Should I Sign these Petitions?

The short answer to that is "Yep, you most definitely should!"

Here is the e-petition.   Please sign it now!   And then share it wherever you can. It only takes a few seconds and we only have until Thursday 22.00 hours before we print it off and send it to some ptb, though the petition should keep going after that! 

There is an explanation with links for why you should bother here.   Please do share the consultation and/or this blog post widely and get as many others to sign as you can.  NB: The arguments here and below also apply to the local petitions that are doing the rounds.

For a slightly longer answer as to why you should sign it, you might want to understand a little bit more about the petition.

Let's review the situation. The petition says:

On 10th April 2018, the Department for Education (DfE) published draft Guidance for Home Education for LAs and Parents for consultation:

https://consult.education.gov.uk/school-frameworks/home-education-call-for-evidence-and-revised-dfe-a/

These draft Guidance documents were written following significant consultation with Local Authorities and no consultation whatsoever with the home education community, to whom it is presented as a fait accompli.

The subsequent consultation is consequently for little more than show as an intention to implement the content has already been stated.

These Guidance documents seek to encourage Local Authorities to breach the ECHR Article 8 and the GDPR.

They provide no accessible means for a parent to address disproportionate, unreasonable or ultra vires behaviour by their Local Authority, where many of those authorities already act routinely in such ways.

They are oppressive and encourage the use of draconian measures to control and fetter the civil liberties of a minority section of society.

They are divisive and will lead to segregation of communities by treating home educating families as lesser than their peers.

They undermine the rights of children and the duties of their parents.

The petitioners therefore request the DfE to withdraw the draft Guidance documents and the procedure of or results from the related Call for Evidence until:

1. it has put in place an accessible and workable complaints procedure and

2. it has consulted with home educating parents, as it has with Local Authorities, as to what the contents should include.

That really could be self-explanatory, except sometimes it isn't and in fact it has come to our attention that the Department of Education has attempted to dismiss some of the assertions in the petition, for example, issuing a denial that LAs were consulted in advance of the new draft guidance being drawn up. 

Let's look at the DfE claims. We heard from Stephen Bishop at the DfE who has responsibilities with regard to the drafting of the guidance and the consultation whose communication contains the following assertion:

"The two draft guidance documents do not constitute new policy but rather a restatement of local authorities’ existing powers."

Hmm, OK, that isn't how we see it from this end. First off, if the draft guidance documents really are just a restatement of existing LA powers, why should there be any consultation about them at all? DfE lawyers would surely have advised that such a consultation was unnecessary as per part B of the Guidance on Consultations: "B. Consultations should have a purpose Do not consult for the sake of it. Ask departmental lawyers whether you have a legal duty to consult. "  
Given that we actually are invited, in questions 29 to 45 to comment on the Draft Guidance in what seems like a consultative sort of a way, this in its own right seems to suggest that there ARE changes that constitute new policy in the Draft Guidance, that these DO that matter and therefore SHOULD receive a proper and full consultation, rather than just a few comments at the tail end of the Call for Evidence on other matters. And yes, a pretty cursory glance at the draft guidance will tell you that this is indeed the case: there are very significant differences in interpretation of the law between the current guidance (EHEGLA) and the draft guidance documents and these proposed changes would have a huge impact on the way LAs implement the law and about how HEors experience the impact of the law.

Members of the EHE community have undertaken a close analysis of the differences. They've produced spreadsheets galore comparing the past and present documents and have thrashed out the differences in long but nonetheless productive discussions which reveal, amongst many other examples of differences between past and present guidance, that:

1.  There are significant changes with regard to how a suitable education is defined. At least one paragraph of the new guidance even looks as if it could be used to impose a de facto ban on home education altogether. By way of but one comparison between the two guidances on this point:

What EHELGA says about Article 2 Protocol 1.  

“2.2 Article 2 of Protocol 1 of the European Convention on Human Rights 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."

From Draft Guidance on the same subject;

“9.4 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.;”

The above paragraph references at (16) a case from Germany which rules out the right of parents to educate their children in conformity with their own religious and philosophical convictions, and in calling it “relevant case law” it in effect could rule out home education altogether, since local authorities could interpret this to mean that a “suitable education” takes no regard for parental religious or philosophical convictions, and sets any standard they so chose by which to adjudge home education provision.  

If that isn’t a change of policy in guidance, we don’t know what is.

This is all quite aside from the fact that the case referred to is not relevant case law, since that case is German and relied upon other local German law to support it and there is no equivalent in English law.

