Note to DfES and Cabinet Office re Consultation

We, the teachers at Tyndale Academy (E78NL) take this opportunity to point out what we take to be fundamental flaws in the DfES Consultation, "Definition of Full-Time Education" and to ask that the Consultation be declared void. It would then be open to the Department to reissue the paper and reintroduce the process in a manner which complies adequately with the Cabinet Office Code of Practice for Consultations.Criteria 3.1 Use plain language: avoid jargon and only use technical terms where absolutely necessary. A consultation should be as accessible as possible. Explain complicated concepts as clearly as possible and, where there are technical terms, use a glossary.

We feel that at several points the third criterion of the Code has been breached particularly as the grammar at several points is sufficiently unclear as to render any resultant responses of doubtful value. For example, at one point the terms "a major part" and "the major part" are used as if they mean the same thing. Additionally, the term "the major part" has not been explained and yet consultees are being asked to pronounce upon whether a school which provides the major part of the child's education ought to be required to register.

Criteria 3.4 Efforts should be made to bring the consultation to the attention of all interested parties. As well as using the internet you should consider publicising the consultation in ways most appropriate for the groups you wish to reach.
Any Guidance which is issued as a result of the Consultation will apply to all Local Authorities in England and Wales. Where it appears to them that a child is not receiving a full time and efficient education the LA has a duty to investigate the matter. It is this duty which means that LA's should have been identified initially as interested parties and should have been consulted along with other such interested parties.

The consultation specifically refers to children educated otherwise than at school and the DfES particularly notified the "Home Education Sector" of the existence of the documents and invited responses. It is our view that the Guidance will clearly profoundly affect any LA which is involved in inspecting provision of the type envisaged in the Consultation document. At present there are only two classes of children; those educated "at school" and those educated "otherwise than at school". It would appear that flexi-schooled children are either essentially "schooled" or receiving their education otherwise than at school. However, the arrangements proposed in this Consultation Paper will have the effect of creating a third class of children in whom LAs may have especial interest. The first group will be children receiving a full-time education at school; the second, those receiving their full-time education otherwise than at school; and the third, those receiving their full-time education by means of a combination of school and education otherwise than at school (this is neither essentially or even simply "education otherwise" nor is it essentially education "at school"). The implications of this third class for LA's is far reaching and significant. LA's will no longer be able to have a single regime for judging provision of full-time education provided otherwise than at school. Before the proposed changes provision for children educated "otherwise" could be adjudged to be adequate or inadequate on the basis of evidence which the LA inspectors gather as a result of enquiries made of the parents responsible. If the proposed changes are enacted the LA will no longer be able to make a simple determination as to whether the education provided otherwise than at school is efficient or adequate. They will only be able to comment on the part of the education for which the parent retains full responsibility; that is, the education otherwise component. Any component of the education provided at school will not be subject to LA inspection or scrutiny as it lies outside of the scope of the LA responsibilities to carry out such inspection. I am sure you can see that provision that might under normal circumstances be classed as inadequate due to lack of breadth of curriculum can now no longer be judged in this way unless the parent has retained responsibility for that particular area. If that curriculum area is the responsibility of the school (as per the consultation suggestion) then the LA cannot pass judgement on it and will have to put in place new procedures for making different types of inspection regimes and determinations for those educating wholly "otherwise than at school" and for those educating partly otherwise and partly at school.

It is a particularly important omission that LAs were not on the original list of consultees and indeed were not specifically advised of the Consultation until very late in the process. They were given nothing like the 12 weeks to respond that other consultees had. Indeed they were informed by bulletin approximately a month before the end of the process. The fact that the Department saw fit to contact them even at that late stage shows that their error was significant and that they could not simply rely on LAs seeing it on the DfES website.

We feel that in principle the same error was committed in relation to OFSTED, another principle stakeholder which was not identified or notified of the Consultation. Whereas OFSTED have no duties in respect of those educating otherwise than at school they do have the duty to inspect schools which may be providing part time education for children educated at school. The Department's proposal will have the effect of putting a new duty on OFSTED in that they will be asked to inspect and adjudicate on schools which provide education for such children. That is to say they will have the duty of advising the DfES on the matter of whether an institution providing less than 20 hours per week is registrable as an Independent School. Again, OFSTED was not on the list of principle stakeholders when the Document was sent out to other stakeholders who were informed personally on 30 November 2006. We believe these omissions to be inexcusable.

We feel that the failure to properly consult the LAs and OFSTED is a clear breach of the Cabinet Office Guidelines for Consultations and means that the process is not merely technically flawed but rather, fundamentally flawed.

