Part I Provision of Education by Education Authorities

School education and further education

1 Duty of education authorities to secure provision of education. _cross-notes

(1)Subject to [^F1subsections [^F2 (1A)^F2] and (2A)^F1] below, it shall be the duty of every education authority to secure that there is made for their area adequate and efficient provision of school education and further education.

[^F3 (1A)The duty imposed on education authorities by subsection (1) above shall, in relation to children who are under school age, be exercisable only [^F4 to the extent required by section 47(1) of the Children and Young People (Scotland) Act 2014^F4] .

^F5(1B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1C)An education authority shall have power in relation to pre-school children to secure for their area the provision of such school education, other than that which they are required by subsection (1) above to secure, as they think fit.^F3]

^F6(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[^F7 (2A)The duty imposed on an education authority by subsection (1) above shall not include the provision of further education within the meaning of Part I of the Further and Higher Education (Scotland) Act 1992, but an education authority shall have power to provide such further education for their area.^F7]

[^F8 (2B)An education authority must, at least once every two years—

(a)consult such persons as appear to be representative of parents of pre-school children within their area about whether and if so how they should provide school education for such children under subsection (1C) above; and

(b)after having had regard to the views expressed, prepare and publish their plans in relation to the provision of such education for such children under that subsection.

(2C)The Scottish Ministers may by order modify subsection (2B) above so as to vary the regularity within which an education authority must consult and plan in pursuance of that subsection.

(2D)An order made under subsection (2C) above is subject to the negative procedure.^F8]

(3)Every education authority[^F9 shall for the purposes of their duty under subsection (1) above—

(a)^F9] have power to secure for their area, and

(b)^F10. . . be under a duty to secure for pupils in attendance at schools in their area,

the provision of adequate facilities for social, cultural and recreative activities and for physical education and training.

(4)The facilities for further education that may be provided by an education authority shall include facilities for vocational and industrial training.

^F11(4A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[^F12 (4B) In this section “ pre-school children ” means—

(a)children who are under school age and have not commenced attendance at a primary school (other than a nursery class in such a school); and

(b)children who have attained school age but have not commenced attendance at such a school.^F12]

(5)In this Act—

(a) ^F13 “ school education ” means progressive education appropriate to the requirements of pupils . . ., regard being had to the age, ability and aptitude of such pupils, and includes—

[^F14 (i)early learning and childcare;^F14]

[^F15 (ii)provision for special educational needs;^F15]

(iii)the teaching of Gaelic in Gaelic-speaking areas;

(b)further education includes—

(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F16(ii)voluntary part-time and full-time courses of instruction for persons over school age;

(iii)^F10social, cultural and recreative activities and physical education and training, either as [^F17voluntary organised activities designed to promote the educational development of persons taking part therein or as^F17] part of a course of instruction . . .;

(iv)the teaching of Gaelic in Gaelic-speaking areas;

^F18(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F19(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 Secretary of State may prescribe standards, etc., for education authorities.

^F20The Secretary of State may make regulations prescribing the standards and . . . requirements to which every education authority shall conform in discharging their functions under section 1 of this Act[^F21 and without prejudice to the generality of the foregoing, such regulations may include provision as to the testing of pupils in primary schools.^F21]

[^F222ZA Learning hours

(1) An education authority and the managers of a grant-aided school must secure that no fewer than the prescribed number of learning hours (the “prescribed hours”) are made available during each school year to each pupil for whose school education the authority is, or the managers are, responsible (but subject to subsection (3)).

(2)For the purposes of subsection (1)—

(a) an education authority is “responsible” for the school education of a pupil if the pupil belongs to the authority's area and the pupil is, or is about to be, provided with school education—

(i)in a school which is under the management of the authority, or

(ii)by virtue of arrangements made or entered into by the authority,

(b) the managers of a grant-aided school are “responsible” for the school education of a pupil if the pupil is provided with school education in a grant-aided school which is under the management of the managers of the school (except where the education is provided for the pupil in the school by virtue of arrangements as mentioned in paragraph (a)(ii)).

(3) Where any of the circumstances mentioned in subsection (4) (the “relevant circumstances”) apply to a pupil during a school year (the “relevant year”), an education authority may secure that fewer than the prescribed hours are made available to the pupil during the relevant year.

(4)The relevant circumstances are—

(a)that the authority is satisfied that the pupil's wellbeing would be adversely affected if the prescribed hours were to be made available to the pupil during the relevant year,

(b)that, because of matters outwith the control of the authority, it is impracticable for the authority to secure that the prescribed hours are made available to the pupil during the relevant year,

(c)that other prescribed circumstances apply.

(5)Where an education authority exercises the power conferred by subsection (3) in relation to a pupil, the authority must secure that no fewer than the reduced hours are made available to the pupil during the relevant year.

(6) In subsection (5), “ reduced hours ”, in relation to a pupil, means the prescribed hours less the number of learning hours that were not, by virtue of the application of the relevant circumstances in relation to the pupil, made available during the relevant year to the pupil.

(7)For the purposes of subsection (4)(a), the education authority is to determine whether it is satisfied that a pupil's wellbeing would be adversely affected by reference to the extent to which the pupil is or would be—

• safe,

• healthy,

• achieving,

• nurtured,

• active,

• respected,

• responsible, and

• included.

(8)Subsections (3) to (7) apply in relation to the managers of a grant-aided school as they apply in relation to an education authority.

(9) Regulations under subsection (1) or (4)(c), or under the definition of “learning hours” in subsection (12), may—

(a)include transitional or transitory provision,

(b)make different provision for different purposes,

(c)make different provision for different types of pupil.

(10)The Scottish Ministers may by regulations modify the list in subsection (7) so as to amend, remove or add to the matters for the time being mentioned in the list.

(11) Before making any regulations under subsection (1), (4)(c) or (10) or under the definition of “learning hours” in subsection (12), the Scottish Ministers must consult such persons as they consider appropriate.

(12)In this section—

• “ learning hours ” means hours of school education of such type as may be prescribed,

• “ prescribed ” means prescribed by the Scottish Ministers by regulations,

• “ school education ” does not include early learning and childcare,

• “ school year ” means the period of 12 months beginning on 1 August. ^F22]

2A ^F23 Assessment of secondary school pupils.

(1)The Secretary of State may by regulations make provision for the testing and assessment of pupils undertaking the first or second year of secondary education in public ^F24... schools.

(2)It shall be the duty of an education authority ^F25... to comply with the provisions of regulations made in pursuance of subsection (1) above.

(3)Regulations made in pursuance of subsection (1) above may make different provision as to different cases or circumstances.

3 Fees not to be charged in public schools, etc: exceptions.

(1)^F26Subject to the provisions of subsections (2) to (5) below, school education . . . provided by an education authority shall be provided without payment of fees.

(2)An education authority shall have power to charge fees for school education in some or all of the classes in a limited number of schools under their management.

(3)An education authority may award to any pupil in a class in which fees are charged by virtue of subsection (2) above a scholarship, by way of remission in whole or in part of the fee, in any case where, having regard to the pupil’s ability and aptitude, it appears to the authority proper to do so; but such a pupil shall not be regarded for the purposes of section 11(1)(a) of this Act (provision of free books, etc.) as receiving free education.

(4)An education authority shall not exercise the power conferred by subsection (2) above except where it may be exercised without prejudice to the adequate provision of free school education for their area whether—

(a)at schools under their management, or

(b)at other schools by virtue of arrangements made by them with the managers of those schools or, in the case of schools under the management of another education authority, with that authority.

(5)Where an education authority are providing school education for an outwith-area pupil in a school under their management—

(a)in classes in which fees are charged under the provisions of subsection (2) above, the education authority may charge in respect of that pupil, in addition to the fee charged by virtue of that subsection, such extra fee as they think proper,

(b)in classes in which no fees are charged, the education authority may charge in respect of that pupil such fee as they think proper.

In this subsection “ outwith-area pupil ” means, in relation to any education authority, a pupil who is not deemed to belong for the purposes of section 23 of this Act to the area of that authority.

(6)An education authority shall have power to make charges in respect of the use of some or all of—

(a)^F27any facilities for . . . further education provided by them,

(b)any facilities provided by them under section 1(3) of this Act.

[^F28 (7)This section does not apply as respects the provision of school education by virtue of subsections (1) and (1A), or as the case may be subsection (1C), of section 1 of this Act.^F28]

4 Duty of education authorities to provide child guidance service.

^F31It shall be the duty of every education authority to provide for their area[^F29 [^F30. . .] psychological service^F29] ..., and the functions of that service shall include—

^F32(a)the study of children[^F33 having additional support needs^F33] ;]

(b)^F34the giving of advice to parents and teachers as to appropriate methods of education. . . for such children;

(c)^{F35,F38,F39,F38}in suitable cases,. . . provision [^F36for the [^F37 additional support needs^F37] of^F36] such children ... ... ...;

(d)^M1the giving of advice to a local authority within the meaning of the Social Work (Scotland) Act 1968 regarding the assessment of the needs of any child for the purposes of any of the provisions of that or any other enactment.

^F405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 Social activities, physical education, etc.

(1)For the purpose of securing [^F41, under section 1(3) of this Act,^F41] the provision of facilities for social, cultural and recreative activities and physical education and training, an education authority may—

(a)establish, maintain and manage—

(i)camps, outdoor centres, playing fields and swimming pools;

(ii)play areas and centres;

(iii)sports halls, centres and clubs;

(iv)youth, community and cultural centres and clubs,

and other places at which any such facilities as aforesaid are available;

(b)organise holiday classes, games, expeditions and other activities.

(2)In the exercise of their powers under subsection (1) above an education authority—

^F42.0. . .may assist any body whose objects include;

^F43(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the provision or promotion of social, cultural and recreative activities and physical education and training or the facilities for such activities, education and training.

^F44(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 Provision of educational facilities to be in accordance with schemes.

^F45(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F45(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F45(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In considering and determining for the purposes of [^F46their functions under the foregoing provisions of this Act in relation to^F46] the provision of school education what amount of public school accommodation or additional public school accommodation is required for their area, an education authority shall have regard to and take into account every school, whether public or not, and whether situated in the area or not, which, in their opinion, gives, or will when completed give, efficient school education, and is, or will when completed be, suitable and available for the education of the pupils in their area.

(5)An education authority shall for the purposes of subsection (4) above have power to call upon all head teachers and managers of schools other than public schools for such information and for access to and delivery of all such documents as shall to the education authority appear to be necessary to enable them to discharge their duties under this Act, and an education authority may from time to time appoint fit and proper persons to procure such information and to inspect such documents.

(6)[^F47 In the performance of their functions under the foregoing provisions of this Act in relation to^F47] the provision of school education, an education authority shall, in particular, have regard to the expediency of securing the provision of boarding accommodation, either in boarding schools or in hostels, for pupils for whom education as boarders is considered by their parents and by the authority to be desirable.

^F48(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F48(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 Religious instruction.

(1)^F49Whereas it has been the custom in the public schools of Scotland for religious observance to be practised and for instruction in religion to be given to pupils whose parents did not object to such observance or instruction, but with liberty to parents, without forfeiting any of the other advantages of the schools, to elect that their children should not take part in such observance or receive such instruction, be it enacted that education authorities ... shall be at liberty to continue the said custom, subject to the provisions of section 9 of this Act.

(2)^F49It shall not be lawful for an education authority ... to discontinue religious observance or the provision of instruction in religion in terms of subsection (1) above, unless and until a resolution in favour of such discontinuance duly passed by the authority has been submitted to a poll of the local government electors for the education area taken for the purpose, and has been approved by a majority of electors voting thereat.

(3)A poll under subsection (2) above shall be by ballot and shall be taken in accordance with rules to be made by the Secretary of State, which rules may apply with any necessary modifications any enactments relating to parliamentary or local government elections.

9 Conscience clause.

Every public school[^F50 and every grant-aided school^F50] shall be open to pupils of all denominations, and any pupil may be withdrawn by his parents from any instruction in religious subjects and from any religious observance in any such school; and no pupil shall in any such school be placed at any disadvantage with respect to the secular instruction given therein by reason of the denomination to which such pupil or his parents belong, or by reason of his being withdrawn from any instruction in religious subjects.

10 Safeguards for religious beliefs.

^{F51,F52,F51,F55}Where the parent of any pupil who is a boarder at any public school . . . or other educational establishment under the management of an education authority ... requests that the pupil be permitted to attend worship in accordance with the tenets of a particular religious denomination on Sundays or other days exclusively set apart for religious observance by the religious body to which his parent belongs, or to receive religious instruction or to practise religious observance in accordance with such tenets outside the working hours [^F53of the school or other educational establishment, the education authority^F53] shall make arrangements for affording to the pupil reasonable opportunities for so doing, and such arrangements may provide for affording facilities for such worship, instruction or observance on the premises of the school . . . [^F54or other educational establishment^F54] , so however that such arrangements shall not entail expenditure by the education authority ....

11 Provision of books, materials and special clothing free of charge.

(1)An education authority shall provide free of charge for all pupils belonging to their area who are given free education—

(a)^F56at schools. . . under their management, or

(b)at other schools by virtue of arrangements made by them with the managers of those schools or, in the case of schools under the management of another education authority, with that authority,

books, writing materials, stationery, mathematical instruments, practice material and other articles which are necessary to enable the pupils to take full advantage of the education provided; and the authority may make similar provision, with or without charge, for other pupils resident in their area and attending any school or other educational establishment.

(2)An education authority may provide—

(a)^F56,F57for pupils in attendance at any school,. . . or other educational establishment under their management, articles of clothing suitable for physical exercise or for other activities of the school,. . . or establishment for which special clothing is desirable, and

(b)for persons who make use of facilities for physical education or training provided by the authority under section 1(3) of this Act, articles of clothing suitable for such physical education or training.

12 Library service.

(1)^F58An education authority may, as an ancillary means of promoting education, provide, by purchase or otherwise, such books and other printed matter, pictures, gramophone records, tape recordings, films and other materials as they may think desirable, for pupils attending schools,. . . or other educational establishments in their area.

(2)For the purposes of this section, an education authority may—

(a)make such arrangements as they consider necessary for the management of a library service provided by them including the accommodation and distribution of books and other materials, and

(b)enter into arrangements with the managers of public libraries.

13 Provision of hotels.

An education authority may provide and maintain hostels for pupils attending educational establishments in their area.

[^F59 14 Education for children unable to attend school etc. _cross-notes

(1)If an education authority are satisfied that, by reason of—

(a)any extraordinary circumstances (not being circumstances mentioned in paragraph (b), or subsection (2) or (3), below)—

(i)a pupil is unable; or

(ii)it would be unreasonable to expect a pupil,

to attend a suitable educational establishment for the purpose of receiving education, they may;

(b)a pupil’s prolonged ill-health [^F60 or a pupil’s being subject to any measures authorised by virtue of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or authorised, in consequence of the pupil’s mental disorder, by virtue of the Criminal Procedure (Scotland) Act 1995 (c. 46)^F60] —

(i)the pupil is unable; or

(ii)it would be unreasonable to expect the pupil,

to attend such an establishment for that purpose, they shall, without undue delay after those circumstances become apparent to them, make special arrangements for the pupil to receive education elsewhere than at an educational establishment.

(2)If an education authority have, under section 34(1) of this Act, granted a pupil exemption from the obligation to attend school, the exemption being to enable the pupil to give assistance at home in circumstances arising out of the illness or infirmity of a member of the pupil’s family, they shall in so far as is practicable and without undue delay make such special arrangements as are mentioned in subsection (1) above.

(3)If a pupil withdraws, excluded by the education authority (or with the consent of the authority in circumstances where he would have been so excluded but for his withdrawal), from a public school in their area they shall, without undue delay—

(a)provide school education for him in a school managed by them;

(b)make arrangements for him to receive such education in any other school the managers of which are willing to receive him; or

(c)make such special arrangements as are mentioned in subsection (1) above.^F59]

[^F61 (4)Subsection (1) applies to a pupil who receives school education under arrangements entered into by an education authority under section 35 of the Standards in Scotland's Schools etc. Act 2000 (provision of school education by persons other than education authorities) as it applies to a pupil mentioned in that subsection, but as if—

(a)in paragraph (a), the reference to a suitable educational establishment for the purpose of receiving education were a reference to a place where early learning and childcare is provided for the purpose of receiving early learning and childcare,

(b)in paragraph (b), the reference to an establishment were a reference to a place, and

(c)the reference to education elsewhere than at an educational establishment were a reference to early learning and childcare at a place other than a place where such learning and childcare is normally provided.^F61]

[^F6214ZA Meaning of pupil in sections 12 to 14.

