Statutory Instruments 1999 No. 362
The Education (Transition to New Framework) (New Schools, Groups and Miscellaneous) Regulations 1999 - continued

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In exercise of the powers conferred on the Secretary of State by sections 138(7) and 144 of, and paragraph 10 of Schedule 2, paragraphs 4, 5, 15(1) and (2) and 16 of Schedule 9, paragraph 1 of Schedule 10, paragraphs 1, 2 and 3 of Schedule 11, and paragraphs 1(5) and 6 of Schedule 12 to, the School Standards and Framework Act 1998[1] and all other enabling powers, the Secretary of State for Education and Employment, as respects England, and the Secretary of State for Wales, as respects Wales, hereby make the following Regulations:



PART I

INTRODUCTION

Citation, commencement and application
     1.  - (1) These Regulations may be cited as the Education (Transition to New Framework) (New Schools, Groups and Miscellaneous) Regulations 1999 and shall come into force on 10th March 1999.

    (2) Subject to regulation 3, Part II of these Regulations applies - 

    (3) Part III of these Regulations applies - 

    (a) in relation to any time before the appointed day, to any grant-maintained school which does not open before the appointed day (and for the purposes of these Regulations a school "opens" on the date when it first admits pupils);

    (b) in relation to any time on or after the appointed day to any maintained school which fell within sub-paragraph (a) immediately before the appointed day.

    (4) Subject to regulation 3, Part IV of these Regulations applies - 

    (a) in relation to any time before the appointed day, to any school grouped under section 89 or 280 of the 1996 Act;

    (b) in relation to any time on or after the appointed day, to any maintained school which fell within sub-paragraph (a) immediately before the appointed day.

    (5) Part V of these Regulations applies - 

    (a) in relation to any time before the appointed day, to county, voluntary, maintained special, grant-maintained or grant-maintained special schools which will become maintained schools;

    (b) in relation to any time on or after the appointed day, to maintained schools which were schools within sub-paragraph (a) immediately before the appointed day.

    (6) Part VI of these Regulations applies to maintained schools which, immediately before the appointed day, were grant-maintained schools or grant-maintained special schools.

    (7) Part VII of these Regulations applies - 

    (a) in relation to any time before the appointed day, to county, voluntary, maintained special, grant-maintained or grant-maintained special schools, which will become maintained schools;

    (b) in relation to any time on or after the appointed day, to maintained schools which were formerly county, voluntary, maintained special, grant-maintained or grant-maintained special schools

except schools falling within paragraph (2), (3) or (4) above.

Interpretation
     2.  - (1) In these Regulations, unless the context otherwise requires - 

    "GM governing body" means the governing body of a new GM school constituted under the 1996 Act before the appointed day;

    "grouped governing body" means the governing body of a grouped school constituted under the 1996 Act before the appointed day;

    "group" means two or more schools conducted by a grouped governing body or a grouped transitionsl governing body, as the case may be;

    "grouped school" means a school referred to in regulation 1(4);

    "instrument of government" means the first instrument of government for a maintained school within the meaning in section 37(1) of the 1998 Act;

    "new GM school" means a school referred to in regulation 1(3);

    "new LEA maintained school" means a school or proposed school referred to in regulation 1(2);

    "representative governor" means a representative governor required by virtue of paragraph 10 of Schedule 9 to the 1998 Act;

    "teacher" means a teacher employed under a contract of employment or a contract for services or otherwise engaged to provide his services as a teacher;

    "temporary governing body" means the temporary governing body of a new LEA maintained school constituted under the 1996 Act before the appointed day;

    "local education authority" in relation to any proposed school or school which will become or is a maintained school means the local education authority which will maintain or maintains the proposed school or school on or after the appointed day.

    (2) A reference in these Regulations (however expressed) to a proposed school or school which is to be or is maintained by a local education authority is a reference to a proposed school or school which is to be or is - 

    (a) so maintained in accordance with section 20(4) or (5) of the 1998 Act; or

    (b) treated by regulation 6 as established as a maintained school.

    (3) A reference in these Regulations to written notice to the clerk to the governing body of the school includes written notice to the clerk to the temporary governing body, the transitional governing body, the GM governing body, the GM transitional governing body, the grouped governing body or the grouped transitional governing body, as the case may be.

