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Contents 

1. Considering Whether a Lease or a Hiring Agreement is Required
2. Arrangements
3. Renewal of Leases
4. Guidance on the Use of Hiring Agreements

1. Considering Whether a Lease or a Hiring Agreement is Required

It is accepted that Foundation, Church or Voluntary Aided schools are not in LCC ownership; however, the following guidance is recommended to apply to all schools.

One-off hiring agreements do not require a lease, but do need a hiring agreement.

Example Situation	Recommendation
A user - for example a Mother and Toddler group will have sole use of an area during term time, clears away their equipment after every use and stores it on the school site.	Lease. The lease would also relate to any storage area.
A user - for example a Mother and Toddler group will have sole use of an area during term time, clears away their equipment after every use and stores away from the school site.	Lease.
A user - for example an after school club, will have  exclusive use of an area, Monday to Friday term time only and clears away their equipment after every use and stores it on the school site.	Lease. The lease would also relate to any storage area.
A user - for example a holiday club, will have  exclusive use of an area, during the Summer/Easter and Christmas holidays and clears away their equipment after every use and stores it on the school site	If the storage is on the school site, then a lease would be required.  If storage is away from the school site, a licence may suffice - contact LCC for specific advice.
A user - for example a holiday club, will have  exclusive use of an area, during the Summer/Easter and Christmas holidays and clears away their equipment after every use and stores no equipment on the school site.	If there is no long-term occupation (even of resources) then a licence should suffice. If in doubt, contact LCC for specific advice.
A user - for example a Keep Fit Club will have exclusive use of an area every Monday evening, term times and holidays and stores no equipment on the school site.	Licence.

Leases Background

It is essential that, where required, leases to enable occupation of Lincolnshire County Council staff or third party organisations are in place BEFORE occupation is permitted. This guidance provides a summary of actions required by Children Service Team Managers, Development Officers and others to ensure occupation arrangements comply with all legal requirements. Children's Centres are provided on a mixture of sites. They can be:

• On a community school site
• On the site of a third party including Church when Controlled or Aided schools, or governing body when Foundation schools
• On the site of a third party not a school, e.g. district council / health

When on the site of a third party, there will need to be a formal lease to LCC which gives LCC entitlement to occupation and possession of the sites sufficient for the duration of the facility and the duration of the funding clawback provisions, etc.

Community Schools are under the control of the Local Authority with day-to-day matters delegated to the Governors. LCC would seek to gain co-operation and support from the Governing Body when placing a Children's Centre on the site of a Community School. Although not a requirement and not legally binding, it is considered good practice for a letter of understanding to be sent and signed by the Governing Body. This would provide evidence of discussions and intension by all involved prior to the Children's Centre being added at the school site.

It must be made clear that this is for the duration of the facility and the duration of the funding clawback provisions, etc.

There are two types of leases: those which are contracted out of security of tenure rights and those that are not. In either case, the lease will usually be for a specified term of years with an identifiable expiry date.

There are also periodic tenancies, which are leases which do not have a specific expiry date but run until notice is served. Periodic tenancies are not contracted out.

1. Non-contracted-out leases
   
   If the lease is not contracted out of security of tenure, then Landlord & Tenant legislation provides for either the landlord or the tenant to serve notice to bring the lease to an end upon the identifiable expiry date - strict rules apply to the service of notice and the procedure thereafter. If neither party serves notice, the lease continues to run beyond its identifiable expiry date, creating a periodic tenancy which continues until notice is served.
   
   The landlord's notice can either offer the tenant a new lease or require the tenant to vacate the premises -strict rules apply to the landlord's ability to enforce vacation.
   
   The tenant can serve notice to request a new lease or to bring the lease to an end - again, there are strict rules to follow.
   
   Terms for the new lease are to be agreed between the parties or if negotiation fails the matter must be referred to Court for resolution. There are strict timescales involved
2. Contracted out leases
   
   The lease expires on the expiry date and the tenant does not have a right to a new lease. The tenant is required to vacate the premises by the due date. A new lease can be negotiated

2. Arrangements 

Community Schools

When the sites are on LCC owned Community School sites, LCC has ownership. However, the requirements of S77 need to be taken into account when existing space will have a change of use.  

These are detailed below:

The site area will be likely to come within the statutory definition of "playing field" according to S77 of the School Standards and Framework Act 1998 (SSFA). That being so, if either a disposal (e.g. lease) or a change of use are desired, the requirements of S77 needs to be satisfied.

