A Guide for Local Authorities

Establishing a

New Maintained MainstreamSchool

A Guide for Local Authorities

For further information:

School Organisation & Competitions Unit

DCSF

Mowden Hall

Darlington

DL3 9BG

Tel: 01325 391274

Email:

Website:

Last updated 1 February 2010

Contents

ESTABLISHING A NEW MAINTAINED MAINSTREAMSCHOOL - A GUIDE FOR LOCAL AUTHORITIES

Contents – click on page number to follow link to relevant section:

Introduction (Paragraphs 1-16)______

Who is this Guide for? (Paragraph 4)

School Organisation Planning Requirements (Paragraphs5-7)

The Secretary of State’s role (Paragraphs8-9)

The School Competition Process (Paragraphs10-11)

Proposers other than an LA wish to establish a new maintained school (Paragraphs12-14)

What this guidance covers (Paragraph15)

Where to start? (Paragraph16)

Part A – Establishing a School by Competition______

Overview (Paragraphs1-19)

When is a school competition required? (Paragraphs6-7)

Amalgamations/Mergers (Paragraph8)

Identifying the requirement (Paragraph9)

Capital funding (Paragraphs10-15)

School Site (Paragraphs16-17)

Section 106 Agreements (Paragraph18)

Stages and prescribed timeline (Paragraph19)

Stage 1 – Consultation (Paragraphs1.1-1.11)

Area Reorganisations (Paragraph 1.11)______

Stage 2 - Invitation to Bid (Paragraphs2.1-2.19)

Compulsory Purchase Orders (Paragraph2.5)

Proposer Engagement (Paragraphs2.6-2.10)

Submission of Proposals (Paragraphs2.11-2.12)

What if the LA wish to publish community school proposals in the competition? (Paragraph2.13)

When will consent be given? (Paragraphs2.14-2.15)

Applying for consent to publish community school proposals (Paragraphs2.16-2.17)

Timing and handling (Paragraphs2.18-2.19)

Stage 3 – Publication of the Second Competition Notice (Paragraphs3.1-3.7)

Related proposals (Paragraph3.5)

Who should be sent copies of proposals? (Paragraphs3.6-3.7)

Stage 4 – Representations (Paragraphs4.1-4.2)

Public Meeting to raise public awareness (Paragraph4.2)

Stage 5 – Decision (Paragraphs5.1-5.9)

Who Will Decide the Proposals? (Paragraphs5.1-5.6)

LA Decision Making (Paragraph5.7)

Who Can Appeal Against a Decision? (Paragraph5.8)

Decision Makers’ Guidance (Paragraph5.9)

Stage 6 – Implementation (Paragraphs6.1-6.11)

Can proposals be modified? (Paragraphs6.4-6.6)

Revocation (Paragraphs6.7-6.10)______

Admission arrangements (Paragraph6.11)

Part B - Establishing a school without a Competition

Overview (Paragraphs1-23)

Amalgamations/Mergers (Paragraphs4-7)

Applying for consent to publish proposals (Paragraphs8-9)

When will consent be given? (Paragraphs10-11)

Information required (Paragraph12)

Timing and handling (Paragraphs13-14)

Capital Funding (Paragraphs15-19)

School Site (Paragraphs20-21)

Section 106 Agreements (Paragraph22)

Statutory Proposal Process (Paragraph23)

Stage 1 – Consultation (Paragraphs1.1-1.7)

Stage 2 – Publication (Paragraphs2.1-2.11)

Related proposals (Paragraph2.5)

Implementation date (Paragraph2.6)

Explanatory note (Paragraph2.7)

Invalid notice (Paragraph2.8)

Who should be sent copies of the proposals? (Paragraphs2.9-2.10)

Compulsory Purchase Orders (Paragraph2.11)

Stage 3 – Representations (Paragraphs3.1-3.2)

Stage 4 – Decision (Paragraphs4.1-4.11)

Who Will Decide the Proposals? (Paragraphs4.1-4.8)

Who Can Appeal Against a Local Authority Decision? (Paragraphs4.9-4.10)

Decision Makers’ Guidance (Paragraph4.11)

Stage 5 – Implementation (Paragraphs5.1-5.11)

Can proposals be modified? (Paragraphs5.4-5.6)

Revocation (Paragraphs5.7-5.10)______

Admission arrangements (Paragraph5.11)

PART C

Decision Makers’ Guidance on Establishing a New School (Paragraphs1-99)

Checks on Receipt of Statutory Proposals (Paragraph2)

Does the Published Notice Comply with Statutory Requirements? (Paragraph3)

Has the Statutory Consultation Been Carried Out Prior to the Publication of the Notice? (Paragraph4)

Are the Proposals Related to Other Published Proposals? (Paragraphs5-9)

