Update on Government Plans to Regulate "Intensive" Education Settings
PAGE UPDATED DECEMBER 2ND 2018: CONSULTATION ON DRAFT VOLUNTARY SAFEGUARDING CODE OF PRACTICE FOR OUT OF SCHOOL SETTINGS, CLOSES FEBRUARY 24TH 2019.
APRIL 2018: Government response to out of school settings call for evidence, April 10th, 2018.
The call for evidence received 3,082 responses via its online form, of which 54.7% were from faith groups. The Department also received over 15,000 representations via other methods including emails, letters and petitions.
In response to the question "Do you agree that intensive education is where a child attends a setting for more than between 6 to 8 hours per week?" 73% of respondents said no. To the question "Do you agree that settings meeting the proposed threshold should be required to register with their local authority?" 73.4% said no and many said that registration of out-of-school settings with the local authority would be equivalent to state regulation of religion. In response to the question "Do you agree that Ofsted should be able to investigate concerns that arise in out-of-school settings that meet the proposed threshold for registration?" 74.6% said no. To the question "Do you agree that the prohibited activities should focus on undesirable teaching, including teaching which undermines or is incompatible with fundamental British values, or which promotes extremist views, as set out in paragraph 3.19" 64.5% said no.
The government says "we have decided not to pursue the model proposed in our call for evidence [ie light touch registration 6+ hours a week settings] but instead intend to develop further the evidence base for a national approach, including future legislation where gaps in existing powers are identified..."
The government says it wants to "share and spread best practice across the country on how existing legal powers (including, for example, health and safety, premises regulations, and general safeguarding provisions) can be best utilised alongside community engagement and outreach to intervene where there are concerns about the welfare of children." The government will "consult on a voluntary code of practice, later this year, to set out clear standards for providers, explaining what they need to do in order to run a safe setting. This code of practice would cover what providers should be doing to meet their existing legal obligations that would be applicable generally, as well as setting out best practice on issues such as child welfare, health and safety, governance, suitability of staff, teaching and financial management."
Schools Week described this as "The government has abandoned an old proposal to force out-of-school settings to register following a fierce backlash from faith leaders."
MARCH 2018 DfE SAYS "We will consult later this year on a voluntary code of practice for out-of-school setting".
The Government started talking about this in mid-2015, and put out a public call for views 2015/16 saying that where a child received 6 hours instruction or training a week in a particular setting that this should count as "intensive education". Many MPs from a faith background are against this particularly Christian Conservative MPs and the influential DUP now in a Confidence and Supply Agreement with the Conservatives, objecting to Sunday School Snoops".
SEPTEMBER 2017 Written Answer from the Minister Lord Nash, September 18th 2017: "The Government published a Counter Extremism Strategy in 2015, which set out plans to introduce a new system of oversight for out-of-school education settings – such as supplementary schools, tuition centres and madrassahs. To learn more about these settings, and the potential scope and impact of any regulatory system, the department issued a call for evidence. We will make an announcement about the outcome in due course."
See also Amanda Spielman Ofsted speech Birmingham September 2017 which mentions mentions illegal unregistered schools and working successfully in partnership with Birmingham LA to register or close them down.
Government seeking national Counter-Extremism Commissioner September 2017.
MAY 2017 Written Statement from the Minister Lord Nash, March 2nd 2017: "the Government remains committed to regulating out-of-school education settings. Between November 2015 and January 2016 we conducted a call for evidence to gather information on the number of settings, hours of operation, number of children who attend and the frequency of attendance along with any safeguarding procedures and concerns in these settings. We will respond to the call for evidence and set out next steps in due course."
OCTOBER 2016 Joint Committee Human Rights, Government Response "Following our call for evidence, we have been considering the range of views expressed in response and how best to take the policy forward. We will set out next steps in due course, and will continue to work closely with faith communities and other interested parties like the police, educational establishments and local authorities, to ensure that the proposed system of regulation is targeted, proportionate and focuses firmly on those settings which are failing to safeguard and promote children’s wellbeing."
