Regulatory Developments 2023

Inspections

We have seen both Ofsted and ISI taking a renewed focus on compliance with ISSR standard 3(j) which requires the school's proprietor to ensure that teaching does not discriminate against pupils contrary to equality legislation. In particular the inspectorates are focussing on co-educational schools that segregate boys and girls for the teaching of certain subjects, co-curricular and/or extra-curricular activities. Schools should review any gender segregation and create an audit trail of assessment that any segregation is justified.

As you will know, ISI consulted on a new inspection framework to apply from September 2023 which we expect to be adopted. This puts the pupil experience front and centre on inspection and expects schools to focus on that for all pupils, not just the majority. We expect this to be considered on all inspections from now on and would recommend that schools collect data (such as by way of pupil questionnaires) to enable them to answer questions about this.

Safeguarding

We wrote last term about IICSA's final report and hosted a webinar about it, details of which can be accessed here. Since then, Ofsted have referenced this in their December update for HMCIs (Schools and early education update: December 2022) but have simply referred to the Government having 6 months (from 20 October 2022) to respond and to the fact that they will be monitoring developments. We are expecting new KCSIE in 2023, but at present do not anticipate that this will include substantive changes in the light of IICSA. It is more likely any major changes will coincide with a separate consultation on changes to the national minimum standards for boarding which is due to take place in early 2024, with a view to revised standards and a more detailed update to KCSIE coming into force in September 2024.

We have seen increased regulatory focus on on-line safety since Everyone's invited and the NSPCC has published useful headline guidance on risk assessing on line platforms, which we would recommend to schools. We suggest that this approach is used to assess the platforms used in school, but also to share information with pupils and their parents about social media platforms in regular use.

Ofsted have reminded inspectors that relationships and sex education is compulsory for all secondary school pupils, including schools with sixth-form pupils (even though FE colleges do not have a similar obligation for pupils of the same age).

Schools Bill

The current education secretary, Gillian Keegan, confirmed in December 2022 that while the Schools Bill will not progress, the government remains committed to the objectives set out. Reforms could still be implemented through secondary legislation and non-legislative measures. The changes to attendance registration and monitoring have been made through guidance which while not yet of mandatory effect, represents best practice and schools are advised to comply with. Those relating to the suitability of proprietors can be assessed through closer monitoring of compliance with Part 8 of the standards. It is also predicted that the Government will expand the categories of full-time institutions that will be regulated in the same way as independent schools and create an express power to suspend registrations where serious safeguarding failures have been identified that pose a risk to pupils.

Trans

We have been talking for some time about the expected DfE guidance on supporting trans pupils in schools. There is still no sign of this. Support should be considered on a case by case basis and last year we had resources from the BSA (which we helped to produce) and from the AMS sector to help with that. The passage into law of the Gender Recognition Reform (Scotland) Bill is due imminently  - which simplifies and extends to Scottish nationals of 16 and 17 years of age, the right to change their legal sex. This raises complex questions about the status of gender recognition certificates outside of Scotland. The implications of this for schools and other organisations UK-wide on support and access to facilities for trans pupils over the age of 16 are as yet unclear, but we are keeping a watching brief on these important developments and will keep you up to date with our thoughts on what this means for you and how you can prepare for any changes. 

UKVI

Although there is no change in the law, we have noted that the UKVI is becoming increasingly vigilant about the safeguarding arrangements sponsors have in place for students remaining in the UK during school holidays. The UKVI student sponsor guidance makes it clear that schools have an ongoing duty to ensure the suitability of the care arrangements for its sponsored pupils whilst they remain in the UK under their sponsorship, including in the holidays. Additionally, schools must maintain an up-to-date history of sponsored pupils' contact details, to include their UK residential address(es). UKVI interpret this as a requirement to ensure that schools maintain a record of sponsored pupils' whereabouts while they are in the UK, including during exeats and holiday periods spent here. If UKVI are concerned about the suitability of a school's safeguarding arrangements for sponsored students, it may make a formal information request about this and compliance more generally and share information with the DfE, which could lead to inspection.

For more information or advice, please contact Tabitha Cave in our Independent schools team on 077474 075 825 or your usual contact. Alternatively, please complete the form below.