Further and Higher Education Act 1992

Property, rights and liabilities: general E+W+S

34 Making additional property available for use. E+W

(1) The Secretary of State may by order provide for any land or other property of a local authority to be made available for use by an institution within the further education sector (referred to in this section as the “new sector institution”) if the requirements of subsection (2) below are satisfied.

(2) Those requirements are that in the opinion of the Secretary of State—

(a) the property—

(i) either has within the preceding six months been used for the purpose of the provision of further education by an institution maintained by a local education authority but its use for that purpose has been discontinued or the local education authority intend its use for that purpose to be discontinued, or

(ii) is being used for that purpose but the local education authority intend its use for that purpose to be discontinued, and

(b) it is necessary or desirable for the property to be available for use for the purposes of the new sector institution but the governing body of that institution have been unable to secure agreement with the local authority, on such terms as may reasonably be required, to secure that the property is so available.

(3) The Secretary of State shall not make an order under this section unless—

(a) the governing body of the new sector institution have applied to him, before the end of the period of three years beginning with the date which is the operative date in relation to further education corporations established under section 15 of this Act, for such an order to be made, and

(b) he has consulted the [F1 appropriate body], the local authority and the Education Assets Board.

(4) For the purpose of making any property available for use for the purposes of an institution, an order under this section may—

(a) transfer to, and vest in, the governing body—

(i) the property concerned, and

(ii) any rights or liabilities of the local authority acquired or incurred for the purpose of the provision of further education there, or

(b) confer any rights or impose any liabilities and, to the extent (if any) that the order does so, it shall have effect as if contained in an agreement between the local authority and the governing body.

(5) Subsection (4)(a)(ii) above shall not apply to any liability of the local authority in respect of the principal of, or interest on, any loan.

(6) References in this section to use for the purpose of the provision of further education are to use wholly or mainly for that purpose.

[F2 (7) Nothing in this section requires the National Assembly to consult itself.]

Textual Amendments

F1 Words in s. 34(3)(b) substituted (1.4.2006) by The National Council for Education and Training for Wales (Transfer of Functions to the National Assembly for Wales and Abolition) Order 2005 (S.I. 2005/3238), art. 1(1), Sch. 1 para. 19(a) (with art. 7)

F2 S. 34(7) inserted (1.4.2006) by The National Council for Education and Training for Wales (Transfer of Functions to the National Assembly for Wales and Abolition) Order 2005 (S.I. 2005/3238), art. 1(1), Sch. 1 para. 19(b) (with art. 7)

Modifications etc. (not altering text)

C1 S. 34 modified (1.1.2001) by S.I. 2000/3209, reg. 9 (with savings in regs. 13, 14)

C2 S. 34(4) modified (1.4.1993) by S.I. 1993/563, art. 2, Sch.1

Commencement Information

I1 S. 34 wholly in force at 1.4.1993 see s. 94(3) and S.I. 1992/831, art. 2, Sch. 3

35 Voluntary transfers of staff in connection with section 34. E+W+S

(1) This section applies where—

(a) for the purpose of making any property of a local authority available for use for the purposes of an institution within the further education sector, an order is made under section 34 of this Act,

(b) at any time on or after such date as may be specified by the order a person employed by the local authority ceases to be so employed and is subsequently employed by the governing body of the institution, and

(c) by virtue of [F3 section 138 of the Employment Rights Act 1996] (renewal or re-engagement) that subsequent employment precludes his receiving any redundancy payment under [F3 Part XI] of that Act.

(2) [F4 Chapter I of Part XIV of] that Act (computation of period of employment for the purposes of that Act) shall have effect in relation to that person as if it included the following provisions—

(a) the period of employment of that person with the local authority shall count as a period of employment with the governing body, and

(b) the change of employer shall not break the continuity of the period of employment.

(3) The period of that person’s employment with the local authority shall count as a period of employment with the governing body for the purposes of any provision of his contract of employment with the governing body which depends on his length of service with that employer.

Textual Amendments

F3 Words in s. 35(1)(c) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 52(2)(a)(i)(ii) (with ss. 191-195, 202)

F4 Words in s. 35(2) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 52(2)(b) (with ss. 191-195, 202)

Modifications etc. (not altering text)

C3 S. 35 modified (1.4.1993) by S.I. 1993/563, art. 2, Sch. 1

Commencement Information

I2 S. 35 wholly in force at 1.4.1993 see s. 94(3) and S.I. 1992/831, art. 2, Sch. 3

36 General provisions about transfers under Chapter II. E+W

(1) This section applies to any transfer under section 23 or 32 of this Act, and those sections are subject to Schedule 5 to this Act.

