An institution falls within this subsection if on 1st November 1990 its enrolment number calculated in accordance with paragraph 1(1) of Schedule 3 to this Act was not less than 15 per cent. of its total enrolment number calculated in accordance with paragraph 1(2) of that Schedule.

An institution falls within this subsection if on 17th January 1991 not less than 60 per cent. of the pupils at the institution were receiving full-time education suitable to the requirements of persons over compulsory school age who have not attained the age of nineteen years.

On the appointed day a body corporate shall be established, for each institution so specified, for the purpose of conducting the institution as from the operative date.

The name given in the order under subsection (1) above as the name of the institution shall be the initial name of the body corporate.

Where an educational institution, being an institution maintained by a local education authority or a grant-maintained school, has been established since 1st November 1990 or, as the case may be, 17th January 1991 by a merger of two or more institutions existing on that date, the institution shall be treated as falling within subsection (2) or, as the case may be, subsection (3) above if it would have done so if the merger had taken place before that date.

In this section “the appointed day” means the day appointed under section 94 of this Act for the commencement of subsection (4) above.

Subsection (1) above does not apply to an institution which is maintained by a local education authority.

The name given in the order under this section as the name of the institution shall be the initial name of the body corporate.

An order under this section shall provide for the institution to be conducted by the body corporate as from the operative date.

In this Act “further education corporation” means a body corporate established under section 15 or 16 of this Act F16or which has become a further education corporation by virtue of section 47 of this Act.

A further education corporation may not provide education of a kind specified in subsection (1)(aa), (ab) or (ac) above unless they have consulted such local education authorities as they consider appropriate.

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A further education corporation may do anything (including in particular the things referred to in subsections (2) to (4) below) which appears to the corporation to be necessary or expedient for the purpose of or in connection with the exercise of any of their principal powers.

A further education corporation may conduct an educational institution for the purpose of carrying on activities undertaken in the exercise of their powers to provide further or higher education and, in particular, may assume as from the operative date the conduct of the institution in respect of which the corporation is established.

A further education corporation may provide facilities of any description appearing to the corporation to be necessary or desirable for the purposes of or in connection with carrying on any activities undertaken in the exercise of their principal powers (including boarding accommodation and recreational facilities for students and staff and facilities to meet the needs of students having learning difficulties F22. . .).

But a restriction on the exercise of a power imposed by subsection (4A) or (4AA) above shall not apply to the extent that the appropriate authority consents to the exercise of the power in a way which does not comply with the restriction.

F135Neither the power conferred by subsection (4)(bb) above nor the power conferred by subsection (4)(bc) above may be exercised for the purpose of the provision of education if the provision is secured (wholly or partly) by financial resources provided by the Learning and Skills Council for England or the F102National Assembly for Wales in the discharge of its functions under Part 2 of the Learning and Skills Act 2000.

But subsection (4B) above shall not apply to the extent that F140the councilF103or the National Assembly for Wales (as the case may be) consents to the exercise of the power conferred by subsection (4)(bb) above F136or the power conferred by subsection (4)(bc) above in a way which does not comply with the restriction in subsection (4B).

The power conferred on a further education corporation by subsection (4)(c) above to borrow money may not be exercised without the consent of the F104appropriate body, and such consent may be given for particular borrowing or for borrowing of a particular class.

But a person is not to be taken to have a learning difficulty solely because the language (or form of language) in which he is or will be taught is different from a language (or form of language) which has at any time been spoken in his home.

A reference in this section to investing in a company includes a reference to becoming a member of the company and to investing in it by the acquisition of any assets, securities or rights or otherwise.

The validity of any proceedings of a further education corporation, or of any committee of the corporation, shall not be affected by a vacancy amongst the members or by any defect in the appointment or nomination of a member.

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

In the case of a further education corporation established to conduct an institution which, on the date the corporation was established, was F30a maintained school, the governing body incorporated under F101section 19 of the Education Act 2002 shall, on the operative date, be dissolved.

