Education Act 1993 (c. 35)

(The document as of February, 2008)

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(2) The local education authority shall comply with the request unless--

(a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or

(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.

(3) Where the local education authority determine not to comply with the request--

(a) they shall give notice of that fact and of the effect of paragraph (b) below to the parent of the child, and

(b) the parent of the child may appeal to the Tribunal against the determination.

(4) On the appeal the Tribunal may--

(a) dismiss the appeal, or

(b) order the local education authority to substitute for the name of the school or other institution specified in the statement the name of the school specified by the parent.

(5) Regulations may provide that, where a local education authority are under a duty to comply with a request under this paragraph, the duty must, subject to prescribed exceptions, be performed within the prescribed period.

(6) Such provision shall not relieve the authority of the duty to comply with such a request which has not been complied with within that period.

Procedure for amending or ceasing to maintain a statement

9 (1) A local education authority may not amend, or cease to maintain, a statement except in accordance with paragraph 10 or 11 below.

(2) Sub-paragraph (1) above does not apply where the local education authority--

(a) cease to maintain a statement for a child who has ceased to be a child for whom they are responsible,

(b) amend a statement in pursuance of paragraph 8 above,

(d) amend a statement in pursuance of directions under section 197 of this Act.

10 (1) Before amending a statement, a local education authority shall serve on the parent of the child concerned a notice informing him--

(a) of their proposal, and

(b) of his right to make representations under sub-paragraph (2) below.

(2) A parent on whom a notice has been served under sub-paragraph (1) above may, within the period of fifteen days beginning with the date on which the notice is served, make representations to the local education authority about their proposal.

(3) The local education authority--

(a) shall consider any representations made to them under sub-paragraph (2) above, and

(b) on taking a decision on the proposal to which the representations relate, shall give notice in writing to the parent of their decision.

(4) Where a local education authority make an amendment under this paragraph to the description in a statement of the authority's assessment of a child's special educational needs or to the special educational provision specified in a statement, they shall give notice in writing to the parent of his right under section 170(1) of this Act to appeal against the description in the statement of the authority's assessment of the child's special educational needs, the special educational provision specified in the statement or, if no school is named in the statement, that fact.

(5) A local education authority may only amend a statement under this paragraph within the prescribed period beginning with the service of the notice under sub-paragraph (1) above.

11 (1) A local education authority may cease to maintain a statement only if it is no longer necessary to maintain it.

(2) Where the local education authority determine to cease to maintain a statement--

(a) they shall give notice of that fact and of the effect of paragraph (b) below to the parent of the child, and

(b) the parent of the child may appeal to the Tribunal against the determination.

(3) On an appeal under this paragraph the Tribunal may--

(a) dismiss the appeal, or

(b) order the local education authority to continue to maintain the statement in its existing form or with such amendments of the description in the statement of the authority's assessment of the child's special educational needs or the special educational provision specified in the statement, and such other consequential amendments, as the Tribunal may determine.

(4) Except where the parent of the child appeals to the Tribunal under this paragraph, a local education authority may only cease to maintain a statement under this paragraph within the prescribed period beginning with the service of the notice under sub-paragraph (2) above.

Section 182.

SCHEDULE 11 Government and conduct of grant-maintained special schools

Constitution of governing body and conduct of school

1 (1) For every governing body of a grant-maintained special school there shall be--

(a) an instrument (to be known as the instrument of government) providing for the constitution of the governing body, and

(b) an instrument (to be known as the articles of government) in accordance with which the school is to be conducted.

(2) The instrument and articles of government--

(a) shall comply with any requirements imposed by or under Part III of this Act, and

(b) may make any provision authorised by or under that Part to be made and such other provision as may be necessary or desirable.

(3) Subject to any express provision of the instrument or articles of government, the school shall be conducted in accordance with any trust deed relating to it.

Initial instruments and articles of government

2 (1) The initial instrument of government for the governing body of a grant-maintained special school, and the initial articles of government for such a school, shall be such as are prescribed.

(2) The initial instrument of government shall have effect as from the incorporation date.

(3) The initial articles of government shall have effect as from the date of implementation of the proposals made under section 183(3)(a) or 186 of this Act but, in the case of a governing body incorporated in pursuance of proposals made under section 183(3)(a) of this Act, such of the articles as may be prescribed shall have effect as from the incorporation date.

