House of Commons - Explanatory Note
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Exclusion of pupils

Clause 49

Clause 49: Exclusion of pupils

140.     Subsections (1) and (2) of this clause, which give head teachers of maintained schools power to exclude any pupil from the school on disciplinary grounds and gives the same power to teachers in charge of PRUs, re-enact the existing provisions in section 64(1) of the SSFA and paragraph 7 of Schedule 1 to the EA 96.

141.     The rest of the clause provides for the procedures relating to the exclusion of pupils, including the arrangements for reviewing exclusions and appealing against decisions not to reinstate the pupil in question, to be set out in regulations. The existing requirement for head teachers, governing bodies, LEAs and appeal panels to have regard to the Secretary of State's, or NAW's, guidance relating to exclusion will be continued under those regulations.

142.     Under the proposed regulations, the procedures for excluding a pupil from a maintained school other than a PRU will be largely unchanged. It is anticipated that regulations may provide for altering the constitution of the appeal panel; ensuring that, when reaching a decision, panels will be required to consider the interests of the whole school community, not just those of the excluded pupil; and for ensuring that defects in prior procedure will not constitute grounds for reinstating a pupil.

143.     Regulations may also provide for changes to the number of days a fixed period exclusion must be before the governing body, through its discipline committee, is required to review it.

144.     In relation to PRUs, the clause provides the parent of a pupil permanently excluded from a PRU a right to appeal equivalent to that available to the parents of pupils excluded from maintained schools. The right will be given retrospectively to 1st September 1994, the date when PRUs were first recognised in statute.

145.     The clause also adds maintained nursery schools to the exclusions regime.

Attendance targets

Clause 50

Clause 50: Attendance targets

146.     Section 63 of the SSFA enables the Secretary of State or the NAW to require school governing bodies to set school-level targets for unauthorised absence. Unauthorised absences are absences that have not been approved by the school, all other absences are recorded as authorised. The provisions in this clause widen the power to include authorised absence and will therefore enable the Secretary of State, or NAW, to require specified schools to set targets to reduce their overall level of absence.

PART 4 - POWERS OF INTERVENTION

Schools causing concern

Clauses 51 to 56

Clause 51: Duty to notify where inspection shows school causing concern

147.     The clause inserts a new provision as section 16A in the School Inspections Act 1996 (SIA) to place a duty on HMCI to notify the Secretary of State, or NAW, where an inspector has concluded that a school has serious weaknesses or requires special measures. This change enables other provisions of this Part to allow earlier intervention by the Secretary of State, or NAW, or by LEAs in such schools.

148.     The clause identifies the routes by which HMCI might be notified, whether by one of Her Majesty's Inspectors (HMI) or by a registered inspector, that a school has been judged to have serious weaknesses or to require special measures. It provides that HMCI must agree with a registered inspector that a school requires special measures.

149.     The clause requires HMCI to notify the Secretary of State, or NAW, in writing that a school requires special measures or has serious weaknesses; and requires the Secretary of State, or NAW, to notify the relevant LEA in writing that she has been informed of that judgement in respect of a named school. The clause defines when a school is to be regarded for this purpose as having serious weaknesses. 'Special measures' is defined in the SIA.

Clause 52: Cases in which powers of intervention exercisable

150.     The clause amends section 15 of the SSFA by replacing the subsections which define when the section applies to schools having serious weaknesses or requiring special measures. This change ensures that the steps taken by the Secretary of State, or NAW, or by LEAs to secure improvement in such schools can commence more quickly after an inspection has reached such a conclusion.

151.     The clause provides that section 15 applies to a school having serious weaknesses when, following an inspection of that school, the Secretary of State, or NAW, is notified in writing of the inspector's opinion, as required in clause 51, (and no subsequent inspection has concluded that the school no longer has serious weaknesses or that the school requires special measures).

152.     The clause provides that section 15 applies to a school requiring special measures when, following an inspection of that school, HMCI notifies the Secretary of State, or NAW, in writing of this judgement (and no subsequent inspection has concluded that the school no longer requires special measures).

