Ian Dowty's take on Lancashire LA's EHE Protocol and Procedures from 2011 :
OBSERVATIONS ON THE ELECTIVE HOME EDUCATION, PROTOCOL AND
PROCEDURES - GUIDANCE ISSUED BY LANCASHIRE COUNTY COUNCIL
The following observations should not be taken as an exhaustive critique of the
Lancashire document ‘Elective Home Education, Protocol and Procedure - Guidance’.
They are made to assist in identifying major issues disclosed within it.
Before I do so, it seems to me curious that, in a document setting out procedures
relating to home education, Lancashire at the outset makes this statement under the
heading ‘Principles and Policy Statement’ :
“Lancashire believes that school-based education provides a broad and balanced
curriculum, which promotes social development, moral and spiritual awareness and equal
It is true that the next sentence states that it values the plurality of educational provision
“including those arrangements made by parents through Elective Home Education
(EHE)” though that sentiment is qualified by the word “However” with which it
commences. A reticence picked up in the last paragraph of this heading, which, after
having set out what home educators do not have to provide (of which more below),
starts “Nevertheless, parents are required to provide an efficient, suitable, full-time
Home educators could be forgiven for believing that Lancashire is reluctant in its
tolerance of home education and that it is striving in the rest of the document to bring
it under its control and make it look more like the model of education it understands,
and is used to, namely the school-based model.
In seeking to do so, it seems that Lancashire has attempted to put into place a form of
registration for home educating families of the kind envisaged by the Badman Report,
albeit in a watered-down version. That Report was based upon a flawed research
sample and its consequent reasoning was open to considerable adverse criticism. It
did not demonstrate that there was a need for any legislative change as was recognised
by Parliament when the changes Badman proposed were not enacted when the
Children, Schools and Families Act 2010 was passed into law prior to the General
Election in 2010.
Lacking the legislative change upon which to base a system of registration, Lancashire
has attempted to found its new policy on an interpretation of s436A Education Act 1996,a section inserted into the Act in February 2007, and the revised statutory guidance
upon it, which was issued in January 2009. As I shall demonstrate below, Lancashire’s
interpretation of this section and the guidance is in my view an erroneous one.
It seems to me that Lancashire is attempting to put in place an assessment system
which is based upon a misinterpretation of s436A and the statutory guidance issued on
it so that they create a different regime for a child that they decide is “missing
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education”. In assessing this, it would appear that Lancashire believes it can insist on
using greater powers than the law in fact permits to them.
The effect of creating a separate regime for a “child missing education” is that there is
a real danger that the statutory procedure firmly set out, together with the guidelines
directed to LAs is by-passed, yet that procedure is the only lawful power that Lancashire
is able to use in the assessment of a child’s education.
Indeed it would appear that Lancashire’s aim is to seek to avoid the statutory regime
for assessing education which is firmly established by s437 and the following relevant
sections of the 1996 Act. The attempt to do so relies on a misinterpretation of s436A.,
whereas, as I shall point out, the statutory guidance on how the LA should operate
s436A makes it clear that any assessment has to take place in accordance with the
procedures set out in s437.
Section 437 sets out a perfectly workable and effective way of ensuring, where there
is an appearance of no suitable education, that steps are taken to ensure that a suitable
education is being provided. It would appear to me, from the information with which I
have been supplied, that Lancashire does not believe that the s437 procedures are
sufficient for their purposes which is why they are trying to set up more stringent
requirements than the law permits on the basis of a misinterpretation of s436A.
The only power in law that Lancashire has to assess a child’s education is the
procedure set out in s437. If they do no follow this procedure they cannot enforce any
decision and they will almost inevitably make it harder for them to take effective action
where they decide that no suitable education is being received by the child or young
What Lancashire is setting up is not only, in my view, in excess of their powers, it is by
the same token, more than they are required by law to establish. It seems curious that
at a time of financial constraint, Lancashire, seeks to introduce a system beyond its
powers and beyond what is required of it by law with the attendant increase in
Where the desire of Lancashire to design a different procedure than that mandated in
statutory guidance conflicts with such guidance, it may be open to challenge in the
courts. More importantly by confusing the ambit of s436A and the operation of s437,
it is likely, in my experience, to expose any prosecution under s443 to a successful
challenge and result in an acquittal which is based upon the demonstration of a failure
by the LA to take each required step set out in s437 when it fell to be taken.
Home educators might feel that if the LA wished to expend additional funds on home
education in an area where there is no evidential base that there is a need to do so,
Lancashire might better further the welfare and education of home educated children
in arranging examination centres and offering a service which would arrange in
conjunction with the parent and young person the provision of work experience instead of limiting that to children who attend at school. They could also offer parents assistance in making CRB checks when they might be needed.
