Table of Contents
- Numbers and Enforcement
- New Guidance Unregistered and Illegal Schools
- Ofsted Report Alternative Provision
- What Is An Illegal School
- Regulating and Prosecuting Illegal Schools
- How Can Schools Flout the Law?
- 12.5 or 15 Hours?
- Registration Requirements Independent Schools
- Fundamental British Values
- What Does Actively Promote Mean?
- Teaching Religious Law
- Faith and Religion Independent Schools
- State Funded Faith Schools
- Ofsted Inspecting Jewish Schools
- New Children Missing Education Guidance
- New Regulatory Framework
Numbers and Enforcement
Data published April 12th 2019: Ofsted has investigated 521 settings, and inspected 259 since January 2016.
"Ofsted estimates that as many as 6,000 children are being educated in the unregistered settings it has inspected to date. These children are potentially at risk because there is no formal external oversight of safeguarding, health and safety or the quality of education provided.
Almost a quarter (23%) of the settings investigated are in London, with the rest spread fairly evenly across the country. Alternative provision is the most common type of setting (28%). Around a quarter (26%) of the settings are general education providers, and a fifth (21%) are places of religious instruction.
In total, 71 settings have been issued with a warning notice by inspectors. Today’s data shows that 15 of those settings have since closed, while 39 have changed the way they operate in order to comply with the law, and 9 have registered as independent schools." REFERENCE
Reference to "Ofsted inspections" of illegal schools is quite confusing. It can refer EITHER to an investigation of how many hours a child is being taught, OR to pre-registration inspections where a school is – allegedly – in the process of registering even though it is already operating. It might even be used to refer to registered schools which repeatedly fail inspections where people believe they should be shut down.
Ofsted's Critique of Alternative Provision can be found here (Ofsted objects to the lack of regulation in this sector and argues that many alternative provision establishments either already meet the criteria for registration as an independent school or should be registered in some other way.)
https://schoolsweek.co.uk/dfe-wins-first-ever-prosecution-against-illegal-school-in-landmark-court-case/ October 24th 2018. Ofsted blog on the prosecution October 26th here, and Department for Education comment here
Ofsted Advice Letter Monitoring Independent Schools Inspectorate November 6th 2018: "Ofsted’s ability to monitor the work of the inspectorates is seriously hampered by the existing commissioning arrangements."
Education Committee questioned Amanda Spielman, March 7th 2018 (accountability hearings) discussion of illegal schools read transcript/watch session here
BBC investigation into suspected illegal schools February 2018. See DfE media blog comment on this https://dfemedia.blog.gov.uk/2018/02/26/dfe-response-bbc-report-on-unregistered-schools/
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.
What Is An Illegal School?
"Illegal schools" are schools which meet the criteria for registering as independent schools but where the proprietors have opted NOT to register. Newsnight claims that many illegal schools don't register because they fear being shut (ie they would draw attention to the fact that they are ALREADY breaking the law and they would fail the pre-registration test). If they weren't closed down they would have to make big changes as well as teaching a broader syllabus.
These schools are not necessarily hidden away, but there are many obstacles to proving that they are breaking the law and getting them closed down. See also blog on home education and illegal schools September 2016
Schools only have to register if they are full time and there is no legal definition of full time although the Government has given 18 hours a week as a guide. Much of the investigation of whether a school is full time (and therefore subject to registration and inspection) hinges on the timetable for an individual child, and not on how many hours the school is open.
Local councils have no power in law to inspect registers or check individual pupils’ timetables if the school won't co-operate. The only body which can do this is Ofsted under section 97 powers. This has not prevented Ofsted from blaming councils in the past for not doing enough.
Historically the Government was reluctant to prosecute or to shut schools down, preferring instead for schools to be supported through the registration process. Sir Michael Wilshaw, former head of Ofsted, disagreed vehemently with this and piled on the pressure until finally in December 2015 the Government gave Ofsted the go ahead to investigate and collect evidence against unregistered independent schools and to liaise with the Crown Prosecution Service.
Legislation does exist for regulating part-time schools as well (12.5 or 15 hours) but it has never been brought into force.
The Government also tried to bring in new laws to regulate part-time out of school settings but this met with fierce opposition from MPs because of objections to "Sunday School snoops." fuelled by Ofsted's critical inspection of Christian schools
Regulating and Prosecuting Illegal Schools
In December 2015 the Government gave Ofsted the go ahead to investigate and collect evidence against unregistered independent schools and to liaise with the Crown Prosecution Service and in January 2016 guidance was published on regulating independent schools. [REVISED APRIL 30TH 2019, SEE FOOT OF PAGE] and Prosecuting Unregistered_Independent_Schools via this page
Policy statement: prosecuting unregistered independent schools, Department for Education January 2016
"7. For any possible unregistered school, immediate steps will be taken to establish whether the institution is providing full-time education and is operating unlawfully as an independent school.
8. Ofsted may decide to make an unannounced visit to an institution on the basis of information they have received to establish whether the institution is operating as an independent school and the identity of the proprietor. The Department may write to an institution or may refer information direct to Ofsted to decide whether to make an unannounced visit.
9. If Ofsted consider in the course of such a visit that an institution is operating unlawfully and should cease to operate as a school, they will inform the proprietor that it is an offence to operate without registration and take any appropriate steps with the LA to ensure the premises are closed and the children provided for. They will inform the department the same day for follow-up action.
10. Where an institution is identified as operating unlawfully, the Department (Independent Education and Boarding Team) will consider taking the following steps:
• Confirm to the institution the legal requirement to register as an independent school, setting out the consequences of failing to do so. The institution may also have received the same information from Ofsted;
• Make clear to the institution that it must not operate as a school in advance of registration being granted and must cease to operate;
• Point the institution to the guidance on the DfE website on how registration applications can be made;
• Ask the institution to confirm by return that it has ceased to operate as a school and to confirm whether or not it intends to submit a registration application;
• If the institution continues or continued to operate as a school without registration, including during the registration process, the Secretary of State may exercise her power to pursue the prosecution of the person(s) who the Department considers is conducting/has conducted the unregistered independent school (section 96 ESA 2008).
11. The Secretary of State may take immediate steps to exercise her power to pursue a prosecution if it is considered appropriate to do so given the seriousness of particular circumstances."
The school was known to the council and to Ofsted which had been carrying out "pre-registration inspections". (British Humanist Association article) In April 2016 it emerged that the school might still be open. Meanwhile, Newnight claimed there were up to 20 illegal private Charedi Jewish schools in east London. (Watch Chris Cook Newsnight Film March 2016)
The first obstacle concerns the definition of an "independent school".
Part-time schools currently don't have a legal status, so the school is either full-time or not a school. However, "full-time education" is not defined for independent schools. Until January 2016 the advice from DfE said 18 or possibly 20 hours (which is why some of Ofsted's letters about independent schools refer to 20 hours) but this was firmed up to 18 hours in January. Full-time independent schools providing education to 5 or more children (or just 1 child with a statement or EHCP) are required to register and submit to regular inspections.
The second obstacle is that hours relate to the education being provided for a particular child, rather than the number of hours that the school is open
Hypothetically if a school takes half its pupils in the morning (eg 9-12) and the remaining half in the afternoon (eg 1-4), then the school is open "full-time" but no child is receiving more than 15 hours education and therefore something which to all intents and purposes looks like a school will not be legally classified as a school.
The third difficulty is that nobody from the council is currently allowed to inspect school registers or question the proprietor on school premises to check individual pupils' timetables.
The only body which has the power to do this is Ofsted and even for Ofsted this has only been possible since January 2015 when the relevant sections of the Education and Skills Act 2008 were brought into law. Ofsted refers to these as "section 97 powers." As set out in Ofsted's handbook for inspecting unregistered schools, updated September 2017, "on arrival at the premises concerned, the inspector(s) will attempt to enter and inspect the premises. The lead inspector will explain that s/he has reasonable cause to believe that an unregistered independent educational institution is being conducted at the premises. Section 97 of the Education and Skills Act 2008 provides a right of entry to all types of premises to carry out an inspection under section 97, including a private house. If the lead inspector concludes that the institution is operating as an unregistered independent school, the lead inspector will explain to whomever appears to be the most senior person present that it is a criminal offence to conduct an unregistered independent school. The lead inspector will provide the person who appears to be the most senior person present with a warning notice outlining the implications of continuing to operate an unregistered independent school. The warning notice states the HMI’s judgement based on the available evidence that an unregistered school is being conducted on the premises and should cease to operate illegally with immediate effect. The lead inspector will report the inspection findings to the DfE/Secretary of State. Ofsted will provide the relevant local authority with information regarding pupils who may be attending unregistered independent schools. Where Ofsted believes that a child may not be receiving a suitable education, it will also share information regarding that child with the relevant local authority."
The following sections of the Ofsted Handbook were changed in September 2017: Warning notice, Gathering of evidence, Retention of material, Reporting the inspection findings. Removal glossary and sections on case discussion and further investigations. Added sample search record (Annex C).
