Independent Schools in Scotland: Consultation on revised regulations.
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- This consultation invites you to send us your views on the contents of the attached draft "Registration of Independent Schools (Scotland) Regulations 2005". The draft regulations set out the information that independent schools will be required to provide to the Registrar of Independent Schools both when they first apply for registration and subsequently annually.
- The information required at registration is necessary to assist the Scottish Ministers in reaching a decision on whether they should grant registration to a prospective independent school. Independent schools are also required to provide annual information to maintain their registration. The information required by the Registrar has not been revised since it was first set out in regulations in 1957. 1
Background on the legislation related to independent schools
New Legislation (the School Education (Ministerial Powers and Independent Schools) (Scotland) Act 2004)
- This consultation is part of a wider change to the legislation covering the independent sector in Scotland. In November 2003, the Scottish Executive published Ensuring Improvement in Our Schools: A Consultation Paper and Draft Bill. 2 The Bill presented to the Scottish Parliament following that consultation was passed on 6 October 2004, received Royal Assent on 12 November 2004, and is now the School Education (Ministerial Powers and Independent Schools) (Scotland) Act 2004 (referred to in this consultation paper as "the 2004 Act").
- The 2004 Act updates and makes more effective and workable the existing legislation relating to independent schools, principally sections 98-103 of the Education (Scotland) Act 1980. It also takes account of current policy and thinking on child protection and welfare issues.
- We intend to commence Part 2 of the 2004 Act when new regulations, (replacing the 1957 Regulations and consistent with the provisions of the 2004 Act), are in place. This consultation, on the draft new regulations, is the start of a process intended to lead to these regulations coming into force. Our target date for bringing into force both Part 2 of the 2004 Act, and the draft regulations attached to this consultation paper (adjusted as appropriate to take account of this consultation), is 31 December 2005.
- A small number of schools will not have achieved full registration under the current arrangements by the time of commencement of Part 2 of the Act and will be subject to transitional arrangements. The details of these arrangements are currently being developed and will be discussed with the schools involved, and reflected as necessary in the commencement order for Part 2 of the 2004 Act. It is likely that Her Majesty's Inspectorate of Education ( HMIE) will be involved in the inspection of these schools.
- With the commencement of Part 2 of the 2004 Act the definition of an independent school will become "a school at which full-time education is provided for pupils of school age (whether or not such education is also provided for pupils under or over that age), not being a public school, or a grant-aided school". This amends the previous definition, under which only independent schools with five or more pupils in full time education needed to be registered. This means that existing independent schools with pupil rolls of less than five will be required to be registered once Part 2 of the 2004 Act is commenced. It is the intention to allow six months from the commencement of Part 2 of the 2004 Act for the registration of these existing schools. The draft regulations will apply to these schools in the same way as other prospective independent schools.
- The consultation on the draft School Education (Ministerial Powers and Independent Schools) (Scotland) Bill, which ran from 6 November 2003 until 30 January 2004, invited views from interested parties on proposed changes to the overall registration and regulation of independent schools in Scotland.
- The question was asked: What type of information do you think should be necessary for a person who wishes to operate an independent school to give before the school can be registered? A list of examples was proffered, including: pupil numbers; pupil age range; details of teachers, including their qualifications and General Teaching Council registration number, if relevant; whether the school is to cater for children with special educational needs; details of the proposed curriculum and its delivery, including resources; details of the premises and plans of the facilities; fire certificates and evidence of compliance with health and safety requirements; and copies of child protection policies.
- All of the respondents who commented on this question agreed with the proposed types of information. The examples proffered were seen to be a comprehensive and useful basis for new regulations. Some respondents suggested additional information that should be provided to the Registrar at the time of registering a school, i.e.:
- information on how the school would challenge discrimination and promote equality;
- proposals for social inclusion and disability; and
- financial viability.
In light of the responses to the earlier consultation, we propose to cover the first two points by asking for information on equal opportunities policies in the new regulations. We do not propose to include details on financial viability in the draft regulations, as this is commercially sensitive financial information and we believe it is unnecessary in the context of deciding on the registration of an independent school. However we would welcome respondents' views on this.
