OG551-1 Historical Background to the Education System

Last reviewed:
6 May 2014
Last updated:
15 May 2014

Policy Statement/Overview

This guidance provides a timeline for the history of the education system in England and Wales up to the present day and sets out key educational provisions up to 1944. It highlights how the legislation of the 19th Century in particular still has an impact on educational charitable trusts today. Identifying educational trusts or their trustees with origins in the 19th century can be difficult and may involve reference to various Acts of Parliament, the effect of later legislation on previous legislation, the way in which legislation was carried out, including how property was transferred, and the interpretation of conveyances or deeds in declaring trusts.

Most of our educational casework involves:

  • Educational institutions which form part of the maintained system of education and are funded wholly or mainly by public funds administered by the Local Authority. Maintained schools are constituted by the School Standards Framework Act 1998 and include some schools which are exempt charities. Our involvement with different types of maintained schools will usually be in connection with property held on charitable trusts. OG551-2 outlines these issues at section B7.3  
  • Education institutions which are charitable and receive no support from public funds, for example, independent schools, some Jewish or Muslim Schools where no fees are charged, or Steiner or Camphill Schools, are governed primarily by charitable law for the general administration of the institution. However, they must still comply with educational law where the impact is broader than the institution itself, for instance, in relation to the National Curriculum and public examinations for entry to higher education.
  • There are other educational institutions that are charitable but are funded either wholly or partially out of public funds (via the Department for Education) and will be subject to both charity and educational law, for example Academies, which are exempt charities. Our involvement with existing Academies will usually centre around changes to governing documents and consent under section 198 of the Charities Act. OG551-3, to be published shortly, provides further details.  

  

Summary of the guidance

A timeline for the major Acts and events affecting educational provision can be found at section B2.

Developments in the 19th century which altered the way education was structured are set out at section B3 and section B4 highlights particular casework issues arising from the Elementary Education Act 1870. This is supplemented by the charts at section C1 and C2 which help in identifying charitable trusts where property was conveyed under this Act. 

Case Studies, section D1 highlights briefly the terminology used in education cases and the need for clarity when dealing with these case.

Legal Policy section E1 provides an excerpt from the 1944 Education Act setting out the constitution of managers and governors of county and voluntary schools.

OG Contents (Site map)

Casework Guidance

B1 Overview of the law of education

B1.1 Educational institutions and the law

In carrying out their objects charitable institutions (usually schools) must take account of a vast body of law which affects every aspect of their work. Their work will is governed by both educational and charity law as well as other legal obligations such as employment and health and safety legislation.

This guidance provides a background on how education law has evolved and highlights where the operation of charity law needs to take account of education law. In considering any case that concerns a school or form of educational institution we need to be clear that we are dealing with something which is charitable.

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B1.2 The nature of educational institutions and the Commission's involvement

Educational institutions which form part of the maintained system of education and are funded exclusively from public sources, administered at a local level by Local Authorities are governed by the law of education. The Commission will only be concerned if the school property is held on trust, for example where:

  • it is a voluntary school (see B3.8 and OG551-2)
  • it is an Elementary Education Act 1870 school site (see B3.6 and B3.7)
  • if there are associated institutions such as prize funds, funds to provide assistance to those in financial need or funds to provide additional facilities, which are charitable

Educational institutions which are charitable and receive no support whatsoever from public funds (eg independent fee-paying schools, some Jewish and Muslim schools where no fees are charged and Steiner or Camphill schools) are governed primarily by the law of charity in relation to their charitable objects and assets and thus fall within the jurisdiction of the Commission. However, they must comply with the law of education in many respects; for instance, they must take account of the National Curriculum and examinations for entry to educational institutions providing higher education (as distinct from examinations internal to the educational institution concerned).

Educational institutions which are charitable and which are funded either wholly or partly from public funds administered at a national level by the Department for Education will be governed both by the law of charity and the law of education (eg Academies) - see OG551-3.

The School Standards and Framework Act 1998 (as amended) and the Academies Act 2010 (as amended) define the current structure for primary and secondary education. See OG551-2 which gives an overview of current legislation governing charitable maintained schools and OG551-3 which looks at Academies.

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B2 The origins of the education system

The first attempt to establish a compulsory system of public education in England and Wales was through the Elementary Education Act of 1870.

Before that, schools were provided on the initiative of individuals or groups, either on a charitable basis or for private profit, and attendance was not obligatory.

Traditionally, there was a close link between religion and education, with the great monastic houses of the medieval period being centres of learning, and tutors being mainly men in holy orders (monks, friars or priests). The dissolution of the monasteries in 1536 significantly reduced such educational provision as there was at that time.

In the reign of Edward VI (1547-1553) a number of grammar schools were established for the education of poor boys with the intention of making good this shortfall, and a number of these charitable schools, some bearing Edward VI’s name in their titles, are still in existence.

Even where public education was available its scope was strictly limited. At the lower level, it would be confined to teaching children to read and sign their names, while in the grammar schools it would consist largely of the study of classical Greek and Latin.

