44Independent educational institution standards(1)

The Education and Skills Act 2008 is amended as follows.

(2)

In section 94 (independent educational institution standards)—

(a)

after subsection (1) insert—(1A)

A standard within subsection (1)(d) in relation to a proprietor may be prescribed by reference—

(a)

in the case of a proprietor which is a body of persons—

(i)

to whether persons having general control and management of, or legal responsibility and accountability for, the proprietor are, in the opinion of the Secretary of State, fit and proper persons to be involved in the running of an independent educational institution;

(ii)

to whether the Secretary of State is notified before a new person becomes involved in the general control and management of, or assumes legal responsibility and accountability for, the proprietor;

(b)

in the case of a proprietor which is an individual, to whether that individual is, in the opinion of the Secretary of State, a fit and proper person to be involved in the running of an independent educational institution.

;

(b)

after subsection (3) insert—(3A)

A standard may be prescribed by reference to whether or not the proprietor of an independent educational institution has regard to guidance issued, or a document published, by the Secretary of State from time to time.

(3)

After section 99 insert—

99AInspections on appeal against decision not to register(1)

Where an appeal is brought under section 125(1)(a) against a decision under section 99(2) (standards not likely to be met on registration), the Secretary of State may direct the Chief Inspector to—

(a)

inspect the institution which is the subject of the appeal, and

(b)

make a report to the Secretary of State on the extent to which any relevant standard is likely to be met in relation to the institution once it becomes a registered independent educational institution.

(2)

In this section “any relevant standard” means any independent educational institution standard that is—

(a)

specified in the direction by the Secretary of State for the purposes of the inspection, or

(b)

considered to be relevant by the Chief Inspector in the circumstances of the case.

(4)

After section 118 insert—

118ASuspension of registration(1)

The Secretary of State may suspend the registration of an independent educational institution if—

(a)

the Secretary of State is satisfied that one or more of the independent educational institution standards are not being met in relation to the institution, and

(b)

the Secretary of State has reasonable cause to believe that, as a result, one or more students at the institution will or may be exposed to the risk of harm.

(2)

In determining the matters in subsection (1)(a) and (b), the Secretary of State must (in particular) take account of any information provided by the Chief Inspector or an independent inspectorate that is relevant.

(3)

Before suspending the registration of an institution, the Secretary of State must give the proprietor of the institution a warning notice—

(a)

stating that the Secretary of State is proposing to suspend the registration of the institution and explaining the effect of a suspension,

(b)

specifying the dates on which the Secretary of State proposes to start and end the suspension,

(c)

identifying the standard or standards that are not being met, which the Secretary of State believes will or may result in one or more students being exposed to the risk of harm,

(d)

setting out the grounds for that belief, and

(e)

specifying the period during which the proprietor may make representations about the proposed suspension (the “specified period”).

(4)

The Secretary of State must have regard to any representations made by the proprietor during the specified period in deciding whether to suspend the institution’s registration.

(5)

Where the Secretary of State decides not to suspend the institution’s registration, the Secretary of State must give the proprietor of the institution a notice informing the proprietor of the decision.

(6)

Where the Secretary of State decides to suspend the institution’s registration, the Secretary of State must give the proprietor of the institution a notice informing the proprietor of the decision and—

(a)

specifying the date on which the suspension starts,

(b)

specifying the date on which the suspension ends, which must be no more than 12 weeks after the suspension starts, and

(c)

explaining the right of appeal conferred by section 125.

(7)

Subsections (3) to (6) do not apply where the Secretary of State considers that, in order to protect one or more students at the institution from the risk of harm, it is necessary to suspend an institution’s registration without first seeking representations.

(8)

In such a case, the Secretary of State must, as soon as reasonably practicable after deciding to suspend the institution’s registration, give the proprietor a notice—

(a)

stating that the Secretary of State has decided to suspend the registration of the institution and explaining the effect of a suspension,

(b)

identifying the standard or standards that are not being met, which the Secretary of State believes will or may result in one or more students being exposed to the risk of harm,

(c)

setting out the grounds for that belief,

(d)

specifying the date on which the suspension starts,

(e)

specifying the date on which the suspension ends, which must be no more than 12 weeks after the suspension starts, and

(f)

explaining the right of appeal conferred by section 125.