Clause 53: Power of the Secretary of State to appoint additional governors or direct closure

153.     The clause amends sections 18 and 19 of the SSFA so as to extend the powers currently available to the Secretary of State, or NAW, to intervene in schools requiring special measures to those identified by HMCI as having serious weaknesses. It provides that the Secretary of State, or NAW, may appoint additional governors and appoint one of those governors as chair of the governing body or may direct the maintaining LEA to discontinue (close) on a specified date a school which requires special measures or has serious weaknesses.

Schedule 5: Amendments consequential on clauses 52 and 53

154.     This Schedule amends existing legislation resulting from the changes proposed in clauses 52 and 53, making changes to sections 14, 16 and 17 of the SSFA.

155.     It amends section 14(3), so that LEAs may not use their powers in sections 16 and 17 to appoint additional governors and/or suspend a school's right to a delegated budget if the Secretary of State, or NAW, has used the powers under sections 18 and 19 to appoint additional governors or direct an LEA to close a school, where a school requires special measures or has serious weaknesses.

156.     It amends section 16 to allow an LEA to exercise their power to appoint additional governors for schools requiring special measures or having serious weaknesses: ten calendar days after the Secretary of State, or NAW, has given notice to the LEA required by clause 46.

157.     It allows appropriate appointing authorities in voluntary aided schools to appoint additional governors from the same stage where a school is in special measures or has serious weaknesses, provided the Secretary of State, or NAW, has chosen not to do so and to appoint an equal number of additional governors to those appointed by LEAs when a school has been placed under a formal warning.

158.     It amends section 17 to allow an LEA to exercise its power to suspend a school's delegated budget at the same stage when a school requires special measures or has serious weaknesses.

Clause 54: Power of LEA to provide for governing body to consist of interim executive members

159.     This clause provides the LEA with an additional power to appoint a specially constituted governing body in place of the pre-existing governors.

160.     This power may be exercised only with the consent of the Secretary of State, or NAW. The governing body must be given written notice of the exercise of the power. The clause sets out the circumstances in which the LEA may exercise the power.

161.     Before using the power the LEA must consult the governing body of the school; in the case of a church school, foundation or voluntary, the appropriate diocesan authority; and in the case of any other foundation or voluntary body those who appoint the foundation governors.

Clause 55: Power of Secretary of State to provide for governing body to consist of interim executive members

162.     This clause enables the Secretary of State, or NAW, to appoint a specially constituted governing body.

163.     The clause places a duty on the Secretary of State, or NAW, before exercising the power, to consult the LEA; the governing body of the school; in the case of a church school, foundation or voluntary, the appropriate diocesan authority; and in the case of any other foundation or voluntary body those who appoint the foundation governors. The consultation need not take place if the LEA has already consulted them in connection with a proposal to use its powers under section 16A.

Clause 56: Governing Bodies consisting of interim executive members

164.     This clause inserts a new section 19A in SSFA and provides for the Schedule set out as Schedule 6 to the Bill to become a new Schedule 1A to SSFA.

Schedule 6: Governing Bodies consisting of interim executive members - to be inserted in the School Standards and Framework Act as Schedule 1A

165.     This Schedule contains detailed provision relating to the replacement of the governing body of a school by a governing body, temporarily constituted with interim executive members. The governing body remains in existence as a body corporate, but its membership is changed. The specially constituted governing body is referred to in the Schedule as an "interim executive board (IEB)", but it will run the school as "the governing body of ... School" and will have the responsibilities of a governing body.

166.     The Schedule allows current members of the governing body to be appointed; provides for the number of interim executive members to be two or more; enables further members to be appointed at any time; requires the LEA or Secretary of State, or NAW, to consult appropriate interests before appointing members. The Schedule provides that members can be removed for incapacity or misbehaviour; allows the duration of the interim period to be specified; provides for the LEA or Secretary of State, or NAW, to nominate one member as chairman and for interim executive members to be paid. It also provides for the IEB to determine its own procedures; exempts it from regulations relating to normal governing bodies; and provides for the school's instrument of government not to be applied.

167.     The Schedule explains that during the interim period when the IEB is in place the LEA will not be able to use its usual powers to appoint additional governors and/or suspend a school's right to a delegated budget. The Secretary of State, or NAW, will also lose the power to appoint additional governors when an IEB is in place.

