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.