2. The draft guidance repeatedly encourages LAs to use legislation, ie: 436A Education Act 1996 with regard to HEing families when  current guidance (EHEGLA) at s2.6 states that 436A does not apply when a child is known to be EHE. This is a significant change of emphasis between the two sets of guidance and will result in very different approaches by the LA towards EHEors, since where LAs now at 2.7 of the EHEGLA only have to act if there is an appearance that a suitable education is not being provided, LAs are in new guidance effectively being given duties to assess the provision of all HEors, whether or not there is any suggestion that a suitable education is being provided.

3.  Given the stretching of the powers of LA at 436A in the draft guidance, it could imply a concomitant extension of safeguarding powers as a result of s175 Education Act 2002 which states:

1) A local education authority shall make arrangements for ensuring that the functions conferred on them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare of children.

This again would involve a vast difference in policy interpretation and implementation between the current and draft guidance.

4. The draft guidance encourages the use of data sharing in a way that is not encouraged in EHEGLA and which is highly likely to be in breach of GDPR.  See section 4.4 of Draft Guidance.

There are other significant differences on top of this, but for the moment this should suffice to show that there are substantive and important differences which should require extensive consultation rather than simply a few comments which, given that the DfE say there aren't any policy changes to the guidance, will probably be ignored anyway.
The letter from the DfE then goes on to assert:

“Nonetheless, we are giving everyone involved an opportunity to comment on the way those documents are worded before they are published.”

Given that the DfE have just asserted in the same letter that there aren't any new policies in the new guidance, they must think that there is next to nothing which requires significant change in the draft guidance, so it looks as if the comments which are invited won't be taken terribly seriously by the DfE and therefore don't really constitute a formal consultation process and there will not be any resulting alteration of the guidance by the DfE. Is it a wonder that HEors are concerned that they are not being properly consulted about the guidance in the consultation and are signing the e-petition in droves. (The petition hasn't done badly, given the very short time it has been running by the way!)

The DfE letter then goes on to say:

“Local authorities were not ‘extensively consulted and involved in the drafting’ of the proposed guidance. On the contrary, the two draft guidance documents were drafted from start to finish by DfE officials, drawing only on external legal advice provided by individual lawyers. Indeed, the department expressly did not show the drafts to local authority representative organisations - or any other bodies or persons outside government - before publication on 10 April.”

The quoted phrase “extensively consulted and involved in the drafting” of the proposed guidance it is not what is said in the e-petition, which instead states:

“These draft Guidance documents were written following significant consultation with Local Authorities and no consultation whatsoever with the home education community, to whom it is presented as a fait accompli.”

This is different to the phrase that is quoted in the DfE letter which therefore does not offer any sort of critique of the e-petition which does not assert that LAs had contributed directly to the drafting of the guidance but rather that, in the run up to the drafting, the DfE, in the form of Stephen Bishop et al. had had extensive consultations with LAs and LA representatives such as the Association of Elective Home Education Professionals (AEHEP), as evidenced by numerous FOI responses.  It is also clear from these FOI responses, that the views of these bodies are reflected in the writing of the Guidance documents. Therefore the petition wording appears incontestable.

See below, by way of just a few examples of the sort of consultations the petition describes between the DfE and LAs:

DfE Westminster Council, November 2014

"Ministers are agreed that the department should talk at official level to local authorities. SB has had meetings with ADCS policy committee, also talked to 1 LA in the north and visited 2 regional forums of local authorities. SB has come with no commitment about what might change and when it might change, he has come to listen to people's views..."
And: Report for November Meeting Notes from Home Educators Council Minutes.
Minister Nick Gibb:

"The Department for Education officials have met with the policy committee of the Association of Directors of Children’s Services; officers of Darlington Borough Council; the children’s services scrutiny committee of the City of Westminster, and two regional forums of local authority elective home education officers; one for London and the South East and the other for the West Midlands"

In September 2017, Jenny Dodd of the AEHEP stated that the

“Problem with Lord N [Lord Nash] suggesting LA’s stretch the guidance is that this needs to be communicated to EHE community.”

Even further evidence of the degree to which LAs were consulted can be found in the draft guidance itself with numerous references as to what LAs have told the DfE as regards to their problems with the EHELGA, eg:  

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.”

Or

"A number of problems arise from lacunae or shortcomings in the current legislation which have been drawn to the department’s attention by local authorities and by local children’s safeguarding boards - in correspondence and in meetings both with directors of

children’s services and with forums of local authority officers who deal with elective home education on a day-to-day basis:"

ie: the draft guidance repeatedly refers to LAs telling the DfE about various concerns, which adds further weight to the argument that LAs have been consulting with and lobbying the DfE, which has led to the draft guidance being written on the basis of LA concerns. All in all, it looks as if the petition makes not just a number of good points, but that these points need to be shouted from the rafters if stakeholders, (ie home educators) are to be properly heard in a consultative process with government.

Please sign and keep sharing, and share this explanatory post, just in case anyone is still curious. 

Suggestions as to how to Complete the EHE Call for Evidence

This is a response guide from the admins of the Draft EHE Guidance Consultation Group.

It's been kept quite simple, to help to address the overwhelming nature of the questions which has been putting so many people off from replying.

****Please don't copy and paste it, it's really important to change some of the words even just slightly, because identical responses will probably be discounted.****

****None of the words in [square brackets] should appear in your response.****

In some places we've provided choices, so that you can give the short version or the longer one. If you want to answer in more detail still, please see our conversations in the above named group and David Wolfe's advice, which is in the group files.

Any response to the consultation is valid. *Your* thoughts and opinions are being asked for, so please think about the answers we're suggesting and if you disagree then don't use them and say what you think instead.

Please consider allowing them to keep your response public in your answer to question 7 so that we can clearly see whether it has been taken into account for the end result."


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Home Education - Call for Evidence and Draft DFE Guidance

Closes July 2nd 2018.

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1. What is your name?

Name

[Enter a name if you wish ]


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2. What is your email address?

If you enter your email address then you will automatically receive an acknowledgement email when you submit your response.


Email

[Enter an email address if you wish]

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3. Are you responding as an individual or on behalf of an organisation?

Individual
Organisation

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4. If you are responding on behalf of an organisation, what is your organisation?

[Leave blank]


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5. Which of the following best describes the capacity in which you are responding to this consultation? If Other, please give details

[Choose parent or carer or ‘other’ and type ‘home educator’]


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6. Which local authority area are you based in?

[Name your local authority if you want to. ]


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7. Would you like us to keep your responses confidential?

Yes/No

Information provided in response to consultations, including personal information, may be subject to publication or disclosure under the Freedom of Information Act 2000, the Data Protection Act 1998 or the Environmental Information Regulations 2004.

If you want all, or any part, of a response to be treated as confidential, please explain why you consider it to be confidential.

If a request for disclosure of the information you have provided is received, your explanation about why you consider it to be confidential will be taken into account, but no assurance can be given that confidentiality can be maintained. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Department.

The Department for Education will process your personal data (name and address and any other identifying material) in accordance with the Data Protection Act 1998, and in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.Reason for confidentiality

[Anyone can state any reason for wanting DfE to keep their response private, if they do. However, it would be helpful in order to ensure transparency in the processing of results, if you were to keep your response public.]


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 8. How effective are the current voluntary registration schemes run by some local authorities? What would be the advantages and disadvantages of mandatory registration of children educated at home, with duties on both local authorities and parents in this regard?

DO NOT COPY EXACTLY

[Talk about the possible effects on children of being registered.]

Section 7 of the Education Act compels us to tailor the provision to the child’s age, aptitude, ability and special educational needs.

[Does registration encourage more local authority oversight of this? Do local authority officers know our children as well as we do? Might some of them be tempted to contact us more than they need to and try to persuade us to change our provision? You can add examples of this if you know any. ]

We think the law currently strikes the right balance between protecting those children who need it (Section 437) and ensuring that parents still have the freedom to tailor the provision to meet their child’s needs.

[OR just - ] Registration schemes are not needed and are not effective.#


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9. What information is needed for registration purposes, and what information is actually gathered by local authorities? Would it help the efficacy of these schemes, and the sharing of information between authorities, if there were a nationally agreed dataset or if data could be shared by national agencies, such as DWP or the NHS?

DO NOT COPY EXACTLY

We do not think there should be a registration scheme for home education because it is not necessary and might in some cases result in a negative impact on the education provision.

[OR] Registration schemes are a bad idea because they’re not needed and we are just fulfilling our parental duty, which does not need to be registered.

[OR ] No information is needed. There should not be a scheme.

[OR further:] The implication here is that such policies are and would be appropriate and lawful both when it comes to the requirements of the Education Act and the GDPR and Article 8 ECHR requirements around data sharing. David Wolfe QC advised that the seeking or the making of a referral between agencies as contemplated, simply by virtue of the mere fact of a child being home educated would not meet those requirements.



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10. Does experience of flexi-schooling and similar arrangements suggest that it would be better if the scope of registration schemes included any children who do not attend a state-funded or registered independent school full-time? If so, do you think that local authorities should be able to confirm with both state-funded and independent schools whether a named child is attending that school full-time?

Flexischoolers should not be covered by this guidance because their children are on a school roll. There should be no registration scheme for home education.


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11. Would the sanction of issuing a school attendance order for parental non-compliance with registration be effective, or is there another sanction which would be more useful?

We do not think there should be a registration scheme for home education. 


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12. What steps might help reduce the incidence of schools reportedly pressuring parents to remove children to educate them at home?

DO NOT COPY EXACTLY

Improving the schools? 

Improving the Special Needs provision?

Improving the Ofsted service to ensure the SEN code of conduct is being properly applied?

Funding more Pupil Referral Units or other EOTAS schemes?

Home education regulations should not be changed for the incidence of this to be reduced.

[OR insert your own ideas, OR leave blank]


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13. Is there an argument for some provision which allows a child to return to the same school within a specified interval if suitable home education does not prove possible?

Yes/No

[Most people would say no to this, in case it forcibly keeps the child on the school roll against the parents’ wishes. ]


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14. How effective is local authority monitoring of provision made for children educated at home? Which current approaches by local authorities represent best practice?

DO NOT COPY EXACTLY

There is no statutory requirement for monitoring of home education provision.

Home education provision should be decided by parents and unnecessary monitoring can undermine parental decisions.

If the local authority has information that makes it appear that parents are not providing a suitable education, it can then ask the parents for further information. (Current Elective Home Education Guidelines section 2.8) This position strikes a good balance between the need for local authorities to take action if the education appears unsuitable and the need for parents to decide for themselves on the right definition of ‘suitable’ for their child.

 [OR just - ] There is nothing in law about monitoring home education.


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15. If monitoring of suitability is not always effective, what changes should be made in the powers and duties of local authorities in this regard, and how could they best ensure that monitoring of suitability is proportionate?

DO NOT COPY EXACTLY

Local authorities can best ensure that the monitoring of suitability is proportionate by sticking to the existing procedure as set out in the previous answer. Parents should decide what constitutes a suitable education for their child, not local authority officers. Local authority officers should only try to reach an opinion about this if they have information that makes it appear that parents are not providing a suitable education.

[OR just - ] There is nothing in law about monitoring home education


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16. Should there be specific duties on parents to comply with local authorities carrying out monitoring if such LA powers and duties were created, and what sanctions should attach to non-compliance?

DO NOT COPY EXACTLY

There should be no specific duties on parents to comply with local authorities’ inquiries into their provision. According to case law (Phillips v Brown 1980) they “would be sensible” to respond to inquiries as set out in the current Elective Home Education Guidelines section 2.8.

[OR just -] There should be no such specific duties on parents.


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17. Is it necessary to see the child and/or the education setting (whether that is the home or some other place), in order to assess fully the suitability of education, and if so, what level of interaction or observation is required to make this useful in assessing suitability?

DO NOT COPY EXACTLY

It is not necessary to see the child and/or the education setting in order to assess fully the suitability of education. Local authorities should not attempt to assess fully the suitability of the education unless and until there is an appearance that the education is unsuitable. (Section 437 of the Education Act).

[OR just - ] It is not necessary for them to do this.


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18. What can be done to better ensure that the child’s own views on being educated at home, and on the suitability of the education provided, are known to the local authority?

 DO NOT COPY EXACTLY

 The child’s own views on being educated at home and on the suitability of the education provided do not need to be known to the local authority. Parents must decide how best to carry out their Section 7 duty until and unless there is an appearance that they are failing to do so, as set out in Section 2.8 of the current home education guidelines and in Section 437 of the Education Act.

 [OR just] The child’s own views do not need to be known to the local authority if there are no concerns about the education.

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19. What are the advantages and disadvantages of using settings which are not registered independent or state schools, to supplement home education? How can authorities reliably obtain information on the education provided to individual children whose education ‘otherwise than at school’ includes attendance at such settings as well as, or instead of, education at home?

 DO NOT COPY EXACTLY

 If there is no information which might lead to a Section 437 ‘appearance’ that the education is unsuitable, authorities should not seek to obtain such information. Parents must decide how best to carry out their Section 7 duty until and unless there is an appearance that they are failing to do so, as set out in Section 2.8 of the current home education guidelines and in Section 437 of the Education Act.

 [OR just - ] Local authorities do not need that information if there are no concerns about the provision.

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 20. What are the advantages and disadvantages of using private tutors to supplement home education? How can authorities best obtain information on the education provided to individual children whose education at home includes private tuition, or whom attend tuition away from home?        

