Further and Higher Education Act 1992 (c. 13)

(The document as of February, 2008)

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92 Index

The expressions listed in the left-hand column below are respectively defined by or (as the case may be) are to be interpreted in accordance with the provisions of this Act listed in the right-hand column in relation to those expressions.

Expression	Relevant provision
appropriate further education funding council	section 1(6)
contract of employment, etc.	section 90(1)
council (in Part I), or further education funding council	sections 1(5) and 91(2)
council (in Part II), or higher education funding council	sections 61(3)(b), 62(5) and (6) and 91(4)
designated institution (in Part I)	section 28(4)
designated institution (in Part II)	section 72(3)
the Education Acts	section 90(1)
functions	section 61(1)
further education	section 14(1) to (4)
further education corporation	section 17(1)
governing body	section 90(1) and (2)
higher education	section 90(1)
higher education corporation	section 90(1)
institution in England or in Wales (in relation to higher education funding councils)	section 62(7)
institutions within or outside the further education sector	section 91(3)
institutions within or outside the higher education sector	sections 61(3)(a) and 91(5)
institutions within the PCFC funding sector	section 90(4)
interest in land	section 90(1)
land	section 90(1)
liability	section 90(1)
local authority	section 90(1)
modification	section 61(1)
operative date	sections 17 and 33(4)
pupil	section 14(6)
regulations	section 61(1)
secondary education	section 14(2) to (4)
school	section 14(5)
transfer of rights or liabilities	section 61(2)
university	section 90(3)

93 Amendments and repeals

(1) Schedule 8 (which makes minor and consequential amendments) shall have effect.

(2) The enactments mentioned in Schedule 9 to this Act are repealed to the extent mentioned in the third column.

94 Short title, commencement, etc

(1) This Act may be cited as the Further and Higher Education Act 1992.

(2) The Education Acts 1944 to 1990, the [1991 c. 49.] School Teachers' Pay and Conditions Act 1991 and this Act may be cited together as the Education Acts 1944 to 1992.

(3) This Act shall come into force on such day as the Secretary of State may by order appoint and different days may be appointed for different provisions and for different purposes.

(4) Subject to the following provisions of this section, this Act extends to England and Wales only.

(5) Sections 63, 64 and 82 of this Act extend also to Scotland.

(6) Section 80 extends also to Scotland and Northern Ireland.

(7) The amendment by this Act of an enactment which extends to Scotland or Northern Ireland extends also to Scotland or, as the case may be, Northern Ireland.

SCHEDULES

Sections 1, 9, 62 and 70.

SCHEDULE 1 The Further and Higher Education Funding Councils

Supplementary powers

1 (1) Subject to sub-paragraph (2) below, the council may do anything which appears to them to be necessary or expedient for the purpose of or in connection with the discharge of their functions, including in particular--

(a) acquiring and disposing of land and other property,

(b) entering into contracts,

(d) accepting gifts of money, land or other property.

(2) The council shall not borrow money.

Chief officer

2 (1) One of the members of the council shall be the chief officer.

(2) The first chief officer shall be appointed as such by the Secretary of State and shall hold and vacate office in accordance with the terms of his appointment.

(3) Each subsequent chief officer shall be appointed by the council with the approval of the Secretary of State on such terms and conditions (including terms with respect to tenure and vacation of office) as the council may with the approval of the Secretary of State determine.

(4) On approval by the Secretary of State of the person to be appointed on any occasion as chief officer of the council and the terms and conditions of his appointment, the Secretary of State shall--

(a) if that person is not already a member of the council, appoint him as a member for the same term as the term of his appointment as chief officer, or

(b) if he is already such a member but his term of appointment as such ends before the term of his appointment as chief officer ends, extend his term of appointment as a member so that it ends at the same time as the term of his appointment as chief officer.

Tenure of members of councils

3 (1) A person shall hold and vacate office as a member or as chairman or chief officer of the council in accordance with the terms of his appointment and shall, on ceasing to be a member, be eligible for re-appointment.