The Secretary of State may by order modify F31, replace or revoke any instrument of government or articlesof government of any further education corporation.

Before giving a direction under this section, the Secretary of State shall consult the further education corporation or (as the case may be) each further education corporation to which the direction applies.

Nothing in this section requires the National Assembly for Wales to consult itself.

This section has effect in relation to a further education corporation established to conduct an institution which, on the date the corporation was established, was maintained by a local education authority.

References in subsections (4) and (5) above to anything done, other than the making of an order, include anything done before the passing of this Act.

In subsection (8) above “former governing body” in relation to an institution means the governing body of the institution immediately before the operative date.

Expressions used in subsection (1) above and in section 2 of that Act have the same meaning as in that section.

Where at any time land is used for the purposes of such an institution, any interest of a local authority in the land subsisting at that time shall be taken for the purposes of section 23 of this Act to be land held for the purposes of that institution (whether or not it is by virtue of that interest that the land is so used).

This section applies where a further education corporation is established to conduct an institution which, on the date the corporation is established, is a foundation or voluntary school belonging to the group of schools for which a foundation body acts under section 21 of the School Standards and Framework Act 1998.

Regulations may make such provision as the Secretary of State considers necessary or expedient in connection with the transfer, in any such case, of property, rights and liabilities from the foundation body to the further education corporation.

In this section “foundation body” and “group of schools” have the same meaning as in the School Standards and Framework Act 1998.

A contract of employment between a person to whom this section applies and the transferor shall have effect from the operative date as if originally made between that person and the corporation.

Subsections (2) and (3) above are without prejudice to any right of an employee to terminate his contract of employment if a substantial change is made to his detriment in his working conditions, but no such right shall arise by reason only of the change in employer effected by this section.

An order under this section may designate a person either individually or as a member of a class or description of employees.

A person employed by the transferor in connection with the provision of meals shall not be regarded for the purposes of subsection (7)(b) above as employed to work solely at an institution unless the meals are provided solely for consumption by persons at the institution.

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Subject to the following provisions of this section, the Secretary of State may by order provide for the dissolution of any further education corporation and the transfer to any person mentioned in subsection (2) or (3) below of property, rights and liabilities of the corporation.

Where the recipient of a transfer under any order under this section is not a charity established for charitable purposes which are exclusively educational purposes, any property transferred must be transferred on trust to be used for charitable purposes which are exclusively educational purposes.

In subsection (4) above “charity” and “charitable purposes” have the same meanings as in F141the Charities Act 1993.

An order under this section may apply section 26 of this Act with such modifications as the Secretary of State may consider necessary or desirable.

Nothing in this section requires the National Assembly to consult itself.

The Secretary of State shall not make an order under this section in respect of a voluntary aided school without the consent of the governing body and the local education authority.

In this Part of this Act “designated institution” means an institution in relation to which a designation under this section has effect.

In this section “regulatory instrument”, in relation to an institution, means any instrument of government or articles of government and any other instrument relating to or regulating the institution.

Where there is no such power as is mentioned in subsection (3)(b) above to make the instrument, it may be made by the governing body of the institution and an instrument made by them under this subsection may replace wholly or partly any existing regulatory instrument.

The Secretary of State may by order make either of the instruments referred to in subsection (2) above and any instrument made by him under this subsection may replace wholly or partly any existing regulatory instrument.

The Secretary of State may by order modifyF49, replace or revoke either of the instruments referred to in subsection (2) above and no instrument approved by him for the purposes of this section may be modifiedF49, replaced or revoked by any other person without the Secretary of State’s consent.

The Secretary of State may specify an institution or a class of institutions only if the institution or each member of the class is principally concerned with the provision of the education specified in section 28(1)(a) above.

The reference in subsection (1)(a) above to the established character of an institution is, in relation to an institution established shortly before or at the same time as being designated, a reference to the character which the institution is intended to have on its establishment.

This section has effect in relation to any designated institution conducted by a company.

No amendment of the F162articles of association of the company (other than one required under subsection (3)(a) above) shall take effect until it has been submitted to the Secretary of State for his approval and he has notified his approval to the company.