DO NOT COPY EXACTLY

If there is no information which might lead to a Section 437 ‘appearance’ that the education is unsuitable, authorities should not seek to obtain such information. Parents must decide how best to carry out their Section 7 duty until and unless there is an appearance that they are failing to do so, as set out in Section 2.8 of the current home education guidelines and in Section 437 of the Education Act.

 [OR just - ] Local authorities do not need this information if they have no concerns about the education.

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21. Are there other matters which stakeholders would wish to see taken into account in this area? If so please insert comments below.

Yes /No

DO NOT COPY EXACTLY
[If you want to, you could describe experiences of interactions with over-zealous officers here and say again that they should comply with the law. ] [You could say that you prefer the current home education guidelines to the proposals in the draft guidance. ]

[Or you could leave this box blank.]


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22. What might be done to improve access to public examinations for children educated at home?

DO NOT COPY EXACTLY

[Give your views here.]

[Either nothing should be done to improve access to public examinations or something should, and what you think it should be.]

[Be aware of the possible ramifications of accessing funding for public examinations, ie: contact with LA, LA value for money assessments, etc.]

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23. What good practice is there currently in local authority arrangements for supporting home-educating families? Should there be a duty on local authorities to provide advice and support, and if so how should such a duty be framed?

DO NOT COPY EXACTLY

There should be no duty on local authorities to provide advice and support, although officers may wish to supply either on request if possible.

Adding a duty in this respect risks encouraging overzealous officers to supply advice and support that is unwanted by parents.


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24. Should there be a financial consequence for schools if a parent withdraws a child from the school roll to educate at home?

Yes/No

DO NOT COPY EXACTLY

 No. Parents can withdraw their children from school for many valid reasons. The discouragement of this should not be incentivised because the result might be that parents are too strongly persuaded to keep their child in school.

[OR]

 Yes. Schools should be made to work harder to resolve problems with children who are on the point of being deregistered.

 [You could add experiences to support your view.]

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25. Should there be any changes to the provision in Regulation 8(2) of the Education (Pupil Registration) (England) Regulations 2006 requiring local authority consent to the removal of a child’s name from the roll of a maintained special school if placed there under arrangements made by the local authority?


Parents of any children should not need permission to deregister their child from school.


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26. Are there any other comments you wish to make relating to the effectiveness of current arrangements for elective home education and potential changes?

 DO NOT COPY EXACTLY

 [You can use this box to describe your worry about the proposed changes, which are to effectively move the educational provision assessment from Section 437 (ie: only where there seem to be problems with provision), to Section 436A, so that everyone’s provision is assessed regardless of whether there seem to be problems with it.]

 [You could talk about how regular monitoring, home visits, meetings with officials and pre-set suitability criteria would negatively affect or damage your child or your ability to carry out your duty to provide a suitable education. ]


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27. What data are currently available on the numbers of children being educated at home in your local authority area?

I do not know. [Or include the data if you do know it.]

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28. Do you have any comments on any of the contents of the call for evidence document in relation to equality issues?

 DO NOT COPY EXACTLY

[You can state any problems you know of in this respect here, eg: ]

It may be difficult for young people/ those with disabilities who may be subject to proposed changes to reply to the Call for Evidence, for reason of…
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DRAFT REVISED DFE GUIDANCE ON HOME EDUCATION: FOR LOCAL AUTHORITIES

This section invites comments on different sections of the draft revised guidance document about the current framework for home education, which DfE proposes to publish for local authority use. Copies of the draft document can be downloaded from the Overview page.

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29. Comments on Section 1: What is elective home education?

DO NOT COPY EXACTLY

 Flexi-schooling describes an arrangement between the parent and school where children are registered at the school in the usual way but attend school only part time. This does not encompass college students or anyone else not on the roll of a registered school.

 Flexi-schooling should therefore not be included in this consultation.

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 30. Comments on Section 2: Reasons for elective home education - why do parents choose to provide it?

 DO NOT COPY EXACTLY

 The reasons for home education are not relevant in law and therefore should not be listed in this guidance.

 Listing them risks encouraging overzealous officers to use the reason for home educating to form prejudices in terms of their approach to families.

 [OR just - ] Don’t give reasons/ don’t list any reasons [etc].

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31. Comments on Section 3: The starting point for local authorities


 DO NOT COPY EXACTLY

 3.4 "However, few people would argue today that parents should be able to exercise their right to home educate children with absolutely no independent oversight, despite their having the legal responsibility set out above." - This is conjecture and as such does not belong in this guidance.

[OR] I disagree with this assumption and it should be removed.

"The job of each local authority is therefore to find an appropriate balance between parental autonomy and its overall responsibilities for education of children in its area."

 - This is not true. Their job is to carry out their duties in law.