- There was concern from some respondents that the requirements for information should not place an unnecessary burden on independent schools. We think that all the information in the draft regulations is required in order to allow Scottish Ministers to make informed decisions about independent schools. It is also information that schools themselves should hold for the purposes of their own management. We welcome views on whether there is any information that you consider unnecessary, or that is already collected through another route, and to a similar timetable, that we could access.
- Several respondents commented that it would be important to cross-refer with information required for registration with the Care Commission to ensure consistency and avoid duplication. The Scottish Executive and the Care Commission are currently considering how best to share information, with a view to reducing the burden on independent schools of responding to duplicate requests.
- There is no fee associated with registering a school. The existing administrative costs involved in registering a school are estimated to be on average £1500 per school, taking into account the time involved for the proprietor/headteacher to prepare and submit the evidence required. Administrative costs involved in submitting the annual returns are estimated to be on average £180 per school. It is not envisaged that the proposed changes to the regulations will significantly increase these costs.
- This assessment is based on a previous one produced to accompany the School Education (Ministerial Powers and Independent Schools) (Scotland) Bill. The figures and assumptions made in the assessment are based on feedback from the formal consultation on the Bill and interviews with a number of schools. We would however welcome any further feedback on such costs.
Current Requirements and the Proposed Draft Regulations
- A detailed comparison between the current system and the draft regulations is contained in the following sections.
- As mentioned above, the current regulations which set out what information is required to apply for registration as an independent school were established in 1957, with a minor adjustment in 1975 (changing the date for submission of the annual returns from January to September).
Application for registration
- The Registration of Independent Schools (Scotland) Regulations 1957 require every application for registration as an independent school to provide the information set out in the schedule to the Regulations, which is:-
- the name of the school;
- in the case of an incorporated or unincorporated body, its title, a description of the nature of the body, along with the names and addresses of each member of the body directly responsible for the management of the school;
- in the case of an individual proprietor, that individual's name and address;
- the address to which communication to the proprietor should be sent;
- a description of the heritable property to be occupied by the school;
- the proposed number of pupils arranged in groups according to their year of birth, their sex and whether or not they are boarders; and
- the name, date of birth and qualifications of each teacher employed in the school.
- It has become apparent that the information required by the 1957 Regulations has not provided a sufficient basis for Scottish Ministers to make informed decisions on registrations. Additional information has therefore usually had to be requested, including:
- confirmation that all proposed teachers and other staff have been Disclosure Scotland checked (disclosure certificate numbers with date of issue being required), and a copy of the child protection procedure;
- a copy of the curriculum;
- a statement of the aims of the school;
- the school prospectus;
- the health and safety procedure along with the report of the most recent risk assessment;
- the fire safety procedure (if this is separate from the health and safety procedure) along with the report of the most recent risk assessment; and
- a plan of the building to be used indicating the sizes of the rooms, what they will be used for, and an indication of the sanitary facilities.
- The information required by the current Regulations, together with the supporting material, would normally be sufficient to enable Scottish Ministers to make an informed decision, in consultation with HMIE, on whether the school should be granted provisional registration. This would then allow the school to commence operations. HMIE would then be asked to carry out an initial registration inspection (called a "stage one" inspection) on behalf of the Registrar. The aim of this inspection is to provide the school with an indication of what action, if any, is required before the school can achieve full registration.
- Under the current regime, to be replaced by the provisions set out in the 2004 Act, independent schools are first provisionally registered until the school has been inspected and the proprietor informed that the registration is final. Under the new arrangements provisional registration will no longer exist. Instead schools will be granted full registration immediately, but Scottish Ministers may, on granting an application for registration, impose such conditions on the carrying on of the school as they consider fit. HMIE will continue to have a role in the registration of new independent schools, and new arrangements will be developed and agreed.