Before giving any directions under subsection (3) above the Secretary of State shall consult the persons who appear to him to have effective control over the company.

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In this section and section 33 of this Act—

• “appropriate transferees” means—

  1. a

     in relation to an institution conducted by a company, the company, and

  2. b

     in relation to an institution not so conducted, any persons specified in the order designating the institution as persons appearing to the Secretary of State to be trustees holding property for the purposes of that institution,

• “designation date”, in relation to a designated institution, means the date on which the designation takes effect, and

• “former assisting authority” means—

  1. a

     in relation to an institution which when designated was a voluntary aided school, the local education authority which maintained the school, and

  2. b

     in relation to an institution which when designated was an institution (other than a school) assisted by a local education authority, that authority.

References in subsections (5) and (6) above to anything done, other than the making of an order, include anything done before the passing of this Act.

Subject to section 36(2) of this Act, where persons appearing to the Secretary of State to be trustees holding property for the purposes of the institution are the appropriate transferee, any land or other property or rights transferred to them under section 32 of this Act shall be held on the trusts applicable under such trust deed relating to or regulating that institution (if any) as may be specified in the order designating the institution or, if no such trust deed is so specified, on trust for the general purposes of the institution.

Where persons so appearing to the Secretary of State are the appropriate transferee, they shall incur no personal liability by virtue of any liability so transferred but may apply any property held by them on trust for the purposes of the institution in meeting any such liability.

Where at any time land is used for the purposes of an institution, any interest of a local authority in the land subsisting at that time shall be taken for the purposes of that section to be land held for the purposes of that institution (whether or not it is by virtue of that interest that the land is so used).

References in this Part of this Act to the operative date, in relation to a designated institution, are to the designation date.

The Secretary of State may by order designate a body corporate within subsection (2) as a sixth form college corporation, for the purpose of conducting an educational institution specified in the order.

The Secretary of State may by order designate a body corporate within subsection (2) as a sixth form college corporation, for the purpose of conducting an educational institution specified in the order.

An institution is within this subsection if it appears to the Secretary of State that on the date on which the application is made at least 80% of its total enrolment number will be persons over compulsory school age but under 19.

The total enrolment number of an institution is to be calculated in accordance with paragraph 1(2) of Schedule 3.

The power conferred by subsection (1) is exercisable only after the date specified in an order under section 33A(5)(b).

The Secretary of State may by order make provision for the establishment of a body corporate as a sixth form college corporation, for the purpose of establishing and conducting an educational institution specified in the order.

The total enrolment number of an institution is to be calculated in accordance with paragraph 1(2) of Schedule 3.

The Secretary of State may by order convert a sixth form college corporation into a further education corporation.

An application under subsection (2)(a) may not be made during the period of two years beginning with the date on which the body's designation or establishment as a sixth form college corporation takes effect.

The Secretary of State must consult the governing body of the relevant sixth form college before making an order under subsection (1) in a case within subsection (2)(b).

On the date specified in the order, the body ceases to be a sixth form college corporation and becomes a further education corporation.

The powers conferred by subsection (1) are referred to in section 33F as the corporation's principal powers.

A sixth form college corporation may not provide education of a kind specified in subsection (1)(b), (c) or (d) unless they have consulted such local education authorities as they consider appropriate.

A sixth form college corporation may do anything (including in particular the things referred to in subsections (2) to (6)) which appears to the corporation to be necessary or expedient for the purpose of or in connection with the exercise of any of their principal powers.

A sixth form college corporation may conduct an educational establishment for the purpose of carrying on activities undertaken in the exercise of their powers to provide further or higher education.

In particular, a sixth form college corporation may conduct the relevant sixth form college as from the date specified in the order designating or establishing the corporation as a sixth form college corporation.

A sixth form college corporation may provide facilities of any description appearing to the corporation to be necessary or desirable for the purposes of or in connection with carrying on any activities undertaken in the exercise of their principal powers.

