Further and Higher Education Act 1992

Chapter IIE+W+S Institutions within the further education sector

The further education corporationsE+W

15 Initial incorporation of existing institutions.E+W

(1)Before the appointed day the Secretary of State shall by order specify—

(a)each educational institution maintained by a [F1local authority] which appears to him to fall within subsection (2) below, and

(b)each county school, controlled school or grant-maintained school which appears to him to fall within subsection (3) below.

(2)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.

(3)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.

(4)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.

(5)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.

(6)Where an educational institution, being an institution maintained by a [F1local 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.

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

16 Orders incorporating further institutions.E+W

(1)The Secretary of State may by order make provision for the establishment of a body corporate—

(a)for the purpose of establishing and conducting an educational institution, or

(b)for the purpose of conducting an existing educational institution,

but shall not make an order in respect of an existing institution without the consent of the governing body.

[F2(2)Subsection (1) above does not apply to an institution which is maintained by a [F1local authority].

(3)The Secretary of State may by order make provision for the establishment of a body corporate for the purpose of conducting an institution which—

(a)is maintained by a [F1local authority], and

(b)in his opinion, 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.]

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

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

17“Further education corporation” and “operative date”.E+W

(1)In this Act “further education corporation” means a body corporate established under section 15 or 16 of this Act [F3or which has become a further education corporation by virtue of section [F433D or] 47 of this Act.]

(2)In this Part of this Act “operative date”, in relation to a further education corporation and the institution, means—

(a)in the case of a further education corporation established under section 15 of this Act, such date as the Secretary of State may by order appoint in relation to the corporations so established, and

(b)in the case of a further education corporation established under section 16 of this Act, such date as the Secretary of State may by order appoint in relation to that corporation.

18 Principal powers of a further education corporation.E+W

(1)A further education corporation may—

(a)provide further and higher education, and

[F5(aa)provide secondary education [F6suitable to the requirements of persons who have attained the age of fourteeen years],

(ab)provide education which is secondary education by virtue of section 2(2B) of the M1Education Act 1996 (definition of secondary education),

(ac)participate in the provision of secondary education at a school,]

(b)supply goods or services in connection with their provision of education,

[F7and those powers are referred to in section 19 of this Act as the corporation’s principal powers].

[F8(1A)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 [F1local authorities] as they consider appropriate.]

(2)For the purposes of subsection (1) above, goods are supplied in connection with the provision of education by a further education corporation if they result from—

(a)their provision of education or anything done by them under this Act for the purpose of or in connection with their provision of education,

(b)the use of their facilities or the expertise of persons employed by them in the fields in which they are so employed, or

(c)ideas of a person employed by them, or of one of their students, arising out of their provision of education.

(3)For the purposes of that subsection, services are supplied in connection with the provision of education by a further education corporation if—

(a)they result from their provision of education or anything done by them under this Act for the purpose of or in connection with their provision of education,

(b)they are provided by making available their facilities or the expertise of persons employed by them in the fields in which they are so employed, or

(c)they result from ideas of a person employed by them, or of one of their students, arising out of their provision of education.

F9(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F9(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F9(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19 Supplementary powers of a further education corporation.E+W

(1)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.

(2)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.

(3)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 F10... ).

(4)A further education corporation may—

(a)acquire and dispose of land and other property,

(b)enter into contracts, including in particular—

(i)contracts for the employment of teachers and other staff for the purposes of or in connection with carrying on any activities undertaken in the exercise of their principal powers, and

(ii)contracts with respect to the carrying on by the corporation of any such activities,

[F11(bb)form, participate in forming or invest in a company,

(bc)form, participate in forming or otherwise become a member of a charitable incorporated organisation (within the meaning of section 69A of the Charities Act 1993),]

(c)borrow such sums as the corporation think fit for the purposes of carrying on any activities they have power to carry on or meeting any liability transferred to them under sections 23 to 27 of this Act and, in connection with such borrowing, may grant any mortgage, charge or other security in respect of any land or other property of the corporation,

(d)invest any sums not immediately required for the purposes of carrying on any activities they have power to carry on,

(e)accept gifts of money, land or other property and apply it, or hold and administer it on trust for, any of those purposes, and

(f)do anything incidental to the conduct of an educational institution providing further or higher education, including founding scholarships or exhibitions, making grants and giving prizes.

[F12[F13(4A)The power conferred by subsection (4)(bb) above may not be exercised for the purpose of—

(a)conducting an educational institution, or

(b)investing in a company conducting an educational institution.

(4AA)The power conferred by subsection (4)(bc) above may not be exercised for the purpose of—

(a)conducting an educational institution, or

(b)becoming a member of a charitable incorporated organisation conducting an educational institution.

(4AB)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.

(4AC)In subsection (4AB) above “the appropriate authority” means—

(a)in relation to a further education corporation in England, the [F14Chief Executive of Skills Funding];

(b)in relation to a further education corporation in Wales, the Welsh Ministers.]

(4B)[F15Neither 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 [F16Chief Executive of Skills Funding] or the [F17National Assembly for Wales in the discharge of its functions under Part 2 of the Learning and Skills Act 2000].

(4C)But subsection (4B) above shall not apply to the extent that [F18the [F19Chief Executive]] [F20or the National Assembly for Wales (as the case may be)] consents to the exercise of the power conferred by subsection (4)(bb) above [F21or the power conferred by subsection (4)(bc) above] in a way which does not comply with the restriction in subsection (4B).]

(5)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 [F22appropriate body], and such consent may be given for particular borrowing or for borrowing of a particular class.

[F23(6)A person has a learning difficulty if—

(a)he has a significantly greater difficulty in learning than the majority of persons of his age, or

(b)he has a disability which either prevents or hinders him from making use of facilities of a kind generally provided by institutions within the further education sector for persons of his age.

(7)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.]

[F24(8)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.]

[F25(9)A further education 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.]

[F2619ADuty in relation to promotion of well-being of local areaE+W

(1)This section applies to a further education corporation established in respect of an educational institution in England.

(2)In exercising their functions under sections 18 and 19, the corporation must—

(a)have regard, amongst other things, to the objective of promoting the economic and social well-being of the local area, and

(b)in doing so, have regard to any guidance issued by the Secretary of State about co-operation with a view, directly or indirectly, to advancing that objective.

(3)In subsection (2)—

(a)the reference to the well-being of an area includes a reference to the well-being of people who live or work in the area;

(b)“co-operation”, in relation to a further education corporation, means any form of co-operation, including consulting, seeking advice or assistance from, providing advice or assistance to, or collaborating or otherwise participating in joint working with, other educational institutions, employers or other persons (who may be, or include, persons outside the local area).

(4)In this section, “the local area”, in relation to a further education corporation, means the locality of the institution in respect of which they are established.

(5)Nothing in this section is to be taken to affect the operation of section 49A.]

20 Constitution of corporation and conduct of the institution.E+W

(1)For every further education corporation established to conduct an educational institution there shall be—

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

(b)an instrument in accordance with which the corporation, and the institution, are to be conducted (to be known as articles of government).

(2)Instruments of government and articles of government—

(a)shall comply with the requirements of Schedule 4 to this Act, and

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

(3)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.

(4)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.

21 Initial instruments and articles.E+W

(1)As from the date on which a further education corporation is established, the instrument of government and articles of government—

F27(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Such F29. . . regulations—

(a)may provide for all or any of the persons who, on the date on which a corporation is established to conduct the F30. . . existing institution, are the members of the governing body of the institution to be the initial members of the corporation, and

(b)may make such other provision in relation to F31. . . existing institutions as appears to the Secretary of State necessary or desirable to secure continuity in their government.

(3)In the case of a further education corporation established to conduct an institution which, on the date the corporation was established, was [F32a maintained school, the governing body incorporated under [F33section 19 of the Education Act 2002]] shall, on the operative date, be dissolved.

22 Subsequent instruments and articles.E+W

(1)The Secretary of State may, after consulting the [F34appropriate body]—

(a)if a further education corporation submits 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 corporation submits draft modifications of an instrument made under paragraph (a) above, by order modify the instrument in terms of the draft or in such terms as he thinks fit,

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

(2)The Secretary of State may by order modify[F35, replace or revoke any instrument of government or articles] of government of any further education corporation.

(3)An order under subsection (2) above—

(a)may relate to all further education corporations, to any category of such corporations specified in the order or to any such corporation so specified, but

(b)shall not be made unless the Secretary of State has consulted the [F36appropriate body] and each further education corporation to which the order relates.

(4)A further education corporation may, with the consent of the Secretary of State—

(a)make new articles of government in place of their existing articles, or

(b)modify their existing articles.

(5)The Secretary of State may by a direction under this section require further education corporations, any class of such corporations specified in the direction or any particular further education corporation so specified—

(a)to modify[F37, replace or revoke] their articles of government, or

(b)to secure that any rules or bye-laws made in pursuance of their articles of government are modified[F38, replaced or revoked],

in any manner so specified.

(6)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.

[F39(7)Nothing in this section requires the National Assembly for Wales to consult itself.]

[F4022A Charitable status of a further education corporationE+W

A further education corporation shall be a charity within the meaning of the Charities Act 1993 (and in accordance with Schedule 2 to that Act is an exempt charity for the purposes of that Act).]

Transfer of property, etc., to further education corporationsE+W

23 Transfer of property, etc.: institutions maintained by [F1local authorities]E+W

(1)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 [F1local authority].

(2)Subject to subsection (3) below and section 36 of this Act, on the operative date—

(a)all land or other property which, immediately before that date, was property of any local authority used or held for the purposes of the institution the corporation is established to conduct, and

(b)all rights and liabilities of any such authority 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, that corporation.

(3)Subsection (2) above shall not apply to—

(a)any liability of any such authority in respect of the principal of, or interest on, any loan, or

(b)any property, rights or liabilities excluded under subsections (4) or (5) below.

(4)If before the operative date—

(a)the governing body of the institution and the local authority have agreed in writing to exclude any land, F41. . .

(b)F41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the land, and any rights or liabilities relating to it, shall be excluded.

(5)If in default of agreement under subsection (4) above—

(a)the governing body or the local authority have applied to the Secretary of State to exclude any land, and

(b)the Secretary of State has by order directed its exclusion,

the land, and any rights or liabilities relating to it, shall be excluded.

(6)An agreement under subsection (4) above may provide for the land to be used for the purposes of the institution on such terms as may be specified in or determined in accordance with the agreement; and directions under subsection (5) above—

(a)may confer any rights or impose any liabilities that could have been conferred or imposed by such an agreement, and

(b)shall have effect as if contained in such an agreement.

(7)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.

(8)On the operative date—

(a)all land and other property which, immediately before that date, was property of the former governing body, and

(b)all rights and liabilities of that body subsisting immediately before that date,

shall be transferred to and, by virtue of this Act, vest in the corporation.

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

[F42(10)In this section, except in subsection (1), “local authority” includes a non-metropolitan district council for an area for which there is a county council.]

24 Provisions supplementary to section 23.E+W

(1)Where in exercise of their powers under section 2 of the M2Further Education Act 1985 a local authority—

(a)have entered into an agreement for the supply of goods or services or both through an educational institution, or

(b)for the purposes of any agreement for such a supply through such an institution, hold shares in any body corporate,

and a further education corporation is established to conduct the institution, then, the rights and liabilities of the authority under or by virtue of the agreement or, as the case may be, the interest of the authority in the shares shall be treated as falling within section 23(2) of this Act.

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

(3)Where, immediately before the operative date in relation to a further education corporation, arrangements exist for the supply by a local authority of goods or services for the purposes of the institution in pursuance of a bid prepared under section 7 of the M3Local Government Act 1988 (restrictions on activities of local authorities), those arrangements shall have effect as from that date as if—

(a)they were contained in an agreement made before that date between the local authority and the corporation on the terms specified in the bid, and

(b)the agreement required the corporation or, as the case may be, the local authority to make payments corresponding to the provision made in the bid in pursuance of section 8(3) of that Act for items to be credited or, as the case may be, debited to any account.

(4)Where such arrangements are for the supply to others as well as to the institution—

(a)those arrangements shall have effect as mentioned in subsection (3) above only to the extent that they relate to the institution in question, and

(b)the rights and liabilities arising under the agreement shall be such rights and liabilities as are properly required to give effect to the arrangements so far as relating to that institution.

(5)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).

[F43(6)In subsections (3) and (5) “local authority” includes a non-metropolitan district council for an area for which there is a county council.]

F44[25 Transfer of property, etc. from foundation bodies.E+W

(1)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.

(2)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.

(3)Regulations under subsection (2) may, in relation to any such transfer of property, rights or liabilities—

(a)modify any provision made by or under any of sections 23, 24, 36 and 38 of this Act and Schedule 5 to this Act;

(b)apply any such provision with or without modifications;

(c)make provision corresponding or similar to any such provision.

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

26 Transfer of staff to further education corporations.E+W

(1)This section applies to any person who immediately before the operative date in relation to a further education corporation established to conduct an institution which, on the date the corporation was established, was maintained by a [F1local authority] F45... —

(a)is employed by the transferor to work solely at the institution the corporation is established to conduct, or

(b)is employed by the transferor to work at that institution and is designated for the purposes of this section by an order made by the Secretary of State.

(2)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.

(3)Without prejudice to subsection (2) above—

(a)all the transferor’s rights, powers, duties and liabilities under or in connection with a contract to which that subsection applies shall by virtue of this section be transferred to the corporation on the operative date, and

(b)anything done before that date by or in relation to the transferor in respect of that contract or the employee shall be deemed from that date to have been done by or in relation to the corporation.

(4)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.

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

(6)References in this section, in relation to a further education corporation, to the transferor are—

(a)in relation to a corporation established to conduct an institution which, on the date on which it was established, was maintained by a [F1local authority], [F46references to that authority, and],

[F47(b)in relation to a corporation established to conduct an institution which, on that date, was a foundation or voluntary aided school, references to the governing body of that school.]

(7)For the purposes of this section—

(a)a person employed by the transferor is to be regarded as employed to work at an institution if his employment with the transferor for the time being involves work at that institution, and

(b)subject to subsection (8) below, a person employed by the transferor is to be regarded as employed to work solely at an institution if his only employment with the transferor (disregarding any employment under a separate contract with the transferor) is for the time being at that institution.

(8)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.

F48(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Dissolution of further education corporationsE+W

27 Dissolution of further education corporations.E+W

(1)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.

(2)Such property, rights and liabilities may be transferred to—

(a)any person appearing to the Secretary of State to be wholly or mainly engaged in the provision of educational facilities or services of any description, or

(b)any body corporate established for purposes which include the provision of such facilities or services,

with the consent of the person or body in question.

(3)Such property, rights and liabilities may be transferred to—

[F49(a)the [F50Chief Executive of Skills Funding], in the case of a further education corporation in England], or

(b)a higher education funding council.

(4)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.

(5)In subsection (4) above “charity” and “charitable purposes” have the same meanings as in [F51the Charities Act 1993].

(6)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.

(7)Before making an order under this section in respect of a further education corporation the Secretary of State shall consult—

(a)the corporation, and

(b)the appropriate [F52body], unless the order was made for the purpose of giving effect to a proposal of that [F52body].

[F53(7A)Before making an order under this section in respect of a further education corporation in England, the Secretary of State must also consult the YPLA.]

[F54(8)Nothing in this section requires the National Assembly to consult itself.]

Designation of institutions for funding by the councilsE+W

28 Designation of institutions.E+W

(1)The Secretary of State may by order designate [F55for the purposes of this section] any educational institution principally concerned with the provision of one or both of the following—

(a)full-time education suitable to the requirements of persons over compulsory school age who have not attained the age of nineteen years, and

(b)courses of further or higher education,

if the institution meets the requirements of subsection (2) below.

(2)The institution must be one of the following—

(a)a voluntary aided school [F56(other than one belonging to a group of schools for which a foundation body acts under section 21 of the School Standards and Framework Act 1998)],

F57(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)an institution which is grant-aided or eligible to receive aid by way of grant [F58or

(d)an institution established for the purpose of being principally concerned with the provision of one or both of the kinds of education specified in subsection (1) above.]

(3)For the purposes of subsection (2)(c) above an institution is grant-aided or eligible to receive aid by way of grant if it is maintained by persons other than [F1local authorities] who—

(a)receive any grants under regulations made under [F59section 485 of the Education Act 1996], or

(b)are eligible to receive such grants.

[F60(3A)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 [F1local authority].]

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

29 Government and conduct of designated institutions.E+W

(1)This section has effect in relation to any designated institution, other than—

(a)an institution conducted by a company, or

(b)an institution conducted by an unincorporated association if the order designating the institution provides for its exemption.

(2)For each institution in relation to which this section has effect there shall be—

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

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

each of which meets the requirements of [F61subsections (3) and (7A)] below.

(3)Those requirements are that the instrument—

(a)was in force when the designation took effect and is approved for the purposes of this section by the Secretary of State,

(b)is made in pursuance of a power under a regulatory instrument, or is made under subsection (5) below, and is approved for the purposes of this section by the Secretary of State, or

(c)is made under subsection (6) below.

(4)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.

(5)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.

(6)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.

(7)If an instrument approved by the Secretary of State for the purposes of this section—

(a)falls within subsection (3)(a) above or was made in pursuance of a power under a regulatory instrument and, apart from this section, there is no power to modify it, or

(b)was made by the governing body of the institution,

the instrument may be modified by the governing body.

[F62(7A)Provision made by the instrument in relation to the appointment of members of the governing body shall take into account the members who may be appointed by—

[F63(a)the Chief Executive of Skills Funding under section 56AA,] or

(b)the [F64National Assembly for Wales] under section 39 of [F65the Learning and Skills Act 2000].]