    (4) Except where the context otherwise requires, the words or expression used in these Regulations set out in the first column of the table below have the meaning given by, (or as the case may be) are to be interpreted in accordance with, the provision referred to in the second column of that table:

"actual incorporation date" (for the purposes of Part II) regulation 14;
"actual incorporation date" (for the purposes of Part IV) regulation 47;
"appointed day" section 20(7) of the 1998 Act[4];
"education action zone" section 10(1) of the 1998 Act;
"Education Action Forum" section 11(2) of the 1998 Act;
"GM transitional governing body" regulation 30;
"grouped transitional governing body" regulation 49;
"maintained school" section 20(7) of the 1998 Act;
"minor authority" and "area for which there are one or more minor authorities" section 141 of the 1998 Act;
"reconstitution date" regulation 31;
"school's opening date" regulation 1(3)(a);
"transitional governing body" regulation 13.

    (5) Unless the context otherwise requires, any reference in these Regulations to - 

    (a) a numbered Part, regulation or Schedule is a reference to the Part, regulation or Schedule in these Regulations so numbered;

    (b) a numbered paragraph is a reference to the paragraph so numbered in the regulation or Schedule in which the reference appears; and

    (c) a numbered sub-paragraph is a reference to the sub-paragraph so numbered in the paragraph in which the reference appears.

New and grouped schools: interpretation
     3.  - (1) This regulation applies for the purposes of - 

    (2) A school which has a temporary governing body on 31st August 1999 has a temporary governing body immediately before the appointed day even if it has a permanent governing body constituted under an instrument of government with effect from midnight on 31st August 1999.

    (3) In the case of a group comprising two schools grouped under section 89 of the 1996 Act immediately before 31st August 1999, where one of the schools is discontinued with effect from 31st August 1999, the other school will be treated as a school grouped under section 89 of the 1996 Act immediately before the appointed day.

    (3) A school grouped under section 89 or 280 of the 1996 Act on 31st August 1999 is treated as grouped under section 89 or 280 of the 1996 Act immediately before the appointed day even if he has a governing body constituted under an instrument of government with effect from midnight on 31 st August 1999.

Conflicting regulations and instruments of government
     4. These Regulations shall prevail over any conflicting provision in - 

Breach of prescribed time limits
     5. A failure by any person to discharge any duty within a time limit prescribed by these Regulations shall not relieve him of that duty.



PART II

NEW LEA MAINTAINED SCHOOLS

Allocation of new LEA maintained schools to new categories
     6.  - (1) This regulation applies to a proposed school proposals for the establishment of which - 

    (a) have been approved, or have effect under section 504(3) of the 1996 Act as if approved, under section 37, 43 or 340(4) of that Act before the appointed day, or

    (b) have been determined to be implemented by the local education authority, under section 38 of that Act, before the appointed day,

but have not been implemented before the appointed day and for which a temporary governing body have been constituted under section 96 or 97 of, and Schedule 9 to, the 1996 Act.

    (2) In relation to any proposed school to which this regulation applies, such proposals, if published under section 35(1) of the 1996 Act or if having effect under section 504(3) of the 1996 Act as having been made by a local education authority shall, on the appointed day, be treated as - 

    (a) published under section 28(1)(a) of the 1998 Act as proposals to establish a new community school, and

    (b) approved, or determined to be implemented, under paragraph 3 or 4 or, as the case may be, paragraph 8 or 9 of Schedule 6 to the 1998 Act,

and accordingly the proposals shall, on the appointed day, fall to be implemented under paragraph 5 or 10 of Schedule 6 to the 1998 Act and the school when open shall be a community school and treated as established as such under section 28 of that Act.

