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. 

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.

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.

Examples of Local Authority Home Education Policies

...with notes if there is a contentious interpretation of case law on the nature of a suitable and efficient education:

Bedfordshire HE Policy

Derbyshire HE Policy

(recommends following the National Curriculum).

Hampshire HE Policy

Leicestershire HE Policy

Case law (Harrison & Harrison v Stevenson) also states that a suitable education – for a child capable of learning such skills – should instil in them the ability to read, write and cope with arithmetical problems. In other words, an education that does not include English and Maths cannot be considered suitable

North Yorkshire Policy

West Berkshire HE Policy

What do home educators provide?

• They make the learning process active, practical and participative.
• They take full advantage of all available resources, such as museums, libraries, parks, computers, educational DVDs and CDs.
• They have fun with the learning experience.
• They provide opportunities for physical development.
• They encourage their children to develop socially by possibly attending clubs.
• They encourage their children to read widely.
• They make learning enjoyable by using a variety of approaches.
• They give children opportunities for independent learning.
• They make sure their child has a suitable environment for learning.
• They make sure their child is safe.

Are there any compulsory subjects? There are no compulsory subjects for electively home educated children. However, you will need to provide opportunities for learning literacy and numeracy as these are key areas in a suitable education

Talmud Torah Machzikei Hadass School Trust case on Efficient and Suitable Education.

An “efficient” and “suitable” education is not defined in the Education Act 1996 but “efficient” has been broadly described in case law as an education that “achieves that which it sets out to achieve”.

A “suitable” education is one that “primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child’s options in later years to adopt some other form of life if he wishes to do so”.

 Mr Justice Woolf in the case of R v Secretary of State for Education and Science, ex parte Talmud Torah Machzikei Hadass School Trust (12 April 1985)

See EO Website. 

Why would the Latest Home Education Bill be Constitutionally Significant?

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

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

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

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

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

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

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

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

A Barrister's View on LAs and Home Education 2010

Ian Dowty's 2010 discussion of parity under the law when it comes to assessment of education which may be found here is as follows:

(NB: certain bits of legislation, eg: the Localism Act and relevant bits of Guidance eg: on Children Missing Education have since been updated, and whilst the tenor of the argument should still hold sway, subsequent events, such as the Goodred case, will be significant regarding the interpretation of the law.)

Local Authorities and Home Education (some extracted notes):

By Ian Dowty

Home educators are free to choose the type of education they wish their children to receive.  Rather than seeking to impose a prescriptive expectation of what an education should look like in the view of the LA, the first task of the LA should be to discover how a parent home educates and what values, intention and philosophy they have. Prescribing what characterises an education indicates that an LA has prejudged the issue and is not open to considering other models of education.

In seeking to discover from a home educator what is their educational philosophy, the LA needs to bear in mind that some home educators find it difficult to set out that philosophy in theoretical terms. An inability to explain how a car engine works does not mean a person is not adept at making the car move effectively. This is but one reason why those who seek to "assess" home education provision have been trained to have a good grasp of how it looks and can be delivered, trying to assess what a home educator finds difficult to express (but not to do) might well lead to the erroneous conclusion that a no suitable education was being received when in fact all was well.

Since the coming into force of the Human Rights Act 1998, an LA has to act compatibly with the European Convention on Human Rights (`ECHR ́).The DSCF ́s Elective Home Education Guidance for Local Authorities (`EHEGLA ́) sets out, at para 2.2, Article 2 of the First Protocol to the ECHR thus ;

"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."

If they so choose, home education, is directed by parents who are thus able to do so "in conformity with their own religious and philosophical convictions". It is my view that the European jurisprudence permits parents to educate their children in any way they choose provided that it is in accordance with a philosophy which is cogent and worthy of respect in a democratic society.  English jurisprudence would perhaps repeat the phrase set out in a case which involved the teaching offered by a school, the Talmud Torah Machzikei Hadass School, namely, that such an education is a suitable education if it

"primarily equipped a child for life within the community rather than the way of life of the whole country [provided that] it did not foreclose on a child's options to adopt some other way of life later."