The powers conferred by subsection (6) are subject to section 33G.

But a person is not to be taken to have a learning difficulty solely because the language (or form of language) in which the person is or will be taught is different from a language (or form of language) which has at any time been spoken in the person's home.

A reference in this section or section 33G to investing in a company includes a reference to becoming a member of the company and to investing in it by the acquisition of any assets, securities or rights or otherwise.

A sixth form college corporation may provide advice or assistance to any other person where it appears to the corporation to be appropriate for them to do so for the purpose of or in connection with the provision of education by the other person.

But a restriction on the exercise of a power imposed by subsection (1) or (2) does not apply to the extent that the responsible local education authority consent to the exercise of the power in a way which does not comply with the restriction.

Neither the power conferred by section 33F(6)(c) nor the power conferred by section 33F(6)(d) may be exercised for the purposes of the provision of education if the provision is secured (wholly or partly) by financial resources provided by a relevant funding body.

But subsection (4) does not apply to the extent that the relevant funding body consents to the exercise of the power in question in a way which does not comply with the restriction in that subsection.

The power conferred on a sixth form college corporation by section 33F(6)(e) to borrow money may not be exercised without the consent of the responsible local education authority.

Consent under subsection (6) may be given for particular borrowing or for borrowing of a particular class.

In this section “relevant funding body” means a local education authority, the YPLA or the Chief Executive of Skills Funding.

In exercising their functions under sections 33E and 33F, a sixth form college corporation must have regard, amongst other things, to the objective of promoting the economic and social well-being of the local area.

Subsection (2) is subject to section 33J.

The document is to be received in evidence and treated, without further proof, as being made or issued by or on behalf of the corporation unless the contrary is shown.

This section applies to a sixth form college corporation in respect of which the relevant sixth form college is specified, or falls within a class specified, by the Secretary of State by order.

The reference in subsection (1)(a) to the established character of a sixth form college is, in relation to a sixth form college established shortly before or at the same time as the designation or establishment of the sixth form college corporation in respect of which it is the relevant sixth form college, a reference to the character which the sixth form college is intended to have on its establishment.

The first instrument of government and articles of government of a sixth form college corporation established under section 33C are to be made by the YPLA.

Before making an instrument or articles for a sixth form college corporation under this section the YPLA must consult the corporation.

The YPLA may not make a new instrument otherwise than in terms of the draft, or modify the instrument otherwise than in terms of the draft, unless it has consulted the corporation.

The YPLA may by order modify, replace or revoke an instrument of government or articles of government of a sixth form college corporation.

Before giving a direction under this section the YPLA must consult the sixth form college corporation or (as the case may be) each sixth form college corporation to which the direction applies.

An order under subsection (1) may be made only if a proposal relating to the order has been made by the responsible local education authority and it appears to the Secretary of State that the requirements in subsection (3) have been met in relation to the proposal.

Property, rights and liabilities may be transferred to a person or body under subsection (4) only with the consent of the person or body.

Property, rights and liabilities may be transferred to the responsible local education authority.

Where the recipient of a transfer under an order under this section is not a charity established for charitable purposes which are exclusively educational purposes, any property transferred must be transferred on trust to be used for charitable purposes which are exclusively educational purposes.

An order under this section may make provision about the transfer of staff (including provision applying section 26 with such modifications as the Secretary of State may consider necessary or desirable).

In this section “charity” and “charitable purposes” have the same meanings as in the Charities Act 1993.

The Secretary of State may by order provide for any land or other property of a local authority to be made available for use by an institution within the further education sector (referred to in this section as the “new sector institution”) if the requirements of subsection (2) below are satisfied.

Subsection (4)(a)(ii) above shall not apply to any liability of the local authority in respect of the principal of, or interest on, any loan.

References in this section to use for the purpose of the provision of further education are to use wholly or mainly for that purpose.

Nothing in this section requires the National Assembly to consult itself.

The period of that person’s employment with the local authority shall count as a period of employment with the governing body for the purposes of any provision of his contract of employment with the governing body which depends on his length of service with that employer.

