The Education (New Procedures for Property Transfers) Regulations 2000

Citation, commencement and application

1.—(1) These Regulations may be cited as the Education (New Procedures for Property Transfers) Regulations 2000 and shall come into force on 1st January 2001.

(2) Subject to paragraph (3) below, these Regulations apply in relation to England and Wales.

(3) Regulations 15 to 19 apply only in relation to England.

Interpretation

2.  In these Regulations:

“the 1988 Act” means the Education Reform Act 1988(1);

“the 1992 Act” means the Further and Higher Education Act 1992(2);

“the 1998 Act” means the School Standards and Framework Act 1998; and

“the National Assembly” means the National Assembly for Wales.

Provision of information

3.  Any local education authority, governing body of a maintained school and institution within the further education sector (within the meaning of section 91 of the 1992 Act) shall give the Secretary of State or, as the case may be, the National Assembly such information as he or it may require for the purposes of the exercise of his or its functions in relation to property transfers under the Education Acts as modified by these Regulations.

Determinations of the Education Transfer Council

4.  Any reference in a determination of the Education Transfer Council to a matter being referred to the Council for determination in the event of the parties failing to reach agreement shall be read as requiring the matter to be referred to the Secretary of State or the National Assembly (as the case may be) in such event.

Land transfers in relation to schools changing category or joining or leaving foundation bodies

5.—(1) Section 198 of and Schedule 10 to the 1988 Act(3) (supplementary provisions with respect to transfers) shall apply to transfers of land under any regulations made or to be made under section 21(5) of or under paragraph 5 of Schedule 8 to the 1998 Act(4) with the modifications set out below.

(2) Section 198(3) of and paragraphs 1 to 3 of Schedule 10 to the 1998 Act are set out as so modified in Schedule 1.

6.  Section 198 shall have effect as if—

(a) in section 198(3)(a)—

(i) for “Education Transfer Council” there were substituted “Secretary of State in relation to England or the National Assembly in relation to Wales”,

(ii) in (i) “, subject to subsection (4) below,” were omitted, and

(iii) in (ii) “and” were omitted; and

(b) section 198 (3)(b) and subsections (4) to (6) were omitted.

7.  Schedule 10 shall have effect as if—

(a) in paragraph 1(4) for “relevant person” there were substituted “transferee” and after “Secretary of State” there were inserted “in relation to England or the National Assembly in relation to Wales”;

(b) paragraph 1(5)(b) were omitted;

(c) in paragraph 2(1) for “relevant person” there were substituted “transferee”;

(d) in paragraph 2(3)—

(i) for “Except in a case where the transferor is a local authority, the Education Transfer Council” there were substituted “If and to the extent that he or it is requested to do so by the transferor or the transferee, the Secretary of State in relation to England or the National Assembly in relation to Wales”, and

(ii) paragraph 2(3)(c) were omitted;

(e) there were inserted after paragraph (3) the following paragraph—

“(3A) Within 6 months after the transfer date the transferor shall send the Secretary of State in relation to England or the National Assembly in relation to Wales a copy of an executed transfer agreement or, if no agreement has been executed, so notify him or it.”

(f) in paragraph 2(4) for “Education Transfer Council” there were substituted “Secretary of State in relation to England or the National Assembly in relation to Wales”;

(g) in paragraph 2(6) the words “from” and “the relevant person” to the end of the subparagraph were omitted;

(h) paragraph 3(1) were omitted;

(i) for paragraph 3(2) there were substituted—

“(2) In the case of any matter on which agreement is required to be reached under paragraph 2(1) above, if such an agreement has not been reached within a period of 6 months from the transfer date, the Secretary of State in relation to England or the National Assembly in relation to Wales may give a direction determining that matter, and may include in the direction any provision which might have been included in an agreement under paragraph 2(1) above”;

(j) in paragraph 3(4) after “The Secretary of State” there were inserted “in relation to England or the National Assembly in relation to Wales”;

(k) paragraph 3(5) were omitted;

(l) in paragraph 5 for “Education Transfer Council” there were substituted “Secretary of State in relation to England or the National Assembly in relation to Wales”;

(m) in paragraph 9(2) for “Education Transfer Council” there were substituted “transferee”;

(n) in paragraphs 9(6) and 9(9) the words “Education Transfer Council or (as the case may be) the” were omitted; and

(o) paragraph 10 were omitted.

Property transfers under the 1992 Act

8.—(1) Sections 34 (making additional property available for use) and 36 (general provisions about transfers under Chapter II) of and Schedules 5 and 7 (Transfers: supplementary provisions) to the 1992 Act shall have effect with the modifications set out below.

(2) Section 36(6) of and paragraphs 1 to 3 of Schedule 5 to the 1992 Act are set out as so modified in Schedule 2.

9.  Section 34 shall have effect as if for section 34(3)(b) there were substituted “he has consulted the appropriate council and the local authority.”.

10.  Section 36 shall have effect as if—

(a) section 36(5) were omitted;

(b) for section 36(6) there were substituted—

“(6) In carrying out the functions conferred or imposed on them by that Schedule the Secretary of State in relation to England or the National Assembly in relation to Wales—

(i) shall not act on behalf of the transferor, the transferee or any other interested person, but

(ii) shall seek to ensure that all such persons' interests are protected.”; and

(c) in sections 36(7) and (8) for “Council”, wherever occurring, there were substituted “Secretary of State in relation to England or the National Assembly in relation to Wales”.

11.  Schedule 5 shall have effect as if—

(a) in paragraph 1(3) for “Education Transfer Council” there were substituted “transferee” and for “Council” there were substituted “Secretary of State in relation to England or the National Assembly in relation to Wales”;

(b) in paragraph 2(1) for “Education Transfer Council” there were substituted “transferee”;

(c) after paragraph 2(2) there were inserted—

“(3) If and to the extent that he or it is requested to do so by the transferor or the transferee, the Secretary of State in relation to England or the National Assembly in relation to Wales shall—

(a) assist the transferor, the transferee and any other interested person in identifying or defining the property, rights and liabilities transferred to the transferee or retained by the transferor;

(b) advise such persons as to the terms of any agreement or instrument falling to be made under sub-paragraph (1) above;

(c) prepare drafts of any such agreement or instrument; and

(d) assist the parties in executing and giving effect to any such agreement or instrument.

(4) Within 6 months after the operative date the transferor shall send the Secretary of State in relation to England or the National Assembly in relation to Wales a copy of an executed transfer agreement or, if no agreement has been executed, so notify him or it.”;

(d) subject to regulation 14 below, for paragraph 3(1) there were substituted—

“(1) In the case of any matter on which agreement is required to be reached under paragraph 2(1) above, if such an agreement has not been reached within a period of 6 months from the operative date, the Secretary of State in relation to England or the National Assembly in relation to Wales may give a direction determining that matter, and may include in the direction any provision which might have been included in an agreement under paragraph 2(1) above.”;

(e) subject to regulation 14 below, paragraph 3(2) were omitted;

(f) subject to regulation 14 below, for paragraph 3(4) there were substituted—

“(4) The Secretary of State in relation to England or the National Assembly in relation to Wales shall consult the transferor, the transferee and any other interested person before giving a direction under this paragraph.”;

(g) subject to regulation 14 below, paragraphs 4 and 5 were omitted;

(h) in paragraph 7(2) for “Education Transfer Council” there were substituted “transferee”;

(i) in paragraphs 7(6) and (9) for “Education Transfer Council” there were substituted “transferee”; and

(j) paragraph 8 were omitted.

12.  Schedule 7 shall have effect as if in paragraph 1 for “Education Transfer Council” there were substituted “Secretary of State in relation to England or the National Assembly in relation to Wales”.

Saving provisions relating to appeals pending under the 1992 Act

13.  For the purposes of regulation 14 below, an appeal is pending when—

(a) an appeal has been made to the Secretary of State in relation to England or the National Assembly in relation to Wales under paragraph 4 of Schedule 5 to the 1992 Act; and

(b) a final decision has not been made by the Secretary or State or the National Assembly on the appeal.