(2) Where any land or other property or rights—

(a) were immediately before the operative date in relation to any institution held on trust for any particular purposes, or (as the case may be) for the general purposes, of the institution, and

(b) fall to be transferred under any transfer to which this section applies,

they shall continue to be so held by the transferee.

(3) Schedule 5 to this Act has effect for the purpose of—

(a) dividing and apportioning property, rights and liabilities which fall to be transferred under any transfer to which this section applies where that property has been used or held, or the rights or liabilities have been acquired or incurred, for the purposes of more than one educational institution,

(b) excluding from transfer in certain circumstances property, rights and liabilities which would otherwise fall to be transferred under any such transfer,

(c) providing for identifying and defining the property, rights and liabilities which fall to be so transferred, and

(d) making supplementary and consequential provisions in relation to transfers to which this section applies.

(4) Where arrangements for the supply by a local authority of goods or services for the purposes of an institution to be conducted by a further education corporation are to have effect as from the operative date in accordance with section 24(4) of this Act as if contained in an agreement made before that date between the local authority and the corporation, paragraphs 2 to 5 of Schedule 5 to this Act shall have effect as if the rights and liabilities of the corporation under the agreement were rights and liabilities of the local authority transferred to the corporation under a transfer to which this section applies.

(5) In carrying out the functions conferred or imposed on them by that Schedule, it shall be the duty of the Education Assets Board to secure that each transfer to which this section applies is, so far as practicable, fully effective on the date on which it takes effect under this Act.

(6) Where in accordance with that Schedule anything falls to be or may be done by the Board for the purposes of or in connection with any such transfer—

(a) it may not be done by the transferee, and

(b) in doing it the Board shall be regarded as acting on behalf and in the name of the transferee,

and in a case where the transferee is a body corporate established under this Act paragraph (b) above applies both in relation to things done before and in relation to things done after that body is established under this Act.

(7) Not later than the end of the period of six months beginning with the operative date in relation to a further education corporation established under section 15 of this Act, the Board shall provide the appropriate council with a written statement giving such particulars of all property, rights and liabilities transferred to that corporation as are then available to the Board.

(8) If in any case within subsection (7) above full particulars of all property, rights and liabilities transferred to the corporation concerned are not given in the statement required under that subsection, the Board shall provide the appropriate council with a further written statement giving any such particulars omitted from the earlier statement as soon as it is possible for them to do so.

Modifications etc. (not altering text)

C4 S. 36 modified (1.1.2001) by S.I. 2000/3209, reg. 9 (with savings in regs. 13, 14)

Commencement Information

I3 S. 36 wholly in force at 30.9.1992 see s. 94(3) and S.I. 1992/831, art. 2, Sch. 2

37 Attribution of surpluses and deficits. E+W

(1) This section applies where, immediately before the date on which any educational institution becomes an institution within the further education sector—

(a) it is maintained by a local education authority, F5 ...

F5 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and in the financial year ending immediately before that date (referred to in this section as the “relevant financial year”), the institution was covered by a scheme under [F6 section 48 of the School Standards and Framework Act 1998 (LEAs’ financial schemes)]; and in this section, in relation to the institution, the scheme is referred to as the “applicable scheme” and the authority concerned as the “assisting authority”.

(2) If the net expenditure of the institution for the relevant financial year is less than the net budget share of the institution for that year, the assisting authority shall pay to the new governing body of the institution a sum equal to the shortfall.

(3) If the net expenditure of the institution for the relevant financial year is greater than the net budget share of the institution for that year, the new governing body of the institution shall pay to the assisting authority a sum equal to the excess.

(4) In this section, in respect of any financial year of the institution—

• “net budget share” means the budget share—

  (i)

  less such amount as may be prescribed in respect of any earned income, and

  (ii)

  plus such amount as may be prescribed in respect of any surplus, and

• “net expenditure” means any expenditure, less such amount as may be prescribed in respect of earned income.

(5) Any sum payable under this section shall be paid in accordance with regulations, and the regulations may provide for sums to be payable by prescribed instalments and for sums to carry prescribed interest.

(6) Regulations may, in the case of any institution where the operative date falls within a financial year in which the institution was covered by such a scheme as is referred to in subsection (1) above, make provision for applying this section with modifications relating to the amounts that are to be taken for the purposes of this section to be the net budget share and the net expenditure of the institution for that year.