(2) A person may at any time by notice in writing to the Secretary of State resign his office as a member or as chairman of the council.

4 If the Secretary of State is satisfied that a member of the council--

(a) has been absent from meetings of the council for a period longer than six consecutive months without the permission of the council, or

(b) is unable or unfit to discharge the functions of a member,

the Secretary of State may by notice in writing to that member remove him from office and thereupon the office shall become vacant.

Salaries, allowances and pensions

5 (1) The council--

(a) shall pay to their members such salaries or fees, and such travelling, subsistence or other allowances, as the Secretary of State may determine, and

(b) shall, as regards any member in whose case the Secretary of State may so determine, pay or make provision for the payment of such sums by way of pension, allowances and gratuities to or in respect of him as the Secretary of State may determine.

(2) If a person ceases to be a member of the council and it appears to the Secretary of State that there are special circumstances which make it right that he should receive compensation, the Secretary of State may direct the council to make to that person a payment of such amount as the Secretary of State may determine.

(3) The council shall pay to the members of any of their committees who are not members of the council such travelling, subsistence and other allowances as the Secretary of State may determine.

(4) A determination or direction of the Secretary of State under this paragraph requires the approval of the Treasury.

House of Commons disqualification

6 In Part III of Schedule 1 to the [1975 c. 24.] House of Commons Disqualification Act 1975 (disqualifying offices) there are inserted at the appropriate places--

" Any member of the Further Education Funding Council for England in receipt of remuneration.

Any member of the Further Education Funding Council for Wales in receipt of remuneration.

Any member of the Higher Education Funding Council for England in receipt of remuneration.

Any member of the Higher Education Funding Council for Wales in receipt of remuneration. "

Staff

7 (1) The council may appoint such employees as they think fit.

(2) The council shall pay to their employees such remuneration and allowances as the council may determine.

(3) The employees shall be appointed on such other terms and conditions as the council may determine.

(4) A determination under sub-paragraph (2) or (3) above requires the approval of the Secretary of State given with the consent of the Treasury.

(5) Employment with the council shall be included among the kinds of employment to which a scheme under section 1 of the [1972 c. 11.] Superannuation Act 1972 can apply, and accordingly in Schedule 1 to that Act (in which those kinds of employment are listed), at the end of the list of "Other Bodies" there is inserted--

" Further Education Funding Council for England.
Further Education Funding Council for Wales.
Higher Education Funding Council for England.
Higher Education Funding Council for Wales. "

(6) The council shall pay to the Treasury, at such times as the Treasury may direct, such sums as the Treasury may determine in respect of the increase attributable to sub-paragraph (5) above in the sums payable out of money provided by Parliament under that Act.

(7) Where an employee of the council is, by reference to that employment, a participant in a scheme under section 1 of that Act and is also a member of the council, the Treasury may determine that his service as such a member shall be treated for the purposes of the scheme as service as an employee of the council (whether or not any benefits are payable to or in respect of him by virtue of paragraph 5 above).

Committees

8 (1) The council may establish a committee for any purpose.

(2) The number of the members of a committee established under this paragraph, and the terms on which they are to hold and vacate office, shall be fixed by the council.

(3) Such a committee may include persons who are not members of the council.

(4) The council shall keep under review the structure of committees established under this paragraph and the scope of each committee's activities.

Further Education Funding Council for England: regional committees

9 (1) There shall be established for each region of England determined by the Secretary of State a committee of the Further Education Funding Council for England to advise the council on such matters relating to the facilities for the population of the region--

(a) for further education, or

(b) for full-time education (other than further education) suitable to the requirements of persons over compulsory school age who have not attained the age of nineteen years,

as the council may from time to time require.

(2) The number of the members of a committee established under this paragraph shall be determined by the Secretary of State and he shall appoint the members of the committee.

(3) Paragraphs 3 and 4 above apply to members of a committee established under this paragraph as they apply to members of a council.

Delegation of Functions

10 The council may authorise the chairman, the chief officer or any committee established under paragraph 8 above to exercise such of their functions as they may determine.

