EDUCATION, ENGLAND AND WALES PART I General Citation and commencement 1 These Regulations may be cited as the Education (Assisted Places) Regulations 1997 and shall come into force on 1st September 1997. 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— “the 1995 Regulations ” means the Education (Assisted Places) Regulations 1995 (as amended by the Education (Assisted Places) (Amendment) Regulations 1996 ); “the 1997 Act ” means the Education (Schools) Act 1997; “assisted place” means an assisted place provided under section 2(1) of the 1997 Act; “assisted pupil” means a child provided with an assisted place; “child” includes a step-child, a child adopted in pursuance of adoption proceedings and a person who is over compulsory school age; “employment” includes the holding of any office and any occupation for gain (including self-employment in any trade, profession or vocation) and “employed” shall be construed accordingly; “fees” means— tuition and other fees the payment of which is a condition of attendance at a school, but does not include sums to be paid into a bursary (or similar fund) or boarding fees, and entrance fees for public examinations paid by a school in respect of candidates from the school; “financial year” and “preceding financial year” have the meanings assigned by regulation 9; “income”, “relevant income” and “total income” have the meanings assigned by regulation 10; “participation agreement” in relation to a school means the participation agreement made by the Secretary of State and that school as it had effect immediately before the commencement of section 1 of the 1997 Act; “remission questions” has the meaning assigned by regulation 8; and “school” means a former participating school within the meaning of section 4(1) of the 1997 Act and references to a school include references to the proprietors thereof and persons acting with the proprietors' authority. 2 Except where the context otherwise requires, any reference in these Regulations to— a a numbered Part, regulation or Schedule is a reference to the Part, regulation or Schedule in these Regulations so numbered; and b a numbered paragraph is a reference to the paragraph so numbered in the regulation or Schedule in which the reference appears. References to parents 3 1 Subject to paragraphs (3) and (4) and except where the context otherwise requires, any reference in these Regulations to the parents of an assisted pupil is a reference to— a the pupil’s father and mother where— i they live together as husband and wife (whether or not they are married to each other), and ii the pupil normally resides with both of them in the same household; or b where sub-paragraph (a) above does not apply, the parent, being either the father or mother of the pupil, with whom the pupil normally resides and the spouse (if any) of that parent where the spouse normally resides with that parent and the pupil in the same household; c where neither sub-paragraph (a) nor (b) above applies, the pupil’s guardian appointed in accordance with section 5 of the Children Act 1989 (or any earlier enactment) and the spouse (if any) of that guardian where the spouse normally resides with that guardian and the pupil in the same household; or d where none of sub-paragraphs (a), (b) and (c) above applies, the person with whom the pupil resides in accordance with either— i a subsisting residence order made under section 8 of the Children Act 1989; or ii any subsisting court order (other than a residence order) which specifies who is to have actual custody or care and control of the pupil, and the spouse (if any) of that person where the spouse normally resides with that person and the pupil in the same household; or e where none of sub-paragraphs (a) to (d) above applies and where the pupil is not looked after by a local authority for the purposes of section 22(1) of the Children Act 1989, the person with whom the pupil normally resides in accordance with any informal care or fostering arrangement, and that person’s spouse (if any) where the spouse normally resides with that person and the pupil in the same household. 2 Where an assisted pupil— a either has no parents as defined in paragraph (1) or the school is satisfied that no such parents can be found, and b is either looked after by a local authority or provided with accommodation within the meaning of section 105(1) of the Children Act 1989, he shall be treated as a pupil whose parents have no income for the purposes of these Regulations, and any reference to his parents shall be construed as a reference to the authority or organisation which looks after him or provides him with accommodation. 3 Where an assisted pupil has been adopted pursuant to an order of a court of competent jurisdiction, references in paragraph (1)(a) and (b) to “father” and “mother” shall be construed as references to the adoptive parents of the pupil and not his natural parents. PART II Fees for assisted pupils Fee levels 4 Subject to regulations 5, 6 and 19(7), the fees charged by a school for an assisted pupil in any school year shall not exceed such maximum annual amount as, apart from section 1 of the 1997 Act, the school would have been entitled to charge for him in the 1997—98 school year— a under the participation agreement, or b by virtue of regulation 21 of the 1995 Regulations where, before the commencement of that section, the school gave notice to the Secretary of State under that regulation of their intention to increase fees in that year. Increase in fees 5 1 A school may increase the annual amount of the fees for an assisted pupil to an amount which exceeds the maximum amount that is chargeable by virtue of regulation 4 but shall not do so without first giving the Secretary of State at least one month’s written notice of their intention so to do. 2 If within one month of receiving such notice the Secretary of State so directs, a school shall refrain from making the increase or shall postpone or restrict the amount of the increase, as he may then or subsequently require. Power of the Secretary of State to vary fee levels 6 1 The Secretary of State may give a direction to— a schools of any class or description, or b any individual school, specifying a maximum level of fees applying to assisted pupils at any such school which is different from that which would otherwise apply by virtue of regulation 4 or 5. 