Increased regulation and collaboration: what does the Children’s Wellbeing and Schools Bill mean for independent and specialist schools?
The Children’s Wellbeing and Schools Bill (“the Bill”) completed the Committee stage in the House of Lords on 18 September 2025. We have considered the potential impacts of the Bill on state-funded education and children’s social care in our earlier articles. In our final article in the series looking at the impacts of the Bill, we discuss the key proposals affecting independent schools, and, with the much anticipated White Paper on Special Education Needs and Disabilities (“SEND”) reform due in the coming weeks, we consider whether changes in the Bill will foster greater collaboration between the state and independent sector to tackle the SEND crisis and deliver inclusive education.
Extending the regulatory regime
1. Changing the definition of ‘independent school’
The Bill aims to extend the regulatory regime to include any setting providing ‘full time’ education for a child which will include settings previously excluded due to not offering a sufficiently broad curriculum, such as faith schools or those focussing on a single subject such as music or art. The government has said that guidance will be published to explain how ‘full time’ provision will be defined which will involve application of exhaustive factors, namely, the number of hours per week, the time of day and the number of weeks per academic year children are expected to attend.[1] The change will, therefore, require previously unregulated settings to either register with the Secretary of State, change their provision so that it does not meet the definition of ‘full time’ or close. Continuing to operate full time provision without registering with the Secretary of State will be a criminal offence. Baroness Smith of Malvern, the Bill’s sponsor in the House of Lords, confirmed in the Committee Stage debate it is likely “the starting point will be that settings operating during the day for more than 18 hours per week will be regulated.”[2]
2. New standards for a ‘fit and proper’ proprietor
The proposals aim to broaden the due diligence checks to be undertaken by the Secretary of State on prospective proprietors of independent schools and enable the removal of a previously approved proprietor no longer considered ‘fit and proper’. The Bill will enable the government to prescribe through regulations the standard expected of a fit and proper proprietor. The Bill seeks to extend requirements beyond the current confirmation of identity and DBS and prohibition on participation in management[3] clearance, to also include matters such as financial propriety. The detail and standards expected of a ‘fit and proper’ person will be explained in guidance. The change will bring greater discretion to refuse an application to register a new independent school and approve material change applications to change a proprietor and may make an appeal against the Secretary of State’s decision more difficult.
3. Additional material change notifications to the Secretary of State
Under the terms of an independent school’s registration, a material change application must be submitted to change certain registered details, for example, a change in proprietor as mentioned above or a change in the maximum number students. The Bill seeks to introduce three new changes that would require a material change application to be made to the Secretary of State to ensure all school buildings routinely used by students during their education are safe and appropriate and to redefine the material change regime in respect of SEND provision:
- Seeking/ceasing use of a building for student use for a period of six months or more;
- Seeking to become/ceasing to be a “special institution”, defined as “an institution specially organised to make special education provision for students with special educational needs”; and
- Seeking to change the type(s) of special educational need(s) catered for.
Currently, independent schools are required to notify the Secretary of State if they are starting or ceasing to admit one or more pupils with special educational needs. The measures set out above will be introduced in place of this current requirement and will be accompanied by a power enabling the government to detail in regulations the types of special educational needs catered for that are a material change for this purpose.
The Bill also seeks to increase enforcement options available to the Secretary of State following an unauthorised material change beyond de-registering the school, such as a restriction on how the school operates, to enable greater flexibility and proportionality in the interests of students.
Debate in the House of Lords centred around concern that proposals in the Bill may inadvertently lead to onerous notification requirements. Baroness Smith assured colleagues that officials are “testing the current drafting to ensure that its scope is not overly broad”.[4]
With much of the detail to be determined by regulations and accompanying guidance, we will be monitoring the Bill’s progression through the House of Lords when it returns at Report Stage, expected later this month.
Sector partnerships to increase SEND capacity?
September also saw the publication of the House of Commons Education Select Committee’s report, “Solving the SEND Crisis”.[5] The report highlights the extent of local authority funded SEND placements provided in independent specialist schools and local authorities being unable to directly establish new specialist schools under current legislation. The Bill will reinstate the power for local authorities to propose and establish new state schools, including specialist state schools, and introduce greater levers for the Local Authority to enforce collaboration by maintained schools and academies to meet the needs of the community, for example, the power to direct school admission by both maintained schools and academies of a child with SEND requiring a school place. The Committee’s report welcomed the proposals in the Bill as a “positive step” to restore strategic oversight of admissions and SEND provision requirements to local level. The report continued that specialist state school provision and improvements to SEND provision within mainstream state funded schools “should be achieved through shifting funding from some independent specialist school provision to better value for money state specialist school provision”.
Claire Dorer, CEO of the National Association of Special Schools warned in August that independent providers are “not a last resort” but “essential partners in a genuinely inclusive education system”.[6] In written evidence to the Education Select Committee, the Independent Schools Council (“ISC”) advocated a partnership model in which the public and private sector jointly tackle the SEND crisis, akin to the approach taken to reduce waiting lists in the NHS.[7] The ISC’s evidence to the Committee illustrates the huge gap between current specialist provision (state and independent) and the level of need. In Kent alone, the number of EHC plans exceeds the number of specialist school places by over 11,000.
Funding and legislative constraints have meant that the independent specialist sector has grown to meet the needs of children with SEND in the absence of sufficient state provision. With more provision urgently needed, a partnership model with the independent sector could be key to delivering the government’s aim for SEND reform: strategic oversight of SEND provision at a local level that meets the needs of the community.
Next steps
We will monitor the progression of the Bill when it returns to the House of Lords and review the government’s SEND White Paper when it lands. In the meantime, our team is on hand to assist with your regulatory queries.
[1] See page 93 Children’s Wellbeing and Schools Bill: policy summary notes
[2] Children’s Wellbeing and Schools Bill - Hansard - UK Parliament
[3] See Section 128, Education and Skills Act 2008
[4] Children's Wellbeing and Schools Bill - Hansard - UK Parliament
[6] Profit Caps on special schools? It could threaten vital support for children and young people with SEND | NASS