In sections 12 to 14 of this Act and in section 52 of this Act as it relates to the said section 13, any reference to a pupil shall include a reference to a student attending a college of further education within the meaning of section 36(1) of the Further and Higher Education (Scotland) Act 1992.^F62]

[^F6314A Education in social work establishments.

(1)An education authority may, in accordance with this section, provide for their area school education in any establishment provided by a local authority under section 59(1) or (2) of the ^M2Social Work (Scotland) Act 1968 which is provided wholly or mainly for children under school age (other than any establishment whose provision is secured by them under paragraph (c) of the said section 59(2)).

(2)The provision of school education referred to in subsection (1) above shall consist of the making available by the education authority, in accordance with arrangements made by them in that behalf with the local authority providing the establishment, of the services of any teacher who is employed by them.

(3)Arrangements under subsection (2) above may make provision for—

(a)the supply of equipment for use in connection with the provision of school education made available under the arrangements;

(b)any supplementary or incidental matters connected with the arrangements.

(4)A teacher whose services are made available by an education authority in pursuance of arrangements under subsection (2) above shall, during the period in which his services are made available, be deemed to be in a post in a primary department of a school under the management of the education authority.^F63]

Transference of schools to education authorities

15 Transference of endowed schools to education authorities.

(1)The governing body of any school providing a course of secondary education administered under a scheme approved in terms of the Act of 1882, or under any Act or any provisional order confirmed by Act of Parliament, may, with a view to the maintenance of such school as a school providing a course of secondary education resolve to transfer the management thereof, together with the school buildings, and the revenue of the school from endowments in whole or in part, or, where the endowments are held solely for the purpose of such school, together with the endowments, to the education authority of the education area in which the school is situated. The education authority shall have power to receive the same, to manage the school as a school providing a course of secondary education and to make good any deficiency in the income of the school as managed by them.

(2)The Secretary of State may by order make provision for all matters which appear to him necessary or proper for giving full effect to any transfer under this section, including provision for the determination of any existing trust whose whole endowments are so transferred.

(3)A resolution by a governing body under this section shall not take effect unless it is confirmed by a subsequent meeting called for that special purpose with not less than three weeks notice by circular sent to each member of the governing body and held not sooner than one month nor later than two months after the date of the first meeting, and at such second meeting the requisite majority to secure confirmation shall be not less than the absolute majority of the governing body.

16 Transference of denominational schools to education authorities.

(1)It shall be lawful for the person or persons vested with the title of any school established after 21st November 1918, to which section 18 of the Act of 1918 would have applied had the school been in existence at that date, with the consent of the trustees of any trust upon which the school is held and of the Secretary of State, to transfer the school together with the site thereof and any land or buildings and furniture held and used in connection therewith, by sale, lease or otherwise, to the education authority, who shall be bound to accept such transfer, upon such terms as to price, rent, or other consideration as may be agreed, or as may be determined, failing agreement, by an arbiter appointed by the Secretary of State upon the application of either party.

(2)The consent of trustees to the transference of a school to an education authority under this section may be given by a majority of not less than two thirds of the trustees present at a meeting duly summoned for that purpose. The transference may be effected [^F64by registration in the Land Register of Scotland of an ordinary disposition or other deed of conveyance by the persons vested with the title^F64] and no stamp or other duty shall be exigible on such disposition or other deed; and the persons whose consent is hereby required need not be parties to the conveyance, and the validity of the transference and the title of the education authority shall not be subject to challenge on the ground that the requisite consents were not duly given, unless such challenge shall be judicially made within six months after [^F65such^F65][^F66 registration^F66] .

(3)The existing staff of teachers in a school transferred under this section shall be taken over by the education authority and shall as from the date of transfer be placed upon the same scale of salaries as teachers of corresponding qualifications appointed to corresponding positions in other schools of the same authority; and any question which may arise as to the due fulfilment or observance of any provision or requirement of this subsection shall be determined by the Secretary of State.

Provision, maintenance and equipment of schools and other buildings

17 Provision, maintenance and equipment of schools and other buildings.

(1)^F69,F70[^F67 Subject to subsection (6) below,^F67] [i]t shall be the duty of an education authority[^F68 , in the performance of their functions under sections 1 to 6 of this Act,^F68] to provide for their area,. . . sufficient accommodation in public schools (whether day schools or boarding schools),. . . and other educational establishments under their management to enable them to [^F71perform their said functions^F71] .

[^F72 (2)In any case where an education authority are satisfied, whether upon representations made to them by any church or denominational body acting on behalf of the parents of children belonging to such church or body or otherwise, that a new school is required for the accommodation of children whose parents are resident within the area of the authority, regard being had to the religious belief of such parents, it shall be lawful for the education authority to provide a new school.^F72]

(3)^F70[^F73 Subject to subsection (6) below,^F73] [a]n education authority shall maintain and keep efficient every public school,. . . and other educational establishment under their management, and shall from time to time provide such additional accommodation as may be necessary to [^F74enable them to perform their functions under sections 1 to 6 of this Act.^F74] .

(4)^F70An education authority may, for the purposes of their duty under this section, provide, alter, improve, enlarge, equip and maintain schools,. . . and other educational establishments outwith as well as within their area.

(5)An education authority may provide, alter, improve, enlarge, equip, maintain and furnish houses and hostels, with such outbuildings and gardens as they think expedient, for teachers and other officers employed by them (whether or not employed in or about an educational establishment).

^F75 (6)Subsections (1) and (3) above shall have effect as regards further education only to the extent that the education authority is under a duty to do anything under the said sections 1 to 6.

18 Improvements as to premises of educational establishments for the safety of pupils.

(1)Subject to the provisions of this section, an education authority may for the purpose of reducing the risk of accident to pupils going to or returning from schools or other educational establishments in their area and under their management, or while actually present at such schools or establishments, do work to improve the safety of any private road which is used by these pupils or which is in the vicinity of such a school or establishment, and provide or arrange for the provision of safety barriers at or near the entrances to such schools and establishments.

(2)Any work for the purpose of subsection (1) above may be undertaken by the education authority in co-operation with any other person.

(3)For the purpose of subsection (1) above an education authority may enter on and carry out work on any land:

(4)Where an education authority propose to provide or arrange for the provision of safety barriers for the purpose of subsection (1) above on any road, the authority shall—

(a)if it is a public road, obtain the consent of the authority responsible for the maintenance of such road;

(b)if it is a private road, consult the authority responsible for the maintenance of public roads in the area in which that private road is situated.

[^F76 (5) In this section “ road ”, “ public road ” and “ private road ” have the meanings ascribed to them by section 151(1) of the Roads (Scotland) Act 1984 . ^F76]

19 Power of Secretary of State to prescribe standards for premises, etc., of educational establishments.

(1)^F77,F78The Secretary of State may make regulations prescribing standards and . . . requirements which are to apply to the premises and equipment of educational establishments under the management of education authorities ..., and regulations under this subsection may prescribe different standards or requirements in respect of such different classes (however defined) of educational establishment as may be specified in the regulations.

(2)It shall be the duty

[^F79 (a)of an education authority to secure that the premises and equipment of any educational establishment under their management conform to the standards and requirements applicable to that establishment^F79][^F80 ;

(b)of the board of management of a self-governing school to secure that the premises and equipment of the school conform to the standards and requirements applicable to that school^F80]

^F81and, in particular, that the premises and equipment of all educational establishments under their management ... are maintained in such a condition as to conduce to the good health and safety of all persons occupying or frequenting the premises or using the equipment.

(3)^F82,F82,F82Where the premises or equipment of any educational establishment under the management of an education authority ..., do not conform to the standards or requirements applicable to that establishment ... or are not maintained as mentioned in subsection (2) above, the Secretary of State may, after consultation with the authority ..., direct that the premises or equipment be brought into conformity with the said standards or requirements or into the state of maintenance mentioned in that subsection (as the case may be) within a period to be specified in the direction; and it shall thereupon be the duty of [^F83that authority ^F82...^F83] to comply with the direction.

[^F8419A Secretary of State’s power to control use of dangerous materials or apparatus in educational establishments.

(1)The Secretary of State may by regulations make provision for requiring his approval to be obtained for the use in such educational establishments as may be specified in the regulations of such materials or apparatus as may be so specified, being materials or apparatus which could or might involve a serious risk to health.

(2)The power referred to in subsection (1) above includes power to make different provision in respect of different educational establishments.^F84]

20 Acquisition of land and execution of works.

(1)^F85In order to enable them to execute any of their functions, an education authority may . . . from time to time—

(a)^F86acquire, whether by way of purchase, ... lease, excambion or donation, any land whether situated within or outwith the area of the authority;

(b)erect and furnish buildings or execute any other works on any land belonging to them, or on land leased by them;

(c)convert, alter, enlarge or improve any existing building or other works belonging to the authority or leased by them;

^F87(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F87(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)For the purpose of the acquisition of land by an education authority under this Act, the Land Clauses Acts, except in so far as they relate to the purchase and taking of land otherwise than by agreement, shall be incorporated with this Act.

(5)^M3An education authority may be authorised by the Secretary of State to purchase land compulsorily for the purposes of this Act, and the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply in relation to any such compulsory purchase as if this Act had been in force immediately before the commencement of that Act.

(6) In this section, and in the Lands Clauses Acts as hereby incorporated, “ land ” includes water and any right or servitude in or over land or water.

Management of denominational schools

21 Management of denominational schools. _cross-notes

(1)Any school transferred to an education authority under section 16(1) of this Act shall be held, maintained and managed by the education authority as a public school.

(2)[^F88 Subject to subsections (2A) and (2C) below,^F88] in any such school the education authority shall have the sole power of regulating the curriculum and of appointing teachers:

[^F89 (2A)^F90A teacher appointed to any post on^F89] the staff of any such school by the education authority shall. . . satisfy the Secretary of State as to qualification, and [^F91shall be required to be^F91] approved as regards [^F92his^F92] religious belief and character by representatives of the church or denominational body in whose interest the school has been conducted;

[^F93 (2B)Where the said representatives of a church or denominational body refuse to give the approval mentioned in subsection (2A) above they shall state their reasons for such refusal in writing.

(2C)^F93] subject to the provisions of section 9 of this Act, the time set apart for religious instruction or observance in any such school shall not be less than that so set apart according to the use and wont of the former management of the school.

(3)For each such school the education authority shall appoint as supervisor of religious instruction, without remuneration, a person approved as regards religious belief and character as aforesaid, and the supervisor so appointed shall report to the education authority as to the efficiency of the religious instruction given in such school, and shall be entitled to enter the school at all times set apart for religious instruction or observance.

(4)In every such school the education authority shall give facilities for the holding of religious examinations.

(5)Subsections (1) to (4) above, so far as applicable, shall have effect in relation to any school provided by an education authority under section 17(2) of this Act as they have effect in relation to schools transferred to an education authority as mentioned in subsection (1) above, subject to the modification that the time set apart for religious instruction in any school so provided shall be not less than that so set apart in schools in the same education area which have been transferred as mentioned in subsection (1) above.

(6)Any question which may arise as to the due fulfilment or observance of any provision or requirement of the foregoing provisions of this section shall be determined by the Secretary of State.

(7)In this section, the reference to section 16(1) or 17(2) of this Act shall include a reference to the corresponding provision of the Act of 1918, the Act of 1946 and the Act of 1962.

Discontinuance and moves of educationalestablishments

22 Discontinuance and moves of educational establishments.

(1)^F94Subject to any special conditions attaching thereto. . . , an education authority may—

(a)^F95sell, ..., excamb or let any land vested in them; and

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

^F94(2)Where an education authority propose to discontinue any educational establishment under their management, or to discontinue the use, in connection with such an educational establishment, of any part of that establishment, or of any building or part of a building ancillary to the establishment, and land forming the site, or part of the site, of that establishment or of that part of the establishment or of that building or part of a building, as the case may be, is subject to—

(a)^M4the third proviso to section 2 of the School Sites Act 1841 (which provides that, if any land granted in accordance with the provisions of that section ceases to be used for the purposes mentioned in that Act, that land shall revert to the grantor), or

(b)any condition of a similar nature in any Act, deed or other instrument,

the Secretary of State, on the application in that behalf of the education authority, may by order direct that the said proviso or condition shall not have effect in relation to that land:

(3)A direction given by the Secretary of State under subsection (2) above in relation to any land may make provision for the payment out of the proceeds of any sale of that land of any sum which is payable to any person in consideration of the relinquishment of his rights in relation to the land under the said proviso or condition.

(4)^F94If at any time after the expiry of ten years from the transfer of a school under section 16 of this Act, or from the provision of a new school under section 17(2) of this Act, the education authority by whom the school is maintained are of opinion that the school is no longer required, or that, having regard to the religious belief of the parents of the children attending the school, the conditions prescribed in subsections (1) to (4) of section 21 of this Act or in the said subsections so far as applicable and having effect by virtue of subsection (5) of that section, as the case may be, ought no longer to apply thereto,. . . it shall [^F96subject to [^F97 sections 22C and 22D of this Act and the Schools (Consultation) (Scotland) Act 2010 (asp 2)^F97,F96]] be lawful for the education authority thereafter to discontinue the school, or, as the case may be, to hold, maintain and manage the same in all respects as a public school not subject to those conditions:

(5)In subsection (4) above, the reference to section 16 or 17(2) of this Act shall include a reference to the corresponding provision of the Act of 1918, the Act of 1946 and the Act of 1962.

Consultation on, and consent for, changes in certain educational matters

^F10122A Consultation on certain changes in educational matters.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F10222B Consent for certain changes in educational matters.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22C Consent for certain changes affecting denominational schools.

(1)An education authority shall submit to the Secretary of State for his consent any proposal of theirs to which this section applies and shall not implement such a proposal without his consent.

(2)A proposal to which this section applies is one which—

(a)relates to a school transferred to an education authority under section 16(1) or provided by them under section 17(2) of this Act; and

(b)will, if implemented, have the effect that all or some of the pupils who attend the school will no longer receive school education in a school of the kind referred to in paragraph (a) above or that all or some of the children who would, but for the implementation of the proposal, have been likely to attend it will not be likely to receive such education in a school of that kind.

(3)The Secretary of State shall not grant consent under this section unless he is satisfied that adequate arrangements have been made for the religious instruction of pupils and children who would, as a result of implementation of the proposal, no longer receive or be likely to receive school education in a school of the kind referred to in paragraph (a) of subsection (2) above.

(4)In granting consent under this section the Secretary of State may impose such conditions as he thinks fit with regard to the religious instruction of the pupils and children referred to in paragraph (b) of subsection (2) above and to related matters and conditions imposed by the Secretary of State under this section may be revoked or amended by him at any time.

(5)Any question which may arise—

(a)whether a proposal is one to which this section applies;

(b)as to the implementation of a proposal to which the Secretary of State has consented under this section;

(c)as to the fulfilment or observation of any conditions upon his consent imposed under subsection (4) above

shall be determined by the Secretary of State and the education authority shall perform their duties under this Act in accordance with any such determination.

(6)In this section, the reference to section 16(1) or 17(2) of this Act shall include a reference to the corresponding provision of the Act of 1918, the Act of 1946 and the Act of 1962.

22D Further provisions relating to denominational schools.

(1)An education authority shall submit to the Secretary of State for his consent any proposal of theirs to which this section applies and shall not implement such a proposal without his consent.

(2)A proposal to which this section applies is one—

(a)which relates to a school transferred to [^F103an^F103] education authority under section 16(1) or provided by them under section 17(2) of this Act;

(b)to—

(i)discontinue the school or a part of it;

(ii)amalgamate the school or a part of it with another school;

(iii)change the site of the school;

(iv)change the arrangements for admission to the school; or

(v)disapply to the school the conditions prescribed in subsections (1) to (4) of section 21 of this Act or in the said subsections so far as applicable and having effect by virtue of subsection (5) of that section; and

(c)in relation to which the Secretary of State, having consulted [^F104any education authority affected by it^F104] , is satisfied, upon written representations made, in the case of any church or denominational body in whose interest the school is conducted other than the Roman Catholic Church, by a person authorised for that purpose by that church or denominational body and, in the case of the Roman Catholic Church, by the Scottish Hierarchy of that Church, that—

(i)if implemented, it will have [^F105any of the results^F105] specified in subsection (3) below; and

(ii)the education authority[^F106 submitting the proposal under subsection (1) above^F106] and the church, denominational body or Hierarchy, as the case may be, have, after discussion, failed to reach agreement that it should be implemented.

