The Education (Non-Maintained Special Schools) (England) Regulations 2011

Citation, commencement, application and revocation

1.—(1) These Regulations may be cited as the Education (Non-Maintained Special Schools) (England) Regulations 2011 and come into force on 1st September 2011.

(2) These Regulations apply to non-maintained special schools(1) in England.

(3) The following Regulations are revoked—

(a) the Education (Non-Maintained Special Schools) (England) Regulations 1999(2),

(b) the Education (Non-Maintained Special Schools) (England) (Amendment) Regulations 2002(3), and

(c) the Education (Non-Maintained Special Schools) (England) (Amendment) Regulations 2007(4).

Interpretation

2.—(1) In these Regulations—

“the 1996 Act” means the Education Act 1996;

“the 1997 Act” means the Police Act 1997(5);

“the 2002 Act” means the Education Act 2002(6);

“the 2005 Act” means the Education Act 2005(7);

“the Chief Inspector” means Her Majesty’s Chief Inspector of Education, Children’s Services and Skills(8);

“employment business” has the meaning given by section 13(3) of the Employment Agencies Act 1973(9) and includes a local authority and a person carrying on an employment business;

“enhanced criminal record certificate” means a certificate within the meaning of section 113B(3) of the 1997 Act(10), which includes suitability information relating to children within the meaning of section 113BA(2) of that Act;

“maintained special school” means a community or foundation special school(11);

“National Minimum Standards” means the national minimum standards relating to residential special schools(12) published under section 87C(1) of the Children Act 1989(13) and in a case where a non-maintained special school is also a children’s home, the national minimum standards relating to children’s homes(14) issued by the Secretary of State under section 23 of the Care Standards Act 2000;

“proprietor” in relation to a non-maintained special school means the governing body of the school;

“work” includes work of any kind, whether under a contract of service or apprenticeship, under a contract for services or otherwise than under a contract or as a volunteer.

(2) For the purposes of these Regulations an application for an enhanced criminal record certificate is made if—

(a) the application is—

(i) countersigned by the proprietor as a person registered under section 120(1) of the 1997 Act or countersigned on the proprietor’s behalf by such a person, and

(ii) submitted to the Secretary of State in accordance with section 113B of that Act; or

(b) in accordance with section 113B(2A)(15) of the 1997 Act, the application is transmitted electronically to the Secretary of State by the proprietor as a person registered under section 120(1) of that Act or is so transmitted on the proprietor’s behalf by such a person.

(3) For the purposes of these Regulations a person is appointed to a position if that person is—

(a) engaged to work at a school, other than a person supplied by an employment business, or

(b) appointed to the governing body of a school.

(4) A person (X) is to be treated as meeting any staff qualification requirements if X—

(a) fulfils any requirements with respect to qualifications or registration which apply to X by virtue of regulations made under sections 132 to 135 of the 2002 Act(16) and regulations made under section 19 of the Teaching and Higher Education Act 1998(17),

(b) meets any conditions with respect to health and physical capacity, which apply to X by virtue of regulations made under section 141 of the 2002 Act(18), and

(c) is not barred from regulated activity relating to children, to vulnerable adults or to both under section 3 of the Safeguarding Vulnerable Groups Act 2006.

Conditions of approval and requirements to be complied with

3.—(1) The requirements which are to be complied with as a condition of approval by the Secretary of State(19) under section 342(1) of the 1996 Act are set out in Part 1 of the Schedule.

(2) The requirements which are to be complied with by a school while approved under section 342(1) of the 1996 Act are set out in Part 2 of the Schedule.

Withdrawal of approval

4.—(1) The Secretary of State may withdraw approval from a school on the ground that there has been a failure to comply with any requirement contained in these Regulations.

(2) Subject to paragraph (3), approval may not be withdrawn unless—

(a) the Secretary of State has given written notice to the proprietor specifying each requirement that must be complied with (“the specified requirement”) and the time limit within which compliance must be achieved (“the specified time limit”), and

(b) the proprietor has failed to comply with a specified requirement within the specified time limit.

(3) The Secretary of State must withdraw approval from a school if the proprietor makes a written request to that effect.

(4) Where the Secretary of State withdraws approval from a school following a request to do so from the proprietor, the Secretary of State may determine that the decision will have effect from such date as the Secretary of State may specify.

Appeal against a decision of Secretary of State

5.—(1) An appeal against any decision by the Secretary of State —

(a) to withdraw approval from the school under regulation 4(1),

(b) not to approve, or not to approve a change to, or to withdraw approval from relevant arrangements(20) in relation to the school,

lies to the First-tier Tribunal(21) and must be brought by the proprietor of the school.

(2) On an appeal, the First-tier Tribunal may uphold the decision of the Secretary of State, or direct that it is of no effect.

(3) Where the First-tier Tribunal upholds a decision of the Secretary of State to withdraw approval, the school ceases to be approved under section 342 of the 1996 Act from such date as the First-tier Tribunal may specify or, if it does not specify a date, from such date as the Secretary of State may determine.

Effect of decisions of the Secretary of State pending an appeal

6.  Where the Secretary of State withdraws approval from a school under regulation 4(1), the Secretary of State’s decision to withdraw approval does not have effect during the period in which an appeal against the decision could be brought or, where an appeal has been brought, the appeal has not been determined, withdrawn or otherwise disposed of.

Sarah Teather

Minister of State

Department for Education

4th July 2011