To quote from a letter issued by Lord Adonis on another Consultation (regarding Elective Home Education) "The consultation will adhere to the Cabinet Office code of practice on consultations and the usual lines of Ministerial accountability will apply to this, as with all work undertaken by the Department for Education and Skills." (January 2007)

It seems that changes of the sort planned by the DfES will necessitate considerable revision of LA and OFSTED procedures and guidance to their respective Inspectors. For this reason it seems to us that these bodies ought to have been specifically notified of these proposed changes and of the Consultation. They will, after all, bear the greatest administrative burden of any changes. I am aware that at some point the LAs were eventually informed. However, because the consultation process was already over half way complete it was surely unfair and inadequate to give the LAs such a limited opportunity to give a considered response to the proposals. If this consultation is about changing patterns of educational provision rather than about a single establishment then the Department ought to expect LAs to respond.

Criteria 1.3 Informal consultation with these stakeholders should be conducted prior to the written consultation period...
We submit that our establishment, Tyndale Academy, which DfES officials and a Minister have said in writing are the principal cause of the need to change the Guidance, ought to have been involved in this process. Indeed we have specifically asked in writing to put our concerns to Departmental Officials to no avail. Perhaps the proposed changes would not have been necessary if we had been given this opportunity. As well as Tyndale, we feel that LAs should certainly have been part of this pre-consultation process as they would best be able to advise the DfES as to the practicability and implications of proposed changes. The result might have been a clearer proposed definition rather than the inadequate set of proposals which is less clear than what currently is in place.

Criteria 1.8 Specifically mentions that "some stakeholders... may be particularly difficult to reach."
It goes on to say that Departments ought nevertheless to pro actively engage. We submit that LAs and OFSTED are not "stakeholders who are particularly difficult to reach" and that they ought to have been central to the "informal consultation process prior to the written consultation period". As far as we are aware only Newham LA were informed of a consultation that potentially affects every LA in the country.

We are aware that Ministers are not at all obliged to consult on such matters but where they do they are bound to follow the Cabinet Office Guidance for Consultations or to make clear why they are deviating from them. We repeat that LAs and OFSTED are major stakeholders who ought to have been properly and fully consulted and specifically sought out.

6.2 Ensure that a Regulatory Impact Assessment (RIA) is attached, where required, highlighting the costs, benefits and risks of the proposal. Respondents should be encouraged to comment on and challenge the assumptions in the RIA where one is included.

6.4 Consider any unintended consequences of the proposal and ask respondents to highlight these in their response.
We believe we have indicated above that there are significant Regulatory Impacts which these proposals would have, at the least for LAs and OFSTED, let alone for parents and schools, and that these have not been outlined for consultees to consider carefully and to respond appropriately and in an informed manner. These Regulatory Impacts have unintended consequences in terms of significant resource implications for LAs and OFSTED.

6.3 Consider alternatives to regulations, such as voluntary codes, and encourage respondents to suggest alternatives when responding to the consultation exercise.

The DfES has not put down alternatives to regulations on this matter, neither have they encouraged respondents to suggest alternatives. They have laid down a set of proposals in a "take it or leave it" fashion.

Most importantly there is no reason given as to why the Department should want to change the Guidance to encompass establishments that presently have no requirement to register. The will of Parliament on this matter is quite clear and it is that only educational establishments of five or more children of compulsory school age which are not maintained by the state and which are providing full time education etc. should have to register as Independent Schools. It is not for civil servants or even ministers to put their intentions above those of the will of Parliament. Such an eventuality could give rise to grounds for a judicial review of any new Guidance. To say that they will treat an establishment as though it were full-time runs counter to the express will of Parliament that schools are full-time establishments.

For these reasons we ask the Department to end the Consultation process. If the DfES feels the need to reissue it then they should comply fully with the Cabinet Office Code of Practice.

DfES Consultation: Question 3

3 Do you agree that where there is uncertainty as to whether a school is providing the major part of a child's education we should rely on Ofsted's opinions?

No.

The DfES is on record as saying that there has been no uncertainty in the past on this question and that there have been no difficulties in prosecuting proprietors of unregistered schools. "Jacqui Smith: No proprietors have been prosecuted for operating unregistered schools either since, or prior to, the implementation of the Education Act 2002. The current regulatory framework has not prevented my Department from prosecuting any case under section 159 of the Education Act 2002. " (18 April 2006 -Col 160W) . If there have been no problems during the past 20 years then it is difficult to see why the DfES feels that changing patterns of educational provision should entail uncertainty.

38. The DfES does not have the power to require educational providers providing the ‘major part’ of a child’s education to register as an independent school as this circumvents clear statutory provision;· The Circular could be judicially reviewed; or a subsequent prosecution resisted on grounds that the primary offence is section 463 of the Education Act 1996;
Counsel for Tyndale Academy, ibid.