^F107 (3)The results referred to in subsection (2)(c)(i) above are—

(a)a significant deterioration for pupils belonging to the area of the education authority submitting the proposal under subsection (1) above; or

(b)a significant deterioration for pupils belonging to the area of any other education authority; or

(c)where neither paragraph (a) nor paragraph (b) above applies, such a deterioration for pupils as mentioned in the said paragraph (a) and pupils belonging to the area of another education authority as, taken together, amounts to a significant deterioration,

in the provision, distribution or availability of school education in schools of the kind referred to in subsection (2)(a) above compared with such provision, distribution or availability in other public schools.

(5)The Secretary of State shall not grant consent under this section in relation to a school unless he is satisfied that adequate arrangements have been made for the religious instruction of the children who will no longer receive or be likely to receive school education in a school of the kind referred to in subsection (2)(a) above.

(6)In granting consent under this section in relation to a school the Secretary of State may impose such conditions as he thinks fit with regard to the religious instruction of the children who will no longer receive or be likely to receive school education in a school of the kind referred to in subsection (2)(a) above and to related matters and, in doing so, he shall have regard to the duties imposed by section 21 of this Act on education authorities in relation to schools of that kind, and conditions imposed by the Secretary of State under this section may be revoked or amended by him at any time.

(7)Any question which may arise—

(a)whether a proposal is one to which this section applies;

(b)as to the implementation of a proposal to which the Secretary of State has consented under this section;

(c)as to the fulfilment or observation of any conditions upon his consent imposed under subsection (6) above

shall be determined by the Secretary of State and the education authority shall perform their duties under this Act in accordance with any such determination.

(8)In this section the reference to section 16(1) or 17(2) of this Act shall include a reference to the corresponding provision of the Act of 1918, the Act of 1946 and the Act of 1962.

Co-operation between education authorities and others

23 Provision by education authority for education of pupils belonging to areas of other authorities. _cross-notes

(1) ^F108 An education authority shall have power to provide in or in connection with any public school, . . . or other educational establishment under their management, school education or further education and other services under this Act [^F109 or additional support within the meaning of the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4) (referred to in this section as “ the 2004 Act ”) ^F109] for any pupil belonging to the area of some other education authority[^F110 or of a [^F111 local authority (as defined in section 579(1) of the Education Act 1996 ) ^F111] in England and Wales ^F110] .

^F112 (1A) Without prejudice to any other provision of this Act [^F113 or any provision of the 2004 Act [^F114 or their functions under sections 4 and 5 of the 2004 Act ^F114,F113]] , for the purposes of their duty under section 1 of this Act an education authority shall have power to make arrangements with another education authority (in this subsection referred to as a “ provider authority ”) for the provision of school education or further education [^F115 or additional support within the meaning of the 2004 Act ^F115] for any pupils belonging to the area of the authority in a school or educational establishment under the management of the provider authority.

(1B)Arrangements made under this Act [^F116 or the 2004 Act^F116] by an education authority for the placing of children in schools may include provision to give effect to any arrangements made under subsection (1A) above.

(1C) Where the arrangements for the placing of children in schools subsisting before the establishment of new local government areas under Part I of the Local Government etc. (Scotland) Act 1994 lead, as a consequence of such establishment, to school education for pupils belonging to the area of one education authority being provided at schools or educational establishments under the management of another education authority, nothing in this Act shall prevent such arrangements from continuing until they are changed by an education authority in accordance with this Act.

(2)^{F117,F117,F117}Where an education authority . . . have provided school education with or without other services for any pupil belonging to the area of some other authority [^F118or have provided additional support within the meaning of the 2004 Act for any such pupil,^F118] , the education authority . . . , may, if a claim therefor is made within the prescribed period, recover from that other authority such contributions in respect of such provision as may be agreed by the authorities concerned . . . or, in default of such agreement, as may be determined by the Secretary of State, who shall have regard to the estimated cost of such provision:

. . .

^F119[^F120 (2A)Subsection (2) does not permit an education authority to recover contributions in respect of—

(a)mediation services provided under arrangements made in pursuance of section 15(1) of the 2004 Act (mediation services), or

(b)services provided by the authority forming part of any procedure provided for in regulations under section 16(1) of that Act (dispute resolution).^F120]

(3)The Secretary of State may make regulations prescribing the areas to which particular classes of pupils receiving school education are to be deemed to belong for the purposes of this section [^F121and sections ^F122..., 50, [^F123 and 51^F123] of this Act^F121][^F124 and for the purposes of the 2004 Act^F124] and any such pupil to whom the regulations apply shall be deemed to belong to the area determined in accordance with the regulations. Any other pupil receiving school education shall, for the aforesaid purposes, be deemed to belong to the area in which his parent is ordinarily resident, and any pupil receiving further education shall be deemed to belong to the area in which he himself is ordinarily resident:

^F125 (3A)Where an education authority’s arrangements for the placing of children in schools under their management give any priority to siblings of pupils attending such schools, those arrangements shall not discriminate between siblings belonging to the area of that education authority and siblings belonging to the area of another education authority.

(4)Where on 1st January 1947 or at any subsequent date it was or is the practice of an education authority or of the managers of a school situated in the area of that authority to provide school education for pupils belonging to the area of another education authority, then whether contributions have been recovered under section 24(2) of the Act of 1946, section 24(2) of the Act of 1962 or this section or not, they shall not be entitled to discontinue such practice except after giving such notice as the Secretary of State may, in the event of a dispute, consider reasonable.

(5)—(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F12624 Power of education authorities to make payments to persons providing education, etc.

(1)An education authority may, for the purpose of promoting education generally, or of improving the facilities for education available, or the education provided, for their area in particular, make payments—

(a)to another education authority,

(b)to a university, or to the managers of a hostel or other residence used by students attending a university,

(c)to the managers of any school (other than a public school),

(d)to the managers of any educational establishment (other than a school),

(e)to any other person providing education or educational services,

(f)to any person to assist the carrying out of educational research,

and any such payment may be made either unconditionally or subject to such conditions as may be agreed between the parties.

(2)Where—

(a)it is agreed between an education authority and the managers of any educational establishment, as a condition of the making of payments under subsection (1) above, that the authority shall have representation or additional representation on the governing body of that establishment, but

(b)the provisions of any trust deed or other instrument relating to the establishment will not, unless they are modified, permit provision to be made for such representation or additional representation as aforesaid,

the Secretary of State may, on being requested to do so by the managers of the establishment, by order make such modifications in the provisions of that trust deed or other instrument as may be necessary to enable provision to be made for such representation or additional representation, as the case may be, as aforesaid, and any such trust deed or other instrument shall, so long as the said payments continue to be made, have effect subject to any modifications so made.

Promotion of educational developments

25 Educational research.

An education authority may make such provision for conducting or assisting the conduct of research as appears to the authority to be desirable for the purpose of improving the education provided for their area.

26 Educational conferences.

An education authority may arrange or organise, or participate in the arrangement or organisation of, conferences or meetings for the discussion of questions relating to education, and may expend such sums as may be reasonable in paying or contributing towards any expenditure incurred in connection with conferences or meetings for the discussion of such questions, including the expenses of any person authorised by them to attend any such conference or meeting.

27 Provision of museums by education authorities.

(1)An education authority may provide and maintain museums within their area, and shall have power—

(a)to acquire any objects which, in their opinion, it is desirable to include in a collection contained in a museum maintained by them under this section;

(b)to lend any object vested in them and comprised in any such collection, on such terms and conditions as they think fit, to any person for any purpose;

(c)subject to subsection (3) below, to transfer any object vested in them and comprised in any such collection to the governing body of a museum maintained by a person other than the education authority, for the purpose of being included in a collection contained in that museum;

(d)subject to subsection (3) below, to sell, exchange, give away or otherwise dispose of any object vested in them and comprised in a collection contained in a museum maintained by them under this section, if for any reason that object is not, in their opinion, required for retention in any such collection;

(e)to co-operate with any other education authority or any other body;

(f)generally to do all such things as they may consider necessary or expedient for or in connection with the provision and maintenance of museums under this section.

(2)An education authority may, if they think fit, make such charge as they consider reasonable for admission to a museum maintained by them under this section, and in determining whether, and in what manner, to exercise their powers under this subsection in relation to any museum, an authority shall take into account the need to secure that the museum plays its full part in the promotion of education in their area, and shall have particular regard to the interests of children and students.

(3)Where an object has become vested in an education authority subject to any trust or condition—

(a)that object shall, on being transferred under subsection (1)(c) above, be subject to the like trust or condition in the hands of the transferee;

(b)the powers conferred by subsection (1) (d) above shall not be exercisable in relation to that object in a manner inconsistent with that trust or condition.

Part II Rights and duties of Parents and functions of Education Authorities in relation to Individual Pupils

General principle

28 Pupils to be educated in accordance with the wishes of their parents.

(1)In the exercise and performance of their powers and duties under this Act, the Secretary of State and education authorities shall have regard to the general principle that, so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents.

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F127[^F128 28A Duty to comply with parents’ requests as to schools. _cross-notes

(1)Where the parent of a [^F129 qualifying child^F129] makes a written request to an education authority to place his child in the school specified in the request, being a school [^F130 (other than a nursery school or a nursery class in a school)^F130] under their management, it shall be the duty of the authority, subject to subsections (2) [^F131 , (3) [^F132 , (3A) and (3F)^F132,F131]] below, to place the child accordingly.

Such a request so made is referred to in this Act as a “placing request” and the school specified in it is referred to in this Act as the “ specified school ”.

[^F133 (1A)The education authorities shall—

(a)in carrying out the duty imposed on them by subsection (1) above; and

(b)in deciding when that duty does not apply,

have regard to such guidance as the Scottish Ministers may give in that respect.^F133]

(2)Where a placing request relates to two or more schools under the management of the education authority to whom it was made, the duty imposed by subsection (1) above shall apply in relation to the first mentioned such school, which shall be treated for the purposes of this Act as the specified school.

(3)The duty imposed by subsection (1) above does not apply—

(a)if placing the child in the specified school would—

(i)make it necessary for the authority to take an additional teacher into employment;

(ii)give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school;

(iii)be seriously detrimental to the continuity of the child’s education;

[^F134 (iv) be likely to be seriously detrimental to order and discipline in the school; ^F135 ...

(v)be likely to be seriously detrimental to the educational well-being of pupils attending the school;^F134]

[^F136 (vi)assuming that pupil numbers remain constant, make it necessary, at the commencement of a future stage of the child’s primary education, for the authority to elect either to create an additional class (or an additional composite class) in the specified school or to take an additional teacher into employment at that school;^F136] [^F137 or

(vii)though neither of the tests set out in sub-paragraphs (i) and (ii) above is satisfied, have the consequence that the capacity of the school would be exceeded in terms of pupil numbers;^F137]

(b)if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child;

(c)if the education authority have already required the child to discontinue his attendance at the specified school;

(d)if, where the specified school is a special school, the child does not have [^F138 additional support needs^F138] requiring the education or special facilities normally provided at that school; or

(e) if the specified school is a single sex school (within the meaning given to that expression by section 26 of the ^M5 Sex Discrimination Act 1975) and the child is not of the sex admitted or taken (under that section) to be admitted to the school,

but an education authority may place a child in the specified school notwithstanding paragraphs (a) to (e) above.

^F139[^F140 (3A)^F141 . . .the duty imposed by subsection (1) above does not apply where the acceptance of a placing request in respect of a child who is resident outwith the catchment area of the specified school would prevent the education authority from retaining reserved places at the specified school or in relation to any particular stage of education at the school; but nothing in this subsection shall prevent an education authority from placing a child in the specified school.

^F142(3B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3C) In subsection (3A) above, “ reserved places ” means such number of places (not exceeding such number or, as the case may be, such percentage of places at the school or relating to the particular stage of education as may be prescribed by regulations) as are in the opinion of the education authority reasonably required to accommodate pupils likely to become resident in the catchment area of the school in the period from the time of consideration of the placing request up to and during the year from 1 August to which the placing request relates; and different numbers or, as the case may be, percentages may be prescribed under this subsection for the purpose of different cases or circumstances.

(3D) In subsections (3A) and (3C) above, “ catchment area ” means the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the guidelines formulated by the authority under section 28B(1)(c) of this Act .

^F142(3E). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .^F140]

[^F140 (3F)Where an education authority are carrying out the duty imposed on them by subsection (1) above in respect of a child such as is mentioned in subsection (6)(c) below, they shall place the child in the specified school—

(a)on the date (being the date fixed for that school under section 32(1) and (2) of this Act) next following the making of the placing request; or

(b)where that date has passed, as soon after that date as is reasonably practicable.^F140]

(4)An education authority shall inform a parent in writing of their decision on his placing request and, where they decide to refuse it, shall give him written reasons for their decision and inform him of his right to refer it under section 28C of this Act to an appeal committee.

(5)The Secretary of State may, by regulations, make provision for deeming an education authority to have refused a placing request in the event of their not having informed the parent in writing of their decision on it in accordance with subsection (4) above within such period or before such date as may be prescribed in the regulations and different periods or dates may be so prescribed for different purposes.

[^F143 (6)In this section—

• “ primary school ” does not include a nursery school or a nursery class; and

• “ qualifying child ” means—

  (a)

  a child of school age;

  (b)

  a child who has commenced attendance at a primary school but is not of school age; or

  (c)

  a child who is not of school age and who, on the date (being the date fixed under subsections (1) and (2) of section 32 of this Act for the purposes of subsection (6) of that section) next following the making of the request under subsection (1) above, will be eligible under this Act to commence attendance at a primary school.^F143,F128]]

28B Information as to placing in schools and other matters.

(1)Every education authority shall—

(a)publish or otherwise make available information as to—

(i)their arrangements for the placing of children in schools under their management;

(ii)such matters as may be prescribed by regulations;

(iii)such other matters as the authority consider necessary or expedient for the purposes of their functions under this Act;

(b)where a child falls, in accordance with those arrangements, to be placed in a school under their management—

(i)in a case where the authority propose to place the child in a particular school, inform his parent of the school; and

(ii)in every case, subject to subsection (4) below, inform the parent of the general effect of section 28A (1) and (2) of this Act and of his right to make a placing request;

(c)in making arrangements for the performance of their functions under this Act, formulate guidelines to be followed by them as respects placing in schools generally or, if they think it necessary, in any particular school in the event of there being more placing requests made in respect of certain schools or, as the case may be, that school or in respect of any stage or stages of school education provided there than there are places available;

(d)on a request to that effect made to them at any time by a parent of a child, supply the parent with any prescribed or determined information about any school under their management.

In paragraph (d) above, “ prescribed or determined information ” means information prescribed or determined under subsection (3)(c) below.

[^F144 (1A)In the application of subsection (1)(b)(ii) above in relation to a child who has additional support needs—

(a)for the reference to section 28A(1) and (2) of this Act there shall be substituted a reference to paragraph 2 of schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4), and

(b) “ placing request ” means a placing request within the meaning of that Act. ^F144]

(2)An education authority shall, in performing the duties imposed on them by subsection (1) above, comply with any regulations made under subsection (3) below.

(3)The Secretary of State may by regulations prescribe or make provision for the determining of—

(a)the procedure in accordance with which education authorities are to perform the duties imposed on them by subsection (1) above and when they are to do so;

(b)how education authorities are to go about publishing or otherwise making available information under subsection (1) above or informing parents under that subsection;

(c)the kind of information which is to be so published or which is to comprise the information so made available or supplied to parents.

(4)The duty imposed by subsection (1)(b)(ii) above arises only when the existence of the child and the fact that he falls to be placed in a school under their management are known to the education authority.

28C Reference to appeal committee of refusal of placing request. _cross-notes

(1)Subject to subsections (2) and (3) below, a parent who has made a placing request may refer a decision of the education authority refusing his request to an appeal committee set up under section 28D of this Act.

^F145(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Where a reference under this section has been made in respect of a child, no further such reference in respect of the child shall be competent during the period of 12 months beginning with the day on which the immediately preceding such reference was lodged.

(4)A reference under this section shall be lodged with the appeal committee within 28 days of the receipt by the parent of the decision of the education authority (which, if posted, shall, unless the contrary is proved, be presumed to have been received on the day after the date on which it was posted except that a decision posted on a Friday or Saturday shall, unless the contrary is proved, be presumed to have been received on the Monday next following), but the committee shall, on good cause being shown, have power to hear such a reference notwithstanding that it was not lodged within that time.

28D Appeal committees.

(1)Every education authority shall—

(a)set up and maintain such number of appeal committees; and

(b)make such other arrangements

as are necessary to enable references to be made under sections 28C, 28E(6), 28F(7), 28H and 63 of this Act [^F146and paragraph 5 of schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4)^F146] and heard by the committees.

