OTHER ISSUES OF INTEREST TO PROPRIETORS
117. The following paragraphs draw to proprietors attention some legislation which they may wish to consider in the operation of an independent school although this list is not exhaustive. Proprietors have a responsibility to ensure that they are aware of and adhere to all relevant legislative and regulatory requirements.
118. Financial viability is not a criterion for registration of an independent school. However, most independent schools are registered as charities or companies and it is the responsibility of proprietors to ensure that they meet the statutory requirements regarding the keeping of and making available financial accounts.
Equality Act 2010
119. The Equality Act 2010 replaced previous anti-discrimination legislation with a single Act. It simplified and strengthened the law and removed some inconsistencies. It protects people from discrimination because of the 'protected characteristics' of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
120. The Act covers direct discrimination, indirect discrimination, harassment and victimisation. In relation to disability, there is also a duty to make 'reasonable adjustments'. The legislation applies across areas such as employment, the provision of goods and services, the exercise of public functions, education and membership of associations. Individuals have rights under the Act, and there is provision for legal remedies through the courts or employment tribunals in order to enforce those rights.
121. There is also a public sector equality duty which requires public authorities to have due regard to the need to eliminate discrimination which is unlawful under the Act, advance equality of opportunity for people who share relevant protected characteristics and foster good relations between people who share relevant protected characteristics. The duty applies to public authorities and to any organisation exercising public functions in relation to those functions. Scottish Ministers have also made 'specific duties' designed to enable the better performance of the public sector equality duty by Scottish public authorities.
122. Most of the Act came into force on 1 October 2010. The public sector equality duty came into force on 5 April 2011 and the Scottish 'specific duties' came into force on 27 May 2012.
123. There are some differences in the way the Act covers different characteristics. For example, in relation to school education, age and marriage and civil partnership are not protected characteristics.
124. Further information about the Equality Act 2010, including guidance and Codes of Practice, is available from the Equality and Human Rights Commission at: http://www.equalityhumanrights.com/scotland/. The UK Government has also published a suite of guidance on the Act which is available at: http://homeoffice.gov.uk/publications/equalities/equality-act-publications/equality-act-guidance/
125. The Office of the Scottish Charity Regulator (OSCR) is responsible for determining charitable status in Scotland in accordance with the Charities and Trustee Investment (Scotland) Act 2005. As part of its role, OSCR has a duty to ensure that charities entered in the Scottish Charity Register continue to meet the charity test. It does this by conducting individual reviews of charities, focussing primarily on types of charities it believes are most at risk of not meeting the charity test.
126. OSCR applies the same test to all bodies seeking charitable status in accordance with the requirements of the 2005 Act and the detailed guidance it is under a duty to produce and consult on. To meet the charity test, a body must have wholly charitable purposes and be able to demonstrate that it will provide public benefit in furtherance of those purposes.
127. Further details relating to OSCR and the requirements of the 2005 Act can be obtained from www.oscr.org.uk
128. Educational endowments are registered in terms of section 104(1) of the Education (Scotland) Act 1980. Governing bodies must, in this connection, provide information to Ministers about any new endowments received by them, or any reorganisation of the purposes of any existing endowments managed by them. The required information is as follows:
a) the name of the endowment;
b) the locality to which the endowment belongs;
c) a summary of the purpose to which the endowment is applicable and the conditions pertaining to the beneficiaries; and
d) the name and address of the official correspondent of the governing body of the endowment.
129. The Charities and Trustee Investment (Scotland) Act 2005 introduced new requirements for charities which wish to make changes to their constitution. Some educational endowments may also be charities, and will therefore be affected by these requirements. A charity which has powers to make changes to its own constitution must seek OSCR’s consent before making certain changes, for example, before amending its purposes. Charities are also required to inform OSCR of certain other changes which are made. A charity which does not have powers to amend its own constitution will be able to apply for consent to amend their constitution following the reorganisation process set out in chapter 5 of the 2005 Act, seeking the approval of OSCR.
130. These changes mean that an educational endowment which is also a charity is not permitted to follow the reorganisation procedures set out in Part VI of the Education (Scotland) Act 1980. Further information is available from OSCR, who can be contacted on 01382 220 446. Please see Annex A
Freedom of Information
131. The Freedom of Information (Scotland) Act 2002 (FOISA) provides individuals with a right of access to all recorded information held by Scotland's public authorities. Anyone can use this right, and information can only be withheld where FOISA expressly permits it.
132. In Accordance with Section 23 of FOISA the Registrar is required to maintain a publication scheme. A publication scheme sets out the types of information that the Registrar routinely makes available. This scheme has been approved by the Scottish Information Commissioner, who is responsible for enforcing FOISA. The Registrar is also obliged to review the scheme from time to time.
133. Listed below are the classes of information which the Registrar intends to publish. All information listed under these classes is available on requested
Register of Independent Schools:- The Register contains information about all independent schools in Scotland, including details of their proprietors, premises type of education they provide and maximum number of pupils the school is registered to educate. It can be accessed at www.scotland.gov.uk/Topics/Education/Schools/Parents/IndependentSearch
Guidance:- This Guidance document to proprietors and prospective proprietors advising them on the requirements to be registered as an independent school.
The Registrar's publication scheme is part of the Scottish Government's Publication Scheme which is available at:- http://www.scotland.gov.uk/About/FOI/19260
Health Promotion and Nutrition
134. Proprietors should make themselves aware of the requirements of The Schools (Health Promotion and Nutrition) (Scotland) Act 2007. Under Section 5 of the 2007 Act, when placing a pupil at an independent school, education authorities have to have regard to the extent to which any food and drink which is provided to pupils at the independent school in question would comply with the nutritional regulations, if the regulations applied to independent schools. This section of the 2007 Act commenced for primary school age children in August 2008 and commenced for secondary school age children on 1st August 2009. Further information can be obtained from: The Nutritional Requirements for Food and Drink in Schools (Scotland) Regulations 2008