Education Bill

MEMORANDUM SUBMITTED BY DEPARTMENT FOR EDUCATION ON DRAFT REGULATIONS ON CLAUSE 42 (E 93)

Reference: EBCC/2011/Note 11

To aid the Committee’s consideration of the Education Bill, this note provides further information on the delegated powers in clause 42.

Purpose of the provisions

1. To make the approval process for the appointment of independent inspectorates to carry out boarding welfare inspections more transparent, by setting out the criteria in regulations and guidance. To increase public confidence in the approval arrangements for independent inspectorates, by enabling the Secretary of State to give directions [1] to Ofsted about the matters to be taken into account in their annual report on the work of independent inspectorates.

There are around 540 independent boarding schools in England.

Policy background

Education Inspections

2. Until 1999 education provision in all independent schools was inspected by Ofsted, although inspection reports were not published or made available through schools to parents. However, those schools which were members of an independent school association affiliated to the Independent Schools Council (ISC) also had published accreditation inspections carried out by the association of which they were a member. These reports had a substantial overlap with unpublished Ofsted inspection reports. In 1999 the government and ISC agreed that it made sense to have a single published report which covered all aspects of ISC schools’ education provision, and that inspections would be carried out by the Independent Schools Inspectorate (ISI) with a sample checked by Ofsted to ensure common standards were applied across the independent school sector. ISI receives no government funding and recoups the cost of inspection through association membership fees and any additional fees for inspection.

3. The Education Act 2002 put these informal arrangements onto a statutory footing, and the 2002 Act provisions were carried forward in the Education and Skills Act 2008, although the 2008 Act provisions have not yet been commenced. The 2002 Act provisions are therefore currently still in force.

4. Since 2002, in addition to ISI, two further inspectorates have been approved for education inspections of independent schools:

· the Schools Inspection Service inspects around 65 schools affiliated to the Focus Learning Trust and Steiner Waldorf Schools Fellowship; and

· the Bridge School Inspectorate inspects around 65 schools belonging to the Christian Schools Trust and the Association of Muslim Schools.

5. Whilst the Education Act 2002 allows inspectorates other than Ofsted to undertake education inspections of independent schools, the Secretary of State retains the right to commission an Ofsted inspection of any independent school if this is thought necessary. That right has been retained in section 109 of the Education and Skills Act 2008 (though this provision has not yet been commenced).

6. All inspectorates inspect against a common framework and operate under strict monitoring arrangements. Ofsted carries out quality assurance of the independent inspectorates’ inspections and reports, to check whether these inspections are consistent with Ofsted’s own inspections of other independent schools. Ofsted publishes an annual assessment of the inspection work carried out by these other inspectorates. Section 107 of the Education and Skills Act 2008 placed these arrangements on a statutory footing, although it is not yet in force.

Boarding Inspections

7. Boarding schools, whether independent, non-maintained or maintained, are subject to an additional form of inspection – welfare inspection of their boarding provision.

8. Section 87 of the Children Act 1989 originally required local authorities to take steps to ensure that children’s welfare is adequately safeguarded in independent boarding schools. Responsibility for welfare inspections later became the responsibility of the Commission for Social Care Inspection (CSCI) until April 2007, when responsibility for all boarding inspections passed to Ofsted.

Issue

9. The vast majority of independent boarding schools are therefore inspected by an independent inspectorate (almost all by ISI) for education and by Ofsted for boarding welfare. Joint inspections by Ofsted and independent inspectorates are undertaken where possible, to minimise disruption to the schools concerned, but there are two separate inspection reports, published on two different websites. A single inspection report of the school, published on a single website, will be more helpful for parents, and will be easier for schools to handle.

10. Section 87A of the Children Act 1989 already allows the approval of independent inspectorates to inspect boarding provision in schools. The Independent Schools Inspectorate (ISI) has been approved in principle to inspect boarding provision in around 450 schools in membership of the Independent Schools Council (ISC), subject to the monitoring provisions in clause 42 of the Bill gaining Royal Assent. Given that only a handful of independent boarding schools have either SIS or BSI education inspections, it is unlikely these two inspectorates might seek approval to carry out boarding inspections.

