Elective Home Education Legal Guidelines

ELECTIVE HOME EDUCATION LEGAL GUIDELINES

Index

Page

Education Law 1
Parental Responsibilities 2
Deregistration 3
Local Authority Duties 3
Diverse Approaches 5
Special Educational Needs 6
School Attendance Orders 9
Irregular School Attendance 10
Further Notes 11

Act numbers refer to The Education Act 1996 unless otherwise stated.

Education is compulsory - school attendance is not. The freedom to educate children at home forms an intrinsic and essential element of educational provision in our society, a right which has been protected by a succession of Education Acts. The law is clear that while education is compulsory, school attendance is not.

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Page 1.

Education Law

The current legislation regulating education in England and Wales is the Education Act 1996 (a consolidating act which incorporates and repeals the 1944 Education Act and later legislation. Repealed law should no longer be referred to).

The only sections relevant to elective home education are: (emphasis added)

Parental Duties:

Section 7 "The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable;

a) to his age, ability, and aptitude, and b) to any special educational needs he may have,

either by regular attendance at school or otherwise."

Local Authority Duties:

The LA's duties and powers in relation to home-educated children are contained in the Education Act 1996. These are fully set out in sections 437 to 443 of the 1996 Act and (except in relation to special educational needs) are limited to the provisions of those sections.

437. - (1) If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education.

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Page 2.

Parental Responsibilities

Under section 576 of the Education Act 1996, a parent is defined in relation to a child or young person as also including any individual:

(a) who is not a parent of his but who has parental responsibility for him, or(b) who has care of him.

As parents are responsible for ensuring that their children are properly educated, it is their decision whether to use schools or provide education at home.

It is important to note that the duty to secure education is stated entirely in section 7 and nowhere else.

Provided the child is not a registered pupil at a school, the parent is bound by no other constraints. In particular, there is no obligation

to seek permission to educate 'otherwise';

to take the initiative in informing the LEA;

to have regular contact with the LEA;

to meet with the LA;

to have premises equipped to any particular standard;

to have any specific qualifications;

to cover the same syllabus as any school;

to adopt the National Curriculum;

to make detailed plans in advance;

to observe school hours, days or terms;

to have a fixed timetable;

to give formal lessons;

to produce examples of ‘work’ for inspection;

to reproduce school type peer group socialisation;

to match school, age-specific standards.

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Page 3.

De-registration

The grounds on which a pupil's name must be deleted from the admission register are listed in Education (Pupil Registration) Regulations 9, 1995 [SI 1995/2089]. Under regulation 9(1)(c), a 'school-age' pupil's name is to be deleted from the admission register if:

he has ceased to attend the school and the proprietor has received written notification from the parent that the pupil is receiving education otherwise than at school.

If the parent writes to the proprietor explaining that the child is being educated at home, the school is obliged to take the child's name off the register, and the duty to secure regular attendance thus comes to an end. Since 1995 this has been an absolute legal requirement: no discretion is involved. (Under regulation 13(3) the proprietor of the school must also report the deletion of the pupil's name from the admission register to the LA ‘within ten school days’.) In this way the legal position of a parent embarking on home-based education is the same regardless of whether or not the child has been withdrawn from a school for this purpose. i.e., the LA is entitled to make informal enquiries of the parent(s).

LA consent is required for the name of a child registered as a pupil at a ‘special school’ – ‘under arrangements made by the LEA’, to be deleted from the schools’ admission register. (Regulation 9(2) Education (Pupil Registration) Regulations, 1995 [SI 1995/2089]).

The Regulations do not specify who should seek that consent. Reasonably, such a request can be made by either the child’s parent, the proprietor of the school, or both, in cases where it is the parental choice to home educate. If the school has stated that it will, itself, seek LA consent for the child’s name to be deleted from the admission register, for example where the parent has informed it that they have chosen to home educate, it is advisable that the parent also seeks such consent themselves.

LAs should not discriminate against parental choice to home educate their child by refusing such consent on the grounds that the child has SEN for whom it maintains a statement. If the authority does refuse to agree to such consent, the direction of the Secretary of State can be sought.


