Below, with many thanks to HEors elsewhere for providing considerable amounts of inspiration for these answers, is an updated draft of a response to the DfES Consultation on Guidelines for Elective Home Education.
Please feel very free to use any answers below as inspiration for your responses: the more responses the DfES receive from HEors the better, whether these be from individual home educators or local groups to national organisations. We cannot let this process be co-opted by the LAs. The DfES need to know just how strongly we feel about the way we are approached by the authorities and that we do demand decent treatment. If we do manage a sufficient number of responses from HEors and the DfES simply choose to ignore us, we will go to the press and complain like fury. We will go back to the Better Regulation Executive and start shouting all over again, but first we must make sure that our voice is heard. Please do put in a response!
Many points in the draft guidelines are not covered in questions in the consultation. Important criticisms of the neglected points are required. When this is the case, these criticisms have been included in the consultation question that most closely covers the section in the guidelines.
Before you look down, and panic at the screeds below, I can summarise by saying that I think there are two main areas that HEors need to tackle in their responses. These are:
1. that the guidelines do not make reference to any possible consequences of the Children Act 2004. We need to make it explicit in the guidelines that the Act should not change the way in which the LAs are best off approaching us. For example, we might do well to say that although people like the Children's Commissioner have been tasked with asking our children for their views, that the views of these children is most often that they want as little interference from the authorities as possible and furthermore, that they don't want to be solicited by the authorities for their views. The guidelines also need to be clear that parents remain principally responsible for meeting the five desired outcomes for children as stipulated in the act. The LA and community only have a role to play when parents fail to try to meet these objectives.
2. We also need to require the guidelines to be explicit and precise about how LAs are best to approach us. At the moment, the guidelines are not clear on the principle and practice. My feeling is that LAs should adopt the principle of minimal proportionate intervention, starting from the point that if, on balance of probabilities, it appears that a suitable education is being provided, that it is completely acceptable for an LA to leave a family completely alone. They can move through the policy of one-off written communications, through to more extended written communications, through to requests for meetings, but all of this should only be done in the situation that it is deemed that there is cause for concern and that further communication is therefore necessary. We do not want to "HAVE" to have a relationship with the LA, a requirement that in itself would seem to preclude the possibility of it being a good one.
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Consultation Questions
1 Do you agree that it is helpful for the DfES to issue guidelines to local authorities?
Yes
No
Not Sure
No Response
Comments:
It would rather depend on the final nature of the guidelines. If the guidelines accurately interpret the law and demonstrate an understanding of the nature of home education, they are likely to be helpful.
However, some parts of the guidelines appear to be repetitive and/or to require tightening to reduce ambiguity, this particularly with regard to the best policy for LAs when approaching home educating families, the principle for which should be that of minimal proportionate intervention. The processes involved in this need to be laid out explicitly. For example, it should be clear that an LA does not have a duty to have any contact with a family when it appears on balance of probabilities that an education is taking place. LAs are best to go through a gradual process of establishing contact and that they should only do so on the basis that there appears to be some need to do so. So for example, if there is a need to establish that on balance of probabilites that a suitable education is taking place, then the LA should communicate with the family in writing. Again, there need not necessarily be any need for further action at this point, see below, in response to Question 6.
The guidelines would also require further additions, eg: with regard to the appropriate way to implement the Children Act 2004. The guidelines should be explicit that the Act should not change the way in which the LAs are best off approaching us. For example, although the Children's Commissioner have been tasked with asking our children for their views, that the views of their children often are that they want as little interference from the authorities as is humanely possible and they don't want to be solicited by the authorities for their views. The guidelines also need to be clear that parents remain principally responsible for meeting the five desired outcomes for children as stipulated in the Act. The LA and community only have a role to play when parents fail to try to meet these objectives.
An alternative draft which eliminates these problems could be produced by home educating organisations.
However, even in the situation of achieving a satisfactory set of guidelines, there appears to be no intention on the part of the DfES to enforce these guidelines, so whatever the outcome, we envisage that at least some local authorities are likely to continue to apply heavy-handed and inappropriate measures to home educators, and we would appreciate a standard procedure for addressing complaints raised by home educators.
