),
(c) under section 112 (failure to pay fees),
(d) under section 116 (failure to meet standards),
(e) under section 119 (unsuitable persons), or
(f) by virtue of section 123 (failure to provide information).
(2) Any appeal under this section must be brought within the period of 28 days beginning with the day on which notice of the decision is served on the proprietor.
(3) On an appeal under this section the Tribunal may—
(a) confirm the decision,
(b) direct that the decision is of no effect, or
(c) in the case of an appeal under subsection (1)(b), (d) or (e), direct that the decision is of no effect and make an order imposing a relevant restriction on the proprietor of the institution.
(4) Where the Tribunal confirms the decision, the Secretary of State must remove the institution from the register on such date as the Tribunal may specify or, if it does not specify a date, from such date as the Secretary of State may determine.
(5) In this Chapter “the Tribunal” means the First-tier Tribunal.
(1) The proprietor of an institution may appeal to the Tribunal against a decision of the Secretary of State in relation to the institution under—
(a) section 99(2) (standards not likely to be met on registration),
(b) section 104(1) (refusal to approve a material change),
(c) section 116(1)(a) (imposition of relevant restriction on proprietor), or
(d) section 118(5)(b) (refusal to vary or revoke a relevant restriction).
(2) Any appeal under this section must be brought within the period of 28 days beginning with the day on which notice of the decision is served on the proprietor.
(3) On an appeal under subsection (1)(a), the Tribunal may—
(a) confirm the decision, or
(b) require the Secretary of State to reconsider the decision, taking into account, amongst other things, the findings of the Tribunal on the appeal.
(4) Section 99(3) and (4) applies in relation to the Secretary of State’s decision on reconsideration under subsection (3)(b) above as it applies to a decision made under section 99(2).
(5) On an appeal under subsection (1)(b) the Tribunal may—
(a) confirm the decision, or
(b) itself approve the change.
(6) On an appeal under subsection (1)(c), the Tribunal may—
(a) confirm the decision,
(b) direct that the relevant restriction is to cease to have effect, or
(c) direct that the relevant restriction is to cease to have effect and make an order imposing a different relevant restriction on the proprietor.
(7) On an appeal under subsection (1)(d), the Tribunal may—
(a) confirm the refusal, or
(b) if the Tribunal is satisfied that it is appropriate to do so because of a change of circumstance since the restriction in question was imposed—
(i) direct that the relevant restriction is to cease to have effect, or
(ii) direct that the relevant restriction is to cease to have effect and make an order imposing a different relevant restriction on the proprietor.
(1) The proprietor of a registered independent educational institution may appeal to the Tribunal against the making of an order under section 120 (order of justice of the peace in an emergency).
(2) On an appeal under this section the Tribunal may—
(a) confirm the making of the order,
(b) direct that the order is to cease to have effect, or
(c) direct that the order is to cease to have effect and make an order—
(i) imposing a relevant restriction on the proprietor of the institution, or
(ii) requiring the Secretary of State to remove the institution from the register on such date as the Tribunal may specify or, if it does not specify a date, from such date as the Secretary of State may determine.
(3) Subsection (4) applies where—
(a) an appeal is brought under this section against an order that the institution be removed from the register, and
(b) the Tribunal directs that the order is to cease to have effect.
(4) The institution—
(a) must be restored to the register by the Secretary of State, and
(b) is to be treated as if it had not been removed from the register in pursuance of the order.
(1) This section applies where the Tribunal makes an order under section 124, 125 or 126 imposing a relevant restriction on the proprietor of an institution.
(2) The order in question has effect from the time the proprietor receives notice of it in accordance with Tribunal Procedure Rules or from the Secretary of State.
(3) If the proprietor fails to comply with the relevant restriction, the proprietor is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 5 on the standard scale (or to both).
(4) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c. 44), for “51 weeks” in subsection (3) substitute “six months”.
(5) The proprietor may apply to the Tribunal for the relevant restriction to be varied or revoked.
(6) On an application under subsection (5) the Tribunal must—
(a) vary or revoke the relevant restriction as requested in the application, if the Tribunal is satisfied that it is appropriate to do so because of any change of circumstance, and
(b) in any other case, refuse to do so.
(1) The appropriate authority may direct that a person—
(a) may not take part in the management of an independent educational institution;
(b) may take part in the management of such an institution only in circumstances specified in the direction;
(c) may take part in the management of such an institution only if conditions specified in the direction are satisfied.
(2) A direction under this section may be given in respect of a person only on one or more prescribed grounds connected with the suitability of persons to take part in the management of an independent educational institution.
(3) Regulations may prescribe the procedure for giving a direction under this section (including provision about notification of persons who are subject to directions).
(4) The appropriate authority may vary or revoke a direction under this section in prescribed cases.
(5) Regulations may prescribe the grounds on which a person subject to a direction under this section may seek to have it varied or revoked under subsection (4).
(6) In this section and sections 129 to 131, “the appropriate authority” means—
(a) the Secretary of State, or
(b) such other public authority as may be prescribed.
(1) A person in respect of whom a direction has been given under section 128 may appeal to the Tribunal—
(a) against the decision to give the direction;
(b) against a decision not to vary or revoke the direction.
(2) Regulations may—
(a) provide that the Tribunal may not entertain an appeal under this section insofar as the appellant’s case is inconsistent with the appellant having been convicted of an offence;
(b) prescribe circumstances in which the Tribunal must allow an appeal under this section;
(c) prescribe the powers available to the Tribunal on allowing an appeal under this section.