(8)The Secretary of State may by order modify[F66, 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 modified[F66, replaced or revoked] by any other person without the Secretary of State’s consent.

(9)Before exercising any power under subsection (6) or (8) above in relation to any instrument the Secretary of State shall consult—

(a)the governing body of the institution, and

(b)where there is such a power as is mentioned in subsection (3)(b) above to make or, as the case may be, modify the instrument and the persons having that power are different from the governing body of the institution, the persons having the power,

so far as it appears to him to be practicable to do so.

[F6730 Special provision for certain institutions.E+W

(1)Notwithstanding anything in section 29 of this Act, the instrument of government of a designated institution to which this section applies must provide—

(a)for the governing body of the institution to include persons appointed for the purpose of securing so far as practicable that the established character of the institution at the time of its designation is preserved and developed and, in particular, that the institution is conducted in accordance with any trust deed relating to it, and

(b)for the majority of members of the governing body to be such governors.

(2)This section applies to—

(a)an institution which, when designated, was a voluntary aided school, and

(b)an institution specified, or falling within a class specified, by the Secretary of State by order.

(3)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.

(4)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.]

31 Designated institutions conducted by companies.E+W

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

(2)The articles of association of the company shall incorporate—

(a)provision with respect to the constitution of a governing body of the institution (to be known as the instrument of government of the institution), and

(b)provision with respect to the conduct of the institution (to be known as the articles of government of the institution).

[F68(2A)Provision made by the articles of association of the company in relation to the appointment of members of the governing body shall take into account the members who may be appointed by—

[F69(a)the Chief Executive of Skills Funding under section 56AA,] or

(b)the [F70National Assembly for Wales] under section 39 of [F71the Learning and Skills Act 2000].]

(3)The Secretary of State may give to the persons who appear to him to have effective control over the company such directions as he thinks fit for securing that—

(a)the [F72articles of association] of the company, or

(b)any rules or bye-laws made in pursuance of any power conferred by the articles of association of the company,

are amended in such manner as he may specify in the direction.

(4)No amendment of the [F73articles 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.

(5)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.

32 Transfer of property, etc., to designated institutions.E+W

(1)This section has effect in relation to an institution designated under section 28 of this Act in any case where—

(a)the order designating the institution under that section so provides, and

(b)when designated the institution was a voluntary aided school or an institution (other than a school) assisted by a [F1local authority].

(2)Subject to subsection (4) below and section 36 of this Act, on the designation date—

(a)all land or other property which, immediately before that date, was property of a former assisting authority used or held for the purposes of the institution, and

(b)all rights and liabilities of that authority 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 appropriate transferees.

F74(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)In this section and section 33 of this Act—

• “appropriate transferees” means—

  (a)

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

  (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—

  (a)

  in relation to an institution which when designated was a voluntary aided school, the [F1local authority] which maintained the school, and

  (b)

  in relation to an institution which when designated was an institution (other than a school) assisted by a [F1local authority], that authority.

(4)Subsection (2) above shall not apply to—

(a)any liability of a former assisting authority in respect of the principal of, or interest on, any loan, or

(b)any property, rights or liabilities excluded under subsections (5) or (6) below.

(5)If before the designation date—

(a)the appropriate transferees and the former assisting authority have agreed in writing to exclude any land, and

(b)the Secretary of State has given his written approval of the agreement,

the land, and any rights or liabilities relating to it, shall be excluded.

(6)If in default of agreement under subsection (5) above—

(a)the appropriate transferees or the former assisting authority have applied to the Secretary of State to exclude any land, and

(b)the Secretary of State has by order directed its exclusion,

the land, and any rights or liabilities relating to it, shall be excluded.

(7)An agreement under subsection (5) above may provide for the land to be used for the purposes of the institution on such terms as may be specified in or determined in accordance with the agreement; and directions under subsection (6) above—

(a)may confer any rights or impose any liabilities that could have been conferred or imposed by such an agreement, and

(b)shall have effect as if contained in such an agreement.

(8)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.

33 Provisions supplementary to section 32.E+W

(1)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.

(2)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.

(3)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).

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

[F75Sixth form college corporations: EnglandE+W+S

33AInitial designation of existing bodies corporate as sixth form college corporationsE+W+S

(1)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.

(2)A body corporate is within this subsection if it is—

(a)a further education corporation established in respect of an institution in England, or

(b)a body corporate established by an order under section 143(4) of the Learning and Skills Act 2000 in respect of an institution in England.

(3)On the date specified in the order—

(a)a body corporate within subsection (2)(a) ceases to be a further education corporation and becomes a sixth form college corporation;

(b)a body corporate within subsection (2)(b) ceases to be subject to the order under section 143(4) of the Learning and Skills Act 2000 establishing it and becomes a sixth form college corporation;

(c)in the case of a body corporate within subsection (2)(b), a designation under section 28 which has effect in relation to the relevant sixth form college ceases to have effect.

(4)An order under subsection (1) may—

(a)make provision for the continuity of the body corporate, including provision for the continuation of the instrument and articles of government of the body and the relevant sixth form college;

(b)make provision as to the initial name of the corporation as a sixth form college corporation.

(5)The power conferred by subsection (1)—

(a)is exercisable only once;

(b)is not exercisable after the date specified in an order made by the Secretary of State.

33BSubsequent designation of existing bodies corporate as sixth form college corporationsE+W+S

(1)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.

(2)A body corporate is within this subsection if it is—

(a)a further education corporation established in respect of an institution in England, or

(b)a body corporate established by an order under section 143(4) of the Learning and Skills Act 2000 in respect of an institution in England.

(3)An order under subsection (1) may be made only if—

(a)an application for the order has been made by the governing body of the institution mentioned in subsection (2)(a) or (b), and

(b)the institution is one within subsection (4).

(4)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.

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

(6)On the date specified in the order—

(a)a body corporate within subsection (2)(a) ceases to be a further education corporation and becomes a sixth form college corporation;

(b)a body corporate within subsection (2)(b) ceases to be subject to the order under section 143(4) of the Learning and Skills Act 2000 establishing it and becomes a sixth form college corporation;

(c)in the case of a body corporate within subsection (2)(b), a designation under section 28 which has effect in relation to the relevant sixth form college ceases to have effect.