(7) In this section, in respect of any financial year of the institution—

• “budget share” means the amount which is that institution’s budget share for the relevant financial year for the purposes of [F7 Part II of the School Standards and Framework Act 1998],

• “earned income” means any sums, other than sums appropriated for the purposes of the institution by the assisting authority, received by the institution in respect of the relevant financial year which the institution is authorised under the applicable scheme to retain,

• “expenditure” means such expenditure for the purposes of the institution incurred in the relevant financial year by the former governing body or the assisting authority as may be prescribed,

• “financial year” has the same meaning as in [F8 the Education Act 1996],

• “former governing body” means the governing body of the institution immediately before the operative date and “new governing body” means the governing body of the institution on or after that date, and

• “surplus” means the amount of any surplus which the institution is authorised under the applicable scheme to carry forward to the relevant financial year.

(8) In this section—

F9 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) “prescribed” means prescribed by regulations.

F10 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F5 S. 37(1)(b) and preceding word repealed (6.11.2006 for E., 2.1.2008 for W.) by Education Act 2002 (c. 32), s. 216(4), Sch. 21 para. 15(a), Sch. 22 Pt. 3 (with ss. 210(8), 214(4)); S.I. 2006/2895, art. 2; S.I. 2007/3611, Sch. Pt. 1

F6 Words in s. 37(1) substituted (1.9.1999) by 1998 c. 31, s. 140(1), Sch. 30 para. 40(a) (with ss. 138(9), 144(6)); S.I. 1999/2323, art. 2(1), Sch.1.

F7 Words in s. 37(7) substituted (1.9.1999) by 1998 c. 31, s. 140(1), Sch. 30 para. 40(b) (with ss. 138(9), 144(6)); S.I. 1999/2323, art. 2(1), Sch.1.

F8 Words in s. 37(7) substituted (1.11.1996) by 1996 c. 56, ss. 582(1), 583(2), Sch. 37 Pt. I para. 110(3)(b) (with ss. 1(4), 561, 562, Sch. 39)

F9 S. 37(8)(a) repealed (6.11.2006 for E., 2.1.2008 for W.) by Education Act 2002 (c. 32), s. 216(4), Sch. 21 para. 15(b), Sch. 22 Pt. 3 (with ss. 210(8), 214(4)); S.I. 2006/2895, art. 2; S.I. 2007/3611, Sch. Pt. 1

F10 S. 37(9) repealed (6.11.2006 for E., 2.1.2008 for W.) by Education Act 2002 (c. 32), s. 216(4), Sch. 21 para. 15(c), Sch. 22 Pt. 3 (with ss. 210(8), 214(4)); S.I. 2006/2895, art. 2; S.I. 2007/3611, Sch. Pt. 1

Modifications etc. (not altering text)

C5 S. 37(2)(3) modified (1.4.1993) by S.I. 1993/563, art. 2, Sch. 1

S. 37 applied (with modifications) (1.9.1993) by S.I. 1993/1977, regs. 3, 4; (1.8.1995) by S.I. 1995/1453, regs. 3, 4(1); (1.8.1996) by S.I. 1996/1766, regs. 3, 4(1)

C6 S. 37(4)(7) applied (with modifications) (1.8.1995) by S.I. 1995/1453, regs. 3, 4(1); (1.8.1996) by S.I. 1996/1766, regs. 3, 4(1)

Commencement Information

I4 S. 37 wholly in force at 1.4.1993 see s. 94(3) and S.I. 1992/831, art. 2, Sch. 3

38 Payments by council in respect of loan liabilities. E+W

(1) This section applies to any excepted loan liability, that is, any liability of a local authority which—

(a) in the case of a transfer by virtue of section 23 of this Act, would have been transferred but for subsection (3)(a) of that section,

(b) in the case of a transfer by virtue of section 32 of this Act, would have been transferred but for subsection (4)(a) of that section, or

(c) in the case of a transfer by virtue of section 34(4)(a) of this Act, could have been transferred but for subsection (5) of that section.

(2) [F11 The Learning and Skills Council for England] may make payments, on such terms and conditions as the council may determine, to a local authority in respect of the principal of, and any interest on, any excepted loan liability of that authority.

(3) No payment shall be made under this section in respect of any excepted loan liability, where the class or classes of excepted loan liabilities in respect of which payments may be made are for the time being prescribed by an order of the Secretary of State, unless the liability falls within a prescribed class.