MAY 2016 A briefing note on the proposed Counter Extremism and Safeguarding Bill in the Queen's Speech, May 2016 indicated that "legislation will be introduced to prevent radicalisation, tackle extremism in all its forms, and promote community integration” and that measures would be introduced for the purpose of "safeguarding children from extremist adults, by taking powers to intervene in intensive unregulated education settings which teach hate and drive communities apart"
In December 2015 it was mistakenly reported that the Secretary of State for Education Nicky Morgan was going to clamp down on home education but this was corrected in February 2016 as referring to tuition centres. More. Scroll down or click here for more on home education and tracking children coming out of school.
What's the thing about children 'intensive education' or children being taught for more than six hours a week?
At the end of 2015 the Government asked for people's thoughts on out of school settings.
What exactly did the Government propose?
The Department for Education says that where an individual child receives 6 hours instruction or training a week in a particular setting that this should count as "intensive education" and the setting must be registered with the local authority.
Does that mean 6 hours every week?
The Government hasn't said whether it needs to be every single week, but it has said "Given the focus on ‘intensive’ education any settings providing ad hoc classes, or regular classes below a specified time threshold, would not be captured by this proposal."
Will it apply to group teaching in someone's home?
The fact that a group is being taught on domestic premises is not mentioned currently as a reason for exemption, although other exemptions such as the 6-hour threshold or the fact that the group is ad hoc might come into play. Also it's not immediately obvious how such groups would come to light.
The Department for Education says "This proposal is not about regulating the education that parents provide their children in their homes."
Does it make a difference if parents stay with their children?
This isn't clearcut. Parents could be elsewhere in the building but still not necessarily know what the children were being taught, and perhaps not all parents would stay for every session. It might be something to query in the call for views, particularly in the context of home education groups.
Is this England only?
When will all this happen?
It is early days yet. There still has to be a consultation, because the current survey is only a "call for views." If the Government decided to go ahead, it would take over a year to make the necessary changes to the law. (See the Update note about the Counter Extremism and Safeguarding Bill, May 2016)
Will it be the same as registering an independent schools?
NO. Illegal unregistered full-time schools have been in the news a lot recently but that is when the education is for 18 hours or more a week. Read more about unregistered schools here.
Isn't this area regulated already?
No. At the moment, if someone is providing education rather than childcare, there is no requirement to register until the education is full-time. Even where childcare IS being provided, there are various situations where childcare registration is not compulsory, for example if you only cater for children age 8 or over, or "if you are providing a home-education arrangement where a child of school age receives full-time education outside school, and is partly or completely taught by a person other than a parent of the child. Care provided to the child is incidental to (not the main focus of) the education offered." OR if you are providing homework support, sports coaching, arts, religious, cultural or language study.
NB some providers opt to go on a voluntary childcare register. Ofsted says "if you join the [childcare] register voluntarily you’ll get a certificate, and the parents of the children you care for may be able to get other types of support, eg help with childcare costs. You’ll need to pay the registration fee and annual fee, and you can be inspected." (In other words, parents do appear able to claim Childcare Vouchers or Childcare Tax Credits; google "Kip Mcgrath Childcare Tax Credits Ofsted" for examples)
Didn't they bring in laws for part-time schools a while back though?
No. If you look at Part 4 of the The Education and Skills Act 2008 there do appear to be rules for regulating part-time education for 12.5 hours or 15 hours, and essentially treating part-time schools in much the same way as full-time schools.
However, alhough this was set out in primary legislation and forms part of the final Act it still has "prospective" status and successive Governments have opted not to bring these provisions into force. (See Commencement Order parts of sections 94-97 + Ofsted Section 97 Handbook for full-time independent schools)
Is it mainly about religious teaching?
It began with religious extremism, but has now been expanded to other extra-curricular activities such as music, sport or art, as well as academic tuition in curriculum subjects or language teaching. The call for views says: "Whilst the announcements were made in the context of countering extremism, we are concerned more broadly about the wider welfare of children who attend these settings and ensuring a proportionate system of oversight is put in place to keep children safe from harm."
Is it mainly about Muslim extremism?