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B2.1 Timeline summary of major education acts, reports and other key events

 

700 to 1775

700s

Venerable Bede - Bede’s works included material designed to help teach grammar and became a standard text for the teaching of Latin verse during the next few centuries.

1200s

First Oxford colleges established within a University 1249, Balliol 1260, and Merton 1264.

1400s

Independent schools founded Winchester 1382, Eton 1440. Still closely allied with the Church

1500s

Reformation and Renaissance period during which both State and people called for greater care and respect for education. Foundation of Free Grammar Schools begins in earnest.

1600s

Comenius (theologian and educational reformer) championed universal education.

1609

12 first Oxford College (Wadham) not to require teachers to be in Holy Orders.

1660

Dissenting Academies (schools, colleges and nonconformist seminaries (often institutions with aspects of all three)) run by dissenters. They formed a significant part of England’s educational systems from the mid-seventeenth to nineteenth centuries and were established to teach law, medicine, commerce, engineering and the arts because Oxford and Cambridge had begun to discriminate against Nonconformists.

1700s

Charity Schools for the poor.

1775

Industrial Revolution began to create demand for mass education.

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1800-1900

1807

Parochial Schools Bill made provision for the education of 'the labouring classes'.

1811

National Society established (Church of England which aimed to provide a school in every parish).

1814

British and Foreign School Society set up by liberal Anglicans, Roman Catholics and Jews as an alternative to the National Society.

1836

Central Society of Education an alternative to the National Society and the British and Foreign School Society, its aim was to keep religion out of schools altogether.

1841   School Sites Act, followed by the School Sites Acts of 1849, 1851 and 1852. allowing for individuals to provide land for the purposes of education and religion. These Acts allow for land to revert to original owners or their heirs where it is no longer used for the original purpose and gave rise to the Reverter of Sites Act 1987.
1854 Literary and Scientific Institutions Act. In some places, particularly in Wales, this Act was used to provide educational institutions.

1861

Newcastle Report recommended provision of 'sound and cheap' elementary education, led to 1870 Elementary Education Act

1864

Clarendon Report on public (independent) schools, led to Public Schools Act of 1868.

1868

Public Schools Act based on the 1864 Clarendon Report.  Regulates Rugby, Winchester, Eton Charterhouse School, Harrow School, Merchant Taylors' School, Shrewsbury School St Paul's School, and Westminster School.

1868

Taunton Report recommended a national system of secondary education based on the existing endowed schools, led to 1869 Endowed Schools Act.

1869

Endowed Schools Act based on the 1868 Taunton Report.

1869

Headmasters' Conference established (independent schools).

1870

Elementary Education Act (The Forster Act) introduced compulsory universal education for children aged 5-13 but left enforcement of attendance to school boards. Schools provided by School Boards must be non-denominational.

1880

Education Act (The Mundella Act) tightened up school attendance laws.

1888

Local Government Act created county councils and county borough councils which later became the framework for educational administration.

1889

Intermediate Education Act (Wales) established the Welsh secondary education system.

1891

Education Act (elementary education to be provided free).

1893

School leaving age raised to 11.

1899

Board of Education Act established the Board of Education (now DfE).