Local Authority Duties (cont'd)

The wording of the Education Act 1996 requires the LA to act only if something comes to its attention which gives it reason to suppose a breach of a parent's section 7 duty. It does not need to investigate any instances of home education which come to its attention unaccompanied by any grounds for suspicion that an adequate education is not taking place.However, case law (Phillips v Brown, Divisional Court [20 June 1980, unreported] Judicial review by Lord Justice Donaldson, as he then was) has established that an LA may make informal enquiries of parents. Lord Donaldson said:

"Of course such a request is not the same as a notice under s 37 (1) of the Education Act 1944 (now s 437 (1) of the 1996 Education Act) and the parents will be under no duty to comply. However it would be sensible for them to do so. If parents give no information or adopt the course ………. of merely stating that they are discharging their duty without giving any details of how they are doing so, the LA will have to consider and decide whether it ‘appears’ to it that the parents are in breach of s 36. (now s7 of the 1996 Education Act.)"

Determining ‘Suitable Education’

LAs should bear in mind when considering the replies to such informal enquiries (and other more formal ones, should the matter go that far) that parents taken to court for failing to comply with a School Attendance Order only have to show the court that they are providing a suitable education on a balance of probabilities. That is the test that LAs must also apply. Also a court will receive any evidence a parent produces, it will not have to be in any specified form and it will be sufficient so long as it shows that a suitable education is being given. Similarly an LA has no power to require that information be given to it in a specified form or way.

The DfES acknowledge this on their web site:http://www.dfes.gov.uk/schoolattendance/faq/

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Page 4.

(LA Duties, con'd)

LAs have no automatic right of access to parents' home. Parents may wish to offer an alternative way of demonstrating that they are providing suitable education, for example through showing examples of work and agreeing to a meeting at another venue.

Another “example” might be information provided in written form, sufficiently comprehensive to establish competence and intention, and beyond the bare assertion that education is taking place which Lord Donaldson determined was inadequate.

Many parents are quite concerned not to have their child’s privacy invaded out of respect for the child’s autonomy, and any hint of testing or examination by strangers with a different agenda can be experienced as undermining. Therefore for reasons of educational approach, some parents may not wish to provide information to their LA through home visits. Insistence or assumption of a home visit by the LA is a breach of Article 8 of the ECHR (the right to privacy and respect for family life.)

It would be helpful if LAs carry out their duty to accept information provided in any reasonable and adequate form, by not making a prior assumption of the normalcy of any particular form this might take, but on first approach to present the parents with the free choice the law supports. In the case of R v Surrey Quarter Sessions Appeals Committee, ex parte Tweedie (1963), Lord Parker held that: '.....an education authority should not, as a matter of policy, insist on inspection in the home as the only method of satisfying themselves that the children were receiving full time education.'

There is no legal requirement for the LA to make continual enquiries. Once in receipt of a reasonable account of the educational provision, their legal obligation is fulfilled and no further contact is necessary. However, some parents may appreciate continuous help, support and contact and under these circumstances further contact can be arranged. Some LAs arrange 'drop-in' centres where families can maintain contact.

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Page 5.

Diverse Approaches to Home Education

The principle of parental choice is paramount. Families are entitled to choose what they feel to be the most suitable educational approach.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 2 of protocol No 1 states:

"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions."

One system cannot be expected to cater for the needs and interests of all individuals, (many fail to thrive or reach their full potential whilst receiving formal instruction in a school environment). A variety of alternatives in education is therefore important and the law protects this diversity.

A clearer interpretation of some terminology used in the 1944 Education Act (repealed by the 1996 Act), was gained in the case of Harrison & Harrison v Stephenson (appeal to Worcester Crown Court 1981). The term 'suitable education' was defined as one which enabled the children ‘to achieve their full potential’, and was such as ‘to prepare the children for life in modern civilised society’. The term 'efficient' was defined as achieving ‘that which it sets out to achieve’.

Clearly this definition covers a great variety of educational approaches.

