FREE CHAPTER from ‘A Practical Guide to the Independent School Standards’ by Sarah McKimm

CHAPTER THREE – OVERVIEW OF THE INDEPENDENT SCHOOL STANDARDS

Introduction

The independent school standards take concepts of education and human behaviours and anatomise them into artificially separate components, setting standards for each for the purpose of creating accountability measures.

Many standards are principle-based to allow schools maximum discretion around how they are met while others, such as those about suitability checks, are more rule-based and allow little latitude. This approach provides a flexible framework for the regulator (DfE) and inspectorates (currently Ofsted and the Independent Schools Inspectorate) to respond to a wide range of situations, coupled with certainty on welfare issues.

The hybrid style of the standards also works well for proprietors/leaders with the confidence and ability to exercise their independence and professional discretion. It can be a source of frustration to others, including parents and potential claimants, who would prefer the certainty of clear prescription and the clarity of ‘right’/ ‘wrong’ answers to complex scenarios. Anxiety about inspection outcomes should not be under-estimated by legal advisors. The best advice may be to start by understanding/explaining the underlying purpose of each standard and provide reassurance that all reasonable systematic approaches which consistently achieve that purpose are likely to meet the standard.


Finding the standards

The current standards are in the schedule to the Education (Independent School Standards) Regulations 20141, as amended.2 They are set by the Secretary of State using powers in section 94 of the Education and Skills Act 2008. As such they form part of English law. Definitions of key terms, such as ‘pupil’, ‘boarder’, ‘staff’, ‘supply staff’, ‘provided’ and ‘made available’ are found in regulation 2 of the Education (Independent school Standards) Regulations 2014, as amended.3


What the standards cover

The headline issues covered by the standards are defined in the empowering legislation. The Secretary of State is required to prescribe standards for independent educational institutions about: 4

  • quality of education provided

  • spiritual, moral, social and cultural development of pupils

  • welfare, health and safety of pupils

  • suitability of proprietors and staff

  • premises and accommodation provided

  • provision of information by independent schools

  • manner in which complaints are handled

  • quality of the leadership in and management of schools.

The standards are divided into eight parts which follow the structure set in the primary legislation. Matters not covered include for example, financial management, financial disputes with parents, staff welfare and data protection issues (with a few limited exceptions).


Other standards and regulations incorporated into the independent school standards

Although the standards themselves comprise only 14 pages, they incorporate various other statutory standards, statutory definitions and statutory guidance, some targeted to specific types of provision. These make the standards considerably more extensive than appears at first glance:

  • National Minimum Standards for boarding school 2015 (20 pages)5

  • National Minimum Standards for residential special schools (26 pages)6

  • Statutory framework for the Early Years Foundation Stage (53 pages)7

  • Keeping children safe in education (167 pages)8

  • Working together to safeguard children (116 pages)9

  • Relationships Education, Relationships and Sex Education (RSE) and Health Education (50 pages)10

  • relevant health and safety laws’11

  • Regulatory Reform (Fire Safety) Order 2005 (65 pages)12

  • Education (Pupil Registration) (England) Regulations 2006 (8 pages)13

  • Equality Act 2010: Parts 2 (key concepts), Part 6 (schools) and Schedules 10, 11, 14, 22 and 2314

  • Section 10(2) Children Act 200415


When the standards apply

Many independent schools operate both in and outside school terms, for example, offering children’s holiday clubs or opening sports facilities to the community at large when the school is otherwise closed. The standards certainly apply when a school is operating as a school. They are generally assumed not to apply when the school is not operating as a school, or not to apply to provision that is not for pupils, but there is no case law authority on the point. When a school is not operating as a school, other relevant legislation would still apply such as the Safeguarding Vulnerable Groups Act 2006 (which defines regulated activity) and the Children Act 1989, under which local authorities would continue to have duties towards children in need or at risk in their area.

The statutory framework for the EYFS applies to early years provision at all times. The NMS for boarding schools also have a statutory status in their own right and can apply at times when the independent school standards do not.16


When the EYFS applies

The application of the statutory framework for the EYFS to schools can be confusing due to overlap with the standards. Depending on the age of the children, sometimes it applies instead of the independent school standards and sometimes in addition.

When the statutory framework for the EYFS applies to independent school provision

Age of children

ISS apply? 17

EYFS applies? 18

Under 2 years

No

Yes

Age 2

For 2 year-olds, the ISS consist solely of the EYFS requirements.

Yes

Age 3-5 (end of academic year in which they turn 5)

Yes, except where the provision is a stand-alone nursery which is not part of a registered school.

Yes – although independent schools can claim exemption from the learning and development requirements. 19


The role of the proprietor

Many standards are expressed as obligations of the proprietor, in terms of outcomes which the proprietor must ensure. See Chapter Two for the definition of proprietor and how to identify them. Proprietors carry personal legal responsibility for their schools but are not obliged to perform the duties attributed to them personally. A sole proprietor of a small school might do so but more typically in larger establishments proprietors fulfil their obligations through the leaders they appoint, good systems of governance, clear schemes of delegation, lines of accountability and effective performance management. For ‘proprietor’ in the standards, one can therefore read ‘school’ unless statutory guidance stipulates that a matter is to be dealt with at board level.


The role of inspection

The statutory purpose of inspection of independent schools, whether by Ofsted or an independent inspectorate,20 is

  • in the case of inspections at the direction of the DfE: to ‘make a report to the Secretary of State on the extent to which any relevant standard is being met in relation to the institution’21

  • in the case of material change inspections: to report to the Secretary of State on ‘the extent to which, if the change is made, any relevant standard is likely to continue to be met in relation to the school’22

Any relevant standard’ means in each case, any of the standards specified by the Secretary of State for the purposes of the inspection or considered to be relevant by either HMCI (in the case of routine Ofsted inspections) or the person carrying out the inspection in directed inspections.23

There are additional powers and provisions relating to the inspection of boarding care in section 87 et seq. of the Children Act 1989.24

The burden of proof is on the school to demonstrate to the inspection team that it continues to meet the standards at the time of the inspection.25

Inspections have been called ‘the eyes and ears of the DfE’. Inspection reports enable the DfE to form a view on whether action is needed by the Secretary of State to drive improvement in particular schools against the standards. The processes and powers available to the Secretary of State following a failed inspection are set out in the Education and Skills Act 2008, starting at section 114 – 118 and the DfE’s policy statement: Independent Schools: Regulatory and Enforcement Action, April 2019. Effective enforcement action depends on clear evidence-based inspection reports which specify which standards are or are not being met.

The inspection framework of each inspectorate sets out how they will carry out their statutory duties over a period (cycle) set by the Secretary of State. Currently independent schools are routinely inspected against the standards on a three-year cycle.26 The framework covers such matters as different types of inspections, inspection timelines, notice periods, grade descriptors and reporting against the standards. It may include reporting on additional matters after consultation with stakeholders. Inspection frameworks are designed to set a level playing field across schools for the period of the cycle, ensuring consistency and flexibility within parameters.27

Briefing schools about the requirements of the standards and any changes to them is not part of the statutory role of inspection.28 Inspectorates may provide information as part of the ‘added value’ they offer but in so doing must exercise caution to avoid pitfalls such as implying limitations on the freedom of schools (where relevant) about how they meet the standards or fettering their own discretion.

Independent school inspections are funded by the schools. In the case of Ofsted inspections, fees are regulated through the Independent Educational Provision in England (Inspection Fees and Savings Provisions) Regulations 2019.


Departmental guidance about the standards

The DfE has issued non-statutory advice to assist proprietors and others to understand the standards: Independent School Standards: Guidance for independent schools, April 2019. It advises that inspectors will take it into account when reporting to the Secretary of State on the extent to which the standards are being met, and likewise, the DfE will do so when considering regulatory action. The advice is helpful in addressing some aspects of interest particularly to faith schools and is drawn on in the chapters which follow.

Other departmental advice (whether non-statutory for all schools or statutory but only for state schools) can be helpful in relation to standards which contain little prescription except as to outcome. It indicates practice in schools generally, and therefore gives independent schools a starting point when considering whether their approach is reasonable.


Conclusion

For further reading see:

  • Independent School Standards: Guidance for independent schools, April 2019

  • Independent Schools: Regulatory and Enforcement Action, April 2019.

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1 These are commonly known in the independent sector as the ‘ISSR’ or ‘ISSRs’ as an abbreviation for ‘Independent School Standards Regulations’, which is itself a misnomer.

2 The Education (Independent School Standards) Regulations 2014 have been amended by

  • Regulation 9 of the Independent Educational Provision in England (Inspection Fees) and Independent School Standards (Amendment) Regulations 2018
  • Regulation 11 of the Independent Educational Provision in England (Provision of Information) and Non-Maintained Special Schools (England) and Independent School Standards (Amendment) Regulations 2018
  • Para. 19 of the Schedule to the Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019
  • Regulation 2 of the Education (Independent School Standards) (Coronavirus) (Amendment) Regulations 2020.

3 For the benefit of lay readers, regulation 2 of the regulations is in the body of the regulations and not to be confused with para. 2 of the standards which are in the schedule to the regulations.

4 Section 94 Education and Skills Act 2008.

5 Made under section 87C(1) of the Children Act 1989, as amended by the Care Standards Act 2000 and the Education Act 2011. Incorporated by ISS 8. In 2021, there was a public consultation on a new version of the NMS but at the time of going to print, the DfE has not yet responded to the consultation.

6 Made under section 87C(1) of the Children Act 1989, as amended by the Care Standards Act 2000 and the Education Act 2011. Incorporated by ISS 8.

7 Made under section 39 Childcare Act 2006, the Early Years Foundation Stage (Welfare Requirements) 2012 and Early Years Foundation Stage (Learning and Development requirements) Order 2007 each as amended from time to time. Incorporated into the standards by section 94(5)(b) Education and Skills Act 2005.

8 Incorporated into the standards by ISS 7.

9 Incorporated by ISS 7.

10 Made under sections 34 and 35 Children and Social Work Act. Incorporated into the standards by ISS 2A.

11 Incorporated by ISS 11.

12 Incorporated by ISS 12.

13 Incorporated by ISS 15.

14 Incorporated by ISS2(2)(d)(ii), 3(j), 5(b)(vi).

15 Incorporated by ISS 34(1)(c) and (2).

16 See pp 4 and 5 of the NMS for boarding for more information about when they apply.

17 Section 94(4) and 94(5)(b) Education and Skills Act 2008. The table concerns provision when a school is open.

18 Section 40 Childcare Act 2006 makes the EYFS apply to all EY providers.

19 For information about exemptions see: The Early Years Foundation Stage (EYFS) Learning and Development Requirements: Guidance on Exemptions for Early Years Providers June 2017 and regulations listed there. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/621771/Guidance_on_exemptions_for_Early_Years_providers.pdf .

20 By section 106 Education and Skills Act 2008, the Secretary of State may approve independent inspectorates for inspection of independent schools. Advice about approval is found in: Approval of Independent Inspectorates 2014. ISI is currently the only independent inspectorate. Section 107 Education and Skills Act 2008 underpins arrangements for Ofsted to monitor the work of independent inspectorates. Letters of approval, the current MOU about monitoring and the annual monitoring letters are available on gov.uk.

21 Section 109(2)(b) and 109(3)(b) Education and Skills Act 2008. All inspections by independent inspectorates are directed by the DfE under either section 109 or 163.

22 Section 162(4).

23 Section 108(2) and 109(4).

24 See the MOU between DfE and Ofsted for more information: Memorandum of understanding: independent schools.

25 Marshall v Commission for Social Care Inspection [2009] EWHC 1286 (Admin).

26 Boarding provision in residential special schools is inspected by Ofsted annually. A range of additional inspections can be triggered out of cycle.

27 For correspondence on how covid has impacted the current cycle and frameworks see: https://www.gov.uk/government/publications/independent-schools-approved-inspectorates .

28 Beis Aharon v Secretary of State [2016] UKFTT 270 (HESC): para.s 50, 52, 88. A criticism levelled at Ofsted for not helping a school was found to be a ‘fundamental misunderstanding of the role of both Ofsted and … the regulator.’ Brayne J at para. 52.