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Schools that Work for Everyone - What Impact on Independent Schools?

on Monday, 11 June 2018.

Consultation on the green paper closed in December 2016. It wasn't until May 2018 that the government published its response. How is the independent schools sector affected?

High Expectations

The green paper was fairly absolute in its terms. "The biggest and most successful independent schools should face exacting requirements", it said. Those requirements were to establish schools in the state sector by sponsoring academies or setting up free schools, otherwise to offer a certain and much higher level of fully funded bursaries. Smaller independent schools were to be expected to provide several items from a menu of support to the state sector including direct support to state schools, placing senior leaders on governor boards and access to facilities.

DfE had proposed that these various expectations should be crystallised into fixed benchmarks against which the performance of independent schools could be measured. If they didn't meet the benchmark, the proposal was to legislate to remove the benefits of charitable status and to regulate the standards though the Charity Commission and public benefit.

The Government's Response

The tone of the government's response to the consultation is very different, recognising the "depth of expertise and resources" that independent schools have and the potential to use this to strengthen state schools. It recognises that, in response to the green paper, the sector is taking steps to increase the scope of work with the state sector and to increase access for disadvantaged pupils, including looked-after children.

The government strongly encourages schools with the capacity to do to sponsor an academy or establish a free school. Those which do not have that capacity are expected to enter into sustainable and reciprocal partnerships to support state schools in at least one (rather than several) areas including teaching, curriculum leadership and other targeted activity.

Rather than developing a set of rigid benchmarks and aiming to enforce these through charity regulation and public benefit, the government accepts not only that the independent school sector does not exclusively comprise charitable schools, but also acknowledges the fact that the courts have already settled the law that it is the trustees of charitable schools who are responsible for setting the scope of what they do to further their charitable objects.

Partnership Working

The government has entered a memorandum of understanding (MoU) with the Independent Schools Council (ISC), whose membership brings together 1,300 schools educating 80% of children educated in the independent sector. Under the MoU, the government commits to positively promote and recognise good practice in partnership working and will encourage the state sector to participate, including running what is essentially a dating service, matching state and independent schools.

In the MoU, the government expresses a much deeper appreciation of the variety in the independent schools sector, the fact that most independent schools are small, do not have significant surpluses or wealthy foundations. The need for proportionality in expectations of partnership activity is express and a wide range of options for support are canvassed. So far as bursaries are concerned, the narrative is about increased focus on those families with the lowest incomes and looked-after children.

Recognising the work the sector is already doing and its ability to self-co-ordinate, the government's response contains no explicit enforcement mechanism. Instead, the ISC will ask its member schools to report to it on partnership working so it can share best practice.

In a Nutshell

The government's position has moved from one focussed on imposing requirements on independent schools, backed by external regulation.  But its central theme remains that the role and function of independent schools in the education sector as a whole is a wide one. There are clear expectations on the independent school sector:

  • increase access for disadvantaged pupils and looked after children
  • sponsor an academy or establish a free school if you have capacity
  • enter into sustainable and reciprocal arrangements to support state schools in targeted ways

The government may have stepped back from rigid frameworks and conspicuous enforcement mechanisms, but look closely below the waterline and the outcome still has teeth.

The lighter-touch narrative seems to be justified the sector's own initiative in working to meet the government's expectations, a justification which will falter if the government perceives that progress falters.  And the government has a tool to monitor progress at a sector level in the form of the ISC's proposed annual report of partnership activity. 

At the same time, reports of increasing partnership activity will raise expectations. For charitable schools in particular, on the more distant horizon, this will drive-up the threshold at which the government or the Charity Commission feel able to make a challenge on public benefit grounds.

Whilst the sense of imminent threat may have receded, the government has reconciled itself to the long-game, creating an environment in which it is in the interests of the sector as a whole for independent schools to continue to increase their work towards government expectations.


For further information, please contact Andrew Wherrett in our Charity Law team, on 0117 314 5269.

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