Adjusting to a new political landscape

The crystal ball gazing can stop. No need to continue to think about what a School Partnerships Tsar – or, for that matter, UKIP policies on grammar schools – might mean for the independent sector. We now know we have a Conservative majority government implementing what my temporary successor at the Independent Schools Council recently labelled “a set of full-blooded Conservative education policies”. But what does this mean for the independent sector? Does the demise of coalition politics herald a shift in direction or simply more of the same? 

This much we know

The Queen’s Speech is the starting point and there are at least four bills which will have an impact on the education sector. First, an Education and Adoption Bill continues the coalition’s focus on raising standards in schools, with new powers to speed up the process of changing a failing school’s leadership and turning it into an academy. Those considered to be “coasting” – not performing as well as they could be – would also face being taken over. Taken together with the Conservative’s manifesto pledge to open 500 new free schools, these measures arguably signpost a more competitive marketplace within which all schools will operate.

Secondly, a Childcare Bill is planned which will double the provision of free childcare. Under the proposals, parents in England would be entitled to 30 hours a week of free childcare for their three- and four-year-olds for 38 weeks of the year. The question of whether more funding will be made available is unanswered – remember that the last increase, from 12.5 hours to 15 hours, was unfunded. Existing commitments to replace employer childcare vouchers with a tax-free childcare allowance remain unchanged, representing an opportunity for boarding schools and others providing wrap-around care.

Two other bills have the potential for consequences for schools. Another Immigration Bill is promised, with a list of measures designed to control immigration, including a new offence of illegal working – with police given the power to seize the wages paid to illegal workers as the “proceeds of crime”. Schools with a Tier 4 licence will be more concerned by the continued inclusion of their overseas pupils within the “net migration” figures. The Conservative manifesto promised further reforms of the student visa system, with “new measures to tackle abuse and reduce the numbers of students overstaying once their visas expire”, a “review of the highly trusted sponsor system for student visas” and “targeted sanctions for those colleges or businesses that fail to ensure that migrants comply with the terms of their visa”. The rhetoric remains steadfastly anti-international students, even if the Home Office has always been privately reassuring about the schools’ sector.

Finally, an Extremism Bill sets out a wide range of measures to tackle the broadcasting of extremist material but also includes proposals for employers to check whether an individual is an extremist, barring them from working with children. This echoes the Counter-Terrorism and Security Act 2015, legislation introduced immediately prior to the election, which is likely to require significant development of schools’ safeguarding and IT acceptable use policies as more duties are imposed on schools to prevent radicalisation of their pupils. 

Regulation and compliance – more of the same?

So much for the new. How about the constants – which for independent schools have been all about increasing regulatory compliance burdens?

When Lord Nash wrote to the former chairman of the Education Select Committee in March 2014 setting out the coalition’s wide-ranging programme of reform of the regulation of independent schools, he wasn’t mincing his words. The bitter consultations last year on revised Independent School Standards and a reformed ISI were only the start. Whilst the suspicious-looking references to “national norms” were successfully removed by the time the standards were published in January 2015, new levels of regulatory uncertainty were introduced, such as the requirement to backdate teacher prohibition checks to April 2012 and the new proprietor prohibition checks which are still undeliverable.

In fact, if you like to calculate the rate of increase of statutory regulation, you could say that the new standards represent a 14 percent increase in regulatory burden with the introduction of an eighth standard – leadership and management. Governors and leaders will now be judged separately on how well they are discharging all their other compliance tasks, leading to the understandable concern that a single regulatory failing is now likely to result in multiple findings of non-compliance and, presumably, an increase in statutory notices and requirements for action plans.

Indeed, since January 2015 and the changes introduced by the new standards, schools have had to contend with: 

• revised statutory guidance on childcare disqualification, replacing guidance only introduced (to general dismay and disbelief) four months previously

• revised national minimum standards for boarding schools and residential special schools – echoing many of the changes in the standards but also introducing specific changes, ranging from a renewed emphasis on each individual pupil’s “special requirements” (a wide-ranging definition encompassing “any needs arising from physical, medical, sensory, learning, emotional or behavioural difficulties which require provision which is additional to or different from that generally required by children of the same age in schools other than special schools”) to specific standards requiring schools to provide eating assistance which promotes “dignity and choice” for pupils with disabilities

• reissues of ‘Keeping Children Safe in Education’ and ‘Working Together to Safeguard Children’, together with a raft of other non-statutory advice notes produced by the Department for Education in a pre-election blur

• the prevent duties on radicalisation mentioned above and draft statutory guidance due for implementation shortly

• not one but two complete reissues of Tier 4 sponsor guidance, including the abolition of highly trusted status

• an ongoing consultation on changes to the ISI inspection framework, with proposals for shorter, more frequent, compliance-only inspections with separate broader educational inspections

• a reduction in the age (from three to two) at which schools offering nursery or day-care provision need to register with Ofsted, buried in an omnibus piece of pre-election legislation. 

A compliance toolkit for schools

This degree of change has led us to think about how we can best continue to serve the sector. Concern about keeping up to date with regulatory change and the effects of non-compliance feature regularly in our dialogue with school clients. As a firm, we are fortunate to have invested heavily over the years not just in our documentation and knowhow but also in our people – to such an extent that there are over 50 lawyers at VWV who work regularly for independent schools. If we can’t keep schools up to date with regulatory change, then arguably no one can.

So we have now launched a compliance toolkit for schools. A subscription-based service, it allows schools to select from a menu of legal and regulatory modules where we will guarantee to provide regular notification of changes and recommendations of what amendments might be required to school policies, procedures or contracts. Other exciting functionality is still under wraps, but our aim is for it to harness the collective knowledge of all our specialist lawyers to deliver peace of mind to school leaders. You can register interest by emailing ComplianceToolkit@vwv.co.uk 

Matthew Burgess is a partner at leading education law firm Veale Wasbrough Vizards. T: 0117 314 5338 E: mburgess@vwv.co.uk W: www.vwv.co.uk