One way or another, it is can be extremely hard for home educators to find the time and energy to respond to the Department for Education's Call for Evidence. For starters, the consultation is taking place at a busy time of year for many HEors, what with exam season, getting ready for college, holidays and all the normal demands of home educating in a difficult financial climate.
There is also the sheer bulk of it all. The Call for Evidence has 44 questions most of which require a considerable amount of knowledge in order to form a well argued response. HEors need to know about not only Lord Soley's Bill and two sets of guidance, one for LAs and one for parents, but also about other bits of law, such as safeguarding law and the Localism Act 2011.
Then there's the fact that so much of new stuff is so opaque. It is very easy to skim read the new draft guidance documents and think "Hey ho, the law's the same, what can be so bad?" Home educators may also be tempted to think that since their educational provision has already been inspected by their LAs without any dire consequences, that it is unlikely that things could get significantly worse.
The thing is, the problems in the draft guidance aren't obvious and you really have to get stuck in to reading the small print in order to see some of the most significant differences from previous guidance since these are hidden away in subtle rewording or in the reference section which you need to pursue with google in order to find out the implications of it all. (See also these posts for some more of the problems and implications of the draft guidance).
Then there's the potentially demotivating fact, as argued in this petition here, that the guidance documents were written without the consultation of HEors, and are already so skewed in favour of LAs, that the whole exercise feels like a fait accompli. It's easy to think that whatever we say, the DfE will go ahead anyway.
Worse still, there's such a short space of time in which to do it all! We have to respond to the consultation before July 2nd? Really? Given that home educators have a reputation for being a rambuctious lot, there is a reasonable chance that the DfE quite deliberately presented this consultation in such a way as to make it very awkward for us to complete. It would be easy to wave a white flag at this point.
But home educators won't give up. We can apply the hive mind, research the situation and come up with reasoned answers and we must do this because we HAVE to draw the line somewhere. If we don't draw this line and demonstrate what the HE community are and are not prepared to take, the line will be drawn heaven only knows where. We have seen mission creep in action before. We will not let it happen again.
On top of responding to the consultation, home educators should, as per the petition, complain that the process has been made next to impossible for many stakeholders, that there appears to be no Impact Assessment, normally a necessary requirement whenever changes to the implementation of law are proposed, all of which therefore means that the Call for Evidence does not conform to government guidance on how to conduct a consultation, ie: there are plenty of good reasons to kick off and we should do it.
Showing posts with label Section 436A. Show all posts
Showing posts with label Section 436A. Show all posts
Tuesday, June 12, 2018
Sunday, May 20, 2018
Does s436A Test for Suitability or Not?
This, on top of Pam's Problems is the question that is taxing Home Educators right now.
It is transparently obvious that if home educators are asked, under 436A, to prove that their educational provision is suitable, there would be a gross inequity under that section, since schooling parents would only have to prove that they are sending their child to school in order to satisfy s436A and the question of whether that schooling provision is actually suited to the ability and aptitude of the child can go hang. Forget the fact that the school might be in special measures and that the pupil spends his time either staring out the window or sitting outside the head's office. That education, because it happens in school, is apparently under 436A "suited to his age, ability and aptitude"!
Given the way 436A is actually worded, ie: that local authorities have a
436A Duty to make arrangements to identify children not receiving education
(1) A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—
(a) are not registered pupils at a school, and
(b) are not receiving suitable education otherwise than at a school
this on the face of it seems a literal, if completely unjust, interpretation of the section. Naturally Home Educators are pretty darn cross about this inequity and are kicking off about it big time.
But that isn't the only problem with testing for suitability at 436A, because the fact of the matter is that there is a test for suitability of educational provision for home educators at s437 as well.
The question must be: how can you have two different places in the same Act (The Education Act 1996) which create two different routes by which a power of determination of suitability can be made, ie: one completely undefined process at 436A and then another totally different, well defined system in section s437 which involves checks and balances in the form of the courts?