(2)An appeal committee set up under subsection (1) above shall be constituted in accordance with Schedule A1 to this Act.

(3)The Secretary of State may by regulations make provision for procedure in relation to references under section 28C of this Act and regulations made under this subsection may include provision—

(a)requiring the education authority to make information relevant to their decision available to the committee and to the parent referring that decision to the committee;

(b)deeming, for the purposes of this Act, an appeal committee to have confirmed the decision of an education authority on a placing request in the event of the committee’s not having complied with section 28E(3) of this Act within such period or before such date as may be prescribed in the regulations and different periods or dates may be so prescribed for different purposes;

(c)ancillary to or consequential upon provision made under paragraphs (a) and (b) above.

28E Appeal committees: supplementary provisions. _cross-notes

(1)An appeal committee may, on a reference under section 28C of this Act, confirm the education authority’s decision if they are satisfied—

(a)that one or more of the grounds of refusal specified in section 28A(3) of this Act exists or exist; and

(b)that, in all the circumstances, it is appropriate to do so

but otherwise shall refuse to confirm the authority’s decision and shall, where they so refuse, require the education authority to place the child to whom the reference relates in the specified school.

^F147(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)An appeal committee shall notify their decision under this section and the reasons for it in writing to the parent who made the reference and to the education authority and, where they confirm the authority’s decision, they shall inform the parent of his right of appeal to the sheriff under section 28F of this Act.

(4)Where, on a reference under section 28C of this Act, an appeal committee refuse to confirm an education authority’s decision, the authority shall give effect to the placing request to which the reference relates.

(5)Where a decision of an appeal committee under this section is inconsistent with any decision of the education authority refusing a placing request to place another child at the same time and at the same stage of education and in the same school as that at and in which the child to whom the appeal committee’s decision relates is to be placed, the education authority shall review their decision so to refuse and shall inform the parent of the other child in writing of their decision upon that review and the reasons for it.

(6)The decision of an education authority upon a review under subsection (5) above not to reverse their decision to refuse the placing request in respect of the other child may be referred to an appeal committee by the parent of the other child as if the decision upon the review were a decision refusing his placing request and the provisions of this Act relating to references of decisions upon placing requests and appeals therefrom (including those relating to appeal committees) shall apply accordingly.

^F148(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^X1(8)In section 23 of the Local Government (Scotland) Act 1975 (authorities subject to investigation by Local Commissioner), at the end of subsection (2), there shall be inserted the following paragraph—

“(f)any appeal committee set up under section 28D of the Education (Scotland) Act 1980.”.

28F Appeal to sheriff from appeal committee. _cross-notes

(1)A parent who has made a reference under section 28C of this Act may appeal to the sheriff having jurisdiction where the specified school is situated against the decision of an appeal committee on that reference.

(2)The education authority may, but the appeal committee shall not, be a party to an appeal under this section.

(3)An appeal under this section—

(a)shall be made by way of summary application;

(b)shall be lodged with the sheriff clerk within 28 days from the date of receipt of the decision of the appeal committee (which, if posted, shall, unless the contrary is proved, be presumed to have been received on the day after the date on which it was posted, except that a decision posted on a Friday or Saturday shall, unless the contrary is proved, be presumed to have been received on the Monday next following); and

(c)shall be heard in chambers.

(4)On good cause being shown, the sheriff may hear an appeal under this section notwithstanding that it was not lodged within the time mentioned in subsection (3) above.

(5)The sheriff may on an appeal under this section confirm the education authority’s decision if he is satisfied—

(a)that one or more of the grounds of refusal specified in section 28A(3) of this Act exists or exist; and

(b)that, in all the circumstances, it is appropriate to do so

but shall otherwise refuse to confirm their decision and shall, where he so refuses, require the authority to give effect to the placing request to which the appeal relates.

(6)Where the judgment of the sheriff on an appeal under this section is inconsistent with any decision of the education authority (whether confirmed by the appeal committee or not) refusing a placing request to place another child at the same time and at the same stage of education and in the same school as that at and in which the child to whom the judgment relates is to be placed, the education authority shall review their decision so to refuse and shall inform the parent of the other child of their decision upon that review and the reasons for it.

(7)The decision of an education authority upon a review under subsection (6) above not to reverse their decision to refuse the placing request in respect of the other child may be referred to an appeal committee by the parent of the other child as if the decision upon the review were a decision refusing his placing request and the provisions of this Act relating to references of decisions upon placing requests and appeals thereform (including those relating to appeal committees) shall apply accordingly.

(8)The sheriff may make such order as to the expenses of an appeal under this section as he thinks proper.

(9)The judgment of the sheriff on an appeal under this section shall be final.

28G Application of sections 28A to 28F and Schedule A1 to young persons. _cross-notes

—Sections 28A to 28F of this Act and Schedule A1 to this Act shall apply in relation to a young person who is a pupil and in that application references in those sections to the parent of a [^F149qualifying^F149] child as well as references to the [^F149qualifying^F149] child himself shall be construed as references to the young person.

[^F150 28H Reference to appeal committee, and appeal therefrom of decision to exclude pupil. _cross-notes

(1)Where an education authority decide to exclude a pupil from a school under their management which he attends, the parent of the pupil or, where the pupil is a young person, the pupil may refer the decision to an appeal committee set up under section 28D of this Act.

(2)An appeal committee may, on a reference under this section, confirm or annul the decision of the education authority excluding the pupil and, in confirming a decision of the authority to exclude a pupil until certain conditions stipulated by them are complied with, the committee may modify the conditions.

(3)The decision of an appeal committee on a reference under this section and the reasons for it shall be notified by the committee in writing to the parent or, as the case may be, the pupil making the reference and to the education authority.

(4)A decision of an appeal committee on a reference under this section annulling a decision of an education authority or modifying the conditions subject to which an education authority have excluded a pupil from a school shall be complied with by the authority.

(5)The Secretary of State may by regulations make provision for procedure in relation to references under this section and regulations made under this subsection may include provision—

(a)requiring the education authority to make information relevant to their decision available to the appeal committee and to the parent or, as the case may be, pupil referring that decision to the committee;

(b)deeming, for the purposes of this Act, an appeal committee to have confirmed the education authority’s decision to exclude a pupil from a school under their management which he attends in the event of the appeal committee’s not having complied with subsection (3) above within such period as may be prescribed in the regulations and different periods may be so prescribed for different purposes.

(6)The decision of an appeal committee confirming an education authority’s decision to exclude a pupil or modifying conditions under subsection (2) above may be appealed against by the parent of the pupil or, where the pupil is a young person, the pupil to the sheriff having jurisdiction where the school from which the pupil has been excluded is situated, and subsections (2), (3), (4), (8) and (9) of section 28F of this Act shall apply to an appeal under this subsection.

(7)The sheriff may, on an appeal under subsection (6) above, confirm or annul the decision of the education authority excluding the pupil and, in confirming a decision excluding the pupil until certain conditions stipulated by them are complied with, he may modify the conditions.^F150]

Information as to schools and pupils

[^F15128I Information as to schools.

(1)The Secretary of State may by regulations make provision requiring—

(a)in respect of every school for the management of which an education authority is responsible, the education authority; and

(b)in respect of every other school—

(i)where the school has a board of management, the board of management;

(ii)in any other case, the managers,

to provide to him and to such persons (including education authorities) as may be prescribed such information as regards the school and pupils attending the school as may be prescribed.

(2)For the purposes of this section information about the continuing education of pupils leaving a school, or the employment or training taken up by such pupils on leaving, is to be treated as information about the school.

(3)Where the Secretary of State exercises his power to make regulations under this section he shall do so with a view to making available information which is likely to—

(a)assist parents in choosing schools for their children;

(b)increase public awareness of the quality of the education provided by the schools concerned and the educational standards achieved in those schools; or

(c)assist in assessing the degree of efficiency with which the financial resources of those schools are managed.

(4)Information which is required by virtue of regulations made under this section shall be provided—

(a)in such form and manner; and

(b)on such occasions,

as may be prescribed.

(5)No information provided in accordance with regulations made under this section shall name any pupil to whom it relates.

(6)The Secretary of State may—

(a)publish information provided in accordance with regulations made under this section in such form and manner as he considers appropriate;

(b)require an education authority to publish such information at such times and in such form and manner as he may specify for the purposes of this section; or

(c)make arrangements for such information to be published in such form and manner, and by such persons, as he may specify for the purposes of this section.

(7)The powers given to the Secretary of State by this section and section 28J of this Act may be exercised so as to make different provision in relation to different areas.

(8)This section and sections 28J and 28K of this Act are not to be taken as restricting, or otherwise affecting, any other powers that the Secretary of State may have to make regulations with respect to, or otherwise require, the provision of information by any person.

(9)Regulations made under this section and sections 28J and 28K of this Act may make different provision for different cases or classes of case.

(10)This section does not apply to nursery schools.^F151]

28J ^F152Requirement to provide information as to school education.

(1)The Secretary of State may make regulations requiring education authorities, boards of management and managers of grant-aided schools to provide to prescribed persons such information or documents or categories of information or documents relating to school education as may be prescribed.

(2)Information or documents provided in pursuance of regulations made under subsection (1) above shall be provided—

(a)in such form and manner; and

(b)on such occasions,

as may be prescribed.

28K ^F153 Information as to pupils.

(1)The Secretary of State may by regulations make provision requiring that such information and reports as may be prescribed as regards pupils attending schools to which this section applies shall be supplied to the parents of such pupils at such times and in such form and manner as may be determined by or in accordance with the regulations.

(2)This section applies to any school which is not a grant-aided school, an independent school or a nursery school.

(3)Regulations made under this section may contain provision as to—

(a)the means of involvement of parents in consideration of such reports; and

(b)the extent to which any information relating to general standards of performance in examinations or other forms of assessment of any group of pupils shall be supplied to parents of other pupils.

[^F15428L Use of electronic communications

(1)This section applies for the purposes of doing anything in writing under–

(a)section 28A(1) or (4);

(b)section 28E(3) or (5);

(c)section 28H(3); or

(d)regulations made under section 28A(5), 28D(3) or 28H(5),

of this Act.

(2)Subject to subsection (3) below, any request, information, notification or other thing which must be in writing may be done by means of a document–

(i)transmitted by electronic means;

(ii)received in legible form; and

(iii)capable of being used for subsequent reference.

(3)An education authority shall be bound to accept receipt of a request made under section 28A(1) of this Act by way of electronic communication only if that authority–

(a)has passed a resolution to accept receipt of requests so transmitted; and

(b)has, under section 28B(1)(a) of this Act, published or otherwise made that resolution available.^F154]

^F15529 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duty of parents to provide education for their children

30 Duty of parents to provide education for their children. _cross-notes

[^F156 (1)^F156] It shall be the duty of the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means.

[^F157 (2) Section 1 of the Standards in Scotland’s Schools etc. Act 2000 (asp 6) (right of child to be provided with school education by, or by virtue of arrangements made by, an education authority) is without prejudice to the choice afforded a parent by subsection (1) above. ^F157]

31 School age. _cross-notes

Subject to sections 32(3) and 33(2) and (4) of this Act, a person is of school age if he has attained the age of five years and has not attained the age of sixteen years.

32 Dates for commencement of school attendance.

(1) Subject to subsection (7) below, an education authority shall fix a date or dates (any such fixed date being hereinafter referred to as a “school commencement date”) for the commencement of attendance at primary schools in their area; and any such date may be either a calendar date or fixed by reference to the occurrence of a particular annual event.

(2)Subject to subsection (7) below, an education authority may, under subsection (1) above—

(a)fix different school commencement dates for different primary schools in their area;

(b)at any time fix a different school commencement date in substitution for any date previously fixed by them under the said subsection (1).

(3)A child who does not attain the age of five years on a school commencement date shall, for the purposes of section 31 of this Act, be deemed not to have attained that age until the school commencement date next following the fifth anniversary of his birth.

(4) Subject to subsection (7) below, an education authority shall, in respect of each school commencement date fixed by them under subsection (1) above and applicable to a public primary school, fix the latest following date (any such fixed date being hereinafter referred to as an “appropriate latest date”) on or before which a child must attain the age of five years in order to come within the category of children whom the authority consider of sufficient age to commence attendance at a public primary school at that school commencement date.

(5)Subject to subsection (7) below, an education authority may, under subsection (4) above—

(a)where a school commencement date is applicable to more than one public primary school in their area, fix in respect of that school commencement date different appropriate latest dates for those different schools;

(b)at any time fix a different appropriate latest date in substitution for any date previously fixed by them under the said subsection (4).

(6)The education authority shall carry out their duty under section 1 of this Act as if a child who is under school age on a school commencement date, but who will attain the age of five years on or before the next following appropriate latest date fixed in respect of the school commencement date, has attained the age of five years on the school commencement date; but nothing in this subsection or in subsection (4) above shall, in respect of a child under school age,—

(a)impose any duty on his parent; or

(b)require an education authority to take any action under section 36 or 37 of this Act.

(7)The period between an appropriate latest date applicable to a school and the next following school commencement date applicable to that school (whether or not the school commencement date is that in respect of which the appropriate latest date is fixed) shall not, except with the approval of the Secretary of State on an application to him by the education authority, exceed six months by more than seven days:

(8) In relation to any child, “ school commencement date ”—

(a)in subsection (3) above—

(i)means, where the child is a pupil in attendance at a primary school, a school commencement date of that school;

(ii)in any other case has the same meaning as in subsection (6) above;

(b)in subsection (6) above means a school commencement date of the public primary school to which a child of his religious denomination and from his place of residence would normally be admitted.

(9) In this section, “ primary school ” does not include a nursery school or a nursery class.

33 School leaving dates. _cross-notes

(1) The last day of May (hereinafter referred to as the “ summer leaving date ”) and the appropriate day in December (hereinafter referred to as the “ winter leaving date ”) shall be the school leaving dates in each year.

(2)Subject to subsection (4) below, for the purposes of section 31 of this Act a person shall, if the date of his attaining the age of sixteen years is—

(a)on or after 1st March but before the next summer leaving date, be deemed not to have attained that age until the summer leaving date;

(b)after the summer leaving date but before 1st October next following that date, be deemed to have attained that age on the summer leaving date;

(c)on or after 1st October but before the next winter leaving date, be deemed not to have attained that age until the winter leaving date;

(d)after the winter leaving date but before 1st March next following that date, be deemed to have attained that age on the winter leaving date.

(3) In subsection (1) above, “ the appropriate day in December ” means—

(a)in the case of a person who is a pupil in attendance at a school, the first day of the Christmas holiday period;

(b)in any other case, 21st December,

and in paragraph (a) of this subsection, “ Christmas holiday period ” means a period of consecutive days which includes 25th December and in which the school does not meet for the purpose of providing school education.

(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F15834 Exemption from school attendance.

(1)Where after due inquiry an education authority are satisfied that by reason of any circumstances existing at his home it would cause exceptional hardship to require a child over fourteen years of age to attend school, they may grant exemption from the obligation to attend school to enable the said child to give assistance at home upon such conditions, if any, as to the amount and manner of further attendance at school until the child reaches the upper limit of the school age as the authority think fit.

(2)No exemption granted under subsection (1) above shall extend beyond the date for commencing school attendance next following the date upon which the exemption was granted:

(3)An exemption granted under this section shall exempt the parent of the child concerned from any prosecution or other proceeding under this Act for neglecting to provide for the education of the said child.

(4)The education authority shall keep a register of exemptions granted under this section wherein shall be entered the name of each child so exempted and a statement of the circumstances in which and the conditions upon which such exemption was granted.

Failure of parents to provide education for their children

35 Failure by parent to secure regular attendance by his child at a public school. _cross-notes

(1)Where a child of school age who has attended a public school on one or more occasions fails without reasonable excuse to attend regularly at the said school, then, unless the education authority have consented to the withdrawal of the child from the school (which consent shall not be unreasonably withheld), his parent shall be guilty of an offence against this section.

(2)For the purposes of this section, a child who has been required to discontinue for any period his attendance at a school on account of his parent’s refusal or failure to comply with the rules, regulations or disciplinary requirements of the school, shall, unless the court otherwise determines, be deemed to have failed without reasonable excuse to attend regularly at the school.

36 Power of education authority in relation to irregular attendance of child at a public school.

(1)It shall be the duty of the education authority if they consider that a parent has committed an offence against section 35 of this Act in respect of a child resident in their area, to serve a notice on the parent requiring him, within such time as may be specified in the notice (not being less than forty-eight hours or more than seven days from the service thereof) to appear (with or without the child) before the authority and explain the reason for the absence of the child from school. If the parent fails to satisfy the authority that he had a reasonable excuse, the authority may

[^F159 (a)^F159] instruct that he be prosecuted forthwith under section 43 of this Act, [^F160in the court of summary jurisdiction in which proceedings may be taken for the offence ^F161...; or

(b)report the circumstances to the procurator fiscal or^F160] warn the parent and postpone for a period not exceeding six weeks a decision as to whether [^F162so to report^F162] .