    (3) In relation to any proposed school to which this regulation applies, such proposals, if published under section 41(1) of the 1996 Act, shall on the appointed day, be treated - 

    (a) where the Secretary of State has made an order under section 48(1)(a) of the 1996 Act as - 

      (i) proposals published under section 28(2)(a) of the 1998 Act to establish a new voluntary controlled school, and

      (ii) approved under paragraph 3 of Schedule 6 to the 1998 Act or, as the case may be, approved or determined to be implemented under paragraph 8 or 9 of that Schedule,

    and accordingly the proposals shall, on the appointed day, fall to be implemented under paragraph 5 or 10 of Schedule 6 to the 1998 Act and the school when open shall be a voluntary controlled school and treated as established as such under section 28 of that Act; and

    (b) where the Secretary of State has made an order under section 48(1)(b) of the 1996 Act, as - 

      (i) proposals published under section 28(2)(a) of the 1998 Act to establish a new voluntary aided school, and

      (ii) approved under paragraph 3 or, as the case may be, approved or determined to be implemented under paragraph 8 or 9 of Schedule 6 to the 1998 Act,

    and accordingly the proposals shall, on the appointed day, fall to be implemented under paragraph 5 or 10 of Schedule 6 to the 1998 Act and the school when open shall be a voluntary aided school and treated as established as such under section 28 of that Act.

    (4) In relation to any proposed school to which this regulation applies, if notice of the proposal to establish the school was served pursuant to section 339(1)(a) of the 1996 Act, or if the proposals have effect under section 504(3) of the 1996 Act as having been made by the local education authority in exercise of their powers to establish a school which is specially organised to make special educational provision for pupils with special educational needs, the proposals shall on the appointed day, be treated as - 

    (a) published under section 31(1)(a) of the 1998 Act to establish a new community special school; and

    (b) approved or determined to be implemented under paragraph 3 or 4 or, as the case may be, paragraph 8 or 9 of Schedule 6 to the 1998 Act,

and accordingly the proposals shall, on the appointed day, fall to be implemented under paragraph 5 or 10 of Schedule 6 to the 1998 Act and the school when open shall be a community special school and treated as established as such under section 31 of that Act.

    (5) Without prejudice to regulation 13(5), where proposals fall to be implemented under paragraph 5 or 10 of Schedule 6 to the 1998 Act by virtue of this regulation, section 44 of the 1998 Act[6] shall not apply.[7]

Making instrument of government
     7.  - (1) A local education authority shall secure that by 1st June 1999, or the school's opening date if later, an instrument of government has been made in accordance with Schedule 12 to the 1998 Act[8] for each new LEA maintained school which will be or is maintained by them.

    (2)

    (a) The instrument of government shall take effect from the date of making for the purpose of constituting the governing body but shall not affect the constitution or name of the governing body conducting the new LEA maintained school pending constitution of the permanent governing body under the instrument of government.

    (b) For all other purposes, the instrument of government shall take effect - 

      (i) if made before the appointed day, from the appointed day or the school's opening date if later;

      (ii) if made on or after the appointed day, from the date of making or the school's opening date if later.

    (3) The temporary governing body, or, where the instrument of government is not made before the appointed day, the transitional governing body, shall exercise their functions under the 1998 Act and under these Regulations in a manner calculated to enable the local education authority to fulfil their duties under this regulation.

Modifications to the 1998 Act to enable the instrument of government to be made before the appointed day
     8.  - (1) Section 141 of, and Schedules 9 and 12 to, the 1998 Act shall apply with the following modifications to enable an instrument of government for a new LEA maintained school to be made before the appointed day.

    (2) In section 141 of, and paragraph 15 of Schedule 9 to, the 1998 Act, references to the area served by a school (however expressed) shall be treated as references to the area which it appears to the local education authority will be served by the new LEA maintained school when it is a maintained school.

    (3) In relation to a new LEA maintained school which will be a community special school not established in a hospital, paragraph 10 of Schedule 9 to the 1998 Act shall apply as if there were substituted for sub-paragraph (6)(a) the following - 

    (4) In paragraph 15(1) of Schedule 9 to the 1998 Act, the reference to "If the governing body of any maintained school so determine", shall be treated as if it were a reference to "If the temporary governing body so determine".

    (5) Paragraph 1 of Schedule 12 to the 1998 Act shall have effect as if - 

    (6) References in paragraph 3 of Schedule 12 to the 1998 Act to - 

Modifications to the 1998 Act to enable the instrument of government to be made on or after the appointed day
     9.  - (1) Section 141 of, and Schedules 9 and 12 to, the 1998 Act shall apply with the following modifications to enable the instrument of government for a new LEA maintained school to be made on or after the appointed day.