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1900 - 1944
1902 Education Act (The Balfour Act) established a system of secondary education integrating higher grade elementary schools and fee-paying secondary schools. Abolished school boards and established local education authorities (LEAs).
1906 Education (Provision of Meals) Act allowed LEAs to provide meals for undernourished elementary school children.
1907 Education (Administrative Provisions) Act introduced scholarship/free place system for secondary education and required LEAs to provide medical inspections of elementary school children.
1917 Lewis Report proposed school leaving age of 14 with no exemptions, followed by attendance for at least 8 hours a week or 320 hours a year at day continuation classes up to age 18.
1918 Education Act (The Fisher Act) implemented recommendations of 1917 Lewis Report. Wide-ranging act extending education provision. School leaving age to be raised to 14 and all young workers to be given right of access to day release education (not immediately implemented because of WWI - the leaving age was eventually raised by the 1921 Act).
1921 Education Act school leaving age raised from 12 to 14. Fees were still paid for attendance at school.
1923 Secondary education for all became Labour Party policy.
1944 Fleming Report examined how independent schools could be integrated into the state system - it was never implemented.
1944 Education Act (The Butler Act) major act which replaced almost all previous education legislation. Replaced the Board of Education with the Ministry of Education.  Fees abolished for LEA schools.
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1946 - 1978
1946 Education Act set out arrangements for the management of voluntary and controlled schools.
1946 Free milk provided for all pupils.
1947 School leaving age was raised to 15.
1956 Colleges of Advanced Technology: selected technical and FE colleges were upgraded to this status. In the mid-1960s most of these became the 'new universities'
1959 Crowther Report Recommended raising the school leaving age to 16 and the provision of further education for 15-18 year olds. It questioned the value of day release provision for apprenticeships.
1962 Education Act required LEAs to provide students with grants for living costs and tuition fees. Placed a legal obligation on parents to ensure that children received a suitable education at school or otherwise - failure to comply could result in prosecution. Made LEAs legally responsible for ensuring that pupils attended school.
1964 Education Act (The Boyle Act) facilitated the introduction of middle schools.
1964 Ministry of Education was renamed the Department of Education and Science (DES).
1965 Certificate of Secondary Education (CSE) introduced in England and Wales.
1966 Polytechnics established.
1968 Newsom Report Public Schools Commission recommended the integration of independent schools into the maintained sector. Never implemented.
1968(1) Education Act laid down rules about changing the character of a school (eg to comprehensive).
1968 (2)) Education Act required polytechnics and other LEA colleges to have governing bodies.
1969 Children and Young Persons Act gave LEAs responsibilities for children not receiving education or in need of care and control.
1971 Education (Milk) Act limited the provision of free milk in schools.
1973 Education Act postgraduate students were no longer eligible for LEA grants.
1973 School leaving age raised to 16.
1978 Waddell Report recommended a single exam at age 16 to replace the GCE O Level and CSE. (In the event, the GCSE was not introduced until 1986).
1978 Warnock Report Special educational needs major report on provision for children and young people with special needs.
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1979-1997
1980 Education Act a major act which instituted the assisted places scheme (public money for children to go to private schools), gave parents greater powers on governing bodies and over admissions, and removed the obligation on LEAs to provide school milk and meals.
1986 General Certificate of Secondary Education (GCSE) common 16+ exam system replaced GCE O Level and CSE.
1986 Education Act required LEAs to state policies, governors to publish annual reports and hold parents' meetings; laid down rules on admissions, political indoctrination and sex education; abolished corporal punishment; ended Secretary of State's duty to make annual reports.
1986 National Council for Vocational Qualifications (NCVQ) established to promote National Vocational Qualifications (NVQs).
1987 Reverter of Sites Act allowed us to extinguish rights of reverter and establish new charitable trusts for property originally given for educational purposes with reversionary rights. 
1991 Polytechnics granted university status.
1992 Education (Schools) Act established Ofsted (Office for Standards in Education) - privatised schools inspection body.
1992 Further and Higher Education Act removed FE and sixth form colleges from LEA control and established Further Education Funding Councils (FEFCs), unified the funding of higher education under the Higher Education Funding Councils (HEFCs), introduced competition for funding between institutions, abolished the Council for National Academic Awards.
1992 Department of Education and Science was renamed the Department for Education (DfE).
1995 DfE renamed the Department for Education and Employment (DfEE).
1996 Nursery Education and Grant-Maintained Schools Act introduced a voucher scheme for nursery education which was later withdrawn, and allowed governors of Grant Maintained schools to borrow money.
1996 Education Act - huge act mainly consolidating all previous Education Acts since 1944.
1996 School Inspections Act consolidated previous legislation on school inspections.
1996 Dearing Report review of vocational qualifications for 16-19 year olds.
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1998 - 2007
1998 Education (Student Loans) Act transferred provision of student loans to the private sector.
1998 School Standards and Framework Act encouraged selection by specialisation, changed the names of types of schools and limited infant class size.
1999 Teaching and Higher Education Act established the General Teaching Council (GTC), abolished student maintenance grants and required students to contribute towards tuition fees.
1999 Fresh Start scheme aimed to revitalise 'failing' inner-city schools.
2000 City academies - government intention to create a network of academies - consisting of independent schools paid for by the state.
2001 DfEE renamed the Department for Education and Skills (DfES)
2001 National Assembly for Wales announced its intention to create a fully comprehensive system of secondary schools.
2002 First 3 City Academies opened.
2003 9 more City Academies opened.
2004 Building Schools for the Future (BSF): a massive school rebuilding programme.
2004 Wales education minister announced that tests for 11 and 14 year olds would be scrapped.
2004 5 more academies opened (with “City” having been dropped).
2006 Education and Inspections Act established a new type of school called a Trust school. Each Trust school to decide its own governance model from either the VA or Foundation model. Local authority assets - buildings and land - would be transferred to trust ownership, and the trust would take on the responsibility for the employment of all the school staff.
2006 University top-up fees UCAS revealed that 15,000 fewer students had started university compared with the previous year.
2007 Teaching 2020 a paper setting out the government's vision for schooling in the future.
2007 Government announced its intention to raise the leaving age to 18, possibly in 2013.
2010 Academies Act enables more schools to become academies and makes them exempt charities.
2011

Education Act providing for

  • the introduction of targeted free early years care for children under compulsory school age
  • making changes to provisions on school discipline and places restrictions on the public reporting of allegations made against teachers
  • the abolition of five quangos:
    • the General Teaching Council for England,
    • the Training and Development Agency for Schools,
    • the School Support Staff Negotiating Body,
    • the Qualifications and Curriculum Development Agency 
    • the Young Person’s Learning Agency and gives new powers to the Secretary of State.

As a consequence of some of these changes:

  • remove certain duties on school governing bodies, local authorities and further education institutions, including the duty on local authorities to appoint school improvement partners
  • alters arrangements for setting up new schools, and amends the Academies Act 2010 to make provision for 16 to 19 academies and alternative provision academies
  • include measures relating to school admissions, school meals, composition of school governing bodies, school inspection, school finance and permitted charges.

