Filling in the Call for Evidence isn't a comfortable experience at the best of times. Answering 44 questions takes a lot of sitting down for starters, but that really isn't the worst of it. Although home educators have thrashed out cogent answers to the consultation and have formulated template responses to it, every now and again a new outrage which had previously remained buried in the small print of the draft guidance leaps out at a home educator and grabs them in a lethal mix of terror and outrage that leaves them (at least in their heads), running round their neighbourhoods with sandwich boards and for real, gulping down cups of coffee in fits of nervous exhaustion as they try to explain the barbarity of these oh-so-reasonable seeming proposals in their consultation responses. It's seriously hard and totally unpaid work.
Here's my sandwich board moment from this morning. Filling out question 34 on section 6 of the Draft Guidance for LAs, I reread the following:
"6.19 The department is aware that some local authorities have been reluctant to prosecute for non-compliance with a school attendance order, for reasons connected with costs, and the behaviour of some parents who deliberately withhold information about home education provision but are then able to easily satisfy the court that the home education is suitable. This is an understandable concern, but local authorities must bear in mind their public responsibilities as prosecutors; in such cases they may wish to seek legal advice about the prospect of obtaining a costs order against a successful defendant on the basis that the prosecution would have been unnecessary if not for the defendants’ unreasonable conduct."
On previous readings, I had had an uncomfortable feeling about the idea that home educators should bear the costs of an action brought by the LA irrespective of the outcome, but only on about the twentieth perusal of the paragraph, did it finally dawn on me that this is an outrageously controlling and iniquitous suggestion that has qualities of the popular version of witch dunking about it, ie: that either you are proved innocent (win), in which case you drown (bear the costs of the court case), or you turn out to be a witch (lose) and are burned at the stake (forced to return a child to school AND pay the costs). Either way, better not appear witch-like (difficult) in any way, shape or form.
You may be thinking that it probably isn't this bad - that LAs would only insist on parents paying court costs when families had been very intransigent, but that is to ignore the fact that LAs already routinely practice that clever twisting of reports about HE families in order to say, or at least imply, pretty much whatever they like. That little nudge here or there could so easily suggest that a family are being wilfully obstructive and should bear the costs, irrespective of the outcome.
By way of but one recent example: a successfully HEing family didn't particularly take to the the Victorian anthroplogist of an ex headmaster who came to assess their provision, who regarded the children as if they were some sort of different species that was barely human, inter alia reporting their extremely well balanced, clearly very happy children as "Children A, B and C are happy enough". So the HEing mum rang the LA to say that she didn't mind having visits, but could someone else possibly visit them instead. This was reported as "The mother has refused visits". That alone could cost them dearly.
And that's all quite aside from the very real possibility that home educators may have utterly genuine reasons to prefer their educational provision be judged in the courts. They may know, for example, that the LA does not support different pedagogies and may therefore think that their best hope is to describe their provision to the court, but given the fact that they will almost certainly have to bear the cost, this check and balance on LA power will be denied them.
All in all, with the almost certain prospect of having to bear court costs, home educators will be far more subject to the whims of LAs as to what they consider an appropriate education. All the LA would have to do would be to just tweak the evidence a little bit to make the parent look obstructive, and bingo, they'd be issuing SAOs like there's no tomorrow. LAs also know that once HEors caught on that this is happening, that they wouldn't risk the almost certain expense of a court case, and will therefore just roll over and do the LAs bidding, meekly conforming to whatever expectations the LA has with regards to the nature of a suitable education, with all the terrible consequences for freedom and democracy that this entails.
This really does seem like a hugely retrograde step, a return to centralised authoritarianism of pre Magna Carta proportions, though perhaps we should start getting used to this sort of thing as this initiative also seems akin to the proposal in May, introduced by Tom Watson MP, which would have resulted in newspapers being forced to fund the action of anyone who takes a case against them, irrespective of whether the newspaper actually wins or not!
Is this REALLY the way we want to go? Talk about degradation of democracy: curtail freedom of speech, make investigative journalism prohibitively risky and take out freedom in education whilst you're at it. After all, the plebs need controlling.
We have to stop this. Fill in that consultation response, and sign the petition here.