(7)An order under subsection (1) may—

(a)make provision for the continuity of the body corporate, including provision for the continuation of the instrument and articles of government of the body and the relevant sixth form college;

(b)make provision as to the initial name of the corporation as a sixth form college corporation.

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

33CEstablishment of new bodies corporate as sixth form college corporationsE+W+S

(1)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.

(2)An order under subsection (1) may be made only if—

(a)a proposal relating to the order has been made by the responsible [F1local authority] and it appears to the Secretary of State that the requirements in subsection (3) have been met in relation to the proposal, and

(b)it appears to the Secretary of State that the institution will when established be one within subsection (4).

(3)The requirements are that—

(a)the authority have published the proposal by the prescribed time and in the prescribed manner;

(b)the proposal as published contained prescribed information;

(c)the authority have considered any representations about the proposal made to them within the prescribed period.

(4)An institution is within this subsection if—

(a)the institution is in England, and

(b)on the date on which it is proposed to be established, at least 80% of its total enrolment number will be persons over compulsory school age but under 19.

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

(6)An order under subsection (1)—

(a)must provide for the institution to be established and conducted by the body corporate as from the date specified in the order;

(b)may make provision as to the initial name of the corporation as a sixth form college corporation.

33DConversion of sixth form college corporations into further education corporationsE+W+S

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

(2)An order under subsection (1) may be made only if—

(a)an application for the order has been made by the governing body of the relevant sixth form college, or

(b)the Secretary of State is satisfied that it is no longer appropriate for the body to be a sixth form college corporation.

(3)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.

(4)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).

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

(6)An order under subsection (1) may—

(a)make provision for the continuity of the body corporate, including provision for the continuation of the instrument and articles of government of the body and the relevant sixth form college;

(b)make provision as to the initial name of the corporation as a further education corporation.

33EPrincipal powers of a sixth form college corporationE+W+S

(1)A sixth form college corporation may do any of the following—

(a)provide further and higher education,

(b)provide secondary education suitable to the requirements of persons who have attained the age of 14,

(c)provide education which is secondary education by virtue of section 2(2B) of the Education Act 1996,

(d)participate in the provision of secondary education at a school,

(e)supply goods or services in connection with their provision of education.

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

(3)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 [F1local authorities] as they consider appropriate.

(4)For the purposes of subsection (1), goods are supplied in connection with the provision of education by a sixth form college corporation if they result from—

(a)their provision of education or anything done by them under this Act for the purpose of or in connection with their provision of education,

(b)the use of their facilities or the expertise of persons employed by them in the fields in which they are so employed, or

(c)ideas of a person employed by them, or one of their students, arising out of their provision of education.

(5)For the purposes of subsection (1), services are supplied in connection with the provision of education by a sixth form college corporation if—

(a)they result from their provision of education or anything done by them under this Act for the purpose of or in connection with their provision of education,

(b)they are provided by making available their facilities or the expertise of persons employed by them in the fields in which they are so employed, or

(c)they result from ideas of a person employed by them, or of one of their students, arising out of their provision of education.

33FSupplementary powers of a sixth form college corporationE+W+S

(1)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.

(2)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.

(3)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.

(4)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.

(5)The facilities include—

(a)boarding accommodation and recreational facilities for students and staff, and

(b)facilities to meet the needs of students with learning difficulties.

(6)A sixth form college corporation may—

(a)acquire and dispose of land and other property,

(b)enter into contracts, including in particular—

(i)contracts for the employment of teachers and other staff for the purposes of or in connection with carrying on any activities undertaken in the exercise of their principal powers, and

(ii)contracts with respect to the carrying on by the corporation of any such activities,

(c)form, participate in forming or invest in a company,

(d)form, participate in forming or otherwise become a member of a charitable incorporated organisation (within the meaning of section 69A of the Charities Act 1993),

(e)borrow such sums as the corporation think fit for the purposes of—

(i)carrying on any activities they have power to carry on, or

(ii)meeting any liability transferred to them under sections 23 to 27,

(f)in connection with their borrowing, grant any mortgage, charge or other security in respect of any land or other property of the corporation,

(g)invest any sums not immediately required for the purpose of carrying on any activities they have power to carry on,

(h)accept gifts of money, land or other property and apply it, or hold and administer it on trust for, any of those purposes,

(i)do anything incidental to the conduct of an educational institution providing further or higher education, including founding scholarships or exhibitions, making grants and giving prizes.

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

(8)For the purposes of this section a person has a learning difficulty if—

(a)the person has a significantly greater difficulty in learning than the majority of persons of the same age, or

(b)the person has a disability which either prevents or hinders the person from making use of facilities of a kind generally provided by institutions within the further education sector for persons of the same age.

(9)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.

(10)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.

(11)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.

33GFurther provision about supplementary powersE+W+S

(1)The power conferred by section 33F(6)(c) may not be exercised for the purpose of—

(a)conducting an educational institution, or

(b)investing in a company conducting an educational institution.

(2)The power conferred by section 33F(6)(d) may not be exercised for the purpose of—

(a)conducting an educational institution, or

(b)becoming a member of a charitable incorporated organisation conducting an educational institution.

(3)But a restriction on the exercise of a power imposed by subsection (1) or (2) does not apply to the extent that the responsible [F1local authority] consent to the exercise of the power in a way which does not comply with the restriction.

(4)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.

(5)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.

(6)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 [F1local authority].

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

(8)In this section “relevant funding body” means a [F1local authority], the YPLA or the Chief Executive of Skills Funding.

33HDuty in relation to promotion of well-being of local areaE+W+S

(1)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.

(2)In subsection (1)—

(a)“the local area”, in relation to a sixth form college corporation, means the locality of the relevant sixth form college, and

(b)a reference to the well-being of an area includes a reference to the well-being of people who live or work in that area.

33IConstitution of sixth form college corporation and conduct of sixth form collegeE+W+S

(1)For every sixth form college corporation there is to be—

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

(b)an instrument in accordance with which the corporation, and the relevant sixth form college, are to be conducted (to be known as articles of government).

(2)Instruments of government and articles of government—

(a)must comply with the requirements of Schedule 4, and

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

(3)Subsection (2) is subject to section 33J.

(4)The validity of any proceedings of a sixth form college corporation, or of any committee of the corporation, is not affected by—

(a)a vacancy among the members, or

(b)a defect in the appointment or nomination of a member.

(5)Subsection (6) applies to a document purporting to be an instrument made or issued by or on behalf of a sixth form college corporation and to be—

(a)duly executed under the seal of the corporation, or

(b)signed or executed by a person authorised by the corporation to act in that behalf.

(6)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.

33JSpecial provision for certain institutionsE+W+S

(1)Despite anything in section 33I, the instrument of government of a sixth form college corporation to which this section applies must provide—

(a)for the governing body of the relevant sixth form college to include persons appointed for the purpose of securing so far as practicable that the established character of the sixth form college is preserved and developed and, in particular, that the sixth form college is conducted in accordance with any trust deed relating to it, and

(b)for the majority of members of the governing body of the relevant sixth form college to be such governors.

(2)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.

(3)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.

33KInstrument and articles of new sixth form college corporationsE+W+S

(1)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.

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

33LChanges to instruments and articlesE+W+S

(1)The YPLA may—

(a)if a sixth form college corporation submits 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 it thinks fit, and

(b)if a sixth form college corporation submits draft modifications of an instrument made under paragraph (a), by order modify the instrument in terms of the draft or in such terms as it thinks fit.

(2)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.

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

(4)An order under subsection (3)—

(a)may relate to all sixth form college corporations, to a category of sixth form college corporations specified in the order or to a sixth form college corporation specified in the order, but

(b)may not be made unless the YPLA has consulted each sixth form college corporation to which the order relates.

(5)A sixth form college corporation may, with the consent of the YPLA—

(a)make new articles of government in place of their existing articles, or

(b)modify their existing articles.

(6)The YPLA may by a direction under this section require sixth form college corporations, a class of sixth form college corporations specified in the direction or any particular sixth form college corporation specified in the direction—

(a)to modify, replace or revoke their articles of government in any manner specified in the direction, or

(b)to secure that any rules or bye-laws made in pursuance of their articles of government are modified, replaced or revoked in any manner specified in the direction.

(7)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.

33MCharitable status of a sixth form college corporationE+W+S

A sixth form college corporation is a charity within the meaning of the Charities Act 1993.

33NDissolution of sixth form college corporationsE+W+S

(1)Subject to the following provisions of this section, the Secretary of State may by order provide for—

(a)the dissolution of a sixth form college corporation, and

(b)the transfer to a person mentioned in subsection (4) or (6) of property, rights and liabilities of the corporation.

(2)An order under subsection (1) may be made only if a proposal relating to the order has been made by the responsible [F1local authority] and it appears to the Secretary of State that the requirements in subsection (3) have been met in relation to the proposal.

(3)The requirements are that—

(a)the authority have published the proposal by the prescribed time and in the prescribed manner;

(b)the proposal as published contained prescribed information;

(c)the authority have considered any representations about the proposal made to them within the prescribed period.

(4)Property, rights and liabilities may (subject to subsection (5)) be transferred to—

(a)a person appearing to the Secretary of State to be wholly or mainly engaged in the provision of educational facilities or services of any description, or

(b)a body corporate established for purposes which include the provision of such facilities or services.

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

(6)Property, rights and liabilities may be transferred to the responsible [F1local authority].

(7)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.

(8)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).

(9)Before making an order under this section in respect of a sixth form college corporation the Secretary of State must consult—

(a)the corporation, and

(b)the YPLA.

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

Property, rights and liabilities: generalE+W+S

34 Making additional property available for use.E+W

(1)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 [F76other than a sixth form college] (referred to in this section as the “new sector institution”) if the requirements of subsection (2) below are satisfied.

(2)Those requirements are that in the opinion of the Secretary of State—

(a)the property—

(i)either has within the preceding six months been used for the purpose of the provision of further education by an institution maintained by a [F1local authority] but its use for that purpose has been discontinued or the [F1local authority] intend its use for that purpose to be discontinued, or

(ii)is being used for that purpose but the [F1local authority] intend its use for that purpose to be discontinued, and

(b)it is necessary or desirable for the property to be available for use for the purposes of the new sector institution but the governing body of that institution have been unable to secure agreement with the local authority, on such terms as may reasonably be required, to secure that the property is so available.

(3)The Secretary of State shall not make an order under this section unless—

(a)the governing body of the new sector institution have applied to him, before the end of the period of three years beginning with the date which is the operative date in relation to further education corporations established under section 15 of this Act, for such an order to be made, and

(b)he has consulted the [F77appropriate body], the local authority and the Education Assets Board.

(4)For the purpose of making any property available for use for the purposes of an institution, an order under this section may—

(a)transfer to, and vest in, the governing body—

(i)the property concerned, and

(ii)any rights or liabilities of the local authority acquired or incurred for the purpose of the provision of further education there, or

(b)confer any rights or impose any liabilities and, to the extent (if any) that the order does so, it shall have effect as if contained in an agreement between the local authority and the governing body.

(5)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.

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

[F78(7)Nothing in this section requires the National Assembly to consult itself.]

35 Voluntary transfers of staff in connection with section 34.E+W+S

(1)This section applies where—

(a)for the purpose of making any property of a local authority available for use for the purposes of an institution within the further education sector, an order is made under section 34 of this Act,

(b)at any time on or after such date as may be specified by the order a person employed by the local authority ceases to be so employed and is subsequently employed by the governing body of the institution, and

(c)by virtue of [F79section 138 of the Employment Rights Act 1996] (renewal or re-engagement) that subsequent employment precludes his receiving any redundancy payment under [F79Part XI] of that Act.

