Is the Children’s Wellbeing and Schools Bill an acute case of overregulation? wonders Andrea Squires

The aims of the Children’s Wellbeing and Schools Bill (having now passed its second reading in Parliament) are laudable, focused on keeping children safe, raising standards and prioritising intervention on children in need. The bill seeks to address some of the high-profile issues which have dominated recent media, including children lost in the system and those exposed to harm through a narrow focus on a specific type of education provision. However, for some independent school providers, new regulatory measures will be an unwelcome addition to the administrative burden of running a school.

There are five new regulations (with the potential for the secretary of state to add more in future) which will have an impact for non-state funded independent schools.

Following a requirement now for local authorities to maintain a register of children of compulsory school age not in a school, the consent of the local authority will be needed if any parent wishes to remove their child from school to home educate where the child had been a registered pupil of an independent school as a result of being named in the Education and Health Care Plan (EHCP).

There is a change to the definition of an independent educational institution (IEI) which will now bring in scope all types of provision (unless exempted) with the consequent burden of registration (and the risk of a criminal sanction if registration is not maintained), the burden of proof now shifting to the provider to demonstrate that it is not an institution which “provides full-time education” for “at least five children of compulsory school age” “or at least one child of compulsory school age” who is looked after or has an EHCP.

The secretary of state has the power to suspend registration temporarily (as an IEI) or issue conditions to avoid deregistration, making sanctions much more likely than previously, which itself will be of concern given the anticipated increase later this year of powers to Ofsted following its review.

There is the introduction of a fit and proper person test for the proprietor of an IEI (whether charitable or commercial or an individual or a corporate entity), which will include more extensive checks than is the currently the case, that is, more than just the usual identity and Disclosure and Barring Service checks.

Finally, there is a also a change to what is considered a “material change” to which secretary of state consent must be obtained to include a “change of the buildings occupied by the institution and made available for student use” (not just relocation as it currently stands) and a change to any special education provision.

Despite the increasing variety of provision within the education sector, we have found regulators more inclined to treat all providers the same. This includes expecting providers to provide more extensive information when seeking any consents and to be expected to make provision in a particular way (compliant with any current policy objectives). This will undoubtedly make regulatory compliance more challenging, but all the more crucial for independent schools. Advice will be needed to navigate the system.

Andrea Squires is a partner and head of the education team at the law firm Winckworth Sherwood

Andrea Squires