In Scotland there has been Guidance for three years but home educators still suffer unacceptable treatment from local authorities who have no regard for the Guidance,(see Schoolhouse's response to the Scottish consultation here). This rightfully causes us to question the value of guidelines, given that there are to be no sanctions. How can the English guidelines avoid the same fate?
The current draft does little to reassure local authorities about the limits of their duties and the limts of the expectations upon them. LAs often appear to need clarity about the line between their role and that of Social Services. They are in fear of prosecution and this guidance needs to reassure them about their position in order to prevent the over-zealous aproaches to home educators currently in vogue. If the guidance does not achieve that reassurance, harrassment of home educators will continue and lack of sanctions for ignoring the guidance will mean that home educators remain unprotected.
re: section 1.1. The second use of the word "home" in the first sentence should be replaced with "other than at school."
re: section 1.2. The word "broad" should be replaced by "suitable".
re: section 1.4 "various" should read "any number of different". The sentence "the authority's primary interest should lie in the suitability of parents' educational provision" should be altered to make it clear that the authority does not have a duty to check for suitability, and only need to do so when there is good cause to suspect that a suitable education is not taking place. The list of reasons to home educate is not exhaustive and serves no useful purpose, given that the reason is irrelevant unless a parent is asking for help to stay in/return to school.
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2 Do you agree that the description of the law (paragraphs 2.1-2.3) relating to elective home education is accurate and clear?
Yes
No
Not Sure
No Response
Comments:
The overall tenor of this section is accurate.
re: section 2.4. It might be helpful for LAs if the word "full-time" was appended here with "(see section 3.11)". Also, there is no reason to emphasise "full" financial responsibility, since there is no reason in statute why LAs could not assist home educators financially, and indeed some already do so, through the provision of various services.
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3 Do you agree that the description of local authorities’ responsibilities (paragraphs 2.5-2.11) is accurate and helpful?
Yes
No
Not Sure
No Response
Comments:
At some point in this section, it would be helpful to remind LAs of their responsibilities under the ECHR legislation, with particular regard here to Article 8:
"Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
In other words, LAs do not have the right of access to the home without their being cause for belief that a child is at risk.
re: section 2.5. The second main point in this paragraph does not follow from the first. I would suggest that the sentence starting "Local authorities should recognise that there are many approaches..." contains a point of such significance that it merits a paragraph of it's own.
re: section 2.5. It would be helpful to remove the phrase "all children should make reasonable progress" from a paragraph dealing with local authority responsibilities, since this appears to imply that it is the duty of LAs to monitor for progress. This is not in fact the case, since monitoring of progress is the responsibility of parents. Upon hearing of a HE child, the LEA need to ask themselves only if it is likely on balance that s/he is in receipt of a suitable education. This is not a monitoring or progress-reporting role. It is a snapshot glance and a judgement-call based on that snapshot. If that glance would suggest to a reasonable person that all is likely to be well with the educational provision and the parent appears to be law-abiding and aware of their legal S7 duty, it naturally extends from that the parent is appropriately attentive to the educational needs of their child according to his/her age, ability and aptitude and therefore progress *will* be suitable to that child. It is most certainly not for the LEA to monitor progress and nothing in the guidelines must even hint at that.
re: section 2.6. This could be worded more helpfully, since from the first part of the paragraph which states that LAs have a new duty to identify children missing from education, it would not necessarily be clear to an LA officer how this duty does not apply to children who are being educated at home, as stated in the last sentence. Perhaps the following could be included by way of further elucidation for LAs: "If a child comes to the notice of a local authority as not being registered at a school, the LA may ask the family about educational provision and upon receipt of information that a child is being educated at home, the LEA should assume, in the absense of evidence to the contrary, that this is indeed the case."
re: section 2.7. From the first sentence - "the quality of" and "on a routine basis" need removing. There is no statutory duty at all, routine or otherwise, to "monitor" quality or anything else about EHE.
re: section 2.8. It would be helpful if the order of 2.7 and 2.8 made it clearer that the enquiries mentioned in 2.8 should precede the process in 2.7.