If the proposed guidance is clear then there is no need to rely on the advice of OFSTED. Their only role with regard to the subject matter of the present consultation is to visit institutions which Her Majesty’s Chief Inspector of Schools has reasonable cause to believe may be unregistered schools. In order to enter such premises HMI already have the necessary legal powers and the sanction of the criminal law. The law presently states that this is the only reason for HMI to demand such entry (Section 159 Education Act 2002). If the proposed guidance comes into force HMI will need new statutory powers of entry, as those granted in the Education Act 2002 do not give the right of entry to determine whether a school is providing the major part of a child’s education. A school could properly refuse HMI entry if they requested it on the basis of the new guidance.Even if entry were somehow gained on the basis of a reasonable belief of the running of an unregistered school, OFSTED would have no power to make a determination on the relative merits of the provisions made by school and parent. They would be able to see the school’s provision and could comment on it as a partial provision, but they would have absolutely no power to inspect the parent's provision away from the school. This being the case they could not make a determination as to whether the parent is the major provider or whether the school is the major provider. It is for the Local Authority to determine whether the overall provision of the child is efficient and suitable to his age, aptitude and ability etc., not OFSTED (Sections 437 to 443 of the Education Act 1996). Furthermore, the LA only has a responsibility to do this "where it appears" that a child is not receiving what the law says the parent must provide.If the Guidance and Primary legislation is left as it is there would be no need for the DfES to rely on subjective assessments of HMI about major parts or minor parts, because the determination could be made on the basis of the number of children taught, their ages and the number of hours of taught time provided etc. Furthermore our Counsel advises us:

28. The use of Circular cannot thus change the law or invoke a new test of full time education. This can only be done by means of primary legislation A circular can give an understanding of the law by the DfES or how they are to exercise their executive discretion.
Counsel for Tyndale Academy, ibid

OFSTED already has clear advice on the matter of full time education in its ROIEJ. where it states: "The guidelines for maintained schools also include minimum amounts of taught time per week for different key stages, from 21 hours for Key Stage 1 to 25 hours for Key Stage 4. While these may be recommended to independent schools they cannot be insisted upon. However, in schools where there is less than about 18 hours of taught time a week, this regulation will not be met."

In laying down this guidance, even though it falls below the Circular 7/90 figures, OFSTED is saying that the determination of full time education is one which is made on the basis of hours alone. This indicates that it is entirely possible and reasonable for the DfES to retain the "hours based"criteria for adjudging a school as full time. OFSTED may have been incorrect to use figures below those in Circular 7/90 but they at least are dealing with objective figures rather than subjective judgements about major and minor parts of a child's education.

DfES Consultation: Question 2

21 February 2007

2 Do you agree that where schools are providing fewer than 20 hours per week but the education provided constitutes the major part of that child's education, they should be required to register with the Department for Education and Skills?

No.

Nowhere is the Consultation Paper more confusing and misleading than in its use of the term "the major part of that child’s education" in this question. This phrase is so imprecise as to make it extremely difficult to respond with any confidence that the term will be understood in the same way by respondents and the DfES.

The term "the major part" could reasonably be taken to mean over 50% of the child’s educational provision. If this is the case and the upper limit offered is 20 hours per week (as anything above this is automatically deemed to be full time) then any provider offering education for over 10 hours per week is providing the major part of "that child’s education". In the absence of clear criteria which would indicate when an offence has taken place we believe that the Court will require proof of intent to act unlawfully. As our Counsel says:

22. Precision in the law is not always attainable 13; the Court is required to determine full time education; likewise Parliament would be entitled to pass primary legislation that independent schools that provide the ‘major part of that child’s education’ are required to be registered. It is unlikely that such a provision would be vague per se, but the Courts would require the component of mens rea to be satisfied; namely that an individual intended to operate a school in breach of the law: Sweet v Parsley 14.
Counsel for Tyndale Academy, ibid

The DfES ought to have made clear why it has not simply defined "major part" in terms of hours. In all other cases where the term "full-time education" is defined by the Department it is defined in terms of hours (and with a high degree of precision). In the case of Pupil Referral Units, children educated in them are entitled to a full time equivalent of 21, 23.5 or 24 hours per week depending on age. (Circular 11/99 Social Inclusion: Pupil Support). Young people in receipt of Educational Maintenance Allowance must be in full-time education which is defined as 16 hours per week (Section 518 Education Act 1996). Overseas students must be enrolled on courses of 15 hours or more per week to qualify for a student visa (Part 3 Sec 57, Immigration Act 1971). For teachers' employment purposes, full-time means 1265 hours per year. In the light of these it is inexplicable and seems arbitrary for the Department to depart from its normal practice by now calculating full-time by use of the term "the major part". At the very least some explanation as to why this departure was thought necessary ought to have been given in the Consultation Document. Such an explanation is clearly required if the DfES is asking respondents to intelligently comment on whether a particular number of hours should be considered as full-time.

