FREE CHAPTER from ‘A Practical Guide to the Independent School Standards – September 2022 Edition’ by Sarah McKimm

CHAPTER ONE

STATE AND INDEPENDENT EDUCATION – HOW THEY DIFFER AND WHY

Introduction and overview

Education in state schools is controlled and funded by the state operating through the Secretary of State for Education who works through the Department of Education (DfE) and agencies such as local authorities (LAs).¹

Parents are required to ensure their children receive efficient full-time suitable education but do not have to take up the education offered by the state.² They have the right to educate their children independently of the state³ and in accordance with their own religious and philosophical convictions,⁴ whether at an independent school or otherwise.⁵

At the same time, children have rights to effective education,⁶ to be safe and in due course to make their own choices as they mature.⁷

In recognition of the freedoms and rights of parents, the Secretary of State does not exercise the same degree of control over independent education as s/he does over state education. There remains a role for the state, however, in setting standards firstly to provide assurance to parents that any independent school they may choose will keep children safe and provide a good education and secondly to balance parental rights against those of their children, ensuring that parental choices do not lead to the rights of their children being compromised.

This is achieved through a system of compulsory registration of independent schools and a set of registration standards known as the independent school standards (‘the standards’ or sometimes ‘ISS’) which are prescribed in regulations.⁸ Failure to meet the standards can lead to regulatory action against a school, including de-registration, by the Secretary of State through a process defined in legislation.⁹

The standards create a safe space in the education system where parents and schools can exercise their independence, continue their own distinctive heritage and traditions, where children are safe and education can develop in ground-breaking creative ways. The approach preserves the huge variety of schools within the independent sector in England, from schools providing an all-round education to those with a strong academic or sporting focus, to world renowned schools of dance or music, to the small schools serving faith communities, to specialist schools catering for pupils with particular needs, and within each type, co-educational and single sex, day and boarding, prep, senior and all-through schools. The standards are the same whether the proprietor is a charity, a small family business, a large international enterprise, a religious community, a college, profit-making, not-for-profit, or a one-person operation.

The standards do not confer direct, actionable rights although they may have evidential value in litigation, but they do seek to ensure protections for children and provide certainty and assurance to parents about what they are buying into. Their implementation is monitored through regular inspections, as discussed in Chapter Three.

The most common requests for legal advice are likely to be from schools who are keen to understand and implement the standards in contexts such as seeking registration, policy drafting, handling regulated matters (such as safeguarding and other welfare issues), inspection preparation, post-inspection action plans, or from parents, schools, current or former pupils in the context of a private law dispute.

Children’s rights to education

Article 2, Protocol 1 (A2P1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) provides:

Right to education

No person shall be denied the right to education.

In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

This is incorporated into domestic law by the Human Rights Act 1998 (HRA). Despite the negative formulation, A2P1 has been held to guarantee a right of access to an ‘effective’ form of education.¹⁰

The first sentence protects the rights of a child; the second, the rights of parents. ¹¹

The purpose of education

The UN Convention on the Rights of the Child (UNCRC) provides further context.¹² In Article 28, State parties ‘recognise the right of the child to education …’. Article 29(1) is instructive in formulating a purpose for education:

States Parties agree that the education of the child shall be directed to:

1. The development of the child’s personality, talents and mental and physical abilities to their fullest potential

2. The development of respect for human rights and fundamental freedoms …

3. The development of respect for the child’s parents, his or her own cultural identity, language and values, the national values of the country in which the child is living, the country from which he or she may originate, and for civilisations different from his or her own

4. Preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin

5. The development of respect for the natural environment.

The vision is for an education which prepares children for adult life in a modern pluralist society in which they are able to play their part and fulfil their potential.

Perhaps oddly in a convention about the rights of children, there is a second part to Article 29 UNCRC which concerns the rights of adults to run schools. It provides that no part of that article:

… shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article [above] and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

The best interests of the child

UNCRC Article 3 introduces the notion of the ‘the best interests of the child’ as ‘a primary consideration’, of the state taking steps to ensure the protection and care of children while taking into account the rights of adults (parents and others)¹³ and again of conformity to institutional standards:

3(3) States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.¹⁴

In the contexts of both education and welfare, the UNCRC recognises the rights of adults and envisages a role for the state in setting minimum standards to protect and balance the rights of children.

Freedom from interference

Article 8 of the ECHR also provides for a right of respect for private and family life. This is as relevant to children as it is to their parents. The state is restricted from interfering

… except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.¹⁵

When it comes to parental choice, ‘others’ includes their own children. In R v Secretary of State for Education and Employment and others ex parte Williamson [2005] UKHL 15, the House of Lords discussed the limits on parental rights. A group of Christian parents challenged the outright legal ban on all corporal punishment in independent schools on the basis that it infringed their religious freedom.¹⁶ Baroness Hale saw ‘the essential question’ as

… whether the legislation achieves a fair balance between the rights and freedoms of the parents and teachers and the rights, freedoms and interests, not only of their children, but also of any other children who might be affected by the persistence of corporal punishment in some schools.¹⁷

The House of Lords agreed that the parents’ rights had been infringed but held that this was justified in the interests of the legitimate aim of protecting the rights and freedoms of children.¹⁸ The legislative prohibition had achieved a fair balance between the religious rights and freedoms of the parents and those of their children to be free from physical punishment. ¹⁹

Domestic law

We see some of these principles filtering into domestic law in places such as the welfare principle in section one of the Children Act 1989; sections 7 and 9 of the Education Act 1996; and the Education and Skills Act 2008 which permits individuals and bodies to set up schools and requires the Secretary of State to set standards to regulate them.

Freedoms of independent schools

What does independence translate to in practice? An independent school is, by definition, independent of the state. Much of the legislation, regulations and guidance which apply to state-funded schools are, therefore, not compulsory for independent schools. It is not always understood by parents, however, that in choosing independent education they are opting out of some of the statutory rights, systems and certainty afforded to pupils and parents in the context of state education.

Does it apply? Key differences between state and independent schools

Does it apply?	State-funded schools	Independent schools
National curriculum	Yes	No
Teacher qualifications are prescribed	Yes	No – with rare exceptions20
SEND Code of Practice: 0-25 years	Yes	No in practice, except for publicly funded provision21
Requirement to have a SENCO	Yes	No22
Statutory guidance: Supporting pupils with medical conditions at school	Yes	No23
Statutory Admissions Code	Yes	No
Statutory guidance on exclusions	Yes	No
Statutory codes for recording registration	Yes	No
Statutory number of sessions (380) and term-time dates fixed by local authority24	Yes	No
Constitution for governing bodies	Yes	No
Safer recruitment training	Yes25	Yes26
School teacher pay and conditions document	Yes	No
Public sector equality duty (PSED)	Yes	No
Teachers’ Standards (statutory)	Yes	Part one – No Part two – Yes
Statutory guidance for safeguarding: Keeping children safe in education Working together to safeguard children	Yes	Yes
Statutory framework for the Early Years Foundation Stage (EYFS)	Yes	Yes – partial exemptions available
National Minimum Standards for Boarding Schools	Yes	Yes
Statutory guidance: Relationships Education, Relationships and Sex Education (RSE) and Health Education (HE)	Yes	Yes – RSE No – HE
Statutory guidance: Careers guidance and access for education and training providers	Yes	No
Daily act of worship	Yes	No
Equality Act (other than PSED) e.g. duty to make reasonable adjustments	Yes	Yes
Freedom of Information Act	Yes	No
Data protection law	Yes	Yes
The Regulatory Reform (Fire Safety) Order 2005	Yes	Yes
Inspections under section 5 or 8 Education Act 2005	Yes	No
Inspections under section 109 Education and Skills Act 2008	No	Yes – except for academies

Registration and the role of the independent school standards

The relative lack of prescription for independent schools does not leave them to operate in a vacuum. All independent schools are required to register with the Secretary of State, operating through the DfE. It is an offence to run an unregistered school. Anyone who does so is liable on summary conviction to imprisonment and/or a fine.²⁷ The Secretary of State sets standards which must be met as a condition of registration. A pre-registration inspection and regular inspections thereafter monitor whether the standards are met.

Essentially, while state schools are provided with a curriculum and told how to handle key issues through various statutory codes, independent schools are largely able to design their own approaches:

The school … is entrusted by the legislation to run a school according to its own values and standards so long as it can guarantee compliance with those demanded by Parliament in the Act and Regulations.²⁸

Each school’s practices must be recorded in policies and made available to parents.²⁹ The policies must be implemented rigorously. ‘Independence’ is therefore better understood to mean freedom for schools to design their own systems rather than permission for unstructured anarchy. The benefit of the approach from the perspective of independent schools is freedom; the downside is the greater attention given by the regulatory system to school policies compared to the state sector.

Market forces

Market forces have a part to play in informally regulating the quality of independent education. Parents wishing to invest in their children’s education take great care over their choice of school but it can be difficult to know what really goes on at a school and a school’s reputation may be a lagging indicator of quality. Market forces, though important, cannot therefore be relied on alone to secure children’s rights to effective education. One of the functions of the standards and inspection is to assist the market to function properly by ensuring parents have access to certain information when making their decisions. Provision of further information is covered in Chapter Fifteen.

The parent/school contract

The relationship between parents and independent schools is one of contract. Parent/school contracts tend not to cover the matters regulated by the standards, which are the focus of this book, although there may be overlap particularly in relation to behavioural expectations for pupils. Parent/school contracts typically focus on financial arrangements, co-operation between the parties and the circumstances in which the relationship can be terminated. It is always important for advisors to check the particular contract in case it has any bearing on the issue on which they are advising.

Parents and schools cannot contract out of the requirement for the school to meet each of the independent school standards. ³⁰

The curious position of academies

Academies are registered as independent schools and funded directly by central government, rather than by parents or LAs as in the case of traditional independent or maintained schools.

In their earliest conception, academies were not subject to all the statutory codes of practice for state schools. This led to the anomalous position where parents of academy pupils, although using state education, potentially had neither the contractual rights of private school parents nor the full suite of statutory rights of state school parents.

As independent schools, however, academies were (and are) subject to most of the independent school standards, subject to a few exceptions,³¹ which sometimes replicate or approximate to the requirements for state schools. As an example, the School Premises (England) Regulations 2012 only apply to maintained schools but the same provisions are replicated for independent schools and academies in the standards.

The main vehicle for regulating academies, however, is the funding agreement between the Secretary of State and the academy trust. Terms are imposed as a condition of funding. This approach was originally designed to allow state school leaders freedoms similar to those of leaders of traditional independent schools, and potentially to allow the Secretary of State scope for flexibility in response to local need. While a range of funding agreements are in use, new funding agreements tend now to be in standard form and to impose some of the statutory codes for state schools.³² Academies are also subject to section 5 and 8 inspections by Ofsted, rather than the statutory inspection regime for independent schools which would require routine inspection against the standards.³³ This leaves little role in practice for some of the standards, except on first registration of an academy.

The White Paper: Opportunity for all, Strong schools with great teachers for your child (March 2022) recognises that the system that has evolved is confusing. The Schools Bill 2022 therefore proposes to bring together both new and existing requirements on academy trusts and academies (currently set out in legislation and funding agreements) into a new common set of statutory academy trust standards. The Independent School Standards would then cease to apply to academies.³⁴

For the time-being, advisors of academies, or of parents whose children attend academies, should scrutinise the funding agreement for information about the obligations of the particular academy and consider also the independent school standards. The law relating to academies is beyond the remit of this book.

Conclusion

State schools operate within an educational system tightly controlled by the state. By contrast, independent schools are free to design and implement their own systems provided that those systems meet certain minimum standards. Parents have a right to educate their children outside the provision made by the state. The independent school standards provide a balancing mechanism which enables the Secretary of State to protect the safety of children and ensure that they receive a good education which prepares them for adult life in modern British society, while not interfering disproportionately with parental rights.

For further reading see:

• the Education Act 1944

• the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome 1950

• ECtHR’s Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights – Right to education 31 August 2021

• the Children Act 1989

• the UN Convention on the Rights of the Child 1989

• the Education Act 1996

• the Human Rights Act 1998

• the Education Act 2002

• the Children Act 2004

• the Safeguarding Vulnerable Groups Act 2006

• the Education and Skills Act 2008

• the Equality Act 2010

• the Children and Families Act 2014

• the Children and Social Work Act 2017

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