How should non-school alternative provisions protect against operating as unregistered schools?
How can an unregistered AP make sure you’re not judged to be operating as an unregistered school?
I’m finding a repeated problem for leaders in my visits and meetings with unregistered APs. They are finding themselves working in a context where they are coming across more and more young people whose only contact with education is with their AP. Where the only professionals that are working successfully with that young person are staff from an unregistered provision. At the same time there is increased attention on the sector and an increased focus from Ofsted on clamping down on settings who are working as schools but aren’t registered.
We regularly hear stories of provision who have had the morning visit from an Ofsted team with body cams, taking evidence and delivering cautions. It’s enough to scare anyone so, what, as a non-school AP leader, is the best way to go about evidencing your status as an unregistered provision?
Remember, you must register as a school if you have 5 or more full-time pupils or 1 full-time pupil who has an EHCP or is a Looked After Child.
The challenge is that, at the moment, ‘full-time’ is not very clearly defined. The DfE have outlined that there will be a tighter definition released following the children and schools white paper. The new Non-School AP consultation response talks about incoming legislation which defines part-time for AP as no more than 2 days or 4 sessions.
Guidance currently says:
“There is no legal definition of what constitutes ‘full-time’ education. However, we would consider an institution to be providing full-time education if it is intended to provide, or does provide, all, or substantially all, of a child’s education.” GOV.UK
“Relevant factors in determining whether education is full-time include:
a) the number of hours per week … including breaks and independent study;
b) the number of weeks in the term/year;
c) the time of day it is provided;
d) whether the provision precludes the possibility that full-time education could be provided elsewhere.” GOV.UK
A short-term full-time provision falls outside this definition, and the strict 12 week temporary placement is not considered full-time.
“Generally, we consider any institution that is operating during the day, for more than 18 hours per week, to be providing full-time education.” GOV.UK
So, if you’re a non-school provision and want to evidence that you’re not acting as an unregistered school what tips could you follow? If you want to make sure you’ve reduced risk of a difficult inspection from the Ofsted unregistered schools team, what can you do?
1) Make sure you don’t look like a school
Sometimes it is tempting to increase our educational authority or place within the sector by mimicking a school. It’s harder to argue that you shouldn’t be registered and aren’t working as a school if your whole structure is set up like a school would be. Avoid these things:
· Using ‘School’ in the title of your AP
· Using job roles found in schools such as ‘Headteacher’
· Using uniform, talking about enrolments or sharing prospectus’s with parents.
Do ensure your website, publicity material, job descriptions and outward facing documents are consistent in defining your organisation as an AP and use AP terminology.
2) Don’t cross the thresholds for registration
Remember it is your responsibility as an AP leader not to cross the thresholds that mean you should have registered. Schools, parents and LAs will sometimes ask you to do this, you will often find examples where it seems to be the best thing for young people. At the end of the day though it is you who bear the responsibility and would face criminal prosecution.
3) Track attendance but don’t use codes like a school
Schools have strict codes they use to track and report attendance. As non-school APs we should be tracking and intervening with attendance but reporting it in daily to the commissioner.
4) Have strong commissioning practices
When a school or LA commission a place with you make sure there is a clear record of referral which includes, a letter, MOU or a section on referral forms that state your role as a non-school AP. Support each placement with an agreements or SLA stating reasons for placement, agreed hours, outcomes, review timings, and that the home school keeps the roll.
Here's some example text you could use in an SLA or referral agreement:
“[Provider Name] delivers placements as unregistered alternative provision. The Provider is not a school, is not registered with the Department for Education (DfE), and does not provide full-time education.
The [Commissioning School/Academy/Local Authority] retains full responsibility for:
the pupil’s admission, roll and attendance records.
the pupil’s full-time education, curriculum and assessment; and
meeting the pupil’s special educational needs and/or EHCP duties (where applicable).
Placements with the Provider are part-time and limited to the hours agreed in [xx]. The parties will ensure the arrangement does not amount to full-time education at the Provider and will review hours if circumstances change.
If the placement, taken alone or together with other provision at the Provider, risks meeting the legal tests for a full-time education or otherwise requiring registration, the parties will immediately review and vary the arrangement; the Provider may suspend or end the placement until compliance is assured.
5) Ensure safeguarding and health and safety is strong
Whilst Ofsted will expect you not to be acting as a school with curriculum, timetable and timings they will expect you to be as safe as a school and to have as high safeguarding standards. During an unregistered school inspection, they will ask to see Health and Safety and Safeguarding evidence. The best way you can do this is to make sure you’re meeting the DfE’s new voluntary standards for non-school APs. They are a good guide for what you should have in place. The standards themselves can be found here but we have an audit document you can use available here or a full-support package available to help you evidence how well you meet these standards.
Particularly make sure your staff recruitment is safe with a comprehensive single central record to track your checks.
Include a paragraph across all your policies that outlines your context as a non-school alternative provision. An example paragraph we use in our safeguarding template policies is:
“AP context (non-school AP): [provider name] operates as a non-school Alternative Provision (AP). Commissioning schools/LAs retain statutory responsibilities for admissions, attendance registers/coding, exclusions and Children Missing Education (CME). [provider name] provides same-day safeguarding/attendance information to commissioners and aligns procedures with KCSIE and local safeguarding partner arrangements. Where school-specific statutory powers (e.g., searching/screening) do not apply to AP, [provider name] uses consent-based approaches and police engagement when risk warrants.”
6) Define your model:
On you website, brochures and outreach material make sure that your model is really clear. How you work with young people, your specialised approach and the fact that you are a specialised provision not a school should come through clearly in your materials.
7) Cap hours:
Keep a maximum number of hours per learner. Definitely don’t go above 18 but also consider travel time, whether sessions stop them from attending elsewhere (don’t have a learner for 3 hours across the middle of each day – that means your 15 hours stops them from attending elsewhere). Record each young person’s hours and keep a copy of their timetable. Use attendance records to evidence that this is kept to.
8) Keep a specialist curriculum:
Schools must deliver a ‘broad and balanced curriculum’. Keep a specialised curriculum as a non-school AP and don’t try and deliver everything a school should. You now should have a curriculum policy to evidence the new non-school standards so use this document to show how you have planned an approach to allow the greatest support for the young people you help.
9) Be ready for an unannounced inspection
Inspections by the unregistered schools team although rare are a reality for non-school alternative provisions. They are a lot easier to handle if you’re ready and planned. Prepare an inspection pack ready to share and keep it up to date. Paperwork to include could be:
- Explanation of your model – statement of purpose
- Curriculum model
- Timetables
- Registers/attendance records
- Commissioning agreements
- Individual Pupil Plans
- Registers including pupil status (EHCP/LAC), pupil hours
10) Regularly review your risk against an unregistered school visit
Over-time it is easy to experience drift either as the needs or progress of young people change or as curriculum, staffing and provision changes across an academic year. Keep a regular review of your position against guidelines, check pupil hours, review paperwork assess whether you need to make changes to hours and provision for pupils. There are situations where you will become the main educator as another part of a young persons’ offer breaks down. Make sure commissioners do their part to organise other options and don’t just settle for a reduced timetable with your provision – I know that is easier said than done!
Before you panic - don’t forget - there have been very few (single figures) prosecutions for running unregistered schools. If you are found to be overstepping the rules you are given the chance to respond, change your practice or register before things are taken further.
We currently work with alternative provisions across the country, some who choose to strengthen and improve as ‘non-school’ providers. Some who decide that they want to move to a registered independent school model. There isn’t one route that is better than the other – the key is concentrating on delivering the best provision for the young people you serve within the structures we have to work within. If you’d like support around meeting the new non-school voluntary standards then have a look here. If you’d like to discuss whether moving to an independent school model is a good choice or want help realising that route, then get in touch here.
