Registration of independent schools: guidance for applicants, proprietors, and parents

4. Regulation of independent schools and the Scottish Ministers

The proprietor, often referred to as the Board of Governors, is ultimately responsible for the school, including providing the headteacher and leadership team with scrutiny and challenge, whilst setting the strategic direction of the school.

Proprietors also have a responsibility to ensure that their school does not become "objectionable", or at risk of becoming so, in terms of section 99(1A) of the 1980 Act.

Where a school is found to be objectionable, or at risk of becoming so, the Scottish Ministers may take regulatory action (serving a notice of complaint or imposing conditions on the school).

Conditions are, effectively, instructions obliging the school to take a course of action to improve. For example, the Scottish Ministers may impose a condition on the running of an independent school compelling the school to review and update the school's anti-bullying policies in line with national guidance.

Notice of complaint are similar to conditions in that they oblige a proprietor to take action to improve, though notices are more formal than conditions.

Objectionable

The Scottish Ministers may serve a notice of complaint on any independent school if the Scottish Ministers are satisfied the school is objectionable on one or more of the following grounds ^[5].

(a) that efficient and suitable instruction is not being provided at the school, having regard to the ages and sex of the pupils attending thereat;

(aa) that the welfare of a pupil attending the school is not adequately safeguarded and promoted there;

(b) that the school premises or any parts thereof are unsuitable for a school;

(c) that the accommodation provided at the school premises is inadequate or unsuitable, having regard to the number, ages and sex of the pupils attending the school;

(d) that a condition imposed by virtue of this Part of this Act on the carrying on of the school is not being or has not been complied with;

(e) that any part of the school premises is, by virtue of this Part of this Act, disqualified from being used as a school;

(f) that any accommodation provided at the school premises is, by virtue of this Part of this Act, disqualified from being used as such or is being used as such for pupils of—

(i) such number; or

(ii) such age or sex, from which use it is so disqualified;

(g) that the proprietor of the school is—

(i) by virtue of this Part of this Act, disqualified from being the proprietor of an independent school;

(ii) barred from regulated work with children;

(iii) a prescribed person; or

(iv) otherwise not a proper person to be the proprietor of an independent school;

(h) that a teacher in the school is—

(i) by virtue of this Part of this Act, disqualified from being a teacher in any school;

(ii) barred from regulated work with children;

(iii) a prescribed person; or

(iv) otherwise not a proper person to be a teacher in any school; or

(j) that the proprietor of the school has not, in relation to particulars prescribed under paragraph (a) of section 98(3) of this Act—

(i) furnished information required by virtue of that paragraph; or

(ii) notified, by virtue of paragraph (b) of that subsection, a change in such particulars to the Registrar.

To be objectionable, effectively, means that the Scottish Ministers are satisfied that one or more of the grounds above is true. In such cases, the Scottish Ministers may serve a notice of complaint ^[6] on the proprietor which will outline why the school is objectionable and the remedial action the school should take in order to improve.

The Scottish Ministers may then, if there is no evidence of improvement, order the Registrar to remove the school from the register ^[7] (effectively closing the school).

The Scottish Ministers also have the power ^[8] to move immediately for removal from the register if satisfied that immediate action is required.

At risk of becoming objectionable

Alternatively, the Scottish Ministers may be satisfied that a school is not objectionable but, in the absence of remedial action, the school risks becoming objectionable. In these circumstances, should the Scottish Ministers consider it necessary, they may impose conditions on the running of the school ^[9].

Conditions are intimated to proprietors by the Registrar, who will set out the action expected by the proprietor and the timescale for completion.

Regulatory action more generally

The service of a notice of complaint or imposing of conditions is not a punitive measure. The Scottish Ministers will only take regulatory action to bring about improvement at the school, where necessary and proportionate.

Where regulatory action has been taken, proprietors will be informed where there is a route of appeal.

Conditions are published in the public register of independent schools and removed only when revoked by the Scottish Ministers.

HM Inspectors may be asked to conduct a compliance visit of the school to establish whether the remedial action sought by the conditions has been completed. If this is found to be the case, the regulatory action will be revoked and the matter closed.

Parents, in particular, may wish to review the FAQs provided in Annex A.