EDUCATION, ENGLAND AND WALES PART I GENERAL Citation, commencement and application 1 1 These Regulations may be cited as the Education (Assisted Places) Regulations 1989 and shall come into force on 12th August 1989. 2 These Regulations shall apply in relation to a school year beginning on or after the date mentioned in paragraph (1). Interpretation 2 1 In these Regulations, except where the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say— “child” includes a step-child and a child adopted in pursuance of adoption proceedings and “father” and “mother” shall be construed accordingly; and it is hereby declared that notwithstanding the definition in section 114(1) of the Education Act 1944 “child” includes a child who is over compulsory school age; “employment” includes the holding of any office and any occupation for gain and “employed” shall be construed accordingly; “European Community” means the area comprised by the member states of the European Economic Community (including the United Kingdom) as constituted from time to time; “fees” means— tuition and other fees the payment of which is a condition of attendance at a school but excludes boarding fees and such other fees, if any, as may be excluded by the participation agreement, and entrance fees for public examinations paid by a school in respect of candidates from the school; “financial year” has the meaning assigned thereto by Regulation 10; “first assisted year” has the meaning assigned thereto by Regulation 3(3); “income” and “relevant income” have the meanings assigned thereto by Regulation 11; “national of a member state of the European Community” means a person who is a national of any member state of the European Economic Community (including the United Kingdom) as constituted from time to time for the purposes of the Community Treaties; “remission questions” has the meaning assigned thereto by Regulation 9; “school” means a participating school within the meaning of section 17(2) of the Education Act 1980 and references to a school include references to the proprietors thereof and persons acting with their authority. 2 Subject to paragraphs (3) and (4), and except where the context otherwise requires, any reference in these Regulations to the parents of a child or assisted pupil is a reference— a in the ordinary case, to his father and mother or, where one is dead, to the survivor and, should he remarry, his spouse; b where his father or mother, having actual custody of him, has married a person who is not his parent, to that parent and his spouse; c where his parents, defined as in sub-paragraph (a), are divorced or, in any of the circumstances mentioned in paragraph (5), separated, to that one of them who has, or in pursuance of an order of a court is entitled to, actual custody of the child or pupil and, should that person being divorced remarry, his spouse; d where he has no parents defined as in sub-paragraphs (a), (b) and (c), to his guardian or guardians, if any; e where he has no parents so defined and no guardian, to the person or persons who have actual custody of the child or pupil. 3 Where a custodianship order made under section 33 of the Children Act 1975 is in force in respect of a child or pupil, his custodian and the spouse of the custodian (if any) shall be treated as the parents of the child or pupil for the purpose of these Regulations. 4 Where— a a child or assisted pupil either has no parents defined as in paragraph (2)(a), (b), (c) or (d) or he has such parents but the school are satisfied that they cannot be found, and b he is either in the care of a local authority or in the care of a voluntary organisation within the meaning of section 88 of the Children Act 1975, then, for the purposes of these Regulations, he shall be treated as a child whose parents have no income but, subject as aforesaid, any reference to his parents shall be construed as a reference to the authority or organisation in whose care he is. 5 The circumstances referred to in paragraph (2)(c) are that the parents are separated under an order of a court of competent jurisdiction, or by deed of separation or, where they are not separated as aforesaid, that either it is not reasonably practicable to find one of the parents or that, in pursuance of an order of a court— a one parent is liable to make periodic payments to or for the benefit of the other or one or more of their children, or b one parent has been given custody of, or access to, one or more of their children, or c one parent is prohibited from entering the matrimonial home. 6 In these Regulations any reference to a Regulation is a reference to a Regulation of these Regulations and any reference in a Regulation to a paragraph is a reference to a paragraph of that Regulation. PART II ELIGIBILITY FOR ASSISTED PLACES General 3 1 A child shall only be eligible for selection for an assisted place if all the conditions mentioned in this Part are, so far as relevant, satisfied in his case. 2 Nothing in this Regulation shall prevent a child from being selected for an assisted place in advance of its being ascertained that such a condition is satisfied if the selection is subject to the condition being satisfied. 3 In this Part “first assisted year” means the school year in which a child would take up an assisted place if selected therefor. Conditions as to residence 4 1 It shall be a condition that the child shall either— a have been ordinarily resident in the British Islands throughout the period of two years preceding 1st January in the calendar year in which his first assisted year begins (“the relevant date”), or b in the case of such a child as is mentioned in paragraph (2), have been so ordinarily resident in the European Community, or c in the case of such a child who is a refugee as is mentioned in paragraph (3), have not been ordinarily resident outside the British Islands since he or, in the case mentioned in sub-paragraph (3)(d), his parent, was recognised as a refugee or granted asylum or granted leave to enter or remain, as the case may be. 2 The child referred to in paragraph (1)(b) is one who is resident in the British Islands on the relevant date and is the child of a national of a member state of the European Community who— a where he is employed on the relevant date, is then in employment in the British Islands, or b where he is not employed on that date (by reason of retirement or otherwise), was last employed in such employment. 3 The child who is a refugee referred to in paragraph (1)(c) is— a a child recognised by Her Majesty’s government as a refugee within the meaning of the United Nations Convention relating to the Status of Refugees done at Geneva on 28th July 1951 as extended by the Protocol thereto which entered into force on 4th October 1967 or b a child who enjoys asylum in the United Kingdom in pursuance of a decision of Her Majesty’s government though not so recognised; or c a child who has been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that, although he is considered not to qualify for asylum or for recognition as a refugee, it is thought right to allow him to enter or remain in the United Kingdom, and has been granted leave to enter or remain accordingly; or d a child who is the child of a person who is so recognised, or has been granted such asylum or leave to enter or remain in such circumstances. Conditions as to age 5 1 It shall be a condition that the child— a either shall have attained the age of 11 years or, in the case of a child who, if selected for an assisted place, would be provided with education with pupils the generality of whom would have attained that age, be of such age that he will have attained the age of 11 years before 1St August next following the beginning of his first assisted year, and b subject to paragraph (2), shall be of such age that he will, on 31st August in the calendar year in which his first assisted year begins, be of an age specified in the participation agreement as a normal age of entry to the school or will attain that age before 1st August next following the beginning of his first assisted year. 2 Paragraph (1)(b) shall not apply in the case of a child who, if selected for an assisted place, will be provided with education in the same class as assisted pupils who were admitted to the school in an earlier school year, or in the case of such a child as is mentioned in Regulation 6(1). Conditions as to selection at sixth form level 6 1 This Regulation shall apply in the case of a child who, if selected for an assisted place, would be provided with sixth form education, that is to say, education appropriate to pupils taking advanced level examinations for the General Certificate of Education or other examinations comparable thereto. 2 Where this Regulation applies, it shall be a condition that— a the participation agreement expressly provides for the selection of pupils who will be provided with sixth form education and the child satisfies such conditions, if any, as are specified for the purposes hereof in that agreement, or b the child is already attending the school when being considered for an assisted place and, if selected, would be provided with sixth form education with assisted pupils of a similar age who were admitted in an earlier school year. Conditions as to income 7 1 It shall be a condition that the parents of the child, when applying to the School for an assisted place, shall have furnished the school with— a a declaration of relevant income for the preceding financial year or, if they have not the necessary information, for the financial year before that year; b a declaration of estimated relevant income for the financial year preceding the child’s first assisted year; c such other information as may be specified for the purposes hereof by the Secretary of State. 2 A school shall not select for an assisted place a child whose fees for his first assisted year would not fall to be remitted in whole or in part in pursuance of Part III of these Regulations. 3 A school shall not select for an assisted place a child the whole of whose fees for his first assisted year are required to be paid in pursuance of an order of a court. Academic conditions 8 A school shall not select a child for an assisted place unless they are satisfied that he is capable of benefiting from the education provided at the school but, subject as aforesaid, the selection of children for assisted places at a school shall, subject to any provisions in that regard in the participation agreement, be made by the school in accordance with such methods and procedures as appear to them appropriate. PART III REMISSION OF FEES References to remission questions 9 For the purposes hereof “remission questions” mean the questions whether or not the parents of an assisted pupil are entitled to any remission of fees payable in respect of him and the extent of such remission. References to financial years 10 1 For the purposes hereof “financial year” means, subject to paragraph (2), a year ending with 5th April and, in relation to a particular school year, “preceding financial year” means the financial year preceding that school year and “current financial year” means the financial year which includes the first day of that school year. 2 Where the parents of a pupil satisfy the school that their income is wholly or mainly derived from the profits of a business, profession or vocation carried on by either or both of them, then if the parents and school so agree, any reference in this Part to a financial year shall be construed as a reference to a year ending with such date as appears to the school expedient having regard to the accounts kept in respect of that business or profession and the periods covered thereby: Provided that, where that year ends with a date after 5th April but before the beginning of a school year, then in relation to that school year “preceding financial year” shall mean the year last so ending before 6th April in the calendar year in which the school year begins and “current financial year” shall mean the year so ending on or after that 6th April and before the beginning of the school year. References to income 11 1 For the purposes hereof the income of any person for a financial year shall, subject however to the provisions of Schedule 1 hereto, be taken to be his total income for that year; and, in this paragraph and the said Schedule, “total income” has the same meaning as in section 1 (2)(b) of the income and Corporation Taxes Act 1988 . 2 For the purposes hereof “relevant income” as respects an assisted pupil means, in relation to any financial year, his parents' income for that year aggregated with the unearned income for that year, if any, of the pupil himself and of any other of the parents' children who are wholly or mainly dependent on them at the time the relevant income is calculated less, where paragraph (3) or (4) applies, the sum there mentioned. In this paragraph the reference to unearned income is a reference to income other than such as arises from gainful employment. 3 Subject to paragraph (4), the relevant income, calculated as aforesaid, shall be reduced by £1,000 in respect of each person other than the assisted pupil who— a at the time the relevant income is calculated, is wholly or mainly dependent on the parents or on payments made to him or for his benefit by one or both of them, and b is a child or other relative of one or both of the parents: Provided that, for the purposes of sub-paragraph (a), there shall be disregarded payments, other than sums paid as mentioned in paragraph 3(f) of Schedule 1 hereto, which fall to be deducted in ascertaining total income for income tax purposes and, accordingly, are taken into account in calculating relevant income in pursuance of paragraph (1). 4 Where a child (other than the assisted pupil) who is wholly or mainly dependent on the parents or on payments made to him or for his benefit by one or both of them is the holder of an award of a kind described in paragraph (5) and there has been deducted, in calculating the amount of that award, a sum exceeding £1,000 in respect of the parental contribution which is assumed to be available as part of the resources of that child, that sum shall be deducted from the relevant income in lieu of the £1,000 prescribed in respect of that child by paragraph (3). 5 The awards referred to in paragraph (4) are— a a mandatory award paid by a local education authority in England or Wales pursuant to regulations from time to time in force under Section 1 of the Education Act 1962 providing for the payment of awards to students attending specified courses of further or higher education ; b an allowance granted by the Secretary of State for Scotland pursuant to regulations from time to time in force or having effect under sections 73 and 74 of the Education (Scotland) Act 1980 providing for the payment of allowances to students ; c an award made by— i an education and library board in Northern Ireland pursuant to article 50 of the Education and Libraries (Northern Ireland) Order 1986 and regulations from time to time in force thereunder , being an award for the purpose of enabling or encouraging the holder to take advantage of educational facilities specified in or designated under such regulations; or ii the Department of Education for Northern Ireland pursuant to article 51 of the said Order and regulations from time to time in force thereunder being an award in respect of attendance. at a course for the training of teachers. 6 In this Regulation any reference to the parents of an assisted pupil is a reference to the persons who are his parents at the time the relevant income is calculated. General provisions relating to remission 12 1 The parents of an assisted pupil shall not be entitled to any remission of fees for which they are liable in respect of a period before the pupil took up his assisted place or (in lieu of notice or otherwise) after he has left the school or, if he so remains at the school, after the end of the school year in which he attains the age of 20 years. 2 The parents of an assisted pupil shall not be entitled to any remission of fees which are required to be paid in pursuance of an order of a court. 3 The parents of an assisted pupil shall be under no obligation to apply for remission of fees as respects a particular school year if they consider themselves not entitled thereto but if, as respects such a year, they do not— a duly apply to the school for remission of fees payable for that year, or b subject to Regulation 14(4), duly furnish the school with the information and supporting evidence requisite for determining remission questions, they shall not be entitled to any remission of fees for that year. 4 If the Secretary of State is satisfied that, in the case of a particular assisted pupil, his parents have furnished information required for determining remission questions which they know to be false in a material particular, or have recklessly furnished such information which is false in a material particular, he may direct that those parents shall not be entitled to any remission of fees in the case of that pupil and, if he so directs, in the case of any other of their children who are assisted pupils, as respects a specified school year and, if he so directs, any subsequent school year: Provided that— a the Secretary of State shall not give a direction hereunder without affording the parents concerned an opportunity to make representations or without considering such representations; b the giving of a direction hereunder shall be without prejudice to its variation or revocation by a subsequent direction. 5 This Regulation shall have effect notwithstanding anything in Regulation l3 or any other provision of these Regulations. Determination of remission questions 13 1 Subject to paragraph (2), in the case of each assisted pupil remission questions shall be determined by the school, in accordance with this Part, for each school year, whether or not the parents have been entitled to any remission as respects a previous school year. 2 Where either— a the pupil holds an assisted place at the school for part only of the school year or leaves the school part way through the school year; or b the number of children of the parents who hold assisted places differs for different parts of the school year, the said questions shall be determined by the school for that part, or separately for those parts, and the extent to which fees in respect of part of a school year are to be remitted shall be that proportion of the amount by which the fees for the whole school year would fall to be remitted which is the proportion which the fees for the part bear to the fees for the whole school year. Calculation of remission 14 1 Subject to paragraphs (2), (3) and (4), remission questions shall be determined by reference to relevant income in the preceding financial year. 2 Where one of the pupil’s parents has died after remission questions have been determined but before the end of the current financial year and the school are satisfied that the income of the surviving parent in that year, when aggregated with that of the deceased parent, is likely to be less than their aggregated income in the preceding financial year, the remission questions shall be redetermined by reference to the current financial year: and in such case, paragraph (1) shall have effect as if the reference therein to the preceding financial year were a reference to the current financial year and the reference to the pupils' parents in paragraph (2) of Regulation 11 included a reference to the deceased parent (notwithstanding the provision of paragraph (6) of that Regulation). 3 This paragraph shall apply in a case not falling within paragraph (2) if— a the school are satisfied that the relevant income in the current financial year is, as a result of some event beyond the control of the pupil’s parents, likely to be not more than 85% of the relevant income in the preceding financial year, or b the school, though not satisfied as aforesaid, are satisfied that the relevant income in the current financial year is likely to be so much less than the relevant income in the preceding financial year that financial hardship would result from remission questions being determined by reference to that year and the Secretary of State approves the application of this paragraph; and, in a case in which this paragraph applies, remission questions shall be determined in relation to the school year in question and, unless and until the Secretary of State otherwise directs, any subsequent school year by reference to the current financial year and, in such case, paragraph (1) shall have effect as if the reference therein to the preceding financial year were a reference to the current financial year. 4 Where it is not reasonably practicable for the parents to furnish, before the beginning of a school year, the requisite information as to relevant income for the appropriate financial year then, in relation to that school year, remission questions may be determined provisionally, having regard to relevant income for earlier financial years, as the school think fit but— a no such provisional determination shall be more favourable to the parents than one arrived at by reference to an estimate furnished by the parents of relevant income for the appropriate financial year; b a provisional determination shall cease to have effect when the parents have furnished the requisite information or if the school are satisfied that it has become reasonably practicable for them to do so but they have failed to furnish it, and c within three months of the final determination of the remission questions any over-remission or under-remission of fees shall be adjusted by payments between the parents and the school. Scales of remission 15 Fees shall be remitted in accordance with the provisions of Schedule 2 to these Regulations. PART IV ADMINISTRATIVE ARRANGEMENTS Time limits, forms, etc. 16 The Secretary of State may specify for the purposes hereof— a the time by which, and the manner and form in which, applications, declarations of relevant income or estimated income and other information requisite for the purposes of these Regulations are to be made or furnished to a school by the parents of an assisted pupil, or by parents applying for an assisted place, and the documentary or other evidence to be provided in support thereof; b the time by which, and the manner and form in which, a school are to notify the parents of an assisted pupil as to whether they are entitled to any remission of fees for a particular school year and, if so, the extent of remission. Reimbursement claims 17 1 Claims for the reimbursement of fees remitted in pursuance of these Regulations or regulations revoked by Regulation 24(1) (“reimbursement claims”) may be submitted to the Secretary of State by a school in respect of such periods, not being less than a term, as appear to them appropriate and, With his consent, claims may be submitted on the basis of an estimate of fees so remitted (“provisional claims”); but, where a provisional claim is submitted, the school shall, as soon as is reasonably practicable, submit a reimbursement claim in respect of the period in question which is not based on such an estimate and that claim shall supersede the provisional claim. 2 As soon as is reasonably practicable after he is satisfied as respects a reimbursement claim, the Secretary of State shall reimburse the school in pursuance of the claim without prejudice, however, where he considers it expedient so to do, to his making earlier payments on account in pursuance of the claim or in pursuance of a provisional claim in respect of the same period. 3 Any over-payment or under-payment by way of reimbursement which appears to the Secretary of State to have occurred shall be adjusted as soon as is reasonably practicable by payments between the Secretary of State and the school concerned. 4 Subject to the preceding provisions of this Regulation, reimbursement claims shall be made at such times, in such manner and form and be supported by such declarations and other information, as the Secretary of State may require. PART V MISCELLANEOUS REQUIREMENTS Publication of information 18 1 Each school shall publish— a particulars of the assisted places scheme; b annual particulars of the number of assisted places likely to be offered in the year in question together with information as to the making of applications therefor and as to arrangements for selection, admission and fee remission; c information as to the public examinations for which pupils at the school are entered and as to the results obtained by such pupils, being information which is required to be published, in the case of a school maintained by a local education authority, by section 8(5) of the Education Act 1980 and regulations from time to time in force thereunder ; and d such other information as may be specified for the purposes hereof by the Secretary of State. 2 Subject to any directions given by the Secretary of State for the purposes hereof, either generally or in the case of a particular school, anything required to be published under paragraph (1) shall be published in such manner, and at such time or times, as appears to the school appropriate for the purpose of bringing the particulars or information to the attention of parents likely to be interested therein. Proportion of pupils from publicly maintained schools 19 1 Subject to paragraph (3), in selecting pupils to take up assisted places in any school year, a school shall select pupils from publicly maintained schools and from other schools in such proportion as appears to them likely to ensure that at least 60 per cent of the total number of assisted pupils at the school in that school year will be pupils from publicly maintained schools. 2 Any reference in paragraph (1) to a pupil from a publicly maintained school is a reference to a pupil from— a a school maintained by a local education authority, b a school under the management of an education authority in Scotland, c a grant-aided school in Northern Ireland within the meaning of the Education and Libraries (Northern Ireland) Order 1972 , or d a school maintained by the Secretary of State for Defence, who, at the time of his selection for an assisted place (or consideration for selection), was attending such a School and has so attended for a continuous period including at least the whole of the previous school year so, however, that where the school is a grant-aided grammar school in Northern Ireland no fees were payable in respect of his attendance. 3 On application in that behalf made by a particular school the Secretary of State may modify or dispense with the requirement in paragraph (1) as respects a year specified by him but he may attach such conditions as he thinks fit to any such modification or dispensation. Fees, etc., payable 20 1 In the case of an assisted pupil— a the fees charged by a school shall not include a sum to be paid into a bursary or similar fund, and b the school shall not make it a condition of his attendance that any payment otherwise than in respect of fees be made to the school or into a fund specified by the school. 2 The fees for assisted pupils for any school year (other than entrance fees for public examinations) shall be payable in respect of each term and, subject to any increase in fees in the course of the school year, the fees payable in respect of each term shall be a third of those payable for the whole of that year. 3 This Regulation shall have effect subject to any provisions relating to fees in the participation agreement. Increase in fees 21 A school shall not increase the fees for assisted pupils unless they have given the Secretary of State at least one month’s written notice of their intention so to do and, if within fourteen days of receiving such notice the Secretary of State so directs, shall refrain from making, postpone or restrict the amount of the increase, as he may then or subsequently require. Returns, etc., required by the Secretary of State 22 A school shall furnish the Secretary of State with such periodic returns and information as he may require relating to the school or assisted pupils thereat including, in particular, information relevant to an intended increase in fees for assisted pupils. School accounts 23 1 The accounts of a school shall— a if the Secretary of State so requires, be kept in a form specified by him; b be audited by an independent auditor. 2 At the request of the Secretary of State, a school shall furnish him with copies of their accounts for such periods as he may specify together with copies of the auditor’s certificate relating thereto. PART VI REVOCATION AND TRANSITIONAL PROVISIONS Revocation and transitional provisions 24 1 The Regulations specified in Schedule 3 are hereby revoked. 2 Any reimbursement of fees remitted in pursuance of regulations revoked by paragraph (1) shall be calculated as if those regulations had not been revoked.