(2)Where an education authority in the exercise of the powers conferred upon them by subsection (1) above postpone a decision as to whether to prosecute a parent, they may, if the child is still of school age, make an attendance order in respect of the child in accordance with the provisions of section 38 of this Act requiring the parent to cause the child to attend the public school which he has been attending, or, if the child has changed his residence, a school attended by children residing in the same neighbourhood as the child.

(3)Without prejudice to the institution of proceedings for an offence against section 35 of this Act or the exercise of the power conferred by section 44(1) of this Act, where a child of school age has failed to attend a public school regularly, the education authority[^F163 , where no requirement arises under section [^F164 60 of the Children’s Hearings (Scotland) Act 2011 (asp 1)^F164] to give information about the child to the Principal Reporter, may under this subsection provide the Principal Reporter with such information.^F163]

37 Power of education authority where not satisfied that parent is providing efficient education for his child.

(1)Where a child of school age has not attended a public school in the area in which his parent is residing, or has attended such a school and has been withdrawn therefrom with the consent of, or excluded by, the education authority, then, if the authority are not satisfied that the parent is providing efficient education for him suitable to his age, ability and aptitude, it shall be the duty of the authority to serve a notice on the parent requiring him within such time as may be specified in the notice (not being less than seven or more than fourteen days from the service thereof) either—

(a)to appear (with or without the child) before the authority and give such information as the authority may require regarding the means, if any, he has adopted for providing education, or

(b)in the option of the parent, to give such information to the authority in writing.

(2)If a parent on whom a notice has been served in pursuance of subsection (1) above fails to satisfy the authority that he is providing efficient education for the child suitable to his age, ability and aptitude or that there is reasonable excuse for his failure to do so, the authority shall make an attendance order in respect of the child in accordance with the provisions of section 38 of this Act.

Attendance orders

38 Making of attendance orders.

(1)References in sections 36 and 37 of this Act, and in the following provisions of this Act, to an attendance order in respect of a child are references to an order in writing requiring the parent of the child to cause the child to attend a school named in the order, being either a public school, or a school (other than a public school) the managers of which are willing to receive the child.

(2)In an attendance order in respect of a child—

(a)a school at which the parent will be required to pay fees shall not be named except at the request of the parent; and

[^F165 (b)a special school shall not be named unless the child [^F166 has additional support needs requiring the education or special facilities normally provided at the school^F166] .^F165]

(3)Before making an attendance order under section 36 or 37 of this Act, the education authority shall consider any views expressed by the parent as to the school which he desires his child to attend.

(4)The authority shall cause a copy of any attendance order made by them under section 36 or 37 of this Act to be served upon the parent, and it shall thereupon be the duty of the parent, subject to an appeal to the sheriff under subsection (5) below, to cause the child to attend regularly at the school named in the order.

(5)A parent aggrieved by the making of an attendance order by an education authority may within fourteen days after the date upon which a copy of the order was served upon him under subsection (4) above appeal against it to the sheriff, who may confirm, vary or annul the order and whose decision shall be final.

39 Amendment and revocation of attendance orders.

(1)An education authority who have made an attendance order in respect of any child may at any time while the order is in force serve upon the parent of the said child a notice of their intention to amend the order by substituting the name of another school for that named in the order.

(2)Where a child in respect of whom an attendance order is in force moves his residence, the education authority of the area to which the child has moved may serve upon the parent of the said child a notice of their intention to amend that order by substituting for the name of the school appearing in the order the name of a school attended by children residing in the same neighbourhood as the child.

(3)The parent may within fourteen days of the service of a notice under subsection (1) or (2) above intimate in writing to the authority any objections he may have to the proposed amendment. After the expiry of the said period of fourteen days and after considering any objections made by the parent, the authority may amend the attendance order, and subsections (2), (4) and (5) of section 38 of this Act shall apply in the case of the amended attendance order as they apply in the case of an attendance order.

(4)If at any time while an attendance order is in force with respect to any child the parent of the child makes application to the authority by whom the order was made or amended requesting—

(a)that another school be substituted for that named in the order, or

(b)that the order be revoked on the ground that arrangements have been made for the child to receive efficient education suitable to his age, ability and aptitude at a school other than that named in the order or elsewhere than at school,

the authority shall amend or revoke the order in compliance with the request unless they are of opinion that the proposed change of school is unreasonable or inexpedient in the interests of the child, or that the arrangements made for the education of the child at a school other than that named in the order or elsewhere than at school are not satisfactory, as the case may be; and, if a parent is aggrieved by a failure of the authority to reach a decision upon his application within one month after the date thereof or by refusal of the authority to comply with any such request, he may appeal to the sheriff, who shall give such direction as he thinks fit.

40 Period of operation of attendance orders.

An attendance order made in respect of any child shall, subject to any amendment thereof made by an education authority or variation made by the sheriff, and unless revoked by an authority or annulled by the sheriff, continue in force so long as the child is of school age:

^F167. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41 Failure to comply with attendance order.

Where an attendance order has been made and is in force in respect of any child, and a copy of such order has been served on the parent of the child, the parent shall, if the order is not complied with, be guilty of an offence against this section unless he satisfies the court that he has a reasonable excuse.

Reasonable Excuses

42 Reasonable excuses.

(1)For the purposes of sections 35, 36, 37, 41 and 44 of this Act, there shall [^F168, subject to subsection (1A) below,^F168] be deemed to be a reasonable excuse if—

(a)there is within walking distance of the child’s home measured by the nearest available route no public or other school the managers of which are willing to receive the child and to provide him with free education, and either—

(i)no arrangements have been made by the education authority under section 50 or 51 of this Act with regard to the child; or

(ii)any arrangements so made are such as to require the child to walk more than walking distance in the course of any journey between his home and school; or

(b)the child has been prevented by sickness from attending school or receiving education as the case may be; or

(c)there are other circumstances which in the opinion of the education authority or the court afford a reasonable excuse.

[^F169 (1A)Subsection (1) above shall not apply in a case where—

(a)the education authority have, in accordance with their arrangements as published or otherwise made available under section 28B(1)(a) of this Act, proposed to place the child in a particular school or in one of a number of schools named by them and, where the particular or named school is more than walking distance from the pupil’s home measured by the nearest available route, they have offered to make for him suitable arrangements of the kind referred to in section 50 or 51 of this Act under which he would not require to walk more than walking distance, so measured, in the course of any journey between his home and the school; but

(b)in consequence of a placing request, the child has been placed by them in a school other than a school referred to in paragraph (a) above,

and in such a case, for the purposes of sections 35, 36, 37, 41 and 44 of this Act, there shall be deemed to be a reasonable excuse if—

(i)the child has been prevented by sickness from attending school or receiving education as the case may be; or

(ii)there are other circumstances which in the opinion of the education authority or the court afford a reasonable excuse.^F169]

(2)The fact that an application to an education authority, or an appeal to the sheriff, has been made under section 39(4) of this Act in relation to an attendance order in respect of a child shall not be deemed to be a reasonable excuse for failure to cause the child to attend regularly at the school named in the order.

(3)Where a parent alleges that his child has been prevented by sickness from attending school or receiving education as the case may be, the parent shall, if required by the education authority, permit a medical officer of the appropriate Health Board to examine the child, and any parent who fails to do so shall be guilty of an offence against this section.

(4)In this section—

• “ walking distance ” means, in the case of a child who has not attained the age of eight years, two miles, and in the case of any other child, three miles;

• “ the appropriate Health Board ”, in relation to any child, means—

  (a)

  where an attendance order is in force in respect of the child, the Health Board in whose area the school named in the order is situated;

  (b)

  in any other case, the Health Board in whose area the place of residence of the child is situated.

Prosecutions

43 Prosecutions and penalties.

(1)Any person guilty of an offence against section 35, 41 or 42 of this Act shall be liable, on conviction by a court of summary jurisdiction, [^F170to a fine not exceeding level 3 on the standard scale^F170] or to imprisonment for a term not exceeding one month or to both such fine and such imprisonment.

(2)^F171Proceedings under this section ... may be taken at the instance either of the public prosecutor of the court of summary jurisdiction in which the proceedings are to be taken or of another person authorised by the education authority to institute proceedings on their behalf.

44 Powers of Courts in relation to child.

^F172(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)If the court before which a prosecution is brought for an offence against section 35 of this Act is satisfied that a child has failed without reasonable excuse to attend regularly at school, but does not, in the exercise of the powers conferred upon it by [^F173section [^F174 62(1) of the Children’s Hearings (Scotland) Act 2011 (asp 1)^F174] , refer the matter to the Principal Reporter^F173] , the court may, if the child is still of school age, make an attendance order in respect of the child requiring the parent to cause the child to attend the public school which he has been attending or, if the child has changed his residence, a school attended by children residing in the same neighbourhood as the child; and subsections (2) and (3) of section 38 and sections 39 to 41 of this Act shall apply with any necessary modifications to an attendance order made by a court under this section as they apply to an attendance order made by an education authority.

45—48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F175[^F176 Corporal Punishment

^F177 48A ^F176] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Provision to assist pupils to take advantage of educational facilities

49 Power of education authorities to assist persons to take advantage of educational facilities. _cross-notes

(1)Subject to the following provisions of this section, an education authority shall have power to grant, on such conditions as may be prescribed, and make payments in pursuance of, bursaries, scholarships or other allowances to persons over school age attending courses of full-time or part-time education (whether held in Scotland or elsewhere) which are not courses of school education or (in the case of courses held outside Scotland) are not courses of education comparable to school education in Scotland.

(2)Subject to the following provisions of this section, an education authority shall have power, for the purpose of enabling persons to take advantage without hardship to themselves or their parents of the facilities for school education available to them, to grant, on such conditions as may be prescribed, and make payments in pursuance of, allowances for the purpose of defraying in whole or in part—

(a)such expenses of persons attending any school as may be expedient to enable them to take full part in the activities of the school;

(b)the fees and expenses payable in respect of persons attending schools at which fees are payable;

(c)the maintenance expenses of persons over school age who are attending schools.

[^F178 (2ZA)Before exercising the power conferred by subsection (2)(b) in respect of a person attending an independent school an education authority must have regard to the matter mentioned in section 50A.^F178]

[^F179 (2A) In subsection (2) above, references to attending school are to so attending not only where the school is in Scotland, but also where it is in England and Wales or in Northern Ireland (“school education” being construed accordingly). ^F179]

(3)The Secretary of State may make regulations providing that the powers conferred on an education authority by subsections (1) and (2) above—

(a)shall be exercised in accordance with such provisions as may be prescribed by or under the regulations; and

(b)shall not be exercised in relation to a person who does not fulfil such requirements as to residence in the area of the authority, or as to other matters, as may be specified in the regulations;

and regulations made under this subsection may contain provision for the determination by the Secretary of State of any question whether any such requirements are fulfilled in any particular case.

50 Education of pupils in exceptional circumstances.

(1)Where in the opinion of an education authority—

(a)any pupil is, owing to the remoteness of his home or the conditions under which he is living or other exceptional circumstances, unable to receive the full benefit of school education unless special arrangements are made for him, or

(b)school education suitable to the age, ability and aptitude of any pupil can [^F180, subject to subsection (1ZA),^F180] best be provided for him at any particular school,

^F181(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F182,F184the authority [^F183, in a case where subsection (3) applies, may and, in any other case, subject to subsection (4) below,^F183] shall, after consultation with the parent , make such arrangements of either a temporary or a permanent character as they think best suited to the purpose of enabling that pupil to attend [^F185, in any case falling under—

(i)paragraph (a) of this subsection, an appropriate school; and

(ii)paragraph (b) thereof, the particular school.^F185]

[^F186 (1ZA)In deciding whether school education suitable to the age, ability and aptitude of a pupil is best provided at a particular independent school, an education authority must have regard to the matter mentioned in section 50A.^F186]

[^F187 (1A) In subsection (1) above, references to an appropriate school and to a particular school are references not only to schools in Scotland but also to schools in England and Wales or in Northern Ireland (“school education” being construed accordingly). ^F187]

(2)The arrangements made under subsection (1) above may include—

(a)the provision of travelling facilities or the payment of travelling expenses under [^F188subsection (1) of section 51 of this Act (for the purposes of this paragraph, any reference in that section to a school being construed as a reference not only to a school in Scotland but also to a school in England and Wales or in Northern Ireland)^F188] ; or

(b)^F184the accommodation of the pupil at a boarding school or in a hostel, home or other institution; or

(c)other provision of board and lodging, provided that the education authority shall, so far as practicable, give effect to the wishes of the parent with respect to the religious denomination of the person with whom the pupil will reside; or

(d)provision for the travelling, board and lodging of teachers.

[^F189 (3)This subsection applies where—

(a)the education authority have, in accordance with [^F190 — (i)^F190] their arrangements as published or otherwise made available under section 28B(1)(a) of this Act

^F191 (ii)any arrangements made by them under section 23(1A) of this Act; or

(iii) the arrangements subsisting before the establishment of new local government areas under Part I of the Local Government etc. (Scotland) Act 1994 and continuing by virtue of section 23(1C) of this Act , proposed to place the pupil in a particular school or in one of a number of schools named by them and have, in connection with that proposal, made or offered to make for the pupil suitable arrangements of the kind referred to in subsection (2) above; but

(b)in consequence of a placing request, the pupil has been placed by them [^F192 or another education authority^F192] in a school other than a school referred to in paragraph (a) above.

(4)The duty imposed by subsection (1)(a) or (b) above does not apply where the pupil belongs (in accordance with section 23(3) of this Act) to the area of some other education authority or of a [^F193 local authority (as defined in section 579(1) of the Education Act 1996)^F193] in England and Wales.^F189]

[^F19450A Sections 49 and 50: matter to which education authority must have regard

The matter referred to in sections 49(2ZA) and 50(1ZA) is the extent to which food and drink provided for pupils in attendance at the independent school which—

(a)is provided on the premises of the school, and

(b)is not—

(i)brought onto the premises by a pupil, or

(ii)provided as part of a social, cultural or recreative activity (whether or not the activity is organised by the proprietor of the independent school),

would comply with nutritional requirements specified by the Scottish Ministers by regulations such as are mentioned in section 56A(1) if those regulations applied in relation to the independent school.^F194]

51 Provision of transport and other facilities.

(1)An education authority[^F195 , in a case to which subsection (2A) [^F196or (2AB)] below applies, may and, in any other case, subject to subsection (2B) below^F195] shall make such arrangements as they consider necessary for the provision of any of the following facilities in respect of pupils attending schools or other educational establishments—

(a)for their conveyance without charge for the whole or part of the journey between their homes and the schools or other educational establishments which they are attending;

(b)for making bicycles or other suitable means of transport available to the pupils, or to their parents for the use of the pupils, upon such terms and conditions as may be arranged, or for paying money allowances in lieu thereof;

(c)for paying the whole or any part, as the authority think fit, of their reasonable travelling expenses,

and any such arrangement may in respect of any pupil make provision for more than one of the facilities specified in the foregoing paragraphs of this subsection.

(2)^F197Where the requirements of pupils, for the conveyance of whom arrangements have been made by an education authority under subsection (1)(a) above, have been met, it shall be the duty of that authority, where there are any vacant places in any vehicle used for such conveyance, to allow such vacant places to be used ... by other pupils to be selected by the authority.

[^F198 (2AA)An education authority may—

(a)subject to subsection (2BB) below, charge the parent of a pupil using a vacant place by virtue of subsection (2) above such sum as the authority consider appropriate; or

(b)allow a vacant place to be so used without charge,

and the authority may make different charges for different cases or different classes of case.

(2BB)An education authority may not charge any sum under subsection (2AA)(a) above unless, having had regard to the financial circumstances of the parent to be charged, the authority consider that the charge can be paid by the parent without undue hardship.^F198]

[^F199 (2A)This subsection applies where—

(a)the education authority have, in accordance with [^F200 —

(i)^F200] their arrangements as published or otherwise made available under section 28B(1)(a) of this Act

^F201 ( ii )any arrangements made by them under section 23(1A) of this Act; or

(iii) the arrangements subsisting before the establishment of new local government areas under Part I of the Local Government etc. (Scotland) Act 1994 and continuing by virtue of section 23(1C) of this Act , proposed to place the pupil in a particular school or in one of a number of schools named by them and, where the particular or named school is more than walking distance from the pupil’s home measured by the nearest available route, they have offered to make for him suitable arrangements of the kind referred to in subsection (1) above under which he would not require to walk more than walking distance, so measured, in the course of any journey between his home and the school; but

(b)in consequence of a placing request, the pupil has been placed by them [^F202 or another education authority^F202] in a school other than a school referred to in paragraph (a) above.

