Education Bill


The Independent Schools Council (ISC) represents 1,260 independent schools educating more than 500,000 children in the UK. Pupils at ISC schools account for around 80% of independently-educated children in the UK.

Executive Summary

1. This Submission deals with the following areas raised by the Education Bill (the "Bill"):

1.1. EYFS and, in particular, the missed opportunity to reverse the former Government’s unnecessary introduction of mandatory curriculum requirements on independent schools;

1.2. powers to search;

1.3. referral of teacher misconduct to the Secretary of State;

1.4. the need to preserve an online database of all qualified teachers post-abolition of GTCE;

1.5. induction;

1.6. participation in international surveys;

1.7. admission arrangements and appeals; and

1.8. inspection issues.

A. Early Years Provision: EYFS

2. The Bill misses an important opportunity to reverse the former Government’s compulsory introduction of the Early Years Foundation Stage into independent schools. The Bill makes changes to the Childcare Act 2006 but does not go as far as we recommend in removing all independent schools from the scope of the Childcare Act 2006 and all regulations and guidance issued thereunder. [1]

3. In the most recent academic year (2009/10) ISC schools educated a total of 66,916 pupils aged five or under immediately prior to joining their school, broken down into the following age groups:

Age at 31 August 2009


0 – 2








4. All ISC schools are independent schools. ‘Independence’ can be an ephemeral term, particularly in an era when academies and free schools are also termed ‘independent schools’. ISC schools understand independence to confer a series of freedoms, releasing schools from unwarranted State controls and permitting them to take decisions concerning their own:

o educational philosophy and ethos;

o curriculum and qualifications offer;

o admissions and exclusions, subject to anti-discrimination law;

o staffing qualifications, conditions of employment and development priorities and provision; and

o governance, administration and management.

5. Independence from top-down state control frees schools to respond flexibly and promptly to the needs of pupils and evolve to meet the expectations of communities. It allows teaching professionals to adapt their curricula to keep at the cutting edge of knowledge and progress in science and IT, for example, harnessing the latest technology for teaching support.

6. This is what parents choose when they choose to educate their children independently of the state at an ISC school. The right of citizens and families to privacy from state interference and of parents to educate their children in accordance with their own judgement are fundamental, guaranteed by Article 8 and Article 2 of the First Protocol to the European Convention on Human Rights and the Human Rights Act 1998. [2] This applies as much to the education of children in their early years as it does to the education of older children.

7. The EYFS infringes the independence of schools and the rights of parents. It is an anomaly in independent education, being the only part of the school for which there are prescribed staff qualifications and a prescribed curriculum. It is particularly anomalous that the level of micromanagement imposed by EYFS should be prescribed in relation to children who are below compulsory school age.

8. The Department for Education has argued previously that the EYFS requirements were sufficiently flexible to avoid compromising parental rights but the reality is that the extent and detail of prescription and the pressures of the assessment requirements, demands of inspection and local authority monitoring and moderation, leave busy staff with little time or scope for manoeuvre.

9. Furthermore, the EYFS is not, and has never been, justified by concerns over either the quality of education or the welfare of children in ISC schools. Independent schools have consistently demonstrated their ability to provide high quality nursery provision. Ofsted’s major review of nursery provision before the introduction of the EYFS reported that "Independent schools … are most successful in promoting progress towards the early learning goals", noting that 94% of the independent schools visited by Ofsted were making "good provision". [3] For ISI inspected schools the figures reveal that less than 0.5% (2/528) are found to be unsatisfactory. There is therefore no evidence that provision for early years in independent schools (as opposed to free-standing nurseries) requires prescriptive legislation like EYFS.

10. This demonstrates that independence does not equate to licence or low standards. Indeed, outside of the EYFS, independent schools are already subject to a range of regulatory frameworks that set minimum operating standards. Principal amongst these are the regulatory standards prescribed by the Secretary of State for Education. [4] To monitor compliance, they are subject to regular statutory inspections. [5] For schools in membership of ISC, the inspectorate is the Independent Schools Inspectorate (ISI), whose work is monitored by Ofsted on behalf of DfE to ensure quality and consistency. DfE has the statutory right to request Ofsted to inspect any independent school at any time.

11. ISC calls for the repeal of the Childcare Act 2006 and the Regulations made and statutory guidance issued under it insofar as they apply to independent schools. The minimum operating standards prescribed by the Secretary of State for Education for all independent schools can apply equally well to pre-school children as to children of compulsory school age and, to the extent that changes are thought desirable, provide the more appropriate framework for tailoring the requirements.

12. In particular, ISC calls for the repeal of the EYFS Profile. The EYFS Profile embodies the worst of EYFS: a 117 point assessment of each five year old, monitored and ‘moderated’ by local authorities. The Statutory Framework for the Early Years Foundation Stage explicitly mandates that schools:

o must permit the relevant local authority to enter the premises at all reasonable times in order to observe the implementation of the arrangements for the completion of the EYFS Profile;

o must permit the relevant local authority to examine and take copies of documents and other articles relating to the EYFS Profile and assessments;

o must take part in all reasonable moderation activities specified by their local authority; and

o must provide the relevant local authority with such information relating to the EYFS Profile and assessment as they may reasonably request.

13. It should come as no surprise that schools have experienced considerable variation in treatment from local authorities. ISC conducted a survey of its schools in summer 2008 and forwarded the evidence to the former Children’s Minister in July 2008. In relation to the EYFS Profile, we commented then certain authorities seemed to apply a standard of proof in excess of the criminal standard, requiring several pieces of documentary evidence per scale point and dismissing the verbal input of teachers. Feedback from our schools indicated that teachers were expected to hover around children with digital cameras and post-it notes recording activities and verbatim comments for each scale point of the profile for each child.

14. The EYFS Profile, together with the powers of local authorities to inspect schools based on the Profile, should be abolished. Independent Schools Standards require independent schools to provide parents with an annual written report of each pupil’s progress and attainment in the main subject areas taught and this should remain the case for early years’ education.

15. Independent schools are subject to stringent regulation regarding children’s welfare. Schools are required to ensure that arrangements are made to safeguard and promote the welfare of pupils, having regard to DfE’s "Safeguarding Children and Safer Recruitment in Education" guidance. They are also required to have regard to separate DfE guidance on bullying, health and safety and educational visits. [6]

16. EYFS goes further than these requirements in imposing both staff: pupil ratios and staff qualification conditions. Both these requirements are anomalous for the independent sector where there are otherwise no ratios or qualifications requirements. They have resulted in situations where experienced teachers with qualifications (for example, Cert. Ed.) that would allow them to be Head of a state primary are unable to be counted towards EYFS ratios, effectively discriminating against older staff and preventing them from continuing to work in their schools.

17. Again, this issue cannot be considered in isolation from the Independent Schools Standards which apply in any event to independent schools and which expressly require that schools deploy staff to ensure the proper supervision of pupils. This places responsibility on schools to use professional judgment to ensure that the number of appropriately qualified staff meets the welfare needs of the children under the school’s care at all times.

B. Early Years Provision: Free Entitlement

18. We note that Clause 47 of the Bill touches on the scope of charges permitted by early years’ settings in state schools. We recommend that the opportunity is taken to reverse the current situation whereby early years’ settings in independent schools providing 15 hours of free entitlement are forced to operate uneconomically.

19. The combination of the "stretched" entitlement (from 12.5 hours per week to 15 hours per week) and the prohibition on charging top-up fees in the Early Years Free Entitlement Statutory Code threatens the financial viability of large numbers of pre-school providers who sought to support the childcare initiative of the previous administration. Our research indicates that ISC schools will be forced to subsidise the early years’ provision by an average of £5 per pupil per hour, reflecting the difference between the cost of the provision and the payment offered by local authorities. We are far from the only organisation to raise this issue, which affects all nursery settings.

C. Powers to search

20. We welcome the increased clarity provided by Clause 2 of the Bill regarding the searching of pupils. We understand the effect of Clause 2 is that independent schools will have the power to search pupils for prohibited items, including items which are identified in school rules as items for which a search may be made. We note that independent schools are required under existing regulations to have written behaviour policies and accordingly an independent school may take advantage of the new powers conferred under the Bill in relation to items which are identified in the school’s written behaviour policy as being searchable.

D. Referral of teacher misconduct to Secretary of State

21. We note that Clause 8 of the Bill introduces a new responsibility on school employers regarding the reporting of teacher misconduct to the Secretary of State.

22. The precise obligation is that the proprietor of an independent school must consider whether it would be appropriate to provide prescribed information about a teacher to the Secretary of State, where the proprietor has ceased to use the services of the teacher because the teacher has been guilty of serious misconduct or where the proprietor might have ceased to use the teachers’ services had the teacher not ceased to provide those services. In other words, cases of resignation are just as reportable as cases of dismissal.