(9)

The suspension of an institution’s registration does not affect the continuation of the registration (but see section 118C: offence of providing education at an institution when its registration is suspended).

(10)

Where an institution’s registration is suspended, the Secretary of State must include an indication to that effect on the register for the period of the suspension.

(11)

For the purposes of this section and section 118B “harm” has the meaning given by section 31(9) of the Children Act 1989.

118BPeriod of suspension(1)

A suspension under section 118A—

(a)

takes effect on the date specified in the notice of suspension under section 118A(6) or (8), and

(b)

ends on the date specified in that notice, subject to subsections (2) to (4).

(2)

The Secretary of State must lift a suspension of an institution’s registration if the condition mentioned in section 118A(1)(b) is no longer met.

(3)

The Secretary of State may lift a suspension of an institution’s registration if the Secretary of State considers it appropriate to do so.

(4)

The Secretary of State may extend a suspension of an institution’s registration for a period of not more than 12 weeks if the conditions mentioned in paragraphs (a) and (b) of section 118A(1) are still met.

(5)

Before extending a suspension of an institution’s registration, the Secretary of State must give the proprietor of the institution a warning notice—

(a)

stating that the Secretary of State is proposing to extend the suspension,

(b)

specifying the date on which the Secretary of State proposes to end the extension,

(c)

identifying the standard or standards that are not being met, which the Secretary of State believes will or may result in one or more students being exposed to the risk of harm (which need not be the same standards mentioned in the notice for the previous period of suspension),

(d)

setting out the grounds for that belief (which need not be the same grounds mentioned in the notice for the previous period of suspension), and

(e)

specifying the period during which the proprietor may make representations about the proposed extension (the “specified period”).

(6)

The Secretary of State must have regard to any representations made by the proprietor during the specified period in deciding whether to extend the suspension.

(7)

Where the Secretary of State decides not to extend the suspension, the Secretary of State must give the proprietor of the institution a notice informing the proprietor of the decision.

(8)

Where the Secretary of State decides to extend the suspension, the Secretary of State must give the proprietor a notice informing the proprietor of the decision and—

(a)

specifying the date on which the extension ends, and

(b)

explaining the right of appeal conferred by section 125.

(9)

Subsections (5) to (8) do not apply where the Secretary of State considers that, in order to protect one or more students at the institution from the risk of harm, it is necessary to extend the suspension of an institution’s registration without first seeking representations.

(10)

In such a case, the Secretary of State must, as soon as reasonably practicable after deciding to extend the suspension, give the proprietor a notice—

(a)

stating that the Secretary of State has decided to extend the suspension,

(b)

(c)

setting out the grounds for that belief (which need not be the same grounds mentioned in the notice for the previous period of suspension),

(d)

specifying the date on which the extension ends, which must be no more than 12 weeks after the extension starts, and

(e)

explaining the right of appeal conferred by section 125.

(11)

Where the Secretary of State extends the suspension of an institution’s registration, the suspension lasts until the date specified in the notice under subsection (8)(a) or (10)(d), unless it is lifted under subsection (2) or (3) or extended again under subsection (4).

118COffence of conducting institution when its registration is suspended(1)

The proprietor of an independent educational institution that provides education or supervised activity to one or more students while its registration is suspended is guilty of an offence.

(2)

It is a defence for a person charged with an offence under subsection (1) to prove that—

(a)

they and the head teacher of the institution (if a different person) did not know and could not reasonably have been expected to know of the existence of the notice given under section 118A or 118B that caused the suspension to have effect at the time of the alleged offence, or

(b)

the conduct prohibited by subsection (1) ceased as soon as reasonably practicable after that notice was given.

(3)

A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding the maximum term for summary offences or to a fine (or to both).

(4)

“The maximum term for summary offences” means—

(a)

if the offence is committed before the time when section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales) comes into force, six months;

(b)

if the offence is committed after that time, 51 weeks.

(5)

In subsection (1), the reference to providing education or supervised activity does not include providing boarding accommodation or activities necessary to ensure the welfare of boarders (see section 118D for provision about stopping boarding).

118DSuspension of registration: requirement to stop providing boarding accommodation(1)

Where the Secretary of State suspends the registration of a boarding institution, the Secretary of State may impose on the proprietor of the institution a requirement to stop providing boarding accommodation to its students (a “stop boarding requirement”).