Proceedings

11 Without prejudice to any other rights the Secretary of State may require to be accorded to him as a condition of any grants made to the council under this Act--

(a) a representative of the Secretary of State shall be entitled to attend and take part in any deliberations (but not in decisions) at meetings of the council or of any committee of the council, and

(b) the council shall provide the Secretary of State with such copies of any documents distributed to members of the council or of any such committee as he may require.

12 The validity of any proceedings of the council or of any committee of the council shall not be affected by a vacancy among the members or by any defect in the appointment of a member.

13 Subject to the preceding provisions of this Schedule, the council may regulate their own procedure and that of any of their committees.

Application of seal and proof of instruments

14 The application of the seal of the council shall be authenticated by the signature--

(a) of the chairman or of some other person authorised either generally or specially by the council to act for that purpose, and

(b) of one other member.

15 Every document purporting to be an instrument made or issued by or on behalf of the council and to be duly executed under the seal of the council, or to be signed or executed by a person authorised by the council to act in that behalf, shall be received in evidence and be treated, without further proof, as being so made or issued unless the contrary is shown.

Accounts

16 (1) It shall be the duty of the council--

(a) to keep proper accounts and proper records in relation to the accounts,

(b) to prepare in respect of each financial year of the council a statement of accounts, and

(c) to send copies of the statement to the Secretary of State and to the Comptroller and Auditor General before the end of the month of August next following the financial year to which the statement relates.

(2) The statement of accounts shall comply with any directions given by the Secretary of State with the approval of the Treasury as to--

(a) the information to be contained in it,

(b) the manner in which the information contained in it is to be presented, or

and shall contain such additional information as the Secretary of State may with the approval of the Treasury require to be provided for the information of Parliament.

(3) The Comptroller and Auditor General shall examine, certify and report on each statement received by him in pursuance of this paragraph and shall lay copies of each statement and of his report before each House of Parliament.

(4) In this paragraph "financial year" means the period beginning with the date on which the council is established and ending with the second 31st March following that date, and each successive period of twelve months.

Status of council

17 The council shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the property of the council shall not be regarded as property of, or property held on behalf of, the Crown.

Sections 3 and 6.

SCHEDULE 2 Courses of Further Education

The descriptions of courses of further education referred to in section 3(1) of this Act are the following--

(a) a course which prepares students to obtain a vocational qualification which is, or falls within a class, for the time being approved for the purposes of this sub-paragraph by the Secretary of State,

(b) a course which prepares students to qualify for--

(i) the General Certificate of Secondary Education, or

(ii) the General Certificate of Education at Advanced Level or Advanced Supplementary Level (including Special Papers),

(c) a course for the time being approved for the purposes of this sub-paragraph by the Secretary of State which prepares students for entry to a course of higher education,

(d) a course which prepares students for entry to another course falling within paragraphs (a) to (c) above,

(e) a course for basic literacy in English,

(f) a course to improve the knowledge of English of those for whom English is not the language spoken at home,

(g) a course to teach the basic principles of mathematics,

(h) in relation to Wales, a course for proficiency or literacy in Welsh,

(j) a course to teach independent living and communication skills to persons having learning difficulties which prepares them for entry to another course falling within paragraphs (d) to (h) above.

Sections 15 and 16.

SCHEDULE 3 Calculation of Enrolment Numbers

Enrolment numbers

1 (1) The enrolment number for any institution at any time is the aggregate of--

(a) the number of full-time students enrolled at that institution at that time to follow courses of further or higher education, and

(b) the numbers arrived at under sub-paragraph (3) below for each mode of attendance at such courses specified in the first three entries in column 1 of the table in paragraph 2 below.

(2) The total enrolment number for any institution at any time is the aggregate of--

(a) the number of full-time students enrolled at that institution at that time to follow courses of further or higher education, and

(b) the numbers arrived at under sub-paragraph (3) below for each mode of attendance at such courses specified in column 1 of the table in paragraph 2 below.

