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	Statutory Instruments made by the National Assembly for Wales
You are here: BAILII >> Databases >> Statutory Instruments made by the National Assembly for Wales >> The New Maintained Schools (Wales) Regulations 2005 No. 2912 (W.209) URL: http://www.bailii.org/wales/legis/num_reg/2005/20052912e.html

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"the 1996 Act" ("Deddf 1996") means the Education Act 1996[5];

"the 1998 Act" ("Deddf 1998") means the School Standards and Framework Act 1998;

"the 2000 Act" ("Deddf 2000") means the Learning and Skills Act 2000[6];

"the 2002 Act" ("Deddf 2002") means the Education Act 2002;

"the Government Regulations" ("y Rheoliadau Llywodraethu") means the Government of Maintained Schools (Wales) Regulations 2005[7];

"head teacher" ("pennaeth") includes a person who has been appointed as the head teacher of a new school but who has not yet taken up the post;

"local education authority" ("awdurdod addysg lleol") means the local education authority by which a maintained school is, or a proposed such school is to be, maintained;

"new school" ("ysgol newydd") has the meaning given by section 72(3) of the 1998 Act;

"pupil" ("disgybl") has the meaning given by section 3 of the Education Act 1996[8]; and

"school teacher" ("athro neu athrawes ysgol") has the meaning given by section 122 of the 2002 Act.

    (2) In these Regulations, references to a school having a delegated budget are to be interpreted in accordance with section 39(2) of the 2002 Act.

    (3) In these Regulations the "general modifications" mean the following modifications to the Government Regulations—

(a) "new school" is substituted for "school" and "maintained school";

(b) "temporary" is inserted before the words "governing body", "governor" and "governorship";

(c) references to a particular category of governor are to be read as references to the corresponding categories of temporary governor set out in Part 3 of these Regulations; and

(d) references to a head teacher are to include a person who has been appointed as the head teacher of a new school but who has not yet taken up the post.

    (4) Any reference in these Regulations to—

(a) a committee is a reference to a committee established by the temporary governing body to which the temporary governing body has delegated any of its statutory functions;

(b) a temporary governing body is a reference to the temporary governing body of any school or proposed school in respect of which the provision applies;

(c) a temporary governor of a particular category is to be interpreted in accordance with Part 3.

    (5) Unless the context otherwise requires, any reference in these Regulations to—

(a) a numbered regulation is a reference to the regulation bearing that number in these Regulations;

(b) a numbered paragraph is a reference to the paragraph bearing that number in the regulation in which the reference appears; and

(c) a numbered sub-paragraph is a reference to the sub-paragraph bearing that number in the paragraph in which the reference appears.

Service of notices
     4. Any notice required to be served by or under these Regulations must be served in accordance with section 572 of the 1996 Act.

(a) as to whether the power given to the local education authority in paragraph (1) above should be exercised; and

(b) if the local education authority proposes to exercise it, as to the date on which the arrangements should be made.

    (3) If proposals are to establish a voluntary aided or foundation school, the local education authority and the promoters must consider—

(a) whether the power given to the local education authority in paragraph (1) above should be exercised, and

(b) where they agree that it should, on what date the arrangements should be made.

    (4) Where in a case falling within paragraph (3) the local education authority and the promoters fail to agree on the question referred to in sub-paragraph (a) or on that referred to in sub-paragraph (b), either of them may refer the matter to the National Assembly for Wales and on a reference under this paragraph the National Assembly for Wales must give such direction as it thinks fit.

Agreements necessary for arrangements
     6. —(1) Where proposals to establish a foundation school or a voluntary school have been published by promoters, a local education authority must not make arrangements in respect of the school without the agreement of the promoters as to any provision to be made in relation to the temporary foundation governors.

    (2) In the event of any disagreement between the local education authority and the promoters in respect of the provision referred to in paragraph (1), either of them may refer the issue to the National Assembly for Wales and, on a reference under this paragraph the National Assembly for Wales, must give such direction as it thinks fit.