2 A direction under this regulation may specify different maximum levels of fees in relation to different age groups of assisted pupils. 3 Before giving a direction under paragraph (1)(a), the Secretary of State shall consult such bodies as appear to him to be appropriate and representative of the schools to which it is intended the direction should apply. 4 Before giving a direction to an individual school under paragraph (1)(b), the Secretary of State shall consult that school. 5 Where the Secretary of State has given a direction to a school under this regulation, the fees charged by the school for an assisted pupil in any school year shall not, for so long as that direction remain in force, exceed the figure specified in the direction as the maximum level of fees applying to that pupil or, as the case may be, pupils in the age group in which he falls. Payment of fees 7 1 The fees for an assisted pupil for any school year (other than in respect of entrance fees for public examinations) shall be payable in respect of each term and, subject to any variation 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. 2 Subject to paragraphs (3) and (4), a school shall not make it a condition of the attendance of any assisted pupil that any payment be made to the school otherwise than in respect of fees, or into a fund (including a bursary or similar fund) specified by the school. 3 Where— a an offer of assistance with boarding fees was made by the school (or in pursuance of arrangements to which the school is a party) in respect of an assisted pupil at the time when he was offered an assisted place at the school for the purposes of the assisted places scheme, and b that offer was conditional on his taking up a boarding place, the school may make it a condition of his attendance that boarding fees be paid. 4 Where paragraph (3) does not apply, the school may at any time offer a boarding place in respect of an assisted pupil, and if the offer is accepted and, for as long as the pupil remains a boarder at the school, make it a condition of his attendance that boarding fees be paid. PART III Remission of fees References to remission questions 8 For the purposes of these Regulations “remission questions” means questions as to whether or not the parents of an assisted pupil are entitled to any remission of fees payable by the parents to the school in respect of that pupil, and the extent of such remission. References to financial years 9 1 Subject to paragraph (2), in these Regulations “financial year” means, a year ending on 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 an assisted pupil satisfy the school that their income is wholly or mainly derived from the profits of a trade, profession or vocation carried on by either or both of them, then if the parents and the school so agree, any reference in these Regulations to a financial year shall be construed as a reference to a year ending on such date as appears to the school expedient having regard to the accounts kept in respect of that trade, profession or vocation and the periods covered thereby (“the Parents' Accounting Year”). Provided that, where the Parents' Accounting 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 latest Parents' Accounting Year ending before 6th April in the calendar year in which the school year begins, and “current financial year” shall mean the Parents' Accounting Year ending in the calendar year which includes the beginning of the school year. References to income 10 1 For the purposes of these Regulations, the income of any person for a financial year shall be taken to be his total income for that year; and, subject to the provisions of Schedule 1, in this paragraph and that 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 of these Regulations, “relevant income” as regards an assisted pupil means, in relation to any financial year, the income of the assisted pupil’s parents aggregated with the unearned income of— a the assisted pupil himself, and b any children (apart from the assisted pupil) of the parents who are wholly or mainly dependent on one or both of them at the time the relevant income is calculated, less, where paragraph (4) or (6) applies, the sum there mentioned. 3 In paragraph (2) “unearned income” means income other than such as arises from gainful employment. 4 Subject to paragraph (6), the relevant income, calculated as aforesaid, shall be reduced by £1,230 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 one or both of the parents or on payments made to him or for his benefit as mentioned in paragraph (5) below; b is a child or other relative of one or both of the parents; and c normally resides in the same household as the parents and the assisted pupil. 