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Education - independent schools

See also: Charities; Teachers

Contents:

Introduction


England
  Registration 
  Deregistration and restrictions
  Unsuitable persons
  Rights of appeal
  Provision of accommodation to pupils
  Relationship between school and parents
  Employment of staff
  Further information
  Enforcement


Wales


Northern Ireland


Scotland

Introduction


This page deals with the regulation of Indepedent schools, in the sense of schools owned and managed outside the state sector, which are regulated by legislation separately in England Wales, Northern Ireland, Scotland and Wales.

An independent school may be established under a number of legal forms. For commercial reasons it is likely to be formed as some form of legal entity, usually a limited company, and may well be constituted as a Charity. See further: Business organisations.


Many independent schools are established as charities. In recent years the Charity Commissions in England and Wales, and in Scotland, have questioned whether some schools are entitled to this status. See further our section on Charities.

England


“Independent school” has a legal definition - see below. The term “public school” has no statutory or legal definition. The Public Schools Act 1868 applies only to the seven old-established schools of Eton, Winchester, Westminster, Charterhouse, Harrow, Rugby and Shrewsbury.

Independent schools in England (and Wales - see Wales below) must be registered in the register of independent schools. For England this is maintained by the Secretary of State for Education. Regulation is exercised under the Education and Skills Act 2008 Part 4 (which replaced the Education Act 2002 Part 10 Chapter 1 (ss.157–171) which itself replaced the regime for independent schools contained in the Education Act 1996).

“Independent school”' means any school at which full-time education is provided for five or more pupils of compulsory school age, or at least one pupil of that age for whom a statement of special educational needs is maintained, or who is looked after by a local authority, and which is not a school maintained by a local authority or a “special school” not so maintained (definition in the Education Act 1996 used for the 2002 and 2008 Acts).

Registration


Independent schools must meet the required standards set out in the Education (Independent School Standards) Regulations 2014 (SI 2014/3283). Applications for registration must contain the prescribed information. Ofsted is notified when an application is made and it then arranges to inspect the school and report to the Department for Education (“DfE”) registration authority on the extent to which the independent school standards are met, and are likely to continue to be met, in relation to the school.

The DfE must, take into account the Ofsted report and any other evidence relating to the independent school standards, determine whether those standards are met, and are likely to continue to be met, in relation to the school. If the DES determines that the independent school standards are met, and are likely to continue to be met, in relation to the school, it must enter the school in the register. Tacit consent does not apply for public interest reasons.

What’s new items [go to What’s new? page or archive for more details]:

14/03/2018 Government consults on independent school regulatory system

Source: GOV.UK

The Department for Education is seeking views on draft versions of advice for independent school standards, a policy statement on regulatory and enforcement action and regulations relating to the provision of information by independent schools. The deadline for responses is 5 June 2018.

30/12/2014: Regulation of independent school changes

The Education and Skills Act 2008 (ESA 2008) among other things amended the regulatory framework for inspection of independent educational institutions, non-maintained special schools and providers of initial teacher training. The Education and Skills Act 2008 (Commencement No 11 and Saving and Transitory Provisions) Order 2014 (SI 2014/3364) brings into force on 5 January certain changes in regulation.

Deregistration and restrictions

The DfE (legally the Secretary of State at the DfE) may decide to remove a school from the register if it fails to meet the requirements. The Secretary of State may also require a school to follow an action plan, and impose restrictions on failure to adopt the plan, if suported by

an Ofsted report or other evidence.

Tthe Secretary of State may apply to a justice of the peace for an emergency order imposing an immediate restriction on, or deregistering, an independent school, where a pupil at the school is suffering or is at risk of suffering significant harm.


Unsuitable persons

The Secretary of State may remove an institution from the register if satisfied that the proprietor or other person at the school who may come into contact with a child or vulnerable adult is subject to certain statutory directions preventing him from working with the same.

The Secretary of State also has power to prohibit a person from participating in the management of an independent school completely, or only in circumstances or only if conditions specified in the direction are satisfied. A direction under this section may be given in respect of a person only on one or more prescribed grounds connected with the suitability of persons to take part in the management of an independent educational institution.

[Independent Educational Provision in England (Prohibition on Participation in Management) Regulations 2014, SI 2014/1977]

Rights of appeal

There are a rights of appeal from decisions of the Secretary of State to the First-tier Tribunal (Care Standards). Tribunal decisions may be searched and viewed on the Tribunals Judiciary website.

Provision of accommodation and child’s welfare


Where an independent school provides accommodation for any child, it is the duty of the proprietor to safeguard and promote the child's welfare (Children Act 1989 s 87).

Relationship between the school proprietor and parents


Unlike the position in state schools, the relationship between the proprietor of the school and parents is governed by the terms and conditions of the contract (whether express or implied). There is an implied term that the proprietor will provide the service (i.e. education services) with reasonable care and skill (Supply of Goods and Services Act 1982 s.13).


In the absence of specific contractual terms, common law will generally imply into the contract a term that thatone term's notice must be given of the child's removal from the school. Failing such notice, the proprietor may recover a term's fees if the child is removed.

Unless the right is expressly or impliedly reserved in the contract, the proprietor may not be able to increase the fees. Notice by the proprietor of an increase in fees may operate as a notice to terminate the contract and allow the parent to remove his child without due notice (Pott v Stevens (1949) 99 L Jo 164)..

Employment of staff


The requirement for teachers at schools and head teachers of schools to be qualified does not apply to independent schools, although in practice such teachers are usually qualified.


DBS check: before employing an individual in a 'regulated activity in relation to children or vulnerable adults, an employer is are required to carry out an enhanced Disclosure and Barring Service ('DBS')) check to ascertain that the individual is not barred from the activity. [Safeguarding Vulnerable Groups Act 2006 s. 34ZA] . In summary, the definition of regulated activity includes:


(i) unsupervised activities: teach, train, instruct, care for or supervise children, or provide advice/ guidance on well-being, or drive a vehicle only for children;


(ii) work for a limited range of establishments (‘specified places’), with opportunity for contact: e.g. schools, children’s homes, childcare premises. Not work by supervised volunteers;


Work under (i) or (ii) is regulated activity only if done regularly: “regularly”. Further information is available from Disclosure and Barring Service

Religious tenets: a proprietor of an independent school which has a religious character may give preferment to teachers willing to give religious education in accordance with the tenets of the religion.

Regard may be had, in connection with the termination of the employment or engagement of any teacher at the school, to any conduct on his part which is incompatible with the precepts or tenets of the religion (School Standards and Framework Act 1998).

Further information

 

For further information, visit the GOV.UK pages on Independent school registration (England and Wales), and for information about school inspections visit the Ofsted website

 

Enforcement

Criminal enforcement

A person who conducts an independent school which is not a registered school is guilty of an offence. A person guilty of such an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale or imprisonment for a term not exceeding 51 weeks, or to both. In the case of a company, there is the usual provision for directors criminal liability. [Education and Skills Act 2008 ss. 96, 135]


Use of barred person for regulated activity: it is an offence for a person to permit an individual to engage in regulated activity from which he is barred if the person knows or has reason to believe that the individual; is barred from that activity, and the individual engages in the activity. A person guilty of this offence under this section is liable on conviction on indictment, to imprisonment for a term not exceeding five years, or to a fine, or to both.

It is a defence for a person charged with an offence under this section to prove that he reasonably thought that it was necessary for the barred person to engage in the activity for the purpose of preventing harm to a child or vulnerable adult (as the case may be and that there was no other person who could engage in the activity for that purpose, and that the barred person engaged in the activity for no longer than was necessary for that purpose.

[Safeguarding Vulnerable Groups Act 2006 s. 9]

 

Wales


The primary legislation is [confusingly] contained in the provisions in the Education Act 2002 Part 10 Chapter 1 which formerly applied also to independent schools in England. The same child’s welfare provisions under Children Act 1989 s 87 apply as in England.


However, there is separate subordinate legislation for Wales contained in the Independent Schools (Provision of Information) (Wales) Regulations 2003.

 

Northern Ireland


Independent schools must be registered with the Department of Education.
For further information, see the Northern Ireland Government guidance notes on independent schools.


Scotland


Independent schools in Scotland are required, in accordance with the Education (Scotland) Act 1980 (as amended) to be registered with the Registrar of Independent Schools (see also the School Education (Ministerial Powers and Independent Schools) (Scotland) Act 2004.

An independent school is defined as a school at which full-time education is provided for pupils of school age (whether or not such education is also provided for pupils under or over that age), not being a public school or a grant-aided school. There is no minimum number of pupils needed in order to constitute a school. School age is over 4 and under 16.
For further information, visit the Scottish Government guidance notes.

[Page updated: 24/03/2018]

 

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