EXPLANATORY NOTE
(This note is not part of the Regulations)
Part 1 of these Regulations prescribes various requirements to be met in relation to the publication by the governing body of a foundation or foundation special school to which section 25 of the Education and Inspections Act 2006 (“EIA 2006”) applies, of proposals to (a) remove the school’s foundation or (b) alter the instrument of government in such a way that the foundation governors will cease to constitute the majority of governors (together, “the relevant alterations”).
Regulation 4 provides that any decision by the governing body, or by a committee of the governing body, to publish proposals to make either of the relevant alterations must be confirmed in a second meeting of the governing body held not less than 28 days after the meeting at which the initial decision was made.
Regulation 5 provides for a specific procedure for the publication of proposals to make relevant alterations in cases where a school’s instrument of government provides for the majority of governors to be foundation governors and the governing body do not themselves resolve, in accordance with regulation 4 and the School Governance (Procedures) (England) Regulations 2003, to publish such proposals. In such cases, a third of the governors can require the governing body, by written notice to the clerk, to publish proposals to make either of the relevant alterations. Regulation 5(3) provides that unless regulation 6 (determination of land issues) applies, the governing body must publish proposals within 3 months of the receipt of notice by the clerk. Regulation 5(4) exempts the governing body from the requirement to publish proposals, as required by a third of the governing body pursuant to regulation 5(2), where proposals for (i) the establishment of the school or (ii) any alteration prescribed under section 18 of EIA 2006 which consists of a change of category to foundation or foundation special school or the acquisition of a foundation or which results in the majority of governors being foundation governors, were implemented under the relevant provisions of EIA 2006 less than 5 years ago; or where less than 5 years ago the governing body rejected proposals, published at the request of a third of the governing body pursuant to regulation 5(2), to make either of the relevant alterations.
Regulations 6 to 12 provide for various aspects of the publication of the proposals, including the information to be included in the proposals, consultation on the proposals before publication, the requirement to determine issues relating to the transfer of the land before publication, the manner of publication, objections or representations to be made in relation to the proposals, the determination of the proposals by the governing body and the modifications which may be made to the proposals for them to be approved.
Regulations 13 to 19 provide for the implementation of the proposals, as approved (with or without modifications) by the governing body.
Regulation 14 deals with the making of a new instrument of government when either of the relevant alterations is made to a school, and regulations 15 and 16 provide for the reconstitution of the governing body in such cases. Certain governors are allowed to remain in office and provision is made for the removal of any governors who are surplus to the requirements of the new instrument of government.
Regulation 17 and Schedule 3 provide for the transfer of land where a school’s foundation is removed, and regulation 18 provides for the payment of compensation where land is transferred pursuant to regulation 17 and expenditure has been incurred.
Regulation 19 requires the governing body, the local education authority and the adjudicator to have regard to guidance issued by the Secretary of State in exercising their functions under Part 1 of the Regulations.
Part 2 of these Regulations prescribe conditions to be met in relation to the ability of certain foundations to pay their debts and to their continued existence as a body corporate for the purposes of paragraph 8A(2)(d) of Schedule 22 to the School Standards and Framework Act 1998.
Paragraph 8A of Schedule 22 enables the Secretary of State, where any of the conditions in paragraph 8A(2) are met, to make an order directing that any land falling within paragraph A13(1)(b) or (2) of Schedule 22 (broadly, publicly-funded land) held by a foundation for the purposes of a foundation or foundation special school to which paragraph 8A applies, is to be transferred to, and to vest in, the governing body of the school or, where the land is held on trust for two or more schools, such of the governing bodies of the schools as the Secretary of State thinks proper.