In this subsection “ walking distance ” has the same meaning as in section 42 of this Act .

[^F203 (2AB)This subsection applies—

(a)where the pupil is in attendance at a self-governing school but lives outwith an area for the time being specified in relation to that school by the Secretary of State by order under this subsection; or

(b)where the pupil lives within that area and either—

(i) his parent has not applied to the board of management, under paragraph 2(1) of Schedule 2 to the Self-Governing Schools etc. (Scotland) Act 1989, for the pupil’s admission to the school; or

(ii)his parent has so applied and they are prepared to admit the pupil, but the pupil is not in such attendance;

and paragraph 8 of the said Schedule 2 shall apply in relation to references in this subsection as that paragraph applies to references in paragraphs 2 to 7 of that Schedule.

(2AC)An order under subsection (2AB) above may be revoked, and a new area specified in relation to the school, by a further order under that subsection; but before making any such order, or further order, the Secretary of State shall consult the board of management of the school and the education authority within whose area the school is situated.^F203]

^F204 ( 2AD )Without prejudice to the generality of subsection (1) above, the duty imposed by that subsection applies in cases where a pupil attends a school or educational establishment under the management of another education authority—

(a)in accordance with any arrangements made by them under section 23(1A) of this Act;

(b) in accordance with the arrangements subsisting before the establishment of new local government areas under Part I of the Local Government etc. (Scotland) Act 1994 and continuing by virtue of section 23(1C) of this Act; or

(c)if at the time when the pupil was placed in that school or educational establishment it was under the management of the education authority for the area to which the pupil belonged, and is under the management of another education authority as a consequence of the establishment of such new local government areas.

(2B)The duty imposed by subsection (1) above does not apply where the pupil belongs (in accordance with section 23(3) of this Act) to the area of some other education authority or of a [^F205 local authority (as defined in section 579(1) of the Education Act 1996)^F205] in England and Wales.^F199]

^F206 ( 2C )In considering whether to make any arrangements under subsection (1) above in respect of pupils attending schools, an education authority shall have regard to the safety of such pupils.

(3)Where as a condition of admission to any educational institution a person is required to attend for examination or interview at a particular place, the education authority may pay the whole or part of the expenses necessarily incurred by that person in respect of such attendance.

[^F207 (4) In this section “ school ” does not include a nursery school or a nursery class in a school. ^F207]

52 Recovery of cost of board and lodging.

^F208—Where an education authority have provided a pupil with board and lodging, whether at a school, hostel or elsewhere, the authority may, in their discretion, require the parent to pay to them in respect thereof such sums if any not exceeding the cost of such board and lodging as in the opinion of the authority he is able without financial hardship to pay:

(i)where the board and lodging provided for any pupil were so provided under arrangements made by the authority for any of the reasons specified in section 50(1) of this Act, no sum shall be recoverable in respect thereof under this section; and

(ii)^F208where the board and lodging have been so provided for a young person under section 13 of this Act, at [^F209an^F209] educational establishment, the authority, if satisfied that he is in a financial position to pay the whole or any part of a sum recoverable from his parent under this section, may recover that sum or that part thereof from the young person instead of from the parent.

Provision of food and clothing

[^F21053 Provision of school meals _cross-notes

(1)This section applies to—

(a)pupils in attendance at public schools and other educational establishments under the management of an education authority, and

(b)pupils who receive school education under arrangements entered into by an education authority under section 35 of the Standards in Scotland's Schools etc. Act 2000 (provision of school education by persons other than education authorities).

(2)The authority must provide or secure the provision of a school lunch, free of charge, to pupils falling within subsection (7).

(3)The authority may provide or secure the provision of—

(a)other food or drink to pupils falling within subsection (7),

(b)food or drink to other pupils.

(4)Where the authority provides or secures the provision of food or drink under subsection (3)(a) or (b) to pupils, it may—

(a)do so free of charge, or

(b)charge the pupils.

(5)The authority may exercise the power under subsection (4) to provide or secure the provision of food or drink free of charge—

(a)in relation to pupils who satisfy such conditions as the authority thinks fit,

(b)at such times of the day as the authority thinks fit.

(6)Any charge under subsection (4) must be the same for the same quantity of the food or drink provided.

(7)A pupil falls within this subsection if—

(a)the pupil is, or the parents of the pupil are, in receipt of—

(i)income support,

(ii)an income-based jobseeker's allowance (payable under the Jobseekers Act 1995),

(iii)an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance),

^F211(aa). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the parents of the pupil are in receipt of support provided under Part 6 of the Immigration and Asylum Act 1999.

[^F212 (c)the pupil is, or the parents of the pupil are, in receipt of universal credit, either—

(i)as an individual who is not a member of a couple, where the individual has earned income not exceeding [^F213 £850^F213] in the assessment period immediately preceding the application for a free school lunch being made, or

(ii)as a member of a couple, where the couple have a combined earned income not exceeding [^F213 £850^F213] in the assessment period immediately preceding the application for a free school lunch being made.

In this subsection—

• “assessment period” means the assessment period for the purposes of universal credit as specified in regulation 21 of the Universal Credit Regulations 2013 ,

• “couple” has the meaning given in section 39 of the Welfare Reform Act 2012 ,

• “earned income” means the person’s earned income within the meaning of Chapter 2 of Part 6 of the Universal Credit Regulations 2013 ,

• “universal credit” means universal credit payable under Part 1 of the Welfare Reform Act 2012 . ^F212]

(8)The Scottish Ministers may by regulations modify subsection (7) by—

(a)adding a description of pupil by reference to—

(i)any benefit or allowance received by the pupil, or the parents of the pupil, in such circumstances as may be prescribed in the regulations,

(ii)any tax credit, or element of a tax credit, within the meaning of the Tax Credits Act 2002 received by the pupil, or the parents of the pupil, in such circumstances as may be so prescribed,

(iii)the yearly stage of primary or secondary education of the pupil,

(b)adding such other description of pupil as may be prescribed in the regulations.

(9)An education authority must provide such facilities as the authority considers appropriate for the consumption of food or drink brought by pupils to schools or other educational establishments as mentioned in subsection (1)(a) under the management of the authority.

(10)An education authority may provide or secure the provision of food or drink (including a school lunch) under this section—

(a)on the premises of the schools or other establishments as mentioned in subsection (1)(a) where education is provided,

(b)at any place where school education is provided under arrangements mentioned in subsection (1)(b), or

(c)at any other place.

(11)For the purposes of this section, a pupil for whom an education authority has made special arrangements under section 14 may, at the discretion of the authority, be deemed to be in attendance at a public school.

(12) In this section and sections 53A and 53B, “ school lunch ” means anything provided, or the provision of which is secured, by an education authority under subsection (2) in the middle of the day which the education authority considers is appropriate for consumption as a meal at that time of the day. ^F210]

[^F21453A Promotion of school lunches

(1)An education authority must—

(a)promote the availability of school lunches in public schools and other educational establishments under the authority's management, and

(b)encourage pupils in attendance at those schools and other educational establishments to consume school lunches.

(2)In particular, an education authority must take reasonable steps to ensure that every pupil who is entitled, by virtue of section [^F215 53^F215] , to receive school lunches free of charge, receives those lunches.^F214]

[^F21653B Protection of identity of pupils receiving free school lunches

(1)This section applies [^F217 , subject to subsection (1A),^F217] where a school lunch is provided for a pupil free of charge by virtue of section [^F218 53^F218] .

[^F219 (1A)This section does not apply in such circumstances as the Scottish Ministers may by regulations prescribe.^F219]

(2)An education authority must take reasonable steps to ensure that the pupil cannot be identified by any person other than an authorised person as a pupil who receives a school lunch free of charge.

(3)An education authority must take reasonable steps to ensure that none of the persons mentioned in subsection (4) discloses to any person other than an authorised person the fact that the pupil receives school lunches free of charge.

(4)Those persons are—

(a)a teacher in the school,

(b)any person (other than a teacher) who is—

(i)employed (whether by the education authority or by another person) in the school, or

(ii)working there on an unpaid basis,

(c)any other person employed by the education authority.

(5) In subsections (2) and (3), “ authorised person ” means—

(a)a parent of the pupil,

(b)a person mentioned in subsection (4) who is authorised by the education authority to have access to information about a pupil's entitlement, by virtue of section [^F220 53^F220] , to receive school lunches free of charge.^F216]

54 Provision of clothing for pupils at public schools.

(1)^F221When it is brought to the notice of an education authority that a pupil attending a school under their management ... is unable by reason of the inadequacy or unsuitability of his clothing to take full advantage of the education provided, the education authority shall make such provision for the pupil for the purpose of ensuring that he is sufficiently and suitably clad as they may deem necessary during such period while the pupil is attending school (including days when the school does not meet) as they may determine.

(2)Where an education authority make provision for a pupil in pursuance of this section, they shall be entitled to recover from the parent of the pupil the expense thereby incurred or, if the authority are satisfied that the parent is unable without financial hardship to pay the whole of that expense, such part thereof, if any, as he is, in the opinion of the authority, able without financial hardship to pay.

(3)Without prejudice to any powers conferred upon them by subsections (1) and (2) above, an education authority may provide clothing free of charge—

(i)for any pupil who is a boarder at a school, or

(ii)for any pupil in attendance at a nursery school or a nursery class,

^F222under the management of the authority ....

(4)For the purposes of this section—

(a)a pupil on attaining the age of five years shall, pending his admission to school, be deemed to be attending a school under the management of the education authority in whose area he is ordinarily resident; and

[^F223 (b)a child or young person—

(i)having additional support needs, and

(ii)who is, for the purposes of the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4), a child or young person for whose school education an education authority are responsible by virtue of section 29(3)(b) of that Act,

shall be deemed to be attending a school under the management of that authority.^F223]

55 Provision of food and clothing for pupils at schools other than public schools.

An education authority may, with the consent of the managers of any school in their area which is not a public school, and upon such financial and other terms, if any, as may be determined by agreement between the authority and the managers, make arrangements for securing—

(a)the provision of milk, meals and other refreshment for pupils in attendance at the school; and

(b)^F224... the provision, for any pupil in attendance at the school who is unable by reason of the inadequacy or unsuitability of his clothing to take full advantage of the education (including physical exercise) provided by the school, of such clothing as is necessary for the purpose of ensuring that he is sufficiently and suitably clad while he remains a pupil at the school.

56 Condition of provision of clothing by education authorities.

Save as may be otherwise prescribed, provision of clothing by an education authority under any of the powers conferred by this Act may be made in such a way as to confer, at the option of the authority, either a right of property in the clothing or a right to use it only.

[^F225Food and drink: nutritional requirements

56A Food and drink: nutritional requirements

(1)Where subsection (2) applies in relation to food or drink provided for pupils in attendance at public schools, an education authority must ensure that the food or, as the case may be, drink complies with nutritional requirements specified by the Scottish Ministers by regulations.

(2)This subsection applies where—

(a)food or drink is provided under section [^F226 53(2) or (3)^F226] , or

(b)food or drink provided on the premises of a public school or on the premises of a hostel provided and maintained by the education authority for pupils—

(i)is not provided under section [^F227 53(2) or (3)^F227] , and

(ii)does not fall within subsection (3).

(3)Food or drink falls within this subsection if it is—

(a)brought onto the premises of the school or hostel by a pupil, or

(b)provided as part of a social, cultural or recreative activity (whether or not the activity is organised by an education authority).

(4)It is immaterial for the purposes of subsection (1) whether food or drink is provided by—

(a)the education authority, or

(b)another person in pursuance of an agreement or other arrangement with the authority.

56B Regulations under section 56A: further provision

(1)Regulations such as are mentioned in section 56A(1) may, in particular, include provision for or in connection with—

(a)specifying particular foods or drinks which satisfy, or fail to satisfy, nutritional requirements specified in the regulations,

(b)specifying circumstances where food or drink may be provided to a pupil even if it does not satisfy nutritional requirements specified in the regulations,

(c)requiring that drinking water be made available for every pupil, free of charge, on the premises of—

(i)a public school, or

(ii)a hostel provided and maintained by an education authority for pupils.

(2)Regulations under section 56A(1) may make different provision for different purposes and for different descriptions of pupil.

56C Guidance

An education authority must, in carrying out the duty imposed on them by section 56A(1), have regard to any relevant guidance issued by the Scottish Ministers.

56D Application of sections 56A to 56C to grant-aided schools

(1)Sections 56A to 56C apply in relation to the managers of a grant-aided school as they apply in relation to an education authority.

(2)For the purposes of that application, those sections are to be read as if the modifications mentioned in subsections (3) to (5) had been made.

(3)For subsections (1) and (2) of section 56A substitute—

“(1)The managers of a grant-aided school must ensure that food and drink provided for pupils in attendance at the school which—

(a)is provided on the premises, and

(b)does not fall within subsection (3),

complies with nutritional requirements specified by the Scottish Ministers by regulations.”.

(4)In sections 56A(3)(a) and 56B(1)(c) the references to a hostel are omitted.

(5)In section 56B(1)(c) the reference to a public school is to be read as a reference to a grant-aided school.^F225]

[^F228Food and drink: guidance about sustainable development

56E Food and drink: guidance about sustainable development

(1)Subsection (2) applies where an education authority—

(a)provide food or drink under section [^F229 subsection (2) or (3) of section 53 to pupils mentioned in subsection (1)(a) of that section^F229] ,

(b)for the purpose of providing food or drink under [^F230 section 53(2) or (3) to such pupils ^F230] , provide services relating to the provision of the food or drink, or

(c)enter into an agreement for the provision by another person of—

(i)food or drink to be provided under [^F231 section 53(2) or (3) to such pupils^F231] , or

(ii)services relating to the provision of the food or drink.

(2)The authority must have regard to any guidance issued by the Scottish Ministers about the application of the principles of sustainable development.

(3)Subsection (4) applies where the managers of a grant-aided school—

(a)provide—

(i)food or drink for pupils in attendance at the school, or

(ii)services relating to the provision of such food or drink, or

(b)enter into an agreement for the provision by another person of—

(i)food or drink for pupils in attendance at the school, or

(ii)services relating to the provision of such food or drink.

(4)The managers must have regard to any guidance issued by the Scottish Ministers about the application of the principles of sustainable development.

(5)Guidance issued under subsection (2) or (4) may, in particular, include guidance about the extent to which the application of the principles of sustainable development may be affected by considerations relating to—

(a)fair and ethical trading,

(b)the places where food or drink is produced or processed.^F228]

Health and cleanliness of pupils

57 Medical and dental examination and inspection.

(1)^M6The Secretary of State may make regulations as to the conduct of medical and dental examinations and medical and dental inspections for the purposes of the performance of his duties under section 39 of the National Health Service (Scotland) Act 1978.

[^F232 (2)For the purpose of securing the proper medical or dental inspection of the pupils and young persons for whom there is a duty under the said section 39 to provide such inspection, an education authority may require the parent of any pupil in attendance at any school under their management to submit the pupil for medical or dental inspection in accordance with arrangements made by the appropriate Health Board in agreement with the authority; and the authority may require any young person in attendance at any educational establishment under their management to submit for such medical or dental inspection.^F232]

(3)^F234If any [^F233parent^F233] fails without reasonable excuse to comply with a requirement made by an education authority ... under subsection (2) above, he shall be guilty of an offence and shall be liable on conviction by a court of summary jurisdiction to a fine not exceeding [^F235£10^F235][^F235 level 1 on the standard scale^F235] .

(4) ^F236 In this section “ the appropriate Health Board ”, in relation to any pupil or young person, means the Health Board in whose area is situated the school, or other educational establishment at which the pupil or young person is in attendance.

58 Power to ensure cleanliness. _cross-notes

(1)^{F237,F238,F239,F239,F237}An education authority may, by directions in writing issued with respect to all schools, and other educational establishments under their management or with respect to any of such schools, or establishments named in the directions ... authorise a medical officer of the appropriate Health Board to cause examinations to be made of the bodies and clothing of all or any of the pupils in attendance at such schools ... and young persons in attendance at such establishments whenever in his opinion such examinations are necessary in the interests of cleanliness.