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B3 Developments in the 19th and early 20th centuries (up to 1944) 

 

B3.1 The need for education

By the early 19th century, there was a widespread view among religious adherents that people ought to be taught to read so that they could read the Bible for themselves. Many felt that, beyond this, education was good in itself, particularly so that the nation could maintain its place in an increasingly industrialised world.

However, what was envisaged at that time was a very basic level of education in comparison `to what we expect today, particularly with reference to girls.

As a result of these developing views, two societies came into being which began to build schools and train teachers:

  • in 1808, the Society for Promoting the Royal British or Lancastrian System for the Education of the Poor, which shortened its name to the British and Foreign Schools Society in 1814; and
  • in 1811, the National Society for Promoting the Education of the Poor in the Principles of the Established Church throughout England and Wales, which later changed its name to the National Society and broadened its scope to assist children who were not Anglicans.

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B3.2 Parliamentary grants

In 1833, Parliament began to make grants to assist in the provision of schools on a basis of matching the sums raised by voluntary effort on a pound-for-pound basis. The funds were distributed by the two societies mentioned above, in the absence of a Civil Service department or other administrative machinery to take over the task.

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B3.3 The Committee of Council on Education

The Committee of Council on Education was established in 1839, six years after the first State grants for education had been voted and paid through the National Society, and the British and Foreign School Society.

The Committee was effectively an embryo education department, and one of its prime tasks was to be the foundation of a national college for the training of teachers (to which end, a sum of £10, 000 had been voted by Parliament in 1835). Religious difficulties made it impossible to secure the agreement of the denominational interests affected by the proposal, and in the end the money was instead, distributed between the National Society and the British and Foreign Society, in capital grants of £50 per student place.

The Committee became the Education Department in 1856.

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B3.4 School Sites Act 1841 - "Reverter"

Until the end of the 19th century the transfer of land was complicated. The first School Sites Act was passed in 1836 to make it easier for landowners to grant the land necessary for the establishment of schools. However, land was not being made available in sufficient quantities, so in 1841, in order to encourage landowners to make land available, another School Sites Act was passed providing for return of the land to individual private landowners if it ever ceased to be used for school purposes. This provision is commonly called reverter. Land which had been granted under section 2 of the School Sites Act 1841 was subject to reverter and is now subject to the Reverter of Sites Act 1987.

It was also possible for other landowners to grant land under other sections of the 1841 Act, so for instance clergy and charity trustees could grant land for school purposes, but in these cases there would be no reverter if the land had ceased to be used for school purposes.

More information on the Reverter of Sites Act can be found in OG 27.

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B3.5 The Endowed Schools Act 1869

In 1864, a committee was appointed to inquire into education given in charitable schools which were funded by means of income from their endowment. The object of the founders of these endowed schools was perceived as being to put a liberal education within reach of children of all classes.

The committee’s report recommended various changes geared towards greater efficiency. The Endowed Schools Act 1869 created the Endowed Schools Commission which drew up new schemes of government for endowed schools.

The 1869 Act also included a power for the Charity Commission to divide the endowments of charities for more than one purpose, one or more of which was educational, and to amend the trusts on a more radical basis than they could do under the cy-près doctrine. In these respects the 1869 Act foreshadowed the powers of the Board of Education Act 1899.

These extra powers helped to ensure that foundations which had both educational and non-educational objects in their purposes, were split into separate educational and non-educational charities. Thus the educational charity would have an identifiable amount of endowment which could be used solely for educational purposes without the risk of it being applied for non-educational purposes.

This is still relevant as we may deal with charities that were split in this way under the 1869 Act.

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B3.6 The Elementary Education Act 1870 

The 1870 Elementary Education Act introduced compulsory universal education for all children aged 5-13 and established school boards to oversee and complete the network of schools and to bring them all under some form of supervision. These schools were partially state funded.

The Act provided for the establishment of School Boards in each area. The Boards were responsible for assessing the adequacy of educational provision in that area, and to provide schools to meet those educational needs not already catered for.

These boards could, at their discretion, create local by-laws, confirmed by Parliament, to require attendance and fine the parents of children who did not attend. There were exemptions for illness, living more than a certain distance (typically one mile) from a school, or certification of having reached the required educational standard (which varied by board).  

The 1870 Act laid the foundations of the modern system of education by setting out to ensure that schools were available in all areas of the country.

These elementary schools:

  • could not be denominational
  • catered for children up to 14
  • provided a restricted curriculum with the emphasis almost exclusively on reading, writing and arithmetic 
  • pursued other, less clearly defined, aims including acceptance of the teacher's authority, the need for punctuality, obedience and conformity.  
  • operated the 'monitorial' system, whereby a teacher supervised a large class with assistance from a team of monitors (usually older pupils).

The remuneration of elementary school teachers was based on the system of 'payment by results' so while public aid to the schools increased, money was tied to the criterion of a minimum standard. 

The churches had not been able to make universal provision for education which created the need for state intervention to deliver the requirements for compulsory education. The state now funded schools managed by locally elected interdenominational representatives. Church schools continued to receive a maintenance grant of up to 50 per cent but, once board schools were in place, there would be no more money for new buildings.  