Saturday, June 16, 2018
Is Home Education a "Disruptive Innovation"?
There's a pattern to the way innovations disrupt apparently immutable markets. First they are seen as some kind of joke or in the case of home education, evidence of an embarrassing failure and a complete irrelevance. Then they are regarded as an illegal threat, before finally being accepted as the way forward. This is what happened with, for example, the on-line distribution of music and videos. The questions for this post are:
- is this what is happening with home education?
- what stage are we at now?
- and will home education ever be widely seen as a positive paradigm for education?
There is almost certainly a recent upsurge in numbers of home educators, but this doesn't mean that home education has moved up into positive paradigm territory. This growth is largely driven by a confluence of failures in the schooling system: a lack of school places at secondary level, cuts to school budgets which mean that there's no money for teachers, teaching assistants and SEND provision, pressures from various government intiatives and Ofsted which means that schools pressure families to remove children who might mess with their Ofsted assessments, more pressure from Ofsted which means that teachers spend their days filling in tick boxes rather than being left alone to devise inspirational lessons, a tedious one size fits all National Curriculum that is being imposed ever more tightly, parents pulling out school phobic children in order to avoid being fined by the LA for unauthorised absences, and a lot of great teachers just throwing in the towel and walking away.
And let's not forget the effect all the above has upon the young people in the system. Two thirds of children are stressed by life at secondary school and you can bet your life that this sort of stress is not the sort of stress that helps you learn! Seriously parents, what are we actually doing here? It seems we are forcing two thirds of young people to attend a place where they are meant to acquire a suitable education but which is actually completely ruinous in terms of achieving that end.
And lets not get in to all the stuff about unaddressed school bullying and the total unremitting boredom of having to sit in a classroom over-stuffed with other young people of varying abilities, all with different needs which must be variously addressed while you stare out the window and wish you could just float out through it and fly away.
However, this growth in numbers of HEors might not just be a matter of a creaking school system. It could also be due to other more positive factors as well. Popular educationalists such as Ken Robinson have been making an argument for HE in very public places and the internet has radically increased the ease with which home education can be undertaken. What with websites such Khan Academy, Duolingo, PLOS, Chrome's Unpaywall, virtual colleges and MOOCs, and all the truly wonderful stuff you can find on YouTube and through Google, we can truly say we live in an age in which information is no longer at a premium. Home educators can also get support and advice on-line and in real life groups far more easily now than only a decade ago, when the internet was more limited and real life HE groups relatively small.
Realistically though, these positive reasons for the growth in HE are probably in the minority. We can only hope that they herald better things to come, but the truth of the matter is that home education is currently moving from the "batty irrelevant" stage, to the "potentially illegal" stage, as evidenced by the fact that the DfE have instigated a Call for Evidence which introduces the prospect of new regulatory control of HE, either in the form of legal change or a harsher in interpretation of current law, Some passages of the superficially anodyne reinterpretation of current law even introduce the prospect of LAs being able to manage an ad hoc elimination of HE altogether, if read in the wrong light, (see s9.4 d on page 25), a point that hasn't been missed by home educators and about which they will be complaining loudly in their consultation responses.
One of the main nominal reasons for a crack-down on home educators, on top of the growth in numbers, has been the assertion by Michael Wilshaw (then head of Ofsted) that there was evidence to suggest that illegal, unregistered schools are using the freedoms afforded to genuine home educators as a cover for their activities. However, a report undertaken by the Centre for Personalised Learning concluded that whilst Wilshaw's concerns that illegal organisations could exploit home education regulations to avoid closure were indeed potentially valid, this was not a reason to tighten regulation on home education, but rather should lead to strengthening of regulation of unregulated schools.
The tarring of home educators as radicalisers of their children has caused a media frenzy over the last few years. It looks as if public sentiment might easily be sufficiently swayed to see home educators as deeply evil subversives who should be put away for ever and a day, and for this reason alone, it would very easy to conclude that are we are currently firmly in the "illegal" phase of a disruptive innovation process.
It is a crucial stage right now which could go either way. Home education for it to retain its value, must not become fettered by government regulation and expectations as to what an education must look like. Many of HEd children have already been failed by an over-centralised view of what every child must learn. Home educators, on the other hand, can personalise their educational provision to genuinely suit the child, which almost invariably proves invaluable for so many children, as Ken has understood when he says that HE has a lot to offer by way of a pedagogy.
As home education, in its new tech inspired iteration, matures, the government would be wise to learn to work with us, rather than against us. We could bolster a creaking school system with new models that do offer genuine support to children who do not thrive in school. If budgets could more easily follow a child through the EOTAs system, or if Red Balloon of the Air and other initiatives with virtual colleges offering a real life support group were given proper funding and support, many more children would receive a suitable education. Other home educators just need to be left alone to get on with it: money would be far better spent on social work departments than in chasing a load of well-functioning but resentful HEors about all over the place, trying to tell them what to do.
We need to go beyond being seen as a threat, and be welcomed as a valuable alternative instead.
- is this what is happening with home education?
- what stage are we at now?
- and will home education ever be widely seen as a positive paradigm for education?
There is almost certainly a recent upsurge in numbers of home educators, but this doesn't mean that home education has moved up into positive paradigm territory. This growth is largely driven by a confluence of failures in the schooling system: a lack of school places at secondary level, cuts to school budgets which mean that there's no money for teachers, teaching assistants and SEND provision, pressures from various government intiatives and Ofsted which means that schools pressure families to remove children who might mess with their Ofsted assessments, more pressure from Ofsted which means that teachers spend their days filling in tick boxes rather than being left alone to devise inspirational lessons, a tedious one size fits all National Curriculum that is being imposed ever more tightly, parents pulling out school phobic children in order to avoid being fined by the LA for unauthorised absences, and a lot of great teachers just throwing in the towel and walking away.
And let's not forget the effect all the above has upon the young people in the system. Two thirds of children are stressed by life at secondary school and you can bet your life that this sort of stress is not the sort of stress that helps you learn! Seriously parents, what are we actually doing here? It seems we are forcing two thirds of young people to attend a place where they are meant to acquire a suitable education but which is actually completely ruinous in terms of achieving that end.
And lets not get in to all the stuff about unaddressed school bullying and the total unremitting boredom of having to sit in a classroom over-stuffed with other young people of varying abilities, all with different needs which must be variously addressed while you stare out the window and wish you could just float out through it and fly away.
However, this growth in numbers of HEors might not just be a matter of a creaking school system. It could also be due to other more positive factors as well. Popular educationalists such as Ken Robinson have been making an argument for HE in very public places and the internet has radically increased the ease with which home education can be undertaken. What with websites such Khan Academy, Duolingo, PLOS, Chrome's Unpaywall, virtual colleges and MOOCs, and all the truly wonderful stuff you can find on YouTube and through Google, we can truly say we live in an age in which information is no longer at a premium. Home educators can also get support and advice on-line and in real life groups far more easily now than only a decade ago, when the internet was more limited and real life HE groups relatively small.
Realistically though, these positive reasons for the growth in HE are probably in the minority. We can only hope that they herald better things to come, but the truth of the matter is that home education is currently moving from the "batty irrelevant" stage, to the "potentially illegal" stage, as evidenced by the fact that the DfE have instigated a Call for Evidence which introduces the prospect of new regulatory control of HE, either in the form of legal change or a harsher in interpretation of current law, Some passages of the superficially anodyne reinterpretation of current law even introduce the prospect of LAs being able to manage an ad hoc elimination of HE altogether, if read in the wrong light, (see s9.4 d on page 25), a point that hasn't been missed by home educators and about which they will be complaining loudly in their consultation responses.
One of the main nominal reasons for a crack-down on home educators, on top of the growth in numbers, has been the assertion by Michael Wilshaw (then head of Ofsted) that there was evidence to suggest that illegal, unregistered schools are using the freedoms afforded to genuine home educators as a cover for their activities. However, a report undertaken by the Centre for Personalised Learning concluded that whilst Wilshaw's concerns that illegal organisations could exploit home education regulations to avoid closure were indeed potentially valid, this was not a reason to tighten regulation on home education, but rather should lead to strengthening of regulation of unregulated schools.