Thus the Divisional Court gave its approval to a religious-based teaching model which (as I understand it) was, and still is, conducted largely in a minority language.  A consideration of that school ́s 2007 Ofsted report is instructive. Ofsted ́s overall evaluation of the school is that (with my emphasis) :

"The overall quality of education provided by the school is inadequate because of the poor Chol curriculum. In Kodesh, the curriculum and quality of teaching are good, work is of a high standard and pupils make good progress. However, in Chol (secular studies) their progress is unsatisfactory because the curriculum is unstructured and the quality of teaching and assessment is inadequate. The provision for their spiritual, moral, social and cultural development is good. Care and welfare are satisfactory; checks on the suitability of staff are not always completed in advance of their appointment.  Parents and pupils are overwhelmingly positive about the school. Pupils are well prepared for life in their community."

I know of no moves to close the school and suspect that no school attendance orders have been issued to parents who choose to educate their children at such a school.

It is incumbent upon an LA in considering home education not to seek a greater excellence of education provision than would be expected of a school.  If parents are (evidently) able to discharge their responsibility to educate their children by sending them to such a school, they should be able to do so by adopting the same or similar methods themselves.  At Summerhill School, lessons are provided but it is optional for pupils to attend at them. At Steiner schools, children are not formally "taught" anything until the year their second teeth emerge, that is around the age of 7 (there is now a state funded Steiner school).  In many European countries a formal education does not start until that age in any event and they are adversely critical of the conventional British model.

No doubt some may disapprove of the model of education provided at such schools but that is a long way from saying that, in a democratic society, they should be closed or parents should be prevented from educating in accordance with their religious and philosophical convictions.  Home education provision is no different, if such schools are tolerated, so should home education even if LAs find it challenging.   

Pragmatically, an LA enforcing education in the criminal courts might find the existence of schools such as these difficult hurdle over which to scramble. If the current government ́s plans produce a proliferation of small schools, an LA might find itself in even greater difficulty.

If those difficulties are to be experienced in the final advent of a prosecution, it is incumbent on an LA to acknowledge this from the outset and not to seek a particular model of education delivered at an unrealistic standard.  The law assists them in this task. Section 437 Education Act 1996 is framed in the negative. It does not at the outset require, or even allow, the LA to seek evidence upon which it has to be satisfied that an education complies with s7 of the 1996 Act. 

An LA should resist any attempt to define the nature of the education that the LA appears to be looking for and to prescribe how it will find it.  EHEGLA is quite clear in setting out its guidance on the law, at paragraph 3.13

"Parents are required to provide an efficient, full-time education suitable to the age, ability and aptitude of the child. There is currently no legal definition of "full-time". Children normally attend school for between 22 and 25 hours a week for 38 weeks of the year, but this measurement of "contact time" is not relevant to elective home education where there is often almost continuous one-to-one contact and education may take place outside normal"school hours". The type of educational activity can be varied and flexible.  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.

However, local authorities should offer advice and support to parents on these matters if requested."

Before I deal with the operation of s437, it might be helpful to place that section in the context of the LA duties as a whole.  However, what needs to be said, at the outset, is that the duty to ensure that a child of compulsory school age is educated is placed firmly on parents by s7 and on no other person or body including the LA. LAs would be unwise to seek to extend their powers and responsibilities into this area. If they were to take for themselves such a fundamental duty, they must appreciate that by their active, and unnecessary, assumption of this parental role, they would open themselves to the possibility of actions in negligence where otherwise none would exist.

Section 436A Education Act 1998 imposes a duty on the LA to

"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) who are not receiving suitable education otherwise than at school".

"Suitable education" is defined in s436A(3) as

"an efficient full-time education suitable to age, ability, aptitude and any special educational needs the child might have"(in other words in the same terms as s7 of the 1996 Act).