Because the term "the major part of that child’s education" is not defined by any lower limit it could reasonably be taken to mean that if the child is receiving a minimal number of hours tuition at home or school they could be regarded as receiving the major part of their education from any educational project or tuition group they attend if a greater number hours are spent there. It is quite possible that a child who has been excluded from a maintained or independent school and is being reintroduced to regular attendance at school through flexi-schooling, is in the meantime receiving the major part of their education at that project even if they are actually only in attendance there for 10 hours a week. A project with five or more such children would, under these regulations, be deemed to be providing the major part of the child’s education and so would have to register as a school even if it provided less than full-time education. Indeed if the child attended school just one day per week, the major part of that child’s education could be provided elsewhere and could be even less than 10 hours. The foolishness of this position is highlighted by the fact that an Educational Project or Tuition Group would have to register as a school if just one of its children was a "Looked After Child" or had a Statement of Special Educational Need. It is to be borne in mind that there is plenty of potential for many children to be in such a position, particularly if the provision made by such a Project is immediately after normal school hours.

In the London Borough of Newham, one such after-school education provision (Eastside Young Leaders Academy) "accepts boys who have been referred by their school or parents... Boys attend the academy for 16 hours per week in the school term and for full days during the school holidays." (Newham News 03/07). It could reasonably be argued that as the children in attendance are disaffected and at risk of permanent exclusion at school, they are receiving "the major part" of their education from the project in question even if they are registered at a school. There are plans to open four other such projects in other London boroughs. Whether these are providing a major part or the major part they are certainly providing 16 hours per week of education for 5 or more pupils of compulsory school age.

In the absence of a proper definition of the term "major part" there is bound to be much uncertainty and confusion about what "the major part" of a child’s education is. By contrast, the present position (as expressed in Circular 7/90) is very clear: if five or more children of compulsory school age are receiving more than 21 hours etc. of taught time in secular instruction in an educational institution then that institution must register as a school.

24. The use of the term ‘a’ or ‘the’ ‘major’ part of a child’s education would appear to be in breach the principle of legal certainty; this could mean anything from 51% to 99% of a child’s education; the quantum of teaching hours varying with the age of the child. Furthermore, the State would have considerable problems pursuant to Article 8 of the Convention (right to privacy) in intruding into private upbringing of children.
Counsel for Tyndale Academy, ibid

The section of the Consultation headed The Proposals (3.1) is the cause of further confusion where it uses the term "a major part" rather than the term "the major part" which is used throughout the rest of the document. By introducing the term "a major part" the reader is being asked to consider that there may be more than one major element to a child's education. It may be that several tutors or projects are providing significant parts of the child's education and that the parents are also providing a significant part. This is by no means an unreasonable scenario when it is considered that many home educating parents may use such an approach to ensure that expertise which they don't possess is available to their children. They may also wish for their children's social needs to be catered for in a group setting. Each of the providers employed by the parent could be deemed to be providing "a major part" as per section 3.1 of the Consultation Document. Including this term in the proposals has the potential to create confusion when the phrase "the major part" is used in the actual questions.

Another example of provision which could fall under the term "a major part" is that made by Mosque Schools. If an older child is attending one of these schools for two hours an evening and receiving two hours of supervised tuition at home from his parents then the Mosque School will be deemed to be providing a major part of the child’s education and so be registrable as a school. It is not at all unusual for Mosques to operate their schools for 15 hours per week and there are many such schools which, while not providing a broad and balanced curriculum, are providing "a major part" of the child’s education.

When this question and the Department’s Proposals in 3.1 are considered together it is clear that several new duties are being imposed on parents who educate their children by a mix of "school-based" (less than 20 hours) and home or other provision. In the section of the Consultation Document headed Proposals 3.1 it is proposed to impose on parents and schools the duty "to have a clear understanding of their roles and responsibilities" and the additional duty "to be able to describe and evidence the part that each plays in contributing to a broad and balanced curriculum". While these are entirely reasonable propositions, which it is to be expected that parents would ordinarily work by, they must not be duties placed on the parents by the proposed Guidance. The effect of such new guidance would be that the Department was making a statement of how it interprets the law. They would in effect be instituting duties which, if the parents failed to carry out, would render the parents liable for prosecution or some other action. Such a duty imposed by the guidance (were that possible) is both unnecessary and unreasonable. For example the parent may not himself be able to describe the detailed provision a tutor employed on his behalf is making. The Department appears to have ignored the fact that the only duty imposed by the 1996 Education Act in this regard is for the parent to secure an efficient education suitable to the age, aptitude and ability etc. of the child. This may be done at school or otherwise. The Department does not have the power to define how that efficient education is delivered any more than it has the power to determine at what time of day it must be given. The law simply gives the Local Authority the duty and power to make the determination as to whether it has been achieved. If Regulations or Primary Legislation were being used to achieve this aim then the Secretary of State would have the power to impose these new duties but in the absence of these it may not be done.