The draft LA Guidance where LAs are encourged to use 436A to test for suitability, page 14:
6.4 The department’s advice is that in all cases where it is not clear as to whether home education is suitable (including situations where there is no information available at all), the authority should attempt to resolve those doubts through informal contact and enquiries. An authority’s s.436A duty (and that under s.437, see below) forms sufficient basis for informal enquiries. Furthermore, s.436A creates a duty to adopt a system for making such enquiries.
would make no sense were it not for the fact that 436A is being touted by the DfE as a way of avoiding the right of appeal by parents to the courts through the normal judicial process since s436A gives no protection to parents against a decision by an unaccountable local authority, where s437 actually does give such protection through the courts.
For this, see paragraph 6.19 (p17) of the Draft Guidance for LAs:
"6.19. The department is aware that some local authorities have been reluctant to prosecute for non-compliance with a school attendance order, for reasons connected with costs, and the behaviour of some parents who deliberately withhold information about home education provision but are then able to easily satisfy the court that the home education is suitable."
This is particularly important in this kind of case where a determination of unsuitability of educational provision by the parents could lead to a criminal prosecution. It fails the most basic test of natural justice where an LA is given powers of determination over suitability of educational provision with absolutely no immediate check or balance upon their powers.
That's of course putting aside all other worries parents have of the LA having far more resources than they do when it comes to going to the courts.
It is transparently obvious that if home educators are asked, under 436A, to prove that their educational provision is suitable, there would be a gross inequity under that section, since schooling parents would only have to prove that they are sending their child to school in order to satisfy s436A and the question of whether that schooling provision is actually suited to the ability and aptitude of the child can go hang. Forget the fact that the school might be in special measures and that the pupil spends his time either staring out the window or sitting outside the head's office. That education, because it happens in school, is apparently under 436A "suited to his age, ability and aptitude"!
Given the way 436A is actually worded, ie: that local authorities have a
436A Duty to make arrangements to identify children not receiving education
(1) A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—
(a) are not registered pupils at a school, and
(b) are not receiving suitable education otherwise than at a school
this on the face of it seems a literal, if completely unjust, interpretation of the section. Naturally Home Educators are pretty darn cross about this inequity and are kicking off about it big time.
But that isn't the only problem with testing for suitability at 436A, because the fact of the matter is that there is a test for suitability of educational provision for home educators at s437 as well.
The question must be: how can you have two different places in the same Act (The Education Act 1996) which create two different routes by which a power of determination of suitability can be made, ie: one completely undefined process at 436A and then another totally different, well defined system in section s437 which involves checks and balances in the form of the courts?
The draft LA Guidance where LAs are encourged to use 436A to test for suitability, page 14:
6.4 The department’s advice is that in all cases where it is not clear as to whether home education is suitable (including situations where there is no information available at all), the authority should attempt to resolve those doubts through informal contact and enquiries. An authority’s s.436A duty (and that under s.437, see below) forms sufficient basis for informal enquiries. Furthermore, s.436A creates a duty to adopt a system for making such enquiries.
would make no sense were it not for the fact that 436A is being touted by the DfE as a way of avoiding the right of appeal by parents to the courts through the normal judicial process since s436A gives no protection to parents against a decision by an unaccountable local authority, where s437 actually does give such protection through the courts.
For this, see paragraph 6.19 (p17) of the Draft Guidance for LAs:
"6.19. The department is aware that some local authorities have been reluctant to prosecute for non-compliance with a school attendance order, for reasons connected with costs, and the behaviour of some parents who deliberately withhold information about home education provision but are then able to easily satisfy the court that the home education is suitable."
This is particularly important in this kind of case where a determination of unsuitability of educational provision by the parents could lead to a criminal prosecution. It fails the most basic test of natural justice where an LA is given powers of determination over suitability of educational provision with absolutely no immediate check or balance upon their powers.
That's of course putting aside all other worries parents have of the LA having far more resources than they do when it comes to going to the courts.
Problems for Pam (A Home Educating Parent).
...or in other words, the issues that arise from the government's re-interpretation of 436A and other areas of mission creep that may be found in the draft EHE Guidance, upon which the DfE is consulting at the moment.
In a previous post, we discussed how mission creep in the interpretation of 436A makes it seem as if home educating families are to be inspected for the suitability of their educational provision under 436A, ie: whether or not there is any reason to think that there is a problem with their provision.