168.     An IEB will not have the power to publish proposals to close a school, if it concludes that a school cannot be turned around. It will be able to report recommending that a school should be closed to the LEA and the Secretary of State, or NAW.

169.     The interim period and the appointment of the IEB may continue until the date of closure when the Secretary of State, or NAW, or the LEA use their powers of closure or direction to close in SSFA. The LEA or the Secretary of State, or NAW, is given the ability to specify in a notice a date on which a normally constituted governing body will return to the school.

170.     The Schedule sets out when interim executive members will leave office, either when a school closes or where the duration of an interim period is specified, the last day, or where a notice is given for the restoration of a normally constituted governing body, the date specified. It provides for an LEA to make arrangements for the constitution of the normal governing body and enables regulations to be made for a shadow (transitional) governing body to be established and governors to be elected or appointed before the end of the interim period.

Local education authorities

Clauses 57 to 61

Clause 57: Powers of Secretary of State to secure proper performance of LEA's functions

171.     The new section 497A(1) for the EA 96 enables the Secretary of State, or NAW, to give directions in relation to all education functions, including for example those relating to early years education, rather than at present only those relating to compulsory age education. Section 497A(2A) enables the Secretary of State, or NAW, to give a further direction when one direction comes to an end and she is not satisfied that the authority would perform the functions to an adequate standard were they to be taken back in-house.

172.     Section 497A(4) as substituted enables the Secretary of State, or NAW, to direct LEAs to take more specific action without the setting of objectives as presently required. This is in line with powers in section 15 of the Local Government Act 1999, which enable the Secretary of State, or NAW, to take any action considered necessary or expedient to secure an authority's compliance with its duties. Section 497A(4A) enables the Secretary of State, or NAW, to direct that a function is to be exercised by the Secretary of State, or NAW, or by a nominee.

Clause 58: Power to secure proper performance: duty of authority where directions contemplated

173.     This clause inserts in the EA 96 a new section 497AA which provides that when the Secretary of State, or NAW, is satisfied that an authority is failing to perform its statutory functions to an adequate standard, and has notified the authority of her decision to intervene, and to whom the right of access granted by this section should apply. The authority is then obliged to give full co-operation to the nominee, rather than such a duty only arising after a direction is given under section 497A.

Clause 59: Power to secure proper performance: further provisions

174.     Section 497B is amended to take account of the amendments to the section 497A. In addition, the new section 497B (1A) defines to whom the general rights conferred by section 497B apply. Following a direction by the Secretary of State, or NAW, that person is the contractor or nominee of the Secretary of State or the NAW.

Clause 60: Power to require LEA to obtain advisory services

175.     This clause enables the Secretary of State, or NAW, to direct an LEA to involve an external partner in turning round a school which requires special measures or has serious weaknesses, where it appears to the Secretary of State that the LEA in question has made insufficient progress in eliminating deficiencies in weak or failing schools, is unlikely to do so, or has a disproportionate number of such schools. External partners could be successful schools, successful LEAs, FE or HE institutions, or from the public, voluntary or private sectors. Partners will provide advice to the LEA and / or governors of a school.

Clause 61: Provisions supplementary to section 60

176.     This clause gives supplementary powers to the Secretary of State, the NAW or an external partner and requires an LEA to whom a direction under clause 60 is or may be given to provide assistance.

PART 5 - SCHOOL ORGANISATION

Academies and city colleges

Clauses 62 to 65

177.     Section 482 of the EA 96 as amended by the LSA enables the Secretary of State to fund city technology colleges (CTCs), city colleges for the technology of the arts (CCTAs) and city academies in consideration of certain undertakings on the part of the promoters. These are independent schools situated in urban areas which provide secondary education for pupils of different abilities, do not charge fees and are funded by central Government.

Clause 62 and Schedule 7: Academies

178.     Subsection (1) of clause 62 replaces section 482 of the EA 96. Whereas the existing section 482 provided for the establishment of CTCS, CCTA and city academies, subsection (1) of the new clause provides for the establishment of Academies.