The tarring of home educators as radicalisers of their children has caused a media frenzy over the last few years. It looks as if public sentiment might easily be sufficiently swayed to see home educators as deeply evil subversives who should be put away for ever and a day, and for this reason alone, it would very easy to conclude that are we are currently firmly in the "illegal" phase of a disruptive innovation process.
It is a crucial stage right now which could go either way. Home education for it to retain its value, must not become fettered by government regulation and expectations as to what an education must look like. Many of HEd children have already been failed by an over-centralised view of what every child must learn. Home educators, on the other hand, can personalise their educational provision to genuinely suit the child, which almost invariably proves invaluable for so many children, as Ken has understood when he says that HE has a lot to offer by way of a pedagogy.
As home education, in its new tech inspired iteration, matures, the government would be wise to learn to work with us, rather than against us. We could bolster a creaking school system with new models that do offer genuine support to children who do not thrive in school. If budgets could more easily follow a child through the EOTAs system, or if Red Balloon of the Air and other initiatives with virtual colleges offering a real life support group were given proper funding and support, many more children would receive a suitable education. Other home educators just need to be left alone to get on with it: money would be far better spent on social work departments than in chasing a load of well-functioning but resentful HEors about all over the place, trying to tell them what to do.
We need to go beyond being seen as a threat, and be welcomed as a valuable alternative instead.
Tuesday, June 12, 2018
The Call for Evidence - Why should I bother?
One way or another, it is can be extremely hard for home educators to find the time and energy to respond to the Department for Education's Call for Evidence. For starters, the consultation is taking place at a busy time of year for many HEors, what with exam season, getting ready for college, holidays and all the normal demands of home educating in a difficult financial climate.
There is also the sheer bulk of it all. The Call for Evidence has 44 questions most of which require a considerable amount of knowledge in order to form a well argued response. HEors need to know about not only Lord Soley's Bill and two sets of guidance, one for LAs and one for parents, but also about other bits of law, such as safeguarding law and the Localism Act 2011.
Then there's the fact that so much of new stuff is so opaque. It is very easy to skim read the new draft guidance documents and think "Hey ho, the law's the same, what can be so bad?" Home educators may also be tempted to think that since their educational provision has already been inspected by their LAs without any dire consequences, that it is unlikely that things could get significantly worse.
The thing is, the problems in the draft guidance aren't obvious and you really have to get stuck in to reading the small print in order to see some of the most significant differences from previous guidance since these are hidden away in subtle rewording or in the reference section which you need to pursue with google in order to find out the implications of it all. (See also these posts for some more of the problems and implications of the draft guidance).
Then there's the potentially demotivating fact, as argued in this petition here, that the guidance documents were written without the consultation of HEors, and are already so skewed in favour of LAs, that the whole exercise feels like a fait accompli. It's easy to think that whatever we say, the DfE will go ahead anyway.
Worse still, there's such a short space of time in which to do it all! We have to respond to the consultation before July 2nd? Really? Given that home educators have a reputation for being a rambuctious lot, there is a reasonable chance that the DfE quite deliberately presented this consultation in such a way as to make it very awkward for us to complete. It would be easy to wave a white flag at this point.
But home educators won't give up. We can apply the hive mind, research the situation and come up with reasoned answers and we must do this because we HAVE to draw the line somewhere. If we don't draw this line and demonstrate what the HE community are and are not prepared to take, the line will be drawn heaven only knows where. We have seen mission creep in action before. We will not let it happen again.
On top of responding to the consultation, home educators should, as per the petition, complain that the process has been made next to impossible for many stakeholders, that there appears to be no Impact Assessment, normally a necessary requirement whenever changes to the implementation of law are proposed, all of which therefore means that the Call for Evidence does not conform to government guidance on how to conduct a consultation, ie: there are plenty of good reasons to kick off and we should do it.
There is also the sheer bulk of it all. The Call for Evidence has 44 questions most of which require a considerable amount of knowledge in order to form a well argued response. HEors need to know about not only Lord Soley's Bill and two sets of guidance, one for LAs and one for parents, but also about other bits of law, such as safeguarding law and the Localism Act 2011.
Then there's the fact that so much of new stuff is so opaque. It is very easy to skim read the new draft guidance documents and think "Hey ho, the law's the same, what can be so bad?" Home educators may also be tempted to think that since their educational provision has already been inspected by their LAs without any dire consequences, that it is unlikely that things could get significantly worse.