The important question of what would happen if the parent or school is adjudged to be failing to provide what they have "signed up to" in any such agreement is not addressed in the Document. It is entirely possible that a Local Authority may satisfy itself that, despite any shortcomings on the part of the parent or the school, the child is nonetheless receiving an efficient education from the other or in the round. Nevertheless, if such a school is operating for less than 20 hours per week and is providing the minor part (less than 50%) of the child's education it has no power to prevent a third party namely the parent from changing their own provision and so rendering the school's provision the major part (more than 50%). So although the LA may adjudge the provision for the child overall to be satisfactory in terms of outcomes, the Department is proposing that each party's provision in terms of hours or share should be determinative of whether the school is registrable. This cannot be a reasonable course to take and is not in the best interests of the children concerned. The DfES is thus proposing that a school is to be defined by reference to whether it operates for less than 20 hours per week but provides the major part of the child’s education. But it cannot be sensible to define a school by reference to the provision made by parents in a setting outside the school. It may be that the parent is able at one time to provide the major part of their child’s education whereas a change of circumstances will at another time mean he is providing the minor part. Will the status of a school as a major provider depend upon the changing provision of the individual parents? It needs to be remembered that the small schools, with as few as five children, envisaged by the law will experience great uncertainty if this new definition is adopted.

23. Additionally, the input of parents will vary and the invoking of criminal sanction will, thus, be caused by acts of third parties over which Tyndale Academy has no control. Breaches of a law by third parties (parents failing to provide home schooling) would be questions for the determination of the adequacy of the mens rea.

Counsel for Tyndale Academy, ibid

The final point at issue in the question is that posed by the term "that child’s education". This is entirely confusing as "that child" could reasonably have several meanings. If there are five or more children receiving the major part of their education from the "school" and they are referred to as "those children's" then this statement makes some sense. But the question is here put in the singular as if any child who had the major part/a major part of their education provided by the school rendered that school registrable. To make such a judgement based on the subjective opinion of OFSTED working with these guidelines and determining what is the major part of "that child's education" cannot be a safe or sensible position.It must be reiterated at this point that the present guidance which has met with universal acceptance is far more objective and fit for HMI, the DfES and the Courts to pronounce upon than the subjective wording of the proposed guidance.

DfES Consultation: Question 1

1 Do you agree that where a school provides more than 20 hours of education per week, it should be treated as providing full time education and should be required to register with the Department for Education and Skills?


No.

The existing guidelines which define full time education, while not mandatory, have served the Department well for the past 16 years. They are carefully framed, universally accepted, have stood the test of time and are thoroughly fit for the purpose of settling the question of what the term "full time" means in the context of the registration of Independent Schools. Parliament has not laid down a statutory definition of "full-time education" and it is not for the DfES to do so unless that power has been granted in statute. The definition used up to this point and accepted in custom and practice by Parliament, the DfES, Local Authorities, Maintained and Independent Schools, OFSTED and all other relevant bodies has been based on DfES Circular 7/90 which is guidance laying out weekly hours, yearly sessions and what may be considered as "taught time".
The DfES has consistently made reference to Circular 7/90 in defining "full time education" over the last 16 years even though it has freely acknowledged that it is only guidance and that there is no statutory definition of the term.
This consistent use of the circular is evidenced in several contexts. Firstly, it is invariably quoted by the Department in advice offered to Ministers answering Parliamentary Questions on the matter of full-time education (e.g. 16/10/02: Column 875W). Secondly, when answering inquiries from members of the public on this matter the Department has done so in terms of DfES Circular 7/90 (DfES e-mail to S. Flanagan 15/12/04; DfES letter to Tyndale Academy 30/07/03). Thirdly, the Department has issued a clear and workable definition of "full time education" based on the circular in its Guidance to Proprietors of Independent Schools. Our Counsel in his opinion: In the Matter of the Department for Education and Skills; Consultation Definition of ‘full time education’ In Independent Schools confirms this position when he points out:

11. This benchmark is repeated in Departmental Guidance on Management of the School Day, and in DfES Guidance 0432/2003 on Ensuring Regular School Attendance. Of particular importance is the A Guide for Proprietors on the Statutory Requirement for Registration which re-states the time periods of Circular 7/90 as the criteria for registration.
Counsel for Tyndale Academy, ibid.