Termination of arrangements
     7. Any arrangements made under regulation 5 must come to an end as soon as reasonably practicable if—

(a) the proposals are withdrawn;

(b) the proposals are rejected under paragraph 8 of Schedule 6 or paragraph 14 of Schedule 7 to the 1998 Act;

(c) in the case of proposals not requiring approval under paragraph 8 of Schedule 6 to the 1998 Act, the body or promoters by whom the proposals were published determine under paragraph 9 of Schedule 6 to the 1998 Act not to implement them; or

(d) the National Assembly for Wales determine under paragraph 10(3) of Schedule 6 to the 1998 Act that paragraph 10(1) of that Schedule should cease to apply to the proposals.

Temporary parent governors
     9. —(1) A "temporary parent governor" is a person appointed to be a member of the temporary governing body of a new school by—

(a) the local education authority, in the first case; or

(b) the promoters, in the second case.

    (2) Where one or more maintained schools have been, or are to be, discontinued ("the discontinued schools"), and the registered pupils at such school or schools, or a substantial number of those pupils, are expected to transfer to a new school,

(a) the local education authority, in the first case, or

(b) the promoters, in the second case,

may provide for the governing body of the discontinued school or schools to appoint some or all of the temporary parent governors of the new school.

    (3) No person may be appointed as a temporary parent governor of a voluntary controlled school by a local education authority, and no provision referred to in paragraph (2) above may be made in respect of a voluntary controlled school, unless the local education authority has first consulted the promoters.

    (4) Subject to paragraphs (5) and (6), no person may be appointed as a temporary parent governor of a new school unless—

(a) he or she is the parent of a child who is or is likely to become a registered pupil at the school; or

(b) where it is not reasonably practicable to appoint such a person, he or she is the parent of a child of compulsory school age, or in the case of a new maintained nursery school, the parent of a child of or under compulsory school age.

    (5) No person may be appointed as a temporary parent governor of a school which is or will be a community or foundation special school not established in a hospital unless he or she is—

(a) the parent of a child who is or is likely to become a registered pupil at the school;

(b) the parent of a child of compulsory school age with special educational needs;

(c) the parent of a person of any age with special educational needs; or

(d) a parent of a child of compulsory school age.

    (6) A person referred to in sub-paragraphs (b), (c) or (d) of paragraph (5) may only be appointed if it is not reasonably practicable to appoint a person referred to in the provision in that sub-paragraph which immediately precedes it.

    (7) A person is disqualified from appointment as a temporary parent governor if he or she is—

(a) an elected member of the local education authority;

(b) employed by the local education authority in connection with its functions as a local education authority; or

(c) paid, or likely to be paid, to work at the school for more than 500 hours in any twelve month period commencing on 1 August and finishing on 31 July.

    (8) A person is not disqualified from continuing to hold office as a temporary parent governor when he or she ceases to fulfil any of the requirements set out in paragraphs (5) and (6), unless he or she is otherwise disqualified under these Regulations.

Temporary staff governors
     10. —(1) A "temporary staff governor" is a person appointed to be a member of a temporary governing body of a new school in accordance with this regulation.

    (2) The local education authority in the first case and the promoters in the second case must—

(a) determine whether a temporary staff governor should be included on the temporary governing body of the new school in accordance with the Government Regulations (as modified by these Regulations) and, if they so determine,

(b) appoint a temporary staff governor.

    (3) No person may be appointed under paragraph (2) unless he or she is employed to work at a maintained school, other than as a school teacher, at the time when he or she is appointed.

    (4) A temporary staff governor at a new school is, upon ceasing to be employed at a maintained school, disqualified from continuing to hold office as such a governor

Temporary teacher governors
     11. —(1) A "temporary teacher governor" is a person who is appointed to be a member of the temporary governing body of a new school in accordance with this regulation.

    (2) In the first case, a temporary teacher governor must be appointed by the temporary governing body.

    (3) In the second case, a temporary teacher governor must be a person nominated by the promoters and appointed by the local education authority.

    (4) Where one or more maintained schools have been, or are to be, discontinued and the registered pupils of the school or schools, or a substantial number of them, are expected to transfer to a new school,

(a) the local education authority, in the first case, or

(b) the promoters, in the second case,

may provide for the governing body of the discontinued school or schools to appoint some or all of the temporary teacher governors of the new school.

    (5) No provision referred to in paragraph (4) above may be made in respect of a voluntary controlled school unless the local education authority has first consulted the promoters.

