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.