Wednesday, November 25, 2009

The Children, Schools and Families Bill

The sections from the Children, Schools and Families Bill which relate to home education can be found here (Clauses 26 and 27) and here (Schedule 1).

It is easier to work this all out using the Explanatory Notes, though the whole thing is still far from transparent and home educators are still processing the full implications of it all.

Suffice it to say that it does not look good. It appears to place the decision about the nature of a suitable education firmly in the hands of the state. Registration can be refused on the arbitrary and subjective whim of the local authority as they are to be delivered of the right to decide upon the nature of "harm" to a child (section 19B,(7)) and as the Secretary of State is delivered of the right to determine the necessary requirements for successful registration. I am yet to clarify if harm will continue to mean what it has previously meant. (See section 47, Children Act 1989).

If my understanding is correct, registration may also be refused, not simply on the basis of suspicion of harm to the child, but if the statement of education or any other relevant information that is provided by the parent upon application to register is deemed inadequate: (section 19B,(8)). Registration may also be revoked if the education is deemed unsuitable (section 19F (1)) and an LA will be able to refuse repeat application to register until a certain time has passed.

Further, quoting Dani: "the Bill proposes that any home educated child who is not ‘registered’ with the local authority will be the subject of a School Attendance Order, should they be discovered. In such a situation, the Bill states that “an authority shall disregard any education being provided to the child as a home- educated child.”

Though the government has clearly decided to back away from the idea of creating a new criminal offence of failing to register, it is attempting to create a compulsory system by threatening to force home educated children into school if their parents do not comply.

Further on this point, it appears that LAs will not have to apply to the courts to issue an SAO - they just issue it. Should the parents fail to comply with the SAO, they will then be taken to the courts. (Schedule 1, Section 9). However, the courts would STILL not take the issue of suitable education into account, so the parents would almost certainly lose.

Dani continues:

...the Bill states that there will be no automatic right of entry to homes or to see children alone. However, the proposed new Section 19F(1)(e) would give local authorities the right to remove a child’s name from the home education register if it appears to them that:

“by reason of a failure to co-operate with the authority in arrangements made by them under section 19E, or an objection to a meeting as mentioned in section 19E(4), the authority have not had an adequate opportunity to ascertain the matters referred to in section 19E(1)”

Our interpretation of this is that the system of monitoring will be determined by the local authority, and any objections raised by a home educating family could easily lead to their child’s removal from the register and a consequent School Attendance Order."

Dani adds:

"These sections in particular, especially combined with the proposed new section 19C (which allows for the issuing of regulations on various key aspects of the registration system) would have the effect of locking home educating families into a monitoring system, which can be amended without Parliamentary scrutiny by any future government."


Explanatory notes:

"
Home education

Clause 26: Home Education: England

"112. This clause needs to be read with Schedule 1. This clause and Schedule 1 introduce a registration scheme for children who are being educated at home in England. Home education is lawful and at present it is largely unregulated. Where a child has never attended school, parents are not required to inform their local authority that the child is being educated at home, or to seek approval of the home education being provided. The Schedule introduces a new registration scheme to enable local authorities in England to keep track of home-educated children. In terms of enforcement of the new system, the Schedule links the home education registration scheme to the school attendance order regime.

Home Education: registration and monitoring

113. Clause 26 gives effect to the provisions of the Schedule. Paragraph 1 of the Schedule inserts new sections 19A to 19I into Part 1, Chapter 3, of the EA 1996 (local authorities). The new sections impose new duties on English local authorities in relation to children who are to be electively home-educated.

114. New section 19A requires a local authority to keep a register of all children of compulsory school age in their area who are being educated entirely at home - i.e., none of whose education is provided at a school, or under section 19 of the EA 1996 (exceptional provision of education in pupil referral units or elsewhere).

115. Subsections (2) and (3) of new section 19A enable the Secretary of State to make regulations about how local authorities will maintain and amend the register. Subsection (4) of new section 19A defines what is meant by a “home-educated child” and “home education register”.