(2) ^F240 Any such examination as aforesaid shall be made by such medical officer or by a person authorised in writing by him to make such examinations (in this section referred to as an “authorised person”), and, if the body or clothing of any pupil or young person is found upon such an examination to be infested with vermin or in a foul condition, the authority ... may serve upon the parent of such pupil or upon the young person a notice requiring the parent to cause the body and clothing of the pupil to be cleansed or the young person to cause himself and his clothing to be cleansed as the case may be.

(3)^F241,F241A notice served under subsection (2) above shall inform the person upon whom it is served that, unless within the period limited by the notice, not being more than twenty-four hours after the service thereof, the body and clothing of the pupil or young person to whom the notice relates are cleansed to the satisfaction of the medical officer or an authorised person as may be specified in the notice, the cleansing thereof will be carried out under arrangements made by the education authority ...; and, if at the expiration of that period the medical officer or an authorised person is not satisfied that the body and clothing of the pupil or young person have been properly cleansed, the medical officer or an authorised person may issue an order directing that the body and clothing of the pupil or young person be cleansed under such arrangements. The order shall be sufficient to authorise any officer of the authority ... to cause the body and clothing of the pupil or young person named in the order to be cleansed in accordance with such arrangements, and for that purpose to convey him to the premises where the cleansing is to be carried out and to detain him there until such time as the cleansing has been completed.

(4)^F242It shall be the duty of the education authority ... to make arrangements for securing that any cleansing under this section, whether at the request of a parent or young person or in pursuance of an order issued under this section, may be carried out in suitable premises by suitable persons and with suitable appliances.

(5)^F237If after the cleansing of the body or clothing of any pupil or young person has been carried out under this section his body or clothing is again found to be infested with vermin or in a foul condition at any time while he is in attendance at such school, or other educational establishment, and it is proved that the condition of his body or clothing is due to neglect on the part of his parent, or, in the case of a young person in attendance at [^F243an^F243] educational establishment, to his own neglect, the parent or the young person, as the case may be, shall be liable on conviction by a court of summary jurisdiction in the case of a first conviction to a fine not exceeding £1, in the case of a second conviction to a fine not exceeding £5, and in the case of a third or subsequent conviction to a fine not exceeding £10 or to a term of imprisonment not exceeding one month or to both such fine and such imprisonment.

(6)^{F237,F244,F238,F238}Where such a medical officer or authorised person has reason to believe that the body or clothing of any pupil or young person in attendance at such school, or other educational establishment is infested with vermin or in a foul condition, but action for the examination or cleansing thereof cannot immediately be taken, he shall so advise the authority ..., who may, if they consider it necessary so to do in the interests either of the pupil or young person or of other children or young persons in attendance at the school, or other educational establishment, direct that the pupil or young person be excluded from the school, or other educational establishment until such action has been taken; and such a direction shall be a defence to any proceedings under this Act in respect of the failure of the pupil or young person to attend school or to comply with the requirements of an attendance notice, as the case may be, on any day on which he is excluded in pursuance of the direction, unless it is proved that the issue of the direction was necessitated by the wilful default of the parent or of the young person.

(7)No female shall be examined or cleansed under the powers conferred by this section except by a registered medical practitioner or by a woman authorised ?for that purpose by a medical officer of a Health Board.

(8) In this section “ the appropriate Health Board ” has the same meaning as in section 57 of this Act .

Children requiring special education

59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F245,F246 60 Functions of education authority in relation to children and young persons with certain special educational needs.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F24661 Examination and assessment of children and young persons.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F24662 Recording of children and young persons.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F24663 Appeals against decisions about recorded children or young persons.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F24664 Provisions supplementary to section 63.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F24665 Appeal to sheriff on the placing in a school of a recorded child or young person.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F24665A Review by education authority of decision to record and information in Record.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F24665B Future provision for recorded children.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F24665C Continuance of Record of young persons.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F24665D Regulations regarding Records.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F24665E Application of certain provisions of this Act to recorded children and young persons.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F24665F Secretary of State may prescribe standards etc. for special schools.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F246 65G Attendance of certain children and young persons with special educational needs at establishments outwith United Kingdom.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part III Administration and Finance

Central administration

66 Inspection of educational establishments.

(1)The Secretary of State shall have power to cause inspection to be made of every [^F247school^F247] at such intervals as appear to him to be appropriate, and to cause a special inspection of any [^F248school^F248] to be made whenever he considers such an inspection to be desirable, and he may from time to time cause inspection to be made of any other educational establishment[^F249 (other than a designated institution within the meaning of Part II of the Further and Higher Education (Scotland) Act 1992)^F249] , and such inspections shall be made by Her Majesty’s Inspectors or [^F250any person appointed by the Scottish Ministers for the purposes of this section (or Her Majesty’s Inspectors and any such person)^F250] .

[^F251 (1AA)If requested to do so by the Scottish Ministers—

(a)Her Majesty’s Inspectors or any person appointed by the Scottish Ministers for the purposes of this section shall give advice to the Scottish Ministers on such matter as may be specified in the request;

(b)Her Majesty’s Inspectors or any such person (or Her Majesty’s Inspectors and any such person) may, as respects a matter so specified, inspect and report on a school (including any establishment in which school education is provided in pursuance of arrangements entered into under section 35 of this Act), or class of schools, so specified.^F251]

[^F252 (1A)Without prejudice to subsection (1) above, the Scottish Ministers shall have power to cause inspection to be made at any establishment in which school education is provided in pursuance of arrangements entered into under section 35 of the Standards in Scotland’s Schools etc. Act 2000 (asp 6); and such inspections shall be made by Her Majesty’s Inspectors or any person appointed by the Scottish Ministers for the purposes of this section (or Her Majesty’s Inspectors and any such person).^F252]

^F253 (1B)Notwithstanding subsection (1) above, the Secretary of State shall have power to cause inspection to be made of the education and training, wherever it is carried out, provided by institutions within the higher education sector (within the meaning of the ^M7Further and Higher Education (Scotland) Act 1992) wholly or mainly for persons preparing to be, or persons who are, teachers in schools, and such inspections shall be made by Her Majesty’s Inspectors or other persons appointed by the Secretary of State for the purpose.

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F254(3)If any person [^F255wilfully^F255] obstructs any person authorised to make an inspection in pursuance of this section in the execution of his duty, he shall be liable on summary conviction to a fine not exceeding [^F256level 4 on the standard scale^F256] or to imprisonment for a term not exceeding three months or to both such fine and such imprisonment.

[^F25766A Code of practice as regards inspections under section 66

(1)Subject to subsection (2) below, the Scottish Ministers may, for the purposes of—

(a)giving practical guidance on matters relating to inspections under section 66 of this Act (including, without prejudice to that generality, such matters as the making and publishing of reports on those inspections); and

(b)promoting what appear to them to be desirable practices with respect to these matters,

from time to time prepare, approve and issue such codes of practice as in their opinion are suitable for those purposes.

(2)Subsection (1) above does not apply in relation to inspections of educational establishments which are institutions for the provision of any form of further education.^F257]

[^F25866B Duty of Her Majesty’s Inspectors to make reference to Scottish Ministers

(1)This section applies where, after an inspection under subsection (1) or (1AA) of section 66 of this Act of—

(a)a public school; or

(b)a grant-aided school,

Her Majesty’s Inspectors identify that a relevant person requires to take action to secure improvement in a matter relating to the school or the school education provided in it.

(2)If it appears to Her Majesty’s Inspectors that—

(a)having been given sufficient opportunity to secure improvement in a matter identified under subsection (1) above, the relevant person is failing or has failed to take satisfactory action to do so; and

(b)having regard to the seriousness of that failure, an enforcement direction is justified,

they shall make a reference to the Scottish Ministers.

(3)A reference under subsection (2) above shall—

(a)be in writing;

(b)specify the failure mentioned in subsection (2)(a) above; and

(c)include recommendations as to the action which, in the opinion of Her Majesty’s Inspectors, the relevant person requires to take to remedy or prevent the recurrence of that failure.

(4)Where Her Majesty’s Inspectors make a reference under subsection (2) above, they shall inform the relevant person of the making of that reference.

(5) In this section and in sections 66C and 66D of this Act, “ relevant person ” means—

(a)in relation to a public school, the education authority; and

(b)in relation to a grant-aided school, the managers of the school.

66C Preliminary notice

(1)Where, on a reference under section 66B(2) of this Act, it appears to the Scottish Ministers that—

(a)the relevant person is failing or has failed to take satisfactory action to secure improvement in the matter mentioned in section 66B(2)(a) of this Act; and

(b)an enforcement direction is justified,

they may serve a preliminary notice on the relevant person.

(2)A preliminary notice is a notice which—

(a)informs the relevant person of the apparent failure mentioned in subsection (1)(a) above; and

(b)requires the relevant person to submit to the Scottish Ministers, within such time as is specified in the notice, a written response which—

(i)states that the person has not so failed and gives reasons supporting that statement; or

(ii)states that the person has so failed but gives reasons why an enforcement direction should not be given to that person.

66D Enforcement direction

(1)Where, following service under section 66C(1) of this Act of a preliminary notice and the expiry of the time specified in it, it still appears to the Scottish Ministers that—

(a)the relevant person is failing or has failed to take satisfactory action to secure improvement in the matter mentioned in section 66B(2)(a) of this Act; and

(b)having regard to the seriousness of that failure, action under this section is justified,

they may give the relevant person an enforcement direction.

(2)An enforcement direction is a direction in writing by the Scottish Ministers requiring the relevant person to whom it is given to take, within such time as is specified in the direction, such action as is so specified, being action calculated to remedy or prevent the recurrence of the failure mentioned in subsection (1)(a) above.

(3)Where two or more courses of action are specified in an enforcement direction, the Scottish Ministers may specify for each a different time within which it is to be taken.

(4)An enforcement direction may place such conditions as the Scottish Ministers may specify in it upon the carrying out of such functions of the relevant person in relation to the school and the school education provided in it as are so specified.

(5)The Scottish Ministers may vary an enforcement direction by giving a further such direction.

(6)A further such direction need not proceed upon a further preliminary notice under section 66C(1) of this Act.

(7)An enforcement direction may be revoked by the Scottish Ministers.

(8)Before giving, varying or revoking an enforcement direction, the Scottish Ministers shall consult Her Majesty’s Inspectors.

(9)A relevant person to whom an enforcement direction is given shall comply with it.

(10)The Scottish Ministers may, instead of or as well as giving an enforcement direction, make such recommendations to the relevant person as they think appropriate.

(11)If the Scottish Ministers exercise their power to give, vary or revoke an enforcement direction they shall—

(a)prepare a report on their exercise of that power; and

(b)lay that report before the Scottish Parliament.^F258]

67 Local inquiries.

The Secretary of State may cause a local inquiry to be held for the purpose of the exercise of any of his functions under this Act [^F259or any other enactment relating to education^F259] , and the provisions of Schedule 1 to this Act shall have effect with regard to any such inquiry.

68 Power to require submission to medical examination.

Where any question is to be decided by the Secretary of State under this Act or under any rule, regulation or order made thereunder, then, if in the opinion of the Secretary of State the medical examination of any pupil[^F260 or other person enrolled at an educational establishment^F260] would assist the determination of the question, the Secretary of State may by notice in writing served on the parent of that pupil, if the pupil is enrolled at a school, or on the pupil[^F260 or other person^F260] himself if he is enrolled at [^F261another^F261] educational establishment, require the parent to submit him, or require the pupil[^F260 or other person^F260] to submit himself, as the case may be, for such examination; and if any person on whom such a notice is served fails without reasonable excuse to comply with the requirements thereof, he shall be liable on summary conviction to a fine not exceeding [^F262level 1 on the standard scale^F262] .

69 Approval and carrying out of schemes.

(1) The Secretary of State may, after considering any representations made to him on the subject and the report of any local inquiry which may have been held under section 67 of this Act , approve, either as submitted or with such modifications and amendments as he thinks proper, any scheme or revised scheme or modification of an existing scheme (in this section referred to as “ the scheme ”) submitted to him under this Act by an education authority; and thereupon it shall be the duty of the education authority to carry the scheme into effect as so approved.

(2)If an education authority inform the Secretary of State that they are aggrieved by his approval with modifications or amendments of the scheme, the Secretary of State shall cause the scheme as so approved to be laid before Parliament as soon as may be thereafter together with the report of any local inquiry which may have been held under section 67 of this Act. If either House of Parliament within the period of forty days beginning with the day on which the scheme is laid before it resolves that the approval of the scheme be annulled, the scheme as so approved shall cease to have effect, but without prejudice to anything previously done thereunder or to the submission and approval with or without modifications and amendments of any new scheme, revised scheme or modification of an existing scheme.

(3)In reckoning any such period of forty days, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

70 Powers to enforce duty of education authorities and other persons. _cross-notes

[^F263 (1)^F263] ^F264,F264If the Secretary of State is satisfied, either on complaint by any person interested or otherwise, that an education authority, ... the managers of a school or educational establishment, or other persons have failed to discharge any duty imposed on them by or for the purposes of this Act or of any other enactment relating to education, the Secretary of State may make an order declaring them to be in default in respect of that duty and requiring them before a date stated in the order to discharge that duty. If by the said date the education authority, ... managers or other persons have not discharged the duty, one or other of the following steps may be taken to secure the discharge thereof—

(a)the Secretary of State may make such arrangements as he thinks fit for the discharge of the duty, and all expenses incurred by the Secretary of State in so doing shall be recoverable as a debt due by the authority, managers or other persons to the Secretary of State; or

(b)the Court of Session may, on the application of the Lord Advocate, order specific performance of the duty.

[^F265 (2) Without prejudice to the generality of subsection (1) above, in that subsection the expression “ enactment ” includes—

(a)an Act of the Scottish Parliament but only in so far as it is an Act which relates to school education; and

(b)an order, regulation, rule or other instrument which has effect by virtue of an Act of the Scottish Parliament but only in so far as it is an instrument which so relates.^F265]

[^F266 (3)Despite subsection (2), no order under subsection (1) may be made in respect of a failure by an education authority that is of a type mentioned in subsection (4).

(4)The types of failure are—

(a) a failure mentioned in section 18(3) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“ the 2004 Act ”) (references to an Additional Support Needs Tribunal for Scotland),

(b)a failure in relation to a decision or information mentioned in section 18(3) of the 2004 Act,

(c)a failure mentioned in section 18(5A) or (5B) of the 2004 Act,

(d)where a failure mentioned in paragraph (a), (b) or (c) also constitutes a failure to discharge the duty imposed by section 4 of the 2004 Act, a failure under that section that is so constituted.

(5)The Scottish Ministers may by regulations make provision for or in connection with the procedure to be followed in relation to—

(a)the investigation of an alleged failure by an education authority, the managers of a school or educational establishment or other person to discharge a duty mentioned in subsection (1),

(b)the determination of whether to make an order under that subsection.

(6)Regulations under subsection (5) may—

(a)include transitional, transitory or saving provision,

(b)make different provision for different purposes.

(7)Before making any regulations under subsection (5), the Scottish Ministers must consult such persons as they consider appropriate.^F266]

Advisory councils

71 Advisory councils.

(1)It shall be lawful for Her Majesty by Order in Council to establish an advisory council consisting, as to not less than two-thirds of the members, of persons qualified to represent the views of various bodies interested in education, for the purpose of advising the Secretary of State on educational matters, and the Secretary of State shall take into consideration any advice or representation submitted to him by the advisory council.

(2)Provisions may be made in the said order for the appointment by the advisory council of special committees to deal with remits on particular subjects made to the council by the Secretary of State, for such special committees to be composed of persons nominated by the Secretary of State of whom some shall be members of the council and the remainder shall be persons having special knowledge or experience of the subjects of the respective remits, and for the reports of special committees to be submitted to the Secretary of State by the advisory council, who shall be entitled in submitting the reports to make such comments thereon as they think fit.

(3)^F267The Secretary of State may, after consultation with education authorities and other persons interested, by order establish a regional advisory council for any branch of education, to advise the education authorities and other managers of schools, and other educational establishments in the region as to the development of the branch of education for which the council is appointed.

Finance

72 Expenses of Secretary of State.

(1)^M8The expenses incurred by the Secretary of State in the exercise of his functions under this Act shall, in so far as they are not met under section 1(2) of the Reorganisation of Offices (Scotland) Act 1939[^F268 or recovered by virtue of subsection (3)^F268] , be defrayed out of money provided by Parliament.

(2)Any sum by which any grants under this Act are increased by reason of the powers and duties conferred and imposed by the provisions of section 48 of this Act on education authorities shall be defrayed out of money provided by Parliament.

[^F269 (3)The Scottish Ministers may recover from an educational establishment mentioned in subsection (4) the expenses incurred in respect of an inspection of the establishment caused by the Scottish Ministers under section 66(1) following a request by the establishment.