Subsequent instruments of government

3 (1) The Secretary of State may--

(a) if the governing body of a grant-maintained special school submit a draft of an instrument of government to have effect in place of their existing instrument, by order make a new instrument of government in terms of the draft or in such terms as he thinks fit, and

(b) if such a governing body submit draft modifications of an instrument made under paragraph (a) above, by order modify the instrument concerned in terms of the draft or in such terms as he thinks fit,

but shall not make a new instrument otherwise than in the terms of the draft, or modify the instrument otherwise than in terms of the draft, unless he has consulted the governing body.

(2) The Secretary of State may by order modify the instrument of government for the governing body of any grant-maintained special school.

(3) An order under sub-paragraph (2) above--

(a) may relate to all grant-maintained special schools, to any category of such schools specified in the order or to any such school so specified, but

(b) shall not be made unless the Secretary of State has consulted the governing body of each grant-maintained special school to which the order relates.

(4) Where, by reason of the making of a new instrument, or the modification of an instrument, under this paragraph, the number of governors of any category will (unless the required number of governors of that category resign) exceed the number provided for in the instrument, the new instrument or, as the case may be, the instrument as modified shall provide--

(a) for such number of governors of that category as is required to eliminate the excess to cease to hold office, and

(b) for the selection of those who are to cease to hold office.

Subsequent articles of government

4 (1) The governing body of a grant-maintained special school may, with the consent of the Secretary of State--

(a) make new articles of government in place of the existing articles for the school, or

(b) modify the existing articles for the school.

(2) The Secretary of State may by a direction under this paragraph require the governing bodies of grant-maintained special schools or any class of such schools specified in the direction or the governing body of any particular grant-maintained special school so specified to modify their articles of government in any manner so specified.

(3) Before giving a direction under this paragraph, the Secretary of State shall consult the governing body or (as the case may be) each governing body to which the direction applies.

Parent governors

5 (1) The instrument of government for the governing body of a grant-maintained special school shall provide for the governing body to include not less than three nor more than five parent governors.

(2) Subject to sub-paragraph (5) below, the parent governors--

(a) in the case of a school not established in a hospital, shall be elected by persons who are registered parents of registered pupils at the school, and

(b) in the case of a school so established, shall be appointed by the other members of the governing body.

(3) To qualify for such election a person must himself when he is elected be a registered parent of a registered pupil at the school; and to qualify for appointment under sub-paragraph (2)(b) above a person must when he is appointed be such a parent or, if that is not reasonably practicable, a parent of one or more children of compulsory school age.

(4) The instrument shall provide for each parent governor to hold office for a term of four years.

(5) In the case of a school not established in a hospital, the instrument shall provide that if--

(a) one or more vacancies for parent governors are required to be filled by election, and

(b) the number of parents standing for election as parent governors is less than the number of vacancies,

the required number of parent governors shall be made up by persons appointed by the other members of the governing body.

(6) The instrument shall require governors, in appointing a person under a provision made by virtue of sub-paragraph (5) above--

(a) to appoint a person who is the registered parent of a registered pupil at the school, where it is reasonably practicable to do so, and

(b) where it is not, to appoint a person who is the parent of one or more children of compulsory school age with special educational needs or, if that also is not reasonably practicable, a person who is the parent of a person of any age with special educational needs.

Teacher governors

6 (1) The instrument of government for the governing body of a grant-maintained special school shall provide for the governing body to include either one or two teacher governors.

(2) Each teacher governor shall be elected by persons who are teachers at the school.

(3) To qualify for such election, a person must himself when he is elected be a teacher at the school.

(4) The instrument shall provide for each teacher governor to hold office for a term of four years.

Head teacher

7 The instrument of government for the governing body of a grant-maintained special school shall provide for the governing body to include (as a governor ex officio) the person who is for the time being the head teacher.

First governors

8 (1) The instrument of government for the governing body of a grant-maintained special school shall provide for the governing body to include first governors.

(2) The instrument shall provide for such number of first governors as will secure that they outnumber the other governors.

