Spot On

Just been trying to catch up with my reading and came across this from the Yorkshire Post. (Thanks Fiona N). It's spot on with regards to the Children's Database/(ISI).

A Home Office Database Expert Sends Child Porn

With this kind of story appearing in the news, I realise how grateful I am to ARCH for alerting us to the security dangers of the children's database and thankful that home educators have been making this point, along with shouting about all the other downsides of the database in response to the DfES consultation (closing today), on the subject of the Information implementation of the Information Sharing Index. Just hoping it can make a difference.

HT: B2Fxxx

To a Tory MP

Here's what I would say...

Dear Tory MP,

It seems to us that you have a problem. Your respective party leaders and their policies appear to have morphed into each other to the point where there is almost no discernible difference in the public mind. It seems you're not sure quite what to do since every time you have a bright idea, it gets co-opted by the other side. But for us out here it looks as if there is plenty you could be doing, and it isn't just home educators, everyone's at it - all that dinner party chat about how ticked off we all are of state intrusion. From home educators to anesthetists, small business owners to teachers, we are all fed up to the back teeth with government interference, control and yet more initiatives.

The good thing is that you could offer to alleviate a good part of this resentment, and in an area in which New Labour is so invested that they are highly unlikely to do a U-turn on their pet policy. What is more, the policy I'm talking about is a prime example of the intrusiveness of the Labour party, ie: the Every Child Matters agenda, Children's Act 2004.

Of course we all know that every child should matter, but we think they should matter by way of automatic duty and right solely to their parents/guardians. But this is not how the Labour would like to see it. In the Aims and Objectives section of the ECM, they state:

"The Government's aim is for every child, whatever their background or their circumstances, to have the support they need to:
*Be healthy
*Stay safe
*Enjoy and achieve
*Make a positive contribution "
*Achieve economic well-being

Well, how about this for a new idea? How about trusting parents to have a go at meeting these aims on their own? How about acknowledging that a government doesn't have to co-opt these aims when this is precisely what most families would want to achieve for their children anyhow? And how about intervening only when families really need it and forget about checking up on absolutely everyone in the attempt to seek out thousands more families who in all likelihood could really do without? Afterall, reports such as this one suggest that childrens' services are demonstrably failing to cope with the families they already know about, so goodness knows how they will cope when they have to deal with thousands of families who aren't in crisis but have just fallen under suspicion.

It rather looks as if yet again, the lovely warm glow that emanates from a New Labour initiative, this time the ECM, will reveal itself to be yet another chimera. Families in dire need will continue to suffer and may indeed find that their situation worsens, since social workers will be even more hard-pressed to sort out those who are at risk from those who could get by, and will be even more out of pocket for having to spread resources about so much more.

The instrument of this universal intrusion is the Information Sharing Index, a database intended to contain details of every child in the country. Whilst the ISI will carry only basic information, it is a short step from this to being able to access a full account of the private life of a child as would be contained in a Common Assessment Framework, a detailed investigation which may be undertaken by any number of professionals if a child is perceived not to be making the ECM's five targets. It is estimated that one in three children in the UK are likely to be failing to make these targets, so with the aim of carrying out a CAF on all these children, what we are talking about here is nothing other than the complete destruction of privacy and in all likelihood, the generation of a massive amount of unnecessary business as families try to fend off this intrusion. And let us not forget that the CAF will doubtless be inflicted upon families where there is simply insufficient information upon whether these children are meeting these targets, which will probably involve the unwarranted investigation of hundreds of home educating families.

And all for what purpose? The database will not solve the problem of what to do about children who are genuinely at risk. This is the real nitty-gritty problem for social workers. Children who are murdered by their parents are usually well known to social services. The problem is rarely one of invisibility but much more often that social workers cannot predict which child they know about will suffer in this way, a problem which the database distinctly doesn't solve. The database will instead suck up millions of pounds that could otherwise have been put to good use, in what will doubtless be yet another government IT fiasco.

On the matter of costs, (from ARCH):

" The government says that it will cost £224m to set up the IS Index, and another £41m per year to run it. This is a major database project and, so far, all of the government’s major IT projects have cost far more than was predicted. The £41m running costs appear very optimistic: this amounts to £270,000 per local authority. Bearing in mind the extra staff that will be needed, the training costs whenever a new practitioner is given access, the system maintenance and upgrade costs, it is difficult to see how it will only cost £41m per year. Will the additional costs have to be borne by local councils?"

In case you are wondering, it isn't just home educators and other parents who are fearful of the consequences of the database. The Independent Schools Council, "which represents almost 1,300 private schools, said the so-called Children's Index would fail to meet international standards for data security and details might be sold on to paedophiles".

And go here to see what social workers themselves are saying about it.

So there it is...the Tory Party could be the party that will make it clear that they will leave families alone if they do not need help. And how to do this?

Quoting ARCH again:

"The Government has drafted regulations that will allow them to set up a national database of all children – the Information Sharing (or ‘IS’) Index. It is seeking views on these draft regulations until December 14th 2006, and will then produce the final regulations to go before Parliament early in 2007.

MPs and Peers will have to pass a resolution to approve the regulations. If Parliament does approves them, work will begin on building the IS Index straight away. "

The Tories could vote AGAINST the implementation of the database. Home educators and plenty of the rest of the populace would understand why you did this!

The Parenting Problem

Anyone up for making sure Matthew Taylor, MP for Truro and St. Austell and Liberal Democrat spokesman on social inclusion, is up to speed on how home education helps with learning about parenting?