There is no one 'correct' educational system. All children learn in different ways and at varying rates, and chronological age has little bearing on the process. It would be wholly inappropriate for example to seek to impose ‘reading and numeracy age’ scales on home educated children, not subject to the specific educational methods in state schools. Individual children come to literacy and numeracy over a huge age range, which has no subsequent bearing on their competence in these areas as adults. It is vital that parents and children choose a type of education which is right for them, and it is important that any LA officers understand and are supportive of many differing approaches or "ways of educating" which are all feasible and legally valid.

Education Act 1996, Part V (incorporating Education Reform Act 1988).

This deals with the National Curriculum, stating in ss 351 to 353 (replacing ss1&2) that it only applies to children who are registered pupils of maintained (i.e. State or State-supported) schools. Home educators may choose whether to base their studies around these guidelines fully, partially, or not at all.

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Page 6

Elective Home Education of Children with Special Educational Needs

The right of parents to choose to home educate their children with special educational needs is upheld by section 7 of the Education Act 1996 and applies regardless of whether a statement is maintained by the LA for the child or not.

'The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable: -

(a) to his age, ability, and aptitude and (b) to any special educational needs he may have

either by regular attendance at school or otherwise

Identification and Assessment of Children with Special Educational Needs

It is important that LAs recognise that a child with a disability will not automatically have special educational needs (SEN). The definition of a person with a disability under the Disability Discrimination Act 1995 is not the same as the definition of those children who have special educational needs under the Education Act 1996.

Children with SEN are defined as those having “a learning difficulty.. (the definition of which includes a disability) ..which calls for special educational provision to be made for him.” Special educational provision is itself defined as provision which is additional or different to that made available for children of the same age in ordinary schools in their area. (section 312).

Accordingly, it is possible for a child to be disabled under the DDA and not have SEN (and vice versa). Equally, it is possible for a child to be both disabled and have SEN (and, of course, be neither).

Under sections 321 (2) and 323 (2), LAs have a duty to identify and formally assess only those children for whom they are responsible, where

(a) he has special educational needs, and(b) it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.

It is therefore not necessary for LAs to identify and formally assess electively home educated children of compulsory school age that have, or probably have, SEN, where the child’s parents and the LA are satisfied that those needs can be suitably met by the parents ‘otherwise than at school’. Conversely, it is necessary for LAs to identify and formally assess children of compulsory school age that are electively home educated in the following instances:

· the child has, or probably has, SEN, the child is to become a registered pupil at a school and it is considered unlikely that the child’s needs can be met within the schools own resources (e.g. at School Action Plus).

· the child has, or probably has, SEN, the parents’ no longer wish to fulfil their section 7 responsibilities by electively home educating and the LA is of the opinion that it is necessary for it to determine the special educational provision which any learning difficulty calls for.

LAs shall make and maintain a statement only for those children for whom it is necessary that the LA, as opposed to the parent, determines the special educational provision necessary.

Section 324:“(1) If, in the light of an assessment under section 323 of any child’s educational needs and of any representations made by the child’s parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty calls for, the authority shall make and maintain a statement of his special educational needs.”

The statutory procedures for formal assessment and making and maintaining a statement are contained in Part IV and Schedules 26 and 27 of the Education Act 1996 (as amended by the Special Educational Needs and Disability Act 2001) and The Education (Special Educational Needs) (England) (Consolidation) Regulations 2001

Children that become electively home educated for whom statements are maintained

Parents need to seek permission to home educate a child for whom a statement is maintained only where a School Attendance Order is in force. Otherwise, the fundamental parental right to choose to home educate a child with special educational needs is in no way undermined.

Section 324 (5) of the Education Act 1996 places a statutory duty upon LAs to arrange the provision specified in a statement it maintains only if parents are not themselves making suitable arrangements.

Section 324:“(5) Where a local education authority maintain a statement under this section, then

unless the child’s parent has made suitable arrangements, the authority – shall arrange that the special educational provision specified in the statement is made for the child……”

Where parents that are electively home educating their child for whom the LA maintains a statement of SEN are fulfilling their responsibility under section 7 of the Act, they are indeed making ‘suitable arrangements’.