(3) The instrument--

(a) shall require--

(i) that, where it is reasonably practicable, at least two of the first governors shall be (on the date or dates on which they respectively take office) parents of registered pupils at the school, and

(ii) that at least two of the first governors shall be persons with experience of education for those with special educational needs,

but one person may satisfy both requirements, and

(b) shall require the governing body, in appointing first governors, to secure that those governors include a person appearing to them to be a member of the local business community (and such a person may also satisfy one or both of the requirements of paragraph (a)(i) and (ii) above).

(4) The instrument shall provide for the first governors to be appointed by the governing body from among persons who appear to the governing body to be committed to the good government and continuing viability of the school.

(5) The instrument shall provide for first governors to hold office for such term (not being less than five nor more than seven years) as may be specified in the instrument.

(6) A person who is a member of the teaching or other staff at the school shall be disqualified for holding office as a first governor.

(7) References in this paragraph to governors other than first governors do not include sponsor governors.

Power of Secretary of State to replace first governors

9 (1) The instrument of government for the governing body of a grant-maintained special school shall provide for the Secretary of State to have power, where any of sub-paragraphs (2) to (4) below apply, to replace all or any of the first governors.

(2) This sub-paragraph applies where the governing body have been guilty of substantial or persistent failure to comply or secure compliance with any requirement imposed by or under any enactment.

(3) This sub-paragraph applies where--

(a) there is a report of an inspection of the school in which the person who made it expressed the opinion that special measures were required to be taken in relation to the school,

(b) either that person was a member of the Inspectorate or the report stated that the Chief Inspector agreed with his opinion,

(c) if any registered inspector or member of the Inspectorate has made a later report of an inspection of the school under Chapter I of Part V of this Act, he did not express the opinion in the report that special measures were not required to be taken in relation to the school, and

(d) the Secretary of State has received a statement prepared under section 210 of this Act or the period allowed by subsection (2) of that section for the preparation of such a statement has expired;

and expressions used in this sub-paragraph and in that Part have the same meaning as in that Part.

(4) This sub-paragraph applies where in the opinion of the Secretary of State any action taken or proposed by the governing body of the school, or any failure of the governing body to act, is prejudicial to the provision of education by the school.

(5) The instrument of government for a grant-maintained special school shall enable the Secretary of State to make such provision as he thinks fit for filling vacancies for first governors if it appears to him that the governing body are unable or unwilling to fill the vacancies.

(6) Any provision made by the instrument of government in pursuance of paragraph 8(3) above shall not apply for the purposes of the appointment by virtue of this paragraph of any first governor.

Sponsor governors

10 The instrument of government for the governing body of a grant-maintained special school which provides secondary education may--

(a) name a person as a sponsor of the school, and

(b) provide for the governing body to include such number of sponsor governors, not exceeding four, as is specified in the instrument.

Additional governors

11 (1) The instrument of government for the governing body of a grant-maintained special school shall enable the Secretary of State to appoint not more than two additional governors if it appears to him that the governing body are not adequately carrying out their responsibilities in respect of the conduct or management of the school.

(2) The instrument shall enable the governing body, during any period when any additional governors appointed by the Secretary of State by virtue of sub-paragraph (1) above are in office, to appoint a number of additional first governors not greater than the number of additional governors appointed by the Secretary of State who are then in office.

(3) Any additional first governor appointed in pursuance of such a provision is to hold office for such term (not being more than five years) as may be specified in the terms of his appointment.

Powers

12 Section 68 of this Act shall have effect in relation to the governing body of a grant-maintained special school with such modifications as may be prescribed.

Transitory provisions

13 Regulations may modify the provisions of paragraphs 5 to 12 above in relation to--

(a) the initial instrument of government, or

(b) governors holding office, elected or appointed, before the date of implementation of the proposals in pursuance of which the governing body are constituted.

General application of enactments

14 In relation to any governing body incorporated in pursuance of proposals under section 183(3)(a) or 186 of this Act or any school conducted or formerly conducted by such a governing body, regulations may provide for any provision of--

(a) Schedules 5 and 6 to this Act,

(b) Chapters VI, VII, VIII and X of Part II of this Act, and

(c) any other enactment (not contained in Part II of this Act) relating to grant-maintained schools or maintained special schools (or schools including such schools),

to have effect with or without modification.