It would also be helpful to make it clear that these enquiries are not bound by a 15 day minimum, and that conversely, there is no requirement for LAs to do as they frequently do, which is to require a response in a 15 day maximum time-span.
It would also be helpful if it were made clear that the enquiries mentioned in 2.8 may well never lead to the formal process in 437(1) of the Education Act 1996.
re: section 2.9. More emphasis could be made of the (b) part of 437(3). The LA should ask themselves whether, in the presence of a failure stated in 437(3)(a), they really believe that the only useful course of action is to put the child into school, ie: (b). Could the child receive a suitable education out of school with some more help, input, resources etc? The DfES should make it clear to the LAs that they have it within their legal and financial scope to assist the parent in their preferred choice of eduacational provision, and that they must use their funds and resources in non-discriminatory ways to benefit all children in their area. EHEers are not to be discriminated against because of their choice any more than persons choosing a particular religious education. After all, every child matters!
It would be helpful to add the information that the LA must notify the parent of their intention to issue an SAO before they actually do so and they must also let the parents know the school to be named in the notice.
re: section 2.11. We are pleased to note that Section 175(1) of the Education Act 2002 does not extend local authorities' functions. It might also be useful to clarify here that the Children Act 2004 also does not confer duties upon LAs to seek out problems (be they educational or other welfare issues) where there is no reason to believe that there are any and that home education, in itself, is not a reason to suspect that child welfare problems exist. There should be sufficient grounds for anxiety whether it be over the issue of educational provision or welfare, before the privacy of families is invaded.
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4 Do you agree that the section on contact with the local authority (paragraphs 3.4-3.7) is accurate and helpful?
Yes
No
Not Sure
No Response
Comments:
There is no room in the consultation to provide critique on sections 3.1 to 3.3. However, we feel that Section 3.1 should say that policy reviews must always be mindful of the law because it is at those times that documents may stray away from legislation and guidance. We also feel that it would be helpful to include HEors (both local and national) in these reviews.
Section 3.4. The first word in this section, ie: "many" should read "some" as this choice of word is unlikely to misrepresent the situation. Rather there is good reason to believe that the many HEors do not welcome contact with LAs, often because they believe that contact rarely benefits them substantially, and contains the possibility that their way of life may be profoundly affected in an non-consensual fashion.
It is inappropriate to single out a specific group of children, ie here: Gypsy, Roma and Traveller children. All children in England will come under the same legislation and guidelines and whilst it could be helpful when trying to ascertain whether an appropriate education is taking place to contact various organisations such as the Traveller Education Service, I do not feel that it is necessary or desirable to single out target groups in this manner, as it risks creating prejudice and ill-informed judgements.
It would be preferable instead to make it clear that an LA should not act in a prejudicial fashion. Somewhere in paragraphs 3.4 to 3.6, it should be clarified that income, housing, race, religion, sexual orientation, profession and educational qualifications are not in themselves grounds for reasonable concerns about ability to provide a suitable education.
re: section 3.5. The word "judgement" should read "decision on a balance of probabilities".
There is no legislation that allows LAs to directly approach the child so they have to accept that the parent will have respected their child and offered them whatever freedoms the parent sees fit to have with regard to access to the LA. It is necessary to realise that if LAs really do want to take the views of children seriously, that the child may not want to be approached by the LA in order to gather his views on whether or not he wants to meet with them. To insist on a meeting to gain consent for a meeting is to disregard the spirit of the Children Act 2004, which proposed that the views of children be taken seriously. If the LEA has good reason to think a child is not being heard and as a consequence of this, their welfare, educational or otherwise, is at risk, they may take action in the form of SAOs or referral to social services, but direct communication with the child cannot be required routinely.
re: section 3.6. "Ongoing" needs deleting - the "snapshot" is all that is required.
re: section 3.7. Replace the first word "many" with "some" (see explanation above) and remove a comma after "they may, " in second sentence.