(3) The number for any mode of attendance at a course is that arrived at by multiplying by the appropriate multiplier the number of students enrolled at the institution at the time in question to follow the course by that mode of attendance.

(4) In sub-paragraph (3) above "the appropriate multiplier" means, in relation to a mode of attendance, the figure given in relation to that mode of attendance in column 2 of the table.

Table for calculating enrolment numbers for sandwich courses, etc.

2 The following table applies for the purpose of determining the numbers mentioned in paragraph 1(1)(b) and (2)(b) above--

(1) Mode of attendance	(2) Multiplier
1. Sandwich course	0.7
2. Block release	1.0
3. Day release	0.3
4. Part-time (other than day release but including some day-time study)	0.2
5. Part-time (evening only study)	0.1
6. Open or distance learning	0.075

Interpretation of paragraphs 1 and 2

3 (1) For the purposes of paragraph 1(1)(a) and (2)(a) above a student is a full-time student in relation to a course of any description if all his studies for the purposes of that course are full-time studies.

(2) For the purposes of paragraph 2 above--

(a) a student's mode of attendance at a course of any description is by way of a sandwich course if--

(i) in following that course, he engages in periods of full-time study for the purposes of the course alternating with periods of full-time work experience which form part of that course, and

(ii) his average period of full-time study for the purposes of the course for each academic year included in the course is nineteen weeks or more,

(b) a student's mode of attendance at a course of any description is by way of block release if--

(i) the course involves a period of full-time study interrupted by a period of industrial training or employment (whether or not it also includes study on one or two days a week during any other period), and

(ii) his average period of full-time study for the purposes of the course for each academic year included in the course is less than nineteen weeks,

(i) he is in employment, and

(ii) he is released by his employer to follow that course during any part of the working week, and

(d) a student's mode of attendance at a course of any description is by way of open or distance learning if--

(i) he is provided for the purposes of the course with learning material for private study, and

(ii) his written work for the purposes of the course is subject to a marking and comment service provided for students following the course by private study (whether or not any additional advisory or teaching services are also provided for such students as part of the course).

Amendment of paragraphs 1 to 3

4 The Secretary of State may by order amend paragraphs 1 to 3 above except so far as they apply for calculating an institution's enrolment number, or total enrolment number, on 1st November 1990.

Exclusion of non-EEC students

5 For the purpose of calculating under those paragraphs any enrolment number at any time of any institution, any student enrolled at the institution whose ordinary place of residence then was or is in a country or territory other than a member State shall be disregarded.

Section 20.

SCHEDULE 4 Instruments and articles of government for further education corporations

1 References in this Schedule to an instrument are to an instrument of government or articles of government.

2 (1) An instrument shall provide for the number of members of the further education corporation, the eligibility of persons for membership and the appointment of members.

(2) An instrument may provide for the nomination of any person for membership by another, including by a body nominated by the Secretary of State.

3 An instrument shall provide for one or more officers to be chosen from among the members.

4 An instrument may provide for the corporation to establish committees and permit such committees to include persons who are not members of the corporation.

5 An instrument may provide for the delegation of functions of the corporation to officers or committees.

6 An instrument may provide for the corporation to pay allowances to its members.

7 An instrument shall provide for the authentication of the application of the seal of the corporation.

8 An instrument shall require the corporation to keep proper accounts and proper records in relation to the accounts and to prepare in respect of each financial year of the corporation a statement of accounts.

9 An instrument shall provide for the appointment of a principal of the institution and determine which functions exercisable in relation to the institution are to be exercised by the corporation, its officers or committees and which by the principal of the institution.

10 An instrument shall make provision about the procedures of the corporation and of the institution.

11 An instrument shall provide--

(a) for the appointment, promotion, suspension and dismissal of staff, and

(b) for the admission, suspension and expulsion of students.

12 An instrument may make provision authorising the corporation to make rules or bye-laws for the government and conduct of the institution, including in particular rules or bye-laws about the conduct of students, staff or both.

Section 36.