Section 218.

SCHEDULE 12 Education associations

Supplementary powers

1 (1) Subject to sub-paragraph (2) below and to the articles of government of any school they conduct, an education association 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) An education association shall not borrow money except money lent under section 92 of this Act.

(3) The power to dispose of land mentioned in sub-paragraph (1)(a) above--

(a) does not include power to grant any mortgage, charge or other security in respect of any land, and

(b) may only be exercised with the written consent of the Secretary of State.

Tenure of members

2 (1) A person shall hold and vacate office as a member of an education association 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 of an education association.

3 If the Secretary of State is satisfied that a member of an education association--

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

4 (1) The Secretary of State may--

(a) pay to the members of an education association such salaries or fees, and such travelling, subsistence or other allowances, as he may determine, and

(b) may, as regards any member of the association 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 an education association 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 make to that person a payment of such amount as the Secretary of State may determine.

(3) A determination of the Secretary of State under this paragraph requires the approval of the Treasury.

Committees

5 (1) An education association 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 association.

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

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

Delegation of functions

6 An education association may authorise the chairman or any committee established by them under paragraph 5 above to exercise such of their functions as they may determine.

Proceedings

7 The validity of any proceedings of an education association or of any of their committees shall not be affected by a vacancy amongst the members or by any defect in the appointment of a member.

8 Subject to the preceding provisions of this Schedule, an education association may regulate their own procedure and that of any of their committees.

Application of seal and proof of instruments

9 The application of the seal of an education association shall be authenticated by the signature--

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

(b) of one other member.

10 Every document purporting to be an instrument made or issued by or on behalf of an education association and to be duly executed under their seal, or to be signed or executed by a person authorised by the association 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.

Sections 238 and 239.

SCHEDULE 13 Incorporated governing bodies for county, voluntary and maintained special schools

Property, rights and liabilities

1 On the incorporation under section 238(1) of this Act of a governing body ("the new governing body") constituted under an instrument of government for two or more schools grouped in pursuance of a resolution under section 9 of the [1986 c. 61.] Education (No. 2) Act 1986--

(a) all land and other property which, immediately before the date of incorporation, was property of the governing body of any of those schools used or held for the purposes of the school in question, and

(b) all rights and liabilities of the governing body of any of those schools subsisting immediately before that date which were acquired or incurred for those purposes,

shall be transferred to and, by virtue of this Act, vest in the new governing body.

2 On the incorporation under section 238(1) of this Act of a governing body ("the new governing body") for a school which, immediately before the incorporation date, was conducted by a temporary governing body constituted under arrangements made under section 12 of that Act--

(a) all land and other property which, immediately before the date of incorporation, was property of the temporary governing body used or held for the purposes of the school, and

(b) all rights and liabilities of the temporary governing body subsisting immediately before that date which were acquired or incurred for those purposes,

shall be transferred to and, by virtue of this Act, vest in the new governing body.

Contracts of employment

3 Without prejudice to the generality of the provisions of section 238 of this Act and paragraphs 1 and 2 above, where those provisions effect a transfer of rights and liabilities under a contract of employment--

(a) the contract shall have effect from the date of incorporation as if originally made between the employee and the incorporated governing body, and

(b) without prejudice to paragraph (a) above, anything done before that date by or in relation to the former employer in respect of that contract or the employee shall be deemed from that date to have been done by or in relation to the incorporated governing body,

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 those provisions.

School premises

4 (1) Section 22 of the [1944 c. 31.] Education Act 1944 (powers of local education authority as to use and care of premises of voluntary schools) is amended as follows.

(2) At the end of subsection (3) (premises to be under the control of the governing body, subject to any directions of the local education authority etc.) there is added "except to the extent provided by any transfer of control agreement into which they may enter under subsection (3A) of this section."

(3) After that subsection there is inserted--

" (3A) Subject to subsection (3B) below the governing body of any voluntary school shall have power to enter into a transfer of control agreement with any body or person if their purpose, or one of their purposes, in doing so is to promote community use of the whole or any part of the school premises; and--

(a) they may do so notwithstanding that the trust deed for the school would, apart from this subsection, expressly or impliedly preclude them from entering into such an agreement with that body or person or from conferring control on the controlling body in question; but

(b) they shall not enter into a transfer of control agreement unless the use to which the premises may be put under the agreement is in all other respects in conformity with any such requirements, prohibitions or restrictions imposed by the trust deed as would obtain if control were being exercised by the governing body.