HT: Jax

Home Education Journal

I managed to get my mitts on the last copy of Mike's Home Education Journal a few weeks back, and as one would have guessed, it is well worth the sub, (not least for the picture of Hetty singing at HESFES on the cover). It is glossy, beautifully produced and packed with juicy articles.

New subscriptions can be arranged via his indispensable site here.

Fiona N Says It!

Thank goodness. Fiona N has just completely bailed me out here. We have the tummy bug, so it is a huge relief just be able to link to and reproduce her excellent summary on current legislative concerns for home educators.

From Fiona:

"The 2004 Children Act permitted the Secretary of State to request Local Authorities to set up an Information Sharing Index (aka ISI or "national database") containing details of over 10 million children in the UK. I really recommend that anyone who hasn’t yet done so has a look at the 2004 Children Act.

The purported justification for the "national database" was cases like that of Victoria Climbie where it was argued that if there had been more DATA then the frontline health and education workers would have realised that there was cause for concern because Victoria would have been flagged up as "Vulnerable".

A number of people flatly deny that this is the REAL reason for the Information Sharing Index, but it is undoubtedly the case that many Local Authority employees and possibly the general public believe that the ISI will be there to "help keep children safe" and that to oppose it is to "put children at risk".

Therefore anyone who WOULD oppose the ISI should be aware of this widely held point of view. And it is useful in this context to quote the Information Commissioner’s report :

"When you are looking for a needle in a haystack, is it necessary to keep building bigger haystacks" .

It is impossible to garner the views of all home educators or indeed all members of Education Otherwise on this or any other issue . In which regard I would like to adapt the excellent phrase I first came across in Jan Fortune Wood’s writing organising "the home education community" is like HERDING CATS . This is of course only RIGHT. We cannot be herded or told what to think or what to do. But I believe that there is the pressing need for some form of collective action with regard to the threats to our continuing freedom to home educate our children. Home education will continue to be legal, which is why MPs can always give us that bland reassurance, BUT it may morph into something that a lot of us would not RECOGNISE as "home education" if we are not vigilant.

The things to watch out for ( not an exhaustive list ; indeed I am expecting my inbox to be fire bombed because of glaring omissions ) are :
1/ Section 4 of the Education and Inspection Bill concerning Children Missing Education or CME. Education Otherwise just made a formal response to the DFES consultation about this.

2/ The new Pupil Registration Regulations SI 2006 No. 1751
This permits the possibility of a delay in deregistering a child from school. It also permits the possibility of a child being REGISTERED at a school by someone other than a parent or carer, so that in order not to take up a school place ( eg because you are home educating ) a parent will/may have to DEREGISTER thereby becoming KNOWN immediately to the LA by default.

3/ the Information Sharing Index. Where home education may be a flag for "concern" about "vulnerability" and where on the plane of Human Rights data about our children is available to half a million registered users plus an infinite number of tagalongs and hackers etc. Irrespective of a child’s place of education in school or at home, parents are angry and anxious about this "national database". Actually they AREN’T, BUT THEY SHOULD BE.

4/ Proposed changes to the monitoring of home education. This is what the DFES is calling "light touch changes" and a consultation is imminent. We do not yet have any details of the changes the DFES may have in mind , but we have to watch this one like a HAWK. Local Authorities appear to believe that the Children Act 2004 and the five outcomes of Every Child Matters therein impose additional pro-active duties on the LA to "promote" a more standardised form of wellbeing for all children in the area.. Local Authorities have therefore made representations to the DFES requesting additional FUNDING and POWERS with regard to monitoring ( sometimes called "supporting" ) home educated children.

We can overcome all these little local difficulties if we know what is really going on.

Fiona Nicholson"

State Education

So this is what we mean by debating skills now, is it? Whilst the Bitesize BBC seems to be tuned to the zeitgeist as far as the increasing legal repression of young people is concerned, this game seems to suggest that you don't learn to make the best case argument against unjust law. You just learn to wiggle round it.

What on earth is the matter with state sponsored educators?

HTARCH Blog

Home Education Legislation...What HEors Want

If home educators were to create the perfect legal situation for home education, integrating the Every Child Matters legislation, and with due weight given to child welfare concerns, how would that legislation look?

Generally speaking, in life in the round, the principle of proportionality seems to work well. It makes good sense. If someone takes your pencil, get over it. If a child bullies your child a couple of times, speak to them/their parents and see if the situation can be resolved. If the bullying carries on unchecked, walk away if you can, or insist that the bullies walk away. If someone looks to be about to knife you in a dark alley, run away if you get the chance, or if not, knock them out. All good sound consequences of adhering to the principle of proportionate action - a principle that is usually well represented in UK legislation. Yet it is precisely the principle of proportionality which is most at risk from the Every Child Matters agenda.

Every Child Matters should mean that every child matters to the parents/guardians; this because it is the parents/guardians who have made the choice to have children and have therefore implicitly accepted the duty to care for them, and because this is almost universally what a child would want. The problem with ECM is that the state increasingly infers by it's self-selected agenda, that every child automatically matters to the State.

I am not saying that children don't matter in society as a whole. What I am saying is that children should only, by way of automatic right and duty, matter to their parents/guardians. (Of course, parents/guardians, in observing their duties, will ensure that children can function in society as a whole. This is part of their legal remit as inscribed in the principle of parental responsibility for education, Ed Act 1996, Section 7, and in case law which demands that a child be educated to be fit for the society of which he is a member.)

But to the key point I am trying to make: many HEors firmly believe that the state only has a role in the care of a child when it is clear that the parent/guardians are failing the child in some way that cannot be rectified without state intervention.