Some home educators may remember Government plans for the registration and inspection of "independent educational institutions" - ie part-time schools - and 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, although this was set out in primary legislation and forms part of the final Act it still only has "prospective" status and successive Governments have opted NOT to bring these provisions into force, with the exception of parts of sections 94-97, which now enables Ofsted to investigate where it has grounds for suspecting that an illegal school may be operating.
See also this statement from the Minister Lord Nash, March 2nd 2017: "We have no immediate plans to implement the provisions in Chapter 1 of Part 4 of the Education and Skills Act which enable the registration and regulation of institutions providing part-time education because we do not intend to bring such settings into the same regulatory system as used for independent schools..."
In September 2016 it was reported that a registered independent Muslim primary school judged by Ofsted to have significant failings would have to close immediately. The proprietor had claimed that the school should stay open because otherwise pupils would end up in home education and might be radicalised. This was dismissed by the Tribunal judge.
Independent schools must provide:
- written policy on the curriculum
- appropriate plans and schemes of work
- full-time supervised education giving pupils experience in linguistic mathematical scientific technological human social physical aesthetic and creative education
- education such that pupils acquire speaking listening and numeracy skills
- lessons in written and spoken English
- personal social health and economic education which encourages respect for other people
- for pupils receiving secondary education, access to accurate impartial up to date careers guidance
- effective preparation of pupils for the opportunities, responsibilities and experiences of life in British society
- a framework to assess pupils’ work regularly and thoroughly
- arrangements to safeguard and promote the welfare of pupils at the school which have regard to any guidance issued by the Secretary of State
- a written behaviour policy
- an effective anti-bullying strategy
- a written health and safety policy
- an admission and attendance register maintained in accordance with the Education (Pupil Registration) (England) Regulations 2006(c)
- a written risk assessment policy
- that no-one is employed who is barred from working with children
- that no-one is employed who is not allowed to work in the UK
- suitable toilet and washing facilities for the sole use of pupils
- separate toilet facilities for boys and girls aged 8 years or over except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time
- suitable changing accommodation and showers for pupils aged 11 years or over who receive physical education
- suitable accommodation for the medical and therapy needs of pupils
- suitable drinking water facilities
- suitable outdoor space in order to enable physical education in accordance with the school curriculum and pupils to be able to play outside
Since September 2014, independent schools have been required to actively promote "fundamental British values" and ensure that there is political balance in teaching and other activities.
The Government's ideas about "fundamental British values" are set out in the Education (Independent School Standards) (England) (Amendment) Regulations 2014 http://www.legislation.gov.uk/uksi/2014/2374/regulation/2/made and reproduced below.
2.—(1) The Education (Independent School Standards) (England) Regulations 2010(1) are amended as follows.
(2) In Part 2 of Schedule 1 (Spiritual, Moral, Social and Cultural Development of Pupils), for paragraph 5 substitute—
“5. The standard about the spiritual, moral, social and cultural development of pupils at the school is met if the proprietor—
(a)actively promotes the fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs;
(b)ensures that principles are actively promoted which—
(i)enable pupils to develop their self-knowledge, self-esteem and self-confidence;
(ii)enable pupils to distinguish right from wrong and to respect the civil and criminal law of England;
(iii)encourage pupils to accept responsibility for their behaviour, show initiative and understand how they can contribute positively to the lives of those living and working in the locality in which the school is situated and to society more widely;
(iv)enable pupils to acquire a broad general knowledge of and respect for public institutions and services in England;
(v)further tolerance and harmony between different cultural traditions by enabling pupils to acquire an appreciation of and respect for their own and other cultures;
(vi)encourage respect for other people, paying particular regard to the protected characteristics set out in the Equality Act 2010(2); and
(vii)encourage respect for democracy and support for participation in the democratic process, including respect for the basis on which the law is made and applied in England;
(c)precludes the promotion of partisan political views in the teaching of any subject in the school; and
(d)takes such steps as are reasonably practicable to ensure that where political issues are brought to the attention of pupils—
(i)while they are in attendance at the school;
(ii)while they are taking part in extra-curricular activities which are provided or organised by or on behalf of the school; or
(iii)in the promotion at the school, including through the distribution of promotional material, of extra-curricular activities taking place at the school or elsewhere;
they are offered a balanced presentation of opposing views.”
8. It is not necessary for schools or individuals to ‘promote’ teachings, beliefs or
opinions that conflict with their own, but nor is it acceptable for schools to promote
discrimination against people or groups on the basis of their belief, opinion or
9. The following is not designed to be exhaustive, but provides a list of different actions that schools can take, such as:
• include in suitable parts of the curriculum, as appropriate for the age of pupils, material on the strengths, advantages and disadvantages of democracy, and how democracy and the law works in Britain, in contrast to other forms of government in other countries;
• ensure that all pupils within the school have a voice that is listened to, and demonstrate how democracy works by actively promoting democratic processes such as a school council whose members are voted for by the pupils;
• use opportunities such as general or local elections to hold mock elections to promote fundamental British values and provide pupils with the opportunity to learn how to argue and defend points of view;
• use teaching resources from a wide variety of sources to help pupils understand a range of faiths; and
• consider the role of extra-curricular activity, including any run directly by pupils, in promoting fundamental British values."
The intention is to ensure pupils support the rule of English civil and criminal law. This is not incompatible with encouraging pupils to respect religious law if the school’s ethos is faith-based; the school should not avoid discussion, of an age-appropriate nature, of potential conflicts between state law and religious law, and the implications for an individual living in England. It is expected that pupils should understand that while different people may hold different views about what is ‘right’ and ‘wrong’, all people living in England are subject to its law. The school’s ethos and teaching, which schools should make parents aware of, should support the rule of English civil and criminal law and schools should not teach anything that undermines it. If schools teach about religious law, particular care should be taken to explore the relationship between state and religious law. Pupils should be made aware of the difference between the law of the land and religious law.
Such discrimination is generally prohibited by the Equality Act 2010, but a specific exemption exists for schools registered as having a religious ethos.
Government Advice says:
Independent schools designated as having a religious character can:
• give preference in connection with the appointment, promotion and remuneration of teachers on religious grounds;
• take into account conduct incompatible with the precepts or tenets of the religion in appointing or terminating the employment of teachers.
The Equality Act 2010 is not breached by doing anything permitted as a result of religious designation.
The proprietor of a registered independent school, or a person or body of persons planning to open an independent school, can apply for designation of the school as a school with a religious character.
At the start of January 2017 there were 6,813 state funded faith schools in England. The majority were primary schools; 6,176 or 37% of all state funded primaries. The 637 secondary faith schools made up 19% of all state funded mainstream secondaries. The proportion of state funded faith schools has increased gradually over time from 35% of primaries and 16% of secondaries in January 2000. Church of England schools were the most common type among primary schools (26% of all primaries); Roman Catholic schools the most numerous type of faith school at secondary level (9%). Non-Christian schools were very much in the minority; there were 48 Jewish, 27 Muslim, 11 Sikh and 5 Hindu schools at the start of January 2017.
While the number of Christian schools has fallen slightly since 2007 the number of non-Christian schools has increased. Between January 2007 and September 2017 the number of Jewish schools increased by 11, Muslim schools by 20, Sikh schools by 9 and all the Hindu schools have opened since 2008. There have been Jewish state schools since the establishment of the ‘modern’ primary and secondary systems in the first half of the 20th century. The first Muslim state school was established in 1997 and opened in 1998, the first Sikh school opened in 1999 and the first Hindu school opened in 2008.
At primary level the North West and South West regions had the highest proportion of pupils attending faith schools in 2016 at 42% and 36% respectively. Outer London (20%) had the lowest. At secondary level the North West (31%) and inner London (26%) and had the highest proportion of faith schools and the East of England (12%) and the South West (13%) had the lowest. At a local authority level more than 55% of primary pupils in Rutland, Wigan, Wiltshire, Blackburn, Knowsley and Dorset attended a faith school. In Leicester, Southend, Newham, Waltham Forest, Luton and Nottingham 10-11% did so. The smaller number of secondary schools means that patterns tend to be more extreme. More than half of secondary pupils attended faith schools in Westminster, Kensington and Chelsea, Liverpool, Bolton and Hammersmith and Fulham. There were six authorities that had no religious secondary schools in 2016.
In January 2016 just under 12.4% of pupils at state funded primary faith schools were eligible for free school meals compared to just over 16.4% of all primaries. Rates at faith secondary schools were slightly below average (14.3% v 14.9%). 26% of pupils at faith primary schools had an ethnic background other than White British,22 again below the primary average (31%). There were actually higher rates of minority ethnic pupils in faith secondary schools than the overall secondary average (32% v 29%). Pupils at faith schools were less likely to have low prior attainment when starting secondary school, more likely to have high prior attainment and less likely to be eligible for free school meals or be looked after by their local authority.
SOURCE: House of Commons Library Research Briefing, March 2017.
After the Trojan horse affair in Birmingham where students in several Birmingham schools were said to be vulnerable to being exposed to extremism, Ofsted began looking at "British values" in schools Jewish schools said they were being singled out over pupils not being adequately prepared for modern life
New Children Missing Education Guidance
Guidance on Children Missing Education was updated accordingly.
New Regulatory Framework for Registered Independent Schools
In 2018 the government consulted on a revised regulatory framework for independent schools which are already registered. This affects schools which may be repeatedly failing their inspection when judged against the standards for independent schools (ISS). It is a separate issue from schools which meet the criteria for registration and operate illegally by not registering..
On April 30th 2019 the Department for Education published its response to the consultation below, together with 2 new documents, namely Independent School Standards Guidance and non-statutory Independent Schools Regulatory and Enforcement Policy Statement.
The consultation received over 12,000 responses. The consultation response says: "Thousands of negative comments were received ... nearly all centred on two issues. The most significant was the guidance on the standard requiring that the PSHE curriculum encourages respect for other people, paying particular regard to the protected characteristics in the Equality Act 2010. This was the single most contentious section of the guidance on Part 1 ... After considering the large number of responses related to how protected characteristics should be addressed in PSHE, the government has reconsidered the wording of the guidance. It has concluded that the wording of standards does not support drawing a sharp line between what is required for secondary school age and what is required for younger pupils, but that otherwise its approach is correct ... Schools will also have to meet obligations imposed by other legislation, for example the requirements to be included in the standards from 2020 for sex and relationships education to be taught to secondary age pupils and relationships education to primary age pupils"
"The department is well aware that the guidance as originally drafted is opposed by some with a particular faith or belief or from a particular racial group. However, the drafting was intended to also take account of the interests of schools with a specific faith ethos which might affect the view taken on some protected characteristics - by illustrating what schools can teach while still ensuring that they meet the standards. In finalising the drafting of the guidance document the department has attempted to strike a balance which would reflect the concerns expressed but still reflect the requirements in the standards, for example to promote respect for all people, having regard to the protected characteristics. The equalities log published with the consultation has been reviewed and amended in the light of consultation responses and is published alongside this response document."
"Compared with the draft version issued for consultation, the final published version of the policy statement is not changed fundamentally; but as a result of consultation responses received in respect of both the draft guidance on the ISS and draft statement, the following main changes have been made:
a. the statement makes it clearer that schools will not be able to remain indefinitely in a loop of action plans and re-inspection, in response to representations that the draft version was not strong enough in this respect;
b. it is made clearer that if a school does not apply for a revocation of a relevant restriction that does not mean that further inspections will not be commissioned, and if on inspection it is found that significant improvement has not been made then a move to de-registration is likely. This was in response to representations that the draft version was not strong enough in this respect. This and the preceding change were designed to emphasise that despite the views of many respondents that schools should not face regulatory/enforcement action, or have more time before such action is taken, government policy is that in fact such action needs to be speeded up compared with the present position;
c. the statement is now to the effect that enforcement action will not normally occur if there are only one or two unmet requirements from the standards, although the judgement on this will take into account their severity, including the extent to which the failings put children’s safety at risk. This is in response to widespread concerns that a school could be closed even if there were minor breaches of one or two requirements in a standard..."
"The government is also well aware that for many respondents the requirements of some of the independent school standards are less important than other matters (for example their religion or belief), and they believe that as a consequence schools should not need to meet those standards and therefore, face enforcement action for breaches of those standards. In addition, if as a result of enforcement action for breaches of these standards a school closes, the parents of affected pupils might not be able to find school place which they would find acceptable."
"The government does not believe that parental views should result in a situation in which some schools are automatically treated differently from others by, in effect, being immune from enforcement action for breaching certain standards. It does not consider it appropriate that parents, or a school, should pick and choose which standards a school needs to comply with. The ISS are intended to apply to independent schools irrespective of parental choice about which of the standards they agree with – though in each case of deciding whether to take enforcement action, the Secretary of State will need to consider the circumstances by reference to, for example, the public sector equality duty and the ECHR. Therefore, the policy statement has not been changed to fall in with such an approach. If the result of enforcing the standards is the withdrawal of children from schools, then the parents concerned become responsible for providing them with a suitable education. The law allows parents that choice. If they do not then provide a suitable education, this is likely to result, in appropriate cases, in the local authority serving school attendance orders to ensure that the children go to school. The local authority may consider action to enforce school attendance orders or seek education supervision orders."
Consultation on independent schools regulatory system launched March 14th 2018 closed June 5th 2018. Included proposals for new non-statutory government advice on British values. There are also proposals for non statutory enforcement policy intended to replace “Regulating independent schools”(Department for Education, January 2016)