The thing is, the problems in the draft guidance aren't obvious and you really have to get stuck in to reading the small print in order to see some of the most significant differences from previous guidance since these are hidden away in subtle rewording or in the reference section which you need to pursue with google in order to find out the implications of it all. (See also these posts for some more of the problems and implications of the draft guidance).
Then there's the potentially demotivating fact, as argued in this petition here, that the guidance documents were written without the consultation of HEors, and are already so skewed in favour of LAs, that the whole exercise feels like a fait accompli. It's easy to think that whatever we say, the DfE will go ahead anyway.
Worse still, there's such a short space of time in which to do it all! We have to respond to the consultation before July 2nd? Really? Given that home educators have a reputation for being a rambuctious lot, there is a reasonable chance that the DfE quite deliberately presented this consultation in such a way as to make it very awkward for us to complete. It would be easy to wave a white flag at this point.
But home educators won't give up. We can apply the hive mind, research the situation and come up with reasoned answers and we must do this because we HAVE to draw the line somewhere. If we don't draw this line and demonstrate what the HE community are and are not prepared to take, the line will be drawn heaven only knows where. We have seen mission creep in action before. We will not let it happen again.
On top of responding to the consultation, home educators should, as per the petition, complain that the process has been made next to impossible for many stakeholders, that there appears to be no Impact Assessment, normally a necessary requirement whenever changes to the implementation of law are proposed, all of which therefore means that the Call for Evidence does not conform to government guidance on how to conduct a consultation, ie: there are plenty of good reasons to kick off and we should do it.
Friday, June 01, 2018
Suggestions as to how to Complete the EHE Call for Evidence
This is a response guide from the admins of the Draft EHE Guidance Consultation Group.
It's been kept quite simple, to help to address the overwhelming nature of the questions which has been putting so many people off from replying.
****Please don't copy and paste it, it's really important to change some of the words even just slightly, because identical responses will probably be discounted.****
****None of the words in [square brackets] should appear in your response.****
In some places we've provided choices, so that you can give the short version or the longer one. If you want to answer in more detail still, please see our conversations in the above named group and David Wolfe's advice, which is in the group files.
Any response to the consultation is valid. *Your* thoughts and opinions are being asked for, so please think about the answers we're suggesting and if you disagree then don't use them and say what you think instead.
Please consider allowing them to keep your response public in your answer to question 7 so that we can clearly see whether it has been taken into account for the end result."
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Home Education - Call for Evidence and Draft DFE Guidance
Closes July 2nd 2018.
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1. What is your name?
Name
[Enter a name if you wish ]
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2. What is your email address?
If you enter your email address then you will automatically receive an acknowledgement email when you submit your response.
[Enter an email address if you wish]
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3. Are you responding as an individual or on behalf of an organisation?
Individual
Organisation
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4. If you are responding on behalf of an organisation, what is your organisation?
[Leave blank]
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5. Which of the following best describes the capacity in which you are responding to this consultation? If Other, please give details
[Choose parent or carer or ‘other’ and type ‘home educator’]
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6. Which local authority area are you based in?
[Name your local authority if you want to. ]
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7. Would you like us to keep your responses confidential?
Yes/No
Information provided in response to consultations, including personal information, may be subject to publication or disclosure under the Freedom of Information Act 2000, the Data Protection Act 1998 or the Environmental Information Regulations 2004.
If you want all, or any part, of a response to be treated as confidential, please explain why you consider it to be confidential.
If a request for disclosure of the information you have provided is received, your explanation about why you consider it to be confidential will be taken into account, but no assurance can be given that confidentiality can be maintained. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Department.
The Department for Education will process your personal data (name and address and any other identifying material) in accordance with the Data Protection Act 1998, and in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.Reason for confidentiality
[Anyone can state any reason for wanting DfE to keep their response private, if they do. However, it would be helpful in order to ensure transparency in the processing of results, if you were to keep your response public.]
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8. How effective are the current voluntary registration schemes run by some local authorities? What would be the advantages and disadvantages of mandatory registration of children educated at home, with duties on both local authorities and parents in this regard?
