Ambiguities in the legislation present problems for local authorities seeking to deal with "illegal schools", write Alice Mennell and Graham Burns.
The past year has seen a sharp increase in prosecutions against “illegal schools”, brought under section 96 of the Education and Skills Act 2008 (ESA). In total only three cases have so far been brought under the Act, with the first being brought ten years after it came into force.
A person commits a criminal offence under s96 of the ESA if they conduct an independent educational institution that is not registered. The offence is one of strict liability. Persons found guilty can be sent to prison for up to 51 weeks or be fined up to £5000, or both. No prison sentences have so far been issued.
A school is registered if it appears on the register of independent educational institutions in England, an online database called Get information about schools.
The Department for Education (DfE) guidelines outline the circumstances in which an establishment must register as a school. In England, an educational setting will be required to register as a school if it is not a school maintained by a local authority or a non-maintained special school, and provides full-time education to at least 5 children of compulsory school age, or one child in the care of their local authority, or who has an education, health and care plan. In Wales, anywhere offering "full-time education" is expected to register. In Northern Ireland the law requires all independent schools to register. The same applies in Scotland.
Full-time education is not defined in the Act
The 2008 Act does not define ‘full-time education’, leaving inspectors to rely on the non-statutory guidelines issued by the DfE. The guidelines for England state that the Department would consider an institution to be providing full-time education “if it is intended to provide, or does provide, all, or substantially all, of a child’s education”. It further provides that it “generally” considers that any institution that is operating during the day, for at least 18 hours a week, needs to be registered as a school. Despite being somewhat ambiguous and non-binding, these guidelines are relied upon by the Crown Prosecution Service (CPS) as the pertinent criteria in bringing prosecutions.
This ambiguity creates challenges for establishments in their efforts to ensure their compliance with the Act. This was the case in the most recent s96 prosecution, in which the defence asserted that Ofsted effectively misled them over whether or not their continued operation depended on the DfE proceeding with prosecution. At one inspection, inspectors issued a warning notice to the Directors of Freiston Hall in Lincolnshire, indicating that they may be prosecuted if the school remained open, before assuring them they could continue after all. The District Judge was satisfied that this amounted to an abuse of process, and gave the defendants a 12 month conditional discharge, £1000 costs and a £20 victim surcharge.
Local authorities are also hindered by this vagueness in their attempts to deal with the problem of unregistered schools. A 2018 report by Hackney Council, which is particularly affected by this problem, stated that current legislation on unregistered schools "is at best patchy and at worst contradictory", asserting that authorities "find it impossible to satisfy themselves that the expected standards of safety and safeguarding are in place".
Increase in number of prosecutions
It is interesting to consider that the ESA was in force for almost ten years before the first prosecution was brought, and that two others then followed within a year. The explanation behind the lack of prosecutions prior to October 2018 may lie in costly processes and Ofsted’s formerly limited powers to investigate suspected unregistered schools. It may seem unsurprising, then, that the sharp increase in prosecutions over the last year has occurred in tandem with new Government plans to give Ofsted enhanced powers to address the problem of suspected illegal schools.
Published earlier this year, the Integrated Communities Action Plan outlines the Government’s intention to provide funding of "up to £3m" to certain local councils to aid them in tackling “concerns in out-of-school settings", in addition to legislation "to strengthen the enforcement regime for independent schools that fail to meet the required standards". It has also issued a statement on how the DfE regulates independent schools, along with a policy statement on prosecuting unregistered independent schools, in order to raise the profile of the issue. These statements have been shared with local authorities, independent schools, associations representing independent schools, and other stakeholder bodies, and are reflected in Ofsted’s revised inspection framework.
Prosecutions under s96 follow investigations by Ofsted’s unregistered schools task force, which was not established until January 2016. Ofsted’s inspectors may inspect an establishment if they have “reasonable cause to believe” that an unregistered independent school is in operation there.
Before 2016, Ofsted could only issue a warning notice to schools they suspected to be unregistered. It had limited investigative powers: it was not allowed to withdraw any evidence, forcibly gain entry to locked premises or pressure witnesses into being interviewed. Schools must be registered in order to be inspected. It is clear that the new regime provides a much stronger basis for regulation and control.
The DfE says it now works closely with Ofsted to decide whether cases are sent to the CPS. The CPS then determines whether the case is being brought on the basis of sufficient evidence and that it is in the public interest to prosecute. If the Director of Public Prosecutions takes a decision to charge, the case will proceed with the Secretary of State’s consent.
The explanation behind the recent appetite to prosecute under the ESA remains to be seen, though one might speculate on the extent to which prosecutions of this type are always in the public interest.