Tackling illegal schools

Councils have been calling for greater powers to tackle illegal schools. Tom Tabori examines some of the issues raised.

A school must be registered with the Department for Education (“DfE”) where it provides full time primary or secondary education to five or more children of compulsory school age. The proprietor of a school that operates without registering commits a criminal offence carrying a maximum 51 week sentence and unlimited fine.

Registration ensures that the school is deemed by the DfE to be likely to meet the independent school standards on the quality of education, the welfare health and safety of pupils, the suitability of staff, premises and accommodation.

In April 2016, Ofsted issued seven warning notices to suspected illegal schools in London, Birmingham, Luton, Wolverhampton and Staffordshire. In total, around 350 children were found on the schools’ premises. The inspectors reported open drains, filthy conditions, staff unchecked and unvetted, misogynist, homophobic and anti-Semitic literature, and children being at risk of being abused and radicalised.

Figures obtained by the BBC found a 65% increase in children recorded as home-educated over the last six years. Ofsted considers many of those running unregistered schools were exploiting the freedom parents have to choose to home-educate their children.

On 16 September 2016, the Local Government Association called on the Government to: (1) give councils the power to enter homes and other premises and see children to check the suitability of education being delivered if necessary; and (2) to compel parents to register home-educated children.

(1) “Give councils the power to enter homes and other premises and see children to check the suitability of education being delivered if necessary”

Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis. However, they do have a duty to make arrangements to enable them to establish the identities of children not receiving a suitable education and must intervene if it appears that parents are not providing a suitable education. To be satisfied that a child is receiving suitable education, local authorities may make home visits. If it appears that a child of compulsory school age is not receiving a suitable education, the local authority may serve a school attendance order, non-compliance with which is a criminal offence. If they are denied access or simply cannot tell whether a child is receiving elective home education or at an unregistered independent school, the local authority can refer the case to the DfE, who must take immediate steps, and Ofsted already holds the inspection powers sought by the LGA.

There is already evidence of this joint approach working, with a number of illegal schools in Birmingham and Luton closed down in the last year after joint inspections by Ofsted and the council. Given this, it is not clear that the need for these additional powers is compelling.

(2) “Give councils the power to compel parents to register home educated children”

There is, however, a strong case for the LGA’s second request: requiring parents to register home educated children. Local authorities are already aware of those leaving education: from 1 September 2016, all schools have had to notify their local authority when they are about to remove a pupil’s name from the school admission register. This leaves a regulatory gap of children who have never been enrolled at school.

Local authorities already have a duty to establish the identities of children not receiving a suitable education. Based on information they already hold, they can determine which children are of compulsory school age and are not on a school register. The DfE has issued them with guidance on various steps they can take to locate and identify home schooled children. From this, they can compile their own list of those children receiving elective home education. The virtue of a mandatory duty on parents to register home-educated children would, however, make local authorities’ task easier and strengthen their role as notifier to Ofsted.

As to privacy rights that might be said to be engaged by such a move, parents are already required to respond to local authority enquiries carried out to determine whether the child is being home schooled. Given this, there is little merit in requiring local authorities to expend resources investigating those who have elected home education. Such additional interference with the right to respect for private life as compulsory registration would entail would be proportionate to the aim of addressing the risks created by unregistered independent schools.

Conclusion

The LGA’s response is understandable. Central government policy in favour of academies and free schools regulated by the DfE rather than local authorities has led to a perception of a fragmented schools system lacking robust local oversight. But their oversight should not usurp the role of Ofsted in regulating independent schools. Compulsory registration of elective home education is sensible. It would strengthen local authorities’ ability to identify potential unregistered independent schools, identified during enquiries into the suitability of the education being received, but then notify the DfE. The priority is proper funding to ensure that (1) local government can identify any settings of concern for Ofsted and (2) Ofsted can inspect and afford to bring any necessary prosecutions.

Tom Tabori is a barrister at 39 Essex Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..