Does s436A Test for Suitability or Not?

This, on top of Pam's Problems is the question that is taxing Home Educators right now.

It is transparently obvious that if home educators are asked, under 436A, to prove that their educational provision is suitable, there would be a gross inequity under that section, since schooling parents would only have to prove that they are sending their child to school in order to satisfy s436A and the question of whether that schooling provision is actually suited to the ability and aptitude of the child can go hang. Forget the fact that the school might be in special measures and that the pupil spends his time either staring out the window or sitting outside the head's office. That education, because it happens in school, is apparently under 436A "suited to his age, ability and aptitude"!

 Given the way 436A is actually worded, ie: that local authorities have a

436A  Duty to make arrangements to identify children not receiving education

(1) A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—

(a) are not registered pupils at a school, and

(b) are not receiving suitable education otherwise than at a school

this on the face of it seems a literal, if completely unjust, interpretation of the section.  Naturally Home Educators are pretty darn cross about this inequity and are kicking off about it big time.

But that isn't the only problem with testing for suitability at 436A, because the fact of the matter is that there is a test for suitability of educational provision for home educators at s437 as well.

The question must be: how can you have two different places in the same Act  (The Education Act 1996) which create two different routes by which a power of determination of suitability can be made, ie: one completely undefined process at 436A and then another totally different, well defined system in section s437 which involves checks and balances in the form of the courts? 

The draft LA Guidance where LAs are encourged to use 436A to test for suitability, page 14:

6.4 The department’s advice is that in all cases where it is not clear as to whether home education is suitable (including situations where there is no information available at all), the authority should attempt to resolve those doubts through informal contact and enquiries. An authority’s s.436A duty (and that under s.437, see below) forms sufficient basis for informal enquiries. Furthermore, s.436A creates a duty to adopt a system for making such enquiries.

would make no sense were it not for the fact that 436A is being touted by the DfE as a way of avoiding the right of appeal by parents to the courts through the normal judicial process since s436A gives no protection to parents against a decision by an unaccountable local authority, where s437 actually does give such protection through the courts. 

For this, see paragraph 6.19 (p17) of the Draft Guidance for LAs: 

"6.19.   The department is aware that some local authorities have been reluctant to prosecute for non-compliance with a school attendance order, for reasons connected with costs, and the behaviour of some parents who deliberately withhold information about home education provision but are then able to easily satisfy the court that the home education is suitable."

This is particularly important in this kind of case where a determination of unsuitability of educational provision by the parents could lead to a criminal prosecution.  It fails the most basic test of natural justice where an LA is given powers of determination over suitability of educational provision with absolutely no immediate check or balance upon their powers. 

That's of course putting aside all other worries parents have of the LA having far more resources than they do when it comes to going to the courts.