Further and Higher Education Act 1992

Property, rights and liabilities: general E+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 [F1 other 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 [F2 local authority] but its use for that purpose has been discontinued or the [F2 local authority] intend its use for that purpose to be discontinued, or

(ii) is being used for that purpose but the [F2 local 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 [F3 appropriate 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.

[F4 (7) Nothing in this section requires the National Assembly to consult itself.]

Textual Amendments

F1 Words in s. 34(1) inserted (1.4.2010) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), s. 269(4), Sch. 8 para. 4; S.I. 2010/303, art. 3, Sch. 2

F2 Words in Act substituted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), Sch. 2 para. 5(2)

F3 Words in s. 34(3)(b) substituted (1.4.2006) by The National Council for Education and Training for Wales (Transfer of Functions to the National Assembly for Wales and Abolition) Order 2005 (S.I. 2005/3238), art. 1(1), Sch. 1 para. 19(a) (with art. 7)

F4 S. 34(7) inserted (1.4.2006) by The National Council for Education and Training for Wales (Transfer of Functions to the National Assembly for Wales and Abolition) Order 2005 (S.I. 2005/3238), art. 1(1), Sch. 1 para. 19(b) (with art. 7)

Modifications etc. (not altering text)

C1 S. 34 modified (1.1.2001) by S.I. 2000/3209, reg. 9 (with savings in regs. 13, 14)

C2 S. 34(4) modified (1.4.1993) by S.I. 1993/563, art. 2, Sch.1

Commencement Information

I1 S. 34 wholly in force at 1.4.1993 see s. 94(3) and S.I. 1992/831, art. 2, Sch. 3

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 [F5 section 138 of the Employment Rights Act 1996] (renewal or re-engagement) that subsequent employment precludes his receiving any redundancy payment under [F5 Part XI] of that Act.

(2) [F6 Chapter 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.

Textual Amendments

F5 Words in s. 35(1)(c) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 52(2)(a)(i)(ii) (with ss. 191-195, 202)

F6 Words in s. 35(2) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 52(2)(b) (with ss. 191-195, 202)

Modifications etc. (not altering text)

C3 S. 35 modified (1.4.1993) by S.I. 1993/563, art. 2, Sch. 1

Commencement Information

I2 S. 35 wholly in force at 1.4.1993 see s. 94(3) and S.I. 1992/831, art. 2, Sch. 3

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.

[F7 (9) In subsection (4) “local authority” includes a non-metropolitan district council for an area for which there is a county council.]

Textual Amendments

F7 S. 36(9) inserted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), art. 1, Sch. 2 para. 5(5)

Modifications etc. (not altering text)

C4 S. 36 modified (1.1.2001) by S.I. 2000/3209, reg. 9 (with savings in regs. 13, 14)

Commencement Information

I3 S. 36 wholly in force at 30.9.1992 see s. 94(3) and S.I. 1992/831, art. 2, Sch. 2

F8 37 Attribution of surpluses and deficits. E+W

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Textual Amendments

F8 S. 37 repealed (1.4.2010) by The Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments) (England and Wales) Order 2010 (S.I. 2010/1080), art. 1(2)(a)(b), Sch. 1 para. 92, Sch. 2 Pt. 2 (with art. 2(3))

38 Payments F9 ... 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) [F10 The [F11 YPLA or the Chief Executive of Skills Funding]] may make payments, on such terms and conditions as the [F12 YPLA 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.

[F13 (5) In this section “local authority” includes a non-metropolitan district council for an area for which there is a country council.]

Textual Amendments

F9 Words in s. 38 heading repealed (1.4.2010) by The Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments) (England and Wales) Order 2010 (S.I. 2010/1080), art. 1(2)(a)(b), Sch. 1 para. 20(b), Sch. 2 Pt. 1 (with art. 2(3))

F10 Words in s. 38(2) substituted (1.4.2006) by The National Council for Education and Training for Wales (Transfer of Functions to the National Assembly for Wales and Abolition) Order 2005 (S.I. 2005/3238), art. 1(1), Sch. 1 para. 20 (with art. 7)

F11 Words in s. 38(2) substituted (1.4.2010) by The Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments) (England and Wales) Order 2010 (S.I. 2010/1080), art. 1(2)(a), Sch. 1 para. 20(a)(i) (with art. 2(3))

F12 Words in s. 38(2) substituted (1.4.2010) by The Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments) (England and Wales) Order 2010 (S.I. 2010/1080), art. 1(2)(a), Sch. 1 para. 20(a)(ii) (with art. 2(3))

F13 S. 38(5) inserted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), art. 1, Sch. 2 para. 5(6)

Commencement Information

I4 S. 38 wholly in force at 1.4.1993 see s. 94(3) and S.I. 1992/831, art. 2, Sch. 3

39 Control of disposals of land. E+W

F14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F14 S. 39 repealed (1.10.2002 for E. and 19.12.2002 for W.) by Education Act 2002 (c. 32), s. 215, Sch. 21 para. 16, Sch. 22 Pt. 3; S.I. 2002/2439, art. 3; S.I. 2002/3185, art. 4, Sch. Pt. 1

40 Wrongful disposals of land. E+W

F15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F15 S. 40 repealed (1.10.2002 for E. and 19.12.2002 for W.) by Education Act 2002 (c. 32), s. 215, Sch. 21 para. 16, Sch. 22 Pt. 3; S.I. 2002/2439, art. 3; S.I. 2002/3185, art. 4, Sch. Pt. 1

41 Control of contracts. E+W

F16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F16 S. 41 repealed (1.10.2002 for E. and 19.12.2002 for W.) by Education Act 2002 (c. 32), s. 215, Sch. 21 para. 16, Sch. 22 Pt. 3; S.I. 2002/2439, art. 3; S.I. 2002/3185, art. 4, Sch. Pt. 1

42 Wrongful contracts. E+W

F17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F17 S.42 repealed (1.10.2002 for E. and 19.12.2002 for W.) by Education Act 2002 (c. 32), s. 215, Sch. 21 para. 16, Sch. 22 Pt. 3; S.I. 2002/2439, art. 3; S.I. 2002/3185, art. 4, Sch. Pt. 1

F18 43 Remuneration of employees. E+W

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Textual Amendments

F18 S. 43 repealed (1.4.2010) by The Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments) (England and Wales) Order 2010 (S.I. 2010/1080), art. 1(2)(a)(b), Sch. 1 para. 92, Sch. 2 Pt. 2 (with art. 2(3))