39.—(1) Subject to paragraph (2), the Board of Governors of a grant-aided school shall not cause or permit the number of registered pupils at the school at any time to exceed the school’s enrolment number.
(2) In calculating for the purposes of paragraph (1) the number of registered pupils at a school at any time, no account shall be taken of any pupils registered at the school in compliance with a direction of an appeal tribunal or in compliance with a school attendance order.
(3) In this Part any reference to a school’s enrolment number is a reference to the number for the time being applying under the following provisions of this Article to the school.
(4) Subject to paragraph (5), the enrolment number applying to a school shall be such number as the Department may, after consultation with the Board of Governors of the school, determine having regard in particular to—
(a)the requirements of regulations under Article 18 of the principal Order which apply in relation to the school; and
(b)the accommodation available for use by pupils at the school, other than—
(i)in the case of a boarding school, so much of the accommodation as is used wholly or mainly for boarding purposes; and
(ii)in the case of a grammar school, so much of the accommodation as is not available for use by pupils of the secondary department.
(5) The Department may—
(a)direct that the enrolment numbers applying to schools of any class or description specified in the directions shall be varied in accordance with the directions;
(b)on the application of, or after consultation with, the Board of Governors of an individual school, direct that the enrolment number applying to that school shall be varied in accordance with the directions.
(6) Directions given by the Department under paragraph (5)(b) on the application of the Board of Governors of an individual school shall specify as the new enrolment number applying to the school either the number specified by the Board of Governors in its application or—
(a)in the case of an application to increase the enrolment number, such lesser number as the Department thinks fit;
(b)in the case of an application to reduce the enrolment number, such greater number as the Department thinks fit.
(7) It shall be the duty of the Department—
(a)when determining under paragraph (4) the enrolment number applying to a controlled school or varying that number under paragraph (5), to consider any representations which are made to it regarding that number by the board responsible for the management of the school;
(b)when determining under paragraph (4) the enrolment number applying to a Catholic maintained school or varying that number under paragraph (5), to consider any representations which are made to it regarding that number by the Council for Catholic Maintained Schools.
(8) Where the Department determines a school’s enrolment number under paragraph (4) or varies that enrolment number under paragraph (5), it shall send notice of the enrolment number so determined or varied to—
(a)the Board of Governors of the school;
(b)where the school is a controlled school, the board responsible for the management of the school;
(c)where the school is a Catholic maintained school, the Council for Catholic Maintained Schools.