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The implications of the DFES consultation paper on education in independent schools
A. Introduction
In November 2006 the Department for Education and Skills (DFES) issued a consultation paper proposing changes to the definition of full-time education in independent schools.
I have been asked by Ian Cunningham on behalf of an educational charity to provide a legal opinion on the implications of the proposals contained in the consultation paper generally and in relation to the charity in particular.
B. Framework
To understand the relevance of the proposals it is important to see them in the context of the overall regulatory framework for schools. I apologise if some of what appears below is ‘basic stuff’ but the framework is central to understanding the possible impact of the proposed changes.
Under the various statutes and regulations governing the classification, structure and operation of education providers there are a range of overlapping obligations on different bodies with an interest in education.
For the purposes of this opinion the most significant, in terms of the educational framework are:
• parental duty – Section 7 Education Act (EA) 1996 – the parent of every child of compulsory school age (5 – 16) shall ensure that the child receives ‘efficient full-time education’ suitable to his/her ‘age, ability and aptitude’ by ‘regular attendance at school or otherwise’
• local education authority (LEA) duty – Section 14 EA 1996 – LEA must ensure that there are sufficient schools for the provision of primary and secondary education in their area; and Section 19 EA 1996 – LEA must make arrangements for those who may not receive ‘efficient education’ at school
• Secretary of State for Education duty – Section 10 EA 1996 – to promote education generally; and Section 11 – to provide the funds to secure educational provision
• Chief Inspector of Schools and OFSTED duty – Section 2 School Inspections Act (SIA) 1996 - to keep Secretary of State informed on ‘quality, standards and efficient use of resources’ and ‘development of pupils’; and Section 10 SIA 1996 – to administer school inspections
Simply put under the Education Acts of 1996 and 2002 all schools, whether in the state (maintained) or private (independent) sectors must be registered with the appropriate authority (in England this is the Secretary of State for Education. In Wales it is the National Assembly). Maintained schools must comply with a set of rules regulating amongst other things admission, exclusion, curriculum, governance, special needs, funding and staffing. Independent schools are liable to inspection on matters relating to educational standards but are largely self-regulating on matters of conduct and governance (see Sections 157 – 174 and regulations made under these sections, in particular The Education (Independent Schools Standards)
(England) Regulations 2003).
If an independent school fails to register with the Secretary of State the proprietor commits a criminal offence (Section 159 EA 2002) and on conviction is liable to a fine of up to £5,000 or up to 6 months imprisonment.
Of course a parent is free to meet his or her obligations by not sending the child to school at all, providing that the child receives ‘suitable education’. At present at least 8,000 children are said to educated at home by parents themselves (see Petrie, Home education and the Law, in Education and the Law, Vol. 10, Nos. 2-3, 123). This may be a somewhat conservative
estimate of numbers. Parents may also chose a combination of means for educating their children – at home, with others and in schools. As can be seen above, any schools involved must be registered as providers. Any attempt to educate by non-parents may be seen as ‘school’ provision and a failure to register may bring criminal liability.
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C. Key questions and definitions
Against this background and before the implications of proposals can be appreciated there are a set of questions that must be answered.
These are:
1. what is a school?
2. what is an independent school?
3. what is an educational institution?
4. what is full-time education?
5. what is the status of Acts, Regulations, Codes of Practice and
Guidance?
6. how can decisions of LEA’s, OFSTED and the Secretary of State be
challenged?
1. What is a school?
This is defined in Section 4(1) EA 1996 as an educational institution which is outside of the further and higher education sectors and provides primary, secondary and/or full-time education for 16 - 19 year-olds (covering those who stay on at school as opposed to going to a College of Further Education).
2. What is an independent school?
Under Section 463 EA 2002, an independent school is a school at which full-time education is provided for either: five or more pupils of compulsory school age; or at least one pupil of that age who has been ‘statemented’ (special needs) or is in the care of the local authority; and
is not a school maintained by an LEA
3. What is an educational institution?
The is no statutory definition of an educational institution but the question has been considered by the courts. In Bradbury v Enfield LBC (1967) Lord Denning said that a school is an institution that exists independently of buildings with a character of its own. An ‘institution’ is an
administrative concept or structure of the provider of education
4. What is full-time education?
As the definition of independent school contains the term ‘full-time education’ what does that mean here? Again there is no statutory definition but DFES Guidance to Proprietors suggests following the guidelines for maintained schools, which treat education as full-time if a minimum number of hours are spent in school. These are:
Age 5 – 7; 21 hours a week
Age 8 - 11; 23.5 hours a week
Age 12 – 16; 24 hours a week
An educational institution that is not in the LEA maintained sector, that has 5 or more pupils (or one or more if ‘statemented’ or in care) and provides education for more than the requisite number of hours will be deemed to be an independent school and liable to be registered and inspected as such.
5. What is the status of Acts, Regulations, Codes of Practice and Guidance?
Educational provision at primary, secondary, further and higher education levels is regulated through a variety of sources.
Acts of Parliament (such as the Education Act of 1996) are legally binding and lay down both specific rights and responsibilities and the means by which the detail for state control can be imposed.
This detail is provided for in Statutory Instruments or Regulations (for example Education (School Premises) Regulations 1999). These are also legally binding.
Codes of Practice provide further detail and may be legally binding (for example Code of Practice on School Admissions 1999) if made with the authority of the Secretary of State.
Guidance and circulars do not have force of law but as the names imply set out policy and will normally be expected to be followed. A rigid adherence to them may be inappropriate and may give rise to judicial challenge (see 6. below).
Case law (decisions of the High Court, Court of Appeal and House of Lords) creates binding precedent (which future courts must generally follow) on the interpretation and application of the law.
6. How can the acts or omissions (including decisions) of LEA’s, OFSTED and the Secretary of State be challenged?
This is as complex area of administrative law. There are 3 ways of challenging the acts or omissions of public bodies such as an LEA, OFSTED or Secretary of State.
These are:
• by appeal
• by judicial review
• by complaint
Appeal
Statute or Regulation will provide for an appeal in certain instances, for example under Section 9 of the Protection of Children Act 1999. Here an appeal lies against the decision of the registration authority to remove a school from the Register of Independent Schools. An appeal in this instance would lie to the Care Standards Tribunal. There is only a right of appeal in
specific instances. In the absence of such a route the only alternative is to use judicial review or to lodge a complaint.
Judicial review
This procedure questions not the merits of any particular act or omission as such but rather the means by which the relevant decision was taken. In other words it is a check on the process by which decisions are reached. The High Court can be petitioned where it is alleged that the act or omission is outside of the powers of the body concerned, where there has been procedural
impropriety or where the decision taken is in some way perverse – a decision that no reasonable authority could be expected to reach. There is a wealth of case law (precedent) on the acts and omissions of LEA’s and the Secretary of State for Education on a wide variety of issues including the closure of schools, admissions, exclusions, special needs, financial support and the curriculum. There appear to be no cases on the meaning of schools, educational institutions or full-time education.
If the review is upheld, the court may nullify a decision or require the decision to be taken (or take again).
As OFSTED reports to the Secretary of State, the resultant decisions, albeit based on OFSTED’s conclusions, are in fact decisions of the Secretary of State and therefore OFSTED is not subject to judicial review.
Complaint
As public bodies or individuals holding public office the LEAs, OFSTED and the Secretary of State are subject to review by the Parliamentary Commissioner for Administration (the Parliamentary Ombudsman). A complaint lies to the Ombudsman (through an MP) if injustice has been suffered as a result of maladministration – such as delay, failure to follow procedures,
bias or mistake. The Ombudsman can recommend a remedy but cannot enforce one. The recommendations are however normally followed.
In any judicial proceedings, it is also possible to argue human rights violations. Since October 2000 this can now be done in UK courts (previously this had to be argued in the European Court of Human Rights). Few successful cases have in fact been argued from this perspective in the education field even though the rights afforded under the Convention are seemingly directly
applicable to education (notably Article 2 of the 1st Protocol to the European Convention of Human Rights – ‘no person shall be deprived of the right to education….conforming with (parents) …religious and philosophical convictions’). Issues of non-discrimination (Article 14), fair trial (Article 6), private and family life (Article 8), freedom of thought (Article 9) and freedom of expression (Article 10) have also been argued. The courts have often taken the line that the rights afforded by the Convention must be seen in a wider context balancing individual rights with social implications. Indeed the UK government accepted the education provisions in Article 2 of the 1st Protocol providing it was compatible with effective instruction and training and avoidance of unreasonable public expense. Using the human rights legislation, whilst a useful tool, may not provide a ready form of redress.
D. The DFES proposal
What therefore is the DFES proposal and how might this affect the charity?
In the consultation paper, the DFES states that it wishes to change guidance on how an independent school is to be defined. The rationale given is that patterns of educational provision are changing and to ensure effective regulation, in a climate of greater diversity of provision, a review of what amounts to full-time education is necessary.
The proposals are that a school is an independent school (and therefore subject to registration and regulation as such) where:
• it provides ‘most’ of the education – that is more than 20 hours a week; or
• it provides less than 20 hours a week but is providing the major part of the education of the child in question
The DFES proposes to rely on OFSTED’s opinion as to whether an institution is a major provider.
E. Suggested responses to the consultation paper
As I understand it, the charity does not consider itself to be a school or an education provider. It does however, have as its mission, the assistance of others - to address and improve the educational opportunities for those, who for whatever reason, are not engaging in the educational process. The charity also has a research brief developing pedagogic theories and
methodologies aimed at improving educational opportunities.
The danger in the DFES consultation paper is that working with individual pupils for in excess of 20 hours a week may bring the charity into the definition of an independent school. Further, even if this ceiling is not reached if the pupil is not engaging in education elsewhere, OFSTED could hold that the charity is the major provider and require it to register as an independent school with all of the regulatory implications that would have.
Were the changes to be introduced it is possible that the charity would fall under the auspices of OFSTED particularly under the ‘provider of the major part’ proposal.
I suggest that the charity looks carefully at its objectives (presumably these are contained in a constitution that has been approved by the Charity Commission – I have not had the chance to see these). If these stress the facilitatory nature of the organisation, then a submission be made that asks for clarification that the proposed changes would not affect institutions such as the charity, whose purpose is to assist others rather than to provide education directly.
As seen above the proposals differentiate between institutions that provide at least 20 hours teaching from those that provide less. It could be submitted that the proposed changes would have unfair and potentially costly implications for small organisations, most likely to be in the not for profit sector, who are making relatively low levels of input in terms of the proportion of time spent in providing educational support. An example could be used of an excluded pupil who gets nominal support from the LEA at home but who goes to a club made up of parents and children experiencing similar difficulties, say 2 evenings a week, where he or she is helped address a variety of needs. If that club were seen to be providing a major part of the
child’s education, (largely because there would be no other significant educational input), the club would be caught by the Guidance and would probably have to close, given the implications of registration. It is therefore the ‘major part’ proposal that seems to create the most potential
difficulty.
Were the changes to come into force they could be challenged in 2 ways. First the Guidance itself could be made subject to challenge on human rights grounds. The history of using the human rights legislation does not give much scope for optimism however. Secondly, the Secretary of State’s decision (based on OFSTED’s report) could be challenged by way of judicial review, if the inspectors stuck rigidly to the Guidance without proper consideration of all of the facts of a particular case.
A response to the consultation paper needs to be submitted by 22 February 2007 and results of the consultation are expected to be published by 17 May 2007. Changes to the current regime could be made soon after that as it is proposed that they would be introduced in Guidance format. This would not need parliamentary approval.
If you have any queries please do not hesitate to contact me. I would be pleased to meet with members of the charity if that would help.
Richard Grimes
Talkinglaw
Independent Education Consultant
February 2007
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