SCHEDULE 5 Identification and apportionment, etc., of property

Division and apportionment of property etc.

1 (1) Any property, rights and liabilities of a transferor authority held or used, or subsisting--

(a) for the purposes of more than one relevant institution, or

(b) partly for the purposes of one or more relevant institutions and partly for other purposes of the transferor authority,

shall, where the nature of the property, right or liability permits, be divided or apportioned between the transferees, or (as the case may be) between the transferor authority and the transferee or transferees, in such proportions as may be appropriate.

(2) Where any estate or interest in land falls to be so divided--

(a) any rent payable under a lease in respect of that estate or interest, and

(b) any rent charged on that estate or interest,

shall be correspondingly divided or apportioned so that each part is payable in respect of, or charged on, only one part of the estate or interest and the other part or parts are payable in respect of, or charged on, only the other part or parts of the estate or interest.

(3) Any property, right or liability held or used, or subsisting, as mentioned in sub-paragraph (1) above the nature of which does not permit its division or apportionment as so mentioned shall be transferred to the transferee (or to one or other of the transferees) or retained by the transferor authority according to--

(a) in the case of an estate or interest in land, whether on the operative date the transferor authority or the transferee (or one or other of the transferees) appears to be in greater need of the security afforded by that estate or interest or, where none of them appears to be in greater need of that security, which of them appears on that date to be likely to make use of the land to the greater extent, or

(b) in the case of any other property or any right or liability, which of them appears on the operative date to be likely to make use of the property or (as the case may be) to be affected by the right or liability to the greater extent,

subject (in either case) to such arrangements for the protection of the other person or persons concerned as may be agreed between the transferor authority and the Education Assets Board or determined by the Board under paragraph 3 below.

(4) In this paragraph--

(a) references to a relevant institution are references to--

(i) any institution a body corporate is established under this Act to conduct, and

(ii) any institution in relation to which section 32 of this Act has effect, and

(b) references to a transferor authority are references to a local authority who are the transferor for the purposes of any transfer to which this Schedule applies.

Identification of property, rights and liabilities

2 (1) It shall be the duty of the transferor and the Education Assets Board, whether before or after the operative date, so far as practicable to arrive at such written agreements, and to execute such other instruments, as are necessary or expedient to identify or define the property, rights and liabilities transferred to the transferee or retained by the transferor or for making any such arrangements as are mentioned in paragraph 1(3) above and as will--

(a) afford to the transferor and the transferee as against one another such rights and safeguards as they may require for the proper discharge of their respective functions, and

(b) make as from such date, not being earlier than the operative date, as may be specified in the agreement or instrument such clarifications and modifications of the effect of the provision of this Act under which the transfer is required on the property, rights and liabilities of the transferor as will best serve the proper discharge of the respective functions of the transferor and the transferee.

(2) Any such agreement or instrument shall provide so far as it is expedient--

(a) for the granting of leases and for the creation of other liabilities and rights over land whether amounting in law to interests in land or not, and whether involving the surrender of any existing interest or the creation of a new interest or not,

(b) for the granting of indemnities in connection with the severance of leases and other matters,

3 (1) The Education Assets Board may, in the case of any matter on which agreement is required to be reached under paragraph 2(1) above--

(a) if it appears to them that it is unlikely that such an agreement will be reached, or

(b) if such an agreement has not been reached within such period as may be prescribed by regulations,

give a direction determining that matter, and may include in the direction any provision which might have been included in an agreement under paragraph 2(1).

(2) A direction under sub-paragraph (1) above may be given before or after the operative date.

(3) Any property, rights or liabilities required by a direction under this paragraph to be transferred to the transferee shall be regarded as having been transferred to, and by virtue of this Act vested in, the transferee accordingly.

(4) The Board shall, before giving a direction under this paragraph, give the transferor and the transferee such opportunity as may be prescribed by regulations to make written representations.

4 (1) The transferor or transferee, if dissatisfied with a determination under paragraph 3 above, may appeal to the Secretary of State.