(3B) The governing body shall not enter into any transfer of control agreement which makes or includes provision for the use of the whole or any part of the school premises during school hours unless they have first obtained the local education authority's consent to the agreement in so far as it makes such provision.

(3C) A transfer of control agreement shall be taken to include the following terms, namely--

(a) that the governing body shall notify the controlling body of--

(i) any directions given to the governing body by virtue of subsection (1) or (2) of this section; and

(ii) any determination made by the foundation governors under subsection (1) of this section;

(b) that the controlling body, in exercising control of the use of any premises subject to the agreement--

(i) shall do so in accordance with any directions or determinations from time to time notified to that body in pursuance of paragraph (a) of this subsection; and

(ii) shall have regard to the desirability of the premises being made available for community use; and

(c) that, if reasonable notice is given in writing by the governing body to the controlling body that such of the premises subject to the agreement as may be specified in the notice are reasonably required for use by or in connection with the school at such times as may be so specified, then--

(i) the use of the specified premises at those times shall be under the control of the governing body; and

(ii) accordingly, those premises may be used at those times by or in connection with the school for such purposes as may be specified in the notice,

notwithstanding that their use at those times would, apart from this paragraph, be under the control of the controlling body.

(3D) Where a transfer of control agreement makes express provision for the use of any school premises which are subject to the agreement to be occasionally under the control of the governing body, instead of the controlling body, in such circumstances, at such times or for such purposes as may be provided by or under the agreement, paragraph (c) of subsection (3C) above shall not have effect in relation to that agreement if, at the time of entering into it, the governing body were of the opinion that the express provision would be more favourable to the interests of the school than the term that would otherwise be included by virtue of that paragraph.

(3E) Where the governing body enter into a transfer of control agreement, they shall so far as reasonably practicable secure that the controlling body exercises control in accordance with any such directions or determinations as are notified to that body in pursuance of subsection (3C)(a) of this section. "

(4) For subsection (5) (which provides that, where the trust deed provides for any person other than the governing body being entitled to control the occupation and use of the school premises, the section shall have effect with the substitution for references to the governors of references to that person) there is substituted--

" (5) Where the trust deed for a voluntary school provides for any person other than the governing body to be entitled to control the occupation and use of the school premises to any extent, then, if and to the extent that, disregarding any transfer of control agreement, the use of those premises is or would be under the control of such a person, this section shall have effect in relation to the school with the substitution for references to the governing body of references to that person. "

(5) After that subsection there is inserted--

" (6) In this section--

"community use" means the use of school premises (when not required by or in connection with the school) by members of the local community;
"the controlling body" means the body or person (other than the governing body) which has control of the use of the whole or any part of the school premises under the transfer of control agreement in question;
"school hours" means any time during a school session or during a break between sessions on the same day;
"school session", in relation to any school, means a school session beginning and ending at such times as may from time to time be determined for that school in accordance with section 21 of the Education (No. 2) Act 1986; and
"transfer of control agreement" means an agreement which, subject to subsection (3C) of this section, provides for the use of so much of the school premises as may be specified in the agreement to be under the control, at such times as may be so specified, of such body or person as may be so specified. "

(6) In subsections (1) to (3) and (4), for "the governors" in each place there is substituted "the governing body".

5 For section 42 of the [1986 c. 61.] Education (No. 2) Act 1986 (which requires the articles of government of every county or maintained special school to provide for the use of the school premises outside school hours to be under the control of the governing body, subject to directions given by the local education authority) there is substituted--

" 42 Control of use of premises outside school hours.

(1) The articles of government for every county and maintained special school shall provide--

(a) for the use of the school premises outside school hours to be under the control of the governing body except to the extent provided by any transfer of control agreement into which they may enter by virtue of paragraph (c) below;

(b) for the governing body in exercising control of the use of the school premises outside school hours--

(i) to comply with any directions given to them by the local education authority by virtue of this sub-paragraph; and

(ii) to have regard to the desirability of the premises being made available for community use;

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