5 The payments referred to in paragraph (4)(a) are payments made by one or both of the parents, including sums paid as mentioned in paragraph 3(2)(f) of Schedule 1 but excluding any other payments which fall to be deducted in ascertaining total income for the purpose of these Regulations. 6 Where— a a child (other than the assisted pupil) who is wholly or mainly dependent on one or both of the parents or on payments made to him or for his benefit by one or both of them, is the holder of an award to which paragraph (7) applies, and b there has been deducted, in calculating the amount of that award, a sum exceeding £1,230 in respect of the parental contribution which is assumed to be available as part of the resources of that child, that higher sum shall be deducted from the relevant income in lieu of the £1,230 prescribed in respect of that child by paragraph (4). 7 This paragraph applies to— 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 ; or c an award made by an education and library board in Northern Ireland pursuant to article 50(1) 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. 8 In this regulation any reference to the parents of an assisted pupil is a reference to the persons who are his parents (as defined in regulation 3) at the time that the relevant income is calculated. Periods for which fees may be remitted 11 1 The parents of an assisted pupil shall be entitled under these Regulations to remission of fees for which they are liable only in respect of a period in which he is— a a registered pupil at the school, and b provided with an assisted place there under section 2(1) of the 1997 Act. 2 The parents of an assisted pupil shall not be entitled under these Regulations to remission of fees for which they are liable in respect of a period— a after the end of the school year in which he attains the specified age; or, if earlier, b after the end of— i the last school year in which the age in years attained by the majority of pupils in his year group is no greater than the designated year group age, or ii where paragraph (3) applies, such later school year as may be determined by the Secretary of State, having regard to any particular circumstances relating to the pupil concerned. 3 This paragraph applies where the school, at any time after the end of the 1996—97 school year, starts to provide, as education ordinarily provided by the school, education suitable to the requirements of pupils who have attained an age which exceeds the designated year group age. 4 In this regulation— “designated year group age” means the age in years attained by the majority of pupils in the most senior year group for which the school ordinarily provided education in the 1996—97 school year; and “specified age”— in relation to a pupil who is for the time being provided with education suitable to the requirements of pupils taking advanced level examinations for the General Certificate of Education or other comparable examinations, means 20 years, and in relation to any other pupil, means 17 years. 5 This regulation and regulations 12 and 13 shall have effect notwithstanding anything in regulation 14 or any other provision of these Regulations. Restrictions on remission of fees 12 1 Where the fees for an assisted pupil or any part of them are required to be paid pursuant to— a an order of a court, b a separation agreement, or c a qualifying agreement (as defined in paragraph (2)), his parents shall not be entitled under these Regulations to remission of those fees or (as the case may be) that part of them. 2 In paragraph 1(c) “qualifying agreement” means a legally enforceable agreement under which a person (being either a body corporate, or an individual who is not a parent of the assisted pupil) is required to pay school fees for the assisted pupil, including a deed of covenant made by such a person for the benefit of the assisted pupil. 3 If the parents of an assisted pupil do not— a duly apply to the school for remission of fees payable for a particular school year, or b subject to regulation 15(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. Counter-fraud provisions 13 1 This regulation applies where the Secretary of State is satisfied that the parents of an assisted pupil have knowingly or recklessly furnished information required for determining remission questions which is false in a material particular. 2 Where this regulation applies, the Secretary of State may, subject to paragraph (3), direct that those parents shall not be entitled to any remission of fees in the case of— a that pupil, and b any other of their children who are assisted pupils, as respects a specified school year and, if he so directs, any subsequent school year. 3 The Secretary of State shall not give a direction pursuant to paragraph (2) without— a affording the parents concerned an opportunity to make representations, and b considering any such representations. 