    (2) Regulation 8(2) shall apply.

    (3) Regulation 8(3) shall apply, subject to the omission of "school or" before "proposed school".

    (4) In paragraph 15(1) of Schedule 9 to the 1998 Act, the reference to "If the governing body of any maintained school so determine", shall be treated as if it were a reference to "If the transitional governing body so determine".

    (5) Paragraph 1 of Schedule 12 to the 1998 Act shall have effect as if - 

    (6) References in paragraph 3 of Schedule 12 to the 1998 Act to - 

Additional co-opted governors
     10. Schedule 1 makes provision for the number of additional co-opted governors which may be required by the instrument of government by virtue of paragraph 15(1) and (2) of Schedule 9 to the 1998 Act, for the circumstances in which provision for such governors is authorised to be made, and for the categories of person from whom or from amongst whose members nominations for such appointments are to be sought.

Substitutes for ex officio foundation governors
     11. The instrument of government shall name the person or persons who shall be entitled to appoint a foundation governor to act in the place of an ex officio foundation governor in any case where - 

Instrument of government
     12.  - (1) The instrument of government shall be made in the form and in accordance with the directions set out in Schedule 2 which are relevant to the category of maintained school to which the new LEA maintained school will belong or belongs.

    (2) It shall be a sufficient compliance with paragraph (1) if the instrument of government is in a form substantially to the like effect to the relevant form set out in Schedule 2.

    (3) The temporary governing body or the transitional governing body, as the case may be, shall not delegate decisions relating to the contents or preparation of the instrument of government, the appointment of governors required by the instrument of government, or the date when the governing body are constituted under the instrument of government.

The transitional governing body
     13.  - (1) The temporary governing body[9] shall continue in existence until the later of - 

    (a) the appointed day;

    (b) midnight on the actual incorporation date;

    (c) fulfilment of their obligations under these Regulations and completion of any transfers required by regulations 22 to 25;

as constituted immediately before the appointed day, subject to this regulation.

    (2) In this regulation, "the relevant provisions" means:

    (a) the provisions of the 1996 Act relating to the composition of temporary governing bodies, and qualification and disqualification of temporary governors;

    (b) any regulations in force under those provisions immediately before the appointed day; and

    (c) any arrangement under section 96 or 97 of the 1996 Act in force immediately before the appointed day.

    (3) The relevant provisions shall have effect for the purpose of determining the composition of the transitional governing body from time to time and the circumstances in which a person is qualified or disqualified for office as a member of the transitional governing body.

    (4) For the purposes of this Part, the temporary governing body as constituted under this regulation on and after the appointed day shall be referred to as the transitional governing body.

    (5) In any case where the governing body of a new LEA maintained school are not constituted under the instrument of government before the appointed day, from the appointed day until midnight on the actual incorporation date, the transitional governing body shall be treated for the purposes of the Education Acts as if they were a temporary governing body constituted under section 44 of the 1998 Act, except in so far as provision is made in relation to the transitional governing body and the constitution of a permanent governing body under an instrument of government under this Part.

Constitution of the governing body under the instrument of government
     14.  - (1) Any reference in regulations 14(2) to 18 to the temporary governing body shall be construed as a reference to the transitional governing body at any time on or after the appointed day.

    (2) For the purposes of this Part, the incorporation date means - 

    (3) The temporary governing body shall secure that appointments or elections of governors required by the instrument of government for a new LEA maintained school take place before the incorporation date with effect from - 

    (4) The date on which the governing body of a new LEA maintained school are constituted under the instrument of government, and incorporated under section 36(1) of the 1998 Act, is, for the purposes of this Part, referred to as the actual incorporation date.

New governors
     15.  - (1) In the case of the appointment of any governor (other than an additional co-opted governor) referred to in regulation 14(3), the clerk to the temporary governing body shall give written notice to the person who is to make the appointment unless that person has already notified him of an appointment to fill the vacancy[10].

    (2) Where any person makes an appointment referred to in paragraph (1) they shall give written notice of the appointment to the clerk to the temporary governing body, specifying the name and usual place of residence of the person appointed.

