Commentary Schedule 16: Funding of maintained schools Section 107 and Schedule 17: Restrictions on disposal of land
203.Section 107 and Schedule 17 amend the provisions of Schedule 22 to SSFA 1998 governing the disposal of publicly-funded foundation school land: that is, land which was originally provided by a local authority or purchased with the proceeds of disposal of such land.
204.Foundation schools are a category of maintained school. There are three different types of foundation school: those with no foundations; those which are part of a foundation body established under section 21 of SSFA 1998; and those with a foundation established otherwise than under SSFA 1998. The term “trustees” is used in that Act to describe a foundation established otherwise than under that Act. Where a foundation school has no foundation, its land is vested in the governing body. Otherwise it is vested in the foundation body or trustees.
205.Schedule 22 to SSFA 1998 makes different arrangements for the disposal of foundation school land depending on which body it is vested in and the circumstances in which it was acquired. A governing body or foundation body (of a foundation school) wishing to dispose of publicly funded land must seek the Secretary of State’s consent. The Secretary of State may attach conditions to his consent, including requiring the governing body or foundation body to transfer all or part of the land to the local authority which originally provided it, or to compensate the local authority. Trustees disposing of land are not required to seek the Secretary of State’s consent but in most cases must compensate the local authority which originally provided it. An exception to this general rule arises where a school without a foundation acquires a foundation. In these circumstances the school’s land would be transferred from the governing body to the trustees; but the trustees would be under no obligation to compensate the local authority which originally provided the land if they subsequently disposed of it.
206.The Department’s five-year strategy for children and learners encourages community and voluntary-controlled secondary schools to change category to foundation. This will entail the transfer of local authority land to school governing bodies, foundation bodies and trustees. The strategy also encourages foundation schools without foundations to acquire them, in which case their land would be transferred to their trustees.
207.Section 107 introduces Schedule 17, which amends Schedule 22 to SSFA 1998 so that the same arrangements apply to the disposal of all foundation school land, whether by governing bodies, foundation bodies or trustees. In all circumstances, those wishing to dispose of publicly funded foundation school land will be required to seek the Secretary of State’s consent, and the Secretary of State will be able to attach conditions to his consent. The aim of the provisions is to ensure that publicly funded land which is no longer required for a foundation school, or the proceeds of disposal of such land, remains available for alternative educational use.
208.These provisions apply to both England and Wales. Where the section, the Schedule and this note refer to the Secretary of State, this should be construed as a reference to the Assembly in the application of the section and Schedule to Wales.
209.Paragraph 2 of Schedule 17 applies where a foundation school previously without a foundation acquires one. It provides that the transfer of land from the governing body to the trustees of the school in these circumstances is not a disposal for the purposes of paragraph 1 of Schedule 22 to SSFA 1998.
210.Paragraph 4 inserts a new paragraph 2A into Schedule 22. The effect of the new paragraph is to require the trustees of a foundation school to seek the Secretary of State’s consent before disposing of publicly funded land which was acquired in specified circumstances, as set out in sub-paragraphs (1) and (2). The requirement applies in relation to:
iii) land transferred from a local authority to the trustees otherwise than to implement proposals, under paragraph 2 of Schedule 3 to SSFA 1998 (for example where a school transfers to a different site nearby without closing and reopening);
211.Sub-paragraph (4) of new paragraph 2A of Schedule 22 to SSFA 1998 enables the Secretary of State to give or withhold his consent, and to attach conditions to his consent. He may require the trustees to transfer some or all of the land back to the local authority which originally provided it (if appropriate, for a financial consideration); direct them to compensate the local authority from the proceeds of the disposal; or direct the trustees as to the use to which the proceeds should be put. The Secretary of State may attach more than one of these conditions to any consent.
212.Sub-paragraph (6) of new paragraph 2A also requires the trustees to seek the Secretary of State’s consent to put school land to non-educational use, in which case the Secretary of State could attach any of the conditions listed above to his consent.
213.Paragraph 5 amends paragraph 3 of Schedule 22 to SSFA 1998, which deals with disposals of land by the trustees of foundation and voluntary schools other than disposals under the new paragraph 2A. The effect is to make the application of the whole of paragraph 3 subject to new sub-paragraph (2A) of that paragraph. This allows for the eventuality that trustees might be disposing both of land to which paragraph 2A applied and of other land held for the purposes of the school, to which paragraph 3 would apply. Sub-paragraph (2) now provides that paragraph 3 would also apply to land transferred pursuant to any previous direction issued by the Secretary of State (in cases where a school has been discontinued but is connected with proposals to establish or alter another school) to the trustees of an existing or new maintained school as the case may be.
214.Paragraph 6 inserts new sub-paragraphs (4A) and (4B) into paragraph 5 of Schedule 22 to SSFA 1998, which deals with the discontinuance of schools, and makes other consequential amendments to that paragraph. The effect is to require the trustees to apply to the Secretary of State to determine what should be done with the land of a discontinued foundation school. The Secretary of State can direct the trustees to: transfer all or part of the land back to the local authority which originally provided it, subject to a financial consideration he deems appropriate; and/or use the land for another foundation or foundation special school if the trustees have power to do so; and/or pay to the local authority all or part of the value of all or part of the land; and/or transfer all or part of the land to another maintained school.