An amendment to the 1870 Act banned the teaching in board schools of denominational specific religion. In every school receiving public funds, parents had the right to withdraw their children from religious instruction and teachers had the right not to teach it. School inspections were no longer denominationally controlled.

It was assumed that the 1870 Act would result in a gradual decline in the number of church schools and their replacement by board schools. However, this didn't happen. The churches took advantage of government funds available for new buildings (in the absence of board schools) and the number of church schools increased. Within 15 years, the number of Church of England schools rose from about 6,300 to almost 12,000, and Catholic schools from about 350 to just below 900.  

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B3.7 The Elementary Education Acts (1880 to 1893)

The 1880 Act insisted on compulsory attendance from 5–10 years. For poorer families, ensuring their children attended school proved difficult, as it was necessary for some children to work to earn much needed income. Attendance Officers often visited the homes of children who failed to attend school, which often proved to be ineffective.

Children under the age of 13 who were employed were required to have a certificate to show they had reached the educational standard. Employers of these children who weren't able to show this were penalised.

The Free Education Act 1891 provided for the state payment of school fees up to ten shillings per week.

The Elementary Education (School Attendance) Act 1893 raised the minimum leaving age to 11 and later to 13. Later the same year, this Act was also extended for blind and deaf children, who previously had no right to access an official education.

The Elementary Education (Blind and Deaf Children) Act 1893 of the same year extended compulsory education to blind and deaf children, and made provision for the creation of special schools.  

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B3.8 Voluntary Schools Act 1897

In 1897, the Voluntary Schools Act defined voluntary schools for the first time.

It provided for the payment of annual sums calculated on the basis of the number of pupils to assist voluntary schools but also ensured that voluntary subscriptions were to be maintained. A voluntary school was defined as a public elementary school which was not provided or funded by a School Board (typically church schools).

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B3.9 The Board of Education Act 1899

In 1899, the Board of Education was created to replace the Education Department and provision made for the transfer to that Board of powers formerly exercised by the Charity Commissioners. Until that time, educational charities, whether concerned with the running of a school or not, were governed substantially by the law relating to charities rather than the law relating to education.

Any problems that trustees encountered requiring advice, assistance in modifying trusts or authority to carry out particular actions were normally considered and dealt with by the Charity Commissioners using a Scheme or Order.  

The Act recognised that some schools consisted of a mixture of charitable trusts and state sponsored educational provision and made allowance for the charitable element to be separated out. This was done by a Determination Order under section 2(2) of the Act. Those portions of the charity which were determined as being for educational purposes were determined by Scheme or Order as separate charities. In some cases, the endowment was a portion of the school land or other property.  In many cases, however, it consisted of the right to receive payment of a stated sum, or a proportion of income annually from the original endowment. 

When making the Orders the Board of Education did not always constitute new trustee bodies for the charity which, in effect, left the original trustees in place.  Because of this the charity may have been left with out validly appointed trustees for a variety of reasons, such as:

  • the deaths of original trustees
  • the Local Authority may have been acting mistakenly as trustee
  • the school has closed and changed status (ie to Academy status) leaving it without trustees

This is an important point where we are considering cases involving these charities as we may need to make trustee appointments. OG510 Charity Trustees: Making and Ending Appointments provides guidance on trustee appointments - see Case Example D4 where a school has become an Academy.

Determination Orders were made most commonly around 1902 and 1903.  

The Board of Education (and its successors) fulfilled a dual role in administering the law of charity and the law of education in relation to educational charities until 1 February 1974 when responsibility was given back to the Commission. This transfer was brought about by section 1 of the Education Act 1973. 

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B3.10 The Board of Education Act 1902 (" The Balfour Education Act") 

The Board of Education Act of 1902 abolished School Boards and created instead Local Education Authorities (LEAs). This Act was significant in that it allowed for all schools to be funded through local taxation (“rates”). Bodies called "school managers" were to be established for every school so assisted.

The chief development, however, was that section 3 of the 1902 Act required the LEAs "…to spend such sums as they think fit for the purpose of supplying or aiding the supply of education other than elementary". This meant that education was divided into elementary and secondary, but not necessarily on the clear basis which applies today. Some children would continue in elementary education until the age of 14 (the school leaving age then), while others would transfer to a secondary school at a suitable age.

Some secondary schools were called technical schools, as they specialised in providing education which had a strong bias towards vocational training.

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B3.11 Developments between 1902 and 1944

The Education Act of 1918 provided for the first time that elementary education in public elementary schools would be completely free. It also made secondary education compulsory from the age of 5 to 14 and gave responsibility for secondary schools to the state. This Act was not implemented until 1921

The Education Act of 1921 consolidated the law of education as it existed at that date.

Many charitable schools had schemes made between 1921 and 1922 which only alter the fees to be charged.

In 1926, the Hadow Report set out the basis for the educational system as we now know it. It recommended integrated provision of secondary education embracing a variety of types of education which would meet the needs of what at that time were seen as "normal" children. That is any child that was not perceived as having a learning difficulty which restricted their learning capacity.