In this publication 21 hours per week for 190 days per year is laid down as the absolute minimum figure applicable to maintained schools and, although it is not mandatory for Independent Schools, they "are expected to follow the guidelines for maintained schools". The Guidance goes on to say that "DfES Circular 7/90 sets out the following suggested minimum weekly teaching times as a guide for schools: age 5 – 7, 21 hours; age 8 – 11, 23.5 hours; age 12 -16, 24 hours".

The Consultation Document shows many inadequacies, but in the context of this question a particularly striking one is its lack of any reference to yearly figures. It cannot be fair or reasonable to define full-time education over an indeterminately short period. The Guidance to Proprietors document refers to a period of a year when it says: "As a general guide pupils would normally be expected to attend school for a similar period as that specified for maintained schools i.e. at least 190 days a year (38 weeks)." This element in the definition rightly prevents Summer Schools and Easter Revision Classes for GCSEs etc, many of which operate for over 20 hours per week on a short-term basis, from being considered as full-time. If the Department is aiming at clarifying the definition of full-time education then any resiling from the position outlined in its Guidance to Proprietors will result in confusion and possible legal dispute.
The Consultation Document has not provided any information that shows any inadequacies in the present definition of full-time education (wherein such provision is at least 21 hours per week). Nor has it stated any problems which it has faced as a result of the present Guidelines. Indeed it is on record in a Written Parliamentary Answer as saying that there are no cases in which it has been unable to prosecute proprietors of illegal independent schools (Jim Knight MP -Written Answers 18 April 2006 - Col 160W). It is also on record as saying that there has only been one unregistered school which has not complied with the Department’s instruction to register "The Department told me that the Government has never had - or needed- a strict definition of what constitutes full-time education before, as unregistered schools have always registered when they have been asked to do so. They told me that the Academy was the first school they had encountered that had refused to register" (Parliamentary and Health Service Ombudsman's Report 09/06, ref PA-i 3130/0036). This does not seem to indicate that there are significant problems with the present definition of "full-time" education caused by "education providers offering increasingly varied patterns of education"(School's Minister,Jim Knight MP 21 /02/07 : Column 1829W) . However, even if one "school" had refused to register, this does not justify such a disproportionate course of action when it is open to the Department to prosecute the proprietor or to open discussions with the "school". Again, in our Barrister's opinion the Department ought not to attempt to see all substantial educational provision outside of the home as registrable

19. There may be cases of subterfuge by a school that give rise to an arguable case that full time education is being provided, but there is nothing unlawful with a school (such as Tyndale Academy) conducting itself in a manner so as to avoid the statutory requirements of section 463 of the Education Act 1996. This is the very principle of the rule of law.
Counsel for Tyndale Academy, ibid.

The school's minister and the Consultation Document both refer to changing patterns of educational provision as necessitating clarification of the definition of full time education. However, it must be pointed out that the mere assertion of "changing patterns of education" is not an adequate reason for changing the definition of full-time education. Furthermore, it is noteworthy that neither OFSTED nor the ISI is on record as calling for a change in this guidance. This situation alone would indicate the adequacy of the Guidance for making the determination as to whether a school is providing full-time education. If the Department wishes to change the definition of full-time education in the way envisaged in this question (i.e. 20 hours or more, rather than the figures of Circular 7/90) it will lay itself open to legal challenge in any court case it brings against any "school" offering less than 21 hours per week for less than 190 days per year. It also runs the risk of having a court settle the question in a manner unfavourable to the DfES thus setting a precedent for both Independent and Maintained schools.

When terms have a technical or legal meaning it is important that a consultation makes clear how those terms are being used. We believe that the wording of this question does not at all indicate to respondents that the Department is bound by the particular definition of the term "education" found in Circular 7/90. This definition holds that "education", in this context, is "taught time" which is supervised education and specifically excludes assemblies, RE, break times, lunchtimes and homework (DfES Circular 7/90) . This is a much clearer definition than one which simply refers to "20 hours of education per week". If the Department is seeking informed debate and constructive contributions to the consultation process on this matter then it ought to have produced a Consultation Paper which is fit for this purpose. That is to say, the terms "full-time" and "education" need to be far more carefully defined, particularly in view of the fact that to run an unregistered school (i.e. one providing full-time education etc.) is a criminal offence. Our Counsel advises us that:

20. The Courts are likely to give a strict construction to the meaning of full time education as criminal provisions are given restrictive applications: Cozens v Brutus 9. The principle of legal certainty in the criminal sphere inherent in the European Convention of Human Rights10 necessitates that the legal measure itself attains certain ‘quality of law’ requirements.
Counsel for Tyndale Academy, ibid.

We believe that the Courts will demand a greater level of clarity in the legislation/guidance than is evident for any prosecution to succeed. We again maintain that the Department could do no better than to leave the present definition in place. The alternatives are to produce unwieldy and unclear regulations or to risk a court settling the question on behalf of any defendant in a case in which the proposed guidance is cited.

