In a previous post, we discussed how mission creep in the interpretation of 436A makes it seem as if home educating families are to be inspected for the suitability of their educational provision under 436A, ie: whether or not there is any reason to think that there is a problem with their provision.
But, why the fuss, you may ask? Given that home educators are often already inspected for their provision under section 437, why are they kicking off about something that happens anyway?
Well for starters, the re-interpretation of 436A will give rise to situations such as the following:
Now under the draft guidance's strong interpretation at para 6.4 (page 14) of 436A, where it states:
"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."
the LA will now take it that they have a duty to check Pam's educational provision for suitability and that Ofsted may be on their backs if they don't do this.
But that's not the end of it. Where Pam, up till now, only had to convince a Local Authority to a standard that would convince a reasonable person (ie: as if in the courts) that she is providing a suitable education and it would have been perfectly possible to do this in writing or on the most cursory of contact with the LA, now Pam must dance to the any old tune that the LA decides upon. Depending on which side of the bed the LA officer gets out of in the morning, and whether or not Ofsted is on his/her back, he/she might decide that "informal inquiries" must mean that they must inspect Pam's children every few weeks, and that they must be studying quantum physics 12 hours a day, given that Pam's children look as if they have the aptitude and ability for it and that this would therefore be a suitable education for them.
You might think this all a bit unlikely, given that LAs have never previously insisted that anyone do quantum physics before breakfast simply on the basis that the young person has the ability to do it, but there are a number of reasons to be worried that LAs will suddenly start imposing more demands regarding suitability upon HEors, and this is quite apart from the mission creep at 436A and the example from other parts of the world of how things can so easily go downhill in this regard, eg: in France, where a re-writing of HE law allows for all manner of capricious assessments of suitability . Quite apart from all this, the draft guidance also prompts for LAs to impose a minimum standard for suitability of education which is completely new, eg:
"a local authority may specify minimum requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable;"
Who knows what those minimum standards may be. Many unschooled young people don't learn to read until much later than the average schooled child and yet go on to do exceptionally well in public exams, quite a few of them scoring 100% in their English coursework, for example. But all this could go out the window if the LA decide that the minimum requirement is that everyone is reading "War and Peace" aged 10 just because they have the ability to do it.
There is also the fact that under 436A, there are no checks and balances upon an LA in terms of deciding upon the nature of a suitable education, where under s437, there is such a check and balance, since if LAs wish to pursue a parent to show that they are failing in their s7 duties under s437, an LA must follow the procedure of issuing a School Attendance Order which then, if challenged by the family, would involve the check and balance of a court procedure. Under 436A however, an LA can set their own terms pretty freely, and for example, repeatedly check up upon, chivy, harass and generally brow-beat Pam into doing whatever the LA says, without even bothering to resort to using 437. Pam therefore ends up either teaching her children quantum physics before breakfast or sending them back to school in order to get the LA off her back.
There is also the fact that parental determinations of educational suitability are breezily dismissed in the draft guidance under Article 2 Protocol 1 of ECHR. Article 2, Protocol 1 states that:
"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."
but the draft guidance says (page 25):
"d. the first sentence of ECHR Article 2 of Protocol 1 quoted above confers the fundamental right to an effective education, and relevant case law (16) confers very broad discretion on the state in regulating that law. For example, a local authority may specify minimum requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable.
The (16) in the above paragraph refers to a family in Germany who were not allowed to HE according to their religious convictions. From this, we must infer that the DfE is encouraging LAs believe they have similar latitude with regard to how they define suitability of educational provision, even though the legal framework that supported the German ruling is completely different to the one in the UK. This, in itself, should be sufficient reason to respond to the consultation.
The draft guidance also explicitly gives LAs a lot of latitude with deciding how to define suitability which when you consider the powers LAs now have as a result of the Localism Act 2011 could mean that LAs could specify almost anything they like by way of minimum requirements of an education.
From the guidance on the Localism Act: (page 7):
"Local authorities’ powers and responsibilities are defined by legislation. In simple terms, they can only do what the law says they can. Sometimes councils are wary of doing something new - even if they think it might be a good idea - because they are not sure whether they are allowed to in law, and are concerned about the possibility of being challenged in the courts. The Government has turned this assumption upside down. Instead of being able to act only where the law says they can, local authorities will be freed to do anything - provided they do not break other laws."
Read that together with the following:
"9.5 The department (the DfE) does not, however, believe that it is in the interests of home educated children, parents or local authorities for there to be detailed centralised guidance on what constitutes suitability. This issue should be viewed on a spectrum, and although there will be clear conclusions to be drawn at either end of that spectrum, in between each case must rest on a balance of relevant factors depending on the circumstances of each child."
Under the new draft guidance, Pam may well not be able to insist upon her version of suitability until far further down the line, at 437, when she may have already been routinely harassed and bullied by her LA.
All in all, after reading the small print, and giving it due thought, it becomes increasingly obvious why home educators should reply to the Call for Evidence with strong arguments as to how this is constitutionally disastrous. The proposals are deeply undemocratic, dangerous and have the potential to lead to the de facto piecemeal end of home education in this country.
This is, of course, putting aside all arguments about practicality. None of the proposals will actually work to help children who really ARE in need. It will cost LAs a huge amount of money to pursue a lot of difficult but otherwise successfully home educating HEors who don't want to be pursued, money which would be far better spent on Social Work departments who cannot cope with their current workload, all the while loading these departments with a load of false positives which which will result from a reinterpretation of 436A.
Current interpretation of law could suffice and were applied in a reasonable and proportionate manner. Let's help the DfE understand this point in our Call for Evidence responses.
For a helpful summary of the implications of a the draft guidance's interpretation of 436A v. the use of s437 , coupled with the Localism Act and an ambiguous discussion of the nature of a suitable education (page 24 in the draft guidance) and parental rights, please see this table: