‘A Practical Guide to the Independent School Standards – September 2023 Edition’ Schedule of Changes

References to ‘New for 2022’ have been removed and new expectations on schools are flagged in bold with ‘New for 2023’. Other changes which do not impose additional duties but provide additional pre-existing material in the text are woven along with small re-workings for clarity.

Significant changes:

Chapter One  – State and independent education – how they differ and why

  • Refers now to a debate about whether the Public Sector Equality Duty applies to publicly funded provision in a private school, and a signpost has been added to the EHRC PSED guidance.
  • A summary of the Schools Bill 2022 has been removed because the bill was withdrawn.

Chapter Two – Registration requirements

  • The section on material changes has been updated throughout to reflect new guidance: Material change: applying for approval to change the registered details of an independent school 2023.

Chapter Four – Key Provisions of the Equality Act 2010

  • An extra sentence summarises the lawful exceptions to the caselaw (Al Hijrah) which is widely understood to mean that co-educational schools should educate girls and boys together.

Chapter Five – Regulated Activity

  • It is noted that a review has recommended that the definition of regulated activity should be clarified, but this has not yet occurred.
  • IICSA has also recommended that it should be possible to run barring checks for supervised volunteers. This recommendation has been accepted by the government but has not yet been progressed.
  • IICSA has also recommended that the government should takes steps to improve compliance with the duty to refer to the DBS.

Chapter Seven – The Curriculum Standard

  • An Employment Tribunal case is referenced: Randall v Trent College Case No: 2600288/2020. A school chaplain who was made redundant lost his claim of unfair dismissal and discrimination on grounds of his religion and belief. The tribunal fond that the redundancy came after he preached sermons which, at odds with the Standards, used pejorative and inflammatory language falling ‘within the realm of encouraging pupils not to respect those in the LGBT+ community’ and which ‘amounted to an intent to persuade pupils to agree with his views’.
  • References to guidance have been updated:
    • Teaching online safety in schools, 2023
    • Careers guidance and access for education and training providers Statutory guidance for governing bodies, school leaders and school staff, January 2023
  • Under careers education, the ‘Gatsby benchmarks’ are listed for ease of reference, in response to a request.

Chapter Eight – Relationships and Sex Education

  • The introduction notes the forthcoming governmental review of RSE and in particular whether materials being used are appropriate and age appropriate.
  • Some comments from IICSA have been added about the role of RSE in keeping children safe.
  • New materials are referenced, such as the DfE’s : Plan your relationships, sex and health curriculumInformation to help school leaders plan, develop and implement the new statutory curriculum.
  • New case law is included: R(Isherwood) v Welsh Ministers – The High Court rejected a claim by a group of parents that the Welsh RSE code and guidance breached their human rights as parents in so far as aspects might be at odds with their religious and philosophical beliefs. Various dicta are cited about pluralism, valuing diversity, respect and tolerance.

‘It is not a breach of A2P1 to teach children that there are persons who self-identify in a gender that is different to their biological sex at birth and that there are persons who self-identify with the T,Q, or + elements of ‘LGBTQ+’, and that they should be treated equally and with respect…’

  • The Secretary of State’s letter to schools is quoted which directed schools to allow parents to view the materials used for RSE, onsite if necessary, and avoid working with suppliers which do not permit this. Some ICO decision notes about this are sign-posted.
  • Additional materials are included in the reading list.

Chapter Nine – The Teaching Standard

  • New non-statutory guidance: Providing remote education, January 2023.
  • Randall v Trent is cited again. the views expressed by the chaplain were viewed as encouraging pupils not to respect those in the LGBT+ community.

Chapter Ten – The SMSC Standard

  • Randall v Trent is footnoted, as this standard was referenced in the case.

Chapter Eleven – The Safeguarding Standard

  • Additional people have been added to those with key roles: the head, the Filtering and Monitoring Leads (governor and member of SLT).
  • A new version of the guidance on Information Sharing is out for consultation. The draft version of the Information sharing advice for practitioners 2023 stresses that ‘If a practitioner has concerns about a child or young person’s safety or welfare, even if the practitioner considers it to be a low-level concern they should share the information with the LA children’s social care in line with local procedures’.
  • A new version of Working Together to Safeguard Children is also out for consultation. If accepted, it will see a greater emphasis on working with parents and families and delivery of some services through multi-agency teams working through ‘Family Hubs’. There is a proposal to include Education as one of the Safeguarding Partners and a suggestion that schools might be asked to play a greater role in providing ‘early help’ in future. However, even if the proposals go forward, it would be a two-year change programme starting rather late in the political cycle.
  • Updates reflect the changes to KCSIE 2023:
    • greater emphasis on children who are absent from education, particularly on repeat occasions or for prolonged periods. The relevant guidance for schools is: Working together to improve school attendance 2022 (67 pages). This covers strategies for monitoring attendance, forming strong relationships with families, listening and understanding barriers to attendance and working together to remove them. This will entail identifying and addressing any in-school issues such as SEND, bullying, well-being, medical conditions and known safeguarding issues. It may also involve working with the LA.
    • The DfE’s Summary table of responsibilities for school attendance (12 pages) explains the legal division of responsibilities between parents, schools, proprietors and LAs for different groups of children.
    • New section has been included on the new non-statutory Filtering and Monitoring
    • New section on the new non-statutory Cyber Security Standards.
    • New section on requirements when letting school premises to non-school users and the expectations of the non-statutory code of practice: Keeping children safe in out-of-school settings (56 pages)
  • Signpost added to Managing risk of radicalisation in your education setting, October 2022.
  • An additional footnote covers comments from IICSA about safeguarding policies.
  • IICSA has also recommended the introduction of mandatory reporting by persons in regulated activity in certain situations, of child sexual abuse. It has recommended that the duty be backed by criminal sanctions. The government has agreed in principle and opened a call for evidence.
  • Additional quotations from IICSA added about:
    • importance of leaders in setting culture
    • features of a poor culture
  • Additional serious case reviews have been added to the reading list, this time dealing with abuse and neglect in the home.

Chapter Twelve – Other Welfare, Health and Safety Standards

First Aid

  • The guidance has been updated to: First aid in schools, early years and further education 2022. The list of expectations under the guidance has been updated, such as that training should cover signs of mental ill-health.
  • The additional requirements for first aid under the EYFS are listed.

Chapter Thirteen – The Suitability Standard

  • Text to the effect that it is not a requirement to include the Chair of Governors on the SCR has been deleted to reflect KCSIE 2022.
  • Added clarity around the checking of volunteers.
  • Employment references – a new case is included: Smith and Another v Surridge and others (2023). Two teachers successfully sued their former employers for defamation in references. The references alluded to ‘safeguarding issues’ whereas an allegation had been made but not proven.[1] KCSIE confirms that references should not include information about concerns/allegations which are unsubstantiated, unfounded, false or malicious.
  • New guidance: Recruit teachers from overseas, 2023 – includes Ukraine.
  • Online searches – there is no prescribed way of carrying out online searches. This is left to the professional judgment of the school which should be exercised reasonably. The proposal in the draft KCSIE for 2022 that online checks should cover social media was not included in the final version and is therefore not part of the statutory guidance. Schools should inform candidates of their intention to carry out online searches.
  • Refreshing checks – If schools decide to repeat checks, they should not delete or overwrite the original information.

Chapter Sixteen – The Complaints Handling Standard

  • New section added to confirm that there is scope to use independent investigators, if wished.
  • The section on complaints against the head is expanded to cover the proprietor(s) and chair.
  • It is confirmed that reasonable adjustments should be offered for the hearing to participants with disabilities.
  • Record keeping – confirmation that the IICSA directive has been withdrawn. A footnote discusses IICSA’s recommendation that records known to relate to allegations of child abuse be retained for 75 years. The government has not adopted it but has referred instead to the Information Management Toolkit for Schools by the records management Society.
  • Vexatious complaints and correspondence – the DfE’s guidance for state schools is signposted as a helpful resource although it does not have direct application: Best practice guidance for school complaints procedures 2020.

Chapter Seventeen – The Leadership and Management Standard

  • New section included about: ‘The proprietor ensures that …’. Meeting the standards consistently should not be left to chance. Proprietors and leaders should have some methodology appropriate to their setting in place to monitor compliance. The process or tools for ‘ensuring’ are not prescribed but typically entail having a school development plan (SDP) and self-evaluation form (SEF) which are reviewed periodically and linked to the training, performance management and monitoring mentioned above. The efficacy and urgency of leadership responses to any emerging deficiencies will be very relevant to inspection judgments.
  • Under ‘Domino Standards’, new wording discusses whether failing L&M is automatic or a matter of judgment. This will always be a matter of inspection judgment which depends on the facts of the situation – such as the nature of the deficiency and whether a school routinely reflects and addresses such issues effectively between inspections, or whether leadership has already changed before the inspection.
  • The chapter concludes with a new quote from the IICSA final report about what good leadership looks like.

Chapter Twenty – What the Standards say about SEND

  • a reference has been added in the table to absence from school as a safeguarding concern, because unmet SEND can be one of the causes.

Chapter Twenty-One – What the Standards say about Mental Health issues

  • New guidance for 2023 – Summary of responsibilities where a mental health issue is affecting attendance, February 2023, explains that broadly speaking the role of school staff Is to ensure the school Is a calm, safe and supportive environment where all pupils want to be and are keen and ready to learn. They are also expected to work to ensure regular attendance for every child.[2]
  • This and ‘Working together to improve school attendance’ have been added to the reading list.

Chapter Twenty-Three – When things go wrong

  • New section added about Allegations of non-recent abuse at school. Various reported cases are cited and summarised.
  • Next steps when a school does not meet the standards – This section has been updated to reflect the DfE’s new guidance: Independent school action plan guidance, April 2023.
  • The generic suggestions of steps to take have been expanded to include, reviewing the SEF, reviewing the scheme of delegation, governance review, improving or increasing independent oversight. It cannot be assumed that addressing the non-leadership standards that have been failed will automatically be sufficient to address a consequential failing of the leadership standard. The action plan will need to expressly address the leadership and management standard too.
  • Child student visa – there is a new paragraph about this, in response to a request.

Chapter Twenty-Four  -Conclusion and future developments

  • This has been re-written. It touches on the political cycle, the various open consultations, reviews and calls for evidence.

Sarah McKimm
July 2023

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[1] Smith and Another v Surridge and others [2023]EWHC 351.

[2] Working together to improve school attendance, 2022