Updated ISI Commentary on the Regulatory Requirements September 2017

As many of you may have seen, the ISI have updated the Handbook for Inspection for Schools in September 2017. We will be updating our policies to reflect this update shortly.

Points of interest in the update are as follows:

1. Arrangements for dealing with peer-to-peer abuse and allegations.

Paragraph 96 – This paragraph clarifies the reference to “banter” and how this is reflected in the safeguarding policy. We will be updating the ISBA safeguarding policy to reflect this change.

2. Bullying

Paragraph 159 now refers to the non-statutory DfE advice Preventing and Tackling Bullying (July 2017) as useful to schools when developing their strategy in relation to tackling bullying.

3. Fire Risk Assessment 

Paragraphs 182-185 clarifies that the fire risk assessment should be checked regularly in light of any changes that occur in the school. It confirms that the local Fire and Rescue Service will inspect independent schools periodically on a risk assessment basis in the same way it would any other business.

4. The Equality Act 2010 

Paragraphs 224-225 have been updated to reflect recent case law which refers to whether it is lawful to segregate pupils on the basis of gender throughout a co-educational school (for example, in co-educational schools using a “diamond” model). The DfE has indicated that it has no objection in principle to the diamond model – as long as the separation of girls and boys does not result in pupils of one gender being treated less favourably than those of the other gender. This issue is not covered by the Independent Schools Standards Regulations or therefore by ISI inspection.

5. Criminal Record Checks

Paragraph 252 has a new reference to the “basic” check.   The basic check is a criminal record check of convictions considered unspent. It is not mentioned as a requirement in Keeping Children Safe in Education or the Independent Schools Standards but may be taken into account by schools in their own risk based decisions when more stringent checks are not required. From January 2018, this check will be made available online through the DBS. In our view, a basic check may be useful, for example where the school has a property which is not on the school site (therefore any tenants are not on school site or engaged in regulated activity or employed by the school) but the school wishes to carry out some sort of check from a risk assessment point in respect of tenants. It is may be that the school requires a basic check to be carried out prior to letting the property along with any other relevant checks such as references.

6. Previous Employment History/CV/References

Paragraphs 268 and 270 provides further guidance on these checks.  They are in the Regulations but are required as part of ‘having regard’ to Keeping Children Safe in Education. Deficiencies would therefore be reported. The legal difference is that the duty to “have regard” permits some flexibility where exceptional circumstances arise. In contrast to this, flexibility is not permitted in relation to the checks required by the Independent School Standards Regulations except to the extent described therein. It is recognised within the Commentary that referees should be asked a minimum whether they are aware of any reason or have any concern that the applicant may be not suitable to work with children. Internal references are permissible where appropriate in line with Keeping Children Safe in Education. It clarifies that inspectors may accept that it may sometimes be more instructive where appropriate, to enquire of current colleagues whether they have any suitability concerns particularly where colleagues from former employers are uncontactable due to the passage of time.

7. Overseas Checks

Paragraph 277 has been updated to clarify that no period is described to differentiate between “living” in a country and an extended holiday; schools are permitted discretion to set their policies within reasonable time limits. Previously the NSPCC advised that checks should be obtained where a person has lived overseas for 3 months or more in the last 5 years. This seemed to be the minimum approach which many schools adopt in considering whether an individual has lived overseas and an overseas check is needed. ISI have adopted this advice as the started point but observed that many schools now adopt a more stringent approach, such as checking those who have lived or worked overseas for more than 3 months in the last 10 years. Inspectors may allow time spent overseas under the age of 16 as less significant as it is not possible to obtain checks for those aged under 16. This is a rule of thumb only and the Commentary accepts that there may be situations where it is not appropriate to limit the checks carried out

8. Supply Staff

Paragraph 299 makes it clear that in respect of supply staff, the school must see each criminal record certificate, whether or not it discloses any information, although the school is not required to obtain a copy on file. The certificate shown to the school must be no more than 3 months old, unless the 3 month rule applies.

9. The Single Central Register of Appointments 

Paragraphs 319-320 have been updated.   It states that the DfE position is that the bare list of names and dates contemplated by the Independent School Standards Regulations is not considered to be “personal data” though ISI would rather names were removed from copies of the SCR provided leaving some other identifier to facilitate discussion where necessary.   This position may require reflection in light of the forthcoming changes to the new Data Protection Act but at the present time schools would be wise to follow the position set out in the Commentary. Paragraph 320 is a good reminder that the dates to be recorded on the SCR are the dates when the school receives the relevant information to inform their recruitment decision, with the expectation that the dates of all checks therefore proceed the start date for the relevant member of staff. If a school accepts a pre-existing DBS under the 3 month rule, the date of the check would be the date the school received the certificate, not the date printed on the certificate.

10. Contractors and Employees of Third Parties

Paragraph 345 clarifies the approach for on arrival identity checking for contractors and their own employees. It may be adequate for the identity of contractor employees who do not work with children to be checked on arrival by an appropriate responsible person also employed by the contractor. This is a matter for each school to approach on a risk assessment basis.

11. Single Central Register Implementation

Paragraphs 364–373 are a helpful read as to the SCR generally in terms of implementation. It re-iterates that schools are advised not to remove records for former workers until at least the end of the school academic year and it retains (archive) any records removed until at least the next inspection.

12. Complaints

Paragraph 426 has (helpfully) made it clear that in the absence of a clear school policy to the contrary, the allowance in the standards for parents to be accompanied at a hearing does not entitle parents to insist on legal representation at a hearing. This should be helpful to schools; schools may wish to check their own policy for clarity.

For specific advice or queries, please contact Kristine Scott on 01242 246403 or kscott@hcrlaw.com.

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Author
Kristine Scott
Partner, Head of Education
Direct Dial: +44 (0)1242 246403
Email: kscott@hcrlaw.com