But, why the fuss, you may ask? Given that home educators are often already inspected for their provision under section 437, why are they kicking off about something that happens anyway?
Well for starters, the re-interpretation of 436A will give rise to situations such as the following:
Pam's story:
Even though Pam and her family are known to their LA, (having de-registered the children from school and having represented other HEors at LA meetings), since Pam appears capable of providing a suitable education, she has never once been checked by the LA for the suitability of her educational provision.
Now under the draft guidance's strong interpretation at para 6.4 (page 14) of 436A, where it states:
"An authority’s s.436A duty (and that under s.437, see below) forms sufficient basis for informal enquiries. Furthermore, s.436A creates a duty to adopt a system for making such enquiries."
the LA will now take it that they have a duty to check Pam's educational provision for suitability and that Ofsted may be on their backs if they don't do this.
But that's not the end of it. Where Pam, up till now, only had to convince a Local Authority to a standard that would convince a reasonable person (ie: as if in the courts) that she is providing a suitable education and it would have been perfectly possible to do this in writing or on the most cursory of contact with the LA, now Pam must dance to the any old tune that the LA decides upon. Depending on which side of the bed the LA officer gets out of in the morning, and whether or not Ofsted is on his/her back, he/she might decide that "informal inquiries" must mean that they must inspect Pam's children every few weeks, and that they must be studying quantum physics 12 hours a day, given that Pam's children look as if they have the aptitude and ability for it and that this would therefore be a suitable education for them.
You might think this all a bit unlikely, given that LAs have never previously insisted that anyone do quantum physics before breakfast simply on the basis that the young person has the ability to do it, but there are a number of reasons to be worried that LAs will suddenly start imposing more demands regarding suitability upon HEors, and this is quite apart from the mission creep at 436A and the example from other parts of the world of how things can so easily go downhill in this regard, eg: in France, where a re-writing of HE law allows for all manner of capricious assessments of suitability . Quite apart from all this, the draft guidance also prompts for LAs to impose a minimum standard for suitability of education which is completely new, eg:
"a local authority may specify minimum requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable;"
Who knows what those minimum standards may be. Many unschooled young people don't learn to read until much later than the average schooled child and yet go on to do exceptionally well in public exams, quite a few of them scoring 100% in their English coursework, for example. But all this could go out the window if the LA decide that the minimum requirement is that everyone is reading "War and Peace" aged 10 just because they have the ability to do it.
There is also the fact that under 436A, there are no checks and balances upon an LA in terms of deciding upon the nature of a suitable education, where under s437, there is such a check and balance, since if LAs wish to pursue a parent to show that they are failing in their s7 duties under s437, an LA must follow the procedure of issuing a School Attendance Order which then, if challenged by the family, would involve the check and balance of a court procedure. Under 436A however, an LA can set their own terms pretty freely, and for example, repeatedly check up upon, chivy, harass and generally brow-beat Pam into doing whatever the LA says, without even bothering to resort to using 437. Pam therefore ends up either teaching her children quantum physics before breakfast or sending them back to school in order to get the LA off her back.
There is also the fact that parental determinations of educational suitability are breezily dismissed in the draft guidance under Article 2 Protocol 1 of ECHR. Article 2, Protocol 1 states that:
"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions."
but the draft guidance says (page 25):
"d. the first sentence of ECHR Article 2 of Protocol 1 quoted above confers the fundamental right to an effective education, and relevant case law (16) confers very broad discretion on the state in regulating that law. For example, a local authority may specify minimum requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable.
The (16) in the above paragraph refers to a family in Germany who were not allowed to HE according to their religious convictions. From this, we must infer that the DfE is encouraging LAs believe they have similar latitude with regard to how they define suitability of educational provision, even though the legal framework that supported the German ruling is completely different to the one in the UK. This, in itself, should be sufficient reason to respond to the consultation.
The draft guidance also explicitly gives LAs a lot of latitude with deciding how to define suitability which when you consider the powers LAs now have as a result of the Localism Act 2011 could mean that LAs could specify almost anything they like by way of minimum requirements of an education.
