EHE Guidelines for LAs 2007 and 2016, and CME Guidance

EHELGA 2007 can be found here.

EHELGA 2013 can be found here.

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Section 436A Guidance: 

1.  Children Missing Education Guidance  2007 and also here.

2.  Children Missing Education 2009

3.  Children Missing Education Guidance 2013

4.  Children Missing Education Guidance 2016

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Brief summary of history of HEors exemption from s436A (CME)

2007 CME (1), exempts home educators from 436A twice. (in s2 and in section dealing with home ed)

2009 CME (2) exempts home educators in section on home education.

2013 CME (3)  removes exemption of home educators, and removes all discussion of how the duty is to be enacted regarding home educators.  Instead this version links to EHE Guidelines 2013 which says (confusingly):

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.

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2005 Letter to Directors of Children's Services re CME

A history of Children Missing Education Guidance is here.

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. 

Problems for Pam (A Home Educating Parent).

...or in other words, the issues that arise from the government's re-interpretation of 436A and other areas of mission creep that may be found in the draft EHE Guidance, upon which the DfE is consulting at the moment.

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:

Pam's story:

Even though Pam and her family are known to their LA, (having de-registered the children from school and having represented other HEors at LA meetings), since Pam appears capable of providing a suitable education, she has never once been checked by the LA for the suitability of her educational provision. 

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."  

and whilst it would be possible to read this as actually a deep respect for the spirit of s7, ie: that an education must be suited to the age, ability and aptitude of a child, there could nonetheless be a real and deep differences of opinion between LA and an HEing family here, given that no-one can ever be sure whether an education is genuinely suited to a person's ability and aptitude, (forget the issue of age, as the qualities of ability and aptitude subsume that consideration when it comes to determining suitability).  There is even a problem in the tension between "ability" and "aptitude" since these are not the same things and depending on which one you chose to use as an assessment tool, may result in a differences in the type of education that is deemed suitable. So for example, whilst Pam's children clearly have the ability to understand quantum physics, they may have next to no interest (a component of aptitude) for doing it.  The LA may insist Pam educate her children according to their clear ability, whereas Pam may prefer to offer an education suited to their aptitude!

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:

Mission Creep at 436A

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,

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


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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."


Scenario 2
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.


Mission Creep.

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.

Why would the Latest Home Education Bill be Constitutionally Significant?

What is it about the "Home Education (Duty of Local Authorities) Bill, which received its first reading in the Lords on 27th June 2017, that is so significant? It is after all, highly unlikely to become law, but at least some of its significance stems from the fact that it is nonetheless part of an on-going effort on the part of those antipathetic to home education to influence legislators.

But what is constitutionally significant about that?  Well, if the bill were to become law, it would completely overturn a key underpinning of our democracy, ie: that it is for families to decide upon the nature and content of education rather than the state. This is because the bill would make it a requirement that every home educating family pass muster with their local authority in terms of their educational provision which means, in effect, that the state takes over the task of determining the nature of a suitable education.  Once this happens, democracy is at risk since it removes one of the key checks and balances that mitigates against the instigation of tyranny, ie: freedom in education.

But why, it is reasonable to ask, given that local authorities already have a duty to try to discover children not in receipt of an education, has the state not already taken over as de facto parent in terms of deciding upon the nature of a suitable education?  The state in determining that a suitable education is not taking place, must have decided upon the nature of a suitable education.

The thing is, the section on children missing education doesn't mean that anyone must define what a suitable education actually is.  It only means that the state must decide what a suitable education isn't!  These things are very different.

A suitable education is a broad category of things.  It is similar, in this way, to a healthy diet.  You can know, broadly speaking, when someone is not in receipt of a healthy diet, but you wouldn't by so doing, have determined what sort of diet a person must eat.

Likewise, the state determining that an education is not suitable is not the same as the state determining the nature of a suitable education, since all manner of different forms of education could be suitable and this is where we are at with current legislation. Families and not the state currently still get to decide upon the nature of a suitable education and they (unlike the state), can vary it so that the education is genuinely suited to the individual child.

However the recent bill as law would overturn all that.  The state would then decide upon the nature of suitable education. Parents would no longer get to decide this, and whilst this might not look constitutionally frightening at the moment, we must not forget how quickly democracies can deteriorate, how a chipping away at the edges of checks and balances could more easily lead to such a decline and how dictatorships are buttressed by a state controlled education.  Think not only of the decline of Revolutionary France and the Weimar Republic but also of the recent annexation of the Crimea and the current political volatility throughout the whole of the Western World, with swings to extreme ends of left and right, and populist votes which resulted in a president that admired the way Putin goes about things and press bans from Whitehouse briefings.

We are by no means at the end of history as Francis Fukuyama would have had us believe shortly after the end of the Cold War. Eternal vigilance remains as important today as it ever was.

Children Missing Education Updated Guidance 2016

There is new guidance on section 436A . 

It essentially enables more robust tracking of children not registered in schools.

Ian Dowty on Lancashire LA's EHE Protocol and Procedures from 2011

Ian Dowty's take on Lancashire LA's EHE Protocol and Procedures from 2011 :

Link: https://lancashirehe.files.wordpress.com/2013/12/lancashire-observations-amended.pdf

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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 opportunities.”

 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 education.”

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 - page 2 of 9 - 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 person.

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 expenditure.

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: “If – (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.”

and

“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 - page 6 of 9 - 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 - page 7 of 9 - 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 parent?

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 such education. 

(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 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.

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 their LA.

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 misconceptions.

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 prosecution.

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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