The Current State of Play re: The Policy Proposals for Home Education

The current state of play...

Mr Badman's review of HE was released to widespread (though not universal) condemnation in the home education community on June 11th this year .

On the same day, Ed Balls (Sec of State) said that the government accepted the safeguarding recommendations in the report and that they would introduce these as soon as possible. However on the other recommendations, such as the ones where HEors might actually get something, like PCs, or access to exam centres, he was ambivalent and said that the department would need to consider the implementation and resource implications."

Baroness Morgan, (Parliamentary Under-Secretary for DCSF) somewhat confusingly said that the government accepted all the recommendations, but we think we'll go with Ed's version as the Baroness is new to this area and somewhat prone to making wildly inaccurate statements. She did for example, at a later stage, also say that the government didn't think that the recommendations would cost LAs any more money.

So back to June 11th: Ed Balls also said that the DCSF would issue a more detailed response to the review in September.

And that another consultation had just started, this one called "Home Education - Registration and Monitoring Proposals" due to finish on 19th October 2009.

The 19th October is of course after the date that Ed is due to provide a more detailed response to Mr Badman's report. Since the current consultation asks questions the answers to which should presumably impact upon the department's position, it begs the question of the point of this current consultation.

Also on the issue of the point of the current consultation, on 29th June, the government announced in their Draft Legislative Programme that they already intend to legislate to "improve monitoring arrangements for children educated at home" and that they intend to include these changes in the Improving Schools and Safeguarding Children Bill, which is due it's first reading in the next session of parliament.

So all in all, we get the impression that the outcome of the current consultation looks to be redundant and that Ed has already made up his mind at least about safeguarding and identifying children missing a suitable education and that the DCSF lawyers are already scratching away writing up the necessary draft legislation.

Not surprisingly, lots of home educators have protested about various aspects of this whole process. They have done this either as individuals or as members of various groups, such as EO, AHEd, a Facebook Group, the Badman Action Group and HEAS. There's been a high degree of co-operation between various groups...much higher than normal and this probably reflects the high degree of threat from a common enemy.

HEors have set up a No 10 petition rejecting the findings of the review, which had 2555 signatories as of this morning.

They have complained to virtually everybody they can think of: to MPs, LAs, the DCSF, the Children, Schools and Family's Select Committee, the Head of the Civil Service, the Parliamentary Ombudsman, the Better Regulation Executive, the Statistics Office, the Children's Commissioner, to various NGOs and other bodies who made representations to the review, to the media and the Press Complaints Commission.

There are also moves afoot to complain to Consumer Focus, (Consumer Council as was - who helped Scottish home educators a few years ago, when they were faced with similar challenges).

HEors have complained to these bodies about various things: broadly,

they've complained about the remit and conduct of the Review and of the current consultation, including such matters as:

the personnel that Mr Badman chose as experts for the review team;

the evidence base for Badman's claims in the press that the number of HE children who are abused is disproportionately high.

This claim appears to have been refuted by some much better statistics which have been gathered by Action for Home Education and which make for very interesting reading. If you haven't already, I would look these up...there will be a link to it in your email from Pip.

You would see that currently 123 LAs have provided answers to AHEd's FOIs, which is far bigger number than the 25 LAs upon which Mr Badman based his numbers.

The FOIs suggests that abuse in the HE community is actually far lower than the national average at 0.41% compared to 1.3% nationally and is therefore NOT disproportionately high, nor twice as high nor 40%...all of which are claims that Mr Badman either has made himself or has been reported as having made by the press.

HEors have also complained about Mr Badman's habit of highly selective and misrepresentative quoting and his recurrent use of the phrase "I believe"...which I understand he used 16 times in the report.

HEors have also claimed that the recommendations are not logically consistent with review’s limited evidence. For example:

The review says in the Safeguarding chapter that some LAs are managing well under current legislation but that some are not performing adequately. Surely the question should be: if some LAs are managing without additional powers, why can the others not do likewise? Without an analysis of why the failing ones are failing, it would seem inappropriate to give LAs more powers, particularly when these powers have other negative consequences.

Also, there is no examination of the likely efficacy of registration. Will registration necessarily find the abusive families? Isn't it highly likely that registration will just result in law-abiding HEors signing on, with the resulting unprofitable expense of monitoring these families, whilst the abusive ones will go even further underground?

Peripatetic families will also have a horrendous time signing on numerous locations whereever they go, and may well not bother to do it as a result. Since travellors are the group about whom the DCSF are particularly anxious, it looks as if again registration may well not provide the answers.

HEors have also made the point that limited resources will be diverted as false referrals of HE families are made by undertrained staff. Social services are already heavily overstretched with vacancies at 14% nationally, and this added burden of unnecessary referrals will only make the situation for them and for genuinely needy families even worse.

HEors have also complained about the implications for families on a personal level and about the constitutional and other legal implications of the Badman recommendations.

They are afraid that Badman's proposals will

invade family privacy,

will mean that parents are no longer the final arbiters of the form that their children's education,

will override children's desires and rights as result of the process of assessment: indeed polls have revealed that 77% to 78% of HE children said they did not want to see an LA official at all and 90% said they did not want to see one alone.