(1) Where the appropriate authority is a public authority other than the Secretary of State, the Secretary of State may provide to that authority any information relating to a person which appears to the Secretary of State to be relevant to the exercise of the appropriate authority’s functions under section 128 or by virtue of section 129.
(2) The Welsh Ministers may provide to the appropriate authority any information relating to a person which is held by them in connection with their functions under Chapter 1 of Part 10 of the Education Act 2002 (c. 32).
(3) The Chief Inspector may provide to the appropriate authority any information relating to a person which appears to the Chief Inspector to be relevant to the exercise of the appropriate authority’s functions under section 128 or by virtue of section 129.
(4) The Independent Barring Board may provide to the appropriate authority any information relating to a person which is held by the Board in connection with its functions and which appears to it to be relevant to the exercise of the appropriate authority’s functions under section 128 or by virtue of section 129.
(5) The appropriate authority may provide to the Independent Barring Board, the General Teaching Council for England, the General Teaching Council for Wales, the Chief Inspector, the Welsh Ministers or, where the appropriate authority is a public authority other than the Secretary of State, the Secretary of State, any information relating to a person which is held by the appropriate authority in connection with its functions under section 128.
Where the appropriate authority gives a direction under section 128(1), or varies or revokes any such direction, it must notify—
(a) the Secretary of State (unless the appropriate authority is the Secretary of State), and
(b) the Welsh Ministers and (if different) the appropriate authority for the purposes of sections 167A to 167D of the Education Act 2002 (c. 32) (prohibition on participation in management of independent schools in Wales).
(1) Regulations may provide for any provision of this Chapter to apply in relation to an independent post-16 college as it applies in relation to an independent educational institution, subject to such modifications as may be prescribed.
(2) For this purpose, “an independent post-16 college” means an institution in England—
(a) at which relevant education or training is provided for—
(i) five or more persons who are not under compulsory school age, including at least one who is over compulsory school age but is under the age of 18, or
(ii) at least one student to whom subsection (4) applies who is over compulsory school age but is under the age of 18,
(b) which is not—
(i) an independent educational institution,
(ii) a school maintained by a local education authority,
(iii) a special school not so maintained, or
(iv) an institution in receipt of funding from the Learning and Skills Council for England, and
(c) which is outside the further education and higher education sectors.
(3) In subsection (2)(a), “relevant education or training” provided for a person means education or training which—
(a) is provided for the person for at least 16 hours a week, for at least 4 weeks, during an academic year, and
(b) is not education or training provided in connection with facilities for adventure activities (within the meaning of section 1 of the Activity Centres (Young Persons' Safety) Act 1995 (c. 15) (adventure activities: licensing)).
(4) This subsection applies to a person—
(a) for whom a statement is maintained by a local education authority under section 324 of the Education Act 1996 (c. 56) (statement of special educational needs), or
(b) for whom a statement was so maintained immediately before—
(i) the person ceased to be a pupil at his or her last school, or
(ii) the institution started providing relevant education or training for the person.
(5) Regulations may—
(a) provide that a specified institution or an institution of a specified description is not an independent post-16 college;
(b) provide that time spent on a specified activity or on an activity of a specified description is or is not to be treated as time during which education or training is provided for the purposes of this section;
(c) amend subsection (3)(a) so as to substitute a different number of hours or weeks for the number of hours or weeks for the time being mentioned there.
(6) In this section—
“an academic year” means a period of 12 months ending with 31 August;
“specified” means specified in regulations under this section.
(1) Regulations under section 132(1) applying—
(a) section 120, or
(b) any of the provisions mentioned in—
(i) section 124(1), or
(ii) section 125(1),
in relation to an independent post-16 college must also apply any provision conferring a right of appeal against a decision or order made under that provision.
(2) No draft of any regulations under section 132(1) may be laid before Parliament unless the Secretary of State has first consulted—
(a) the Chief Inspector, and
(b) such other persons as the Secretary of State considers appropriate,
about the proposal to make the regulations.
No proceedings for an offence under this Chapter may be instituted except by or with the consent of the Secretary of State.
(1) Where an offence under this Chapter committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
(a) any director, manager, secretary or other similar officer of the body corporate, or
(b) any person who was purporting to act in any such capacity,
that person (as well as the body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with the member’s functions of management as it applies to a director of a body corporate.
(1) Proceedings for an offence alleged to have been committed under this Chapter by an unincorporated body are to be brought in the name of that body (and not in that of any of its members) and, for the purposes of any such proceedings, any rules of court relating to the service of documents have effect as if that body were a corporation.
(2) A fine imposed on an unincorporated body on its conviction of an offence under this Chapter is to be paid out of the funds of that body.
(3) If an unincorporated body is charged with an offence under this Chapter, section 33 of the Criminal Justice Act 1925 (c. 86) and Schedule 3 to the Magistrates' Courts Act 1980 (c. 43) (procedure on charge of an offence against a corporation) apply as they do in relation to a body corporate.
(4) Where an offence under this Chapter committed by an unincorporated body other than a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any officer of the body or any member of its governing body, that person (as well as the body) is guilty of the offence and liable to be proceeded against and punished accordingly.
(5) Where an offence under this Chapter committed by a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, the partner (as well as the partnership) is guilty of the offence and liable to be proceeded against and punished accordingly.
For the purposes of this Chapter, any notice, order or other document required to be given to or served on the proprietor of a registered independent educational institution may be given to or served on the proprietor by delivering it to the registered address of the institution.