Clause 42

11. Clause 42 provides a new power to allow the Secretary of State to set, in regulations, criteria for the approval and withdrawal of approval of independent inspectorates (i.e. inspectorates other than Ofsted) to undertake boarding inspections of schools under section 87A of the Children Act 1989. This new power mirrors a similar provision in section 106(4) of the Education and Skills Act 2008 in relation to education inspections in independent schools, which is not yet in force.

12. The purpose of setting criteria is to make the approval process more transparent, so that institutions, parents and the wider public can be confident that inspectorates are competent and independent, and that they have an objective perspective on inspection and performance.

13. Clause 42 also requires Her Majesty's Chief Inspector of Education, Children's Services and Skills to provide an annual report for the Secretary of State on the inspection work of approved independent inspectorates. This mirrors provisions in section 107 of the Education and Skills Act 2008 in relation to education inspections in independent schools, which have not yet been commenced. The assessment will be based on evidence from Ofsted monitoring of a sample of inspections undertaken by the independent inspectorate and of inspection reports it produces.

14. Clause 42 enables the Secretary of State to direct the Chief Inspector on matters to which she must have regard in preparing the report and the form and contents of the document.

Regulation making powers

15. The regulation making powers contained in clause 42(3) are referred to in paragraph 11 above.

16. The Department consulted on the criteria in 2008 in relation to the approval of independent inspectorates for education inspections. The criteria largely mirror those which have been used to approve the existing independent inspectorates, in so far as technical proficiency and independence and objectivity of the inspectorate and their inspectors is concerned. The planned regulations for approval of independent inspectorates for education inspections (under section 106(4) of the Education and Skills Act 2008) will put these criteria on a statutory footing and add new criteria about the size and diversity of the institutions which they should inspect so that they have a broad view of standards in a wide range of institutions on which to base inspection judgements. We propose to set out in guidance the detail of the matters to be taken into account in due course.

17. It is intended that the planned regulations for approval of independent inspectorates for welfare inspections will be aligned with those required under section 106(4) of the Education and Skills Act 2008, which has not yet been commenced. We anticipate carrying out a limited consultation on the draft regulations and guidance with key stakeholders.

18. The regulations will be made by the negative resolution procedure.

Direction making powers

19. In relation to the direction making power referred to in paragraph 14 above , we propose that the directions, including what should be taken into account and the form and contents of the report, will be set out in a protocol to be agreed with Ofsted. The protocol will also set out the broad expectations concerning the extent of Ofsted’s monitoring and the issues to be covered in reports made to the Secretary of State. We believe this will further increase public confidence in the approval arrangements for independent inspectorates.

20. It is anticipated that the Secretary of State will direct the Chief Inspector to have regard to the following matters in preparing her report: the provision of advice on whether inspections, inspection judgements and inspection reports are consistent with those of Ofsted; and whether inspectorates provide secure and reliable evidence about the extent to which the institutions they inspect are meeting the regulatory standards required for registration as an independent educational institution.

21. In providing this advice it is anticipated that Ofsted will be directed to take into account the following matters:

· the suitability of inspectors and their training,

· the way in which the inspectorate conducts inspections against the regulations framework,

· the judgements reached and the evidence base for reaching judgements,

· the quality of the reports of inspections;

· and the quality assurance arrangements put in place by the independent inspectorate.

22. These matters reflect the areas covered by the annual assessment of the inspection work carried out by other inspectorates which Ofsted already publishes. These reports are published on the Ofsted website and we would expect this to continue.

Timing

23. Subject to the passage of this Bill, we are working towards the handover of boarding inspections in the relevant independent schools at the earliest suitable opportunity.

March 2011


[1] ‘Direction’ is a legal term. In practice this would take the form of a letter to Ofsted, setting out the matters that the Secretary of State wishes to be taken into account.