HEors were also worried in that they think that autonomous education will no longer be allowed. Autonomous educators are particularly worried since Mr Badman several times in the Review cast doubt upon the efficacy of AE, and proposed that research be conducted into it, and also that the definition of a "suitable education" be examined and refined with reference to the Rose report. Jim Rose is renowned for recommending phonics programmes for 5 year olds, for example!

A further insight on the way in which AE is viewed by some members of the DCSF has been gleaned from EOs meeting with the DCSF in June. EO members say that AE was regarded with some suspicion and that having asked about whether the status of AE would be protected, either explicitly, or simply as a result of this area of contention being left alone, were not overly reassured by the answers, since the DCSF remained ambiguous on the subject of whether they would pursue Mr Badman's proposals to define "suitable" in a more limiting fashion.

We believe that the DCSF may be wary of entering into discussion about the nature of a suitable education, but in essence, given that they will be screening all HEors to ensure that children are not missing a suitable education, they will in effect be defining education and therefore will have changed part of the unwritten constitution and the European Convention on Human Rights which asserts parental rights in the area of responsibility for deciding the nature of their child's education.

Of course, we have been in a similar situation before, when so-called "light touch changes" which of course were anything but, were proposed back in 2007. I thought it might be instructive to try to work out why those "light touch changes" did not then materialise and we ended up with a relatively benign set of guidelines on HE.

Some HEors believe that the change of heart at the DfES (as was) resulted from concerns on the part of lawyers in the DfES ) about the proposed changes essentially meaning that the state would become the de facto parent in matters of education and that this was the reasons that the 2007 "light touch" proposals did not go ahead, despite the DfESs plans being quite well advanced. From an FOI request for DfES internal emails, we learnt that Lord Adonis spoke to the DCSF after having consulted with lawyers and suddenly the proposed changes were dropped.

Adonis had also equivocated in another arena about the constituational implications children's rights to an education, saying that the state must avoid becoming responsible for ensuring adequate provision, so there is reason to believe that he alerted the DCSF to a similar issue here.

If this is an accurate version of events, some HEors believe that it will be worth alerting the government to these constitutional problems all over again, and this has indeed been happening.

All in all, HEors complaints have met with mixed responses. Labour MPs have usually towed the party line, but Tories are increasingly demonstrating their dissatisfaction with the review. Tory MP, Mark Field, started up an EDM questioning the Review, and which has been signed by 43 MPs so far. I would also recommend reading David Cameron's letter on this subject...the link is on your sheets, where is clear that HEors should be afforded the same presumption of innocence that everyone else has..which we are taking as a good sign that the Tories may just quietly drop all this, should legislation not be hustled through before the next election, probably due in May 6th but latest in June 3rd 2010.

HEors' complaints have also resulted in the Select Committee for Children, Schools and Families suddenly announcing on 22nd July that it had decided to hold an inquiry into

• the conduct of the review and related consultations (e.g. the constitution of the review team; the scope of the terms of reference for the review; and the nature of the consultation documents).
• the recommendations made by the review on elective home education.

This inquiry is due to conclude on 22nd September - whether this is before or after the statement by Ed Balls is unclear, but it is without doubt nearly a month before the end of the Consultation. This all seems somewhat topsy-turvy since if the CSF inquiry finds that current consultation is based upon faulty evidence, then surely the consultation should be halted, and indeed there are moves afoot to call a halt to this consultation and therefore also the draft legislation.

Pam, do you want to say more about this?

On top of calling for a halt to the consultation and draft legislation, submissions to the CSF enquiry will be covering all these points already raised by HEors as mentioned above.

However, perhaps the key criticism may well be the one that appeared to make the difference in 2007. The DCSF needs to be clear on the matter of the constitutional implications of the Badman proposals, which when coupled with the 2006 Education and Inspections Act section 436a which gave LAs the duty to identify children missing a suitable education, will mean that the state is now not only responsible when a child doesn't receive a suitable education, but is also as a result of insisting upon universal screening, responsible for determining what a suitable education actually is for absolutely everyone, and therefore the state must be deemed responsible for failing to ensure suitable educational provision. Of course, they thereby open themselves up to a huge risk of litigation.

So how does Pip's proposal fit into the current scheme of things? Well, we obviously have to work out the finer details of this, but it may represent the best fall back that we can hope for. If we can get the DCSF to agree to the broadest possible interpretation of AE, freedom of education in this country could just about be preserved, despite a monitoring process. But my feeling is that we will have to insist that it is the broadest possible interpretation, since otherwise the LAs will use any loophole to abuse the definition and to insist that HEors follow a more structured path. They do this already, so we are very familiar with this problem in many LAs.

However, my own personal hope remains is that we can call a halt to this whole debacle one way or another, probably most realistically by delaying it beyond the next election, and relying on the fact that the Tories accept that they must make swingeing cuts in public services, but failing that, that we could insist on the broadest possible definition of AE in order to that we may preserve it.