This paragraph would need to be re-written in order to make it clear that the manner of presentation of evidence should not prejudice the decision about whether or not an appropriate education is taking place. As it stands, it could read as if parents who permit a home visit are likely to be viewed favorably. For example, the phrase "" if they choose not to meet" implies that they have chosen to present evidence in the way preferred by the LA, when all they have actually done is choose to present evidence in a perfectly legitimate fashion.
There are no consultation questions about sections 3.8 to 3.10.
re section 3.8. Citing this particular deregistration scenario is misleading because it suggests that parents need or should seek "guidance" from the school or LA about deregisration from school, whereas it is equally valid for there to be no first contact between parent and LA. In other words, the parent sends a letter of deregistration to the school, the school deregisters the child and informs LA, the LA assume (in the absence of reason to think otherwise) that the family are providing a suitable education. At the very least, it should be clear here that it is legitimate for the LA to take no further action at this point.
re: section 3.9. This section refers to the outdated regulations. The second sentence "wish" should read "decide" as the former makes it look like they need permission and "intention" may more usefully read "decision". Returns from school to LA must be immediate. The last sentence should not be included, since there is no reason why an HE family will benefit from contact with their LA, and could create a situation where LAs assume that if a parent chooses not to inform them, that there are likely to be problems with educational provision, when it is much more likely that the family feel that they would benefit from being left alone for a while, without the heavy hand of a system that may have already failed them, bearing down on them.
re: section 3.10. This is nothing to do with deregistration so is under the wrong heading - it is about LEAs making initial contact with a parent. "Proposals" is not a useful word as it suggests the parent is putting something forward for approval before going ahead. Parents are not required, even when they are settled, to demonstrate all the characteristics of a suitable education. Parents are only expected (by Donaldson) though are not required by statute, to respond to an LA enquiry with enough information to satisfy them that there is no appearance of a S7 failure. Saying a reasonable timescale should be agreed is risky - agreed with and by whom and what is reasonable?
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5 Do you agree that the section on providing a full-time education (paragraphs 3.11-3.14) – and in particular, the characteristics of provision (paragraph 3.13) – is accurate and helpful?
Yes
No
Not Sure
No Response
Comments:
re section 3.11. It would be preferable to explain that full-time is not defined and that it is for a parent to judge whether the amount of time their child spends in education is sufficient to provide them with an education suitable to age, ability and aptitude. ie full-time is a personal measurement.The idea of so much one-to-one contact risks creating the impression that home educated children must be hot housed/personally tutored (as in the old governess type image) child. On to the list of unrequired stuff - and subsequent sentence - LAs giving advice on these matters *if requested* - needs to be clear that advice should only come from those qualified to give it -- ie not just knowledgeable in those topics but in home education as well. Also, it also should be stated that the LA must, when they establish contact with an HE family, make it clear to the parents that they are not required to do anything on this list. This is an important point as LAs often take advantage of those who are new to HE and, for example, do not let these families know that they are not required to teach the National Curriculum.
re: section 3.12. LAs MUST consider ANY info from parents in ANY format, not just a "wide" range. The last sentence is too limited/prescriptive and needs dumping.
re: section 3.13. It appears here that the LA they are trying to write a definition of "suitable". A list of criteria as can be found at this point is likely to become a requirement which will be cited in case law some time in the future. Therefore any list has a significant potential to alter the legal situation for HEors and raises expectations for certain inclusions that are neither legally required or educationally necessary.
re: section 3.14. The header, for 3.11 to 3.14 is "Providing a full-time education". However it is mostly about the content of that education and 3.14 is about sanctions when their list in 3.13 is not seen to be completely adhered to. It is all about much more scrutiny than is legally required. It assumes that one unfulfilled bullet point is good reason to suspect a section 7 failure, so those bullet points would need to be VERY tight.
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6 Do you agree that the section on developing relationships (section 4) is useful?