Section 436A(2) requires the LA to have regard to guidance given by the Secretary of State. The current guidance is the `Revised statutory guidance for local authorities in England to identify children ́ (the `CME guidance ́) issued in January 2009.  Paragraph 87 of this guidance makes it clear that when, in exercise of arrangements put in place to locate such children, it is found that a child is home educated, the LA should proceed as set out in paragraphs 2.7 to 2.11 and 3.4 to 3.6 of EHEGLA. Paragraph 92 of the CME guidance also reminds the LA that EHEGLA makes it clear that there are a number of equally valid educational models.

It is worth pointing out that both the CME guidance and EHEGLA were issued by the same government which was promoting the Every Child Matters agenda.

I would also emphasise that the CME guidance is statutory guidance, departure from which requires the LA to have clear reasons for doing so (para 7 CME guidance). The statutory guidance states that the procedures, set out in the paragraphs of EHEGLA which are cited, are to be followed.

Paragraph 87 of the CME guidance (with the emphasis given by the DCSF) provides the following guidance :

"Section 436A of the Education Act 1996 requires local authorities to make arrangements to establish (so far as it is possible to do so) the identities of children who are not pupils at schools and who are not otherwise receiving suitable education. In order to comply with this duty local authorities need to make arrangements which will as far as possible enable them to determine whether any children who are not pupils at schools, such as those being educated at home, are receiving suitable education. In order to do this local authorities should make inquiries with parents educating children at home about the educational provision being made for them.  The procedures to be followed with respect to such investigations are set out in the EHE Guidelines,2.7-2.11 and 3.4-3.6."

The paragraphs of EHEGLA mentioned as incorporated into the statutory guidance are as follows:

"2.7 Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis. However, under Section 437(1) of the Education Act 1996, local authorities shall intervene if it appears that parents are not providing a suitable education. This section states that:

"If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education."

Section 437(2) of the Act provides that the period shall not be less than 15 days beginning with the day on which the notice is served.

2.8  Prior to serving a notice under section 437(1), local authorities are encouraged to address the situation informally.The most obvious course of action if the local authority has information that makes it appear that parents are not providing a suitable education, would be to ask parents for further information about the education they are providing. Such a request is not the same as a notice under section 437(1), and is not necessarily a precursor for formal procedures. Parents are under no duty to respond to such enquiries, but it would be sensible for them to do so.

2.9 Section 437(3) refers to the serving of school attendance orders:"If

(a) a parent on whom a notice has been served under subsection (1) fails to satisfy the local education authority, within the period specified in the notice, that the child is receiving suitable education, and

(b) in the opinion of the authority it is expedient that the child should attend school, the authority shall serve on the parent an order (referred to in this Act as a "school attendance order"), in such form as may be prescribed, requiring him to cause the child to become a registered pupil at a school named in the order."

2.10  A school attendance order should be served after all reasonable steps have been taken to try to resolve the situation. At any stage following the issue of the Order, parents may present evidence to the local authority that they are now providing an appropriate education and apply to have the Order revoked. If the local authority refuses to revoke the Order, parents can choose to refer the matter to the Secretary of State. If the local authority prosecutes the parents for not complying with the Order, then it will be for a court to decide whether or not the education being provided is suitable and efficient. The court can revoke the Order if it is satisfied that the parent is fulfilling his or her duty. It can also revoke the Order where it imposes an education supervision order. Detailed information about school attendance orders is contained in Ensuring Regular School Attendance paragraphs 6 to 16.4.

2.11 Where the authority imposes a time limit,every effort should be made to make sure that both the parents and the named senior officer with responsibility for elective home education in the local authority are available throughout this period. In particular the Department recommends that the time limit does not expire during or near to school holidays when there may be no appropriate point of contact for parents within the local authority."
and

 "3.4 Local authorities should acknowledge that learning takes place in a wide variety of environments and not only in the home. However, if it appears that a suitable education is not being provided, the local authority should seek to gather any relevant information that will assist them in reaching a properly informed judgement. This should include seeking from the parents any further information that they wish to provide which explains how they are providing a suitable education. Parents should be given the opportunity to address any specific concerns that the authority has. The child should also be given the opportunity, but not required,to attend any meeting that may be arranged or invited to express his or her views in some other way. Parents are under no duty to respond to such requests for information or a meeting, but it would be sensible for them to do so.

3.5 If it appears to a local authority that a child is not receiving a suitable education it may wish to contact the parents to discuss their ongoing home education provision.Contact should normally be made in writing to the parents to request further information. A written report should be made after such contact and copied to the parents stating whether the authority has any concerns about the education provision and specifying what these are, to give the child ́s parents an opportunity to address them. Where concerns about the suitability of the education being provided for the child have been identified, more frequent contact may be required while those concerns are being addressed. Where concerns merit frequent contact, the authority should discuss them with the child ́s parents, with a view to helping them provide a suitable education that meets the best interests of the child.

3.6  Some parents may welcome the opportunity to discuss the provision that they are making for the child ́s education during a home visit but parents are not legally required to give the local authority access to their home. They may choose to meet a local authority representative at a mutually convenient and neutral location instead, with or without the child being present, or choose not to meet at all. Where a parent elects not to allow access to their home or their child, this does not of itself constitute a ground for concern about the education provision being made. Where local authorities are not able to visit homes, they should, in the vast majority of cases, be able to discuss and evaluate the parents ́educational provision by alternative means. If they choose not to meet,parents may be asked to provide evidence that they are providing a suitable education. If a local authority asks parents for information they are under no duty to comply although it would be sensible for them to do so.  Parents might prefer, for example, to write a report,provide samples of work,have their educational provision endorsed by a third party (such as an independent home tutor) or provide evidence in some other appropriate form."

In paragraph 92 of the CME Guidance, EHEGLA is referred to again, thus:

"In order to discharge their duties in relation to children not receiving an education, local authorities should make inquiries with parents about whether their home educated children are receiving a suitable education.The Elective Home Education Guidelines for Local Authorities make clear that parents who home educate may take a number of equally valid approaches to educational provision for their children."

It is clear therefore that once a child has been identified who is home educated the CME Guidance requires that the LA proceed in the usual way using the procedures set out in the relevant sections which follow s437 Education Act 1996 and the guidance given in EHEGLA. 

Section 437 causes more difficulties than it needs to do. The approach of many LAs has the effect of confusing the duties and powers it gives them.

Section 437 provides (insofar as is relevant)

"(1) If it appears to a local authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education.

(2) That period shall not be less than 15 days beginning with the day on which the notice is served.

(3) If –

(a) a parent on whom a notice has been served under subsection (1) fails to satisfy the local authority, within the period specified in the notice, that the child is receiving suitable education,
and

(b) in the opinion of the authority it is expedient that the child should attend school,the authority shall serve on the parent an order (referred to in this Act as a "school attendance order"), in such form as may be prescribed, requiring him to cause the child to become a registered pupil at a school named in the order."

Section 437(1) establishes that the LA must consider the adequacy of educational provision in two distinct stages, the first of which is a pre-condition for the second to come into operation.

Stage 1 - If it appears to an LEA that a child is not receiving suitable education, then, but only then,

Stage 2 -the LEA shall, by written notice, require a parent to satisfy them that the child is receiving such education.

Logically and legally the 2 stages must involve different considerations in view of the wording Parliament has chosen to use.In stage 1 the word"appears" is used and the "test" is phrased negatively. In stage 2 the LA makes a direct requirement that the home educator "satisfy" the LA that a suitable education is being received.

If Parliament had intended from the outset that the LA had the duty to seek, and a home educator had the obligation to provide, evidence capable of satisfying the LA, then there would have been no need for the 2 separate stages.If the LA were to be empowered to require evidence capable of satisfying it from the outset, the first stage would be redundant.If it is to be given any meaning, as it must, it must be a form of sifting test which only places on the LA the duty, and more importantly only empowers it, to take a general look at the provision being made to see whether further enquiry is necessary.  It cannot authorise a requirement, when the LA first considers the educational provision, that the home educator produce evidence capable of satisfying the LA.

In effect the section establishes that not all parents should be required to satisfy the LA of the educational provision made, only those in respect of whom the LA considers "it appears" that a child "is not receiving suitable education". This is why I say stage 1 is a "sifting process" and only those to whom the LA can say there is an appearance of no suitable education will have any obligation to produce evidence and to have to satisfy their LA.