(4) The Secretary of State may by order provide for determining—

(a) the amounts that may be paid under this section in respect of the principal of, and any interest on, any excepted loan liability,

(b) the instalments by which any amounts may be paid, and

(c) the rate at which interest may be paid on any outstanding amounts,

and, in the case of any payment to which such an order applies, no amount may be paid under this section in excess of any amount determined in accordance with the order.

Textual Amendments

F11 Words in s. 38(2) substituted (1.4.2006) by The National Council for Education and Training for Wales (Transfer of Functions to the National Assembly for Wales and Abolition) Order 2005 (S.I. 2005/3238), art. 1(1), Sch. 1 para. 20 (with art. 7)

Commencement Information

I5 S. 38 wholly in force at 1.4.1993 see s. 94(3) and S.I. 1992/831, art. 2, Sch. 3

39 Control of disposals of land. E+W

F12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F12 S. 39 repealed (1.10.2002 for E. and 19.12.2002 for W.) by Education Act 2002 (c. 32), s. 215, Sch. 21 para. 16, Sch. 22 Pt. 3; S.I. 2002/2439, art. 3; S.I. 2002/3185, art. 4, Sch. Pt. 1

40 Wrongful disposals of land. E+W

F13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F13 S. 40 repealed (1.10.2002 for E. and 19.12.2002 for W.) by Education Act 2002 (c. 32), s. 215, Sch. 21 para. 16, Sch. 22 Pt. 3; S.I. 2002/2439, art. 3; S.I. 2002/3185, art. 4, Sch. Pt. 1

41 Control of contracts. E+W

F14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F14 S. 41 repealed (1.10.2002 for E. and 19.12.2002 for W.) by Education Act 2002 (c. 32), s. 215, Sch. 21 para. 16, Sch. 22 Pt. 3; S.I. 2002/2439, art. 3; S.I. 2002/3185, art. 4, Sch. Pt. 1

42 Wrongful contracts. E+W

F15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F15 S.42 repealed (1.10.2002 for E. and 19.12.2002 for W.) by Education Act 2002 (c. 32), s. 215, Sch. 21 para. 16, Sch. 22 Pt. 3; S.I. 2002/2439, art. 3; S.I. 2002/3185, art. 4, Sch. Pt. 1

43 Remuneration of employees. E+W

(1) Where, in consequence of a determination by the local education authority or any other person of the rate of remuneration of any employees, the rate of remuneration of any relevant employees would, apart from this section, be increased as from a date (referred to in this section as the “proposed date of increase”) falling after 1st September 1992, the authority—

(a) shall notify the Secretary of State in writing of the determination and the proposed date of increase, and

(b) shall not pay any relevant employee at the new rate unless the increase is authorised under this section by the Secretary of State.

(2) In this section “relevant employees” means persons who are employed at institutions which are relevant institutions by virtue of section 39(2)(a) or (b) of this Act.

[F16 (3) This section does not apply to remuneration determined in accordance with an order under section 122 of the Education Act 2002 (determination of school teachers’ pay and conditions).]

(4) Where the Secretary of State receives a notification under subsection (1) above, he shall, before the end of the period of four weeks beginning with the day on which he received the notification, either—

(a) authorise the increase resulting from the determination so far as it relates to relevant employees, or

(b) afford to the authority, and to such persons appearing to him to be representative of relevant employees affected by the determination as he considers appropriate, an opportunity of making representations to him in respect of the determination.

(5) After considering any representations made to him under subsection (4)(b) above, the Secretary of State shall—

(a) authorise the increase resulting from the determination, or

(b) refuse to authorise the increase,

so far as it relates to relevant employees.

(6) The Secretary of State shall give written notification of any decision under subsection (4)(a) or (5) above to the local education authority and, in the case of subsection (5) above, to any other persons who made representations to him under subsection (4)(b) above.

(7) Subsection (8) below applies where—

(a) by virtue of this section a relevant employee is not paid at the new rate on the proposed date of increase, but

(b) the Secretary of State authorises the increase after that date.

(8) Where this subsection applies, the employee concerned shall, for the purpose of determining the terms of any contract affected by section 26 of this Act, be regarded as having been entitled under his contract of employment to be paid by the local education authority at the new rate as from the proposed date of increase.

Textual Amendments

F16 S. 43(3) substituted (1.8.2003) by Education Act 2002 (c. 32), s. 216(2), Sch. 21 para. 17 (with ss. 210(8), 214(4)); S.I. 2003/1667, art. 2

Commencement Information

I6 S. 43 wholly in force at 6.5.1992 see s. 94(3) and S.I. 1992/831, art. 2, Sch. 1