    (6) No person may be nominated or appointed as a temporary teacher governor unless he or she is a school teacher employed at a maintained school.

    (7) A temporary teacher governor is, upon ceasing to work at a maintained school, disqualified from continuing to hold office as such a temporary governor.

Temporary LEA governors
     12. —(1) A "temporary LEA governor" is a person appointed to be a member of the temporary governing body of a new school by the local education authority.

    (2) A person is disqualified from appointment as a temporary LEA governor of a school if he or she is eligible to be a temporary staff governor or a temporary teacher governor of a school.

Temporary community governors
     13. —(1) A "temporary community governor" is a person who is appointed to be a member of the temporary governing body of a new school by the temporary governing body and who is:

(a) a person who lives or works in the community served, or to be served, by the new school; or

(b) a person who, in the opinion of the temporary governing body, is committed to the good government and success of the new school.

    (2) A person is disqualified from appointment as a temporary community governor if he or she:

(a) is or is likely to become a registered pupil at the new school;

(b) is eligible to be a temporary staff governor or temporary teacher governor of the new school; or

(c) is an elected member of the local education authority.

Additional temporary community governors
     14. —(1) A "additional temporary community governor" is a person who is appointed to be a member of the temporary governing body of a new school by the temporary governing body having been nominated in accordance with regulation 20 of the Government Regulations as modified by these Regulations.

    (2) Regulation 13(2) does not apply to additional temporary community governors.

Temporary foundation governors
     15. —(1) A "temporary foundation governor" is a person who is appointed as a member of the temporary governing body of a new school, otherwise than by the local education authority, and who:

(a) where the new school has, or the proposals for its establishment indicate that it will have, a particular religious character designated or intended to be designated by order under section 69(3) of the 1998 Act, is appointed for the purpose of securing that the character is established and developed;

(b) where the new school has or will have a trust deed, is appointed for the purpose of securing that new school is established and conducted in accordance with that deed; or

(c) where the new school does not have, nor will have, either a particular religious character or a trust deed, is appointed as a temporary foundation governor of the new school.

    (2) An "ex officio temporary foundation governor" is a temporary foundation governor who is the holder of an office by virtue of which he or she is entitled to be a temporary foundation governor.

    (3) An ex officio temporary foundation governor is, upon ceasing to hold the office from which his or her temporary governorship derives, disqualified from continuing to hold office as such a temporary governor.

Temporary partnership governors
     16. —(1) A "temporary partnership governor" is—

(a) in the case of a new foundation school or a new foundation special school proposals for the establishment of which were published by a local education authority, a person appointed as such by the local education authority;

(b) in any other case, a person nominated as such by the promoters and appointed as such by the local education authority.

    (2) A person who nominates a person for appointment as, or appoints a person as, a temporary partnership governor must be satisfied that the nominee or appointee appears to be—

(a) from the community which the new school serves or will serve; or

(b) committed to the good government and success of the school.

    (3) A person is disqualified from nomination or appointment as a temporary partnership governor of a new school if he or she:

(a) is a parent of a child who is or is likely to become a registered pupil at the new school;

(b) is or is likely to become a registered pupil at the new school;

(c) is eligible to be a temporary staff governor or temporary teacher governor of the new school;

(d) is an elected member of the local education authority; or

(e) is employed by the local education authority in connection with its functions as a local education authority.

Temporary representative governors
     17. A "temporary representative governor" is a person appointed in accordance with paragraphs (4) or (5) of regulation 15 of the Government Regulations as modified by these Regulations.

Temporary sponsor governors
     18. —(1) A "temporary sponsor governor" is a person appointed to be a member of a temporary governing body of a new school in accordance with paragraph (3).

    (2) "Sponsor" in relation to a school means:

(a) a person who gives or has given substantial financial assistance (which for these purposes includes benefits in kind) to the school other than pursuant to a statutory obligation; or

(b) any other person (not being otherwise represented on the governing body) who provides or has provided substantial services to the school.

    (3) Where a new school has one or more sponsors, the temporary governing body may appoint one or two temporary sponsor governors, nominated in accordance with paragraph (4).

    (4) Where the temporary governing body intends to appoint temporary sponsor governors, it must seek nominations for such appointments from the school's sponsor or, as the case may be, from one or more of the school's sponsors.