From the guidance on the Localism Act: (page 7):
"Local authorities’ powers and responsibilities are defined by legislation. In simple terms, they can only do what the law says they can. Sometimes councils are wary of doing something new - even if they think it might be a good idea - because they are not sure whether they are allowed to in law, and are concerned about the possibility of being challenged in the courts. The Government has turned this assumption upside down. Instead of being able to act only where the law says they can, local authorities will be freed to do anything - provided they do not break other laws."
Read that together with the following:
"9.5 The department (the DfE) does not, however, believe that it is in the interests of home educated children, parents or local authorities for there to be detailed centralised guidance on what constitutes suitability. This issue should be viewed on a spectrum, and although there will be clear conclusions to be drawn at either end of that spectrum, in between each case must rest on a balance of relevant factors depending on the circumstances of each child."
and whilst it would be possible to read this as actually a deep respect for the spirit of s7, ie: that an education must be suited to the age, ability and aptitude of a child, there could nonetheless be a real and deep differences of opinion between LA and an HEing family here, given that no-one can ever be sure whether an education is genuinely suited to a person's ability and aptitude, (forget the issue of age, as the qualities of ability and aptitude subsume that consideration when it comes to determining suitability). There is even a problem in the tension between "ability" and "aptitude" since these are not the same things and depending on which one you chose to use as an assessment tool, may result in a differences in the type of education that is deemed suitable. So for example, whilst Pam's children clearly have the ability to understand quantum physics, they may have next to no interest (a component of aptitude) for doing it. The LA may insist Pam educate her children according to their clear ability, whereas Pam may prefer to offer an education suited to their aptitude!
Under the new draft guidance, Pam may well not be able to insist upon her version of suitability until far further down the line, at 437, when she may have already been routinely harassed and bullied by her LA.
All in all, after reading the small print, and giving it due thought, it becomes increasingly obvious why home educators should reply to the Call for Evidence with strong arguments as to how this is constitutionally disastrous. The proposals are deeply undemocratic, dangerous and have the potential to lead to the de facto piecemeal end of home education in this country.
This is, of course, putting aside all arguments about practicality. None of the proposals will actually work to help children who really ARE in need. It will cost LAs a huge amount of money to pursue a lot of difficult but otherwise successfully home educating HEors who don't want to be pursued, money which would be far better spent on Social Work departments who cannot cope with their current workload, all the while loading these departments with a load of false positives which which will result from a reinterpretation of 436A.
Current interpretation of law could suffice and were applied in a reasonable and proportionate manner. Let's help the DfE understand this point in our Call for Evidence responses.
For a helpful summary of the implications of a the draft guidance's interpretation of 436A v. the use of s437 , coupled with the Localism Act and an ambiguous discussion of the nature of a suitable education (page 24 in the draft guidance) and parental rights, please see this table:
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:
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."
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:
Thursday, May 17, 2018
Mission Creep at 436A
The problem with the s436A is that it can be interpreted in a number of different ways. We suspect this is no accident since it has allowed the DfE to mastermind mission creep that introduces deep inequity under the law. Let's look at the various interpretations of 436A again:
s436A in the Education and Inspections Act 2006 (inserted in to the Education Act 1996):
Duty to make arrangements to identify children not receiving education
(1) A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but —
(a) are not registered pupils at a school,
and (b) are not receiving suitable education otherwise than at a school.
-------------------
Right, so what we need to know is how is s436A actually applied?
Scenario 1. The local authority makes arrangements to try to find out where Child A is. They check the school registers they hold for every school. Child A is either on these or not. If Child A isn't apparently on any school register in the area, the LA makes enquiries with the parent of Child A to find out where their child is being educated. If the parent replies "Child A is home educated", the LA has fulfilled its duty at 436A.
This is pretty much the situation that applied under previous 436A Guidance in 2007:
"1.2.6. The duty does not apply to children who are being educated at home. Monitoring arrangements already exist for children being educated at home. Parents have a duty to ensure that their children receive a suitable full-time education either by regular attendance at school or otherwise (under section 7 of the Education Act 1996) and they may choose, as is their right, to provide this by educating their children at home."
which, although this has disappeared from subsequent 436A guidance, is still referenced in the Home Education Guidance for LAs that is currently in use:
"2.6 Local authorities have a statutory duty under section 436A of the Education Act 1996, inserted by the Education and Inspections Act 2006, to make arrangements to enable them to establish the identities, so far as it is possible to do so, of children in their area who are not receiving a suitable education. The duty applies in relation to children of compulsory school age who are not on a school roll, and who are not receiving a suitable education otherwise than being at school (for example, at home, privately, or in alternative provision). The guidance issued makes it clear that the duty does not apply to children who are being educated at home."