Nowhere in the legislation is there a duty placed upon parents to arrange the provision specified in the statement maintained by the LA for their child. LAs cannot conclude that a parent is failing to cause their child to receive suitable education on grounds that the parent is not arranging the special educational provision specified in the statement. Parental responsibilities are defined entirely in section 7 and nowhere else. LAs must accept that electively home educating parents may choose alternative special educational provision or an alternative approach to meeting their child’s SEN than that which is specified in the statement.

Parental rights and duties are not affected where a Special Educational Needs and Disability Tribunal (SENDIST) Order has been made regarding the content of the statement. Accordingly, a parent is not required to register their child as a pupil at the school named at Part 4 of the statement, nor to arrange the special educational provision specified at Part 3, where the contents of these Parts of the statement are decided by the Tribunal upon conclusion of an appeal.

LA’s are absolved of their duty to arrange the special educational provision specified in the statement it maintains where the child is electively home educated. This does not prevent a LA from offering to arrange some, or all, of the special educational provision specified at Part 3 of the statement, although parents are free to decline such an offer. If the LA and the child’s parent are agreeable to the suitability of LA arranged provision for meeting the child’s special educational needs otherwise than at a school, section 319 provides that such provision be specified in the statement and duly arranged.

An LA cannot insist that a child for whom it maintains a statement or a child with SEN for whom no statement is maintained be assessed by an educational psychologist, specialist teacher or similar in order to establish that the parents are fulfilling their section 7 responsibilities. LAs can only expect a child to be presented for an assessment ‘examination’ when a statutory assessment under section 323 is underway.

LAs retain the duty to review a statement maintained for a child that is electively home educated at least every 12 months, as required by section 328 (5) of the Education Act 1996. Regulation 22 of The Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 prescribes the statutory procedures of such reviews and the matters which must be considered.

Once a LA is satisfied that a child’s special educational needs are being suitably met through elective home education and that parents are established in and committed to providing long term home educational provision, consideration to ceasing to maintain the statement should be made. An appropriate opportunity for such consideration would be when the statement is reviewed, although such consideration can be made at any other time. LAs concerned that this may not be an appropriate course should recognise that statements should only ever be maintained “…where it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for…” (from section 324 (1)).

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Page 9

School Attendance Orders

Education Act 1996 s 437-443, (previously s 192-198 1993 Act)This begins:

"If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent...."

The formal steps provided for in these sections should not be needed unless something has gone seriously wrong. Nevertheless they are summarised here for reference:

1. If the LEA has evidence that there appears to be no suitable educational provision, the LEA must serve the parents with a notice giving them at least 15 days to satisfy them that their child is in receipt of suitable education. The DfES at <http://www.dfes.gov.uk/schoolattendance/uploads/GUIDANCE%2019-06-03.pdf > has issued LEA guidance on this procedure which states that when

“informing them of the LEAs intention to serve a SAO. The LEA should inform the parent of schools that are suitable for the child to attend and should also inform the parent that they have the right to educate their child at home if they choose to.”

2. If the parents fail to satisfy the LEA, it then has to consider whether it is expedient for the child to go to school. If they think it is they must serve a 'school attendance order', but before doing so they must serve a notice stating which school they intend to name in the order, and giving the parents a chance to choose an alternative. If a statement is maintained for the child, the LEA must name the school specified in Part 4 and is not required to serve a notice which allows parents to choose an alternative school. However, if no school is named in Part 4 or if the school named is determined by the LEA to be unsuitable, an amendment must be made in accordance with paragraph 10 of Schedule 27 of the Education Act 1996. Accordingly, parents will have the right to make representations against the contents of the statement, express a preference for the name of a maintained school or make representations for another placement and to appeal to the SENDIST, if necessary. Similarly, if the parents request a change of named school, the LEA must comply with that request in accordance with paragraph 8 of Schedule 27 and parents will be able to exercise their right of appeal to the SENDIST if the LEA determines not to comply. The LEA should not issue the school attendance order until the time limit for lodging an appeal has lapsed.

3. The LEA serve a school attendance order requiring the parents to register the child as a pupil at the school named in it.

