Home schooling: impact of the Children’s Wellbeing and Schools Bill

Changes to ‘independent educational institution’ definition

The Bill proposes to replace the current definition of an independent educational institution as set out in the Education and Skills Act 2008 (ESA). The new definition  includes independent schools but will now also include other institutions that provide full-time education for at least five children of compulsory school age, or at least one child of compulsory school age who is looked after by a local authority or has special educational needs.

The current definition as set out in the ESA expressly includes independent schools and other institutions providing “part-time” education for students. Currently, a setting can provide full-time education, restricting the ability for a child to receive education elsewhere, but they may teach a very narrow curriculum (for example, only arts and drama) to avoid regulation.

The Bill’s new definition is designed to ensure that any setting providing all or the majority of a child's education, regardless of curriculum breadth, must register with the Secretary of State, adhere to the Independent School Standards, and undergo regular inspection. Settings unwilling to do so will need to adjust to part-time operation, allowing the child to receive education elsewhere.

Currently, the Department for Education does not have a fixed definition of ‘full time’.  It will be important for settings to seek guidance and support where you are unsure as to whether you are offering full-time provision and to establish how you fit into the new framework.

Ofsted investigations into unregistered settings

Settings should also be conscious of changes to Ofsted’s investigatory powers. Ofsted can conduct no-notice inspections of settings suspected of being an unregistered independent school. The Bill will strengthen Ofsted’s existing powers of entry and investigation in this area.

Among other things, pursuant to the Bill Ofsted may apply for a warrant to facilitate entry into settings. Ofsted may inspect and search the premises, take copies of any document found, inspect any equipment found, take measurements of the premises or anything found, take photographs and make audio and video recordings.

In addition, the Bill introduces new preventative orders designed to stop those who have been found guilty of conducting an illegal unregistered independent school from again holding positions of responsibility over children’s educational wellbeing. These orders can impose positive or negative obligations on the recipient and a breach of these orders will be a criminal offence.

Elective home education

More broadly there are proposed changes to elective home education which will impact primarily parents and the local authority, however may have subsequent implications on settings.

If enacted in its current format, the Bill will require in certain circumstances parents to obtain local authority consent to withdraw their child from school to receive an education. This is applicable to children of compulsory school age registered at a school if the child is:

• a pupil at a special school

• subject to enquiries under the local authority’s duty to investigate in respect of the child

• on a child protection plan

Consent will be refused if the local authority considers that it would be in the child's best interests to receive education at school or considers that no suitable arrangements have been made for the education of the child.

The local authority will maintain a register of children not in school, and parents must provide accurate information for the register, including the names and addresses of any education provider.  Parents may therefore be required to provide details of settings, including the hours of teaching, for the register.

Next steps

Ensuring that your policies and procedures are up to date are one of the best ways to protect your setting. We would be pleased to review your policies, including your complaints policy and child protection and safeguarding policies. We would also be pleased to review your contracts with parents to ensure that they work for your setting.

If you are unclear as to whether your setting falls within the current, or the proposed updated definition of an independent educational institution, we can support you. The legal ramifications of running an unregistered school are significant, including potential criminal prosecution, so getting your provision right is paramount.

If you are facing investigation by Ofsted we are experienced in successfully challenging Ofsted’s finding that a setting is running as an unregistered school.