School measures - Independent education setting and safeguarding

Ofsted powers of entry and investigations Chapter 1 of Part 4 of the Education and Skills Act 2008 (“the 2008 Act”) already contains several criminal offences that may be committed by those responsible for independent schools. The most common offence in this area is the offence under section 96 of the 2008 Act – conducting an unregistered independent school. His Majesty’s Chief Inspector (HMCI) can already inspect settings suspected of committing this offence. These measures increase HMCI’s ability to carry out these inspections and identify criminal behaviour which may put children at risk.

There are existing powers available to Ofsted in section 97 of the 2008 Act. It is argued that the government’s experience is that these powers are too limited to allow effective investigations of some settings which are operating unlawfully; it is too easy for those committing a criminal offence to prevent the discovery of evidence of this and so avoid prosecution, and therefore a stronger investigation regime is needed to allow inspections of suspected unregistered independent schools or breaches of relevant restrictions in registered independent schools to proceed and find evidence of wrong-doing, and for those responsible to be identified and prosecuted where this is appropriate.

The proposed legislation will permit HMCI to enter and investigate premises in certain specified situations. These powers will only apply when HMCI has reasonable cause to believe that one (or more) of the relevant offences specified in the legislation are being (or have been) committed, or evidence of this may be found. In these cases, it is expected that HMCI will seek agreement to enter and investigate a premises but also allows HMCI to apply for a warrant to facilitate entry into settings and undertake an investigation. HMCI will also have the ability to “search” rather than inspect, and require people present during an investigation to provide specified information or assistance.

The relevant offences are specified in legislation. These are: –

• Conducting an unregistered independent educational institution (an offence under section 96 of the Education and Skills Act 2008).
• Failure to comply with a relevant restriction imposed by (i) the Secretary of State, (ii) a justice of the peace or a Tribunal (offences under section118, section121 and section127 of the Education and Skills Act 2008.
• Providing education at an institution when registration is suspended (a new offence created by the Bill).
• Providing boarding accommodation in breach of a stop boarding requirement (a new offence created by the Bill).
• Obstruction or failure to comply with an investigation (a new offence created by the Bill).
• Breaching a prevention order imposed on an individual who has previously been found guilty of conducting an unregistered independent school (a new offence created by the Bill).

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.