This section applies to any transfer under section 23 or 32 of this Act, and those sections are subject to Schedule 5 to this Act.

Where arrangements for the supply by a local authority of goods or services for the purposes of an institution to be conducted by a further education corporation are to have effect as from the operative date in accordance with section 24(4) of this Act as if contained in an agreement made before that date between the local authority and the corporation, paragraphs 2 to 5 of Schedule 5 to this Act shall have effect as if the rights and liabilities of the corporation under the agreement were rights and liabilities of the local authority transferred to the corporation under a transfer to which this section applies.

In carrying out the functions conferred or imposed on them by that Schedule, it shall be the duty of the Education Assets Board to secure that each transfer to which this section applies is, so far as practicable, fully effective on the date on which it takes effect under this Act.

Not later than the end of the period of six months beginning with the operative date in relation to a further education corporation established under section 15 of this Act, the Board shall provide the appropriate council with a written statement giving such particulars of all property, rights and liabilities transferred to that corporation as are then available to the Board.

If in any case within subsection (7) above full particulars of all property, rights and liabilities transferred to the corporation concerned are not given in the statement required under that subsection, the Board shall provide the appropriate council with a further written statement giving any such particulars omitted from the earlier statement as soon as it is possible for them to do so.

If the net expenditure of the institution for the relevant financial year is less than the net budget share of the institution for that year, the assisting authority shall pay to the new governing body of the institution a sum equal to the shortfall.

If the net expenditure of the institution for the relevant financial year is greater than the net budget share of the institution for that year, the new governing body of the institution shall pay to the assisting authority a sum equal to the excess.

In this section, in respect of any financial year of the institution—

• “net budget share” means the budget share—

  1. i

     less such amount as may be prescribed in respect of any earned income, and

  2. ii

     plus such amount as may be prescribed in respect of any surplus, and

• “net expenditure” means any expenditure, less such amount as may be prescribed in respect of earned income.

Any sum payable under this section shall be paid in accordance with regulations, and the regulations may provide for sums to be payable by prescribed instalments and for sums to carry prescribed interest.

Regulations may, in the case of any institution where the operative date falls within a financial year in which the institution was covered by such a scheme as is referred to in subsection (1) above, make provision for applying this section with modifications relating to the amounts that are to be taken for the purposes of this section to be the net budget share and the net expenditure of the institution for that year.

In this section, in respect of any financial year of the institution—

• “budget share” means the amount which is that institution’s budget share for the relevant financial year for the purposes of F56Part II of the School Standards and Framework Act 1998,

• “earned income” means any sums, other than sums appropriated for the purposes of the institution by the assisting authority, received by the institution in respect of the relevant financial year which the institution is authorised under the applicable scheme to retain,

• “expenditure” means such expenditure for the purposes of the institution incurred in the relevant financial year by the former governing body or the assisting authority as may be prescribed,

• “financial year” has the same meaning as in F57the Education Act 1996,

• “former governing body” means the governing body of the institution immediately before the operative date and “new governing body” means the governing body of the institution on or after that date, and

• “surplus” means the amount of any surplus which the institution is authorised under the applicable scheme to carry forward to the relevant financial year.

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F115The Learning and Skills Council for England may make payments, on such terms and conditions as the council may determine, to a local authority in respect of the principal of, and any interest on, any excepted loan liability of that authority.

No payment shall be made under this section in respect of any excepted loan liability, where the class or classes of excepted loan liabilities in respect of which payments may be made are for the time being prescribed by an order of the Secretary of State, unless the liability falls within a prescribed class.

In this section “relevant employees” means persons who are employed at institutions which are relevant institutions by virtue of section 39(2)(a) or (b) of this Act.

This section does not apply to remuneration determined in accordance with an order under section 122 of the Education Act 2002 (determination of school teachers’ pay and conditions).

The Secretary of State shall give written notification of any decision under subsection (4)(a) or (5) above to the local education authority and, in the case of subsection (5) above, to any other persons who made representations to him under subsection (4)(b) above.