(2)

A stop boarding requirement may relate to all boarders at the institution or boarders of a particular description.

(3)

Before imposing a stop boarding requirement on the proprietor of a boarding institution, the Secretary of State must give the proprietor notice in accordance with—

(a)

subsections (4) and (8),

(b)

subsection (9), or

(c)

in the case of a new stop boarding requirement imposed under section 118E, that section.

(4)

Where the Secretary of State gives a warning notice under section 118A(3) (notice of proposed suspension of registration) to the proprietor of a boarding institution, the notice must also—

(a)

state whether the Secretary of State is proposing to impose a stop boarding requirement, and

(b)

if the Secretary of State is proposing to do so—

(i)

explain the effect of a stop boarding requirement,

(ii)

specify whether the proposed requirement would relate to all boarders at the institution or, if not, the description of boarders to whom it would relate,

(iii)

specify the dates on which the Secretary of State proposes to start and end the requirement, and

(iv)

explain that the proprietor may make representations about the proposed requirement during the period specified in the notice for representations about the proposed suspension (the “specified period”).

(5)

The Secretary of State must have regard to any representations made by the proprietor during the specified period in deciding whether to impose a stop boarding requirement.

(6)

Subsections (7) and (8) apply where the Secretary of State has given the proprietor of a boarding institution a warning notice under section 118A(3) which states that the Secretary of State is proposing to impose a stop boarding requirement.

(7)

Where the Secretary of State decides not to impose a stop boarding requirement on the proprietor of the institution—

(a)

in a case where the Secretary of State also decides not to suspend the institution’s registration, the Secretary of State must give the proprietor a notice of the decision not to impose a stop boarding requirement at the same time as the Secretary of State gives the notice under section 118A(5);

(b)

in a case where the Secretary of State decides to suspend the institution’s registration, the notice under section 118A(6) (notice of decision to suspend registration following warning notice) must state that the Secretary of State has decided not to impose a stop boarding requirement.

(8)

Where the Secretary of State decides to impose a stop boarding requirement on the proprietor of the institution, the notice under section 118A(6) (notice of decision to suspend registration following warning notice) given to the proprietor must also inform the proprietor of that decision and—

(a)

specify whether the requirement relates to all boarders at the institution or, if not, the description of boarders to whom it relates,

(b)

specify the date on which the requirement starts, which may be on the same date as the suspension starts or on a later date,

(c)

specify the date on which the requirement ends, which may be on the same date as the suspension ends or on an earlier date, and

(d)

explain the right of appeal conferred by section 125.

(9)

Where the Secretary of State decides to impose a stop boarding requirement on the proprietor of a boarding institution in a case where the Secretary of State has not given the proprietor a warning notice under section 118A(3) (see section 118A(7)), the notice under section 118A(8) (notice of decision to suspend registration in urgent cases) given to the proprietor must also—

(a)

state that the Secretary of State has decided to impose a stop boarding requirement and explain the effect of a stop boarding requirement,

(b)

specify whether the requirement relates to all boarders at the institution or, if not, the description of boarders to whom it relates,

(c)

specify the date on which the requirement starts, which may be on the same date as the suspension starts or on a later date,

(d)

specify the date on which the requirement ends, which may be on the same date as the suspension ends or on an earlier date, and

(e)

explain the right of appeal conferred by section 125.

(10)

Where a stop boarding requirement is imposed in relation to a boarding institution, the Secretary of State must include an indication to that effect on the register for the period of the requirement.

(11)

In this section and sections 118E and 118F—

“boarding institution” means an independent educational institution that provides boarding accommodation for some or all of its students;

“stop boarding requirement” has the meaning given in subsection (1);

and references to an institution providing boarding accommodation to students include an institution arranging for boarding accommodation to be provided to its students by another person.

118EPeriod of stop boarding requirement(1)

A stop boarding requirement—

(a)

takes effect—

(i)

on the date specified in the notice of suspension under section 118A(6) or (8) (see section 118D(8) and (9)), or

(ii)

in the case of a new stop boarding requirement imposed under this section, on the date specified in the notice of extension under section 118B(8) or (10) (see subsections (10) and (11)), and

(b)

ends on the date specified in that notice, subject to subsections (2) to (4).

(2)

A stop boarding requirement imposed on the proprietor of a boarding institution ends if the suspension of the institution’s registration is lifted (see section 118B(2) and (3)).