In particular, it recommended a more sophisticated system of secondary education targeting actual ability and need by providing:

  • grammar schools for academically able children
  • secondary schools with a more practically based syllabus
  • technical schools with courses targeting particular skills required in industry

Provision was made for children to transfer from one type of school to another at the age of 13 if another type of education was thought more suitable for them.  

Primary education was to terminate at the age of 11 and a strong recommendation was made that the minimum school leaving age should be raised to 15.

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B3.12 The Education Act 1944

The aim of the act was to provide equality of opportunity in education. It abolished all charges for education in schools which received support out of public funds. It aimed to provide more alternatives within the educational framework to suit a variety of abilities. The system would also be a national one meeting the same standards regardless of locality.

Section 7 of the Act expresses the object as follows:

"The statutory system of public education shall be organised in three progressive stages to be known as primary education, secondary education and further education: and it shall be the duty of the local education authority of every area, so far as their powers extend, to contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient education throughout those stages shall be available to meet the needs of the population of their area".

"Further education" at that time was defined as covering all education other than primary or secondary education.

The 1944 Act at section 17(1) - (3) contained powers for the making of Instruments and Articles of governance for every county and voluntary school. This means that a governing body for the school could be established. This is NOT a new governing body for the underlying property charity.

Section 17(4) contained a power to make Trust Modification Orders. This power could be used where the contents of Instruments and Articles were inconsistent with the underlying trusts. The Minister could by Order under section 17(4) amend the underlying trusts.

lawyer_referSmoothing out inconsistencies using section 17(4) could potentially create changes to the governing body of the underlying trust, making the governing body of the school the trustees. In such cases section 83 of the SSFA may also apply (which makes Foundation governors trustees of an underlying trust). Legal advice must be taken where section 17(4) of the 1944 Act or section 38 of the SSFA are mentioned to ensure we correctly identify who the trustees are. A copy of section 17 of the 1944 Act can be found at section E1 of this guidance.

The 1944 Act also replaced the Board of Education with the Ministry of Education. The Ministry of Education has been subject to a number of name changes since then. In 1964 the name was changed to the Department of Education and Science and the department head became the Secretary of State for Education and Science. In 1992, the department was renamed the Department for Education and its head became the Secretary of State for Education.

In 1995, the Department was merged with the Department of Employment to become the Department for Education and Employment (DfEE), and in 2001 became the Department for Education and Skills (DfES).  In June 2007, it became the Department for Children, Schools and Families (DCSF). In 2010, it reverted to the Department for Education (DfE).

These name changes have significance when looking back through previous documents when considering charity issues - they give us a point in time and an indication of relevant legislation affecting schools.

Direct grant schools - Section 100 of the 1944 Act provided for grants to be made by the then Minister of Education to certain schools (ie direct from government rather than through the LEA). This created direct grant schools funded partly by government and partly by charging fees. These were neither maintained schools nor independent schools. Most of these grant schools were charitable but with a proportion of the governing body being appointed by LEAs. Children unable to afford the school fees attended these schools on the basis of educational merit.

The Direct Grant Schools (Cessation of Grant) Regulations 1975 provided for the cessation by stages of the payment of grants to the proprietors of direct grant grammar schools. As a result these schools to become either county or voluntary comprehensive schools or independent schools.

Subsequently s34 of the Education Act 1980 provided for the registration of direct grant schools as independent schools.

When funding by means of a direct grant ceased, a system known as the assisted places scheme was introduced (s17 of the Education Act 1980). The intention was to enable pupils to attend independent schools where they might not have otherwise been able to do so. The assisted places scheme was ended by the Education (Schools) Act 1997.

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B4 Cases arising because of the Elementary Education Act 1870

Historically, different types of cases have emerged because of the way land was acquired or transferred to the School Boards as a result of the Elementary Education Act 1870. School boards were empowered to take on schools that had been set up on trust as well as set up non-charitable schools under the state system which left some schools with a mixture of charitable and non-charitable land. Where the school is a maintained school please see OG551-2 which provides guidance particularly about maintained schools in addition to the guidance below. Where questions about land arise on conversion to Academy status see OG551-3.

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B4.1 Gifted and acquired land and its value

Essentially the types of case presented to us concern school land disposals and whether permissions might be needed from us because of the charitable nature (or otherwise) of the original land. This can sometimes centre on whether land was gifted on trust or the price that was paid for land on acquisition where it was said to be on trust. 

Status of land Our approach in the past

Land gifted on trust as charitable

Dealt with in accordance with the Charities Acts
Land gifted or acquired with no trusts Outside our jurisdiction
Land acquired by School Board for value on trust Looked on as more likely to be charitable and within our jurisdiction - where local authorities disagree and can show that the site had only ever been treated as a state school and support this with other evidence we will concede that the land is not charitable.
Land acquired by School Board for value with no trusts Outside our jurisdiction
Land acquired under statutory powers for new Board Schools Outside our jurisdiction 

Difficulties surround cases where land was acquired for value on trust as there may be doubt over its charitable nature. In the past our stance in these cases has been for the applicant Local Authority to prove that

  • the transfer “value” was an undervalue (thereby showing its charitable nature)

or

  • that the transfer value was a willing price paid by a willing vendor, ie market value at that time (and usually not considered charitable, unless there is evidence to the contrary)

With passage of time (over 100 years) records and suitable evidence of this nature was almost impossible to provide. Thus, we set an incredibly high test for Local Authorities to achieve.  Ascertaining historic land prices that might be deemed by a reasonable person to be useful was, in 1995, thought to be an almost impossible task. As a result many Orders were made (for avoidance of doubt) to allow property to be sold and the proceeds of sale retained to be applied in accordance with a further Scheme or Order. Rarely was any further action of any type taken and many Local Authorities now have sums of money from the sale of school property which they cannot spend without further permission from us. Cases involving proceeds of sale emerge from time to time.

See the Charts at C1 and C2 which help with identifying whether or not land is charitable

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B4.2 Current cases involving the 1870 Act

We now have better information about land prices in 1870 and have established a "rule of thumb" for our purposes when we need to consider land values at that time - see section B4.4 below on Historic Land Prices. This acts as a guide only and Local Authorities will still need to take their own advice on the matter of value.

When making these considerations we interpret: 

  • “For value” to mean at market price or above
  • "Value"  alone may indicate an undervalue, perhaps showing an altruistic intent which might be charitable

Having this information means that we no longer make Orders for avoidance of doubt and we expect Local Authorities to have come to their own conclusions (with the benefit of any independent advice as required) on whether the land is charitable before approaching us - see sections B4.4 and B4.5 below concerning land prices as an indication of charitable nature and how we apply a risk based approach to our casework.

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B4.3 Charitable status of School Board schools

School Boards were not themselves charities. They were statutory bodies with statutory purposes. Schools provided exclusively out of funds raised by School Boards, or from grants made to School Boards were not charitable.

Schools which met those criteria generally became county schools in 1944, and will have transferred under the provisions in the Local Government Acts to the present local education authority (LEA). (Note: Many Councils are now unitary authorities and LEAs no longer exist. Therefore, we refer now to the Local Authority and not LEA.)

However, because School Boards may have been empowered to act as trustees of educational charities, no assumption can be made about the charitable status of any school administered by a School Board. Critical factors in deciding if a school administered by a School Board is a charity are whether the original conveyance or deed establishing a school or transferring any interest in a school site to a School Board includes the words "upon trust", and whether market value or a token sum was paid by the School Board for the land.

The judgement of Morritt J in Hampshire County Council v AG (unreported, 4 May 1994) clarified the position where a school site is acquired (purportedly on trust) by a School Board for the purposes of the Elementary Education Act 1970. The judge dealt with conveyances which were either voluntary or for a token sum and, in the cases before him, was able to determine that the deeds did in fact create charitable trusts. However, he left open the question of what the position would be if a School Board had paid full value for the premises, even if it took them ‘upon trust’. It may be that in those cases the property would be held by the Board (non-charitably) for its statutory purposes and not upon charitable trusts.

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B4.4 Historic land prices

Analysing whether the sum stated for the transfer of the property represented full/market value or an under-value is difficult but it is a major element in deciding if the funds or land were charitable at the time they were acquired by the Board..

In deciding these cases we have chosen to look at historic land price data based on agricultural values. This gives us a framework which suggests that depending on the geographical location a sum of between £10 and £70 per acre of agricultural land could be expected in the period 1850 -1890. We arrived at the £10 - £70 figure by looking at average agricultural rents (5s – 35s pa) and scaling them up by 40 years purchase (the Inland Revenue maximum when calculating inheritance tax purposes at the end of the period). This method provides that:

  • values of less than £100 per acre are potentially under-values.

Narrowing this down further, agricultural land (2010) (with no development value) averages £2000 per acre and the National Archives money value calculator renders this as £24 10s 2d for the same period. Accordingly, values of £24 or below are assumed to be under-values unless contrary evidence is produced by the LA.

When approaching us for permissions to expend funds or taking action in line with the Charities Act to sell school land Local Authorities will be need to set out their view on the charitable nature (or otherwise) of the original land by reference to the value of the land at the time of transfer. We expect them to consider local land values and/or any recitals as to previous value paid/mortgaged (see Justice Morritt’s comments at paragraph 21 of Hampshire County Council v HM Attorney General [1994] N.P.C. 62).

lawyer_referAdditionally, we need to consider whether there are any charitable trusts. This involves reading the conveyance in full. Where there might be implied trusts specialist legal advice should be taken before a view is formed.

 

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B4.5 Applying a risk based approach to current cases in connection with the 1870 Act 

The Commission's Risk Framework sets out the approach we take to managing risks associated with our casework. Our involvement is proportionate to the risks involved and makes best use of the Commission's resource to do this work.  

Much resource can be employed by us and the Local Authority when trying to decide whether a trust exists on the basis of land values and the wording of a conveyance or deed. It is our view against that of the Local Authority as, ultimately, only the court can determine the matter.  

Risks of misapplication of funds or loss to beneficiaries are greatly reduced when considering schools that were transferred at value on trust. This is because the Local Authority can only apply the funds from sale for advancing education. So, even if our view was wrong the money would not be diverted from its original purpose. The benefit to the public in expending public funds (both ours and those of the LA ) in settling such matters may not be warranted given that the destination of the proceeds of sale will be for education (either charitable or not). 

lawyer_referIn dealing with cases where the original land was transferred for value on trust our presumption is that it will be held on charitable trusts unless the Local Authority can show the contrary. Where objections are raised legal advice should be sought and the case considered on its individual merits. Other cases as set out at B4.1 will be considered in the same way as previously. Where the charitable status of any such school property remain unclear or is disputed, you should seek technical or legal advice.

See the charts at C1 and C2 which help with identifying whether a charitable trust exists. 

See also guidance on maintained schools in OG551-2. 

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Charts

C1 Elementary Education Act 1870 Conveyances for monetary value

This chart provides a starting point when considering whether the conveyance was for charitable property where it was conveyed for monetary value. 

g551a001_1rf 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Notes - see also casework guidance at section B4

Values of less than £100 are potentially under values which could indicate the existence of a charitable trust.

Property sold for full value would usually be thought of as not charitable unless there was evidence of it being sold on trust for a charitable purpose. 

Local Authorities are expected to explain why, in their opinion, the sum involved was or was not full value based on local land values and/ any recitals as to previous land value paid/ mortgaged - see Hampshire County Council v HM Attorney General [1994] N.P.C. 62.

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C2 Elementary Education Act 1870 Conveyances for no monetary value

This chart is a starting point for considering whether the conveyance was for charitable property where no money changed hands.  

 g551a001_2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case Studies

D1 Terminology when dealing with educational cases

D1.1 Confusion with terms

Educational cases often involve different terminology to other charity cases. Additionally, the terms used can sometimes mean one thing to us and something different to the Department for Education (DfE).   

The most common terms that may lead to confusion include:

Educational Institutions

To us this means any school, college or Further Education Corporation, Sixth Form Corporation (whether voluntary controlled or otherwise), conducted in accordance with the requirements of various Education Acts.

To DfE this term is used in connection with the Education Bill 2011 in reference to an Academy of any type.

Foundation School

To us this refers to a voluntary school or any other school where the property is held on trust. To DfE it means mainly a trust school where the governing body holds the land and buildings, and also, a voluntary school or other school where the land is held by trustees.

We should always be clear in any correspondence about the type of charity that we are looking at by reference to the appropriate Act(s) rather than use shorthand expressions that may lead to confusion.   

 

Legal Policy & Accountancy Framework

E1 Excerpt from the Education Act 1944 as originally enacted

Management of Primary Schools and Government of Secondary Schools

17 Constitution of managers and governors and conduct of county schools and voluntary schools

(1) For every county school and for every voluntary school there shall be an instrument providing for the constitution of the body of managers or governors of the school in accordance with the provisions of this Act, and the instrument providing for the constitution of the body of managers of a primary school is in this Act referred to as an instrument of management, and the instrument providing for the constitution of the body of governors of a secondary school is in this Act referred to as an instrument of government.

(2) The instrument of management or the instrument of government, as the case may be, shall be made in the case of a county school by an order of the local education authority and in the case of a voluntary school by an order of the Minister.

(3) Subject to the provisions of this Act and of any trust deed relating to the school:

(a)every county primary school and every voluntary primary school shall be conducted in accordance with rules of management made by an order of the local education authority; and

(b)every county secondary school and every voluntary secondary school shall be conducted in accordance with articles of government made in the case of a county school by an order of the local education authority and approved by the Minister, and in the case of a voluntary school by an order of the Minister; and such articles shall in particular determine the functions to be exercised in relation to the school by the local education authority, the body of governors, and the head teacher respectively.

(4) Where it appears to the Minister that any provision included or proposed to be included in the instrument of management, rules of management, instrument of government, or articles of government, for a county school or a voluntary school is in any respect inconsistent with the provisions of any trust deed relating to the school, and that it is expedient in the interests of the school that the provisions of the trust deed should be modified for the purpose of removing the inconsistency, he may by order make such, modifications in the provisions of the trust deed as appear to him to be just and expedient for that purpose.

(5) Before making any order under this section in respect of any school, the Minister shall afford to the local education authority and to any other persons appearing to him to be concerned with the management or government of the school an opportunity of making representations to him with respect thereto, and in making any such order the Minister shall have regard to all the circumstances of the school, and in particular to the question whether the school is, or is to be, a primary or secondary school, and, in the case of an existing school, shall have regard to the manner in which the school has been conducted theretofore.

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Q & A

F1 Is this guidance only about the history of education?

No, it also contains information about identifying charitable trust under the Elementary Education Act 1870 - see section B4.

F2 Are 19th century developments in education relevant to the casework I do?

Yes, cases involving educational institutions that were set up in the 19th century need to be identified properly as charities or state provision. It is important to understand how educational provision came about and the relevant Acts that impact on how we treat educational charities set up at that time. Section B3 onwards helps with this.