(2)[F80Chapter I of Part XIV of] that Act (computation of period of employment for the purposes of that Act) shall have effect in relation to that person as if it included the following provisions—

(a)the period of employment of that person with the local authority shall count as a period of employment with the governing body, and

(b)the change of employer shall not break the continuity of the period of employment.

(3)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.

36 General provisions about transfers under Chapter II.E+W

(1)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.

(2)Where any land or other property or rights—

(a)were immediately before the operative date in relation to any institution held on trust for any particular purposes, or (as the case may be) for the general purposes, of the institution, and

(b)fall to be transferred under any transfer to which this section applies,

they shall continue to be so held by the transferee.

(3)Schedule 5 to this Act has effect for the purpose of—

(a)dividing and apportioning property, rights and liabilities which fall to be transferred under any transfer to which this section applies where that property has been used or held, or the rights or liabilities have been acquired or incurred, for the purposes of more than one educational institution,

(b)excluding from transfer in certain circumstances property, rights and liabilities which would otherwise fall to be transferred under any such transfer,

(c)providing for identifying and defining the property, rights and liabilities which fall to be so transferred, and

(d)making supplementary and consequential provisions in relation to transfers to which this section applies.

(4)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.

(5)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.

(6)Where in accordance with that Schedule anything falls to be or may be done by the Board for the purposes of or in connection with any such transfer—

(a)it may not be done by the transferee, and

(b)in doing it the Board shall be regarded as acting on behalf and in the name of the transferee,

and in a case where the transferee is a body corporate established under this Act paragraph (b) above applies both in relation to things done before and in relation to things done after that body is established under this Act.

(7)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.

(8)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.

[F81(9)In subsection (4) “local authority” includes a non-metropolitan district council for an area for which there is a county council.]

F8237 Attribution of surpluses and deficits.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

38 Payments F83... in respect of loan liabilities.E+W

(1)This section applies to any excepted loan liability, that is, any liability of a local authority which—

(a)in the case of a transfer by virtue of section 23 of this Act, would have been transferred but for subsection (3)(a) of that section,

(b)in the case of a transfer by virtue of section 32 of this Act, would have been transferred but for subsection (4)(a) of that section, or

(c)in the case of a transfer by virtue of section 34(4)(a) of this Act, could have been transferred but for subsection (5) of that section.

(2)[F84The [F85YPLA or the Chief Executive of Skills Funding]] may make payments, on such terms and conditions as the [F86YPLA or the Chief Executive] may determine, to a local authority in respect of the principal of, and any interest on, any excepted loan liability of that authority.

(3)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.

(4)The Secretary of State may by order provide for determining—

(a)the amounts that may be paid under this section in respect of the principal of, and any interest on, any excepted loan liability,

(b)the instalments by which any amounts may be paid, and

(c)the rate at which interest may be paid on any outstanding amounts,

and, in the case of any payment to which such an order applies, no amount may be paid under this section in excess of any amount determined in accordance with the order.

[F87(5)In this section “local authority” includes a non-metropolitan district council for an area for which there is a country council.]

39 Control of disposals of land.E+W

F88. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40 Wrongful disposals of land.E+W

F89. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41 Control of contracts.E+W

F90. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

42 Wrongful contracts.E+W

F91. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F9243 Remuneration of employees.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

MiscellaneousE+W

44 Collective worship.E+W

[F93(1)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.

(2)An institution is of voluntary origin for the purposes of this section if—

(a)immediately before it joined the further education sector it was a voluntary school (within the meaning of the Education Act 1996),

(b)immediately before it joined the further education sector it was a foundation or voluntary school (within the meaning of the School Standards and Framework Act 1998) having a foundation established otherwise than under that Act,

(c)it is designated for the purposes of this paragraph by order of the Secretary of State, or

(d)it is formed by or for the purpose of merging two institutions both of which were within paragraphs (a) to (c).

(2A)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.]

(3)In an institution of voluntary origin such act of collective worship shall —

(a)be in such forms as to comply with the provisions of any trust deed affecting the institution, and

(b)reflect the religious traditions and practices of the institution before it [F94joined the further education sector].

(4)In all [F95other 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.

(5)If the governing body of [F96an 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.

F97(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F98(7)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).]

45 Religious education.E+W

[F99(1)This section applies to any institution to which section 44 of this Act applies.

(2)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.

(2A)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.]

(3)The governing body of [F100an 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.

(4)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.

(5)The form and content of religious education provided pursuant to this section shall be determined from time to time by the governing body of [F101institution to which this section applies] and—

(a)in the case of an institution of voluntary origin—

(i)shall be in accordance with the provisions of any trust deed affecting the institution, and

(ii)shall not be contrary to the religious traditions of the institution before it [F102joined the further education sector];

(b)in the case of all [F103other institutions to which this section applies]shall reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain.

F104(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F105(7)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).]

46 Variation of trust deeds.E+W

(1)The Secretary of State may by order make such modifications as he thinks fit in any trust deed or other instrument—

(a)relating to or regulating an institution within the further education sector, or

(b)relating to any land or other property held by any person for the purposes of such an institution.

(2)Before making any modifications under subsection (1) above of any trust deed or other instrument the Secretary of State shall so far as it appears to him to be practicable to do so consult—

(a)the governing body of the institution,

(b)where that deed or instrument, or any other instrument relating to or regulating the institution concerned, confers power on any other persons to modify or replace that deed or instrument, those persons, and

(c)where the instrument to be modified is a trust deed and the trustees are different from the persons mentioned in paragraphs (a) and (b) above, the trustees.

47 Transfer of higher education institutions to further education sector.E+W

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

(2)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 [F106provision as to the initial name of the corporation as a further education corporation.]

(3)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.

(4)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).

48 Statutory conditions of employment.E+W

F107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49 Avoidance of certain contractual terms.E+W

(1)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.

(2)In so far as a contract to which this section applies provides that the employee—

(a)shall not be dismissed by reason of redundancy, or

(b)if he is so dismissed, shall be paid a sum in excess of the sum which the employer is liable to pay to him under [F108Part XI of the Employment Rights Act 1996],

the contract shall be void and of no effect.