It is the case that a substantial amount of legislation, as it is currently constructed, recognises this principle. For example, local authorities currently do not have an automatic duty to interfere in the workings of a home educating family where it appears that the education that is taking place is satisfactory. This is how it should be, since if it were not the case, the principle that the innocent can expect to be left alone would, to all intents and purposes, be abolished, and at great and useless expense to boot. What the law does say it that an LA may intervene when it appears that an education is not taking place, and they may make inquiries to establish whether on balance of probabilities that this is so. This is vitally different from requiring home educators on pain of being issued with a School Attendance Order to give open access to their homes.

Predictably it is sadly the case that local authorities do frequently try to abuse the legislation, making ultra vires requests and threatening home educators with SAOs if they refuse a home visit, but LAs must remember that should the case come to court, the court will only need to be satisfied that it would appear to a reasonable person on balance of probabilities that a satisfactory education is taking place, at which point the LA has no role.

We have to try to fight for this principle. We have to draw a proportionate line in the sand, since otherwise where will state intrusion stop? At what point should parents be trusted to look after their kids? Is it right, for example, that children should be abandoned to parental care during the summer holidays or would it be better if schooling families were to come to expect a weekly "safe and well" home visit from a social worker during this time? Perhaps the state should insist that everyone be policed checked before they have unprotected sex? Well, why not? With the Children's Information Sharing Index about to be rolled out for the whole population, the tools will be in place to keep close tabs on every child in the UK. Forget the reassurances that the Index will be just a slightly expanded telephone directory. Through it people will be able to link to things like the Common Assessment Questionnaire which could contain almost every conceivable detail of the private life of a child.

Is the database really a proportionate or indeed efficient response to the problem of undetected abuse of children? Do we really need to disrupt the private lives of many happily functioning families in the belief that there is no other way of unearthing abusive families? And as far as efficiency is concerned, as has been said elsewhere: when looking for a needle in a haystack, is it wise to increase the size of the haystack? The social workers I have spoken to say the problem of child abuse is not usually that social services don't know about abusive families. It is that they often don't know what to do about these families and/or don't have sufficient funds to do anything about the abuse. These problems aren't solved by the database.

So the situation is this: whilst many HEors are happy with education law as it is directly applies to home education and as it is stated, we are often unhappy with the way it is made manifest in LA guidelines and practice. We also get anxious about education law which is not aimed directly at home educators but which impacts upon our lives. By this we are referring to problems such as the ambiguities that spring from the Children Missing from Education legislation and from Truancy Patrol guidance. We are also anxious about the implications of the Children's Act 2004, since we believe that the Information Sharing Index and the related Common Assessment Frameworks will mean that many perfectly happily home educating families will be subjected to unwarranted and unwanted state scrutiny.

And now we start worrying all over again when we hear that LA are not happy with the way they are required to go about checking up on home educators. It would be far easier, they seem to imply, if they were just given legal rights to walk into our homes. Whilst this may make their lives in some ways easier, it won't necessarily solve any meaningful problems and certainly won't make the lives of many perfectly innocent families any better. I have spoken to quite a few HEing old hands recently. They all tell me that every single HE family of whom they were aware, who struggled badly was known to the authorities and their situation was being handled by local authority departments. So from our angle, it really looks as if there just isn't a need for LAs to be going around bashing down our doors in search of previously undetected and otherwise unmanageable abuse because it just isn't happening in the HE community. Yet there are thousands of families who are struggling terribly, who are known to the LA already, and are even requesting and often not getting the help they need. Sort these problems out first before you pester us for a nice cup of tea and a chat on a comfie sofa.

We really do want the state to pick up the pieces where families are in a real state but we don't want educrats distracting us from the business of getting on with educating our children. To this end, and in answer to my question in the first paragraph, home educators would wish for the law to remain as it has been over the last decade or so, and for this law to be routinely observed and widely and accurately published in places such as the DfES and LA websites.

Here, with thanks to the many people who worked on this, is an example of good, sound, effective legal practice:

ELECTIVE HOME EDUCATION LEGAL GUIDELINES

Index

Page

Education Law 1
Parental Responsibilities 2
Deregistration 3
Local Authority Duties 3
Diverse Approaches 5
Special Educational Needs 6
School Attendance Orders 9
Irregular School Attendance 10
Further Notes 11

Act numbers refer to The Education Act 1996 unless otherwise stated.

Education is compulsory - school attendance is not. The freedom to educate children at home forms an intrinsic and essential element of educational provision in our society, a right which has been protected by a succession of Education Acts. The law is clear that while education is compulsory, school attendance is not.

- - - - - - - - - - - - - - -

Page 1.

Education Law

The current legislation regulating education in England and Wales is the Education Act 1996 (a consolidating act which incorporates and repeals the 1944 Education Act and later legislation. Repealed law should no longer be referred to).

The only sections relevant to elective home education are: (emphasis added)

Parental Duties:

Section 7 "The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable;

a) to his age, ability, and aptitude, and b) to any special educational needs he may have,

either by regular attendance at school or otherwise."

Local Authority Duties:

The LA's duties and powers in relation to home-educated children are contained in the Education Act 1996. These are fully set out in sections 437 to 443 of the 1996 Act and (except in relation to special educational needs) are limited to the provisions of those sections.

437. - (1) 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.

- - - - - - - - - - - - - - - - - - -

Page 2.

Parental Responsibilities

Under section 576 of the Education Act 1996, a parent is defined in relation to a child or young person as also including any individual:

(a) who is not a parent of his but who has parental responsibility for him, or(b) who has care of him.

As parents are responsible for ensuring that their children are properly educated, it is their decision whether to use schools or provide education at home.

It is important to note that the duty to secure education is stated entirely in section 7 and nowhere else.

Provided the child is not a registered pupil at a school, the parent is bound by no other constraints. In particular, there is no obligation

to seek permission to educate 'otherwise';

to take the initiative in informing the LEA;

to have regular contact with the LEA;

to meet with the LA;

to have premises equipped to any particular standard;

to have any specific qualifications;

to cover the same syllabus as any school;

to adopt the National Curriculum;

to make detailed plans in advance;

to observe school hours, days or terms;

to have a fixed timetable;

to give formal lessons;

to produce examples of ‘work’ for inspection;

to reproduce school type peer group socialisation;

to match school, age-specific standards.

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Page 3.

De-registration

The grounds on which a pupil's name must be deleted from the admission register are listed in Education (Pupil Registration) Regulations (England) 2006. See here.

Under regulation 8 (a) a 'school-age' pupil's name is to be deleted from the admission register
when the school has been notified in writing that arrangements have been made for the child to receive efficient full-time education suitable to his age, ability and aptitude otherwise than at school;

If the parent writes to the proprietor explaining that the child is being educated at home, the school is obliged to take the child's name off the register, and the duty to secure regular attendance thus comes to an end. Since 1995 this has been an absolute legal requirement: no discretion is involved. Under regulation 12 (3), Pupil Registration Regulations, 2006, the proprietor shall make a return to the local authority for every such pupil giving the full name of the pupil, the address of any parent with whom the pupil normally resides and the ground upon which their name is to be deleted from the admission register as soon as the ground for deletion is met in relation to that pupil, (ie: upon the receipt of the letter informing the school of the de-registration.

There is a phrase appended to this regulation which may lead to some confusion for proprietors, namely that the proprietor must inform the LA of the deletion from the register no later than deleting the pupil's name from the register. This may be interpreted by schools as meaning that a delay in deregistration may be introduced by the schools whilst the LA is informed of the deregistration. We have been reassured that this is not the intended purpose of the appended phrase and that de-registration in law remains immediate upon the school's receipt of parental notification of the de-registration. (Please see qualifcation below*)

In this way the legal position of a parent embarking on home-based education is the same regardless of whether or not the child has been withdrawn from a school for this purpose. i.e., the LA is entitled to make informal enquiries of the parent(s).

*LA consent is required for the name of a child registered as a pupil at a ‘special school’ – ‘under arrangements made by the LA’, to be deleted from the schools’ admission register. (Regulation 9(2) Education (Pupil Registration) Regulations, 1995 [SI 1995/2089]).

The Regulations do not specify who should seek that consent. Reasonably, such a request can be made by either the child’s parent, the proprietor of the school, or both, in cases where it is the parental choice to home educate. If the school has stated that it will, itself, seek LA consent for the child’s name to be deleted from the admission register, for example where the parent has informed it that they have chosen to home educate, it is advisable that the parent also seeks such consent themselves.

LAs should not discriminate against parental choice to home educate their child by refusing such consent on the grounds that the child has SEN for whom it maintains a statement. If the authority does refuse to agree to such consent, the direction of the Secretary of State can be sought.


Local Authority Duties (cont'd)

The wording of the Education Act 1996 requires the LA to act only if something comes to its attention which gives it reason to suppose a breach of a parent's section 7 duty. It does not need to investigate any instances of home education which come to its attention unaccompanied by any grounds for suspicion that an adequate education is not taking place.However, case law (Phillips v Brown, Divisional Court [20 June 1980, unreported] Judicial review by Lord Justice Donaldson, as he then was) has established that an LA may make informal enquiries of parents. Lord Donaldson said:

"Of course such a request is not the same as a notice under s 37 (1) of the Education Act 1944 (now s 437 (1) of the 1996 Education Act) and the parents will be under no duty to comply. However it would be sensible for them to do so. If parents give no information or adopt the course ………. of merely stating that they are discharging their duty without giving any details of how they are doing so, the LA will have to consider and decide whether it ‘appears’ to it that the parents are in breach of s 36. (now s7 of the 1996 Education Act.)"

Determining ‘Suitable Education’

LAs should bear in mind when considering the replies to such informal enquiries (and other more formal ones, should the matter go that far) that parents taken to court for failing to comply with a School Attendance Order only have to show the court that they are providing a suitable education on a balance of probabilities. That is the test that LAs must also apply. Also a court will receive any evidence a parent produces, it will not have to be in any specified form and it will be sufficient so long as it shows that a suitable education is being given. Similarly an LA has no power to require that information be given to it in a specified form or way.

The DfES acknowledge this on their web site:http://www.dfes.gov.uk/schoolattendance/faq/

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Page 4.

(LA Duties, con'd)

LAs have no automatic right of access to parents' home. Parents may wish to offer an alternative way of demonstrating that they are providing suitable education, for example through showing examples of work and agreeing to a meeting at another venue.

Another “example” might be information provided in written form, sufficiently comprehensive to establish competence and intention, and beyond the bare assertion that education is taking place which Lord Donaldson determined was inadequate.

Many parents are quite concerned not to have their child’s privacy invaded out of respect for the child’s autonomy, and any hint of testing or examination by strangers with a different agenda can be experienced as undermining. Therefore for reasons of educational approach, some parents may not wish to provide information to their LA through home visits. Insistence or assumption of a home visit by the LA is a breach of Article 8 of the ECHR (the right to privacy and respect for family life.)

It would be helpful if LAs carry out their duty to accept information provided in any reasonable and adequate form, by not making a prior assumption of the normalcy of any particular form this might take, but on first approach to present the parents with the free choice the law supports. In the case of R v Surrey Quarter Sessions Appeals Committee, ex parte Tweedie (1963), Lord Parker held that: '.....an education authority should not, as a matter of policy, insist on inspection in the home as the only method of satisfying themselves that the children were receiving full time education.'

There is no legal requirement for the LA to make continual enquiries. Once in receipt of a reasonable account of the educational provision, their legal obligation is fulfilled and no further contact is necessary. However, some parents may appreciate continuous help, support and contact and under these circumstances further contact can be arranged. Some LAs arrange 'drop-in' centres where families can maintain contact.

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Page 5.

Diverse Approaches to Home Education

The principle of parental choice is paramount. Families are entitled to choose what they feel to be the most suitable educational approach.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 2 of protocol No 1 states:

"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."

One system cannot be expected to cater for the needs and interests of all individuals, (many fail to thrive or reach their full potential whilst receiving formal instruction in a school environment). A variety of alternatives in education is therefore important and the law protects this diversity.

A clearer interpretation 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’.

Clearly this definition covers a great variety of educational approaches.

There is no one 'correct' educational system. All children learn in different ways and at varying rates, and chronological age has little bearing on the process. It would be wholly inappropriate for example to seek to impose ‘reading and numeracy age’ scales on home educated children, not subject to the specific educational methods in state schools. Individual children come to literacy and numeracy over a huge age range, which has no subsequent bearing on their competence in these areas as adults. It is vital that parents and children choose a type of education which is right for them, and it is important that any LA officers understand and are supportive of many differing approaches or "ways of educating" which are all feasible and legally valid.

Education Act 1996, Part V (incorporating Education Reform Act 1988).

This deals with the National Curriculum, stating in ss 351 to 353 (replacing ss1&2) that it only applies to children who are registered pupils of maintained (i.e. State or State-supported) schools. Home educators may choose whether to base their studies around these guidelines fully, partially, or not at all.

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Page 6

Elective Home Education of Children with Special Educational Needs

The right of parents to choose to home educate their children with special educational needs is upheld by section 7 of the Education Act 1996 and applies regardless of whether a statement is maintained by the LA for the child or not.

'The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable: -

(a) to his age, ability, and aptitude and (b) to any special educational needs he may have

either by regular attendance at school or otherwise

Identification and Assessment of Children with Special Educational Needs

It is important that LAs recognise that a child with a disability will not automatically have special educational needs (SEN). The definition of a person with a disability under the Disability Discrimination Act 1995 is not the same as the definition of those children who have special educational needs under the Education Act 1996.

Children with SEN are defined as those having “a learning difficulty.. (the definition of which includes a disability) ..which calls for special educational provision to be made for him.” Special educational provision is itself defined as provision which is additional or different to that made available for children of the same age in ordinary schools in their area. (section 312).

Accordingly, it is possible for a child to be disabled under the DDA and not have SEN (and vice versa). Equally, it is possible for a child to be both disabled and have SEN (and, of course, be neither).

Under sections 321 (2) and 323 (2), LAs have a duty to identify and formally assess only those children for whom they are responsible, where

(a) he has special educational needs, and(b) it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.

It is therefore not necessary for LAs to identify and formally assess electively home educated children of compulsory school age that have, or probably have, SEN, where the child’s parents and the LA are satisfied that those needs can be suitably met by the parents ‘otherwise than at school’. Conversely, it is necessary for LAs to identify and formally assess children of compulsory school age that are electively home educated in the following instances:

· the child has, or probably has, SEN, the child is to become a registered pupil at a school and it is considered unlikely that the child’s needs can be met within the schools own resources (e.g. at School Action Plus).

· the child has, or probably has, SEN, the parents’ no longer wish to fulfil their section 7 responsibilities by electively home educating and the LA is of the opinion that it is necessary for it to determine the special educational provision which any learning difficulty calls for.

LAs shall make and maintain a statement only for those children for whom it is necessary that the LA, as opposed to the parent, determines the special educational provision necessary.

Section 324:“(1) If, in the light of an assessment under section 323 of any child’s educational needs and of any representations made by the child’s parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty calls for, the authority shall make and maintain a statement of his special educational needs.”

The statutory procedures for formal assessment and making and maintaining a statement are contained in Part IV and Schedules 26 and 27 of the Education Act 1996 (as amended by the Special Educational Needs and Disability Act 2001) and The Education (Special Educational Needs) (England) (Consolidation) Regulations 2001

Children that become electively home educated for whom statements are maintained

Parents need to seek permission to home educate a child for whom a statement is maintained only where a School Attendance Order is in force. Otherwise, the fundamental parental right to choose to home educate a child with special educational needs is in no way undermined.

Section 324 (5) of the Education Act 1996 places a statutory duty upon LAs to arrange the provision specified in a statement it maintains only if parents are not themselves making suitable arrangements.

Section 324:“(5) Where a local education authority maintain a statement under this section, then

unless the child’s parent has made suitable arrangements, the authority – shall arrange that the special educational provision specified in the statement is made for the child……”

Where parents that are electively home educating their child for whom the LA maintains a statement of SEN are fulfilling their responsibility under section 7 of the Act, they are indeed making ‘suitable arrangements’.

Nowhere in the legislation is there a duty placed upon parents to arrange the provision specified in the statement maintained by the LA for their child. LAs cannot conclude that a parent is failing to cause their child to receive suitable education on grounds that the parent is not arranging the special educational provision specified in the statement. Parental responsibilities are defined entirely in section 7 and nowhere else. LAs must accept that electively home educating parents may choose alternative special educational provision or an alternative approach to meeting their child’s SEN than that which is specified in the statement.

Parental rights and duties are not affected where a Special Educational Needs and Disability Tribunal (SENDIST) Order has been made regarding the content of the statement. Accordingly, a parent is not required to register their child as a pupil at the school named at Part 4 of the statement, nor to arrange the special educational provision specified at Part 3, where the contents of these Parts of the statement are decided by the Tribunal upon conclusion of an appeal.

LA’s are absolved of their duty to arrange the special educational provision specified in the statement it maintains where the child is electively home educated. This does not prevent a LA from offering to arrange some, or all, of the special educational provision specified at Part 3 of the statement, although parents are free to decline such an offer. If the LA and the child’s parent are agreeable to the suitability of LA arranged provision for meeting the child’s special educational needs otherwise than at a school, section 319 provides that such provision be specified in the statement and duly arranged.

An LA cannot insist that a child for whom it maintains a statement or a child with SEN for whom no statement is maintained be assessed by an educational psychologist, specialist teacher or similar in order to establish that the parents are fulfilling their section 7 responsibilities. LAs can only expect a child to be presented for an assessment ‘examination’ when a statutory assessment under section 323 is underway.

LAs retain the duty to review a statement maintained for a child that is electively home educated at least every 12 months, as required by section 328 (5) of the Education Act 1996. Regulation 22 of The Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 prescribes the statutory procedures of such reviews and the matters which must be considered.

Once a LA is satisfied that a child’s special educational needs are being suitably met through elective home education and that parents are established in and committed to providing long term home educational provision, consideration to ceasing to maintain the statement should be made. An appropriate opportunity for such consideration would be when the statement is reviewed, although such consideration can be made at any other time. LAs concerned that this may not be an appropriate course should recognise that statements should only ever be maintained “…where it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for…” (from section 324 (1)).

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School Attendance Orders

Education Act 1996 s 437-443, (previously s 192-198 1993 Act)This begins:

"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...."

The formal steps provided for in these sections should not be needed unless something has gone seriously wrong. Nevertheless they are summarised here for reference:

1. If the LEA has evidence that there appears to be no suitable educational provision, the LEA must serve the parents with a notice giving them at least 15 days to satisfy them that their child is in receipt of suitable education. The DfES at <http://www.dfes.gov.uk/schoolattendance/uploads/GUIDANCE%2019-06-03.pdf > has issued LEA guidance on this procedure which states that when

“informing them of the LEAs intention to serve a SAO. The LEA should inform the parent of schools that are suitable for the child to attend and should also inform the parent that they have the right to educate their child at home if they choose to.”

2. If the parents fail to satisfy the LEA, it then has to consider whether it is expedient for the child to go to school. If they think it is they must serve a 'school attendance order', but before doing so they must serve a notice stating which school they intend to name in the order, and giving the parents a chance to choose an alternative. If a statement is maintained for the child, the LEA must name the school specified in Part 4 and is not required to serve a notice which allows parents to choose an alternative school. However, if no school is named in Part 4 or if the school named is determined by the LEA to be unsuitable, an amendment must be made in accordance with paragraph 10 of Schedule 27 of the Education Act 1996. Accordingly, parents will have the right to make representations against the contents of the statement, express a preference for the name of a maintained school or make representations for another placement and to appeal to the SENDIST, if necessary. Similarly, if the parents request a change of named school, the LEA must comply with that request in accordance with paragraph 8 of Schedule 27 and parents will be able to exercise their right of appeal to the SENDIST if the LEA determines not to comply. The LEA should not issue the school attendance order until the time limit for lodging an appeal has lapsed.

3. The LEA serve a school attendance order requiring the parents to register the child as a pupil at the school named in it.

4. The parents can ask the LEA to revoke the order because they are educating 'otherwise'.

5. The LEA can prosecute the parents for not complying with the order, but the action will fail if the parents can show the court that they are educating 'otherwise'.

The evidence a court requires to satisfy it that adequate education is taking place, is such as would convince ‘a reasonable person’, ‘on the balance of probabilities’. (Under section 447, whether they prosecute or not, the LEA must also consider applying for an education supervision order.)

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Irregular or Non-attendance at School

Education Act 1996 s 444, (previously s 199 of 1993 Act derived from s 39 1944 Act)

This deals with the non-attendance, or irregular attendance at school, of registered pupils. If poor/non attendance is due to severe school anxieties, usually the Educational Welfare department becomes involved and the family should be informed of all their duties, rights and available options including education at home.

Many LAs, when confronted with the problems of School Phobia/Anxieties, School Refusal/Truanting, encourage families to contact one of the home education support groups for help and advice. This provides a useful alternative course of action for officials, because if endeavours are made to pressure children with the above problems back into schools under duress, the whole family (as well as the child) suffers the ensuing stress and the truanting and nervous illnesses inevitably continue. Education at home may prevent further distress and the possibility of the child returning to school at a later date remains an option.

Flexi-time or Part-time schooling

There may be families who would prefer a flexi-time schooling approach.