An analogy might assist.  If you look at a clock and it tells you roughly what you expect to be the time, you accept it even though you cannot be sure it is showing the right time, it has an appearance of not being wrong.  If however, it shows a time that surprises you, then you would open  up the back and have a closer look at the workings as it has an appearance of not keeping time correctly.

Thus it is not the right approach in law for the LA from the outset to write to parents requiring them to produce evidence capable of satisfying the LA that a suitable education is present.Indeed prosecutions in my experience founder because of such misconceptions.

As I have said, in my view, the first task of the LA in "assessing" any home ed provision is to find out from the parent what is their philosophy of education, what are their educational precepts and so to discover what their model of education is like. Provided that this is worthy of respect, it is this model and not the model of education that is preferred by the LA or its individual representatives that must be used in any"assessment".  An LA which does not carry this out risks difficulties in any future prosecution.

The LA has ample powers in the existing legislation to deal with deficient home education but equally the LA is not able nor should it immediately deploy those powers and from the outset write to a home educator demanding evidence capable of satisfying them.   EHEGLA makes it quite clear that the drastic step of issuing a school attendance order is a last resort. 

Paragraph 3.13 of EHEGLA (see above) accurately sets out that home educators do not have to follow the NC, nor do they have to `teach ́`subjects ́.  Unless they chose to do so. Unless home education is provided in that way, it cannot be useful to seek to assess it by reference to`subjects.  Again the use of such a word without first checking to see the model adopted by individual home educators indicates the imposition of a broad sweep approach in accordance with the LA ́s model of education. By doing so, the LA risks alienating home educators who are apt to conclude that the LA does not really understand home education at all.They might reasonably conclude that if that is the case, they risk that lack of understanding being visited upon them, were they to announce their presence to the LA. 

No additional requirements can be placed upon parents who home educate a child with a statement than are set out in s7. The LA has no power to insist upon termly targets nor to insist upon parents discussing them with an adviser.  There are no "special" provisions referable to parents of SEN children and again paragraph 3.13 EHEGLA, which applies equally to all home educators, spells out the law. It follows that it would be wrong to draw an adverse inference should a parent not be prepared to comply with the desire of the LA to involve them more than the parents would wish to be involved. Neither parents nor the child can be compelled to attend when statements are reviewed as is quite clearly reinforced in EHEGLA within para 3.20

"Where the statement is reviewed it should be made clear to parents that they are welcome to attend, but they are not obliged to do so."

In fact EHEGLA sets out quite concisely the position in para 3.19

"Parents need only provide an efficient, full-time education suitable to the age, ability and aptitude and to any special educational needs the child may have as defined in Section 7 of the Education Act 1996.  It is the authority ́s duty to arrange the provision specified in the statement, unless the child ́s parent has made suitable provision, for as long as a statement is maintained.In some cases a combination of provision by parents and LA may best meet the child ́s needs. Local authorities should consider, for example,providing access to additional resources or treatments where appropriate"

(that is, in accordance with s319 Education Act 1996).  Many LAs insist in their literature that "the LA must still maintain the statement". This may be the case but it is not invariably so.  Para 3.20 of EHEGLA states

"Even if the local authority is satisfied that parents are making suitable arrangements, it remains under a duty to maintain the statement and review it annually, following procedures set out in chapter 9 of the SEN Code of Practice. In some circumstances the child ́s special educational needs identified in the statement will have been related to the school setting and the child ́s needs may readily be met at home by the parents without LA supervision.  It may be appropriate, once it is established that a child ́s special needs are being met without any additional support from the LA, to consider ceasing to maintain the statement. This may be done at the annual review or at any other time."