4 The Secretary of State may vary or revoke a direction made pursuant to paragraph (2). Determination of remission questions 14 1 Subject to paragraph (2), in the case of every assisted pupil, remission questions shall be determined by the school, in accordance with this Part, for each school year, whether or not his parents have been entitled to any remission of fees as respects a previous school year. 2 Where— a a child holds an assisted place at the school for part only of the school year, or b the parents have two or more children who are assisted pupils but the number of those children holding assisted places differs for different parts of the school year, the school shall determine remission questions for that part, or separately for those parts; and the extent to which fees payable in respect of the part (or parts) of the 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, that is to say the proportion which the fees for the part (or parts) bear to the fees for the whole school year. Calculation of remission 15 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 and the school is satisfied that the income of the surviving parent in the current financial year, when aggregated with that of the deceased parent, is likely to be less than their aggregated income in the preceding financial year, remission questions shall be redetermined by reference to the current financial year; and in such a case, paragraph (1) shall have effect as if— a the reference to the preceding financial year were a reference to the current financial year, and b the reference to the pupils' parents in regulation 10(2) included a reference to the deceased parent (notwithstanding paragraph (8) of that regulation). 3 If, in a case not falling within paragraph (2),— 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 pupils' parents, likely to be not more than 85 per cent of the relevant income in the preceding financial year, or b i 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 ii the Secretary of State agrees that this paragraph should operate in respect of the assisted pupil concerned, remission questions shall be determined as regards 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 a 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, the school may determine remission questions provisionally, having regard to relevant income for earlier financial years, in such manner as the school thinks fit but— a no such provisional determination shall be more favourable to the parents than a determination computed 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 for the appropriate financial year or the school are satisfied that it has become reasonably practicable for them to furnish it but they have not done so; 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. 5 For the purposes of paragraph (4) the expression “appropriate financial year” means the preceding financial year except where paragraph (2) or (3) applies in which case it means the current financial year. Scales of remission 16 Fees shall be remitted in accordance with the provisions of Schedule 2. PART IV Reimbursement of remitted fees Reimbursement claims 17 1 A school may submit to the Secretary of State a claim for the reimbursement of fees remitted pursuant to these Regulations (“a reimbursement claim”) in respect of such periods, not being less than a term, as appear to the school to be appropriate and, with the consent of the Secretary of State, a school may submit a claim on the basis of an estimate of fees so remitted (“a provisional claim”). 2 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. 3 Subject to paragraphs (1) and (2), a reimbursement claim 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. Payments by the Secretary of State 18 1 As soon as is reasonably practicable after he is satisfied that a reimbursement claim is in order, the Secretary of State shall, subject to paragraph (3), reimburse the school in respect of the claim; but, where he considers it expedient to do so, he may make earlier payments on account of that claim or in respect of a provisional claim relating to the same period. 2 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. 3 The Secretary of State shall not be liable to reimburse the school in respect of any fees remitted in the 1997—98 or any subsequent school year in the case of any pupil to whom paragraph (4) applies. 4 This paragraph applies to a pupil selected for an assisted place by the school for the purposes of the assisted place scheme— a who, at the time of his selection, was not eligible for such a place by virtue of the provisions contained in Part II of the 1995 Regulations; or b whose selection contravened a requirement specified in— i the participation agreement, or ii regulation 19 of the 1995 Regulations. 5 Despite the coming into force of section 1 of the 1997 Act— a the provisions of the 1995 Regulations mentioned in paragraph (4), b regulation 2 of those Regulations (so far as is necessary for the purpose of construing those provisions), and c the participation agreement, shall continue to have effect for the purposes of determining whether paragraph (4) applies in any particular case; and for those purposes the power conferred by regulation 19(4) of the 1995 Regulations shall continue to be exercisable by the Secretary of State in cases where a school has contravened the requirement specified in paragraph (1) of that regulation. PART V Miscellaneous provisions Transfer of assisted places 19 1 This regulation applies where a former participating school— a merges with another independent school (including a school which was not also a former participating school); b closes (whether wholly or in part), or c notifies the Secretary of State that it no longer wishes to provide assisted places under section 2(1) of the 1997 Act. 2 Where this regulation applies, the Secretary of State may authorise the new school or (as the case may be) any other former participating school to provide under section 2(1) of the 1997 Act any assisted places which the old school was authorised to provide. 