4. The parents can ask the LEA to revoke the order because they are educating 'otherwise'.

5. The LEA can prosecute the parents for not complying with the order, but the action will fail if the parents can show the court that they are educating 'otherwise'.

The evidence a court requires to satisfy it that adequate education is taking place, is such as would convince ‘a reasonable person’, ‘on the balance of probabilities’. (Under section 447, whether they prosecute or not, the LEA must also consider applying for an education supervision order.)

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Page 10

Irregular or Non-attendance at School

Education Act 1996 s 444, (previously s 199 of 1993 Act derived from s 39 1944 Act)

This deals with the non-attendance, or irregular attendance at school, of registered pupils. If poor/non attendance is due to severe school anxieties, usually the Educational Welfare department becomes involved and the family should be informed of all their duties, rights and available options including education at home.

Many LAs, when confronted with the problems of School Phobia/Anxieties, School Refusal/Truanting, encourage families to contact one of the home education support groups for help and advice. This provides a useful alternative course of action for officials, because if endeavours are made to pressure children with the above problems back into schools under duress, the whole family (as well as the child) suffers the ensuing stress and the truanting and nervous illnesses inevitably continue. Education at home may prevent further distress and the possibility of the child returning to school at a later date remains an option.

Flexi-time or Part-time schooling

There may be families who would prefer a flexi-time schooling approach.

Under s444(3)(a) of the 1996 Education Act

Any ‘school age’ child who goes to school at all must attend regularly, but absence ‘with leave’ does not count as irregular attendance. During such absences the child is officially at school, but is effectively being educated off site. (S)he is therefore covered for insurance and attracts full funding. Such arrangements are at the discretion of the school. (s 444 (9))Further Notes

Truancy Patrols

It has unfortunately become necessary in this revision to draw attention to the Home Office guidance: ‘GUIDANCE DOCUMENT POWER FOR THE POLICE TO REMOVE TRUANTS’, as the widespread experience of home educators around the country has revealed that many police officers and accompanying EWOs have not been properly briefed on the safeguards it contains, specifically to protect the civil liberties of home educated children.

Section 4.21 of this guidance states:

"Local procedures should take account of possible contact with such home-educated children and it should be emphasised that they are not the target group for the new power. The power can only be exercised in relation to registered pupils of compulsory school age absent from school without authority; it does not apply to children who are lawfully educated at home. No further action should be taken where children indicate that they are home-educated - unless the constable has reason to doubt that this is the case."

Some police officers and EWOs have used the opportunity these actions provide to insist on names and addresses being given, and refusal as a reason for doubt. There is no compulsory registration of home educators, therefore to so insist against the clear direction contained in the Home Office guidance is an abuse, and an avoidable source of friction and resentment where it occurs. Home educators and their children have been advised that legally, once they have stated that they are home educators, that as they commit no offence, they are entitled to go on their way without further question, and that any further detention is unlawful.


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Page 11

Further Notes

Resources for home educators

It would be appreciated, at first LEA contact, and in any written LEA guidance that the following web site be listed: www.home-education.org.uk This web site is independent of any one organisation or educational philosophy, and is the home of the UK Home Education web ring, linking with many other sites created as self help resources by and for home educators. All the home education organisations can be found through this one site. The information, help and mutual support available is an unrivalled resource of immense value to many.

This document is the work of a large number of home educators including, but not exclusively, members of ‘Education Otherwise’ and ‘Choice in Education’. It was edited, and has been further revised in March 2003 by Neil Taylor. It is online at www.home-education.org.uk/legal-guide.htm or http://www.choiceineducation.org.uk/

My special thanks for this revision to SpEArHead (Special Education At Home) for providing the SEN section of this document.

Free copying and distribution of this document, unaltered and in its entirety is encouraged. Authenticity of the original can be verified by the editor contacted through the above web site.

Paper copies in A4 sheet (for easy photocopying), or A5 booklet form are available from 'Choice in Education', an independent publication for Home Educators, PO Box 20284, London, NW1 3WY £1.00 to cover printing, post and packing costs.