179.     Academies can be established in any part of England (CTCs, CCTAs and city academies could only be established in urban areas); Academies may provide primary or secondary education (CTCs, CCTAs and city academies could provide only secondary education).

180.     The clause provides that each Academy shall have an emphasis on a particular subject area or subject areas as specified in its funding agreement with the Secretary of State (the existing section provides that each city academy should have a specialism drawn from the list set out in the Act or as specified in an order made by the Secretary of State and that CTCs should have an emphasis on science and technology and CCTAs on technology in its application to the performing arts).

181.     Subsection (2) of clause 62 amends section 483 of the EA 96. It provides that the funding agreement for an Academy may make provision for the repayment of capital grants to the Secretary of State in the event of the termination of the funding agreement. This differs from the existing - and continuing - provisions for CTCs and CCTAs where the funding agreement must make provision for the repayment of capital grant to the Secretary of State in such an event.

182.     Subsection (3) of clause 62 provides for a new Schedule (Schedule 7) which inserts a new Schedule (Schedule 35) into the EA 96. This Schedule makes provision about land in relation to Academies. It is similar to Schedule 8 to the LSA which amongst other things:

  • Provides for the Secretary of State to make a scheme to transfer land and buildings formerly used for a community school to the promoters of an Academy at no cost;

  • Requires LEAs to obtain the consent of the Secretary of State before disposing of land formerly used for a community school (but no such consent is required if the land is transferred to the promoters of an Academy at no cost);

  • Provides that where such land is disposed of without the Secretary of State's consent, the Secretary of State may compulsorily purchase the land and transfer it to the promoters of the Academy;

  • Provides that the Secretary of State may make a scheme to transfer land back to the LEA from a city academy at no cost should the school cease to be a city academy or cease to occupy the land as an Academy;

  • Specifies that certain existing legislation which will not apply to disposals for the purpose of an Academy and provides for the Secretary of State to make regulations to address technical and practical matters arising out of such land transfers.

183.     The new Schedule adds the following provisions:

  • disapplication of the rule against perpetuities in relation to options granted in favour of an LEA where that land was transferred from that LEA to an Academy for no consideration. Without this disapplication the common law rule against perpetuities would limit to 21 years any option granted to return land to the LEA where the Academy closed or ceased to use the land;

  • disapplication of section 153 of the Law of Property Act 1925 so that leaseholds of not less than 300 years granted by LEAs when transferring land for Academies cannot be enlarged into freeholds;

  • an enabling provision for the Secretary of State to give class consent to allow LEAs to dispose of certain categories of land which had been used for the purposes of a county or community school.

Clause 63: Conversion of city academies into Academies

184.     Clause 63 provides for existing city academies to be known as Academies and deems them to have been established under subsection (1) of clause 62. This is a technical change and does not otherwise affect city academies.

Clause 64: Continuation of city colleges

185.     Clause 64 provides for existing CTCs/CCTAs to continue to be funded through their funding agreements. But CTC/CCTAs may enter into new funding agreements if they and the Secretary of State so wish (and therefore will become Academies).

Clause 65: Uniform statutory trusts

186.     Clause 65 provides for Academies and CTCs and CCTAs which provide denominational education to be added to denominational aided and foundation schools as the categories of schools which can benefit from funds held under uniform statutory trusts. Uniform statutory trusts are a standard type of statutory trust which may be incorporated in an order made by the Secretary of State in respect of a closed Church school, to allow the relevant Diocese to apply the proceeds of sale for the benefit of other Church schools.

Proposals to establish, alter or discontinue schools

Clauses 66 to 71

Clause 66 and Schedule 8: Proposals for additional secondary schools

187.     This clause provides that LEAs in England may, with the approval of the Secretary of State, invite other people to make proposals for the establishment of a new maintained school or Academy that is not a replacement for another community, foundation or voluntary school or Academy (an Academy is defined in clause 62). Only after it has invited such proposals may it make proposals itself. At present proposals by an LEA to establish a new community or foundation secondary school are published under section 28 of the SSFA and decided through the arrangements for local decision making set out in that Act. The point of the change is to encourage a wider range of promoters to bring forward proposals to meet the need for a new school.