Proposals published for a National Challenge Trust school or National Challenge federation(Paragraph10)

Statutory Guidance – Factors to be Considered by Decision Makers (Paragraphs11-12)

EFFECT ON STANDARDS AND SCHOOL IMPROVEMENT

A System Shaped by Parents (Paragraphs13-14)

School Competitions (Paragraphs15-16)

Standards (Paragraphs17-18)

Diversity (Paragraphs19-25)

Fresh Start /Collaborative Restart (Paragraph26)

Every Child Matters (Paragraph27)

TYPES OF SCHOOLS______

The Importance of Partnerships (Paragraphs28-29)

Trust Schools (Paragraphs30-34)

Foundation Body (Paragraph35)

Academies (Paragraph36-37)

Independent Schools (Paragraphs38-40)

SCHOOL CHARACTERISTICS______

Boarding Provision (Paragraph41)

Grammar Schools (Paragraph42)

School Size (Paragraph43)

Proposed Admission Arrangements (Paragraph44)

National Curriculum (Paragraphs45-46)

Specialist Schools (Paragraphs47-49)

Extended Schools (Paragraph50)

Federations (Paragraph51)

Equal Opportunity Issues (Paragraph52)

NEED FOR PLACES______

Creating Additional Places (Paragraphs53-55)

IMPACT ON THE COMMUNITY & TRAVEL______

Community Cohesion and Race Equality (Paragraphs56-58)

Travel and Accessibility for All (Paragraphs59-60)

SPECIFIC AGE PROVISION ISSUES

Early Years Provision (Paragraph61)

14-19 Curriculum and Collaboration (Paragraphs62-63)

16-19 Provision (Paragraphs64-66)

Conflicting Sixth Form Reorganisation Proposals (Paragraph67)

FUNDING & LAND______

Capital (Paragraphs68-71)

Capital Receipts (Paragraphs72-74)

New Voluntary Aided School Funding (Paragraph75)

New Site or Playing Fields (Paragraph76)

Land Tenure Arrangements (Paragraphs77-80)

School Playing Fields (Paragraphs81-82)

Special Educational Needs (SEN) Provision______

Initial Considerations (Paragraphs83-84)

The Special Educational Needs Improvement Test (Paragraph85)

Key Factors (Paragraphs86-89)

OTHER ISSUES______

Views of Interested Parties (Paragraph90)

Types of Decision (Paragraphs91-94)

Conditional Approval (Paragraphs95-96)

Decisions (Paragraphs97-99)

Annex A - Part 1 – Information required to be included in an Invitation to Bid Statutory Notice (published part of the first competition notice) to establish a mainstream school.

Annex A – Part 2 – Information required to be included in an Invitation to Bid Complete Proposal (for the first competition notice) to establish a mainstream school.

Annex B – Information required to be provided by proposers in response to an Invitation to Bid (Competition) Notice to establish a mainstream school.

Annex C – Section 8 Application Form______

Annex D – Section 10 Application Form______

Annex E – Part 1 – Information required to be included in section 10 and 11 Statutory Notices to establish a mainstream school outside of a competition.

Annex E – Part 2 – Information required to be included in section 10 and 11 Complete Proposals to establish a mainstream school outside of a competition.

Contents

INTRODUCTION

ESTABLISHING A NEW MAINTAINED MAINSTREAMSCHOOL - A GUIDE FOR LOCAL AUTHORITIES

Introduction (Paragraphs 1-16)

1.This guide provides information on the procedures established by The Education and Inspections Act 2006 (EIA 2006) and The School Organisation (Establishment and Discontinuance of Schools)(England) Regulations 2007 (as amended by The School Organisation and Governance (Amendment)(England) Regulations 2007 which came into force on 21 January 2008 and The School Organisation and Governance (Amendment) (England) Regulations 2009 which came into force on 1 September 2009). For your convenience, a consolidated version of the Establishment and Discontinuance Regulations and the two sets of Amending Regulations can be found at: The relevant provisions of the EIA 2006 came into effect on 25 May 2007.

2.This guide contains both, statutory guidance (i.e. guidance to which authorities have a statutory duty to have regard) and non-statutory guidance, on the process for opening anew school; supplementary guidance is available forspecial schools under the relevant guidance section on the School Organisation website at: The statutory guidance sections are indicated by shading orwith the wordmustin bold.

3.If youhave any comments on the content or layout of this guide, please sendtheseto the School Organisation & Competitions Unit(using the School Organisation website's "Contact Us" facility [ or by email to: ) making sure that you identify the title of the guide and quote the page and paragraph numbers where relevant.