3.6 Registration schemes should not be encouraged as they go beyond the law and can lead to problems such as unnecessary provision assessments and lack of clarity for officers and parents about regulations and the law.

[OR just - ] We do not want any registration schemes.


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 32. Comments on Section 4: How do local authorities know that a child is being educated at home?

DO NOT COPY EXACTLY

Section 436A gives local authorities the duty to make arrangements to identify children not receiving education. Home educated children do receive education, therefore should not be the particular targets of this section of the law.

"Until a local authority is satisfied that a home-educated child is receiving a suitable full-time education, then a child being educated at home is potentially in scope of this duty."

 This is not an accurate interpretation of the wording in section 436A. It implies that the provision of every home educated child must be assessed by their local authority, whereas the statute does not do this and nor does case law. It is enough for officers to ask parents whether the education is suitable. If the parents say yes and there is no information that would lead to the informal inquiries set out in section 2.8 of the current guidance, the section 436A duty can then be discharged. 

Home educators have been advised by David Wolfe QC that the measures suggested in section 4.4 specifically to seek out home educators do not meet the requirements set out in the GDPR and Article 8 of the Human Rights Act.

[OR just]

 This is not what Section 436A means. Local authorities should stick to the law. Further, we have received legal advice that sharing information about us between statutory agencies as described in s4.4 would be unlawful. 

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33. Comments on Section 5: Local authorities’ responsibilities for children who are, or appear to be, educated at home


 DO NOT COPY EXACTLY

 5.1 again misinterprets section 436A, which makes no mention of home education. The underlining of 'routine basis' implies that there is also a statutory duty to monitor the quality of home education provision at all, which there is not.

5.2 again extends the interpretation of 436A beyond the statutory wording, which says nothing about maintaining oversight of home educated children.

5.4 recommends annual contact with home educating parents (we assume this is what the draft guidance means, not 'home educated parents' as it says) but this would constitute routine monitoring which might be helpful in some cases, but in others could interfere with the parents' ability to comply with their section 7 duty to cause their child to receive suitable education.

One example of such a problem would be if the officer challenged the parents' definition of 'suitable' based on their different opinions of the child's needs. In that case, where the provision would be found suitable in court, the parents' section 7 duty would be unnecessarily and damagingly undermined to the detriment of the child.

 [OR just - ] We don’t want or need annual contact with the local authority.

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34. Comments on Section 6: What should local authorities do when it is not clear that home education is suitable?

DO NOT COPY EXACTLY

 6.1 Local authorities should not be trying to grade the quality of provision. This will lead to all kinds of problems for which there is no justification in statute. They are only required to make a binary decision about whether there is an appearance that it is not suitable. This is set out under section 437 of the Education Act and in the case of informal inquiries, the current guidance section 2.8.

6.2 They should only be attempting to assess the provision if they have information which makes it appear to be not suitable (current guidelines 2.8).

6.4 The informal inquiries should take place before section 437 of the Education Act but not under section 436A. Section 2.8 of the current guidance sets out the position correctly. If the law makes the parent responsible for ensuring the receipt of suitable education but does not define 'suitable education' in individually specific terms, it implicitly assumes parents are capable of defining what is suitable for their individual child. If it appears for some reason that a parent is not fulfilling their duty, then the assumption may be questioned.

6.7 Flexischooling should not be included in these guidelines as the children are on the roll of a registered school.

6.10 That is by no means the only reasonable conclusion. The family might be away on a long holiday, for example, and not receiving their post.

6.12 Section 437 requires only satisfaction from the parent. It does not mention seeking information from other sources and the guidance should not imply that this should happen.

6.20 The guidance should not make such implications.

[OR just -] Keep the wording in section 2.8 of the current guidelines. Leave flexischoolers out of it because they are on a school roll.


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35. Comments on Section 7: Safeguarding: the interface with home education

DO NOT COPY EXACTLY

 7.2  "However, it must be acknowledged that a child being educated at home is not necessarily being seen on a regular basis by professionals such as teachers and this increases the chances that any parents who are using home education to avoid independent oversight may be more successful by doing so."

This is pure conjecture which risks damaging the prospect of good relationships between local authorities and families. Please do not include it in the guidance.

The rest of section 7 of the draft guidance then degenerates further into a system of nightmarish threats and menaces which have no place in guidance about home education.

The mere mention of Care Orders in this guidance risks encouraging some overzealous officers to threaten and even issue them inappropriately, which could in itself cause significant harm to families. Also, it is by no means properly established that a suspicion of educational neglect on its own might breach the 'significant harm' threshold in the Children Act.

