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Now under the draft guidance's strong interpretation at para 6.4 (page 14) of 436A, where it states: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:

The Big Problems in the Draft EHE Guidance: Registration and Monitoring by the Back Door and its Constitutional Significance.

Right now, unbeknownst to most of us, the future of education in England is in jeopardy. By rights, we should all be worried, yet only a few people are aware of this threat, which isn't altogether surprising given that this menace only becomes manifest after one's wrapped one's brain round a complex interplay of various tiny bits of education law as interpreted in an obscure bit of draft guidance that only appears to affect a tiny minority of educators.

But it does matter.  It matters because if we don't get this right, the local education officer rather than the family will, on account of a potentially strong interpretation of s436A Education Act 1996 (inserted from 2006 Education and Inspections Act) ie: the duty to find children missing a suitable education, be given the duty, via data trawls, chats to neighbours, relatives etc to find AND to assess the suitability of educational provision of every child in the land and will therefore be the one who in effect decides the limits of a suitable education.

I argued before that this needn't be a problem.   What does it matter if a local authority officer rules out a particular form of education when there are so many other variants from which to choose?  Well, after thinking about it in the cold light of directly being threatened with such a situation,  I've changed my mind.  It actually does matter.  It matters A LOT. It matters precisely because the LA officer may rule out the only form of education that actually does fulfil the parent's duty to cause a child to receive a suitable education, as required of parents in Section 7 of the Education Act 1996.

Section 7 requires a parent to make sure that their educational provision is suited to the ability and aptitude of the child.  The provision of a suitable education that is genuinely suited to a child's ability and aptitude requires really knowing and understanding the abilities and aptitudes of that particular child.  And here's the thing - drum roll, big news: it is parents who actually really know their children. The local authority officer, on the other hand, only sees a child at the very most three times a year and he never gets to see those moments when mum and dad had to drag a screaming, school phobic child out from under the bed, and force them out the house, bloodied hands grasping at the door frame. He doesn't get to see what happens when a parent tried to force an emotionally shattered child to do their maths homework. He also doesn't get to see how well the child learns when pottering in the garden, when speaking with their friends or when searching for YouTube videos that answer the particular question the child has of a moment, yet the parent can see all of this.

Understanding what sort of educational provision would genuinely suit a child may therefore be far harder for an LA officer to understand than for family.  They simply don't have the background information on which to base this assessment.

It may be made even harder for LA officers because they come armed with a bundle of preconceptions about what they should be looking for in terms of educational provision.  The words at the top of  the relevant bit of guidance  which stipulate that the government want:

"to ensure all young people receive world-class education which allows them to realise their full potential, regardless of background, in a safe environment"

will be ringing in their ears.  From the same Guidance at section 9, they will also be remembering:

"... 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. 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".

From this and from the fact that they may well be schoolteachers themselves and therefore thoroughly entrenched in the schooling paradigm, they may conclude that we should forget pottering about in the garden, every child needs to be pushed, pushed, pushed to the absolute maximum of their potential. Forget about aptitude - prioritise ability.  If the child seems bright, ignore the fact that they have zero interest in the subject, (a constituent of aptitude), and sit them down with their Kumon maths until they've mastered the outer reaches of algebraic topology.  So what if this means discounting the legislative requirement to also attend to the aptitude of the child, since after all, if you do that, you would ignore the capacity that clearly exists in their native smarts.

And yet home educators of long experience know that a lot of pottering really CAN be one of the most successful forms of education around, and this because it facilitates the key relationship between ability and aptitude, ie: that ability is circumscribed by aptitude.

Aptitude is the gatekeeper to ability and the child is the master of aptitude.  Key components of aptitude are interest and motivation and a child knows what he is genuinely interested in learning.  When he is interested in something and has a capacity to satisfy that interest, he will be learning and learning well.  Motivation is key to effective learning and thereby to mastery and purpose as Daniel Pink has long been arguing.

At 6 mins 35 into that animation, Pink says:

 "You probably want to do something interesting. Let me get outta your way."

and this is precisely what a lot of experienced home educators have done and they have seen it work!  These young people, now grown up and thriving, weren't forced to perform to their obvious abilities in the standard schooling sense. They often spent a lot of time trampolining, seeing their friends, talking with family, playing computer games, dancing, rock climbing, caring for animals, playing guitars, drums, flutes, cellos, and reading and drawing a lot,  yet they all ended up doing whatever they wanted to do in life, often displaying a lot of creativity in achieving these ends.  A lot of the time, their parents took a step back and let the natural curiosity of the young person direct the educational provision that was offered.

Given that it tallies aptitude with ability, facilitating the pursuit of interests and thereby learning now to learn really does look like the most suitable education around and yet it looks so vastly different to the normal schooling paradigm that it could easily lead to an accusation of educational neglect, but it really isn't and young people have a lot to teach us in this department.

Yet all this could so easily be whisked away on the whim of an LA officer with preconceptions of what an education should look like, thereby removing a family's agency when it comes to determining the nature of a suitable education.

Even if parents provide an education that is nominally within state determined parameters, the responsibility of parents to decide upon the form and content of education would have been removed from them and this applies to every parent in the land.  Every parent in the land now no longer has the duty to determine the nature of suitable education. They are merely minions of the state in that they must provide a state approved form of education.

This is hugely significant not only in that it may deprive home educators of a form of education that is actually genuinely suited to their child, but for loads of other reasons too.

There are constitutional reasons why this is a terrible move.  OK, the government seems relatively benign now, but families not having a clear right to determine the nature of a suitable education deeply inscribed in the bedrock of our democracy as should be the case according to the spirit of Article 2 Protocol 1 of the ECHR:

“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 in conformity with their own religious and philosophical convictions” 

leaves us open to state indoctrination in a way that should not be countenanced in a mature democracy.

Then there is the problem of who is held to account for a failure to provide a suitable education.  Should the parent provide a state-mandated education, and yet this fails the child, the child should rightfully no longer feel aggrieved at his parent, since the ultimate responsibility for this determination no longer rests with the parent. Indeed, it may have been that the genuinely suitable education was not available to the parent to provide, given that the state would have prevented him from providing it. The state must therefore rightfully take the blame, and should expect to be held liable for educational failure of all sorts.

The other situation of still holding the parent accountable seems unconscionably unjust. Most bits of satisfactory law hold people to account only when they reliably have agency in the matter, yet in this situation, parents would have no reliable agency at all. Not only are they unable to able to freely determine the nature of a suitable education on account of having this determination removed from them by the state, but they are also incapable of reliably making a child learn, since they, along with everyone else on the planet, cannot open up the head of a child and pour knowledge into it as one would water in to a bucket.  The child has the agency here - they must initiate the learning process and no-one else can do this for them. The parent therefore would be in a position of double jeopardy, and in lieu of the child being held responsible for a failure of education, the argument that the state be held responsible since at least they could influence one side of this situation becomes even more transparent.

There are other problems with enacting Children Missing Education more aggressively.  Some of these are explained here and can be broadly summarised as causing a problem with how LAs would enact another bit of legislation, ie: s437 .  If they have already aggressively checked a family for a suitable education as allowed for in Draft Guidance, how can an LA then go about using the measured processes suggested in s437?  These measured processes are vital in that they have preserved educational freedoms in this country for so long. They assume that the state has no business making a judgement on the suitability of education until way down the line when it is clear that the parent is not observing their duty in this regard.

But that isn't the end of it - there are yet more problems with an aggressive broad spectrum state check of educational suitability.

There's the problem that if you do data trawls as is suggested in the Draft Guidance, (page 9), genuinely abusive, neglectful or otherwise troubled families, knowing about data sharing, will not use services at all, thereby rendering those children even more vulnerable.  Better to have one statutory service provider knowing and helping and respecting client confidentiality than a whole team of people out there who know nothing of the family at all.

And yet further: in assuming that an aggressive check for suitability under CME applies to all children, LAs will therefore have immediate right to check the safeguarding situation with regard to the families of everyone in the country, since s175 of the Education Act 2002 says this:

"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."
Further, since the Guidance makes it clear that educational neglect could constitute "significant harm" (page 18), of the threshold that could initiate action under s47 of the Children Act 1989,

7.6 A failure to provide suitable education is capable of satisfying the threshold requirement contained in s.31 of the Children Act 1989 that the child is suffering or is likely to suffer significant harm.

it seems that the duty to find children missing a suitable education must therefore become a safeguarding duty which involves a massive surveillance of the home educating population.

Whilst everyone must surely wish for every child in the country to be safe, this initiative is entirely disproportionate as well as wasteful in terms of trying to solve the problem of abuse and must surely represent evidence of mission creep and encroachment upon privacy of families who have done absolutely wrong.  Their right to a private life under Article 8 of the HCR  can go hang.

We have to get balance in this.  We cannot give the state carte blanche to walk in to our houses and inspect our intimate lives (for home education is completely enmeshed in private family life) on the off chance that we might be abusing our children one way or the other. There has to be a balance here for want of losing all rights and effectively living in a police state.

What's more, the country doesn't have the money to waste like this.  Social work departments are creaking under the strain, schools are cracking up, the NHS is chronically underfunded.  Statutory services can't cope with the at risk children they do know about. We don't have the money to be chasing law abiding citizens around.  Spend it where it is really needed.

The way to solve this problem is obvious: use CME as it has been used until recently and as it was originally intended. Assume that when someone says that they are home educating, they are doing so unless there is good reason to believe that this is not so.  This should be clearly stated in guidance and not left up to the LAs to invent stuff as they go along, see page 12 of the Draft Guidance as this could lead to all manner of abuses of power, what with LAs having access to legal resources and parents often having next to none.

Right to Education: Article 2 Protocol 1 ECHR

Article 2 Protocol 1  EHRC.  (European Convention on Human Rights)

Right to Education

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the state shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

=========

NB: Although this Article is incorporated into national law by the Human Rights Act 1998, the United Kingdom has filed a reservation in respect of the Protocol 1 Article 2 which applies to domestic interpretation of the right as well as to this country’s obligations under the Convention at international level. The reservation accepts the principle of education in conformity with parent’s religious and philosophical convictions “only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.