3 To return to the ‘Principles and Policy Statement’ section, I note that there is within it
a list of things “that home educating parents are not required” to do. Eleven of the
items listed have been taken, mostly verbatim, from the 13 bullets points in a similar list
set out at paragraph 3.13 of the Elective Home Education Guidelines for LocalAuthorities issued by the then DCSF in 2007 (to which I shall refer as EHEGLA).
The Lancashire document omits 2 important items which appear in EHEGLA, they are
that there is no requirement to
* provide a broad and balanced education
* or formally assess progress or set development objectives
These are important matters which flow from the respect of the right of home educating
parents to adopt a model of education which is in conformity with their own religious and
philosophical convictions; a right secured, as the Lancashire document itself
acknowledges by Article 2 of Protocol 1 of the European Convention on Human Rights.
The only obligation that parents have is to provide a “suitable education”. Although the
Lancashire document repeats what appears to have become something of a mantra in
such documents that a suitable education is not defined in the Education Act , this is 4
not true. It was always defined, first within s437 and then, following the introduction of
s436A within that section itself. Section 436A(3) states :
“In this Chapter, “suitable education”, in relation to a child, means efficient full-time
education suitable to his age, ability and aptitude and to any special educational needs
he may have."
It is thus defined in identical terms to those set out in s7 of the 1996 Act.
I would in passing say that such reports as are available to me indicate that the
definitions attributed to Woolf J in R v Secretary of State for Education and Science, ex
p Talmud Torah Machzikei Hadass School Trust do not relate to ‘efficient’ and ‘suitable’
but only to the ‘life within a community’ quotation. The definitions quoted for ‘suitable’
and ‘education’ are in most places attributed to a Crown Court Judge’s decision at
Worcester Crown Court in Harrison and Harrison v Stevenson (1981). That judge was
simply applying dictionary definitions as is conventional in such cases.
I do not consider that Lancashire is right in its interpretation of the effect of s436A
Education Act 1996. In order to justify its departure from the relevant sections of the statutory guidance specifically designed to deal with the position of those who home educate, it seeks to rely on paragraph 21. The LA cannot ignore the matters set out in
paragraphs 86 to 94 and its interpretation of paragraph 21 does just that.
In particular paragraph 87 sets out in clear and plain terms what action the LA is able
to take with regard to a home educated child as follows :
“87. Section 436A of the Education Act 1996 requires local authorities to make
arrangements to establish (so far as it is possible to do so) the identities of children who
are not pupils at schools and who are not otherwise receiving suitable education. In order
to comply with this duty local authorities need to make arrangements which will as far as
possible enable them to determine whether any children who are not pupils at schools,
such as those being educated at home, are receiving suitable education. In order to do
this local authorities should make inquiries with parents educating children at home about
the educational provision being made for them. The procedures to be followed with
respect to such investigations are set out in the EHE Guidelines, 2.7-2.11 and 3.4-3.6.”
It is worth pointing out that both the CME guidance and EHEGLA were issued by the
same government which was promoting the Every Child Matters agenda. The statutoryguidance states unequivocally that the procedures set out in the paragraphs of
EHEGLA which are cited are to be followed. This does not admit of the production of
a different way of proceeding based upon a interpretation Lancashire has decided to
make of an earlier paragraph, paragraph 21 in the same document as paragraph 87.
The emphasis that has been added to paragraph 87 was added by the DCSF to
underline how LAs should proceed, should there be any doubt about it.
EHEGLA is, as is correctly stated in Lancashire’s document, not statutory guidance.
However, The paragraphs of EHEGLA mentioned in paragraph 87 become statutory
guidance as they are incorporated into the statutory guidance by specific reference.
These paragraphs are as follows (with my added emphasis) :
“2.7 Local authorities have no statutory duties in relation to monitoring the
quality of home education on a routine basis. However, under Section 437(1)of the Education Act 1996, local authorities shall intervene if it appears that
parents are not providing a suitable education. This section states that:
“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.”
Section 437(2) of the Act provides that the period shall not be less than 15 days
beginning with the day on which the notice is served.
2.8 Prior to serving a notice under section 437(1), local authorities are encouraged
to address the situation informally. The most obvious course of action if the local
authority has information that makes it appear that parents are not providing a
suitable education, would be to ask parents for further information about the education they are providing. Such a request is not the same as a notice under
section 437(1), and is not necessarily a precursor for formal procedures. Parents
are under no duty to respond to such enquiries, but it would be sensible for them
to do so.