 [OR just] Home educated children are at no higher risk of being abused so their families should not be unfairly targeted by Safeguarding measures in the way Section 7 does.

[OR just] Section 7 of the draft guidance needs to be rewritten in line with part 2 of the current guidelines, with updates only where necessary.


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36. Comments on Section 8: Home-educated children with special educational needs (SEN)

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The annual EHCP review should not be a general assessment of the whole education provision but only of the child's progress towards the outcomes specified in the plan.

[OR just - ] The Special Educational Needs Code of Practice should be followed and normal home education regulations apply to home educated children with SEN.


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37. Comments on Section 9: What do the s.7 requirements mean?

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Re: Article 2 Protocol 1, ECHR:

 [Explain that if our philosophy is home education, the State shall respect it. If our philosophy is unschooling or autonomous education, the State shall respect it. ] From 9.3 “There is no definition of an ‘efficient’ or ‘suitable’ education in English statute law”.

[Explain that there is. It is that an education must be suited to the age, ability and aptitude of the child and see also the case law as referenced in 9.4. ]

 9.3. “ This means that the wishes of parents are relevant. However, it does not mean that parents are the sole arbiters of what constitutes a suitable education….A court will reach a view of suitability based on the particular circumstances of each child and the education provided.”

 [Explain why you think your views are not only relevant but paramount, as you know your child better than the LA and the courts and are therefore able to provide an education that better suits a child’s age, ability and aptitude.]

 [Explain that it is essential that LAs and courts do not abuse this power to rule out a form of suitable education and that their judgement must be exercised with proportionality and reasonableness in order that they pay due regard to Article 2 Protocol 1 ECHR and in order to preserve freedom of education in this country from the control of the state and the judiciary. ]

 [Explain that home educators are discussing Judicial Reviews should procedures lack reasonableness and proportionality. ]

“9.4 b. notwithstanding (a), the home education provision need not follow specific examples such as the National Curriculum, or the requirement in academy funding agreements for a ‘broad and balanced’ curriculum, nor the independent school standards prescribed by the Secretary of State [In regulations made under s.94 of the Education and Skills Act 2008 ]. Conversely, however, if the home education does successfully deliver one or more of those examples then that would constitute strong evidence that it was ‘suitable’ in terms of s.7;”

 [Explain that b. is contradictory, misleading and will incite over-zealous officers to pursue School Attendance Orders inappropriately]

 [Explain that in the view of most home educators, a suitable education is that which actually suits an individual child. “Suitable” should therefore not be defined in a generic way by the state, but by the family themselves who are able to tailor the education to genuinely suit the child. ]

Further the list of what does not need to be included for an education to be suitable that is found at 3.13 in the current Elective Home Education Guidelines for local authorities should be included in any new guidance,

ie: Home educating parents are not required to:

teach the National Curriculum
provide a broad and balanced education
have a timetable
have premises equipped to any particular standard
set hours during which education will take place
have any specific qualifications
make detailed plans in advance
observe school hours, days or terms
give formal lessons
mark work done by their child
formally assess progress or set development objectives
reproduce school type peer group socialisation
match school-based, age-specific standards.

 c. Sections 13 and 175 both talk about background, general duties. [Explain these sections do not confer extra powers on local authorities in respect of home education outside their normal duties. The guidance should be making this abundantly clear because as it is currently phrased, over-zealous officers will use this section as an excuse to be excessively rigorous. ]

 “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 (ref to German case law) confers very broad discretion on the state in regulating that law. “

 German case law is not relevant here in UK’ as it derives from the Basic Law in Germany which had as a primary purpose, the need to prevent ‘parallel societies’, which do not create a dictator.

The Basic law and the Constitution of Baden Wurttemberg position is very different to the legal position in England, given that they make school compulsory save for in exceptional circumstances.

“d.  a local authority may specify minimum requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable;”

 [Explain that this is very poorly worded and may well mean that parents could not provide an education that is genuinely suited to the child since it allows for LAs to set an arbitrary level of state determined suitability that may have nothing whatsoever to do with whether the education is suited to the ability and aptitudes of the individual child.]

 Also explain that giving LAs localised control of “suitability” would introduce a complete postcode lottery of state control.

[OR just - ] The law trusts parents to comply with their Section 7 duty until it has information to make it appear that this might not be happening. This trust is important and must not be undermined without good reason.


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38. Comments on Section 10: Further information

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Local authorities should not be encouraged to go beyond the law in trying to influence parents’ decisions because it confers unnecessary liability on them and can undermine the necessary trust between parents and children, and between parents and the local authority.