The Government does keep returning to the issue of Islamist extremism. The Prime Minister made a speech about extremism in July 2015 where he talked about children's minds being filled with poison. In October he expanded on this, saying "in our country, there are some children who spend several hours each day at a madrassa [...] in some madrassas, we've got children being taught that they shouldn't mix with people of other religions; being beaten; swallowing conspiracy theories about Jewish people. These children should be having their minds opened, their horizons broadened, not having their heads filled with poison and their hearts filled with hate. So I can announce this today: if an institution is teaching children intensively, then whatever its religion, we will, like any other school, make it register so it can be inspected. And be in no doubt: if you are teaching intolerance, we will shut you down."
The Home Office published a Counter Extremism Strategy in October 2015, which set out four key areas: Countering extremist ideology; Building a partnership with all those opposed to extremism; Disrupting extremists; and Building more cohesive communities. This document said "there is little regulation or oversight of supplementary schools and tuition centres and limited information on the practices within them. Reports indicate that in some settings parents do not know what their children are being taught or feel unable to challenge the teaching [my emphasis]; and pupils may be at risk of being presented with, and believing, twisted interpretations of their religion. These issues heighten the potential risks for such settings to be exploited by extremists."
Chapter 3 of the Counter Extremism Strategy is about "countering extremist ideology" and focuses on Muslims and Islamist extremism while also saying "extremism is not just Islamist."
So all settings will have to be registered and regulated?
There are mixed messages about what registration actually means and whether settings will be regulated. The Government says: "the registration process itself is anticipated to be light-touch and straightforward, with no minimum pre-conditions, but there would be an expectation that new providers register before operating (and existing settings would be given a reasonable period within which to register)." The call for views says that all the setting will have to do is provide the local authority with the proprietor's details, location(s), education offer and numbers of children, while the Counter Extremism Strategy said that the "Department for Education will introduce a new system to enable intervention in unregulated education settings.". See the answer from DfE January 5th here
Surely someone from the council will go round to check though?
We aren't told whether the local authority will take an active part in verifying the registration details, for example visiting premises talking to proprietors, keeping an eye out for particular names or types of settings, or whether the council will simply log the information received.
It might start as a basic list but surely it wouldn't end there?
It is difficult to see how the Government's stated aims could be achieved simply by the council keeping a list. DfE says that once registered, a setting "would be eligible for investigation, and if appropriate, intervention where concerns were reported." Local authorities won't have power of inspection; that will be up to Ofsted.
Wouldn't parents think that a setting on the list had been vetted by the council?
It is a possibility, although we can't say how likely it would be. Perhaps the council might publish a disclaimer.
Could the council be liable if they missed anything?
All these details still have to be worked out. Parents might blame the council even if it fell outside strict legal liability but the council might say it was ultimately up to the parent to decide whether a setting was safe. There is a blog post here about vicarious liability and negligence and when a local authority can be sued, with reference to the Woodland case and a recent case heard by the Appeal Court of abuse by foster parents in Nottinghamshire. There is also the Phelps case, where the claimant sought damages for defective advice from an educational psychologist employed by the council.
Will Ofsted inspect everyone?
The Government did seeem to imply to Ofsted that the main purpose of registration was inspection, saying "all settings that are providing intensive education to be registered so that they can be inspected.". But in the call for views, the Government maintains that Ofsted will NOT routinely inspect all providers, or look at the suitability of education or judge the quality of teaching. Ofsted will be reactive, investigating when concerns are reported
What sort of concerns will Ofsted investigate?
The Department for Education (DfE) says Ofsted will investigate prohibited activities. The examples given are failing to keep basic records and emergency contact details for children in attendance, appointing unsuitable staff, operating in unsafe premises, undesirable teaching ("including teaching which undermines or is incompatible with fundamental British values, or which promotes extremist views") and the use of corporal punishment.
Will people be able to blow the whistle to Ofsted?
No details have been provided at this stage about whether concerns would be reported to the local council first, or directly to Ofsted, or even to a Government hotline. It could end up being a tremendous amount of work for Ofsted, unless it came under the council's Children Missing Education duties which are of course inspected by Ofsted. (It is relevant in this context that the Government plans to amend the statutory guidance on Children Missing Education, in response to calls from Ofsted.)
What will happen if people break the rules on out of school settings?