2.9 Section 437(3) refers to the serving of school attendance orders:
(a) a parent on whom a notice has been served under subsection (1)
fails to satisfy the local education authority, within the period specified
in the notice, that the child is receiving suitable education, and
(b) in the opinion of the authority it is expedient that the child should
attend school, the authority shall serve on the parent an order (referred
to in this Act as a “school attendance order”), in such form as may be
prescribed, requiring him to cause the child to become a registered pupil
at a school named in the order.”
2.10 A school attendance order should be served after all reasonable steps
have been taken to try to resolve the situation. At any stage following the
issue of the Order, parents may present evidence to the local authority that they
are now providing an appropriate education and apply to have the Order
revoked. If the local authority refuses to revoke the Order, parents can choose
to refer the matter to the Secretary of State. If the local authority prosecutes the
parents for not complying with the Order, then it will be for a court to decide
whether or not the education being provided is suitable and efficient. The court
can revoke the Order if it is satisfied that the parent is fulfilling his or her duty. It
can also revoke the Order where it imposes an education supervision order.
Detailed information about school attendance orders is contained in Ensuring
Regular School Attendance paragraphs 6 to 16.4.
2.11 Where the authority imposes a time limit, every effort should be made to make
sure that both the parents and the named senior officer with responsibility for
elective home education in the local authority are available throughout this
period. In particular the Department recommends that the time limit does not
expire during or near to school holidays when there may be no appropriate point
of contact for parents within the local authority.”
“3.4 Local authorities should acknowledge that learning takes place in a wide variety
of environments and not only in the home. However, if it appears that a suitable
education is not being provided, the local authority should seek to gather any
relevant information that will assist them in reaching a properly informed
judgement. This should include seeking from the parents any further information
that they wish to provide which explains how they are providing a suitable
education. Parents should be given the opportunity to address any specific
concerns that the authority has. The child should also be given the
opportunity, but not required, to attend any meeting that may be arranged
or invited to express his or her views in some other way. Parents are under
no duty to respond to such requests for information or a meeting, but it
would be sensible for them to do so.
3.5 If it appears to a local authority that a child is not receiving a suitable education
it may wish to contact the parents to discuss their ongoing home education
provision. Contact should normally be made in writing to the parents to request
further information. A written report should be made after such contact and
copied to the parents stating whether the authority has any concerns about the
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education provision and specifying what these are, to give the child’s parents an
opportunity to address them. Where concerns about the suitability of the
education being provided for the child have been identified, more frequent
contact may be required while those concerns are being addressed. Where
concerns merit frequent contact, the authority should discuss them with the
child’s parents, with a view to helping them provide a suitable education that
meets the best interests of the child.
3.6 Some parents may welcome the opportunity to discuss the provision that they
are making for the child’s education during a home visit but parents are not
legally required to give the local authority access to their home. They may
choose to meet a local authority representative at a mutually convenient
and neutral location instead, with or without the child being present, or
choose not to meet at all. Where a parent elects not to allow access to their
home or their child, this does not of itself constitute a ground for concern
about the education provision being made. Where local authorities are not
able to visit homes, they should, in the vast majority of cases, be able to discuss
and evaluate the parents’ educational provision by alternative means. If they
choose not to meet, parents may be asked to provide evidence that they are
providing a suitable education. If a local authority asks parents for information
they are under no duty to comply although it would be sensible for them to do so.
Parents might prefer, for example, to write a report, provide samples of work,
have their educational provision endorsed by a third party (such as an
independent home tutor) or provide evidence in some other appropriate form.”
In paragraph 92 of the CME Guidance, EHEGLA is referred to again, thus :
“In order to discharge their duties in relation to children not receiving an education, local
authorities should make inquiries with parents about whether their home educated
children are receiving a suitable education. The Elective Home Education Guidelines for
Local Authorities make clear that parents who home educate may take a number of
equally valid approaches to educational provision for their children.”
It is clear therefore that once a child has been identified who is home educated the CME Guidance requires that the LA proceed in the usual way using the procedures set
out in the relevant sections which follow s437 Education Act 1996 and the guidance
given in EHEGLA.
The procedures proposed by Lancashire seek to establish a monitoring regime in which
the LA has to express itself satisfied that a suitable education is taking place. In the
first place there is no duty (and therefore no power) to establish monitoring as
paragraph 2.7 of EHEGLA, which has by incorporation has the force of statutory
guidance, sets out in terms. Further as I shall demonstrate, the law does not require,
nor empower, a LA to seek at the outset to be satisfied as to the provision but rather
before this step can be taken it is required to consider if there is a need to require
evidence capable of satisfying it (a failure to consider this has proved a difficulty that
LAs have not overcome in subsequent prosecutions).