[F10949AConsultationE+W

(1)In exercising their functions the governing body of an institution within the further education sector must have regard to any guidance given from time to time by the appropriate authority about consultation with—

(a)persons who are or are likely to become students of the institution, or

(b)employers,

in connection with the taking of decisions affecting them.

(2)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.

(3)In this section “the appropriate authority” means—

(a)in relation to an institution in England, the Secretary of State, and

(b)in relation to an institution in Wales, the Welsh Ministers.]

50 Information with respect to institutions within the further education sector.E+W

(1)The Secretary of State may by regulations require the governing body of any institution within the further education sector to publish such information as may be prescribed about—

(a)the educational provision made or proposed to be made for their students,

(b)the educational achievements of their students on entry to the institution and the educational achievements of their students while at the institution (including in each case the results of examinations, tests and other assessments),

(c)the financial and other resources of the institution and the effectiveness of the use made of such resources, and

(d)the careers of their students after completing any course or leaving the institution.

(2)For the purposes of subsection (1)(d) above, a person’s career includes any education, training, employment or occupation; and the regulations may in particular require the published information to show—

(a)the numbers of students not undertaking any career, and

(b)the persons providing students with education, training or employment.

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

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

(5)In this section “prescribed” means prescribed by regulations.

51 Publication of proposals.E+W

(1)[F110The [F111Chief Executive of Skills Funding]] shall not make a proposal for—

(a)the establishment by the Secretary of State of a body corporate under section 16(1) of this Act,

(b)the establishment by the Secretary of State of a body corporate under subsection (3) of that section, or

(c)the dissolution of any further education corporation by the Secretary of State under section 27 of this Act,

unless the following conditions have been complied with.

(2)The conditions are that—

(a)a draft of the proposal, or of a proposal in substantially the same form, giving such information as may be prescribed has been published by such time and in such manner as may be prescribed,

(b)[F112the] [F113Chief Executive of Skills Funding has] considered any representations about the draft made to [F113the Chief Executive] within the prescribed period, and

(c)copies of the draft and of any such representations have been sent to the Secretary of State.

(3)The Secretary of State shall not make—

(a)an order under section 16(1) of this Act, other than an order made for the purpose of giving effect to a proposal by [F114the [F115Chief Executive of Skills Funding]], or

[F116(b)an order under section 16(3) of this Act, other than an order made for the purpose of giving effect to a proposal by [F117the [F118Chief Executive]],]

unless he has published a draft of the proposed order, or of an order in substantially the same form, by such time and in such manner as may be prescribed.

[F119(3A)A draft proposal or order in respect of an institution which is maintained by a [F1local authority] shall not be published without the consent of the governing body and the [F1local authority].]

(4)In this section “prescribed” means prescribed by regulations.

[F12051ADuty to provide for named individuals: EnglandE+W

(1)This section applies to an institution in England within the further education sector which provides education suitable to the requirements of persons over compulsory school age but under the age of 19.

(2)A [F1local authority] may by notice given to the governing body of such an institution—

(a)require them to provide specified individuals with such education falling within subsection (1) as is appropriate to the individuals' abilities and aptitudes;

(b)withdraw such a requirement.

(3)A [F1local authority] may specify an individual in a notice under subsection (2) only if the individual—

(a)is in the authority's area, and

(b)is over compulsory school age but under the age of 19.

(4)Before giving a notice under subsection (2) imposing a requirement on a governing body, a [F1local authority] must consult—

(a)the governing body, and

(b)such other persons as the authority think appropriate.

(5)The governing body of an institution within subsection (1) must secure compliance with a requirement that has been imposed under subsection (2) and has not been withdrawn.

(6)In deciding whether to require a particular institution to provide education to a particular individual under subsection (2) a [F1local authority] in England must have regard to any guidance given from time to time by the Secretary of State.]

52 Duty to provide for named individuals[F121: Wales]E+W

(1)This section applies where an institution [F122in Wales] within the further education sector provides F123... education suitable to the requirements of persons over compulsory school age who have not attained the age of nineteen years.

(2)[F124The F125... National Assembly for Wales] may by notice given to the governing body of such an institution—

(a)require them to provide for such individuals as may be specified in the notice such education falling within subsection (1) above as is appropriate to their abilities and aptitudes, or

(b)withdraw such a requirement.

(3)The governing body of such an institution shall, for any academic year in respect of which they receive financial support from [F126the F127... 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 [F128the F129... National Assembly for Wales] under subsection (2) above and has not been withdrawn.

[F13052A Duty to safeguard pupils receiving secondary education.E+W

(1)This section applies where secondary education is provided to [F131persons of compulsory school age]—

(a)by a further education corporation [F132by virtue of section 18(1)(aa) or (ab) of this Act],

[F133(aa)by a sixth form college corporation by virtue of section 33E(1)(b) or (c) of this Act,] or

(b)by a designated institution in pursuance of arrangements made—

(i)by a [F1local authority], or

(ii)by the governing body of a school on behalf of such an authority.

(2)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 [F134persons of compulsory school age] are for the time being receiving secondary education.]

53 Inspection of accounts.E+W

(1)The accounts of—

(a)any further education corporation,

[F135(aa)any sixth form college corporation,] and

(b)any designated institution,

shall be open to the inspection of the Comptroller and Auditor General.

(2)In the case of any such corporation or institution—

(a)the power conferred by subsection (1) above, and

(b)the powers under sections 6 and 8 of the M5National Audit Act 1983 (examinations into the economy, efficiency and effectiveness of certain bodies and access to documents and information) conferred on the Comptroller and Auditor General by virtue of section 6(3)(c) of that Act,

shall be exercisable only in, or in relation to accounts or other documents which relate to, any financial year in which expenditure is incurred by the corporation, or by the governing body of the institution in question, in respect of which grants, loans or other payments are made to them under [F136section 15ZA of the Education Act 1996, section 14 of the Education Act 2002 or section 61 or 100 of the Apprenticeships, Skills, Children and Learning Act 2009].