Yes
No
Not Sure
No Response
Comments:
Assisting the development of relationships between LAs and HEors should not be the central purpose of the guidelines, since these are by no means necessarily essential to the successful education of a child. The main purpose of the document should be to ensure legal compliance and proper treatment by LAs in the service of the provision of a suitable education to home educated children.
Whilst section 10 of the Children Act 2004 states that each children's services authority must make arrangements to promote co-operation between the authority, each of the authority's relevant partners and such other persons or bodies as the authority consider appropriate, being persons or bodies of any nature who exercise functions or are engaged in activities in relation to children in the authority's area, there is no clear duty that LAs should make arrangements to promote relationships between themselves and HEors, nor is there an equivalent duty placed upon home educators to make arrangements to build effective relationships with LAs, nor could it be stipulated that there is a duty to have these "co-operative" relationships and although this much is stated in section 4.2, section 4.1 could easily be taken to imply the opposite and should therefore be re-written so as to make it clear that HEors and LAs do not have to develop a relationship.
This is important because it is the case that many home educators do not want any relationship with the LA, but would not want to be judged negatively for this. They simply prefer to maintain the privacy of their families in the knowledge that they are sufficiently well-supported without the assistance of the state, they are not doing anything illegal and therefore do not warrant any investigation by authorities. LAs need to realise that they act as public servants and respond only in situations of need. They should not insist upon establishing relationships as to do so (even if very politely), is to destroy the genuine possibility of an equal, co-operative and trusting relationship.
re: section 4.3. I would suggest removing the phrase "especially those who have other children attending school", as it is very likely to lead to false assumptions about the style of education provided. For example, many parents provide a very structured form of education without ever having sent any of their children to school. Other parents with some schooling children provide a more child-centred form of education where the parent responds to the enquiries of the child.
re: section 4.4. It states: "(see paragraphs 3.12 to 3.15)." These section numbers probably refer to 3.12 and 3.13 which contains the list (see critique re: 3.13 above).
re: section 4.6. Given that the header here is "Providing information for parents", only the first sentence is required here. The rest has nothing to do with providing information and should be included in the following section 4.7 which deals with "Contact with parents and children". It would be helpful to make it clear that it is appropriate for LAs either to leave HE families alone or to be in occasional or if needed regular written contact with HE families and that they only need invite HE parents and children to a meeting in the situation that they have due cause to do so, and that this may be a one-off meeting, if that is all that is required.
After "future contact", insert "if any" to highlight the fact that ongoing contact is not a legal requirement. In addition, it needs to be clear that it is the parent's prerogative to offer the child access to the LA if they wish, not the LAs.
re: section 4.7. Singling out home visits and using weighted words like "strong indication" gives undue preference to the HV option. This weighting should be changed to show clearly how the LA can act in appropriate and proportionate fashion. It is actually the case that many children will not respond at all well to the knowledge that a stranger will come into their homes to judge them on their whole way of life, with that stranger having the power to remove in it's entirety. To think that a home visit is necessarily the best way to judge the educational provision is to fail to understand the way in which these visits are often perceived by HEors, who frequently find them traumatic and undermining. In addition, many children who HE have also suffered considerably as a result of over-zealous officials in schools, and intrusion into the home of such children is likely to be more damaging than helpful. LA officials need to be made aware of this problem in these guidelines. It is the case that despite the guidelines, but with no power to enforce them, HEors will still remain on tenterhooks to find out whether or not their LA official will behave appropriately and whether or not their lives are to be altered profoundly, in a way which they are likely to believe is not in the best interests their children. Therefore, as a principle of good practice, it would be preferable if LAs practiced the principle of proportionate minimal intervention or only provided services when they are requested to do so by HEors.
re: section 4.8. Together with section 4.7, this paragraph appears to be approaching the problem of LA contact from the wrong angle. It would be better to state the principle of proportionate minimal intervention at the beginning, stating that LAs do not have a duty to do anything in the situation that it appears on balance of probabilities that an education is being provided and that in order to establish this, written communication is an appropriate measure and that more or ongoing communication is only necessitated should there be concerns of one sort or another, and that meetings with HE parents and children are only necessitated as a last resort, when there is some basis for concern.