Redefining Full-time Education (Independent Schools) Some thoughts for the Consultation

The Department for Education and Skills are aiming to change the definition of "full time education". They intend that "schools" (providing less than 20 hours of teaching per week)which have no present obligation to register will be considered as major providers. Such "schools" will then be treated as though they are full-time and will be required to register.

This has significant implications for
* Parents wishing to educate their children otherwise than at school.
they will be restricted in how they can cooperate in groups of more than 5 children

* Local Authorities in any inquiries/inspections they make of "home educators".
They will need to retrain inspectors for instances of mixed provision (home/school)as previous criteria will be inadequate and challengeable in court

* Independent Schools who wish to ensure their "brand" is not devalued.
There will now be two different kinds of Independent school - those providing full-time education and those providing the major part (anything from 10.5 hours??)

It will also have unforseen implications. Can you think of any?
Below you will find the main proposals and the three questions of what we think is a wholly inadequate Consultation Paper which you can find on the DfES website click here. If you wish to respond online or on paper you have until 22nd February. You will find some questions we have appended to each of the three consultation questions. Our questions are in italics are are meant to be thoughtprovoking for those wanting to respond.

The Proposals
3.1
There is no statutory definition of ‘full time’ education in relation to independent or maintained schools, but the Guidance to Proprietors advises schools to follow the guidelines for maintained schools which are:
Age 5-7 21 hours per week minimum;Age 8-11 23.5 hours per week minimum;Age 12-16 24 hours per week minimum.
This advice has served the Department and independent schools well for many years. However, patterns of schooling are changing, and there is a greater diversity of approach to education, with some parents opting for home education which includes part time tuition at tutorial colleges or schools.
Parents must ensure that their child receives an education suitable to his/her age, needs and aptitudes, either at school or otherwise. In cases where this is achieved by a mix of part time attendance at school and part time education at home, this must be agreed with the school, with both parents and schools having a clear understanding of their roles and responsibilities. Both should be able to describe and evidence the part each plays in contributing to a broad and balanced curriculum meeting the needs of the individual child.
Where a school provides most of the education, we believe that it should be treated as if it is providing ‘full time’ education, and required to register with the Department. We propose that any school providing more than 20 hours education per week should have to register. Schools providing fewer than 20 hours per week should also be registered where the education provided constitutes the major part of that child’s education. Where there is uncertainty as to whether a school is providing the major part of a child’s education, we propose to rely on Ofsted’s opinion.
We believe that these arrangements will remove any doubt as to what constitutes ‘full time’ education. They will ensure that any settings providing all, or a major part, of children’s education will be registered, and required to meet the minimum regulatory standards. This will ensure that children are taught effectively, in a safe and secure environment.




1 Do you agree that where a school provides more than 20 hours of education per week, it should be treated as providing full time education and should be required to register with the Department for Education and Skills?

Why shouldn’t 21 hours or more be the minimum?

Why should there be different overall figures for independent schools and maintained schools?

Are you really asking us to change the definition of independent schools?

Can you do this in guidance?

What if we said that only schools which provide more than 25 hours per week should be required to register?

Are you saying that there is a question as to whether schools offering more than 20 hours should register?

Why have you not given us a figure for the number of weeks in the year a school should operate?

What stops holiday classes providing 20 hours per week from being treated as schools ?

Aren’t parents fully responsible for the education of their children?

Why should the DfES concern itself about Independent Schools if parents are in the end responsible?

What is the point of a register of Independent schools?



2 Do you agree that where schools are providing fewer than 20 hours per week but the education provided constitutes the major part of that child's education, they should be required to register with the Department for Education and Skills?


Why should schools providing fewer than 20 hours a week have to register unless they want to?

What does “the major part” mean?

Who decides what is “the major part”?

Why are you not consulting on a definition of “the major part”?

How can you ask us to answer this question if you will not tell us what is “the major part”?

What do you mean “that child”?

Why should schools be allowed to register if they can only provide fewer than 20 hours per week?

Does homework count as part of the school’s provision?

Do breaktimes and assemblies count as part of the provision?

How can you say “the major part” without referring to a period of longer than a week?

Won’t holiday schools be caught by this Guidance?





3 Do you agree that where there is uncertainty as to whether a school is providing the major part of a child's education we should rely on Ofsted's opinions?

Why should there be uncertainty as to whether a school is providing the major part?

Why should you rely on Ofsted’s opinions?

Why should Ofsted be any clearer than you?

How will Ofsted make their adjudication?

What Guidance do Ofsted use to form this opinion?

Why haven’t we been asked to also define such Guidance as informs Ofsted in this matter?