Para 3.18 of EHEGLA has some important guidance on how the LA should approach the interpretation of the SEN Code of Practice within the context of home education

"Local authorities must have regard to the Special Educational Needs Code of Practice. Although this document primarily covers special educational needs in the school and early years ́ settings, it does give information about SEN in relation to home education (paragraphs 8.91 -8.96 of the Code). The Code of Practice emphasises the importance of local authorities and other providers working in partnership with parents. The Code of Practice is statutory guidance and schools, local authorities and others to whom it applies must have regard to it. This means that, apart from the references to the law, these bodies do not have to follow the Code to the letter but they must be able to justify any departure from its guidance.  The foreword states that the Code is designed to help these bodies to"make effective decisions but it does not -and could not -tell them what to do in each individual case".

The guidance then given may be helpful but it should be made clear that it is only advice. The difficulty in putting it in guidance without making that clear is that those who "assess" home education provision may treat the advice as setting down requirements for which they are permitted to look when carrying out any "assessment" when that is not the case at all.  Once more,however, the advice given tends to prescribe a particular model and approach which cannot be insisted upon (para 3.13 EHEGLA). 

Where a statement is maintained it is directed at the LA and not at the parent, indeed any statement which purports to place obligations on parents which they are not prepared to undertake is void.  It is the LA and not the parent who has to make the arrangements set out in the statement. Thus the parent cannot be criticised for failing to make the precise provision set in the special education provision part of the statement provided that they are complying with s7.  As the statement is directed to the LA, there is no reason why it cannot provide access to any special educational provision set out in the statement to enable the home educator to comply with their s7 duty,indeed s324(5) Education Act 1996 states that they must do so.

Suitable Education

Although I have mentioned this above it seems essential that I do so again so that attention is drawn to it.It is always said that there is no definition of the term, but "suitable education" is and has always been defined for the purposes of s437, s443 and now s436A.  It is defined thus:

"In this Chapter, "suitable education", in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have."

This definition was originally to be found in 437(8) Education Act 1996 but was removed from there to s436A(3) when that section was inserted in to the 1996 Act by s4 Education and Inspections Act 2006.  It seems to me the best definition of the term.Although I have referred to the provisions of s436A, I will repeat them as they appear in the section itself:

 "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.

(2) In exercising their functions under this section a local education authority must have regard to any guidance given from time to time by the Secretary of State.(3) In this Chapter, "suitable education", in relation to a child,means efficient full-time education suitable to his age,ability and aptitude and to any special educational needs he may have."The duty imposed by the statute is therefore to make arrangements to enable the LA to establish (so far as it is possible to do so) the identities of children in their area of compulsory school age but who are not registered pupils nor receiving suitable education otherwise than at a school.  Once it is discovered that a child is being home educated the statutory guidance requires that the LA adopt the procedures set out inEHEGLA, as I have demonstrated above. 


Safeguarding

Many LAs seem to believe that they have an active duty to discover if they need to take action to "safeguard" children.The primary people responsible for keeping children safe are their parents and carers not the LA.Often s175 Education Act 2002 is cited as a justification for "safe and well checks", it states:

"(1)  A local authority shall make arrangements for ensuring that their education functions are exercised with a view to safeguarding and promoting the welfare of children. 

[(2) and (3) are not relevant to an LA]

(4) An authority or body mentioned in any of subsections (1) to (3) shall, in considering what arrangements are required to be made by them under that subsection, have regard to any guidance given from time to time (in relation to England) by the Secretary of State or (in relation to Wales) by the National Assembly for Wales."

This is not a duty directly to safeguard. Nor does it add any new functions as EHEGLA points out (EHEGLA having been issued by the DCSF could be considered in England as guidance issued in the name of the Secretary of State).  Paragraph 2.12 of EHEGLA states:

"Section 175(1) does not extend local authorities ́ functions. It does not, for example, give local authorities powers to enter the homes of, or otherwise see, children for the purposes of monitoring the provision of elective home education."

EHEGLA paragraph 2.15 expands on the matter as follows,

"As outlined above, local authorities have general duties to make arrangements to safeguard and promote the welfare of children (section 175 Education Act 2002 in relation to their functions as a local authority and for other functions in sections 10 and 11 of the Children Act 2004). These powers allow local authorities to insist on seeing children in order to enquire about their welfare where there are grounds for concern (sections 17 and 47 of the Children Act 1989). However, such powers do not bestow on local authorities the ability to see and question children subject to elective home education in order to establish whether they are receiving a suitable education."