(4)An educational establishment referred to in subsection (3) is an establishment which—

(a) wholly or mainly, provides “fundable further education” within the meaning of section 5 of the Further and Higher Education (Scotland) Act 2005 , and

[^F270 (b)is not a post-16 education body.^F270,F269]]

[^F271 (5) In subsection (4)(b), “post-16 education body” shall be construed in accordance with the Further and Higher Education (Scotland) Act 2005 . ^F271]

73 Power of Secretary of State to make grants to education authorities and others.

The Secretary of State may out of money provided by Parliament apply, in accordance with regulations made by him, such sums as he thinks necessary or expedient for any or all of the following purposes:—

(a)the payment of grants to education authorities;

(b)the payment of grants to universities;

(c)the payment of grants to the managers of educational establishments;

(d)the payment of grants to any other persons

[^F272 (i)[^F273 for^F273] providing education or educational services;^F272][^F274 or

(ii)in respect of expenditure incurred or to be incurred by them for the purposes of, or in connection with the provision (or proposed provision) of, education or educational services.^F274]

(e)the payment of grants to persons to assist the carrying out of educational research;

(f)the payment of allowances [^F275or loans^F275] to or in respect of persons

[^F276 (i)undertaking; or

(ii)who have undertaken^F276]

courses of education;

(g)providing for any other educational expenditure approved by him.

[^F27773ZA Administration of certain sums

(1)The Scottish Ministers may direct—

(a)the Scottish Further and Higher Education Funding Council; or

(b)any other body or person,

to administer any sums applied by the Scottish Ministers for a purpose referred to in paragraph (a), (c) or (f) of section 73 of this Act.

(2)A body or person to whom a direction is given under subsection (1) above shall administer those sums—

(a)in such manner and to such extent; and

(b)subject to such conditions,

as the Scottish Ministers may in the direction specify.

(3)The reference in subsection (1) above to a purpose referred to in paragraph (a), (c) or (f) of section 73 of this Act is a reference to that purpose only in so far as relating to support for persons—

(a)undertaking; or

(b)who have undertaken,

courses of education provided by [^F278 post-16 education^F278] bodies.

(4) In subsection (3) above, “ [^F279 post-16 education ^F279] bodies ” shall be construed in accordance with the Further and Higher Education (Scotland) Act 2005 (asp 6). ^F277]

[^F28073A Transfer or delegation of functions relating to student support.

(1)If the Secretary of State so determines, any function exercisable by him by virtue of regulations made under section 73(f) of this Act shall, to such extent as is specified in his determination, be exercisable instead by such body or person as is so specified.

(2)A person or body by whom any function is for the time being exercisable by virtue of subsection (1) above shall comply with any direction given by the Secretary of State as to the exercise of that function.

(3)The Secretary of State may make arrangements for any person or body specified in the arrangements to exercise on his behalf, to such extent as is so specified, any function exercisable by him by virtue of regulations under section [^F281 73(a), (c) or (f)^F281] of this Act (including any such functions as to appeals).

(4)Any arrangements made under subsection (3) above shall not prevent the Secretary of State from exercising the function in question himself.

(5)The Secretary of State may make provision for enabling appeals—

(a)to be made with respect to such matters arising out of the exercise by any person or body of any function by virtue of subsection (1) or (3) above as he may determine; and

(b)to be so made to a person or body appointed by him for that purpose.

(6)The Secretary of State may pay to any person or body by whom any function is exercisable by virtue of subsection (1) or (3) above—

(a)such amounts as he considers appropriate for the purpose of meeting expenditure incurred or to be incurred by that person or body—

(i)in making [^F282 payments,^F282] grants or loans by virtue of regulations under section [^F283 73(a), (c) or (f)^F283] of this Act, or

(ii)by way of administrative expenses,

in, or in connection with, the exercise of that function;

(b)in the case of any such person, or of any body with which the Secretary of State has made arrangements under subsection (3) above, such remuneration as he may determine.

(7)Any payment under subsection (6)(a) above may be made subject to such terms and conditions (including conditions as to repayment) as the Secretary of State may determine.

(8)The Secretary of State may pay to any person or body appointed by him under subsection (5) such remuneration or administrative expenses (or both) as he may determine.

(9)In relation to any function which, by virtue of subsection (1) or (3) above is exercisable to a specified extent, references in any other provision of this section to the exercise of that function are accordingly to its exercise to that extent.

[^F284 (10)The references in subsections (3) and (6)(a)(i) above to regulations under section 73(a) or (c) of this Act are references to those regulations only in so far as relating to support for persons—

(a)undertaking; or

(b)who have undertaken,

courses of education provided by [^F285 post-16 education^F285] bodies.

(11) In subsection (10) above, “ [^F286 post-16 education ^F286] bodies ” shall be construed in accordance with the Further and Higher Education (Scotland) Act 2005 (asp 6). ^F284,F280]]

^F28773B Regulations relating to student loans.

(1)This section applies in relation to regulations under paragraph (f) of section 73 of this Act made with respect to loans.

(2)Regulations to which this section applies may make provision requiring such amounts as may be prescribed, payable under loans granted by virtue of such regulations, to be paid directly to institutions providing courses of education who have previously made payments of any prescribed description to persons [^F288undertaking^F288] such courses to whom such loans may be granted.

(3)Regulations to which this section applies may make such provision as the Secretary of State considers necessary or expedient in connection with the recovery of amounts due from borrowers under loans granted by virtue of such regulations, including provision for—

(a)imposing on employers, or (as the case may be) such other persons or bodies as may be prescribed, requirements with respect to—

(i)the making of deductions in respect of amounts so due (or, in any prescribed circumstances, amounts assessed in accordance with the regulations to be so due) from emoluments payable to borrowers,

(ii)the collection by other means of such amounts,

(iii)the transmission of amounts so deducted or collected to the Secretary of State in accordance with directions given by him;

(b)imposing on employers, or such other persons or bodies as may be prescribed, requirements with respect to the keeping and production of records for such purposes as may be prescribed;

(c)imposing on borrowers requirements with respect to—

(i)the provision of such information, and

(ii)the keeping and production of such documents and records,

relating to their income as may be prescribed;

(d)requiring the payment, by persons or bodies to whom the requirements imposed in pursuance of paragraphs (a) to (c) above apply, of—

(i)penalties in cases of non-compliance with, or otherwise framed by reference to, such requirements, and

(ii)interest in respect of periods when such penalties are due but unpaid;

(e)requiring the payment by borrowers, in respect of periods when amounts due under their loans are unpaid, of—

(i)interest (applied to such amounts at a rate calculated otherwise than in accordance with subsections (6) and (7) below), or

(ii)both such interest and one or more surcharges (together with further interest in respect of periods when such surcharges are due but unpaid);

(f)enabling the Secretary of State to require the reimbursement by borrowers of costs or expenses of any prescribed description incurred by him in connection with the recovery of unpaid amounts;

(g) applying or extending with or without modification, for purposes connected with the recovery of amounts under regulations to which this section applies, any of the provisions of the Taxes Acts or of [^F289 “ PAYE regulations” ^F289] ;

(h)determining the priority as between deductions falling to be made by virtue of paragraph (a)(i) above and deductions falling to be made from emoluments payable to borrowers by virtue of other enactments (whenever passed);

(i)modifying any enactment or instrument (whenever passed or made) so as to provide for the treatment, in connection with any calculation with respect to income (however defined), of amounts due from or payable to such persons under loans granted by virtue of regulations to which this section applies.

(4)In subsection (3) above—

(a) “ employers ” means persons who make payments of, or on account of, income assessable to income tax under Schedule E, and

(b) ^M9 “ the Taxes Acts ” has the same meaning as in the Taxes Management Act 1970 .

(5)Regulations to which this section applies may make provision for the payment, in respect of amounts overpaid by borrowers, of interest at such rate, and calculated in such manner, as may be determined by the Secretary of State from time to time.

(6)^M10A rate of interest, prescribed by regulations to which this section applies, to be borne by loans shall at no time exceed the rate for the time being specified for the purposes of any exemption conferred by virtue of section 16(5)(b) of the Consumer Credit Act 1974 (exemption of certain consumer credit agreements by reference to the rate of the total charge for credit).

(7)Subject to subsection (6) above, regulations to which this section applies shall not prescribe a rate of interest to be borne by loans higher than that which the Secretary of State, having regard to such retail prices index as appears to him to be appropriate, is satisfied is required to maintain the value in real terms of the outstanding amounts of such loans.

(8)Regulations to which this section applies may make provision, for the purpose of calculating the interest to be borne by loans, for repayments by borrowers to be treated as having been made or received on such date or dates as may be prescribed.

(9)Regulations to which this section applies may prescribe requirements or other provisions which add to or otherwise modify, during the currency of a loan, requirements or other provisions (whether as to repayment or otherwise) which apply in relation to loans granted by virtue of such regulations.

(10)Regulations to which this section applies may make provision for a borrower not to be liable to make any repayment in respect of a loan—

(a)during such periods as may be prescribed from time to time, or

(b)in such circumstances as may be prescribed,

including provision for the cancellation of any further such liability of the borrower in any such circumstances.

(11)Regulations to which this section applies may make provision for appeals with respect to matters arising under such regulations (including provision for determining, or enabling the determination of, the procedure to be followed in connection with such appeals).

(12)Regulations to which this section applies may, in relation to a borrower’s discharge under or by virtue of section [^F290137, 138 or 140 of the Bankruptcy (Scotland) Act 2016^F290] , make provision for the treatment of any debt or liability to which a borrower is, or may become, subject in respect of sums received, or which he is entitled to receive, [^F291 before, on or^F291] after the date of his sequestration.

(13)Nothing in this section prejudices the generality of section 73(f) of this Act.

^F29273C Transitional provisions and savings on repeal of Education (Student Loans) Act 1990.

(1)^M11The Secretary of State may by regulations make such transitional provision and savings in connection with the repeal by the Teaching and Higher Education Act 1998 of the Education (Student Loans) Act 1990 (“the 1990 Act”) as he considers necessary or expedient including—

(a)provision for any function which has been conferred under or by virtue of the 1990 Act to transfer to, or otherwise become exercisable by—

(i)the Secretary of State, or

(ii)such other person or body as may be prescribed,

to such extent as may be prescribed; and

(b)provision for the transfer to the Secretary of State or any such other person or body of rights or liabilities arising under or by virtue of the 1990 Act.

(2)Regulations made by virtue of paragraphs (a) and (b) of subsection (1) above may, in particular, provide for—

(a)any such function to be exercisable in pursuance of such regulations in such modified form as may be prescribed;

(b)the 1990 Act to have effect with such modifications as may be prescribed.

^F29373D Provision as to maximum amounts of certain allowances.

(1)^F294This section applies to allowances payable by virtue of section 73(f) of this Act in respect of the fees charged in connection with . . ..

(2)The Secretary of State may by order made by statutory instrument determine the maximum amount payable in any academic year of allowances to which this section applies in respect of such courses or classes of courses of higher education as may be so determined and, subject to subsection (3) below, a statutory instrument containing an order under this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3)Where the Secretary of State has determined a maximum amount under subsection (2) above, he shall not make a further determination increasing that maximum amount under that subsection unless—

(a)he is satisfied that the increase is no greater than is required to maintain the allowance’s value in real terms; or

(b)a draft of the order containing the further determination has been laid before, and approved by a resolution of, each House of Parliament.

(4)For the purposes of subsection (3)(a) above the Secretary of State shall have regard to such retail prices index as appears to him to be appropriate.

(5) ^M12 In subsection (2) above, “ courses of higher education ” means courses of higher education falling within section 38 of the Further and Higher Education (Scotland) Act 1992 .

[^F29573E Supply of information in connection with student loans.

(1)This section applies to any information which is held—

(a)by the Commissioners of Inland Revenue, or

(b)by a person providing services to those Commissioners and in connection with the provision of those services.

(2)Information to which this section applies may be supplied to—

(a)the Secretary of State or the Department of Education for Northern Ireland,

(b)any person or body acting on behalf of the Secretary of State or that Department under the delegation of functions provisions, or

(c)any person or body by whom any function of the Secretary of State or that Department is for the time being exercisable to any extent by virtue of the transfer of functions provisions,

for the purpose of enabling or assisting the recipient to exercise any function in connection with the operation of the student loans scheme.

(3)Information supplied under subsection (2) above shall not be supplied by the recipient to any other person or body unless it is supplied—

(a)to a person or body to whom it could have been supplied under that subsection, or

(b)for the purposes of any civil or criminal proceedings arising out of the student loans scheme.

(4)Subsections (2) and (3) above extend only to the supply of information by or under the authority of the Commissioners of Inland Revenue.

(5)This section does not limit the circumstances in which information may be supplied apart from this section.

(6)In this section—

(a) “ the delegation of functions provisions ” means section 73A(3) of this Act or section 23(4) of the Teaching and Higher Education Act 1998 ;

(b) “ the transfer of functions provisions ” means section 73A(1) of this Act or section 23(1) of the Teaching and Higher Education Act 1998 ; and

(c) “ the student loans scheme ” means the provisions of—

(i)regulations under section 73(f) of this Act with respect to loans; or

(ii)regulations under section 22 of the Teaching and Higher Education Act 1998 so far as having effect in relation to loans under that section;

and in this subsection any reference to a provision of this Act includes a reference to any corresponding Northern Ireland legislation.^F295]

74 Payment of grants to be subject to conditions.

(1)The Secretary of State may by regulations make provision that any payment which he is required or authorised to make by or under this Act, except section 76 of this Act, shall be subject to such conditions as may be prescribed in [^F296or determined by him under^F296] the regulations, and that education authorities and other persons to whom such payments have been made shall comply with such requirements as may be specified in [^F297or determined by him under^F297] the regulations.

(2)Where the Secretary of State is satisfied that the persons to whom any grant is payable under this Act are, by reason of the provisions of any trust deed or other instrument, unable to fulfil any condition or comply with any requirement imposed under this section, he may, after consultation with them, by order make such modifications of the said provisions as may be necessary for the purpose of enabling the said persons to fulfil that condition or comply with that requirement; and any such trust deed or other instrument shall, during such period as may be specified in the order, have effect subject to any modifications so made.

75 Examination of accounts. _cross-notes

Save as may be otherwise prescribed, it shall be a condition of the payment by the Secretary of State of a grant to the managers of a school or other educational establishment not under the management of an education authority or to other persons providing educational services approved by the Secretary of State that the accounts of the income and expenditure of such managers or persons in respect of such school, educational establishment or service shall be set out according to a form prescribed by the Secretary of State and shall together with the relative vouchers and other documents be submitted for examination to the Secretary of State.

[^F29875A Assisted places at grant-aided and independent schools.

(1)[^F299 The Secretary of State shall, subject to subsections (1A) and (1B) below,^F299] operate a scheme whereby—

(a)participating schools remit fees that would otherwise be chargeable in respect of pupils admitted to assisted places under the scheme; and

(b)the Secretary of State reimburses the schools for the fees that are remitted.

^F300 (1A)The Secretary of State shall operate a scheme such as is described in subsection (1) above only in relation to any pupil admitted to an assisted place under such a scheme prior to the beginning of the first term of the 1997-98 school year where the pupil will be in attendance at the school concerned—

(a)at the beginning of that term; or

(b)after the beginning of that term but before the end of that school year, and where it appears to the Secretary of State that it is reasonable, in view of any particular circumstances relating to that pupil, that he should be permitted to take advantage of that place after the beginning of that term,

and, for the purposes of this section, “ 1997-98 school year ” means the period of twelve months beginning on 1st August 1997.

(1B)A pupil holding an assisted place who is receiving primary education during the 1997-98 school year shall cease to hold that place—

(a)at the end of the school year in which he completes his primary education; or

(b)if the Secretary of State, where he is satisfied that it is reasonable to do so in view of any particular circumstances relating to that pupil, decides that he should continue to hold that place for a further period during which he receives secondary education, at the end of that period.

^F301 (2)In this section references to a participating school are references to any grant-aided or independent school providing secondary education which the Secretary of State has determined, prior to the coming into force of this subsection, to be a participating school for the purposes of the scheme.

(3)A determination under subsection (2) above—

(a)shall state the maximum annual amount allocated by the Secretary of State to the school under the scheme including the maximum annual amount so allocated for the purposes of section 75B of this Act; and

(b)may contain such conditions as the Secretary of State thinks fit in addition to those prescribed under subsection (9) below.

^F302 (4)The Secretary of State may alter—

(a)the maximum annual amount referred to in subsection (3)(a) above; or

(b)the conditions referred to in subsection (3)(b) above,