116. New Section 19B sets out what a local authority is required to do when the parent of a home-educated child of compulsory school age in their area applies, in the prescribed way, for the child to be placed on their home education register. The authority must register the child unless they consider that the child is within subsection (6) or (7), or that subsection (8) applies to the child’s application. If they consider the child is within subsection (7), they must not register the child. But if they think the child is within subsection (6), or that subsection (8) applies to the child’s application, they may choose whether or not to register the child. For example, a child may be within subsection (7) if that child is subject to a child protection plan and is thought to be safer at school or in alternative provision than being educated at home. Giving local authorities the discretion to register in relation to children falling within subsections (6) and (8) will allow a local authority to consider issues and circumstances which are likely to be relevant to whether those children should be registered. The local authority must notify the child’s parent of registration or, if registration is refused, of this fact and the reasons for it (subsection (5)).

117. New section 19C confers power on the Secretary of State to make regulations about steps to be taken by a local authority in connection with an application for registration, and specifies that this may include provision as described in subsection (2).

118. New section 19C also specifies that the power conferred by section 19B(1)(a) may be used to make provision about the form and content of any application for entry on the home education register, and as described in subsection (5). There is a specific reference in subsection (4) of new section 19C to a statement giving information about the child’s prospective education. The Government envisages that all applications will be required to provide such a statement, or to provide an undertaking to provide such a statement. In addition the power under new section 19B(1)(a) is likely to be used as described in subsection (5), i.e. to make provision enabling an authority that has refused a child’s application, or revoked a child’s registration, to require a period of time to elapse before a fresh application is made in respect of the child. This would prevent local authorities from having to process immediate, subsequent re-applications for registration from parents where there have been no material changes in circumstances.

119. New section 19D makes provision about how long registration will last. It also provides that, for enforcement purposes, a child will be treated as registered as soon as an application for registration has been made.

120. The effect is that once an application has been made in respect of a child, the child will be treated as registered until the application is rejected, or (assuming that the application is successful) until the expiry of the period of 12 months from the date of registration. But if the child’s registration is revoked during that 12 month period, then the child will cease to be treated as registered as from the date of the notice of revocation that needs to be given to the child’s parent. The registration will also terminate if the child ceases to be of compulsory school age.

121. New section 19E obliges a local authority to make arrangements to monitor the education provided to a child on their home education register. The objective of the arrangements is to ascertain, as far as reasonably practicable, whether the child is receiving a suitable education, whether the education accords with the information given about it, what the child’s wishes and feelings about it are, and whether it would be harmful for the child’s welfare for the education to continue.

122. Subsection (2) of new section 19E defines what is meant by a suitable education for this purpose. Subsection (3) provides that the arrangements made by a local authority under new section 19E must include arrangements, in each registration period, for at least the meetings and visits described in that subsection- unless the registration period begins less than 6 months from the end of compulsory education, in which case the local authority has a power to make arrangements of the sort described in subsection (3) rather than a duty. The duty requires an authority to see a child, the parent and the place (or at least one of the places) where the education is to take place, at least once in any registration period. Where a local authority consider that someone other than the parent is primarily responsible for providing education then the local authority will be under a duty to see that other person as well, at least once in any registration period. For most home-educated children, these visits will be carried out concurrently. Subsection (4) explains that the local authority cannot make arrangements to see the child on their own if the child or the parent objects to such a meeting.

123. Subsection (5) explains that a local authority must give at least two weeks written notice of a proposed meeting or of a visit to a place where education is provided.

124. New section 19F gives a local authority the power to revoke registration on their home education register in certain circumstances. Where a local authority exercises this power, it must give notice of the revocation to the child’s parent (subsection (3)).

125. Section 19F(1)(a) to (g) set out the circumstances in which a local authority may revoke registration. Subsection (4) provides that in deciding for the purpose of revoking registration whether it would be harmful to the child’s welfare for home-education to continue, and whether the home-education being provided is suitable, the local authority is to take into account the wishes and feelings of the child as far as is reasonably practicable.

126. Subsection (2) of new section 19F provides a definition of suitable education for the purposes of revocation under section 19F(1). (This is the same as the definition in new section 19E.)

127. Subsection (5) of new section 19F gives power to the Secretary of State to make regulations about the specific actions that a local authority should take in connection with revocation, or proposed revocation. The regulations may (subsection (6)) include provision about matters that local authorities should and should not take into account when considering revocation.