Experience required of temporary governors
     19. —(1) Any person responsible for the appointment of a person as a temporary governor must have regard to the desirability of that person being suitably experienced.

    (2) A person is suitably experienced for the purposes of paragraph (1)—

(a) if he or she has served as a governor or a temporary governor of a maintained school; and

(b) in a case where registered pupils at a school which has been, or is to be, discontinued are expected to transfer to a new school to which the appointment relates, if he or she has served as a governor or a temporary governor of the school which has been, or is to be discontinued.

Joint appointments
     20. If a temporary governor is to be appointed by persons acting jointly, and those persons fail to make an agreed appointment, the appointment must be made by, or in accordance with a direction given by the National Assembly for Wales.

    (3) After a resolution to remove a governor from office has been passed, the temporary governing body must inform the person removed from office of the reasons for the removal in writing.

Qualifications and disqualifications
     25. Schedule 5 to the Government Regulations applies, subject to the general modifications, for the purpose of setting out the circumstances in which a person is qualified or disqualified for holding or continuing to hold office, or for being appointed or nominated as a temporary governor of a new school.

Expenses
     26. Where a temporary governing body is constituted for a new school the local education authority is under the same duty to defray the expenses incurred in relation to the temporary governing body as they would be if the relevant proposals had been implemented and the temporary governing body were the governing body of the school[12].

Explanatory information
     27. The local education authority must secure that the members of the temporary governing body of a new school are, on being appointed, provided (free of charge) with such information as the authority consider they require to enable the temporary governing body to discharge its functions effectively.

(a) references to a governing body are treated as references to a temporary governing body;

(b) references to a maintained school are treated as including a reference to a proposed maintained school;

(c) references to the instrument of government are treated as references to the instrument of government whether or not it has taken effect; and

(d) section 61(3)(b) and (7) of the 1998 Act and paragraph 2(2) and (3) of Schedule 1 to the 2002 Act do not apply.

    (2) The temporary governing body of a proposed school which does not have a delegated budget may not exercise any of the powers set out in paragraph 3 (3)(b) to (f) of Schedule 1 to the 2002 Act (as modified) without the prior agreement in writing of—

(a) the local education authority in the case of a proposed school which will be a community, voluntary controlled, community special or foundation special school, a maintained nursery school or a foundation school proposals for the establishment of which were published by a local education authority; or

(b) the promoters in the case of a proposed school which will be a voluntary aided school or a foundation school, proposals for the establishment of which were published by promoters.

Conduct of the school on or after the school opening date
     31. —(1) During the period—

(a) beginning with the school opening date; and

(b) ending with the time when the governing body are constituted for the school under an instrument of government,

Schedule 1 to the 2002 Act applies[14] with the modifications set out in paragraph (2).

    (2) The modifications are as follows—

(a) for references to "governing body" there are substituted references to "temporary governing body";

(b) in paragraph 2(1) of Schedule 1 to the 2002 Act, the words "as for the time being set out in the school's instrument of government" are omitted; and

(c) paragraph 2(2) and (3) of Schedule 1 to the 2002 Act does not apply.

Execution of documents by the temporary governing body
     32. —(1) Only the chair of the temporary governing body, or where that is not reasonably practicable the vice-chair, may make and issue instruments on behalf of the temporary governing body.

    (2) Every document purporting to be an instrument made or issued by or on behalf of the temporary governing body and to be signed or executed by the chair or vice chair of the temporary governing body must be received in evidence and be treated, without further proof, as being so made or issued unless the contrary is shown.

Preparation of the curriculum
     33. —(1) The head teacher of a proposed school must, in preparing to discharge his or her functions under Part 7 of the 2002 Act in relation to the curriculum for the school, consult the temporary governing body and the local education authority.

    (2) Any local education authority who have been consulted under paragraph (1) must inform the head teacher of the resources which are likely to be made available to the school, and the head teacher must have regard to any such information given.

School terms, holidays and sessions
     34. —(1) In the case of a proposed school which will be a community, voluntary controlled, community special school or maintained nursery school—

(a) the local education authority must determine the dates when the school terms and holidays are to begin and end; and

(b) the temporary governing body must determine the times of the school sessions after consultation with the local education authority.