- The 1957 Regulations (as amended in 1975) require any changes to the information provided relating to pupils and teachers to be submitted to the Registrar each September. This information is collected as part of the Annual School Census, carried out by the Scottish Executive each September. This information is very helpful to the Scottish Executive, and others interested in the sector, in proving an overview of the number of pupils and teachers in independent schools. The census data for 2004 can be found at www.scotland.gov.uk/Publications/2005/04/18170740.
- The information on pupil numbers, together with other information such as plans of the school buildings, is used by the Registrar to set a school's "optimum roll". The optimum roll is the maximum number of pupils a school can have on its roll, and is set on health and safety grounds. If a school has boarding facilities, the optimum roll will also state how many pupils the school can take as boarders. The term "optimum" has proved confusing in this context, so we intend to replace it with "maximum roll" from August 2004. It will still mean the total number of pupils a school can enrol, and schools will continue to apply to the Registrar for permission to increase their maximum roll.
- The Scottish Executive also collects data on the destinations of school leavers from the independent sector. The latest data can be viewed at www.scotland.gov.uk/stats/bulletins/00380-00.asp. School level information is published on www.scottishschoolsonline.
The Draft New Regulations
- The draft regulations can be found at the back of this consultation paper. They set out the information that proprietors of independent schools will be required to provide, both when they first apply to register an independent school, and annually afterwards.
- The draft regulations refer throughout to the "proprietor" of an independent school. This term is defined in section 135 (1) of the Education (Scotland) Act 1980 as follows:
" 'proprietor' in relation to an independent school means the managers of such school, and for the purposes of the provisions of this Act relating to applications for the registration of independent schools includes any person or body of persons proposing to be the managers…"
Therefore when the draft regulations and this consultation paper refer to "proprietor" the word is being used as defined above, i.e. those who manage, or propose to manage, an independent school.
- The draft regulations do not ask schools for information relating to pre-school education, as independent schools are only registered on the basis of their provision for pupils of school age.
- The 1957 regulations give Scottish Ministers the power to require proprietors to provide the information set out in the regulations, and if the information is still not provided, ultimately to remove the school from the Register of Independent Schools (meaning it could no longer operate).
- This provision is not repeated in the draft regulations because, under the 2004 Act, Scottish Ministers will be able to serve a Notice of Complaint on the proprietor of an independent school if a proprietor fails to give Ministers the information required under the draft regulations, or has failed to inform Ministers of a change to particular information. If a proprietor fails to comply with such a Notice, Ministers can make an order directing the Registrar to remove the school from the Register. This would mean the school could no longer operate.
Application for Registration
- Part 1 of the Schedule to the draft regulations sets out the information that potential proprietors of independent schools would be required to provide to the Scottish Ministers when applying to register a prospective independent school. Existing independent schools would not need to provide this information, but must inform the Registrar if certain information changes (see paragraphs 35 and 36 below).
- The Schedule of the draft regulations sets out in detail exactly what information prospective proprietors will have to provide, i.e.:
- the name of the school;
- contact details for the school; a description of the heritable property occupied by the school; and plans of each building forming part of the school;
- the provision offered by the school, e.g. primary, secondary, additional support for learning, etc.;
- the date from which the school is to be operational;
- the maximum intended number of pupils in the school;
- for an individual proprietor that person's contact details and residential address:
- for a proprietor who is not an individual (e.g. a corporate body), details of the proprietor and their contact details. For example, the names and addresses of the members of the body, or of the committee of the body, directly responsible for the management of the school;
- a copy of the school's curriculum, statement of aims, prospectus, fire risk assessment procedure, health and safety risk assessment procedure, child protection procedure, equal opportunities policy, admissions policy, and
- a statement confirming that a Criminal Records Certificate (also known as a disclosure check) has been issued in respect of the proprietor and proposed teachers in the school.
We would welcome respondent's views on whether the regulations should specify in more detail what information prospective proprietors should provide under point (h) above, and if so, what information prospective proprietors should be required to provide under these headings.
- As schools offering both boarding and educational provision will be required to be registered with both the Care Commission and the Scottish Ministers, consideration is being given to how the two organisations should share information.