The correctness of this paragraph in EHEGLA is questionable.  I have already dealt with the ambit of s175 Education Act 2002.  Section 11 Children Act 2004 in effect extends s175 to all other LA functions (but again adds no new ones) and s10 of the 2004 Act imposes a duty to promote co-operation with partners with a view to improving the well-being of children generally.

Paragraph 2.15 confirms the position that the LA has no power to insist on seeing and questioning a child to establish whether they are receiving a suitable education.  It also emphasises that any power to see or question children on "welfare" or "safeguarding" grounds only exists "where there are grounds for concern".   Home education itself cannot be a ground for concern.  Parents have a right to home educate under s7 Education Act 1996.

The phrase in paragraph 2.15 "cause for concern" is also an incorrect precis of the ground upon which the LA can insist on seeing a child. Such a ground is more strictly prescribed in the only legislation which so empowers an LA. That requires there to be reasonable cause for believing or suspecting that the child is suffering or is likely to suffer significant harm. 

Despite the guidance given in paragraph 2.15 EHEGLA, there is no power to insist on seeing a child under s17 Children Act 1989 (provision of services for children in need, their families and others).

If an LA has reasonable cause to suspect that a child is suffering or likely to suffer significant harm it can commence an investigation under s47 Children Act 1989.   If in the course of this investigation, access to a child is required but refused, the LA can apply to a court for a child assessment order under s46 Children Act 1989 or for an emergency protection order under s44 of that Act. 

The court will grant the child assessment order it is satisfied that there is reasonable cause to suspect that the child is likely to suffer significant harm. It then becomes the duty of the person caring for the child to produce her as required by the LA.

The court will grant an emergency protection order if it is satisfied that there is reasonable cause to believe that the child is suffering or likely to suffer serious harm if not removed.

Additionally, a police constable who has reasonable cause to believe that a child would otherwise be liable to suffer significant harm may remove the child into police protection under s46 Children Act 1989. 

Monitoring

Paragraph 2.7 of EHEGLA is unequivocal in stating that

"Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis."

The paragraph then goes on to refer to the powers contained in s437 Education Act 1996.

A local authority which seeks information from parents already known to it and who have already supplied information about the education of their children must bear in mind all they know when considering educational provision.  An LA which has several years ́ information of parents who have been successfully home educating would find it difficult to conclude that there were any grounds upon which it might consider it appeared that no suitable education was being received.

© Ian Dowty 3 December 2010.  Local Authorities and Home Education (some extracted notes) by Ian Dowty is licensed under a Creative Commons Attribution-Non Commercial-No Derivs3.0 Unported Licence.

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Harrison & Harrison v. Stevenson on "Suitable Education"

Harrison and Harrison v Stevenson (1982) QB (DC) 729/81

From the Elective Home Education Guidelines 2006: 

"A clearer interpretation of the meaning of some terminology used in the 1944 Education Act (repealed by the 1996 Act), was gained in the case of Harrison & Harrison v Stephenson (appeal to Worcester Crown Court 1981). The term 'suitable education' was defined as one which enabled the children ‘to achieve their full potential’, and was such as ‘to prepare the children for life in modern civilised society’. The term 'efficient' was defined as achieving ‘that which it sets out to achieve’."From the Badman Review 2009:

Case law offers some insight: 

“...in our judgement “education” demands at least an element of supervision; merely to allow a child to follow its own devices in the hope that it will acquire knowledge by imitation, experiment or experience in its own way and in its own good time is neither systematic nor instructive…such a course would not be education but, at best, child-minding.”

See EO Website for further information.

How this is interpreted by LAs.

eg: Leicestershire LA Policy (2017):Case law (Harrison v. Stevenson) also states that a suitable education – for a child capable of learning such skills – should instil in them the ability to read, write and cope with arithmetical problems. In other words, an education that does not include English and Maths cannot be considered suitable.