Children’s Wellbeing and Schools Act 2026: Implications for home education settings

Implications

Mandatory registration

Local authorities are now required to maintain a compulsory register for ‘Children Not in School’. Parents that are educating children at home, or in other non-school settings, must register their children to ensure that they receive a suitable education.

The register includes:

1. The child’s name, date of birth and home address
2. Any additional addresses if the chid lives at more than one
3. The name and home address of each parent of the child
4. The name of each parent who is providing education to that child
5. An estimate of the overall total time the child spends receiving education from their parent
6. An estimate of the overall time the child spends receiving education from persons other than parents

A local authority has the ability to serve a preliminary notice on a child’s parent in relation to a child who is of compulsory school age where, for example, the child is not receiving suitable education, either by regular attendance at school or otherwise.

Operating as a ‘home education setting’

The scope on what constitutes an independent education institution has now widened. You will fall into this criteria if you are an institution in England that provide full-time education for:

• At least five children of compulsory school age
• At least one child of compulsory school age who Is looked after by a local authority or has special educational needs

Full-time education

The Act has extended the scope for what is meant by ‘full-time’ education so that settings previously determined as out of scope are now potentially captured by the ‘full-time’ requirement, even if they provide a narrow curriculum, if they deliver the majority of a child’s education.

The factors relevant in determining whether an institution delivers ‘full-time education’ are:

• The numbers of hours per week that
  • Education is provided to children by the institution
  • Activities incidental to that education (such as breaks and independent study time) are provided
• The number of weeks in an academic year that education is provided
• The time of day that education is provided

If education is considered to be part-time, that institution would not have to register as an independent education institution. What is particularly notable is that the analysis of full-time is case specific and depends on a number of varying factors. It enables regulations to specify or exclude certain hours, activities or amounts of time from the definition of ‘full-time’, with the expectation that more institutions will likely be captured by the full-time criteria. Further guidance is expected which we will report on in due course.

Consequences of not registering as an independent education institution

If your setting is captured by the criteria defining it as an independent education institution, it is a criminal offence not to register.  The court may make a prevention order for the purpose of protecting children from risk of harm arising from the institution conducting an unregistered independent educational institution.

Inspections

For those settings required to register with the Secretary of State, compliance with the Education Independent School Standards Regulations 2014 will now be mandatory.  Proprietors unwilling to register, will need to ensure that they operate only part time or close.

Further powers have been given to Ofsted to investigate whether a home education setting is operating illegally.  If there is reasonable cause to believe an offence is being committed, Ofsted can apply for a warrant to enter the school site to carry out an inspection and take copies of documents.  These powers will seek to prevent proprietors failing to disclose evidence.

If independent school standards are not felt to be met, the Secretary of State (SoS) may direct the Chief inspector to:

• Inspect the institution
• Make a report to the SoS 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

A registration may now be suspended if –

• The SoS is satisfied that one or more of the independent educational institution standards are not being met
• The SoS has reasonable cause to believe that, as a result, one or more students at the institution may be exposed to the risk of harm.

This will give the proprietor an opportunity to make improvements to meet the standards.

Next steps

If you are unsure how your home education setting is affected by these changes, we can support you. The changes to the definition of an independent education institution are significant and knowing if you will be classed as an independent educational institution is important to avoid operating illegally and facing potential criminal charges. Please get in touch with our education solicitors and we would be pleased to review your governance and operational structure.