- Part 2 of the Schedule to the draft regulations sets out the information that existing independent schools would be required to submit annually. The draft regulations include the current requirements concerning pupil and teacher information:
- the number of pupils in the school, arranged by their year of birth, sex, and whether they are day or boarding pupils;
- the names, date of birth, and qualifications of each teacher employed at the school.
There are also some additional requirements in the draft regulations, including:
- the sex of the teacher; whether each teacher at the school is employed on a full-time or part-time basis; the subject or subjects they are employed to teach; and whether they are registered with the General Teaching Council for Scotland;
- confirmation that any new teacher employed at the school within the previous 12 months has had a satisfactory Criminal Records Certificate issued, in accordance with section 115 of the Police Act 1997; and
- confirmation that the school has reviewed its health and safety assessments, including fire safety risk assessments, in the last 12 months.
Much of this information is important to ensure the safety and welfare of pupils in the school, and to ensure that the details held on the Register of Independent Schools in Scotland are accurate.
- The information required from independent schools under the current regulations is collected each September through the Annual School Census, undertaken by the Scottish Executive. In the same month the office of the Registrar of Independent Schools contacts proprietors by e-mail or post and asks them to confirm or amend the information the Executive holds on their school, such as the address of the proprietor. We would welcome views on whether this is the best time of year to collect this information, and if not, when would be a better time.
- Under the draft Regulations information on pupil and teacher numbers, and whether teachers are GTC registered, will continue to be collected as part of the Annual School Census. We are currently looking into whether the Annual School Census could also be used to collect the information that is currently collected separately. We would be interested in respondents' views on this, and any views on the collection of this data electronically.
- Under the draft regulations proprietors of existing independent schools are required to inform the Registrar within one month of changes to the information set out paragraphs 1 to 8 of Part 1 of the Schedule to the Regulations (covered in brief in points a-g in paragraph 30 above).
- Existing independent schools would not be required under the draft regulations to provide the information set out in paragraphs 1 to 8 of Part 1 of the Schedule, unless this information (e.g. the school's address) was to change in some way. Existing independent schools which did not provide this information when they were first established will not be required by the draft regulations to provide it now.
This is your opportunity to give us your views on the draft regulations that will set out the information which the Registrar of Independent Schools should receive before an independent school can be registered, and from independent schools on an annual basis.
- Do you agree that the pre-registration information required in the draft regulations is the right information? If not, what would you propose be added or deleted? (See paragraphs 29 and 30 for more information).
- Do you have any views on whether the draft regulations should be more specific about what pre-registration information is required in certain areas (e.g. admissions policy, curriculum)? If so, what do you propose proprietors should be required to provide in these areas? (See paragraph 30 for more information).
- Do you think prospective proprietors should be required to provide details of the financial viability of their school when they apply to register it? (See paragraph 10 for more information).
- Do you agree with the timing of the annual return collection of data, currently collected in September? If not, when do you suggest would be a better time to collect this data, and why? (See paragraph 33 for more information).
- Do you have any views on using the Annual School Census to collect the information required from schools each year under the draft regulations? Do you also have any views on the collection of data from schools electronically? (See paragraph 34 for more information).
- Are you aware of any of the information required in the draft regulations already being collected through another route, and to a similar timetable, and that could be accessed by the Scottish Executive? (See paragraph 11 for more information).
- Do you think the financial burden on new schools applying for registration (estimated at an average of £1500 per school), or ongoing costs for annual returns (estimated at an average of £180 yearly per school), would change due to the additional information required in the draft regulations? If so, what estimates would you make of the costs involved? (See paragraphs 13 and 14 for more information).
- Do you have any other comments related to the proposed information required from independent schools at registration, and subsequently annually, which you would like to add? (See paragraphs 29 and 30 for more information).
Responding to this consultation paper
We are inviting written responses to this consultation paper by 19 September 2005.
Please send your response to:
Scottish Executive Education Department
Edinburgh, EH6 6QQ
If you have any queries contact Paul Wilson on 0131 244 0941.