Under s444(3)(a) of the 1996 Education Act

Any ‘school age’ child who goes to school at all must attend regularly, but absence ‘with leave’ does not count as irregular attendance. During such absences the child is officially at school, but is effectively being educated off site. (S)he is therefore covered for insurance and attracts full funding. Such arrangements are at the discretion of the school. (s 444 (9))Further Notes

Truancy Patrols

It has unfortunately become necessary in this revision to draw attention to the Home Office guidance: ‘GUIDANCE DOCUMENT POWER FOR THE POLICE TO REMOVE TRUANTS’, as the widespread experience of home educators around the country has revealed that many police officers and accompanying EWOs have not been properly briefed on the safeguards it contains, specifically to protect the civil liberties of home educated children.

Section 4.21 of this guidance states:

"Local procedures should take account of possible contact with such home-educated children and it should be emphasised that they are not the target group for the new power. The power can only be exercised in relation to registered pupils of compulsory school age absent from school without authority; it does not apply to children who are lawfully educated at home. No further action should be taken where children indicate that they are home-educated - unless the constable has reason to doubt that this is the case."

Some police officers and EWOs have used the opportunity these actions provide to insist on names and addresses being given, and refusal as a reason for doubt. There is no compulsory registration of home educators, therefore to so insist against the clear direction contained in the Home Office guidance is an abuse, and an avoidable source of friction and resentment where it occurs. Home educators and their children have been advised that legally, once they have stated that they are home educators, that as they commit no offence, they are entitled to go on their way without further question, and that any further detention is unlawful.


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Further Notes

Resources for home educators

It would be appreciated, at first LEA contact, and in any written LEA guidance that the following web site be listed: www.home-education.org.uk This web site is independent of any one organisation or educational philosophy, and is the home of the UK Home Education web ring, linking with many other sites created as self help resources by and for home educators. All the home education organisations can be found through this one site. The information, help and mutual support available is an unrivalled resource of immense value to many.

This document is the work of a large number of home educators including, but not exclusively, members of ‘Education Otherwise’ and ‘Choice in Education’. It was edited, and has been further revised in March 2003 by Neil Taylor. It is online at www.home-education.org.uk/legal-guide.htm or http://www.choiceineducation.org.uk/

My special thanks for this revision to SpEArHead (Special Education At Home) for providing the SEN section of this document.

Free copying and distribution of this document, unaltered and in its entirety is encouraged. Authenticity of the original can be verified by the editor contacted through the above web site.

Paper copies in A4 sheet (for easy photocopying), or A5 booklet form are available from 'Choice in Education', an independent publication for Home Educators, PO Box 20284, London, NW1 3WY £1.00 to cover printing, post and packing costs.

The Fabric of Home Education

The New Scientist has redeemed itself in my eyes this week, since it has just published a typically lucid and hugely meaningful short interview with quantum physicist David Deutsch.

The reason why I was bearing a grudge: about a month ago, the NS published what seemed to me to be a rather biased account of home-schooling in the US, which generally left one with the overall impression that the huge majority of home schoolers there are fundy creationists.

By way of a sharp contrast, David Deutsch's theories on respectful parenting of children often result in the family opting for home education and very few of these families aren't also mindful of the need to take reality seriously. Shame the New Scientist didn't get this message across explicitly, though there is a facility to ask a question of David, via: interview-question@newcientist.com , with answers to the best questions to appear here. Might be worth trying to get this point across? Home educators can access the very best seeming epistemology!

Consultation on Definition of Full-Time

Good grief...if ever there was need for a definition of full-time, you could successfully go by the hours it takes to keep up with DfES-initiated Consultation Processes.

So yes, you guessed it...there is yet another consultation up at the DfES, this time looking at defining the notion of "full time education". The nominal intention behind this one is to bring small educational institutions which take children in on a more casual basis back into the grasp of OFSTED. So yes, some home educators could be affected in that quite a few of us have looked to leave our children in informal school-type settings, though experience with such ideas round this way suggests that these ideas fizzle out quickly at the prospect of government intrusion.

Whilst it doesn't look as if the primary purpose of the consultation is to take home educators to task for not obviously schooling their kids for a set number of hours, I sure think we should keep an eye on this in order to ensure that it doesn't sneak by us.

Why We Should Worry about Gov't Funding for Home Education

It may well be instructive to consider the Bedfordshire scheme (of local authority funding for Home Educators) in the light of a Californian homeschooler's perspective.

Learning Styles

I can't help finding myself very curious about learning styles, not least because I suspect that there are broad styles of approach to acquiring information but also that it is far more mutable than is suggested with tests such as this one for left-right predominence. (If Tickle won't load, try this quick Blogthings one...it gave me the pretty much the same answer. Thanks Rosie).

The reason for my belief that these things are subject to change? I am quite sure I started out as a right-brained learner, (as befitting the description here) but have ended up a predominently left-brained thinker.

Why would this be? Could change be dictated genetically? The reason I doubt it is that I can construct a seemingly very feasible story as to the environmental reasons for my different learning styles.

From the beginning as an infant, I was left in the company of strangers and dumped out in the pram at the bottom of the garden. I think this left me with the need to devote most of my mind to reading people's faces and trying to understand what they were thinking in order, as the infant mind perceives it, to ensure my survival. I continued to do this for most of my school years. It left me with almost no ability to manage an equation but with an enormous aptitude for playing "Call my Bluff" and with the terrible side effect of wasting an enormous amount of processing power storing into memory an impressive number faces of people I was unlikely ever to even speak to.

The change occured quite suddenly and at the exactly same time as learning about critical rationalism, after which algebra became much more fun. I now don't remember faces with the same ease and feel I am losing my intuition as to people's emotions. I registered as left-brained on the above test.