Page 7, The Lancashire Context and EHE 6
Page 13 7
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There is no power nor requirement to “seek to ensure EHE children have access to
services and facilities from other agencies that would generally be delivered via school”
There is no power nor requirement to give “the child an opportunity to express their
views regarding their education” even though Lancashire might consider this important 7
as the extracts from EHELGA incorporated into statutory guidance confirm. If the LA
seeks to foster relationships with home educators it should in any event, in my opinion,
reconsider its statement about this. Many home educate precisely because their
educational philosophy demands that they give their children the determinative say in
their home education when they see that ‘right’ denied to the schooled child. If a
schooled child were to seek to be home educated, would the LA seek to influence the
The duty to ensure that a child of compulsory school age is educated is placed firmly
on parents by s7 and on no other person or body including the LA. LAs would be
unwise to seek to extend their powers and responsibilities into this area. If they were
to take for themselves such a fundamental duty, they must appreciate that by their
active, and unnecessary, assumption of this parental role, they would open themselves
to the possibility of actions in negligence where otherwise none would exist.
Section 437 causes more difficulties than it needs to do. The approach of many LAs
has the effect of confusing the duties and powers it gives them. I have been asked to
explain what s437 requires.
Section 437 provides (insofar as is relevant)
“(1) If it appears to a local 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
(2) That period shall not be less than 15 days beginning with the day on which the
notice is served.
(3) If —
(a) a parent on whom a notice has been served under subsection (1)
fails to satisfy the local authority, within the period specified in the notice,
that the child is receiving suitable education, and
(b) in the opinion of the authority it is expedient that the child should
the authority shall serve on the parent an order (referred to in this Act as a
“school attendance order”), in such form as may be prescribed, requiring him to
cause the child to become a registered pupil at a school named in the order.
Section 437(1) establishes that the LA must consider the adequacy of educational
provision in two distinct stages, the first of which is a pre-condition for the second to
come into operation.
Stage 1 - If it appears to an LEA that a child is not receiving suitable education,
then, but only then,
Stage 2 - the LEA shall, by written notice, require a parent to satisfy them that the
child is receiving such education.
Logically and legally the 2 stages must involve different considerations in view of the
wording Parliament has chosen to use. In stage 1 the word “appears” is used and the
“test” is phrased negatively. In stage 2 the LA makes a direct requirement that the home
educator “satisfy” the LA that a suitable education is being received.
If Parliament had intended from the outset that the LA had the duty to seek, and a home
educator had the obligation to provide, evidence capable of satisfying the LA, then there
would have been no need for the 2 separate stages. If the LA were to be empowered
to require evidence capable of satisfying it from the outset, the first stage would be
redundant. If it is to be given any meaning, as it must, it must be a form of sifting test
which only places on the LA the duty, and more importantly only empowers it, to take a
general look at the provision being made to see whether further enquiry is necessary.
It cannot authorise a requirement, when the LA first considers the educational provision,
that the home educator produce evidence capable of satisfying the LA.
In effect the section establishes that not all parents should be required to satisfy the LA
of the educational provision made, only those in respect of whom the LA considers “it
appears” that a child “is not receiving suitable education”. This is why I say stage 1 is a
“sifting process” and only those to whom the LA can say there is an appearance of no
suitable education will have any obligation to produce evidence and to have to satisfy
An analogy might assist. If you look at a clock and it tells you roughly what you expect
to be the time, you accept it even though you cannot be sure it is showing the right time,
it has an appearance of not being wrong. If however, it shows a time that surprises you,
then you would open up the back and have a closer look at the workings as it has an
appearance of not keeping time correctly.
Thus it is not the right approach in law for the LA from the outset to write to parents
requiring them to produce evidence capable of satisfying the LA that a suitable
education is present. Indeed prosecutions in my experience founder because of such
As I have said, in my view, the first task of the LA in “assessing” any home ed provision
is to find out from the parent what is their philosophy of education, what are their
educational precepts and so to discover what their model of education is like. Provided
that this is worthy of respect, it is this model and not the model of education that is
preferred by the LA or its individual representatives that must be used in any “assessment”. An LA which does not carry this out risks difficulties in any future
The LA has ample powers in the existing legislation to deal with deficient home
education but equally the LA is not able nor should it immediately deploy those powers
and from the outset write to a home educator demanding evidence capable of satisfying
them. EHEGLA makes it quite clear that the drastic step of issuing a school attendance
order is a last resort.
© Ian Dowty 20 November 2011
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