128. New section 19G requires regulations to provide for a parent to be able to appeal against a local authority’s decision to refuse or revoke registration. The provision made by the regulations may include provision about the matters listed in subsection (2) - including the time limit for bringing appeals and the procedure on appeals. The regulations may also provide that where a right of appeal has been exercised in respect of a child’s registration, the child is to be treated as registered, for the purposes of enforcement, despite the refusal or revocation of registration.

129. New section 19H permits the Secretary of State to make regulations requiring information relating to a child to be supplied to a local authority in England, in certain circumstances, for the purposes of the exercise of their home-education functions. The persons who may be required to supply information are another local authority in England, and the proprietor of a school in England from which the child has been withdrawn for home-education. The Government intends to use this power, for example, to provide that if a school has been notified that a child is being withdrawn to be home-educated, and the school knows the identity of the local authority for the area where the child will be home-educated, the school must notify that local authority and pass on certain information about the child such as the child’s educational attainment to date.

130. New section 19I requires local authorities to have regard to any statutory guidance issued by the Secretary of State when exercising their functions under sections 19A to 19H.

Duty to make arrangements to identify unregistered children, etc

131. Paragraph 3 of Schedule 1 inserts a new section 436ZA into the EA 1996. This is needed to reflect the fact that, in England, home-educated children will need to be registered on their local authority’s home-education register. The new section requires a local authority in England to make arrangements to identify two categories of children of compulsory school age in their area. The first category is that consisting of children who are not home-educated, are not registered pupils at a school, and are not receiving suitable education provided under section 19 of the EA 1996 (alternative provision). Children within this category will be those who are not receiving any education at all, or who are receiving education under section 19 (of the Education Act 1996) that for some reason is not suitable. The second category is that consisting of home-educated children who are not on the authority’s home education register.

132. Subsection (4) of new section 436ZA requires local authorities to have regard to any statutory guidance issued by the Secretary of State when exercising their function of making arrangements to identify these children.

School attendance orders

133. The new registration scheme is to be enforced through the existing system of school attendance orders. Paragraphs 5 - 10 of Schedule 1 amend the EA 1996 to provide for this. The bulk of the amendments are to sections 437, 442 and 443 of the EA 1996. There are also consequential amendments to sections 438 and 441 of the EA 1996. Since the provisions in the Bill about home education apply only in relation to local authorities in England, the result is that the school attendance order system will work slightly differently in England from the way in which it works in Wales. The amendments do not change the operation of the school attendance order system in Wales.

134. The result of the amendments to section 437 is that, if a child in the area of a local authority in England appears to the authority to be being home-educated, but is not on their home education register (and has not applied to go on the register), a school attendance order will be served - provided that the authority considers that it is expedient for the child to attend school (new subsection (3A) of section 437 of the EA 1996, as inserted by paragraph 5(6) of Schedule 1.) In considering for this purpose whether it is expedient that an unregistered home-educated child should attend school, an authority is to disregard the unregistered home education being provided to the child (new subsection (3B) of section 437). But they may consider other matters, for example whether alternative provision should be made for the child under section 19 of the EA 1996.

135. If a child in the area of a local authority in England does not appear to the authority to be a home-educated child, but it appears to the authority that the child is not receiving suitable education, then the effect of section 437(B1) of the EA 1996, as inserted by paragraph 5(2) of Schedule 1 is that the authority must serve notice on the child’s parent. If, in response to the notice, the parent satisfies the authority that the child is receiving suitable education provided at school or under section 19, or that the child is registered on their own or another authority’s home education register, then this will be the end of the matter. So for instance a parent of a home-educated child could respond to a notice by applying for registration, thus stopping the school attendance order process. Or a parent of a child who had not been attending school because of, for instance, bullying concerns, could decide to opt for home education, and make an application accordingly, thus stopping the process. But if the parent fails to satisfy the local authority of any of these matters then the authority will serve a school attendance order.