23. We note that the obligation appears to place the responsibility on the proprietor to determine whether it is appropriate or not to report the teacher – a subjective rather than objective test. So long as the proprietor actually considers whether to report, there is no scope for criticism should the proprietor decide not to report in circumstances where others might feel that it was appropriate to do so.

24. We are comfortable with this approach, as it trusts the professional judgment and autonomy of those within schools. We would caution against voices which might call for guidance.

E. Abolition of the GTCE

25. The Committee should note that whilst many of the General Teaching Council for England's functions were considered to be unnecessary or superfluous, the register of teachers - by which it is possible to check all teacher qualifications in England through one centrally-held list - remains of great value to Appropriate Bodies and employers and we recommend that the Education Bill be amended to reflect the requirement that this be preserved.

F. Induction

26. We note the Bill's provision (in Clause 9) for teacher induction, something our schools have valued, made use of and benefitted from since its inception in 1999; something which we wholeheartedly support. We look forward to contributing to the forthcoming review of Initial Teacher Training, but anticipate that our submission would oppose any opportunity to repeat the induction year (see proposed section 135A(2)(c) to be inserted into the Education Act 2002). We continue to believe that induction should last for three terms (or the equivalent) only.

G. Participation in international school surveys

27. We welcome the recognition that there is no need to impose a statutory duty on independent schools to participate in international surveys and caution against voices calling for this duty to be extended to all schools. Legislation and regulation must be tailored, proportionate and necessary: and there is no evidence that independent schools are failing to participate in PISA or other relevant international benchmarking surveys; indeed, it is in their interests to do so.

H. Admissions arrangements and appeals

28. We note the proposed restrictions on the powers of the school adjudicator in clause 34(3). It would repeals section 88J of the School Standards and Framework Act 1998 which requires schools adjudicators, upon referral of a specific matter concerning a maintained school’s admission arrangements, to consider whether it would be appropriate for changes to be made to any aspect of those admission arrangements in consequence of the matter referred, and gives them the power to consider whether any other changes to the arrangements are appropriate. The reason for this proposed restriction is unstated and we are unsure why this is felt to be appropriate. We have experience of the school adjudicator ruling on admissions arrangements which discriminated against independent school pupils seeking entry to state secondary schools and would not wish to see the powers of the adjudicator curtailed in this area. [7]

I. School inspection

29. We note the changes proposed in relation to school inspections under section 5 of the Education Act 2005 and, in particular, the anomalous situation developing whereby independent schools appear to be subject to an inspection framework more onerous than state schools. Compare, for example, the seven registration standards set out in the Education Act 2002, which are then split into over 100 inspection standards in the Independent Schools Standards Regulations, with the four principles described in the new section 5(A) of the Education Act 2005, as introduced by Clause 40 of the Bill.

J. Boarding welfare inspections

30. We warmly welcome Clauses 42 and the empowering provisions to enable the Independent Schools Inspectorate to take over boarding welfare inspections of ISC schools from Ofsted.

31. ISI has been recognised as a high quality, low risk, inspectorate for many years by Ofsted, who monitor the quality of inspections and reports on behalf of the Department for Education. In September 2008, ISI took over the inspection of EYFS provision in ISC schools and has demonstrated strong abilities in adapting to the inspection of new statutory requirements. Incorporating peer-review within specialist inspection ensures that knowledge of best practice is disseminated throughout the sector.

April 2011

[1] At the time of writing, we note the publication of Dame Clare Tickell’s Review of EYFS and encourage the Government to respond positively to the recommendations made therein .

[2] Article 8: “ Everyone has the right to respect for his private and family life, his home and his correspondence … There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 2, First Protocol: “ No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions ”.

[3] Nursery education: quality of provision for 3 and 4 year olds 2000-01 (HMI 331), Ofsted, 2001

[4] The Education ( Independent School Standards) ( England ) Regulations 2010

[5] U nder s.162A of the Education Act 2002 and (when in force) section 106 of the Education and Skills Act 2008

[6] Respectively: “Safe to Learn: Embedding anti-bullying work in schools”, “Health and Safety: Responsibilities and Powers” and “Health and Safety of Pupils on Educational Visits”

[7] See, for example, the determination dated 23 July 2009 in relation to The Governors of Poole Grammar School (cases ADA 0001613, ADA/001626, ADA001645) available at