Section 6.19 - Should we be worried?

Filling in the Call for Evidence isn't a comfortable experience at the best of times.  Answering 44 questions takes a lot of sitting down for starters, but that really isn't the worst of it. Although home educators have thrashed out cogent answers to the consultation and have formulated template responses to it, every now and again a new outrage which had previously remained buried in the small print of the draft guidance  leaps out at a home educator and grabs them in a lethal mix of terror and outrage that leaves them (at least in their heads), running round their neighbourhoods with sandwich boards and for real, gulping down cups of coffee in fits of nervous exhaustion as they try to explain the barbarity of these oh-so-reasonable seeming proposals in their consultation responses. It's seriously hard and totally unpaid work.

Here's my sandwich board moment from this morning.  Filling out question 34 on section 6 of the Draft Guidance for LAs, I reread the following:

"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 an understandable concern, but local authorities must bear in mind their public responsibilities as prosecutors; in such cases they may wish to seek legal advice about the prospect of obtaining a costs order against a successful defendant on the basis that the prosecution would have been unnecessary if not for the defendants’ unreasonable conduct."

On previous readings, I had had an uncomfortable feeling about the idea that home educators should bear the costs of an action brought by the LA irrespective of the outcome, but only on about the twentieth perusal of the paragraph, did it finally dawn on me that this is an outrageously controlling and iniquitous suggestion that has qualities of the popular version of witch dunking about it, ie: that either you are proved innocent (win), in which case you drown (bear the costs of the court case), or you turn out to be a witch (lose) and are burned at the stake (forced to return a child to school AND pay the costs).  Either way, better not appear witch-like (difficult) in any way, shape or form.

You may be thinking that it probably isn't this bad - that LAs would only insist on parents paying court costs when families had been very intransigent, but that is to ignore the fact that LAs already routinely practice that clever twisting of reports about HE families in order to say, or at least imply, pretty much whatever they like.  That little nudge here or there could so easily suggest that a family are being wilfully obstructive and should bear the costs, irrespective of the outcome.

By way of but one recent example:  a successfully HEing family didn't particularly take to the the Victorian anthroplogist of an ex headmaster who came to assess their provision, who regarded the children as if they were some sort of different species that was barely human, inter alia reporting their extremely well balanced, clearly very happy children as "Children A, B and C are happy enough". So the HEing mum rang the LA to say that she didn't mind having visits, but could someone else possibly visit them instead.  This was reported as "The mother has refused visits".  That alone could cost them dearly.

And that's all quite aside from the very real possibility that home educators may have utterly genuine reasons to prefer their educational provision be judged in the courts.  They may know, for example, that the LA does not support different pedagogies and may therefore think that their best hope is to describe their provision to the court, but given the fact that they will almost certainly have to bear the cost, this check and balance on LA power will be denied them.

All in all, with the almost certain prospect of having to bear court costs, home educators will be far more subject to the whims of LAs as to what they consider an appropriate education. All the LA would have to do would be to just tweak the evidence a little bit to make the parent look obstructive, and bingo, they'd be issuing SAOs like there's no tomorrow. LAs also know that once HEors caught on that this is happening, that they wouldn't risk the almost certain expense of a court case, and will therefore just roll over and do the LAs bidding, meekly conforming to whatever expectations the LA has with regards to the nature of a suitable education, with all the terrible consequences for freedom and democracy that this entails.  

This really does seem like a hugely retrograde step, a return to centralised authoritarianism of pre Magna Carta proportions, though perhaps we should start getting used to this sort of thing as this initiative also seems akin to the proposal in May, introduced by Tom Watson MP, which would have resulted in newspapers being forced to fund the action of anyone who takes a case against them, irrespective of whether the newspaper actually wins or not! 

Is this REALLY the way we want to go?  Talk about degradation of democracy: curtail freedom of speech, make investigative journalism prohibitively risky and take out freedom in education whilst you're at it.  After all, the plebs need controlling.

We have to stop this.  Fill in that consultation response, and sign the petition here. 

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.

Links to Legislation, Guidance and Consultations that are relevant to the EHE Consultation and Soley's Bill

Current Consultations and Related Briefings: 

* The Home Education Consultation

* The Casey Review on Integration and Opportunity.

* The Consultation on the Casey Review

* The Consultation on School Exclusions

* Falling through the Gaps in Education Nov 2017 (A Briefing)

* Special Needs and Disability Consultation

* The Labour Party Consultation on Education Policy

* Government Consultations on Principles of Conduct

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Human Rights:

Equality before the Law:


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Lord Soley's Bill:

* Lord Soley's  Home Education (Duty of Local Authorities) Bill 2018

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Primary Legislation and Current Guidance re Home Education:

*  Lord Adonis on the Fourfold Foundation of the Right to Education

* Suitable education: Section 7 Education Act 1996.

* Duties of the Secretary of State to promote education: s10 Education Act 1996

* Elective Home Education Guidance for LAs

* EOTAS Legislation: Section 19 Education Act 1996

* Education Supervision Orders  s.36 Children Act 1989

* Education Supervision Orders explained.

* School Attendance Orders: Section 437 Education Act 1996. 

* Duty to identify children missing education: Section 436A Education and Inspections Act 2006

* Guidance on Children Missing Education 2016

* The Donaldson Judgment

* The Tweedie Case 1963

* Guidance for LAs on Funding HE

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Definition of Schools, School Standards and Pupil Registration Regulations:


* Definition of Schools:  Section 4 Education Act 1996

* Definition of Schools:  Section 14 Education Act 1996

* Pupil Registration Regulations 2006

* Guidance on Pupil Registration Regulations 2016

* School Inspection Handbook (Ofsted Guide for School Inspection) S8 Education Act 2005

* Independent School Standards Regulations (suitable education in Independent Schools)

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Safeguarding: 

* Local Authority Duty to Investigate abuse: Section 47 Children Act 1989

* LA Duties re Preventing people being drawn in to Terrorism: Section 26 Counter Terrorism and Security Act

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Data Protection:


* Principles of the General Data Protection Act 2018, Article 5 + 

* Information Commissioner's site on General Data Protection

* General Data Protection Regulation - How it applies in UK and Europe.

* Local Authority Guidance on General Data Protection (from May 2018)

* The Supreme Court Judgement about Data Sharing in the Named Person Scheme.

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Comment on Education Law:

*Lord Adonis on the Fourfold Foundation trumping the Right to an Education. 2006

*Lord Adonis on the Anomaly of the State not Prescribing a form of Education. 2010.

*Ian Dowty's View on Lancashire LAs HE Protocol and Procedures.