Children’s Wellbeing and Schools Bill: How Will It Impact Independent Schools?

Proprietor checks

Independent schools will be aware that they must comply with the Independent School Standards (“ISS”). At present, ‘due diligence’ checks are carried out on prospective proprietors, primarily consisting of identity checks, DBS checks and Section 128 checks – checks which are relatively narrow and risk allowing unsuitable individuals to become a proprietor.

The government proposes, via the Bill, to require a proprietor, or those with certain significant roles in a proprietor body, to be “fit and proper”, in addition to the existing due diligence checks, before the individual, or Chair of a proprietor body, is approved to run an independent school. Furthermore,  the Bill proposes to require that proprietors must have regard to guidance, or a document published by the Secretary of State. This measure will also allow the First-tier Tribunal to make a finding as to whether persons are fit and proper.

Suspension of registration and boarding

Where a student “is suffering or is likely to suffer significant harm” the Secretary of State can currently apply for an emergency order which, amongst other options, de-registers a school. However, permanent closure can be an extreme step, even in an urgent situation, if the school has the ability to effect urgent improvement.

The Bill proposes to adapt this emergency power by allowing the Secretary of State to suspend the registration of an independent school on a temporary basis, for an initial period of up to 12 weeks,  where the ISS are not being met and one or more students will or may be at risk of harm. During the suspension the school is expected to make necessary improvements and is restricted from providing education or supervised activity. In addition, boarding facilities may be required to be closed during the period of suspension.

Appealing de-registration

In cases where the Secretary of State determines that an independent school’s very serious and/or very long running failures to meet the ISS justify de-registration, it is not uncommon for the school to appeal the decision. The Secretary of State will usually withdraw from defending the appeal if re-inspection finds significant progress. However, these improvements may be short-lived and made only to demonstrate sufficient improvements for the appeal hearing.

To tackle this, it is proposed by the Bill that the Tribunal should consider the likelihood of future compliance with the ISS, placing a burden of proof on the school to demonstrate that there is likely to be compliance with the ISS on an on-going basis.

Material changes

The Bill proposes to introduce new scenarios which will require a material change application. These include where a school becomes, or ceases to be, a “special institution”, and when a special institution wants to change the types of special educational needs it caters for.

In addition, a material change application is not currently required to change what buildings are occupied for student’s use. This means that there is no prior assurance that new buildings meet the ISS. It will therefore be necessary to follow the material change process where a school occupies a building for student use for a period of six months or more (or ceases to do so for more than six months). However, the application may be approved even if the school will not immediately meet all relevant ISS, but is likely to do so in a reasonable time.

Ofsted powers of entry and investigations

For those settings that are used by parents who home educate, there may be a risk that in fact an independent school is operating as an unregistered independent school. Ofsted can carry out no-notice inspections on settings suspected of this offence to gather evidence to determine whether a criminal offence is being, or has been, committed and whether regulatory action is justified. However, there are concerns that these powers are too limited and evidence can be easily hidden to avoid prosecution.

The Bill proposes to increase Ofsted’s ability during these inspections. For example,  Ofsted will be able to apply for a warrant to facilitate entry into settings, and act in a more thorough fashion, such as ‘searching’ rather than inspecting. Individuals present may also be required to provide specified information or assistance. In addition, those who are guilty of conducting an unregistered independent school will be prevented from again holding positions of responsibility over children’s educational wellbeing.

Ofsted and the Independent Schools Inspectorate

The Bill proposes to improve interaction between Ofsted and the Independent Schools Inspectorate (ISI). Ofsted’s obligation to report at least annually on the ISI will be replaced with an obligation to provide reports as and when the Secretary of State requires it to do so. In addition, it is clarified that Ofsted can share information directly with ISI to facilitate joint working.

Practical steps

The changes outlined above are subject to the Bill receiving Royal Assent. However, independent schools should ensure that they are familiar with the proposed changes and be ready for them.

Get in touch if you would like support to conduct a health-check of your school’s policies and procedures, or further information on the potential impact of the Bill on your school.