(3)

The Secretary of State may end a stop boarding requirement early if the Secretary of State considers it appropriate to do so.

(4)

Where the Secretary of State extends the suspension of a boarding institution’s registration, the Secretary of State may—

(a)

extend an existing stop boarding requirement, or

(b)

impose a new stop boarding requirement (either where no such requirement was imposed previously, or to replace a previous requirement with one with different terms).

(5)

Before extending an existing stop boarding requirement or imposing a new one under this section, the Secretary of State must give the proprietor notice in accordance with—

(a)

subsections (6) and (10), or

(b)

subsection (11).

(6)

Where the Secretary of State gives a warning notice to the proprietor of a boarding institution under section 118B(5) (notice of proposed extension of suspension), the notice must also—

(a)

state whether the Secretary of State is proposing to extend an existing stop boarding requirement or impose a new one,

(b)

if the Secretary of State is proposing to impose a new stop boarding requirement—

(i)

explain the effect of a stop boarding requirement,

(ii)

specify whether the proposed requirement would relate to all boarders at the institution or, if not, the description of boarders to whom it would relate,

(iii)

specify the dates on which the Secretary of State proposes to start and end the requirement, and

(iv)

explain that the proprietor may make representations about the proposed requirement during the period specified in the notice for representations about the proposed extension of the institution’s suspension (the “specified period”);

(c)

if the Secretary of State is proposing to extend an existing stop boarding requirement—

(i)

specify the date on which the Secretary of State proposes to end the extension, and

(ii)

explain that the proprietor may make representations about the proposed extension of the stop boarding requirement during the period specified in the notice for representations about the proposed extension of the institution’s suspension (the “specified period”).

(7)

The Secretary of State must have regard to any representations made by the proprietor during the specified period in deciding whether to extend an existing stop boarding requirement or impose a new one.

(8)

Subsections (9) and (10) apply where the Secretary of State has given the proprietor of a boarding institution a warning notice under section 118B(5) (notice of proposed extension of suspension) which states that the Secretary of State is proposing to impose or extend a stop boarding requirement.

(9)

Where the Secretary of State decides not to impose or extend a stop boarding requirement on the proprietor of the institution—

(a)

in a case where the Secretary of State also decides not to extend the suspension of the institution’s registration, the Secretary of State must give the proprietor a notice of the decision not to impose a stop boarding requirement at the same time as the Secretary of State gives the notice under section 118B(7);

(b)

in a case where the Secretary of State decides to extend the suspension of the institution’s registration, the notice under section 118B(8) (notice of decision to extend suspension following warning notice) must state that the Secretary of State has decided not to impose or extend a stop boarding requirement.

(10)

Where the Secretary of State decides to impose or extend a stop boarding requirement on the proprietor of a boarding institution, the notice under section 118B(8) (notice of decision to extend suspension following warning notice) given to the proprietor must also inform the proprietor of the decision and—

(a)

in the case of a decision to impose a new stop boarding requirement—

(i)

specify whether the requirement relates to all boarders at the institution or, if not, the description of boarders to whom it relates,

(ii)

specify the date on which the requirement starts,

(iii)

specify the date on which the requirement ends, which may be on the date that the suspension ends or an earlier date, and

(iv)

explain the right of appeal conferred by section 125;

(b)

in the case of a decision to extend a stop boarding requirement—

(i)

specify the date on which the extension ends, which may be on the date that the suspension ends or an earlier date, and

(ii)

explain the right of appeal conferred by section 125.

(11)

Where the Secretary of State decides to impose or extend a stop boarding requirement on the proprietor of a boarding institution in a case where the Secretary of State has not given the proprietor a warning notice under section 118B(5) (see section 118B(9)), the notice under section 118B(10) (notice of decision to extend suspension in urgent cases) given to the proprietor must also inform the proprietor of the decision and—

(a)

in the case of a decision to impose a new stop boarding requirement—

(i)

explain the effect of a stop boarding requirement,

(ii)

specify whether the requirement relates to all boarders at the institution or, if not, the description of boarders to whom it relates,

(iii)

specify the date on which the requirement ends, which may be on the date that the suspension ends or an earlier date, and

(iv)

explain the right of appeal conferred by section 125;

(b)

in the case of a decision to extend a stop boarding requirement—

(i)

specify the date on which the requirement ends, which may be on the date that the suspension ends or an earlier date, and

(ii)

explain the right of appeal conferred by section 125.