136. Section 442 of the EA 1996 makes provision for a school attendance order to be revoked in certain circumstances. The amendments made to section 442 by paragraph 8 of Schedule 1 reflect the fact that, in England, revocation of a school attendance order will need to take into account the new registration system. The effect of the amendments is that a local authority in England must revoke a school attendance order served by them in respect of a child if the child is registered on their home education register. They must also revoke the order if they are satisfied that the child is registered on another authority’s register (provided that the child is in that other authority’s area). So for instance if a home-educated child in respect of whom an order has been served by one authority moves to another authority’s area after service of the order, and the child’s parent applies for registration there, the parent will be able to have the order revoked by informing the original authority of the registration. The local authority must also revoke the order if the parent applies for revocation on the ground that arrangements have been made for the child to receive suitable education under section 19 of the EA 1996, unless they do not think that satisfactory arrangements for this have been made.

137. Section 443 of the EA 1996 makes it a criminal offence to fail to comply with a school attendance order. Paragraph 9 of Schedule 1 amends section 443 to reflect the new registration system. The result is that, where a school attendance order has been served by a local authority in England, a non-complying parent will not be guilty of an offence if the child is registered on the authority’s home education register. Nor will a non-complying parent be guilty of an offence if he or she can prove that the child is registered on another authority’s home education register, or is receiving suitable education provided under section 19 of the EA 1996.

Clause 27: Power of National Assembly for Wales to make provision by Measure

138. Clause 27 confers power on the National Assembly for Wales to make provision about the regulation of home education, and the inspection of services provided by local authorities for persons involved in providing home education. It achieves this by amending field 5 of Part 1 of Schedule 5 to the Government of Wales Act 2006 (legislative competence of National Assembly for Wales in the area of education and training).


5 comments:

Fiona T said...

3.26am my dear! Hope you've managed to get some sleep now.
Thankyou for doing this it is really helpful. I was finding it brain boggling going back and forth through all the sections and subsections.I wonder about subsection 8,

((8) This subsection applies to an application for registration of a child’s details on the authority’s home education register if the authority consider that information that has been provided in connection with the application is incorrect or inadequate in a material respect (whether or not it was so when it was provided).)

do you think this means that they can SAO your child if you don't end up keeping to your proposed education for the registration period? Or does this just mean for example if you don't let them know about a change of address?

Anonymous said...

its such a load of old rubbish! some one got paid to write it amazing! what fool would write it? i reckon a solicitor wrote it?

Barry said...

Fiona - I'm fairly sure it does say somewhere about having to be measured against the plan - my brain's a bit fuzzy today but think it is worded in a way that suggests you can't deviate from the agreed plan. I suppose they'd say that you'd have to stick to it, as otherwise you might have switched from something 'suitable' to something 'not suitable', and how will they measure you? Part of the reason the imposition of a plan is wrong.

Also, don't forget this will be implemented by LAs many of whom are less than keen on HE anyway. And anyone AEing is going to be unable to produce a plan unless it's so vague as to be pointless. Shouldn't the law fit around and protect our freedoms and liberties, rather than us being expected to buckle to suit Ed Balls?

Raquel said...

they can shove their plan...and what worries me is that not enough people are saying this anymore. We are all getting into the nitty gritty and almost authenticating it by discussing the details. Surely the main thrust of our argument should be that it all must go and it is not up for discussion because it is trampling all over our civil rights and no matter how you spin it, it will never be acceptable? This Bill must go. All of it because the part relating to school is also important to us, because if they force us in ever, we will be dealing with that too. The whole bill must GO ! Sod the amendments! Demand that it is thrown out!

Carlotta said...

Yes, Raquel, by way of a summary, I completely agree. I thought though that as I am going to see my MP tomorrow, I had better know (more or less) what I am asking him to reject.

My argument to him is now going to be: look what this will actually mean. It will mean that children, some of whom have profound problems of one sort or another with school, who may well be simply terrified of it and who would NOT be well served by being forced to go back to it...(there is a very high failure rate for forcing children who are afraid of school back into it, must check this out again), but who ARE extremely well served by being educated out of school, will spend their whole lives worrying about the subjective judgement of a complete stranger, since this could simply devastate their lives.

Home education is an entire way of life for these children. Being forced back into school on someone's probably poorly informed judgement about what constitutes a suitable education would destroy a child's entire way of life and ruin the balance and trust that a family regularly achieves by home educating their children.

No other children are held to such regular and all encompassing account.

Children who were living extremely successful lives will find that those lives are entirely conditional, entirely unsafe. This will be devastating and home educating parents will not accept it and will do their utmost to resist it.

It MUST NOT HAPPEN.