We would be grateful if you could clearly indicate in your response which questions or parts of the consultation paper you are responding to (using the consultation questionnaire if appropriate) as this will aid our analysis of the responses received.
This consultation, and all other SE consultation exercises, can be viewed online at http://www.scotland.gov.uk/consultations. You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is.
The Scottish Executive now has an email alert system for Scottish Executive consultations ( SEconsult). This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new Scottish Executive consultations (including web links). SEconsult complements, but in no way replaces, SE distribution lists and is designed to allow stakeholders to keep up to date with all Scottish Executive consultations, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register.
Access to consultation responses
We will make all responses available to the public in the Scottish Executive Library by 17 October 2005 and on the Scottish Executive consultation web pages by 24 October 2005, unless confidentiality is requested. All responses not marked confidential will be checked for any potentially defamatory material before being logged in the library or placed on the website.
The Scottish Executive Consultation Process
Consultation is an essential and important aspect of Scottish Executive working methods. Given the wide-ranging areas of work of the Scottish Executive, there are many varied types of consultation. However, in general Scottish Executive consultation exercises aim to provide opportunities for all those who wish to express their opinions on a proposed area of work to do so in ways which will inform and enhance that work.
While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body. Consultation exercises may involve seeking views in a number of different ways, such as public meetings, focus groups or questionnaire exercises.
Typically, Scottish Executive consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the area of consultation, and they are also placed on the Scottish Executive web site enabling a wider audience to access the paper and submit their responses 3 Copies of all the responses received to consultation exercises (except those where the individual or organisation requested confidentiality) are placed in the Scottish Executive library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD, telephone 0131 244 4552).
The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process. Depending on the nature of the consultation exercise the responses received may:
- indicate the need for policy development or review;
- inform the development of a particular policy;
- help decisions to be made between alternative policy proposals;
- be used to finalise legislation before it is implemented.
If you have any comments about how this consultation exercise has been conducted, please send them to:Ben Haynes
Scottish Executive Education Department
Edinburgh, EH6 6QQ
THE DRAFT REGULATIONS
The Registration of Independent Schools (Scotland) Regulations 2005
Made - - - - 2005
Laid before the Scottish Parliament- 2005
Coming into force - -- 2005
The Scottish Ministers, in exercise of the powers conferred by section 98(3) and 98A(2) of the Education (Scotland) Act 1980 and of all other powers enabling them in that behalf, hereby make the following Regulations:
Citation, commencement and interpretation1. -
(1) These Regulations may be cited as the Registration of Independent Schools (Scotland) Regulations 2005 and shall come into force on 31st December 2005.
(2) In these Regulations-
(a) "boarding pupil" in relation to a school means a pupil provided with accommodation there (or elsewhere under arrangements made by the proprietor of the school);
(b) "the Council" means the General Teaching Council for Scotland;
(c) "Register" means the register of independent schools kept by the Registrar pursuant to section 98(1) of the Education (Scotland) Act 1980;
(d) "Schedule" means the Schedule to these Regulations;
(e)"electronic address" means such address as may be provided for by electronic means in terms of the Electronic Communications Act 2000.
The Registration of Independent Schools (Scotland) Regulations 1957 and the Registration of Independent Schools (Scotland) Amendment Regulations 1975 are hereby revoked.
INFORMATION AS TO PARTICULARS TO BE FURNISHED TO THE REGISTRAR
Application for registration of an independent school
3. Every application for the registration of an independent school shall:-
(a) be made in writing by the proprietor of that school to the Scottish Ministers and shall be in such form as the Scottish Ministers may from time to time direct;
(b) include information as to the particulars specified in Parts 1 and 2 of the Schedule; and
(c) include a certificate signed by the proprietor that, to the best of the proprietor's knowledge and belief, the statements made in the application are true and accurate.
Notification to Registrar of changes to certain particulars4.