188.     The effect of the clause is that if the LEA considers that an additional maintained secondary school is required they must seek approval from the Secretary of State for the publication of a notice for a new school.

189.     The LEA must then:

  • publish a notice inviting proposals for the establishment of an additional maintained secondary school or Academy, and identifying a possible site for the school.

  • publish any proposals that have been submitted in response to the notice;

  • publish any proposals of its own that it wishes to make.

190.     The amendments to section 28 of the SSFA (Schedule 21) prevent the LEA from issuing proposals under that section when it could issue a notice under the new clause.

191.     Schedule 8 gives further details of the procedures to be followed and provides for regulations to further specify the necessary actions. In particular it provides for regulations to make provisions concerning comments by interested parties on the proposals that have been published.

192.     Regulations will provide that following consultation the local SOC will be required to comment on the various options and to pass these comments to the Secretary of State who will then decide the proposals.

193.     Proposals are in general required to be implemented by the LEA which published the notice. However, a proposal for a voluntary controlled or foundation school may specify that the provision of the site will be the responsibility of the persons who made the proposal, and where a voluntary aided school is to be established at a site other than that specified in the notice, provision of the site will be the responsibility of the promoters.

194.     If the land on which an Academy is to be sited is that identified in the notice published by the LEA, and certain other requirements are met, the Secretary of State may make a scheme for the transfer of the land to the persons who will be concerned with the running of the Academy.

Clause 67: Duty of LEAs secure proposals

195.     Where the Secretary of State is of the opinion that the provision for primary or secondary education in an area is, or is likely to become, insufficient, she may give a direction to the LEA to exercise its powers with a view to securing that provision is made for such additional number of pupils as is specified in the direction. In meeting the direction the LEA must apply such principles as are specified in the direction. The LEA may use any combination of its existing powers to publish proposals under sections 28, 29 or 31 of the SSFA and the new powers of clause 66 to invite proposals for the establishment of an additional maintained secondary school or Academy.

196.     The Secretary of State may also publish her own proposals for changes to schools or the establishment of new community or foundation schools to secure these places if the LEA does not comply with the direction within the time specified or she is not satisfied that the action taken by the LEA will secure the specified number of places.

197.     Regulations will prescribe the information to be contained in any proposals by the Secretary of State. Any such proposals will be decided by the local SOC or Schools Adjudicator under the existing provisions of Schedule 7 to the SSFA. That Schedule sets out the procedures that currently apply to proposals made by the Secretary of State to address an insufficiency or excess of school places.

Clause 68 and Schedule 9: Proposals relating to sixth forms

198.     This clause amends the LSA to enable the LSC in England, and the National Council for Education and Training in Wales (NCETW) in Wales to propose the establishment, alteration or closure of maintained school sixth forms. In exercising this power, the LSC is placed under an obligation to take account of any guidance from the Secretary of State. NCETW has an equivalent obligation in respect of guidance from the NAW. The clause also provides for LSC proposals to be submitted to the Secretary of State, and for NCETW proposals to be submitted to the NAW, for decision; and for both the Secretary of State and the NAW to make regulations, as appropriate, setting out the processes, including the extent and nature of local consultation, to be followed by the LSC and NCETW in developing and submitting such proposals, and by the Secretary of State and the NAW in making a decision. The Schedule also specifies where responsibility lies for implementation of any approved proposals.

199.     Paragraph 48 of Schedule 21 amends Schedule 6 to the SSFA to provide that the SOC may not approve nor the LEA determine to implement statutory proposals for changes to schools if they relate to undecided proposals by the LSC for the restructuring of sixth form education.

Clause 69: Proposals by governing bodies of community schools

200.     This clause amends section 28 of the SSFA to provide that in addition to the existing powers of foundation and voluntary schools to publish proposals for prescribed alterations to schools, the governing bodies of community schools maintained by an LEA in England may also publish such proposals. It is intended that regulations will prescribe that community schools may make proposals to enlarge the premises of the school, to increase by 27 or more pupils the number in a relevant age group to be admitted to the school, and to add a sixth form or extend a one-year sixth form to two years. At the moment only the LEA may publish such proposals in respect of community schools.

 
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Prepared: 26 November 2001