(12)

Where the Secretary of State extends a stop boarding requirement under this section, the requirement lasts until the date specified in the notice under section 118B(8) or (10) (see subsections (10) and (11)), unless it ends earlier by virtue of subsection (2) or (3) or is extended again under subsection (4)(a).

118FOffence of providing boarding accommodation in breach of stop boarding requirement(1)

The proprietor of a boarding institution that provides boarding accommodation to a student in breach of a stop boarding requirement is guilty of an offence.

(2)

It is a defence for a person charged with an offence under subsection (1) to prove that—

(a)

they and the head teacher of the institution (if a different person) did not know and could not reasonably have been expected to know of the existence of the notice given under section 118A or 118B that caused the stop boarding requirement to have effect at the time of the alleged offence, or

(b)

the conduct prohibited by subsection (1) ceased as soon as reasonably practicable after that notice was given.

(3)

A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding the maximum term for summary offences or to a fine (or to both).

(4)

“The maximum term for summary offences” means—

(a)

(b)

if the offence is committed after that time, 51 weeks.

(5)

If boarding accommodation is provided under an arrangement between a boarding institution and another person, it is irrelevant for the purposes of this section when that arrangement was made.

(5)

In section 124 (appeal by proprietor against decision of Secretary of State to deregister), after subsection (4) insert—(4A)

Where the Tribunal is considering disposing under subsection (3)(b) or (c) of an appeal under subsection (1)(d), it must—

(a)

have due regard to the principle that the independent educational institution standards should be met, and to the likelihood that they will be met in relation to the institution which is the subject of the appeal, on an ongoing basis, and

(b)

for that purpose, assume those standards will not be met in relation to the institution on an ongoing basis unless its proprietor adduces sufficient evidence in the course of the appeal to satisfy the Tribunal that they will be.

(6)

In section 125 (appeal by proprietor against other decisions of Secretary of State)—

(a)

in subsection (1)—

(i)

omit the “or” at the end of paragraph (c);

(ii)

after paragraph (d) insert—(e)

section 118A(1) (suspension of registration),

(f)

section 118B(4) (extension of suspension),

(g)

section 118D(1) or 118E(4)(b) (imposition of stop boarding requirement), or

(h)

section 118E(4)(a) (extension of stop boarding requirement).

;

(b)

after subsection (7) insert—(8)

On an appeal under subsection (1)(e) or (f), the Tribunal may—

(a)

confirm the suspension, or

(b)

direct that the suspension is to cease to have effect.

(9)

On an appeal under subsection (1)(g) or (h), the Tribunal may—

(a)

confirm the requirement, or

(b)

direct that the requirement is to cease to have effect.

(10)

Tribunal Procedure Rules may make provision for the suspension by the Tribunal of a decision under any of the following provisions, whether or not the decision has already taken effect—

(a)

section 118A(1) (suspension of registration),

(b)

section 118B(4) (extension of suspension),

(c)

section 118D(1) or 118E(4)(b) (imposition of stop boarding requirement), or

(d)

section 118E(4)(a) (extension of stop boarding requirement).

(7)

After section 126 insert—

126ADetermination by Tribunal of whether persons are fit and proper(1)

This section applies where the question of whether an institution meets, has met or is likely to meet an independent educational institution standard prescribed under section 94(1A)(a)(i) or (b) (fit and proper persons) is relevant to an application or appeal to the Tribunal under this Chapter.

(2)

The Tribunal may determine that question for the purposes of the application or appeal, including by finding that a relevant person is, was or would be a fit and proper person to be involved in the running of an independent educational institution even if the Secretary of State is not of that opinion.

(3)

“Relevant person” means—

(a)

where the proprietor or proposed proprietor of the institution mentioned in subsection (1) is a body of persons, a person having, or proposed to have, general control and management of, or legal responsibility and accountability for, the proprietor or proposed proprietor;

(b)

where the proprietor or proposed proprietor of the institution mentioned in subsection (1) is an individual, the individual.

(8)

The amendment made by subsection (5) does not apply in relation to a decision taken by the Secretary of State under section 116(1)(b) of the Education and Skills Act 2008 before the coming into force of subsection (5).