- (1) Within one month of the occurrence of a designated change affecting a registered school the proprietor shall furnish the Registrar with written notification of:- the nature of the designated change; the date on which it occurred; and information as to such of the particulars specified in paragraph (3) as are applicable. In paragraph (1), "designated change" means a change in any of the particulars specified in paragraphs 1 to 8 of Part 1 of the Schedule. The specified particulars are:- where there is a change of proprietor, the name, postal address, electronic address, telephone number and facsimile number of the new proprietor and the relevant details of the new proprietor in terms of paragraph (6), (7) and (8) of Part 1 of the Schedule; where there is a change of the school's name, the name of the new school; and where there is a change of the school's location, the new postal address of the school together with, if changed, the electronic address, telephone number and facsimile number.
Where there is an obligation in terms of this regulation to notify the Registrar of a change of proprietor, the reference in paragraph 3(a) above to proprietor shall mean the new proprietor.
Information as to the particulars specified in Part 2 of the Schedule shall be notified in writing to the Registrar by the proprietor in September of each year.
Authorised to sign on behalf of the Scottish Ministers
St Andrew's House,
Information as to Particulars required in an Application for Registration
(1) The name of the school.
(2) The postal address, electronic address, telephone number and facsimile number of the school, including a description of the heritable property occupied for the purposes of the school and plans of each building forming part of the school, indicating sanitary facilities and the dimensions of each room.
(3) The type of school, detailing which combination of the following describe the school, and the education or other provision made within it:-
(c) Provision for education other than referred to within paragraphs (3)(a) or (3)(b);
(d) Day or boarding;
(e) Additional support for learning;
(4) The maximum intended number of pupils in the school.
(5) The date from which the school is to be operational.
(6) In the case of an individual proprietor, that person's full name, usual residential address, electronic address, telephone number and facsimile number.
(7) The postal address, electronic address, telephone number and facsimile number to which communications to the proprietor should be sent if different from (6).
(8) If the proprietor is not an individual-
(a) the name of the proprietor;
(b) the postal address, electronic address, telephone number and facsimile number of the proprietor's principal office and (where it has one) registered office;
(c) the full name, postal address, electronic address, telephone number and facsimile number, of any person to whom the proprietor wishes communications concerning the school to be addressed;
(d) in the case of a body corporate, Scottish partnership, or unincorporated association (other than a Scottish partnership), the title of the body, partnership or association, a description of its nature and the full name and usual residential address of each person who is either a director, manager or secretary of that body corporate, a partner in that Scottish partnership, or concerned in the management or control of that association, or who purports to act in such capacity;
(e) in the case where the school is, or is conducted by, a charity, the name of that charity and any number under which it is registered as a charity.
(9) A copy of the school's:-
(ii) Statement of Aims;
(iv) Fire Risk Assessment Procedure;
(v) Health and Safety Risk Assessment Procedure;
(vi) Child Protection Procedure including a statement of the school's policy and practice on obtaining standard disclosure and enhanced disclosure checks within the meaning of Part V of the Police Act 1997 ("the 1997 Act");
(vii) Equal Opportunities Policy;
(viii) and Admissions policy.
(10) A statement confirming that a satisfactory Criminal Records Certificate, under reference to section 115 of the 1997 Act, has been issued in respect of the proprietor of the school, together with all proposed teachers in it.
Information as to Particulars required in an Annual Return
(1) The number of pupils in the school arranged by their year of birth, their sex and whether they are day or boarding pupils.
(2) The following particulars in relation to every teacher employed at the school (and that with reference to the position as at the date on which the Annual Return is completed):-
(a) their full name;
(b) their date of birth and sex;
(c) whether they are employed on a full-time or part-time basis and if employed on a part-time basis the number of hours for which that teacher is employed per week;
(d) their qualifications, the subject or subjects for which they are employed to teach, and confirmation of whether or not they are registered with the Council.
(3) A statement confirming that a satisfactory Criminal Records Certificate, under reference to section 115 of the 1997 Act, has been issued in respect of any new teacher employed at the school within the previous 12 month period.
(4) A statement confirming that the assessments undertaken in terms of the School's Fire Risk Assessment Procedure and Health and Safety Risk Assessment Procedure have been reviewed within the previous 12 month period.