There should be clarity about 'audi alteram partem' and no weight or preference allowed. Then there should be a section that says that LEAs MUST NOT state, request or insist upon any preferred method of providing info and that to do so in particular for HVs is a violation of a family's human rights. They should be reassured that in those exceptional circumstances when there is genuine concern that a child is at risk there are already SS procedures available and if there is real warranted concern that the child's education is not suitable, they have section 437 Education Act to call upon.
re: section 4.9. Whilst the welfare and protection of all children is unquestionably paramount, it is not necessarily clear that it is the automatic responsibility of "the whole community". It is only clear that morally it is the parents who have automatic and primary responsibility for the welfare and protection of children. It is only in the situation that a parent fails to meet this responsibility that the wider community assumes some responsibilities in these areas. There should be a clear statement that LEAs should not try and do not need to manipulate education law as a means of addressing welfare concerns, as social services already have adequate tools at their disposal.
re: section 4.9. It would be helpful to make it clear that elective home education is not, of itself, a reason for welfare concerns and that the duties conferred upon LAs in the Children Act 2004 do not extend their rights to intrude upon the privacy of families. Upon receipt of information that a child is educated at home, an LA would be wise to make written enquiries about the nature of that education, and only pursue the matter further if there are other reasons to think that there may be a problem. The Children Act gives much credence to the idea that the views of children should be listened to, taken into account, and as far as possible, acted upon. It is the case that many home educated children (see Hands up 4 Home Ed, by way of an example), expressly do not want to see LA personnel, and this would in all probability include an interview to talk about whether or not they wanted to see such people.) LAs should try to respect the spirit of the Children Act when it comes to taking the point of view of children seriously, and ask themselves at what point they perpetuate rather than solve the problem of abuse.
re: section 4.10. It should not be made to seem as if it is a requirement for HE parents to take up references, although this may be suggested as good practice.
re: section 4.11. "Will wish to" should read "should". Delete "further develop relationships" .
re: section 4.12. Ofsted does not always appear to understand the legislative framework as it relates to LAs and home educators. For example, Ofsted has been known to make suggestions for LA action that is not in accordance with the legal position. It would therefore be helpful to clarify that Ofsted will be required to act in accordance with the guidelines.
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7 a) Are the suggested resources in section 5 and appendix 2 useful?
Yes
No
Not Sure
No Response
Comments:
re: paragraph 5.1. The Home Education leaflet in the Parent Centre link would need to be updated to bring it in line with the proposed guidelines, since there would otherwise be some contradictions between the two documents which could result in confusion for home educating parents who are not familiar with legal requirements and best practice.
re: paragraph 5.5. We would like to suggest that LAs should provide information about Connexions to elective home educators, rather than providing information about EHEors to Connexions, since this would allow the families to choose whether or not to use the service, and would minimise unnecessary waste of public money when Connexions chase up HE teens who would rather not have contact with them.
The information at the Advisory Centre for Education, www.ace-ed.org.uk is inaccurate and needs correcting.
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7 b) Should any other contacts be included?
Yes
No
Not Sure
No Response
Comments:
Open University
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8 Please use this space for any other comments you wish to make about the guidelines
Answer:
re: paragraph 2.4. This accurately describes the current situation in saying that parents "must assume full financial responsibility, including bearing the cost of any public examinations", but it could be helpful if LAs were to consider assisting EHEors with courses and funding for public examinations, as has been happening in some authorities. It would also be helpful if LAs could designate a local school or college as an examination centre that would routinely accept external candidates.
re: paragraph 3.15. (HELP guys...not up to speed at all with this.) I understand that it is not the case that a statement of Special Educational Need must (SEN) must remain in force in the situation that a child is EHE. The statement in this situation may be removed. Also, it should be made clear that a statement of SEN does not override paragraph 3.11. Some items on a statement may only be relevant to meeting the needs of a child in a school situation. An LA should not be able to use it to force a parent to provide a form of education that is inappropriate to EHE.
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