(2) An appeal under this paragraph shall be made in accordance with regulations.

(3) The Secretary of State shall, before determining an appeal under this paragraph, give the appellant and the respondent such opportunity as may be prescribed by regulations to make written representations.

(4) On an appeal under this paragraph the Secretary of State may--

(a) allow or dismiss the appeal or vary the determination of the Board, and

(b) give a direction accordingly under paragraph 3 above.

5 (1) Regulations may prescribe the procedure to be followed in making any determination under paragraphs 3 and 4 above.

(2) The regulations may in particular--

(a) provide for a time limit within which written representations and any supporting documents must be submitted,

(b) empower the determining authority to proceed to a determination taking into account only such written representations and supporting documents as were submitted within the time limit, and

(c) empower the determining authority to proceed to a determination, after giving the transferor and the transferee or, as the case may be, the appellant and the respondent written notice of their intention to do so, notwithstanding that no written representations were made within the time limit, if it appears to the determining authority that they have sufficient material before them to enable them to make a determination.

(3) In sub-paragraph (2) above the "determining authority" means the Board or the Secretary of State, as the case may be.

Documents of title

6 (1) Where a transfer to which this Schedule applies relates to registered land, it shall be the duty of the transferor to execute any such instrument under the Land Registration Acts 1925 to 1986, to deliver any such certificate under those Acts and to do such other things under those Acts as he would be required to execute, deliver or do in the case of a transfer by agreement between the transferor and the transferee.

(2) Where on any transfer to which this Schedule applies the transferor is entitled to retain possession of any documents relating in part to the title to any land or other property transferred to the transferee, the transferor shall be treated as having given to the transferee an acknowledgment in writing of the right of the transferee to production of that document and to delivery of copies of it; and section 64 of the [1925 c. 20.] Law of Property Act 1925 shall have effect accordingly, and on the basis that the acknowledgment did not contain any such expression of contrary intention as is mentioned in that section.

Third parties affected by vesting provisions

7 (1) Without prejudice to the generality of paragraphs 2 to 4 of Schedule 7 to this Act, any transaction effected between a transferor and a transferee in pursuance of paragraph 2(1) or of a direction under paragraph 3 above shall be binding on all other persons, and notwithstanding that it would, apart from this sub-paragraph, have required the consent or concurrence of any person other than the transferor and the transferee.

(2) If as a result of any such transaction any person's rights or liabilities become enforceable as to part by or against the transferor and as to part by or against the transferee, the Education Assets Board shall give that person written notification of that fact.

(3) If in consequence of a transfer to which this Schedule applies or of anything done in pursuance of the provisions of this Schedule--

(a) the rights or liabilities of any person other than the transferor or the transferee which were enforceable against or by the transferor become enforceable as to part against or by the transferor and as to part against or by the transferee, and

(b) the value of any property or interest of that person is thereby diminished,

such compensation as may be just shall be paid to that person by the transferor, the transferee or both.

(4) Any dispute as to whether and if so how much compensation is payable under sub-paragraph (3) above, or as to the person to whom it shall be paid, shall be referred to and determined by an arbitrator appointed by the Lord Chancellor.

(5) Where the transferor or the transferee under a transfer to which this Schedule applies purports by any conveyance or transfer to transfer to some person other than the transferor or the transferee for consideration any land or other property which before the operative date belonged to the transferor, or which is an interest in property which before that date belonged to the transferor, the conveyance or transfer shall be as effective as if both the transferor and the transferee had been parties to it and had thereby conveyed or transferred all their interest in the property conveyed or transferred.

(6) A court shall have the power set out in sub-paragraph (7) below if at any stage in proceedings before it to which the transferor or transferee under a transfer to which this Schedule applies and a person other than the transferor or the transferee are parties it appears to it that the issues in the proceedings--

(a) depend on the identification or definition of any of the property, rights or liabilities transferred which the transferor and the Education Assets Board have not yet effected, or

(b) raise a question of construction on the relevant provisions of this Act which would not arise if the transferor and the transferee constituted a single person.

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