Letter to DfES for Editing

A draft letter to the DfES re Tyndale Academy
Below you will find the text of a letter I am intending to send to the DfES and various educationists and newspapers in the next few days.
My aim? To ensure that the actions and motives of the Department for Education and Skills are open to the sort of public scrutiny which will cause them to act with the kind of caution that has been lacking in their dealings with us up to this point - some hope??

Any amendments or suggestions gratefully received. - Post away - Ideally I'd like it to be one page of A4 only


Dear Ms Jones,
I write this letter in order to appeal to you to rectify what has been a sorry tale of incompetence, bullying and prevarication on the part of your Department.


Tyndale Academy -Who we are & Where we are
Tyndale Academy is a small independent tuition Group operating in the London Borough of Newham. In terms of educational provision Newham is one of the poorest performing Local Authorities in the country. Our group was set up to provide an alternative to the low expectations and poor discipline that have blighted the education of so many in our borough. After receiving advice from the DfES in 1998 we set up the Tyndale Academy and have provided a broad and balanced curriculum for up to 11 children in classes of no more than six. We noted the definition of full-time used by the DfES (DfES Circular 7/90)and as such have always operated for substantially fewer than the 21 hours which the Department has set as the lower limit which independent schools are "expected to follow" as "minima" (Guidance for Proprietors of Independent Schools - DfES 2005). For this reason we fully expected to be treated as providing what the law calls "education otherwise than at school". Your department has stubbornly sought to limit the scope and meaning of "education otherwise" to "home education" whereas a plain reading of the legislation will not do that.


DfES campaign against Tyndale culminating in threat of prosecution and Consultation
You will know that we came to the attention of the DfES in July 2003 through an advert in our local paper. Since then constant inquiries by your Dept have made our situation intolerable. You sought to ascertain what our hours of operation were. We informed you of these and you were at the point of recognising that these hours were not sufficient to justify calling us full-time providers. As a result of the interference and encouragement of our Local Authority you changed course and determinedly aimed at getting us to register as an Independent School. You have sent two senior Inspectors of Schools from OFSTED to visit us to make a determination about our status. Although they went against their own guidance in making their determination, they did inform the Department that we were providing "Education of a rather good quality". This has been acknowledged in writing by the Minister for Schools and several senior civil servants within the DfES.
* You would not meet with us or advise us about hours of operation or what constitutes part-time education.
* In May 2005 you officially threatened to prosecute us(with the possibility of six months imprisonment) if we failed to register. Following a cut in our hours of tuition you withdrew this threat.
* Then your officials gained ministerial permission to redefine the term "full-time" education simply in order to embrace us within your fold.


The Damage done to Tyndale by the DfES's protracted enquiries over three years
Your actions have led to substantial costs to us. We have lost over half of our children because of your Department's bullying tactics and the uncertainty created by your protracted enquiries.
We have had to employ the services of a senior barrister to examine the legal position of the Department and the consultation exercise regarding redefining "full time education" for independent schools.

You have involved your own legal team in much work. At least three ministers and the Permanent Parliamentary Secretary (David Bell) has had to become involved in our case. We have had to prepare and submit complaints (ongoing) to the Parliamentary and Health Service Ombudsman and the Information Commissioner's Office and OFSTED in order to maintain our right to teach children according to the dictates of conscience and the will of their parents.
We now find that your officials are being dilatory and obstructive in releasing to us further information under both the data Protection Act and the Freedom of Information Act.


Why we wish to remain an "education otherwise than at school" provision
You will know that we do not have the bullying, swearing and general bad behaviour that so blights the educational experience of so many in schools in our borough. HMI acknowledged that they observed were good relationships between our two teachers and the children. You know that our parents have the staff's phone numbers and are in more or less daily contact with them. You know that we advertise openly in the local paper, on the internet and in the Yellow Pages. We have had several visits from community leaders including a cabinet minister since we opened. There is nothing about our operations that should have led you to show the degree of suspicion which has been evident. It is evident to you that we want to offer as substantial a provision as is possible within the rules determined by Parliament.


We ask you even at this late stage to:
a) acknowledge that there is nothing at all unclear about the definition of full-time education as set out in your own Documents.
b) acknowledge that the will of parliament has consistently been that institutions meeting the other criteria and providing "full-time" education should be regarded as schools, and that parliament has never wished to embrace "major providers" in this definition.
c) withdraw from this present consultation which is aimed simply at forcing us to register or close.
d) acknowledge that the children's best interests are served by getting the Local Authority to carry out its legal obligations by "inspecting" them on an individual basis (something our LA has signally failed to do for three years)
e) recognise that in the case of small providers such as ourselves, parents are best placed and motivated to scrutinise and secure the well being and educational attainment of their children.

Yours sincerely



Ferris Lindsay
(Principal Tutor)