Department of Education policy statement on prosecuting unregistered independent schools

On 21 August 2019, the Department of Education published an updated policy statement on prosecuting unregistered independent schools.

It is a criminal offence to operate an independent school that is not registered under section 96(2) of the Education and Skills Act 2008 (ESA 2008). Ofsted inspectors have powers under section 97 of the ESA 2008 to enter premises to investigate a suspected offence. If Ofsted consider there is evidence that an offence has been committed it may refer the matter to the CPS.

The Secretary of State’s consent is required before any prosecution may be initiated (see section 134 of the ESA 2008). The updated policy statement sets out the Secretary of State’s approach to taking decisions about whether to grant consent under section 134 to a prosecution for the offence of conducting an unregistered independent school, although each such decision will be considered on a case-by-case basis.

The Secretary of State’s consideration of whether to grant consent to a prosecution for the offence will depend on the particular circumstances of each case. However, in each case, the Secretary of State will not grant consent unless he also has concluded that the evidence is sufficient and that a prosecution is in the public interest. Public interest considerations include, but are not limited to:

  • The level of risk to the welfare of children; the greater the risk, the swifter the need to investigate and take action, which could include prosecuting. Welfare considerations include not only the safety and physical wellbeing of children, but also whether they are, or at risk of, being exposed to extremism.
  • Evidence that the proprietor (or another person who appears responsible) is aware of the regulatory requirements but has sought to avoid them or ignore them.
  • The nature of the engagement of the proprietor (or others involved in the school) with the Department over registering the school in question.
  • Whether the Department has any concerns about the suitability of the proprietor or staff to be involved in providing education.
  • Whether the setting was previously registered but has continued to operate or started to operate again after being subject to enforcement action taking it off the register.

DfE updates privacy notices for schools and local authorities

On 21 August 2019, the Department for Education (DfE) published updated template privacy notices, for schools and local authorities to issue to individuals including staff, parents and pupils about the collection of personal data.

The DfE has updated its privacy notice user guidance and also the following suggested privacy notice templates, to reflect the need for parental consent if a parent objects to the sharing of additional pupil information with local authorities and youth support services:

  • Pupils and school workforce.
  • Local authority.
  • Looked-after children and children in need.

LG&SCO finds council at fault for child’s nine month absence from school and in breach of Education Act 1996 duties

The Local Government and Social Care Ombudsman (LG&SCO) has upheld a complaint against Leeds City Council (council) and found that it was at fault causing injustice, for failing to arrange alternative education when a child was unable to attend school because of anxiety. The child did not receive a suitable education for approximately nine months, and for most of this period she received no education at all.

The LG&SCO’s findings included that the council:

  • Had no policy for children missing education because of medical needs, in breach of statutory guidance, which had caused the child’s case to “drift”.
  • Impermissibly delegated its duties under section 19 of the Education Act 1996 (EA 1996), and did not have sufficient oversight of local agencies’ operations.
  • Had a flawed understanding of its section 19 duties, in that it considered that it did not owe a duty to arrange suitable education for the child because it did not have medical evidence that the child was unfit to attend school.

The LG&SCO found that the council was at fault causing significant injustice. The actions it recommended included compensating the child’s family, and reviewing its oversight of education and children’s services.

The case presents an interesting examination of various aspects to a local authority’s duty to provide suitable alternative education under section 19 of the EA 1996, and the importance of ensuring the structure of local services supports this. (Local Government and Social Care Ombudsman: Investigation into a complaint against Leeds City Council (reference number: 18 011 706) (10 July 2019)). (This report was published by the LG&SCO on 8 August 2019).

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