The problem with the s436A is that it can be interpreted in a number of different ways. We suspect this is no accident since it has allowed the DfE to mastermind mission creep that introduces deep inequity under the law. Let's look at the various interpretations of 436A again:
s436A in the Education and Inspections Act 2006 (inserted in to the Education Act 1996):
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,
(b) are not receiving suitable education otherwise than at a school.
Right, so what we need to know is how is s436A actually applied?
Scenario 1. The local authority makes arrangements to try to find out where Child A is. They check the school registers they hold for every school. Child A is either on these or not. If Child A isn't apparently on any school register in the area, the LA makes enquiries with the parent of Child A to find out where their child is being educated. If the parent replies "Child A is home educated", the LA has fulfilled its duty at 436A.
This is pretty much the situation that applied under previous 436A Guidance in 2007:
"1.2.6. The duty does not apply to children who are being educated at home. Monitoring arrangements already exist for children being educated at home. Parents have a duty to ensure that their children receive a suitable full-time education either by regular attendance at school or otherwise (under section 7 of the Education Act 1996) and they may choose, as is their right, to provide this by educating their children at home."
which, although this has disappeared from subsequent 436A guidance, is still referenced in the Home Education Guidance for LAs that is currently in use:
"2.6 Local authorities have a statutory duty under section 436A of the Education Act 1996,
inserted by the Education and Inspections Act 2006, to make arrangements to enable them
to establish the identities, so far as it is possible to do so, of children in their area who are
not receiving a suitable education. The duty applies in relation to children of compulsory
school age who are not on a school roll, and who are not receiving a suitable education
otherwise than being at school (for example, at home, privately, or in alternative provision).
The guidance issued makes it clear that the duty does not apply to children who are being
educated at home."
However, this all looks set to change, as the draft EHE Guidance for LAs that is currently up for consultation makes no reference to the non-applicability of 436A to home educated children.
But how could that be? Given that schooled children are exempted from further investigation under 436A once it transpires that they are on a school register, how can this also not be applied to home educated children once it transpires that they are home educated, given that they too are in receipt of an education?
It seems it all comes down to a single word in part b) of 436A and that word is "suitable". In other words, according to 436A, whilst those within the school system need only be provided with an education, those outside it must be provided with a "suitable" education, which presumably means that home educated children must be subjected to a higher standard of test than schooling children.
The craftily ambiguous writing of the section gives scope for the government to interpret 436A in two vastly different ways, one interpretation resulting in equitable treatment of schooling and home educating families, and the other applying a far higher standard to home educators than to schooling families, since only home educating families will be required to prove that their educational provision is suitable. This seems deeply iniquitous given that the reality is that the educational provision in schools is for many children highly unsuitable. By some twisted logic, it seems that simply by virtue of the fact that a child attends school, schooling parents are exempted from their duty at s7 to provide a suitable education.
For the full implications of this version of 436A and how it differs from the current situation, please see this post about Pam's Problems.
So how did the home educating community, given that they are a bunch of rambuctious free thinkers who normally make it their business to be on top of the legal situation and to kick off at the slightest hint of problem, how has it come about that they let the government get away with this shift? Well, it all happened so slowly, so cleverly!
First we had the introduction of s436A back in 2006 in the Education and Inspections Act. There was a lot of pure outrage at that point, but we allowed ourselves to be mollified by the reassurance from government in the 2007 guidance at s1.2.6 whereby they stated that the duty did not apply to home educated children. That was a sap. We shouldn't have let ourselves be gulled by it. When the reassurance that 436A did not apply to HE children disappeared from subsequent 436A guidance, we let ourselves be comforted by the fact that reference to the now missing bit of guidance in the EHE guidance but now it is being written out of the new EHE guidance which is currently up for consultation. Home educators are finally waking up to the enormity of the problem. It is like suddenly spotting that that mole that you have barely noticed before has turned into a cancerous tumour that could be your undoing, as it had quietly mutated when you weren't looking.
And it isn't just 436A, there is other stuff quietly mutating too: other areas of mission creep in the draft guidance, particularly around the nature of suitability of educational provision, that could be used against home educators to completely change the nature of home education in this country. Please see this post for a discussion of mission creep on the issue of suitability and there's more on the subject of 436A here.
By way of some consolation, at least home educators are now fully alert to the way mission creep works. We understand that government introduces changes by burying of the bad news whenever they can, doing it bit by bit, and offering false consolation along the way so that there is a temptation to be mollified whilst the danger grows or else we simply become exhausted through the sheer relentlessness of it, the on-going gradual erosion of freedom in education. Very clever. But we WON'T LET IT HAPPEN AGAIN. Lessons have been learned and lines will be drawn.