CHAPTER TWO – REGISTRATION REQUIREMENTS FOR INDEPENDENT SCHOOLS
Introduction and overview
All independent schools must be registered with the DfE, which, on behalf of the Secretary of State for Education, is the regulator and registration authority for independent schools. It is a common misconception that these functions are carried out by Ofsted.[1]
The registration process is prescribed by the Education and Skills Act 2008, sections 98 – 99. The detail and departmental policy are explained on gov.uk: Registration of independent schools: Departmental guidance for proprietors and prospective proprietors of independent schools in England, August 2019.
If an education provider does not meet the definition of an independent school, it cannot be registered as an independent school and does not come within the regulatory regime for independent schools.[2] If there are concerns about the education or welfare of children attending an unregistered provider, it would fall to the LA to identify the children and take action under section 436A of the Education Act 1996 and in accordance with their duties under the Children Act 1989 and 2004.[3] These issues can be relevant to questions of when the standards apply.
This chapter explains some key definitions and questions commonly arising from them, outlines the registration process and process for making material changes.
What is an independent school?
‘Independent school’ means:
‘463(1) … any school[4] 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 an EHC plan is maintained or for whom a statement is maintained under section 324, or who is looked after by a local authority (within the meaning of section 22 of the Children Act 1989 or section 74 of the Social Services and Well-being (Wales) Act 2014)
and which is not a school maintained by a local authority or a non-maintained special school.
(2) For the purposes of subsection(1)(a) and (b) it is immaterial if full-time education is also provided at the school for pupils under of over compulsory school age.’ [5] [6]
The elements of the definition are considered below.
Any school …
Definitions of what is and is not a ‘school’ are provided in section 4 of the Education Act 1996. At its simplest level, a ‘school’ is ‘an educational institution which is outside the further education and the wider higher education sector’ and provides primary education, secondary education or both. ‘Primary’ and ‘secondary’ education are in turn defined in section 2 of the Education Act 1996. A stand-alone independent nursery is not a school.[7]
In borderline cases, the range of definitions needs to be studied carefully and the best approach may be to liaise with the independent education team at the DfE: registration.enquiries@education.gov.uk .
… at which full-time education is provided
Parents are obliged to ensure their child receives ‘full-time education’ and the duty to register as a school arises when an establishment provides ‘full-time education’. There is, however, no legal definition of ‘full-time’ education. The DfE has indicated that it would consider an institution to be providing full-time education
‘…if it is intended to provide, or does provide, all, or substantially all, of a child’s education.
Relevant factors in determining whether education is full-time include:
- a) the number of hours per week that is provided – including breaks and independent study time
- b) the number of weeks in the academic term/year the education is provided
- c) the time of day it is provided
- d) whether the education provision in practice precludes the possibility that full-time education could be provided elsewhere.’[8]
The guidance provides a rule of thumb that a school will be considered to be providing full-time education if it is providing ‘more than 18 hours per week’ during the day. This is on the basis that ‘the education being provided is taking up the substantial part of the week in which it can be reasonably expected a child can be educated, and therefore indicates that the education provided is the main source of education for that child’.[9]
… for five or more pupils of compulsory school age
For the definition of compulsory school age see section 8 of the Education Act 1996.[10]
In summary, a child is of compulsory school age from the start of the school term after his fifth birthday until the last Friday in June in the school year in which he or she turns 16.
‘8(2) A person begins to be of compulsory school age –
- when he attains the age of five, if he attains that age on a prescribed day, and
- otherwise at the beginning of the prescribed day next following his attaining that age.’
The prescribed days are currently 31st August, 31st December and 31st March.[11]
‘8(3) A person ceases to be of compulsory school age at the end of the day which is the school leaving date for any calendar year –
- if he attains the age of 16 after that day but before the beginning of the school year next following
- if he attains that age on that day, or
- (unless paragraph (a) applies) if that day is the school leaving date next following his attaining that age.’
The school leaving date is the last Friday in June.[12]
This means that providers who cater only for children who are not of compulsory school age, such as private nursery schools or private sixth form colleges, do not fall within the definition. These cannot be registered as independent schools but will be required to register with Ofsted as early years settings if they cater for children under compulsory school age.[13] Registered independent schools which cater for pupils under two years of age must register both with the DfE as a school and with Ofsted as an early years setting.[14] Stand-alone private further education is unregulated.[15]
‘Compulsory school age’ should not be confused with the ‘participation age’.[16] Compulsory school age (broadly speaking ages 5-16 years) is the period for which parents are required to cause their children to receive ‘suitable education’. Thereafter, young people are under a duty to continue to participate in education or training until their 18th birthday or they attain A Levels of their equivalent,[17] whichever happens sooner.
… or one pupil of that age for whom an EHC plan is maintained
An EHC plan is an Education Health and Care plan under section 37 of the Children and Families Act 2014. LAs are under a duty to make individual plans to meet the needs of certain children. The regime is governed by the Children and Families Act 2014 and is outside the scope of this book.
… or who is looked after by a local authority …
A child is ‘looked after’ by a LA if he or she is in its care or is provided with accommodation for a continuous period of more than 24 hours by the authority under its social services functions.[18]
… and which is not a school maintained by a local authority or a non-maintained special school.
Understanding the term ‘non-maintained special school’ entails distinguishing them from other forms of independent special schools (for which see the next section below). Counterintuitively, the terms ‘non-maintained special school’ and ‘independent special school’ are not interchangeable. At one stage there were separate legal definitions of independent special school and non-maintained special school under sections 347 and 342 of the Education Act 1996, in addition to the definition of independent school in section 463.
A non-maintained special school is a school registered under section 342 of the Education Act 1996. They are regulated under the Non-Maintained Special School (England) Regulations 2015, as amended,[19] rather than the independent school standards.
What is an independent special school?
There is no legal definition of ‘independent special school’. The legal category and definition, formerly found in section 347 of the Education Act 1996, was repealed from 1 September 2009 for schools in England.[20]
Notwithstanding the lack of legal definition, ‘independent special school’ remains an administrative category for registration purposes. Independent schools are required to indicate to the DfE on first registration and annually thereafter whether they intend to admit pupils with SEN. If so, they are asked whether they will cater ‘wholly or mainly’ for children with SEN and are required to select a category of SEN. ‘Wholly or mainly’ is not defined and has not been litigated. It is essentially a process of self-identification.
This has the effect that all independent schools which are not registered under section 342 are regulated under the Education (Independent School Standards) Regulations 2014, as amended. The standards are deemed to be sufficiently broad and flexible to cover independent schools which specialise in the education of pupils with SEN.
The NMS for boarding do not apply to residential special schools. Instead, residential special schools (whether state, independent or non-maintained) must meet the NMS for Residential Special Schools. These are outside the scope of this book.
Section 41 schools
The Children and Families Act 2014 introduced a voluntary registration category of schools which enables independent and non-maintained special schools to participate in local authority SEN funding mechanisms on terms similar to those which apply to maintained schools. In exchange the schools must agree to co-operate with their LA’s arrangements for children with SEN, including being named in EHC plans at the option of the relevant LA.
Registration under section 41 of the Children and Families Act 2014 is addition to the schools’ registration under section 342 and 463 of the Education Act 1996.
Participation in section 41 cannot be assumed to be a proxy indicator of the quality of provision at independent special institutions. While the guidance is clear that schools will be removed because of an inadequate inspection or safeguarding concerns, many independent special schools have not opted into the section 41 arrangements. This may be for good reasons, such as that their pupils tend not have EHC plans because their parents expect to self-fund like parents of pupils in other independent schools, that the needs of their pupil cohort tend not to reach the legally defined thresholds for LA intervention through EHC plans, that their provision exceeds that which LAs would expect to fund, or because the schools prefer to retain control over admission decisions.
For more information and guidance see: Guidance for Independent special institutions applying for inclusion on the Secretary of State approved list – May 2023.
How to find out the registration category of a school (non-maintained/independent special etc)
Lists of independent special schools and colleges, including their registration category, are published on gov.uk.[21] The registration category is also listed against each school on the government’s online database of schools, ‘Get Information About Schools’ (GIAS), although because the lists are ‘live’ the information on the two lists is not always completely aligned.
Who is the proprietor?
The proprietor of a school is ‘the person or body of persons responsible for the management of the school…(so that in relation to a community, foundation, or voluntary, community or foundation special school … it means the governing body)’.[22] This definition is expressed to be ‘unless the context otherwise requires’.
Notably, the definition of proprietor is not expressed in terms of ownership but of responsibility for management. The examples given in the Education Act 1996 distinguish between the owner (who might be, for example, the local authority or a foundation) and the governing body. It is not clear whether this distinction works in all contexts when applied to independent schools. The ‘local governing bodies’ used by some school groups may be set up as advisory only, without legal responsibilities. In other examples, it may be the same individuals on the management board and the ownership board making it difficult to draw a distinction.
The proprietor must be identified to the DfE on application to register the school. They are then registered transparently on GIAS as a matter of public record. The registered body/person is then treated as proprietor by the DfE/inspectorates. In complex cases, either before first registration or when there is a change of proprietor, the pragmatic way forward is for the school or their advisors to liaise with the DfE to ensure that the correct people or body are/is registered on GIAS before it becomes an issue during an inspection.
Application process
In outline:
- An application must be made to the DfE and approved before the school commences operation
- The application is submitted using the various online forms provided on Gov.uk: Register an Independent school: application guidance and checklist
- It must be accompanied by supporting documents to show how the proposed school would meet the standards, as set out in regulations made under the section 94 of the Education and Skills Act 2008.[23] All documentation must be available in English to facilitate inspection[24]
- It must include information about
- the age range, sex and maximum number of students
- the curriculum policy
- whether the school will provide accommodation for pupils
- whether the school will be specially organised to provide for students with special educational needs.
- The DfE commissions Ofsted to carry out a pre-registration inspection[25]
- Ofsted reports to the DfE on the extent to which the standards are likely to be met by the new school once registered
- The Secretary of State decides whether the standards are likely to be met by the proposed school once registered, taking into account
- the Ofsted report, and
- any other evidence relating to the standards
- The proprietor is informed of the decision by the DFE
- If the Secretary of State decides that the standards are likely to be met, the Secretary of State must register the school[26]
Making changes
Registered schools must obtain permission from the DfE before making certain material changes. ‘Material changes’ are defined for this purpose by section 162 of the Education Act 2002, which also governs the process. (The similar provisions included in sections 101-105 of the Education and Skills Act 2008 have not yet been brought into force.)
The following are material changes:
- A change of proprietor
- A change of school address
- A change to the age range of pupils – including nursery and sixth form
- A change to the maximum number of pupils
- A change to whether the school is for male or female pupils or both
- Adding or removing boarding accommodation for pupils
- Adding or removing provision for pupils with special educational needs
Changes to a school’s religious ethos or religious character do not fall within these provisions, but consideration should be given to whether a change to these would entail a change to the school’s foundational documents, such as the trust deed of a charity.[27]
The DfE guidance: Material change: applying for approval to change the registered details of an independent school, January 2023 provides extensive information about how to apply for different types of material change, the range of supporting documentation required for each (as a minimum), and also how to deal with multiple changes. There is also a little more guidance in: Registration of independent schools: Departmental guidance for proprietors and prospective proprietors of independent schools in England.
Essentially, the school emails the DfE’s independent schools team attaching the relevant documentation and follows any instructions provided. The DfE may request further information and may commission a ‘material change inspection’ from the school’s usual inspectorate for advice about whether the school is likely to continue to meet ‘any relevant standard’ if the change were to go ahead. See Chapter Three and Chapter Twenty-Four for more about inspection.
A material change will not usually be approved at a time when a school is not meeting the standards relevant to the proposed change.[28] Schools should therefore take every care to ensure they are meeting the standards before applying for a material change. This is particularly important in relation to safeguarding and welfare standards, such as anti-bullying arrangements. risk assessment or supervision, which may potentially be relevant to a wide range of changes.
The guidance advises schools to allow six months from when they have provided all the information for their application to be determined. The requested change must not be made until written approval has been received. The Secretary of State may decide to deregister an independent school here there has been an unapproved material change. Decisions about registration and material changes can be appealed to the First Tier Tribunal.
See also Part E of: Registration of independent schools Departmental guidance for proprietors and prospective proprietors of independent schools in England August 2019
and: Religious character designation: guide to applying
Conclusion
The registration process for independent schools is simple and accessible. If in doubt, contact can be made with the DfE’s independent schools team via: IndependentSchool.Applications@education.gov.uk or registration.enquiries@education.gov.uk. At the outset, schools must indicate how they will meet the standards and both pre-registration and ever after their statutory policies and the way they implement them are inspected to ensure they exercise their independence within the expectations for their type of setting. An understanding of the standards is therefore essential.
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[1] HM Chief Inspector, operating through Ofsted, is the regulator of childcare. See the Childcare Act 2006.
[2] See: Unregistered independent schools and out of school settings Departmental advice for collaborative working between the Department for Education, Ofsted and local authorities March 2018. The abandoned Schools Bill 2022 was to have changed the law to bring more settings within the registration requirements and regulatory regime for schools and extended the investigatory powers of OFSTED and the DfE in relation to unregistered settings.
[3] For more about LA duties and Attendance Orders see Chapter II, Part VI of the Education Act 1996 and the DfE publication: Children missing education: statutory guidance for local authorities, September 2016.
[4] The chain of definitions can give rise to some conceptual difficulties at the margins. The DfE has consulted on proposals to address these. https://consult.
education.gov.uk/safeguarding-in-schools-team/regulating-independent-education-institutions/supporting_documents/Regulating%20IEI%20
Consultation%202020%20Relaunch.pdf .
[5] Section 463 of the Education Act 1996 as substituted by section 172 Education Act 2002 and further amended by the Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 and the Children and Families Act 2014.
[6] The parts of section 92 Education and Skills Act 2008 which relate to part-time institutions have not yet been brought into force. Section 168(3) Education and Skills Act 2008 applies the definitions of the Education Act 1996 to the 2008 Act. See also section 138 for interpretation.
[7] Section 4(1A) Education Act 1996.
[8] Registration of independent schools: departmental guidance for proprietors and prospective proprietors of independent schools in England, DfE guidance, p. 6.
[9] Ibid. The abandoned Schools Bill set out factors to be taken into account when deciding whether a setting is providing ‘full-time’ education: numbers of hours, weeks and time of day of attendance.
[10] Education Act 1996 section 8(1). The definition applies across all enactments.
[11] The Education (Start of Compulsory School Age) Order 1998.
[12] The Education (School Leaving Date) Order 1997.
[13] See also Education Act 1996 section 4(1A) and section 4(3) and (4). Some colleges which are within the Further or Higher Education sectors are not ‘schools’ and therefore cannot be registered as independent schools even if they have pupils of compulsory school age.
[14] See the Ofsted publication: Registering school-based provision, February 2017, for more information about when dual registration is required.
[15] Private further education providers which sponsor students from overseas must meet Home Office/UKVI requirements in that connection. ISI provides non-statutory ‘educational oversight’ for those colleges.
[16] See Chapter 1, Part 1 of the Education and Skills Act 2008, and also the DfE publication: Participation of young people in education, employment or training. Statutory guidance for local authorities, September 2016
[17] Specified as ‘a level 3 qualification’ – section 1(c) Education and Skills Act 2008.
[18] Section 22 of the Children Act 1989 and section 74 of the Social Services and Well-being (Wales) Act 2014.
[19] See the DfE publication: The Non-Maintained Special Schools (England) Regulations 2015: Departmental advice for non-maintained special schools, August 2015.
[20] Section 146 Education and Skills Act 2008. Regulation 3 of the Education and Skills Act 2008 (commencement no. 3) Order 2009.
[21] https://www.gov.uk/government/publications/independent-special-schools-and-colleges .
[22] Section 579(1) Education Act 1996.
[23] For full details of documentation required see p. 9 of Registration of independent schools Departmental guidance for proprietors and prospective proprietors of independent schools in England August 2019 .
[24] P. 6 of https://assets.publishing.service.gov.uk/government/uploads/system/
uploads/attachment_data/file/800615/Independent_School_Standards-_Guidance_070519.pdf .
[25] It is always Ofsted. Independent inspectorates do not carry out pre-registration inspections.
[26] Section 95 Education and Skills Act 2008.
[27] Such changes are outside the scope of this text.
[28] See section 162(6) and (7), especially 162(6)(b).