Where this subsection applies, the employee concerned shall, for the purpose of determining the terms of any contract affected by section 26 of this Act, be regarded as having been entitled under his contract of employment to be paid by the local education authority at the new rate as from the proposed date of increase.

This section applies to any institution within the further education sector which is principally concerned with the provision of full-time education suitable to the requirements of persons over compulsory school age who have not attained the age of nineteen years.

The governing body of an institution to which this section applies shall ensure that at an appropriate time on at least one day in each week during which the institution is open an act of collective worship is held at the institution which persons receiving education at the institution may attend.

In all F64other institutions to which this section applies such act of collective worship shall be wholly or mainly of a broadly Christian character in that it shall reflect the broad traditions of Christian belief but need not be distinctive of any particular Christian denomination.

If the governing body of F65an institution to which this section applies considers it appropriate to do so it may in addition to the act of collective worship referred to in subsection (3) or (4) provide for acts of worship which reflect the practices of some or all of the other religious traditions represented in Great Britain.

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In the application of this section to an institution which is of voluntary origin by virtue of subsection (2)(d), subsection (3)(b) shall be taken as referring to the religious traditions and practices of the two institutions mentioned in subsection (2)(d).

This section applies to any institution to which section 44 of this Act applies.

An institution is of voluntary origin for the purposes of this section if it is of voluntary origin for the purposes of section 44 of this Act.

The governing body of an institution to which this section applies shall ensure that religious education is provided at the institution for all persons attending the institution who wish to receive it.

The governing body of F69an institution to which this section applies shall be deemed to be fulfilling its duty under this section if religious education is provided at a time or times at which it is convenient for the majority of full time students to attend.

For the purposes of this section religious education may take the form of a course of lectures or classes or of single lectures or classes provided on a regular basis and may include a course of study leading to an examination or the award of a qualification.

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In the application of this section to an institution which is an institution of voluntary origin by virtue of section 44(2)(d), subsection (5)(a)(ii) shall be taken as referring to the religious traditions and practices of the two institutions mentioned in section 44(2)(d).

The Secretary of State may by order provide for the transfer of a higher education corporation to the further education sector.

Where an order is made under this section in respect of a higher education corporation, sections 20 and 21 of this Act shall have effect as if, on the date the order has effect, the corporation were established as a further education corporation; and the order may make F75provision as to the initial name of the corporation as a further education corporation.

On such date as may be specified in the order the corporation shall cease to be a higher education corporation and become a further education corporation.

An order under section 28 of this Act in respect of any institution may revoke any order in respect of that institution under section 129 of the M4Education Reform Act 1988 (designation of institutions).

This section applies to any contract made between the governing body of an institution within the further education sector and any person employed by them, not being a contract made in contemplation of the employee’s pending dismissal by reason of redundancy.

Any guidance under this section about consultation with persons falling within paragraph (a) of subsection (1) must provide for the views of such a person to be considered in the light of his age and understanding.

The information shall be published in such form and manner and at such times as may be prescribed.

The published information shall not name any student to whom it relates.

In this section “prescribed” means prescribed by regulations.

A draft proposal or order in respect of an institution which is maintained by a local education authority shall not be published without the consent of the governing body and the local education authority.

In this section “prescribed” means prescribed by regulations.

This section applies where an institution within the further education sector provides F80. . . education suitable to the requirements of persons over compulsory school age who have not attained the age of nineteen years.

The governing body of such an institution shall, for any academic year in respect of which they receive financial support from F121the Learning and Skills Council for England or the National Assembly for Wales, secure compliance with any requirement in respect of any individual who has not attained the age of nineteen years which is or has been imposed by F122the council or (as the case may be) the National Assembly for Wales under subsection (2) above and has not been withdrawn.

The governing body of the corporation or institution shall secure that, except in such circumstances as may be prescribed by regulations, no education is provided to a person who has attained the age of nineteen years in a room in which any F84persons of compulsory school age are for the time being receiving secondary education.