Does any of this register with anyone else?

HT: Throwing Marshmallows

Unschooling Voices

There's a veritable feast of interesting projects and activities as undertaken and described by US home educating families at Unschooling Voices No 6. Am off to enjoy.

Children Missing From Education Consultation

The sterling work on the part of EO by way of a response to the DfES consultation (now finished) on Children Missing from Education can be found here. Let's hope the DfES listen!

OK, so that's one of the three consultations out the way. Now we have the current one on The Children's Database and the prospective one on light touch changes to the way HEors are monitored to worry about.

Education and Skills Select Committee

The goings-on in the Education and Skills Select Committee, as chaired by Barry Sheerman, (thanks Dottyspots), can be found here.

It seems that the Committee could be the way to go, since it is clear that educating every single local authority over and over again in order to get them to straighten out their Home Education guidance and practice is a Sisyphean task. Better perhaps to aim to get nationwide guidance sorted, so that we don't continue to be bundled into police cars by truancy sweeps, don't feel compelled to keep our children indoors all day, don't find our requests to de-register our children from school impeded, don't feel continuously anxious when we offer an alternative form of education to our children, and don't have to put up with threats of School Attendance Orders when we perfectly legally refuse to let local authority officials into our homes.

Some more understanding about the needs of Home Educators on the part of Committee members could potentially reduce some of these problems and could also help mitigate any negative and biased outcomes from the forthcoming DfES consultation on light touch changes to the monitoring of Home Education. There are moves afoot for the evidence of home educators to be heard in this arena.

Gloucestershire Local Authority Website

This strikes me as an interesting conundrum. Most home educators in the area, (even those who are completely autonomous), report having very few significant problems with the LA, yet the Gloucestershire website is riddled with requirements that are essentially ultra vires and which, amongst other glaring errors, gives a misleading impression of the necessity for home visits.

What to do, I wonder? Any suggestions welcome.

MP says HE Good for Younger Children

Barry Sheerman, MP for Huddersfield and head of the Education and Skills Select Committee (thanks Arch), in suggesting that children shouldn't have to go to school until they are seven, is bucking the trend to get ever younger children into school. All he needs to do now is to tell the world that education at home works for older children as well.

Home Educators Unanimous

...in providing clarification for Jim Knight (Minister of State for Schools) on the matter of what the "Every Child Matters" agenda should rightfully mean for Home Educators.

Go there Fiona, Elaine, Techla, Glynis, Cat, Cynthia, Susanna, Paula and Annette!

Exposing Ultra Vires Practice, Part 1

Named and shamed in what will sadly probably be an on-going thread henceforth:

HARINGEY COUNCIL Children's Service.

How's this, on page 5, for ultra vires practice!

" Removal of the Child's Name from a School Roll

17. It is required that, if a child has been registered at a school, the child must remain on the school roll until the EWO for Home Education confirms with the school, the receipt of the Home Education Referral Form and copy of the written notification of intent from the parents.

18. However, in addition to the above minimum requirement, Haringey has adopted a procedure to enhance the protection of the child and recommends that the child remains on the roll of the school until the initial assessment visit has been made and is deemed satisfactory.

19. The off-roll procedure will then be backdated to the date that the parents/carers informed the school of their intention to home educate.

20. This enhanced procedure has been adopted to protect the pupil from losing their place at school in circumstances where parents/carers reverse their decision to home educate very quickly or where there are concerns regarding the safety of the child or the suitability of the education to be provided.

21. However, where parents explicitly request immediate removal from the school roll, the Local Authority will advise schools to do this in accordance with the parents'/carers' wishes and an immediate home visit by the Education Welfare Officer and SIO will be made."

Cough, splutter...ergh you wa? Look, Ms Shoesmith, director of Haringey Children's Services, de-registration is immediate upon receipt of the letter by the school, and in the case that there are no special needs or an SAO, the de-registration is unconditional in all cases, not simply when someone opts in for it.

There is no point trying to hedge the fact that you clearly want to have the right to decide who should and who shouldn't home educate. Why otherwise would there be such urgency surrounding the first EWO visit to a family who opts in for their statutory legal rights, if it is not to vet them? It is hard to imagine what other possible reason there could be for such haste. You can't honestly believe that children are at such enormous risk from their parents, since how could you otherwise bear to do as you do every day and send them home for the night, or heaven forbid for a whole weekend or summer holiday.

It appears, by your actions, that you are in effect taking upon yourselves the responsibility to decide the form of education for children. I am pretty sure that in this situation, you would find that there will plenty of interested families who will seek redress for any failures in schooling provision in Haringey.

And by way of a footnote, Alan Johnson, the Ed Sec and Dave Fletcher/Elaine Haste of the DfES will be told that their reassurances that this sort of thing would not happen are, in your case at least, meaningless.

UPDATE: Surprise, surprise...seems we cannot hold old names accountable for reassurances they gave previously. We should now write to Arun.Arul@dfes.gsi.gov.uk explaining that these reassurances counted for nothing. Template letter to follow.

Unschooling in the New York Times

I don't have too many quibbles with this article about unschooling in the NY Times, though a correction to the concluding statement wouldn't go amiss:

"But it can be tough,” said Mr. Kowalke, a magazine writer who is married to a woman who was also unschooled....“It’s always harder to forge your own path without someone telling you what to do.”

Who says an unschooled child can't be helped to find their own path? Whilst we aren't in the business of forcing children to spend a lifetime doing something they don't want to do, we are also certainly also not in the business of abandoning them when they need help and advice.

HT: Joanne