DfE says that sanctions would include powers to stop people from working with children in, or managing, an out-of school setting; and also powers to require premises that pose the greatest safeguarding risk to children to cease to be used for specified purposes. To reiterate, this is a different type of registration from full-time independent schools where Ofsted wants to prosecute unregistered schools.
What was the consultation?
It wasn't really a consultation, more a scoping study or "call for evidence/call for views". Apparently there were 3000+ responses. The web page is here. The Government is trying to get an idea of how many settings there might be, where they are, how many children attend; how many staff there are; what kind of education or instruction they provide; and whether there are concerns about a particular setting operating at the moment in relation to safeguarding, extremism, physical punishment or suitability of premises. It also asks whether the proposals discriminate against a particular group; whether it makes a difference how many days a week a child attends a particular setting, or the number of weeks a year; and whether any settings should be exempt.
Who did the Government want to hear from?
DfE said it wanted to hear from local authorities, people who set up and work or volunteer in out-of-school settings, parents, children and young people using these settings, faith groups, community groups, accreditation or support organisations for out-of-school settings, inspectors, schools, colleges, and registered childcare providers
Will settings still have to register with the council even if they are already part of a voluntary scheme?
The Government doesn't say anything one way or the other about this. The call for views says "we are aware that many settings are part of a wider association or umbrella body which can provide basic safeguarding standards to which to adhere. Many settings will also subscribe to local or national voluntary accreditation schemes to provide parents with confidence in the provision. We are keen to understand more about what advice and assistance is available to settings to provide support where needed, and what additional support would be welcome."
What about voluntary accreditation schemes?
There are voluntary organisations which support supplementary schools but they have to offer their services for free or pass on the costs to supplementary schools, as reported by the National Resource Centre for Supplementary Education which says "practical support not sanctions ensure safe effective activities in out-of-school settings" (Link Link). The cost of DBS checks also has to be considered.
What Has It Got To Do With Home Education?
What has the part-time education consultation got to do with home education?
The Government is looking at regulating settings which provide more than 6 hours intensive education a week. The Department for Education says "This proposal is not about regulating the education that parents provide their children in their homes. The government continues to respect the rights of parents to home educate their children, whether at home or in a combination of other settings, provided a suitable full-time education is being arranged."
However, part of what the Government is asking about is those settings which "provide education, whether in a broad or narrow range of subjects often in support of home education."
But isn't the Government saying home educators might poison children's minds as well?
According to the Independent on Sunday, "a senior Government source" [unnamed] said "for every parent doing a brilliant job, there may be someone filling their child’s mind with poison. We just don’t know."
However, in February 2016 Nicky Morgan explained that the alleged "home education crackdown" article (Independent on Sunday, December 2015) in fact referred to tuition centres.
Isn't this all just part of the Government's plan to regulate home education?
I am aware this is what some people think but it isn't a view I share. Home education gets mixed up with other types of education out of school, some of which is currently unregulated, such as part time school, and some of which is covered by law but where until recently people have been allowed to break the law, such as illegal unregistered independent schools
We know that Sir Michael Wilshaw, current head of Ofsted, blames "home education freedoms" for the the fact that children can be taken out of school without proper checks. However, as of September 1st 2016 this has CHANGED since the Government has introduced new requirements for ALL schools to check the whereabouts of children coming out of school and to collect and record more detail about onward destinations, sharing this with the local authority on a regular basis.
Guidance on Children Missing Education has also been updated accordingly. It will be interesting to see if Sir Michael - soon to be replaced by Amanda Spielman - continues to criticise local councils and blame home education. He was unfortunately still repeating the same message in a recent interview with a London journalist, September 2016.
Sir Michael has also said that some of the children attending illegal unregistered full-time schools were listed as home educated. The Government now intends giving Ofsted new powers and funding to investigate and prosecute illegal unregistered schools. We don't know how this will work in practice.
February 2016 https://edyourself.wordpress.com/2016/02/13/nicky-morgan-says-clampdown-article-referred-to-tuition-centres/
December 2015 https://edyourself.wordpress.com/2015/12/22/crackdown-on-home-education/
January 2016 https://edyourself.wordpress.com/2016/01/05/clarification-from-dfe-on-inspection-out-of-school-setting/