• A local authority may build educational and recreational facilities on school playing field land without requiring any S77 consent (provided there is still sufficient playing field remaining)
• There are General Disposal Consents, which save the necessity of a specific application to the Secretary of State. For a child care facility, there is a category of general disposal consent provided the following conditions are met:

A general consent, therefore, has been given where:

• There is land that is clearly surplus to:
  • The statutory team game playing field requirement, as set out in The Education (School Premises) Regulations 1999
  • The individual areas recommended in Building Bulletins 98 & 99 for pitches, games courts, hard and soft play (informal and social) and habitat
  • The disposal, or change of use, results in the provision of facilities for childcare, lifelong learning, healthcare and social services, play, services for children and young people, services for the community, and cultural and sporting activities, as part of the extended school, and
  • The proposal has the support of the school on which the new facilities are to be provided

Provided LCC are satisfied that the conditions are met for each of the Community School sites, LCC can decide that the General Disposal Consent is applicable (as "relevant Body"). However, specific information has to be provided to the DCSF on each occasion of doing so as follows:

Information required (extract from DCSF guidance).

The effect of a general consent is that, where the circumstances described apply, and where any conditions are met, the specific prior consent of the Secretary of State will not be required under section 77. The relevant body is to decide whether the disposal, or change of use, meets the circumstances and criteria set out in the Consent order and provide the Department with the following details:

1. Details of the location and area (in square metres) of the playing fields to be disposed of or to have their use changed; and
2. The area (in square metres) of the remaining team game playing fields; and
3. Details of the total site area of the school (in square metres); and
4. Details of the number of pupils on the school's role aged under 8 years, 8 to 10 years and 11 years and older; and
5. The date (or the proposed date) of the disposal or the change of use; and
6. An explanation as to why the body thinks that the disposal, or change of use, is covered by a general consent; and
7. A plan clearly showing the area in question in relation to the whole of the school site; and
8. Where the disposal or change of use is at an operating school, the views of the headteacher and governing body

Once the above details have been confirmed and actions taken accordingly (see below), LCC can make arrangements for refurbishment / development. LCC does not need a formal lease for LCC staff occupation where LCC is the owner. However, to avoid confusion, it is essential that the governance arrangements for the children centre is confirmed with the Governing Body in writing which makes clear that it is LCC, NOT the Governing Body who are accountable for the Children's Centre space and activities. The governance arrangements make clear that LCC have full jurisdiction of the children's centre element of the site sufficient for the duration of the facility and the duration of the funding clawback provisions, etc.

Accordingly, legal services will need to be supplied with all the above details and plans for each community school site it is intended to change use at by developing children's centre provision.

Where LCC intends to enable occupation of a third party (e.g., child care provider), LCC must ensure that there is a lease in place between LCC and the third party. There must not be any third party occupations without leases being in place. This enables LCC to regulate the occupations. A contracted out lease should be requested. 

In exceptional circumstances (e.g., child care provider goes out of business and an alternative provider has agreed to take business on), interim arrangements can be agreed, but these must be agreed by Head of Service and LCC Legal Services.

Action:

Children's Services Team Mangers / Development Officers must ensure the legal services; Mouchel valuation team and Capital Development Officers are informed and involved in all children centre occupations. Key contacts in legal services, Mouchel valuation team and Capital Development Officers must be referred the case at the earliest opportunity. The Development Officer's role is to co-ordinate all activities communicate with the school and ensure governance arrangements are agreed and signed.

Legal Services will complete full lease. Average timescale is two months from receipt of the Heads of Terms, subject to agreement to conditions on both sides. 

Valuation team will identify market value of the site and will agree Heads of Terms - valuation team will also formally instruct legal. Valuation team is responsible for renewals. In all cases, the County Council must consider its requirements in good time, sufficient to serve notice as necessary and negotiate terms. The minimum notice period is 6 months, but in certain cases can be twelve months or more

Capital Development Officers working with Development Officers / Children's Services Team Managers will agree refurbishment / development plans and, where required, will co-ordinate the General Disposal consent.

3. Renewal of Leases 

The Property Records section in Mouchel keeps records of leases granted by and taken by the County Council, and will be able to identify expiry dates of leases.

This information is held on a database Technology Forge (TF). The database belongs to LCC and is managed by Mouchel. This system is fairly new and has replaced Mentor. TF has a new trigger system that produces reports. The system is entirely dependent on human data entry of lease information to enable it to trigger.

Leaseholders should be notified 6 months prior to the end of the lease that it is due for renewal.

It is not necessary to notify a leaseholder that his lease will shortly be coming to an end as the lease provides this information. However, LCC's valuation advisers must notify Legal Services at least 12 months before a non-contracted out lease is due to expire in order that the appropriate notice can be served on the tenant. Where the lease is contracted out and the decision is to grant a new lease, then Legal Services should be given instructions sufficiently in advance to ensure the new lease is in place when the existing lease expires.

It is proposed that locality teams have a role to play in lease renewal to ensure that professionals have an awareness of when leases are due to end as this may support decision-making for continuation and/or review of services. CSTMs will need to make the decisions about who is best in their teams to do this.

Access to Technology Forge will be made available to locality teams by Mouchel, who have agreed to brief teams on how to seek the information.

Rita Stones and Simon Hardy are the key contacts for implementation.

4. Guidance on the Use of Hiring Agreements

This guidance is intended to ensure that schools across Lincolnshire are able to allow services to run from school sites in line with the vision of extended opportunities. A school must be able to fully assess the implications of third party use of school accommodation before entering into formal agreements. In some cases, this agreement will need to be a lease drawn up by Legal Services at Lincolnshire County Council; in other instances, a formal hiring agreement (which in the past may have been referred to as a 'lettings agreement') will suffice and it is also possible to utilise a licence under certain circumstances. A hiring agreement is a standard form and the administrative work associated with its completion is expected to be undertaken by schools.

This guidance will support schools to make a decision on the appropriate type of agreement and also, on other issues such as charges, insurances and the appropriateness of outside use of school premises.

Through Extended Services, many schools are offering local communities increased access to school facilities. In some cases, where service providers are community groups or voluntary organisations, schools will consider offering accommodation at cost recovery rate and this is very much in line with Extended Opportunities.

a.	Charging Policy The scale of hiring charges, which is sent out to schools every year is a guideline figure. You may charge over and above the stated figures but not below. Schools are not allowed to subsidise outside hiring agreements. It is recommended that, if the caretaker was required to be on site throughout a hiring (in attendance), you include a reasonable additional amount to the figures supplied by County. Hiring agreements that may require this include discos, dances, social events, including weddings and political meetings. It is recommended, due to security and health and safety reasons, that a caretaker should be in attendance for discos, dances, social events including weddings and political meetings. A caretaker would only be required to be in attendance for any other hiring agreements at the discretion of the school. It would be recommended to seek advice on hiring charges when a caretaker is required to be in attendance, as the figures shown in the supplied scale of hiring charges table only recovers the cost for a basic minimum caretaker hiring fee. Please also note that where discos, concerts, etc. are arranged for the general public and there is a charge for entrance, there is a need to ensure that there are sufficient stewards provided by the hirer. The ratio is 50 persons to 1 steward and further clarification of what constitutes a steward can be found on the Security Industry Authority website. Information within the scales of hiring charges and caretaker hiring fees could also be used as a basis for some of your charges/costs on. Where a group has charitable status, the school can apply to Lincolnshire County Council to waive the usual market place rent and allow the user to utilise school buildings on the basis of cost plus. The following costs should always be taken into consideration: Any fixed elements - such as caretaker costs Variable elements - other costs and 'profit element' For advice, please contact 0845 1300834 Where a group without charitable status has a lease agreement for the use of a building, then a 'market rent' will be assessed by Mouchel Property Services based on the area of accommodation used or size of the premises.
b.	Suitability of Accommodation The Governing Body of the school should consider the suitability of the school for community use including the following considerations: Is the accommodation suitable for community use / after-school activities? Is the space available without users having access to areas such as classrooms and corridors or will the security of the remaining accommodation be compromised? Has consultation with the community highlighted this activity as one with the support of parents and carers? Is the space sufficient for the activity? Is the space adequately heated, lit and resourced? Is there adequate and secure access to toilets, changing rooms and refreshment facilities, (bear in mind that staff may keep personal items here and you should consider whether it is appropriate to allow this access)? Kitchens should be charged for separately as the charging scales relate to general use of classrooms, halls, etc. The school governors should be confident on the following issues: Are entrance steps, ramps, paths, exits etc. kept clear of obstructions? Is there protection to ensure that users (especially children) do not gain access to potentially dangerous areas? Has the school drawn up an Accessibility Plan to meet the requirements of the Disability Discrimination Act 1995? Are there any poorly lit areas in the accommodation to be used that could lead to collisions, trips or falls? Is the external lighting sufficient to allow safe access and egress or will additional lighting be needed if areas are used outside daylight hours?  Be aware, you may need to provide emergency lighting as it is a legal requirement when the premises are used out of normal school hours.
c.	Out of Hours use and Bookings policy Have the governors considered creating a bookings policy? You may want to consider specifically Health and Safety, security, lack of reasonable supervision, potential damage to property and non-payment of hiring charges or to add further exclusions to reflect local circumstances
d.	Use of Equipment It is a decision for the school which equipment is available for hire. Where the school decides to allow users to hire school equipment, the following should be taken into consideration: Where a hirer uses school equipment, an additional charge to cover wear, tear and running costs of the equipment should be made Use of school equipment should be made available under the tutelage of an experienced school technician/technical advisor for an additional charge. This is so that there is proper and safe use of the equipment, especially as it becomes more advanced and more complicated to use. Failure to follow this recommendation could lead to high cost to repair or replace equipment, which has been damaged by improper use by inexperienced, untrained persons. At the same time, this would also take away the availability and usage of the equipment for educational purposes, so where a user utilises their own equipment there should be written confirmation that the necessary checks have been carried out before being using on school premises: Does the user know which school equipment can be used by them? Using school equipment can help to ensure that equipment is compliant with safety regulations and requirement Schools should ensure that users are aware that all equipment should be properly used in accordance with manufacturers instructions Premises and equipment will be inspected after use by external groups to check for damage and safety Where any equipment is used that does not belong to the school, users should undertake to ensure that equipment is: Used appropriately Compatible with any school equipment being used Is maintained properly and undergoes appropriate maintenance checks as required PAT tested in line with Lincolnshire County Council policy Used in accordance with manufacturers instructions
e.	Repairs and Maintenance  If the school is being used during the evening, weekend or holiday periods, consideration should be given to constraints on when maintenance can be carried out, and may also require flexibility in the planning of routine repairs and larger maintenance projects. For advice, please contact the Capital Development Adviser for the school. Additionally, consideration should be given to the constraints of clearing and periodic cleaning of floors.
f.	Insurance The hirer and not the school has the responsibility of ensuring that they are covered for the purpose of hiring agreements. Opening up school premises after normal hours and for wider community use does not generally significantly affect the cost of property insurance. However, schools are advised to consult the Local Authority, or their individual insurance company, to discuss the activities and service they plan to offer. The insurance contact at Lincolnshire County Council is on 01522 553637. Organisations, groups and providers that are not part of the school may be liable for any claims arising from their own activities, so schools should ensure that each group has its own public liability insurance. It is expected that any group providing nursery/childcare type provision should hold at least £10m Public Liability insurance. Groups providing after school clubs, such as football training, computer lessons, etc., ideally should have £10m Public Liability insurance. However, a lower level of indemnity may be agreed in certain circumstances. Requests for reducing levels of indemnity should be referred to 01522 553637. Groups and providers with national affiliations may be covered by the organisation's overall insurance policy and, if so, would not need to take out individual insurance. The school governing body must consider whether there is adequate and appropriate insurance in place for all activities and services provided.
g.	Payment Terms In the majority of cases, it would be expected that payment for hiring agreements would be paid for up front. However, in the case of block bookings (10 or more sessions), you may just request part payment up front to cover the first few hiring agreements and request the outstanding amount during their term of usage and, at the very latest, prior to their last confirmed date.
h.	Security One of the main reasons for having a caretaker on site during some hiring of the building agreements involves the issue of security of the buildings. It is possible that some hiring agreements may cause you some concern over security and these too should also require the caretaker to be in attendance. Groups/associations (e.g., youth groups, adult education, parish councils, WI, football teams/sports clubs etc.), who hire your premises, should be open to their members only and therefore may not require the caretaker to be in attendance. The caretaker is in attendance for the security of the building and its contents and to act as a liaison for police, fire and rescue. He is not to put himself at risk or to act as a steward - see "charging policy" for more information on the requirement of stewards.
i.	Licences - Entertainment, Alcohol, etc. You will need to check with the District Council with regard to licences. It is likely that you may need an Entertainments Licence or Performing Arts Certificate to hold discos, etc. Licence for alcohol is only required if being sold on the premises. Hiring agreements such as a cheese and wine tasting, where the wine is consumed but not sold, should not require a licence. District Councils should be able to clarify licence requirements.
j.	Elections  The school can only apply a cost recovery charge to District Councils for all Local, Parliamentary and European Elections. By law, these hiring agreements have to be approved. The charges for these hiring agreements should cover the cost of room hire, payment of the caretaker, hiring fees, and can also include an overtime payment to the caretaker if hiring commences before his/her normal start time, and a figure to cover the caretaker's pay for a day should the school be subject to closure.
k.	Sports  If, in the rare instance that a potential hirer runs a class for a skilled combat sport (i.e., judo, karate, boxing, etc.), the hirer must be a qualified instructor and must also be able to provide evidence of his/her qualification with the relevant certification from their respective National Association before the hiring agreement can be approved. Lincolnshire Sports Partnership should be contacted to support the school to ensure that only qualified instructors are allowed to utilise school buildings and sports facilities. Provision for First Aid in the event of an accident should be fully considered.  If you have any queries, please seek advice from the relevant contact at Lincolnshire County Council.
l.	Other specialist hiring agreements  The school should ensure that the cost of hiring of specialist equipment, such as: stage lighting, sound equipment, audio/visual equipment, kitchens, computer suites and other forms of specialist equipment or accommodation, is recovered from the hirer.

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