    (2) In the case of a proposed school which will be a foundation, voluntary aided or foundation special school, the temporary governing body must determine—

(a) the dates and times when the school terms and holidays are to begin and end; and

(b) the times of the school sessions.

    (3) In this regulation "the times of the school sessions" means the times at which each of the school sessions (or, if there is only one, the school session) is to begin and end on any day.

Reports and Information
     35. —(1) The temporary governing body of a new school must provide the local education authority with such reports in connection with the discharge of its functions as the authority may require (either on a regular basis or from time to time) for the purposes of the exercise of any of the authority's functions.

    (2) The head teacher of a new school must provide the temporary governing body or the local education authority with such reports in connection with the discharge of his or her functions as that body or the authority may require (either on a regular basis or from time to time) for the purposes of the exercise of any of their functions.

    (3) Where a requirement under paragraph (2) is imposed on the head teacher by the authority—

(a) the authority must notify the temporary governing body of that requirement; and

(b) the head teacher must give the temporary governing body a copy of any report made by him or her in complying with it.

Consultation on expenditure by a local education authority
     36. Where the proposed school does not have a delegated budget, the local education authority must consult the temporary governing body and the head teacher on the authority's proposed expenditure on books, equipment and stationary for the school.

the appointment must be made by, or in accordance with a direction given by, the National Assembly for Wales.

Property, rights and liabilities
     46. On the incorporation date—

(a) all land and other property which, immediately before the incorporation date, was vested in the temporary governing body, and

(b) all rights and liabilities of the temporary governing body subsisting immediately before that date,

are, by virtue of this regulation, transferred to and vest in the governing body constituted under the instrument of government.

Rights and liabilities under a contract of employment
     47. Without prejudice to the generality of regulation 46, where that regulation effects a transfer of rights and liabilities under a contract of employment—

(a) the contract has effect from the incorporation date as if originally made between the employee and the governing body constituted under the instrument of government, and

(b) without prejudice to paragraph (a), anything done before that date by or in relation to the temporary governing body in respect of that contract or the employee is deemed from that date to have been done by or in relation to the governing body constituted under the instrument of government,

but no right of the employee to terminate his or her contract of employment if a substantial change is made to his or her detriment in his or her working conditions arises by reason only of the change of employer effected by that regulation.

Information for successors
     48. —(1) Immediately before the incorporation date, the temporary governing body must prepare, for the purpose of assisting the governing body who will succeed it, a brief report of the action which it has taken in the discharge of its functions relating to the new school.

    (2) All minutes and papers of a temporary governing body relating to the new school, including the report prepared under paragraph (1), must be made available to its successors.

[2] By virtue of section 212(2) of the 2002 Act the powers conferred by these provisions are exercisable by the National Assembly for Wales only in relation to Wales.back

[3] S.I. 1998/3097.back

[4] S.I. 1999/2243 (W.3).back

[5] 1996 c.56.back

[6] 2000 c.21.back

[7] S.I. 2005/2914 (W. 211).back

[8] Section 3 was amended by paragraph 34 of Schedule 21 to the Education Act 2002.back

[9] Proposals may be published under section 28 or 31 of, or paragraph 5 of Schedule 7 to, the 1998 Act or section 113A of the 2000 Act.back

[10] Under paragraph 8 of Schedule 6 or paragraph 13 of Schedule 7 to the 1998 Act or section 113A(5)(a) of the 2000 Act.back

[11] Under paragraph 9 of Schedule 6 to the 1998 Act.back

[12] See the Education (Governor Allowances) (Wales) Regulations 2005, S.I. 2005/2915 (W.212).back

[13] Section 34(7) of the 2002 Act provides that for the purposes of section 30(3) of that Act and sections 495 to 498 of the 1996 Act, the temporary governing body is to be treated as if it was the governing body at any time before the school opening date.back

[14] Under section 34(7) of the 2002 Act, the temporary governing body of a school is to be treated for the purposes of the Education Acts as if it was the governing body during the period beginning with the school opening date and ending with the time the governing body is constituted under an instrument of government; subject to section 34(8) under which Schedule 1 does not apply to temporary governing bodies unless provided for in regulations made under section 34(5).back

[15] 1998 c.38.back

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