    (3) The head teacher will be a governor from midnight on the actual incorporation date unless (before the instrument of government is made) he has given written notice to the clerk to the temporary governing body that he chooses not to be a governor from that date.

    (4) Paragraph (3) is without prejudice to the head teacher's right after the actual incorporation date to give written notice to the clerk to the governing body to the effect that he chooses to be or not to be a governor.

Appointment or election of new governors
     16.  - (1) The following paragraphs apply in relation to the appointment or election of governors referred to in regulation 14(3).

    (2) Any co-opted governor (other than an additional co-opted governor) shall be appointed by members of the temporary governing body, who were not themselves appointed as temporary co-opted governors under the 1996 Act, in accordance with Schedule 3 to these Regulations.

    (3) Any additional co-opted governor shall be appointed by members of the temporary governing body who were not themselves appointed as temporary co-opted governors under the 1996 Act.

    (4) Any parent governor shall be either - 

    (5) Any staff governor shall be elected (after the school's opening date) by persons employed (under a contract of employment or a contract for services) to work at the new LEA maintained school otherwise than as teachers, and shall himself be a person so employed at the time when he is elected.

    (6) Any teacher governor shall be - 

    (7) The quorum for a meeting of the temporary governing body to consider appointment of parent governors or co-opted governors (other than co-opted governors who are foundation governors) and any vote in connection with such appointments shall be any two-thirds (rounded up to a whole number) of the governors entitled to vote on those respective matters.

Joint appointments
     17. If - 

the appointment shall be made by, or in accordance with a direction given by, the Secretary of State.

Information for successors
     18.  - (1) Immediately before the actual incorporation date, the temporary governing body shall prepare, for the purpose of assisting the governing body who will succeed them, a brief report of the action which they have taken in the discharge of their functions relating to the new LEA maintained school.

    (2) All minutes and papers of a temporary governing body relating to the new LEA maintained school, including the report prepared under paragraph (1), shall be made available to their successors.

Elections
     19.  - (1) This regulation applies in relation to the election of governors referred to in regulation 14(3).

    (2) Subject to paragraph (4), in this regulation, "appropriate authority" means - 

    (3) Where a local education authority are the appropriate authority in relation to a school, that authority may delegate to the head teacher of the school any of their functions under this regulation, except their functions under paragraph (5).

    (4) The local education authority shall be the appropriate authority in relation to a school within paragraph (2)(b), if the temporary governing body or the transitional governing body (as the case may be) and the local education authority so agree.

    (5) The appropriate authority shall determine - 

    (6) The appropriate authority shall make all necessary arrangement for, and determine all other matters relating to, an election of parent governors, teacher governors, or staff governors.

    (7) The power conferred by paragraph (6) - 

    (8) Any election of parent governors, teacher governors or staff governors which is contested shall be held by secret ballot.

    (9) The arrangements made under paragraph (6) shall, in the case of any election of a parent governor, provide for every person who is entitled to vote in the election to have an opportunity to do so by post, or, if he prefers, by having his ballot paper returned to the school by a registered pupil at the school.

    (10) Where a vacancy for a parent governor is required to be filled by election, the appropriate authority shall take such steps as are reasonably practicable to secure that every person who is known to them to be a parent of a registered pupil at the school is - 

    (11) Where a local education authority are the appropriate authority, that authority shall exercise their functions under this regulation in a manner calculated to enable the temporary governing body or transitional governing body, as the case may be, to fulfil their respective duties under regulation 14(3).

Tenure of office
     20.  - (1) Any governor required by the instrument of government for a new LEA maintained school other than - 

shall hold office for a term of four years.

    (2) Any co-opted governor required by the instrument of government for a new LEA maintained school (other than an additional co-opted governor) shall hold office for the term of one year.

    (3) For the purposes of this regulation, "substitute governor" means any foundation governor appointed to act in the place of an ex officio foundation governor by virtue of regulation 11, and "the original governor" means the ex officio foundation governor in whose place the substitute governor is appointed to act.