Scenario 2
However, this all looks set to change, as the draft EHE Guidance for LAs that is currently up for consultation makes no reference to the non-applicability of 436A to home educated children.
But how could that be? Given that schooled children are exempted from further investigation under 436A once it transpires that they are on a school register, how can this also not be applied to home educated children once it transpires that they are home educated, given that they too are in receipt of an education?
It seems it all comes down to a single word in part b) of 436A and that word is "suitable". In other words, according to 436A, whilst those within the school system need only be provided with an education, those outside it must be provided with a "suitable" education, which presumably means that home educated children must be subjected to a higher standard of test than schooling children.
The craftily ambiguous writing of the section gives scope for the government to interpret 436A in two vastly different ways, one interpretation resulting in equitable treatment of schooling and home educating families, and the other applying a far higher standard to home educators than to schooling families, since only home educating families will be required to prove that their educational provision is suitable. This seems deeply iniquitous given that the reality is that the educational provision in schools is for many children highly unsuitable. By some twisted logic, it seems that simply by virtue of the fact that a child attends school, schooling parents are exempted from their duty at s7 to provide a suitable education.
For the full implications of this version of 436A and how it differs from the current situation, please see this post about Pam's Problems.
Mission Creep.
So how did the home educating community, given that they are a bunch of rambuctious free thinkers who normally make it their business to be on top of the legal situation and to kick off at the slightest hint of problem, how has it come about that they let the government get away with this shift? Well, it all happened so slowly, so cleverly!
First we had the introduction of s436A back in 2006 in the Education and Inspections Act. There was a lot of pure outrage at that point, but we allowed ourselves to be mollified by the reassurance from government in the 2007 guidance at s1.2.6 whereby they stated that the duty did not apply to home educated children. That was a sap. We shouldn't have let ourselves be gulled by it. When the reassurance that 436A did not apply to HE children disappeared from subsequent 436A guidance, we let ourselves be comforted by the fact that reference to the now missing bit of guidance in the EHE guidance but now it is being written out of the new EHE guidance which is currently up for consultation. Home educators are finally waking up to the enormity of the problem. It is like suddenly spotting that that mole that you have barely noticed before has turned into a cancerous tumour that could be your undoing, as it had quietly mutated when you weren't looking.
And it isn't just 436A, there is other stuff quietly mutating too: other areas of mission creep in the draft guidance, particularly around the nature of suitability of educational provision, that could be used against home educators to completely change the nature of home education in this country. Please see this post for a discussion of mission creep on the issue of suitability and there's more on the subject of 436A here.
By way of some consolation, at least home educators are now fully alert to the way mission creep works. We understand that government introduces changes by burying of the bad news whenever they can, doing it bit by bit, and offering false consolation along the way so that there is a temptation to be mollified whilst the danger grows or else we simply become exhausted through the sheer relentlessness of it, the on-going gradual erosion of freedom in education. Very clever. But we WON'T LET IT HAPPEN AGAIN. Lessons have been learned and lines will be drawn.
s436A in the Education and Inspections Act 2006 (inserted in to the Education Act 1996):
Duty to make arrangements to identify children not receiving education
(1) A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but —
(a) are not registered pupils at a school,
and (b) are not receiving suitable education otherwise than at a school.
-------------------
Right, so what we need to know is how is s436A actually applied?
Scenario 1. The local authority makes arrangements to try to find out where Child A is. They check the school registers they hold for every school. Child A is either on these or not. If Child A isn't apparently on any school register in the area, the LA makes enquiries with the parent of Child A to find out where their child is being educated. If the parent replies "Child A is home educated", the LA has fulfilled its duty at 436A.
