School measures - Expanding the scope of regulation

This measure makes changes to section 92 of the Education and Skills Act 2008 (“The 2008 Act”) and, as a result, changes the independent educational institutions regulated under Chapter 1 of Part 4 of the 2008 Act.

In practice, this proposal will change the definition of what constitutes an “independent educational institution” for regulatory purposes and as a result will bring more settings into scope of the regulatory regime found in the 2008 Act (which already applies to independent schools in England).

Section 92 of the 2008 Act defines what constitutes an independent educational institution, a type of institution that is regulated under Chapter 1 of Part 4 of that Act and as a result is required to register with the Secretary of State. The definition includes “independent schools”.

Independent schools are settings which satisfy the definition found in section 463 of the Education Act 1996 – any school at which full-time education is provided for (a) five or more pupils of compulsory school age, or (b) at least one pupil of that age for whom an EHC plan is maintained or who is looked after by a local authority (within the meaning of section 22 of the Children Act 1989 and which is not a school maintained by a local authority or a non-maintained special school).

This definition allows some settings to offer a very narrow curriculum or education on a full-time basis but avoid the requirement to register. This proposed change will amend s.92 so that it captures more settings which are the source of all or the majority of a child’s education.

All settings which are captured by the new definition will be regulated by Chapter 1 of Part 4 of the 2008 Act. This means that they will be required to apply to register with the Secretary of State (if not already registered) and, once registered be subject to regular inspection against specified standards. The intent at this stage is that all inspections will be conducted against the Independent School Standards (“ISS”). This will ensure that settings which could be expected to provide all or a majority of a child’s education are held accountable in the same way, ensuring equality of treatment and opportunity for more children regardless of the type of educational setting they attend.

Proprietors of settings who do not wish to register and be inspected against the ISS will be required to either change their provision and operate part-time (and so allow the children to receive a suitable full-time education elsewhere) or cease operating. Those proprietors who continue to operate an independent educational institution, without registering, will be committing a criminal offence.

The above analysis relates to Children’s Wellbeing and Schools Bill which has not yet become law and may be subject to change as it passes through Parliament. We will be posting updates to this page if there are any key developments but the above may not reflect the latest changes to the legislation.  Please contact our School Support (schoolsupport@wslaw.co.uk)  or Schools HR (schoolshr@wslaw.co.uk) teams if you require an update on the latest status of the Bill.