Who is this Guide for?(Paragraph 4)

4.This guide is for local authorities (LAs) who have identified a requirement for a new school and wish to either, run a competition, enter a bid in a competition, publish proposals for a new school without running a competition, or who are required to decide proposals for a new school proposed by proposers other than the LA. Separate guides are available from the School Organisation website ( for proposers (other than LAs):

• who wish to publish proposals for a new school in response to a competition - “Guide for people wishing to enter a new school competition”;

• of new maintained schools where:

(i)the proposer requests the Secretary of State to give consent for proposals to be published without a competition – “Guide for people wishing to set up a new school outside of a competition”; or

(ii)the proposers have received consent and had their new school proposals approved – “Guide for people implementing proposals for a new maintained school”; or

(iii) the proposers are seeking to bring an independent school that has been registered for a continuous period of at least two years into the maintained sector (i.e. where the Secretary of State’s consent to publish is not required) – “Guide for independent schools wishing to join the maintained sector”.

In addition, a guide on establishing National Challenge Trusts and Federations is available from the Department’s National Challenge website:

School Organisation Planning Requirements (Paragraphs5-7)

5.LAs are under a statutory duty to ensure that there are sufficient school places in their area, promote high educational standards, ensure fair access to educational opportunity and promote the fulfilment of every child’s educational potential. They must also ensure that there are sufficient schools in their area, promote diversity and increase parental choice.

6.Parents can make representations about the supply of school places and LAs have a statutory dutyto respond to these representations. Further guidance on this duty is available in “Duty to Respond to Parental Representations about the Provision of Schools” which is on the School Organisation website at:

7.Currently, LAs must publish a Children and Young People’s Plan (CYPP) as the single strategic overarching plan for all services affecting children and young people and includes reference to strategic planning for school places. It is for LAs, in partnership with other stakeholders, to plan for the provision of places. LAs should also explore the scope for collaborating with neighbouring authorities when planning the provision of schools. In particular, LAs are encouraged to work together to consider how to meet the needs of parents seeking a particular type of school for their children in cases where there is insufficient demand for such a school within the area ofan individual LA.

Responsibility for CYPPs is passing to The Children’s Trust Board for each area and from 1 April 2011 each will be required to have a new 'jointly owned' CYPP in place.

Children’s Trusts are the sum total of co-operation arrangements and partnerships between organisations with a role in improving outcomes for children and young people in each area. The Trust is not in itself a separate legal entity; each partner retains its own functions and responsibilities within the partnership framework. However, the Apprenticeships, Skills, Children and Learning Act 2009 strengthens Children’s Trusts by requiring all local authorities to have a Children’s Trust Board in place by April 2010. It also extends the number of statutory “relevant partners” who will be represented on the Board to include schools (including Academies), colleges, Job Centre Plus and the management committees of short stay schools (formerly PRUs).

In each local authority area the Children’s Trust Board will be responsible for preparing and monitoring the implementation of the CYPP. This will give ownership of the plan to the partnership – whereas at present the CYPP is the responsibility of the local authority alone.

The Secretary of State’s role (Paragraphs8-9)

8.The Secretary of State has the power to issue guidance to which the Decision Maker must have regard when they decide proposals. This should ensure that proposals and feedback received from stakeholders are considered in a consistent way and that Ministers’ key priorities for raising standards and transforming education are taken into account when decisions are taken. When drawing up their proposals, proposers are strongly advised to look at the factors which the Decision Maker must take into account when considering their proposals (seePart C).

9.The Secretary of State does not decide statutory proposals relating to schools, except where proposals have been published by the Learning and Skills Council (LSC) under section 113A of the Learning and Skills Act 2000 (as inserted by section 72 of the Education Act 2002), for changes to 16-19 provision in schools. For further information please see guidance “School Organisation Proposals by the Learning and Skills Council” available at:

The School Competition Process (Paragraphs10-11)

10.There are specific statutory requirements for the establishment of any new maintained schools – whether they are to be brand new schools (e.g. to meet population growth) or to replace existing schools (e.g. flowing from a reorganisation). These provisions do not apply to proposals to re-build a school on its existing site or to transfer an existing school to a new site.

11.Where the LA wish to see a new or replacement maintained school established they must either:

• invite proposals for the school as provided for in section 7 of EIA 2006 and The School Organisation (Establishment and Discontinuance) (England) Regulations 2007 (SI: 2007 No 1288) (as amended). The process is generally referred to as a “competition”. This is expected to be the route by which most new schools will be established; the LA can enter its own “bid” in a competition for either a foundationor a foundation specialschool (and this could be with a foundation i.e. a Trust, or without), or (in specified circumstances) a community or a community special school;
• apply to the Secretary of State for consent to publish proposals for a new or replacement foundation or foundation special school (either with or without a foundation i.e. a Trust), or a community or a community special school, without running a competition (an “exemption” request), as provided for in section 10 of EIA 2006 (see Part B of this guide). It is important to note that the consent being sought, and which can be given from the Secretary of State, to publish proposals for a new school without running a competition, is consent only to publish proposals: it is not permission to establish a new school. Where section 10 consent is granted, the normal statutory process will apply - i.e. Consultation; Publication; Representations; Decision (by the LA or schools adjudicator); Implementation (of approved proposals). In the case of National Challenge Trusts (NCTs) or federations being established after the closure of the predecessor school, section 10 consent is also necessary and further information is also provided in Part B;
• work with the Secretary of State and sponsors to establish an Academy, where this would be appropriate;
• support other proposers wishing to establish a new foundation (either with or without afoundation), voluntary aided or voluntary controlled school; or
• for new maintained nursery schools and new 16-18/19foundation or foundation specialschools (either with or without a foundation) publish proposals for the new school under section 11 of EIA 2006.

Proposers other than an LA that wish to establish a new maintained school(Paragraphs12-14)

12.Where proposers (other than an LA) wish to establish a new maintained foundation or foundation specialschool (with or without a foundation i.e. a Trust), or a voluntary aided or voluntary controlledschool, they musteither enter a bid in a competition, or apply to the Secretary of State for section 10 exemption. There is no provision for proposers other than LAs to hold competitions, or for new maintained schools covering the compulsory school age to be established outside the arrangements detailed here (competition or exemption, unless they are existing independent schools, that have been registered for a continuous period of at least two years, wishing to come into the maintained sector). See paragraph 4 above for further information about relevant guides.

13.It is possible for proposals to establish a new National Challenge Trust (NCT) school or federation after the closure of the predecessor school to be published either by the local authority or by another proposer. In both cases, the consent of the Secretary of State to publish these proposals outside a competition under s10 of the EIA 2006 is also required. Further information on how this can be sought in the context of NCTs is also provided in Part B of this guide. (The normal consultation, publication, representation, decision and implementation arrangements will also apply to the closure proposals for the predecessor school.)

14.Academies are publicly funded independent schools and section 482 of the Education Act 1996 provides for the Secretary of State to enter into funding agreements for new Academies with sponsors. The arrangements detailed here do not, therefore, apply to Academies, although where an LA holds a competition, Academy sponsors may also submit proposals in response to the competition (and where maintained schools will be closing to be replaced by an Academy, the normal consultation, publication, representation, decision and implementation arrangements apply to the school closure proposals).

What this guidance covers(Paragraph15)

15.This guidance covers:

• Part A -the stages involved in running a competition for a new school (under section 7 of EIA 2006), from initial idea to implementation, including arrangements that apply if the LA wish to publish proposals for a community school(under section 8 of EIA 2006);
• Part B - the stages involved in establishing a school under sections 10 or 11 of EIA 2006 (including how an LA can apply for consent for an exemption under section 10); and
• Part C - the Decision Makers’ Guidance for deciding all proposals for a new school.

Where to start?(Paragraph16)

16.Before commencing formal consultation, the LA (or other proposers) must ensure they understand the statutory process that must be followed, the factors that will be considered by the Decision Maker and that they have a sufficiently strong case and supporting evidence for their proposals.

1

PART A

Part A – Establishing a School by Competition

Overview(Paragraphs1-19)

1.A new school competition is the expected route by which most new schools will be established. LAs are required by section 7 of EIA 2006 and the School Organisation (Establishment and Discontinuance) (England) Regulations 2007 (SI: 2007 No 1288) (as amended) to invite proposals from potential providers for any proposed new school. The process is generally referred to as a “competition”. The LA can enter its own “bid” in a competition for either a foundation or a foundation special school (and this could be with a foundation i.e. a Trust, or without), or (in specified circumstances) a community or a community special school.

2.The final decision on competition proposals must be taken by the LA except where the LA:-

a)is the proposer of any proposals;

b)is a member, or appoints a member, of the foundation of a proposed TrustSchool;

c)appoints a charity trustee of the foundation of a proposed TrustSchool; or

d)exercises any voting rights, or appoints a person who exercises voting rights, in the foundation of a proposed TrustSchool.

3.Cases a) to d)must be decided by the schools adjudicator.

4.Where the LA decides the proposals, there is no provision to appeal against the decision to the schools adjudicator. If, however, the LA does not decide the proposals within 2 months of the end of the representation period, the proposals must be referred to the schools adjudicator for decision. The adjudicator’s decision is then final.

5.The following pages include an outline of the main steps in running a competition together with information on the advice and support that is available from the DCSF.

When is a school competition required?(Paragraphs6-7)

6.A competition is required where an LA wishes to establish a new school. This includes cases where:

• a brand new school is required to meet an increase in the local population;

• a school is required to replace a discontinuing school; or

• one or more schools are proposed to be closed and one or more new schools are to be established to replace them.

7.Competitions are not required where: