On November 8th 2016 the BBC reported that Sir Michael Wilshaw – soon to leave his post as head of Ofsted – had concerns about “illegal schools” catering for vulnerable excluded children, using poorly qualified staff. The Guardian link is here.
The report went on to say that pupils with behaviour problems are too often “offloaded” into illegal school and that Ofsted inspectors investigated 162 suspected illegal schools last year.
Schools have the power to arrange alternative provision for a pupil at risk of exclusion in order to improve the pupil’s behaviour (sometimes called “directing off-site”.) It is mentioned in paragraph 14 of the current Schools Exclusion Guidance.
The current rules for off-site provision have been in place since 2010. They were introduced by enacting a new section 29A (click on drop down box for “prospective” legislation) into the Education Act 2002 which had been on the books since 2008. The first set of regulations covering off-site provision were introduced in 2010 but were modified in 2012. (The current version of the Alternative Provision Guidance dates from 2013 (updated June 2016) and takes account of the revised regulations.)
Read more here
Sir Michael also discussed “ultra-orthodox Jewish, Muslim and Christian education centres” adding “it seems bizarre to me that a parent can take a child out of a school and not register them with the local authority.”
There are a number of different issues here.
- Regulating Alternative Provision
- Illegal Schools
- Tracking Children Coming Out Of School
- Regulating Part Time Provision
Regulating Alternative Provision
Over the past 3 years Ofsted has been looking at alternative provision which is where a pupil goes off-site as part of their regular timetable, and the activity is not led by school staff. Ofsted says “schools can use such provision to try to prevent exclusions, or to re-engage pupils in their education.” The latest findings were published on February 9th 2016.
Alternative provision remains a largely uninspected and unregulated sector. There is no requirement for the majority of alternative providers to register with any official body and no formal arrangements to evaluate their quality.
According to the February document, Ofsted apparently referred 17 providers to the DfE following survey visits, 14 of which the DfE judged should have been registered as independent schools or pupil referral units. These have all since closed or registered.
Alternative providers that offer only part-time education and those that provide full-time education to very small numbers of pupils do not have to be registered.
As with independent schools, providers only have to register if they are full time
Ofsted says “this remains a concern and means that pupils can spend all or the majority of their week at a placement that receives no external inspection or regulation.”
Ofsted has been lobbying the Department for Education to extend registration and inspection to any AP setting providing more than one day’s education a week.
Alternative providers may be part of a chain or a very small one-off establishments, and can be public, voluntary or private sector.
Ofsted wants the Government to issue clear guidance to schools about checking the safety and suitability of staff working in unregistered alternative provision, saying that schools sometimes delegated too much responsibility for their pupils to another organisation without ensuring that their own standards were met.
A provider only has to be registered as an independent school if it caters full-time for five or more pupils of compulsory school age; or one pupil who is looked after or has a statement of special educational needs.
“Illegal schools” are schools which meet the criteria for registering as independent schools but where the proprietors have opted NOT to register.
The schools are not necessarily hidden away, but there are many obstacles to getting them closed down
As with alternative providers, schools only have to register if they are full time
There is no legal definition of full time although the Government has given 18 hours a week as a guide.
Much of the investigation of whether a school is full time (and therefore subject to registration and inspection) hinges on the timetable for an individual child, and not on how many hours the school is open.
Local councils have no power in law to inspect registers or check individual pupils’ timetables if the school won’t co-operate. The only body which can do this is Ofsted under section 97 powers. This has not prevented Ofsted from blaming councils for not doing enough.
Tracking Children Coming Out Of School
Sir Michael appears not to acknowledge this and is still saying the same things as he used to say before these regulations were introduced. I would expect the Department for Education to be making this point.
Last year Ofsted told the Government that when pupils left school at non-standard transition points, there was often no record of their destination, and drew attention to poor communication and coordination between schools and LAs on individual cases, raising concerns about children potentially being exposed to the risk of harm, exploitation or radicalisation.
Under the previous Pupil Registration Regulations, schools could lawfully delete a pupil’s name from the register under fifteen grounds but schools were only required to inform their LA when they are about to remove a pupil’s name under five of the fifteen grounds.
From September 1st 2016, schools (including independent schools) are required to:
- inform their LA when they are about to delete a pupil’s name from the admission register under all fifteen grounds
- record details of the pupil’s residence, the name of the person with whom they will reside, the date from which they will reside there, and the name of the destination school (where they can reasonably obtain this information)
- inform their LA of the pupil’s destination school and home address if the pupil is moving to a new school
- provide information to their LA when registering new pupils within five days, including the pupil’s address and previous school (where they can reasonably obtain this information)
Schools and local authorities will also have to co-operate in tracking children coming out of school, which was not previously required.
Regulating Part Time Provision
The Government started talking in mid-2015 about regulating “out of school settings” and put out a public call for views at the end of the year saying that where a child received 6 hours instruction or training a week in a particular setting that this should count as “intensive education”.
A briefing note on the proposed Counter Extremism and Safeguarding Bill in the Queen’s Speech, May 2016 indicated that “legislation will be introduced to prevent radicalisation, tackle extremism in all its forms, and promote community integration” and that measures would be introduced for the purpose of “safeguarding children from extremist adults, by taking powers to intervene in intensive unregulated education settings which teach hate and drive communities apart”
“Following our call for evidence, we have been considering the range of views expressed in response and how best to take the policy forward. We will set out next steps in due course, and will continue to work closely with faith communities and other interested parties like the police, educational establishments and local authorities, to ensure that the proposed system of regulation is targeted, proportionate and focuses firmly on those settings which are failing to safeguard and promote children’s wellbeing.” Joint Committee Human Rights, Government Response October 2016