The Department for Education (‘DfE’) has recently published “The Independent School Standards: guidance for independent schools”. Although this is non-statutory guidance, it will be important for the sector to consider carefully. The DfE states that inspectors will take it into account when reporting to the Secretary of State on the extent to which the Independent School Standards are being met, or are likely to be met, in relation to an independent school. The DfE would also take it into account when taking decisions about regulatory or enforcement action on individual schools.
It has been produced to help proprietors and others understand the obligations under the Independent School Standards contained in the Schedule to the Education (Independent School Standards) Regulations 2014 (‘the Regulations’). The aim of the document is to provide supplementary guidance on best practice in complying with the Standards and sets out the DfE’s understanding of them.
This guidance document sits alongside and supplements the existing Independent Schools Inspectorate Commentary on the Regulations, as well as other already existing regulations and guidance documents, so due consideration must be given to all of these.
The Secretary of State has signalled that he will be taking a firmer approach to enforce the Standards when there is evidence of non-compliance. This is reflected in the policy statement on regulatory and enforcement action which is published alongside this guidance. The documents are available at:
Structure of the guidance document
The document contains sections on each of the eight parts of the Schedule to the Regulations. It provides an overview of the purpose of each of the parts and then provides an explanation as to what the intended meaning is for each individual standard.
The full document should be referred to, but below is a summary of points that some may find useful:
Part 1 – Quality of education
The guidance on Part 1 is extensive and detailed and we refer you to it. The DfE summarises the overall purpose of Part 1 as being to ensure that a school has a curriculum which covers a broad range of subject disciplines, delivered through teaching that will enable all pupils to make good progress according to their abilities, and that such progress is properly assessed as part of a continuous process which feeds back into lessons.
Teaching must, amongst other things, enable pupils to make good progress. This is part of a general attempt to ‘raise the bar’ towards a situation whereby, although there is still a set of minimum standards, those standards deliver a situation in which all schools aim to be at least good, and not simply adequate or ‘coasting’.
The guidance also covers requirements relating to the PSHE curriculum and the requirement to encourage respect for other people, in an age-appropriate way, with particular regard to the protected characteristics under the Equality Act 2010. Issues around sex and relationships education, particularly in a faith school context, are of course particularly topical at the moment, and this guidance makes reference to the new Relationships and Sex Education guidance. That guidance will have an impact on independent schools, with effect from September 2020, although schools are encouraged to adopt it from September 2019.
There is also commentary on gender separation in mixed schools.
Part 2 – Spiritual, moral, social and cultural development of pupils (SMSC)
The guidance on Part 2 is also extensive and we refer you to it. The content of the department’s advice published in November 2013 and November 2014 on SMSC in independent schools has been subsumed into this document, but in revised form. Therefore, those two advice documents have been withdrawn.
This guidance is intended to help schools understand the SMSC standard and to give examples of ways in which schools can meet, and continue to meet, the standard (including the promotion of “fundamental British values” and precluding the promotion of “partisan political views”).
Part 3 - Welfare, health and safety of pupils
Having proper policies is still the starting point for good practice in protecting the health, safety and welfare of pupils. They must be regularly reviewed and adjusted in light of experience; they need to be ‘living documents’, and proprietors are urged to consider how strong the links are between practice and policy. The guidance note suggests that school’s policies and safeguarding arrangements should be revised “as soon as possible” following regulatory changes (for example to Keeping Children Safe in Education or Working Together to Safeguard Children).
The guidance note confirms that schools should ensure that all staff have read and understood at least Part 1 and Annex A of KCSIE, and specifies that “staff must have received training appropriate to their responsibilities.”
In relation to behaviour, having a written behaviour policy is of no use if, in practice, teachers follow widely varying approaches to managing behaviour. The separate DfE advice (Ensuring good behaviour in schools) is referred to to help schools formulate and implement an effective behaviour policy.
On bullying, the DfE advice (DfE advice on preventing bullying) is referred to to assist proprietors in drawing up a strategy. In the department’s view, to be effective, a written policy will need to cover cyber-bullying and prejudice-based bullying because of a protected characteristic.
In relation to the requirement to maintain an admission and attendance register, the guidance note points out that failure to abide by the requirements of the Regulations or contravening them is a criminal offence under s.434(6) of the Education Act 1996. It is also a serious safeguarding issue. If a school chooses to use a commercial registration system, based on either manual or digital input, the proprietor will need to assure themselves that any system they use is fit for purpose.
In relation to risk assessments, the DfE considers that well-run schools will have proper risk assessment across the whole range of their activities affecting pupils. Risk assessment should not be an afterthought or confined to the most obvious dangers for pupils. This standard relating to risk assessment requires schools to consider risk in relation to all activities which could place pupils in serious jeopardy, and during inspections evidence will be sought that this has been done systematically in order to inform the written risk assessment policy required by this standard, and that appropriate action has been taken to reduce any risks that are identified.
The guidance note gives some examples of matters for which schools have sometimes failed to consider risk adequately, including safeguarding risks posed during educational visits, either from staff or from members of the public, and failure to consider dangers posed by other pupils and the risk of pupil-on-pupil abuse, including ‘sexting’.
The guidance also recommends that proprietors ensure that their policies and practices in this area are based on “a wide view of what may happen to pupils, not only in schools and [sic] but also beyond it [sic]”.
Part 4 – Suitability of staff, supply staff, and proprietors
The guidance note acknowledges that because of the need for precision, the Standards are worded in ways which are not always easy for schools to interpret. It therefore suggests that schools may find it useful to refer to those parts of the statutory guidance ‘Keeping Children Safe in Education’ which set out procedures for checks on staff and other people such as members of proprietor bodies; the relevant sections include lists of the checks to be made.
Part 5 – Premises of and accommodation at schools
This document does not cover in significant detail the requirements in Part 5 as there is already separate departmental advice on those requirements so far as they relate to premises and that advice has not been revised.
Part 6 – Provision of information
The guidance note sets out the minimum which parents and others need to form a proper picture of the school. Schools are reminded that nothing in this Part stops a school providing whatever further information it wishes to.
Part 7 – Manner in which complaints are handled
A school can have a complaints process which has a wider scope or more facilities for complaint than the Standards require, but to meet Part 7 a proprietor must ensure that a procedure is drawn up and effectively implemented which at least meets the standard set out in that part.
The guidance makes clear that a complaints procedure does not need to apply to prospective pupils or to admission decisions, or to parents of pupils who have left, or to complaints by pupils. It helpfully emphasises that parents are not entitled to be accompanied by a lawyer. It also states that if a parent decides not to exercise their right to attend a hearing, this “does not remove” the school’s obligation to hold the hearing.
If it is found that this standard has not been met because of the way a particular complaint has been handled, the Secretary of State has no power to compel the school to alter its decision on that complaint, only to take regulatory action designed to address the failure to meet the complaints standard, so that future complaints are dealt with properly.
Part 8 - Quality of leadership in and management of schools
There is emphasis in this standard related to meeting the Independent School Standards “consistently”. The Standards are not intended as something to be met every few years when an inspection takes place; the Standards should be met continually, and this standard is intended to ensure that the quality of leadership and management at a school (including that of its governors) is sufficient for that purpose.
If you require further information about anything covered in this briefing note, please contact Jonathan Eley, or your usual contact at the firm on
+44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2019