Further and Higher Education Act 1992 (c. 13)

(The document as of February, 2008)

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(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.

(7) In any such case the court may, if it thinks fit on the application of a party to the proceedings other than the transferor or the transferee, hear and determine the proceedings on the footing that such one of the transferor and the transferee as is a party to the proceedings represents and is answerable for the other of them, and that the transferor and the transferee constitute a single person.

(8) Any judgment or order given by a court in proceedings determined on that footing shall bind both the transferor and the transferee accordingly.

(9) It shall be the duty of the transferor and of the Education Assets Board to keep one another informed of any case where the transferor or the transferee under a transfer to which this Schedule applies may be prejudiced by sub-paragraph (5) above or any judgment or order given by virtue of sub-paragraph (8) above.

(10) If either the transferor or the transferee claims that he has been so prejudiced and that the other of them ought to indemnify or make a payment to him on that account and has unreasonably failed to meet that claim, he may refer the matter to the Secretary of State for determination by the Secretary of State.

Delivery of documents to transferee

8 When it appears to the Education Assets Board, in the case of any transfer, that any agreements and instruments required to be made or executed in pursuance of paragraph 2(1) above or in pursuance of a direction under paragraph 3 above have been made or executed, the Board shall deliver those agreements and instruments (if any) to the transferee.

Section 71.

SCHEDULE 6 New Schedule 7A to the Education Reform Act 1988

" Schedule 7A Instruments of government made by Privy Council

Name of corporation

1 The instrument shall empower the corporation to change their name with the consent of the Privy Council.

Membership

2 The instrument shall make provision for the membership of the corporation which meets all the requirements of paragraphs 3 to 5 below.

3 (1) The corporation shall consist of--

(a) not less than twelve and not more than twenty-four members appointed in accordance with the following provisions; and

(b) the person who is for the time being the principal of the institution, unless he chooses not to be a member.

(2) Of the appointed members--

(a) up to thirteen (referred to below in this Schedule as the "independent members") shall be persons appearing to the appointing authority to have experience of, and to have shown capacity in, industrial, commercial or employment matters or the practice of any profession;

(b) up to two may be teachers at the institution nominated by the academic board and up to two may be students at the institution nominated by the students at the institution; and

(c) at least one and not more than nine (referred to below in this Schedule as the "co-opted members") shall be persons nominated by the members of the corporation who are not co-opted members.

(3) The co-opted member required by sub-paragraph (2)(c) above shall be a person who has experience in the provision of education.

(4) A person (other than a person appointed in pursuance of sub-paragraph (2)(b) above) who is--

(a) employed at the institution (whether or not as a teacher);

(b) a full-time student at the institution; or

is not eligible for appointment as a member of the corporation otherwise than as a co-opted member.

(5) For the purposes of this paragraph, a person who is not for the time being enrolled as a student at the institution shall be treated as such a student during any period when he has been granted leave of absence from the institution for the purposes of study or travel or for carrying out the duties of any office held by him in the student union at the institution.

(6) It shall be for the appointing authority to determine any question as to whether any person is qualified in accordance with the preceding provisions of this paragraph for appointment as a member of the corporation of any description or category.

Numbers

4 (1) The corporation shall make a determination with respect to their membership numbers.

(2) Such a determination shall fix the number of members of each variable category of which the corporation are to consist, subject to the limits applicable in relation to that category in accordance with paragraph 3 above.

(3) In making such a determination, the corporation shall secure that at least half of all the members of the corporation, when constituted in accordance with the determination, will be independent members.

(4) Such a determination shall not have effect so as to terminate the appointment of any person who is a member of the corporation at the time when it takes effect.

(5) Such a determination may be varied by a subsequent determination.

Appointments

5 (1) Subject to section 124C of this Act, no appointment of members of the corporation may be made before the first determination of the corporation in accordance with paragraph 4 above takes effect.

(2) Subject to that section, the corporation are the appointing authority in relation to the appointment of any member of the corporation other than an independent member.

(3) Where an appointment of an additional independent member of the corporation falls to be made in consequence of a determination in accordance with paragraph 4 above, the appointing authority in relation to the appointment--

(a) shall be the corporation if the appointment is made within the period of three months beginning with the date of the determination; or

(b) if the appointment is not made within that period, shall be the current independent members of the corporation.

(4) Where a vacancy in the office of an independent member of the corporation arises on any existing independent member ceasing to hold office on the expiry of his term of office--

(a) his successor shall not be appointed more than six months before the expiry of that term; and

(b) the appointing authority in relation to the appointment of his successor--

(i) shall be the corporation if the appointment is made not less than three months before the expiry of that term; or

(ii) if the appointment is not so made, shall be the current independent members of the corporation.

(5) Where a vacancy in the office of an independent member of the corporation arises on the death of any such member or on any such member ceasing to hold office in accordance with the instrument, the appointing authority in relation to the appointment of his successor--

(a) shall be the corporation if the appointment is made within the period of three months beginning with the date of death or the the date on which the office becomes vacant (as the case may be); or

(b) if the appointment is not made within that period, shall be the current independent members of the corporation.

(6) No appointment of an independent member of the corporation by the corporation in accordance with sub-paragraph (3)(a), (4)(b)(i) or (5)(a) above shall be made unless the appointment has been approved by the current independent members of the corporation.

(7) If the number of independent members of the corporation falls below the number needed in accordance with its articles of government for a quorum, the Secretary of State is the appointing authority in relation to the appointment of such number of independent members as is required for a quorum.

Tenure of office etc.

6 Subject to any other requirements of this Act, the instrument may provide for the eligibility of persons for membership of the corporation and shall provide for their period of office and the circumstances in which they are to cease to hold office.

Officers

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

Committees

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

Allowances

9 The instrument may provide for the corporation to pay allowances to its members.

Seal of corporation

10 The instrument shall provide for the authentication of the application of the seal of the corporation.

Interpretation

11 References in this Schedule, in relation to a corporation, to a variable category of members are references to any category of members in relation to which the number applicable in accordance with paragraph 3 above is subject to variation. "

Section 87.

SCHEDULE 7 Transfers: supplementary provisions

Proof of title by certificate

1 The Education Assets Board may issue a certificate stating that any property specified in the certificate, or any such interest in or right over any such property as may be so specified, or any right or liability so specified, was or was not transferred by virtue of this Act to any body corporate or persons so specified; and any such certificate shall be conclusive evidence for all purposes of that fact.

Construction of agreements

2 (1) Where any rights or liabilities transferred by virtue of this Act are rights or liabilities under an agreement to which the transferor was a party immediately before the date on which the transfer took effect (referred to in this Schedule as the "transfer date"), the agreement shall, unless the context otherwise requires, have effect on and after the transfer date as if--

(a) the transferee had been a party to the agreement,

(b) for any reference (whether express or implied and, if express, however worded) to the transferor there were substituted, as respects anything falling to be done on or after the transfer date, a reference to the transferee,

(c) any reference (whether express or implied and, if express, however worded) to a specified officer of the transferor or a person employed by the transferor in a specified capacity were, as respects anything falling to be done on or after the transfer date, a reference to such person as the transferee may appoint or, in default of appointment, to an officer or employee of the transferee who corresponds as closely as possible to the person referred to in the agreement,

(d) where the agreement refers to property, rights or liabilities which fall to be apportioned or divided between the transferor and the transferee, the agreement constituted two separate agreements separately enforceable by and against the transferor and the transferee as regards the part of the property, rights or liabilities retained by the transferor or (as the case may be) the part vesting in the transferee, and not as regards the other part,

and paragraph (d) above shall apply in particular to the covenants, stipulations and conditions of any lease by or to the transferor.

(2) This paragraph applies to any agreement whether in writing or not and whether or not of such a nature that rights and liabilities under it could be assigned by the transferor.

3 (1) Without prejudice to the generality of paragraph 2 above, the transferee under a transfer made by virtue of this Act and any other person shall, as from the transfer date, have the same rights, powers and remedies (and in particular the same rights and powers as to the taking or resisting of legal proceedings or the making or resisting of applications to any authority) for ascertaining, perfecting or enforcing any right or liability transferred to and vested in the transferee by virtue of this Act as he would have had if that right or liability had at all times been a right or liability of the transferee.

(2) Any legal proceedings or applications to any authority pending on the transfer date by or against the transferor, in so far as they relate to any property, right or liability transferred to the transferee by virtue of this Act, or to any agreement relating to any such property, right or liability, shall be continued by or against the transferee to the exclusion of the transferor.

4 The provisions of paragraphs 2 and 3 above shall have effect for the interpretation of agreements subject to the context, and shall not apply where the context otherwise requires.

Section 93

SCHEDULE 8 Minor and Consequential Amendments

Part I Amendments of the Education Acts

The Education Act 1944 (c. 31)

1 The Education Act 1944 is amended as follows.

2 The duty imposed on local education authorities by section 7 (stages and purposes of statutory system of education) does not extend to matters in respect of which the higher education funding councils or the further education funding councils have a duty.

3 Section 8(3) is omitted.

4 In section 9(1) for "duties" there is substituted "functions".

5 In section 55 (provision of transport and other facilities)--

(a) for subsection (1) there is substituted--

" (1) A local education authority shall make such arrangements for the provision of transport and otherwise as they consider necessary or as the Secretary of State may direct for the purpose of facilitating the attendance of persons receiving education--

(a) at schools,

(b) at any institution maintained or assisted by them which provides higher education or further education (or both),

(d) at any institution outside the further education sector and higher education sector, where a further education funding council has secured provision for those persons at the institution under section 4(3) or (5) of the [1992 c. 00.] Further and Higher Education Act 1992;

and any transport provided in pursuance of such arrangements shall be provided free of charge. "

(b) in subsection (2) for "pupil in attendance" there is substituted "person receiving education",

(d) for subsection (4) there is substituted--

" (4) Arrangements made by a local education authority under subsection (1) above shall make provision--

(a) for pupils at grant-maintained schools which is no less favourable than the provision made in pursuance of the arrangements for pupils at schools maintained by a local education authority,

(b) for persons receiving full-time education at any institution within the further education sector which is no less favourable than the provision made in pursuance of the arrangements for pupils of the same age at schools maintained by a local education authority, and

(c) for persons receiving full-time education at institutions mentioned in subsection (1)(d) above which is no less favourable than the provision made in pursuance of the arrangements--

(i) for persons of the same age with learning difficulties (within the meaning of section 41(9) of this Act) at schools maintained by a local education authority, or

(ii) where there are no such arrangements, for such persons for whom the authority secures the provision of education at any other institution. " , and

(e) after subsection (4) there is added--

" (5) Regulations under section 8(5) of the [1980 c. 20.] Education Act 1980 may require publication, within the meaning of that section, by every local education authority of such information as may be required by the regulations with respect to the authority's policy and arrangements for provision under this section for persons attending institutions mentioned in subsection (1)(c) or (d) above who are over compulsory school age and who have not attained the age of nineteen years. "

6 At the end of section 56 (power to provide primary and secondary education otherwise than at school) (which becomes subsection (1)) there is added--

" (2) In this section "secondary education" includes any full-time education suitable to the requirements of persons over compulsory school age who have not attained the age of nineteen years and, for the purposes of the Education Acts 1944 to 1992--

(a) any such education, or education similar in other respects but less than full-time, provided in pursuance of this section is to be treated as secondary education; and

(b) any person for whom education is provided in pursuance of this section is to be treated as a pupil. "

7 In section 62(1) (duties of Secretary of State and of local education authorities as to the training of teachers), after "grant-maintained schools" there is inserted "institutions within the further education sector".

8 Section 67(4A) (determination of disputes and questions - part-time senior education and post-school age education) is omitted.

9 Section 68 (power of Secretary of State to prevent unreasonable exercise of functions) shall apply in relation to a further education funding council or the governing body of an institution within the further education sector as it applies in relation to a local education authority or, as the case may be, the governors of a county or voluntary school.

10 Section 77 (inspection of educational establishments) shall cease to have effect in relation to any institution other than a school.

11 In section 81 (power of local education authorities to give assistance by means of scholarships and otherwise)--

(a) for "pupils" (where it first appears) there is substituted "persons", and

(b) in paragraph (c)--

(i) for "pupils" (where it first appears) there is substituted "persons", and

(ii) the words from "including" to the end are omitted.

12 In section 85(2) and (3) (power of local education authorities to accept gifts for educational purposes), the words "for providing primary or secondary education" are omitted.

13 (1) Section 114 (interpretation) is amended as follows.

(2) In subsection (1)--

(a) in the definition of "further education", after "section forty-one of this Act" there is added "as read with section 14 of the Further and Higher Education Act 1992",

(b) the definitions of "part-time senior education" and "post-school age education" are omitted,

""Primary school" means, subject to regulations under section 1 of the [1964 c. 82.] Education Act 1964, a school for providing primary education, whether or not it also provides further education",

(d) for the definition of "pupil" there is substituted--

""Pupil" has the meaning assigned to it by section 14(6) of the Further and Higher Education Act 1992",

(e) for the definition of "school" there is substituted--

""School" has the meaning assigned to it by section 14(5) of the Further and Higher Education Act 1992",

(f) in the definition of "secondary education", for "eight of this Act" there is substituted "14 of the Further and Higher Education Act 1992", and

(g) for the definition of "secondary school" there is substituted--

""Secondary school" means, subject to regulations under section 1 of the Education Act 1964, a school for providing secondary education, whether or not it also provides primary or further education".

(3) Subsections (1A), (1B) and (1C) are omitted.

(4) In subsection (2A)--

(a) for "PCFC funding sector" there is substituted "higher education sector other than a university", and

(b) after "any institution" there is inserted "within the further education sector or".

The Education Act 1946 (c. 50)

14 In the First Schedule to the Education Act 1946 (maintenance of voluntary schools) after paragraph 8 there is added--

" 9 Paragraph 8 of this Schedule shall not apply in the case of an institution which is or has at any time been within the further education sector. "

The Education (Miscellaneous Provisions) Act 1948 (c. 40)

15 Section 3(3) of the Education (Miscellaneous Provisions) Act 1948 (allocation between primary and secondary education of children between ten and a half and twelve years old - definition of secondary education) is omitted.

16 In section 5(3) of that Act (amendment and consolidation of enactments as to provision of clothing) after paragraph (a) there is inserted--

"(aa) for persons who have not attained the age of nineteen years and who are receiving education at an institution within the further education sector".

The Education Act 1980 (c. 20)

17 After section 22(3A) of the Education Act 1980 (school meals - England and Wales) there is inserted--

" (3B) Subsection (1) above applies in relation to persons, other than pupils, who receive education at a school maintained by a local education authority or a grant-maintained school, and in relation to the authority maintaining the school or the governing body of the grant-maintained school, as it applies in relation to pupils at a school maintained by a local education authority and the authority maintaining the school; and an authority or governing body must charge for anything so provided and must charge every such person the same price for the same quantity of the same item. "

The Education Act 1981 (c. 60)

18 In section 14(2) of the Education Act 1981 (discontinuance of maintained special schools - notice) after paragraph (a) there is inserted--

"(aa) the appropriate further education funding council".

The Education (Fees and Awards) Act 1983 (c. 40)

19 In section 1(3) of the Education (Fees and Awards) Act 1983 (fees at universities and further education establishments)--

(a) for paragraph (b) there is substituted--

"(b) any institution within the higher education sector", and

(b) after paragraph (c) there is inserted--

"(ca) any institution within the further education sector".

The Further Education Act 1985 (c. 47)

20 At the end of section 1 of the Further Education Act 1985 (supply of goods and services through further education establishments) there is added--

" (4) In this Act "institution" does not include a school. "

21 (1) In section 2(2) of that Act (power of LEAs to lend money for those purposes) for paragraphs (a) to (d) there is substituted--

" (a) to a higher education corporation or further education corporation (within the meaning of the Further and Higher Education Act 1992);

(b) in the case of the following institutions--

(i) an institution within the higher education sector which is not conducted by a higher education corporation;

(ii) an institution within the further education sector which is not conducted by a further education corporation; or

(iii) an institution which provides higher education or further education and is assisted by a local education authority,

to the governing body of the institution or, if it is conducted by a company, to the company; or

(c) to a body corporate in which such a corporation or company as is mentioned in paragraph (a) or (b) above has a holding such as is mentioned in subsection (8) below " .

(2) In subsection (8) of that section for "(2)(d)" there is substituted "(2)(c)".

The Education (No. 2) Act 1986 (c. 61)

22 In section 43 of the Education (No. 2) Act 1986 (freedom of speech in universities, etc.)--

(a) in subsection (5)--

(i) for paragraph (aa) there is substituted-

"(aa) any institution other than a university within the higher education sector",
(ii)
after paragraph (b) there is inserted--
"(ba) any institution within the further education sector", and
(iii)
paragraph (c) is omitted, and

(b) in subsection (7) paragraph (b) and "or authorities maintaining or (as the case may be) assisting the establishment" are omitted.

23 In section 49(3) of that Act (appraisal of performance of teachers)--

(a) paragraphs (d) and (da) are omitted,

(b) after paragraph (da) there is inserted-

"(db) at any institution within the further education sector", and

24 In section 51 of that Act (recoupment)--

(a) in subsection (2)(b) the words from "made" to the end are omitted,

(b) subsections (5) and (6) are omitted,

(d) after subsection (12) there is added--

" (13) References in this section to a pupil, in relation to any school or other institution, include any person who receives education at the school or institution. "

25 In section 52(1)(a) and (3) of that Act (recoupment : cross-border provisions) for "pupil", in each place, there is substituted "person".

26 In section 58 of that Act (travelling and subsistence allowances for governors of schools and establishments of further education)--

(a) subsections (3), (4) and (5)(a) are omitted, and

(b) in subsection (5)(ab) "and are not designated establishments of higher or further education" is omitted.

The Education Reform Act 1988 (c. 40)

27 The Education Reform Act 1988 is amended as follows.

28 In section 24(1)(b) (extension of certain provisions)--

(a) for the words from "a reference" to second "and" there is substituted "except in relation to a local education authority, a reference to",

(b) in sub-paragraph (ii) after "a university" there is inserted "or an institution within the higher education sector", and

" and

(iii) any institution within the further education sector " .

29 In section 100 (provision of benefits and services for pupils by local education authorities), after subsection (1) there is inserted--

" (1A) Where--

(a) a local education authority are under a duty, or have power, to provide any benefits or services for persons, other than pupils, receiving education at a school; and

(b) the duty is to be performed, or the power may be exercised, both in relation to such persons at schools maintained by a local education authority and in relation to such persons at grant-maintained schools;

the authority shall in performing the duty, or in exercising the power, treat such persons at grant-maintained schools no less favourably (whether as to the benefits or services provided or as to the terms on which they are provided) than such persons at schools maintained by a local education authority. "

30 In section 120 (functions of local education authorities with respect to higher and further education)--

(a) subsection (2) is omitted,

(b) in subsection (3)(b) for "living outside their area" there is substituted "from other areas",

(i) for "universities, institutions within the PCFC funding sector" there is substituted "institutions within the higher education sector", and

(ii) after "sector" there is inserted "or the further education sector", and

(d) subsections (6), (7), (8), (9)(a)(ii) and (9)(b) are omitted.

31 In section 122 (orders incorporating higher education institutions maintained by local education authorities) subsections (2) to (5) are omitted.

32 In section 123 (provisions supplementary to sections 121 and 122)--

(a) at the end of subsection (1) there is added "or which has become a higher education corporation by virtue of section 122A of this Act", and

(b) for subsection (3) there is substituted--

" (3) Schedule 7 to this Act has effect with respect to each higher education corporation established before the appointed day (within the meaning of section 124A of this Act) unless an instrument of government for the corporation made under that section has effect.

(4) A higher education corporation established under section 122 of this Act on or after that day for the purpose of conducting any institution shall be established initially under the name given in the order under that section establishing the corporation. "

33 In section 124 (powers of a higher education corporation)--

(a) in subsection (2)(b) for "disabled students" there is substituted "students having learning difficulties within the meaning of section 41(9) of the [1944 c. 31.] Education Act 1944", and

(b) subsection (4) is omitted.

34 In section 128 (dissolution of higher education corporations)--

(a) in subsection (1)(b)--

(i) for sub-paragraphs (iii) and (iv) there is substituted--

" (iii) a higher education funding council " , and

(ii) after those sub-paragraphs there is inserted--

" (v) a further education funding council " ,

(b) for subsection (4)(b) there is substituted--

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