    (4) The substitute governor shall hold office until the earlier of the following - 

    (5) This regulation shall not prevent a governor - 

Qualifications and disqualifications
     21. Schedule 6 sets out the circumstances in which a person is qualified or disqualified for holding or continuing in office, or for being elected, appointed or nominated, as a governor of a new LEA maintained school required by an instrument of government.

Property, rights and liabilities
     22. On the transfer date - 

shall be transferred to and, by virtue of this regulation, vest in the governing body constituted under the instrument of government.

Rights and liabilities under contract of employment
     23. Without prejudice to the generality of regulation 22, where that regulation effects a transfer of rights and liabilities under a contract of employment - 

but no right of the employee to terminate his contract of employment if a substantial change is made to his detriment in his working conditions shall arise by reason only of the change of employer effected by that regulation.

Definitions for regulations 22 and 23
     24. In regulations 22 and 23 "transfer date" in relation to a school means the appointed day or the day after the actual incorporation date, if different.

Registered land and construction of agreements
     25.  - (1) Where a transfer under regulation 22 relates to registered land, it shall be the duty of the transitional governing body - 

as they would be required to execute, deliver or do in the case of a transfer by agreement between the transferor and the transferee.

    (2) Paragraphs 6 to 8 of Schedule 10 to the Education Reform Act 1988[12] (construction of agreements) shall apply in relation to transfers effected by regulation 22 as they apply in relation to transfers to which that Schedule applies.



PART III

NEW GRANT-MAINTAINED SCHOOLS

Making of the instrument of government
     26.  - (1) A local education authority shall secure that, before the appointed day, an instrument of government has been made in accordance with Schedule 12 to the 1998 Act[13] for each new GM school.

    (2) The instrument of government shall take effect - 

    (a) from the date of making for the purpose of reconstituting the governing body, but shall not affect the constitution of the governing body which is conducting the school pending reconstitution under the instrument of government; and

    (b) from the appointed day for all other purposes.

    (3) The GM governing body shall exercise their functions under the 1998 Act and under these Regulations in a manner calculated to enable the local education authority to fulfil their duties under this regulation.

Modifications to the 1998 Act to enable the instrument of government to be made before the appointed day
     27.  - (1) Section 141 of, and Schedules 9 and 12 to, the 1998 Act shall apply with the following modifications to enable an instrument of government for a new GM school to be made before the appointed day.

    (2) In section 141 of, and paragraph 15 of Schedule 9 to, the 1998 Act, references to the area served by a school shall be treated as references to the area which it appears to the local education authority will be served by the new GM school when it opens.

    (3) In paragraph 15(1) of Schedule 9 to the 1998 Act, the reference to "If the governing body of any maintained school so determine", shall be treated as if it were a reference to "If the GM governing body so determine".

    (4) Paragraph 1 of Schedule 12 to the Act shall have effect as if - 

    (5) References in paragraph 3 of Schedule 12 to the 1998 Act to - 


Notes:

 [1] 1998 c.31; for the meaning of "prescribed" and "regulations" see section 142(1).back

[2] 1996 c.56.back

[3] S.I. 1998/2763.back

[4] The day appointed by S.I. 1998/2083 is 1st September 1999.back

[5] S.I. 1989/1503, as amended by S.I. 1991/2845, 1993/3107 and 1996/2050.back

[6] Section 44 of the 1998 Act is not yet in force, except for section 44(5) and (6).back

[7] The proposed school already has a temporary governing body constituted under the 1996 Act which continues as a transitional governing body from the appointed day under this Part. This Part provides for the making of the instrument of government and constitution of the governing body under the 1998 Act.back

[8] As modified by regulation 8 or 9 of these Regulations depending on whether the instrument is made before or on or after the appointed day.back

[9] See the Education (Government of New Schools on Transition to New Framework) Regulations 1998 S.I. 1998 No. 3097.back

[10] In the case of additional co-opted governors, the governors making the appointment are required to seek nominations by virtue of paragraph 15 of Schedule 9 to the 1998 Act.back

[11] 1925 c.21, 1936 c.26, 1966 c.39, 1971 c.54, 1986 c.26, 1988 c.3 and 1997 c.2.back

[12] 1988 c.40.back

[13] As modified by regulation 27.back


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