'Material change' for Independent Schools - a reset of the relationship with the Equality Act as more schools become co-educational?

The DfE wishes to make a material change to its registered details, making it clear that any movement into co-education will trigger a requirement to apply for and receive approval of a material change. 
More specifically, the DfE has sought to reset the relationship between the material change non-statutory guidance and the Equality Act. Namely, that a material change application is required even when a single-sex registered school is relying on the 'small numbers exception' (the DfE's terminology in its guidance) of what a single sex school is defined as in the Equality Act.

A single-sex school can be one which admits pupils of the opposite sex but only where exceptional or where numbers are comparatively small and pupils are confined to particular courses or classes. 
In practical terms, the 'small numbers exception' could be where a school has a standalone co-educational sixth form and/or nursery.

The difference between the 'small numbers exception' and a 'transitional exemption order'

The small numbers exception is distinct from a transitional exemption order under the Equality Act (TEO). The purpose of a TEO is to permit single sex schools transitioning to co-education over a period of time to have a temporary order granted by the Equality and Human Rights Commission under which the school could continue to restrict admittance to one sex or another in certain year groups and be exempt for a determined time from breaching the sex discrimination provisions of the Equality Act regarding such admissions.

In practical terms, this could be having a staggered integration towards full co-education, for example, allowing admission of pupils of the opposite sex at traditional transition points such as Year 3 and/or Year 7 only on an annual basis towards full integration over time.

The crossover between 'material change' and the 'small numbers exception'

A material change application for approval by the DfE includes matters such as change of proprietor, age range, capacity and whether the school is for male or female pupils or both. 
Under the small numbers exception, independent schools may have previously argued that there is no material change in so far as it would remain a registered single sex school. No material change application would mean no ISI inspection for the ongoing purpose of being able to meet the Independent School Standards.

The DfE has now clarified that the operation of material change application is distinct from the small number exception under the Equality Act. An example is provided of a single sex school admitting pupils of the opposite sex who rely on the small numbers exception to continue to refuse to admit other pupils of the opposite sex. In this scenario, a material change application to admit any pupils of the opposite sex must still be submitted.

The DfE also warns independent schools that the use of the small numbers exception should be treated carefully as any misapplication could be associated with a breach of the Independent School Standards.

A two-pronged approach?

Independent schools wishing to go co-educational and seeking to rely on the small numbers exception will now be in no doubt that that will need to submit an application for a material change request to the DfE for its approval.

Independent schools will therefore need to be well prepared given the timescales, especially due to a period of up to six months for a material change approval to be determined which could include an inspection by ISI to consider the implications of the material change and the ongoing ability to meet the Independent School Standards. 
For independent schools going down the TEO route of a staggered all-through approach to co-education in their setting, they will continue to be mindful of the need for thorough planning, including a material change request application with the DfE in addition to a TEO application with the Equality and Human Rights Commission. 

For more information or advice, please contact John Deakin in our Employment team.