14.  Where an appeal is pending—

(a) regulation 11(d), (e), (f) and (g) above shall not apply; and

(b) regulation 4 of the Education Assets Board (Transfers under the Further and Higher Education Act 1992) Regulations 1992(5) shall apply to the appeal with the following modifications—

(i) paragraph (5) shall be omitted, and

(ii) references to “the Council” in paragraphs (6) and (7) shall be omitted.

Property transfers to former grant-maintained schools

15.—(1) Section 198 of and Schedule 10 to the 1988 Act (supplementary provisions about transfers), as they are applied to transfers under section 201 of the 1996 Act by Article 4 of the School Standards and Framework Act 1998 (Commencement No.5 and Saving and Transitional Provisions) Order 1999(6) and article 8 of the School Standards and Framework Act 1998 (Commencement No. 7 and Saving and Transitional Provisions) Order 1999(7), shall be modified as set out below.

(2) Section 198(4) of and paragraphs 1 to 3 of Schedule 10 to the 1988 Act are set out as so modified in Schedule 3.

16.  Section 198 shall have effect as if—

(a) section 198(3) were omitted; and

(b) for section 198(4) there were substituted—

“(4) In carrying out the functions conferred or imposed on them by that Schedule the Secretary of State—

(i) shall not act on behalf of the transferor, the transferee or any other interested person, but

(ii) shall seek to ensure that all such persons' interests are protected.”.

17.  Schedule 10 shall have effect as if—

(a) in paragraph 1(3) for “Education Transfer Council” there were substituted “transferee”;

(b) in paragraph 2(1) for “Education Assets Board” there were substituted “transferee”;

(c) after paragraph 2(2) there were inserted—

“(3) If and to the extent that he is requested to do so by the transferor or transferee the Secretary of State shall—

(a) assist the transferor, the transferee and any other interested person in identifying or defining the property, rights and liabilities transferred to the transferee or retained by the transferor;

(b) advise such persons as to the terms of any agreement or instrument falling to be made under sub-paragraph (1) above;

(c) prepare drafts of any such agreement or instrument; and

(d) assist the parties in executing and giving effect to any such agreement or instrument.

(4) Within 6 months after the transfer date the transferor shall send the Secretary of State a copy of an executed transfer agreement or, if no agreement has been executed, so notify him”;

(d) subject to regulation 19 below, for paragraph 3 there were substituted—

“3.— (1) In the case of any matter on which agreement is required to be reached under paragraph 2(1) above, if such an agreement has not been reached within a period of 6 months from the transfer date, the Secretary of State may give a direction determining that matter, and may include in the direction any provision which might have been included in an agreement under paragraph 2(1) above.

(2) Any property, rights or liabilities required by a direction under this paragraph to be transferred to the transferee shall be regarded as having been transferred to, and by virtue of this Act vested in, the transferee accordingly.

(3) The Secretary of State shall consult the transferor, the transferee and any other interested person before giving a direction under this paragraph.”;

(e) in paragraph 5 for “Education Transfer Council” there were substituted “Secretary of State”;

(f) in paragraph 9(2) for “Education Transfer Council” there were substituted “transferee”;

(g) in paragraph 9(6) and (9) for “Education Transfer Council” there were substituted “transferee” and

(h) paragraph 10 were omitted.

Saving provisions relating to appeals pending in relation to grant-maintained schools

18.  For the purposes of regulation 19 below, an appeal is pending when—

(a) an appeal has been made to the Secretary of State under paragraph 63 of Schedule 8 to the 1992 Act; and

(b) a final decision has not been made by the Secretary of State on the appeal.

19.  When an appeal is pending—

(a) regulation 17 (d) above shall not apply; and

(b) regulation 4 of the Education Assets Board (Transfers under the Education Reform Act 1988) Regulations 1992(8) shall apply to the appeal with the following modifications—

(i) paragraph (5) shall be omitted, and

(ii) references to the Council in paragraphs (6) and (8) shall be omitted.

Estelle Morris

Minister of State,

Department for Education and Employment

4th December 2000