This is pretty much the situation that applied under previous 436A Guidance in 2007:
"1.2.6. The duty does not apply to children who are being educated at home. Monitoring arrangements already exist for children being educated at home. Parents have a duty to ensure that their children receive a suitable full-time education either by regular attendance at school or otherwise (under section 7 of the Education Act 1996) and they may choose, as is their right, to provide this by educating their children at home."
which, although this has disappeared from subsequent 436A guidance, is still referenced in the Home Education Guidance for LAs that is currently in use:
"2.6 Local authorities have a statutory duty under section 436A of the Education Act 1996, inserted by the Education and Inspections Act 2006, to make arrangements to enable them to establish the identities, so far as it is possible to do so, of children in their area who are not receiving a suitable education. The duty applies in relation to children of compulsory school age who are not on a school roll, and who are not receiving a suitable education otherwise than being at school (for example, at home, privately, or in alternative provision). The guidance issued makes it clear that the duty does not apply to children who are being educated at home."
Scenario 2
However, this all looks set to change, as the draft EHE Guidance for LAs that is currently up for consultation makes no reference to the non-applicability of 436A to home educated children.
But how could that be? Given that schooled children are exempted from further investigation under 436A once it transpires that they are on a school register, how can this also not be applied to home educated children once it transpires that they are home educated, given that they too are in receipt of an education?
It seems it all comes down to a single word in part b) of 436A and that word is "suitable". In other words, according to 436A, whilst those within the school system need only be provided with an education, those outside it must be provided with a "suitable" education, which presumably means that home educated children must be subjected to a higher standard of test than schooling children.
The craftily ambiguous writing of the section gives scope for the government to interpret 436A in two vastly different ways, one interpretation resulting in equitable treatment of schooling and home educating families, and the other applying a far higher standard to home educators than to schooling families, since only home educating families will be required to prove that their educational provision is suitable. This seems deeply iniquitous given that the reality is that the educational provision in schools is for many children highly unsuitable. By some twisted logic, it seems that simply by virtue of the fact that a child attends school, schooling parents are exempted from their duty at s7 to provide a suitable education.
For the full implications of this version of 436A and how it differs from the current situation, please see this post about Pam's Problems.
Mission Creep.
So how did the home educating community, given that they are a bunch of rambuctious free thinkers who normally make it their business to be on top of the legal situation and to kick off at the slightest hint of problem, how has it come about that they let the government get away with this shift? Well, it all happened so slowly, so cleverly!
First we had the introduction of s436A back in 2006 in the Education and Inspections Act. There was a lot of pure outrage at that point, but we allowed ourselves to be mollified by the reassurance from government in the 2007 guidance at s1.2.6 whereby they stated that the duty did not apply to home educated children. That was a sap. We shouldn't have let ourselves be gulled by it. When the reassurance that 436A did not apply to HE children disappeared from subsequent 436A guidance, we let ourselves be comforted by the fact that reference to the now missing bit of guidance in the EHE guidance but now it is being written out of the new EHE guidance which is currently up for consultation. Home educators are finally waking up to the enormity of the problem. It is like suddenly spotting that that mole that you have barely noticed before has turned into a cancerous tumour that could be your undoing, as it had quietly mutated when you weren't looking.
And it isn't just 436A, there is other stuff quietly mutating too: other areas of mission creep in the draft guidance, particularly around the nature of suitability of educational provision, that could be used against home educators to completely change the nature of home education in this country. Please see this post for a discussion of mission creep on the issue of suitability and there's more on the subject of 436A here.
By way of some consolation, at least home educators are now fully alert to the way mission creep works. We understand that government introduces changes by burying of the bad news whenever they can, doing it bit by bit, and offering false consolation along the way so that there is a temptation to be mollified whilst the danger grows or else we simply become exhausted through the sheer relentlessness of it, the on-going gradual erosion of freedom in education. Very clever. But we WON'T LET IT HAPPEN AGAIN. Lessons have been learned and lines will be drawn.
Wednesday, November 30, 2016
Children Missing Education Updated Guidance 2016
There is new guidance on section 436A .
It essentially enables more robust tracking of children not registered in schools.
It essentially enables more robust tracking of children not registered in schools.
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