3 Where the Secretary of State decides to authorise a replacement school pursuant to paragraph (2), he shall give written notice of his decision to that school; and that notice shall specify in respect of every transferred assisted pupil— a his name, address and date of birth; b the period for which he may be provided with an assisted place by the replacement school (which shall correspond to the remainder of the period for which his assisted place at the old school would have been available); and c the maximum annual amount of fees which may be charged for him by the replacement school. 4 Where the Secretary of State has authorised a new school pursuant to paragraph (2), references in these Regulations to “school” shall, where the context permits, include that school. 5 A transferred assisted pupil shall cease to hold an assisted place at the replacement school at the end of the period specified in the notice. 6 Before making a decision under paragraph (3), the Secretary of State shall consult the replacement school as to the level of fees he proposes to specify in the notice. 7 Without prejudice to regulations 5 and 6, the fees charged by a replacement school for a transferred assisted pupil shall not exceed the maximum annual amount specified in the notice. 8 In this Regulation— “new school” means a school formed by the merger of the old school and another school; “notice” means a notice given by the Secretary of State to a replacement school under paragraph (3); “old school” means a former participating school referred to in paragraph (1); “replacement school” means a school authorised to provide assisted places under paragraph (2); and “transferred assisted pupil” means a child who held an assisted place at the old school and for whom the replacement school is authorised to provide an assisted place under paragraph (2). Provisionally selected pupils 20 1 In this regulation “provisionally selected pupil” means a child who— a is an existing assisted pupil within the meaning of section 2(5) of the 1997 Act; b did not hold an assisted place provided for the purposes of the assisted places scheme at any time during the 1996—97 school year; and c was provisionally selected, in accordance with regulation 3(2) of the 1995 Regulations, for an assisted place under that scheme to be taken up in the 1997—98 school year. 2 A school shall, as soon after the beginning of the 1997—98 school year as is reasonably practicable, ascertain whether each of the relevant conditions (as defined in paragraph (4)) is fulfilled in the case of a provisionally selected pupil; and where they are satisfied that each relevant condition is fulfilled in the case of any such pupil, they shall finally select him for an assisted place. 3 Where a school ascertain that any relevant condition is not fulfilled in the case of a provisionally selected pupil, they shall withdraw his assisted place forthwith, and his parents shall be liable for any fees provisionally remitted by the school in his case. 4 In paragraphs (2) and (3) the references to “relevant condition” mean a condition mentioned in the provisions of Part II of the 1995 Regulations as those provisions have continued effect in accordance with paragraph (5). 5 Despite the coming into force of section 1 of the 1997 Act, the provisions contained in the 1995 Regulations referred to in the first column of the following table shall continue to have effect for the purposes and to the extent referred to in the second column of that table. Table Provisions of the 1995 Regulations Purpose and extent Regulation 2. For the purposes of construing the provisions of the 1995 Regulations referred to in this Table, save that regulation 2(1) shall have effect as if: there were inserted before the definition of “assisted pupil” the following definition— “assisted place” means an assisted place provided under section 2(1) of the Education (Schools) Act 1997; ; and there were inserted before the definition of “refugee” the following definition— “participation agreement” in relation to a school means the participation agreement made by the Secretary of State and the school as it had effect immediately before the commencement of section 1 of the Education (Schools) Act 1997; . Part II, except for regulation 3(1) to (3). For the purposes of determining whether the relevant conditions are satisfied in the case of a provisionally selected pupil, save that— regulation 3(4) shall have effect as if for “specified by the Secretary of State pursuant to regulation 16” there were substituted “most recently specified by the Secretary of State pursuant to regulation 16(a) before the commencement of section 1 of the Education (Schools) Act 1997”; and regulation 7(2)(a) shall have effect as if the reference to Part III were a reference to Part III of these Regulations. Time limits, forms etc. 21 The Secretary of State may specify for the purposes of these Regulations— a the time by which, and the manner and form in which, 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, and the documentary or other evidence to be provided in support thereof; and 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. 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 attending there including, in particular— a in respect of every child holding an assisted place at the school at the beginning of the 1997—98 school year and each subsequent school year— i his name and date of birth, and ii the kind of education provided for him at the school; and b information relevant to an intended increase in fees under Regulation 5. 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; and b be audited by an independent person who is eligible under section 25 of the Companies Act 1989 for appointment as a company 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.