 Flexi-schooled children are on the roll of a registered school and so should not be included in this guidance.

 Attendance at unregistered settings is a matter for parents unless local authorities have safeguarding concerns or information that makes it appear that parents are not providing a suitable education, as set out in the current guidelines section 2.8 (which wording must be retained in any new guidance) or the law is being broken in some way.

[Add to the list of resources local authorities could provide if you want to.]


[OR just - ] Local authorities should trust parents unless they have good reason not to.


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DRAFT REVISED DfE GUIDANCE ON HOME EDUCATION: for PARENTS

This section invites comments on different sections of the draft revised guidance document about the current framework for home education, which DfE proposes to publish for parents. Copies of the draft document can be downloaded from the Overview page.

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39. Comments on Section 1: What is elective home education (EHE)?

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Introduction: Introduces mission creep. It is not the for the government to decide the nature of a suitable education for children. It introduces a new concept of “world class” to the definition of education. An education does not have to be “world class”. It has to be suited to the ability and aptitude of a child. Home education can also work well when it is not a positive choice.

Section 1. Flexi-schooled children are on the roll of a registered school so should not be included in this guidance.

 [Or just - ] Exclude/leave out flexi-schooling.

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40. Comments on Section 2: What is the legal position of parents who wish to home educate children?

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 There is a general definition of suitability: A suitable education is that which is suited to the age, ability and aptitude of a child. Any other attempt at imposing a definition that rests outside the locus of the child will reduce the efficacy of that learning process as all children are different and have different learning needs.

Local authorities should not use minimum expectations for things such as literacy and numeracy in assessing suitability. Reasonable expectations for this vary widely between different children. Age should not be the determining factor in this equation, aptitude coupled with ability being the key determinants in successful learning.

 The list of what home educators need not demonstrate in order to be providing a suitable education at 2.11 should be included in the LA guidance as well. There should not be two different sets of guidance with differing standards applying.

Social needs also vary widely between different children and should not be assessed by education officers.

 Local authorities should only attempt to assess home education provision if they have information that makes it appear unsuitable (Current guidelines 2.8).

The suggestions as to how home educators can most easily demonstrate the delivery of a suitable education at 2.12 reveals that the guidance is prejudicing LAs to introduce judgements about suitability that are not required in primary and case law. A broad curriculum and assessment of progress are not required in primary legislation and therefore this should not be allowed in guidance on interpretation of the law. It will prejudice LAs against certain kinds of home educators who realise that a suitable education for their children may involve early specialisation or avoidance of assessment of progress.

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 41. Comments on Section 3: So what do I need to think about before deciding to educate my child at home?


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The detailed curriculum does not need to be planned in advance. It can be adapted as the education progresses, according to the child’s changing needs.

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42. Comments on Section 4: If I choose to educate my child at home, what must I do before I start?

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If this guidance is to attempt to entice home educators to inform the local authority of their home educating in order to facilitate access to advice and support, the advice and support on offer should be useful enough to warrant this.

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 43. Comments on Section 5: What are the responsibilities of your local authority?


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 Parents should be advised that any information they supply to the local authority may be used to contribute to an appearance that the education is unsuitable under Section 437. 

 They should only be asked to provide detailed information about the provision if the local authority has information that makes it appear that the education is unsuitable. (Current guidelines for local authorities section 2.8)

 Parents would be sensible to inquire about the information held on them by the local authority. A paragraph on how to make a Subject Access Request should be supplied.

 Section 5 is far too threatening for guidance about an activity undertaken by parents to benefit their children.

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44. Comments on Section 6: Further information


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 Flexi-schooled children are on the roll of a registered school and so should not be included in this guidance.

 All criticisms of the Guidance for Parents should also apply to the Guidance for Local Authorities as the two must be consistent. It is arguable that two sets of guidance should be needed at all.

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 45. Do you think that anything in the revised guidance documents could have a disproportionate impact, positive or negative, on those with 'relevant protected characteristics' (including disability, gender, race and religion or belief) - and if so, how?

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[Explain how the guidance will impact on you and your children (protected characteristics include age as well as disability, gender, race, religion or belief) in a way that you feel will differ from others without these protected characteristics.]

 [Explain that whether or not home education counts as a protected characteristic, your experience of being outside the norm has resulted in prejudice against you and your family. Have you been falsely reported to Social Services, for example?]

 [It is arguable that certain forms of home education such as unschooling or autonomous education could come under a protected characteristic of “religion or belief”. Do you think that you will be discriminated against on the basis of unschooling or AE or any other form of HE? ]

 [Explain how you see this discrimination will impact you and your family.]

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: