45. In any case where the Secretary of State for Education is satisfied that a local authority or governing body of a maintained school is acting unreasonably, the Secretary of State has the power to intervene by giving directions as to the exercise of the relevant power or duty.[1] Generally, enforcement action only takes place after an inspection by Ofsted judges the school as requiring significant improvement or special measures.[2]
46. In those circumstances, if it is a maintained school:
47. Academy schools are governed by a funding agreement between the academy trust which runs the school and the Secretary of State for Education. If an academy school goes into ‘special measures’, the Department for Education can terminate the funding agreement and transfer the school to another academy trust.[4]
48. Enforcement action in respect of independent schools takes a different form. If the standards set out in either the ISS or NMS are not met, then the Secretary of State for Education may require the proprietor of a school to provide an ‘action plan’ setting out the steps that will need to be taken to ensure that the relevant standards are met, and the time when each step will be taken.[5]
49. Ofsted or the ISI provides advice to the Department for Education about the content of any action plan, examines the action plan once it is received and advises as to whether or not it is acceptable. Ofsted or the ISI then undertakes an inspection after a period of time (three to six months) to see whether the action plan has been implemented. The relevant inspectorate then provides advice to the Department for Education. It is only if an action plan is not complied with, is rejected or the standard is not met upon any further inspection that enforcement action can be taken by the Department for Education. This action is limited to:
50. An appeal can take place to a tribunal and during that time enforcement action is suspended (this means that unless there is an emergency closure, a school can continue to operate for a number of years while such action is ongoing).[7]
51. The Department for Education can also apply to the magistrates’ court for an emergency order to remove a school from the register immediately.[8] The order can be made only where it appears that “a student at the institution in question is suffering or is likely to suffer significant harm”.[9]
52. Schools which take overseas students are required to have a licence which is issued by the Home Office (this was called a tier 4 licence and is now known as a student or child student route). Parents who are working overseas for the Ministry of Defence (MoD) or the Foreign, Commonwealth and Development Office (FCDO) receive funding from those departments to enable their children to attend British boarding schools. If schools are judged to be non-compliant with safeguarding standards, this will result in withdrawal of the Home Office licence and also means that the MoD and FCDO will no longer approve such schools for their employees’ children. Although not part of the enforcement process, the prospect of independent schools losing their Home Office licences and having funding for MoD or FCDO students suspended or removed is an incentive to ensure the standards are met.[10]
53. The Charity Commission is the regulator of all charities in England and Wales. Some state-funded schools are charities but they are classified as exempt charities which do not have to register with the Charity Commission.[11] Independent schools which are charities have to be registered with the Charity Commission. The Charity Commission does not record whether any of its registered charities are schools or are involved in the management of educational institutions and therefore could not provide any information on how many schools are run by registered charities.[12] The Department for Education does record which independent schools are also registered charities.[13]
54. The Charity Commission issues guidance and advice to all charities about safeguarding[14] and requires trustees to take reasonable steps to ensure that the beneficiaries of the charity (the school pupils) do not come to harm. Failure to safeguard those in their care is a “serious regulatory concern”.[15]
55. Since 2007, charities with income of over £25,000 (this includes independent schools) have been required to report all “serious incidents” to the Charity Commission.[16] If the Charity Commission considers that the charity trustees are not adequately discharging their duties in respect of safeguarding, it can undertake a wide range of regulatory and compliance action, from writing to ask for information about the response of the trustees to the issuing of action plans or initiating a statutory inquiry.[17]
56. The Charity Commission is reliant on schools sending it serious incident reports and has “publicly highlighted its concerns that there is under reporting of incidents”.[18]
57. The Charity Commission has statutory powers to suspend trustees or employees from the charity, appoint an interim manager to run the affairs of the charity, warn trustees if they have behaved a breach of trust, direct them to act in certain ways and ultimately to disqualify them from holding office and wind up the charity. [19]
58. The ISI does not have any powers of enforcement. Ofsted only has enforcement powers for some residential special schools that are also registered as children’s homes. In all other cases where the inspectorates judge a school to be failing, steps to address the failure can only be taken by the local authority (only for maintained schools) or by the Department for Education (for all schools). Where a school is also a registered charity, the Charity Commission also has enforcement powers.
59. The enforcement powers of the Charity Commission (set out above) are no substitute for the Department for Education having sufficient powers because not all independent schools are charities. Also, the Charity Commission’s regulatory focus is far narrower than that of the Department for Education, focussing on the conduct of charities’ trustees and the steps they take to protect a charity and its beneficiaries. The Charity Commission does not inspect safeguarding as such and is reliant on any schools which are registered charities submitting serious incident reports. The Charity Commission recognises that its regulatory role is especially important in relation to charities whose activities are not within the remit of any national regulatory body.[20] The Department for Education is the regulator of all registered schools.
60. The Charity Commission undertook two statutory inquiries in relation to safeguarding at Stanbridge Earls School. The first, initiated in 2013, found that the trustees had acted within the range of reasonable decisions open to them at this time.[21] A second statutory inquiry was opened in 2015 and only concluded in 2021. The findings of this second inquiry have not been published by the Charity Commission.
61. The Department for Education (DfE) has relatively few enforcement levers in respect of independent schools and its enforcement processes are lengthy. Ms Spielman told us:
“in some respects, DfE has fewer powers than I think we have in relation to early years, for example, or children’s homes, to act swiftly. I don’t believe it is a satisfactory situation at the moment.”[22]
62. Where a children’s home is failing to meet safeguarding standards, Ofsted has a range of powers, including:
It also has powers of emergency suspension or cancellation of registration.[23]
63. Where an independent school has not met one of the ISS or the NMS, the Department for Education has the more limited powers set out above. After requiring the school to produce an action plan to remedy the failings, the Department for Education can only impose restrictions requiring the school to cease to use any part of the premises, to close part of the operation or to cease to admit any new students or new students of a specific description.[24] The ultimate sanction is de-registering the school, which would mean it had to close, leaving the children on the school roll without any educational provision.
64. Taking action under its emergency power to remove a school from the register immediately is a blunt tool. As Ms Kate Dixon, director of school quality and safeguarding at the Department for Education, told us: “what you cannot do is close one temporarily using those powers, which might be a useful thing for us to be able to do”.[25] There is no emergency suspension power as there is for children’s homes.
65. In November 2020, Baroness Elizabeth Berridge said that the Department for Education was considering whether enforcement powers could be created to support intervention where safeguarding failures arise:
“I am looking at the speed at which we do enforcement in the department generally and the speed at which we intervene and looking at our processes in terms of both in the academy sector and in the independent sector, and, yes, unfortunately, also, when we get to enforcement in the independent sector, the difference in the regime is that, once we issue the notice, if the school appeals to the First-tier Tribunal, the enforcement notice doesn’t bite in law.”[26]
It remains to be seen whether this development leads to positive improvement.