DO NOT COPY EXACTLY
[Talk about the possible effects on children of being registered.]
Section 7 of the Education Act compels us to tailor the provision to the child’s age, aptitude, ability and special educational needs.
[Does registration encourage more local authority oversight of this? Do local authority officers know our children as well as we do? Might some of them be tempted to contact us more than they need to and try to persuade us to change our provision? You can add examples of this if you know any. ]
We think the law currently strikes the right balance between protecting those children who need it (Section 437) and ensuring that parents still have the freedom to tailor the provision to meet their child’s needs.
[OR just - ] Registration schemes are not needed and are not effective.#
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9. What information is needed for registration purposes, and what information is actually gathered by local authorities? Would it help the efficacy of these schemes, and the sharing of information between authorities, if there were a nationally agreed dataset or if data could be shared by national agencies, such as DWP or the NHS?
DO NOT COPY EXACTLY
We do not think there should be a registration scheme for home education because it is not necessary and might in some cases result in a negative impact on the education provision.
[OR] Registration schemes are a bad idea because they’re not needed and we are just fulfilling our parental duty, which does not need to be registered.
[OR ] No information is needed. There should not be a scheme.
[OR further:] The implication here is that such policies are and would be appropriate and lawful both when it comes to the requirements of the Education Act and the GDPR and Article 8 ECHR requirements around data sharing. David Wolfe QC advised that the seeking or the making of a referral between agencies as contemplated, simply by virtue of the mere fact of a child being home educated would not meet those requirements.
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10. Does experience of flexi-schooling and similar arrangements suggest that it would be better if the scope of registration schemes included any children who do not attend a state-funded or registered independent school full-time? If so, do you think that local authorities should be able to confirm with both state-funded and independent schools whether a named child is attending that school full-time?
Flexischoolers should not be covered by this guidance because their children are on a school roll. There should be no registration scheme for home education.
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11. Would the sanction of issuing a school attendance order for parental non-compliance with registration be effective, or is there another sanction which would be more useful?
We do not think there should be a registration scheme for home education.
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12. What steps might help reduce the incidence of schools reportedly pressuring parents to remove children to educate them at home?
DO NOT COPY EXACTLY
Improving the schools?
Improving the Special Needs provision?
Improving the Ofsted service to ensure the SEN code of conduct is being properly applied?
Funding more Pupil Referral Units or other EOTAS schemes?
Home education regulations should not be changed for the incidence of this to be reduced.
[OR insert your own ideas, OR leave blank]
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13. Is there an argument for some provision which allows a child to return to the same school within a specified interval if suitable home education does not prove possible?
Yes/No
[Most people would say no to this, in case it forcibly keeps the child on the school roll against the parents’ wishes. ]
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14. How effective is local authority monitoring of provision made for children educated at home? Which current approaches by local authorities represent best practice?
DO NOT COPY EXACTLY
There is no statutory requirement for monitoring of home education provision.
Home education provision should be decided by parents and unnecessary monitoring can undermine parental decisions.
If the local authority has information that makes it appear that parents are not providing a suitable education, it can then ask the parents for further information. (Current Elective Home Education Guidelines section 2.8) This position strikes a good balance between the need for local authorities to take action if the education appears unsuitable and the need for parents to decide for themselves on the right definition of ‘suitable’ for their child.
[OR just - ] There is nothing in law about monitoring home education.
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15. If monitoring of suitability is not always effective, what changes should be made in the powers and duties of local authorities in this regard, and how could they best ensure that monitoring of suitability is proportionate?
DO NOT COPY EXACTLY
Local authorities can best ensure that the monitoring of suitability is proportionate by sticking to the existing procedure as set out in the previous answer. Parents should decide what constitutes a suitable education for their child, not local authority officers. Local authority officers should only try to reach an opinion about this if they have information that makes it appear that parents are not providing a suitable education.
[OR just - ] There is nothing in law about monitoring home education
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16. Should there be specific duties on parents to comply with local authorities carrying out monitoring if such LA powers and duties were created, and what sanctions should attach to non-compliance?
DO NOT COPY EXACTLY
There should be no specific duties on parents to comply with local authorities’ inquiries into their provision. According to case law (Phillips v Brown 1980) they “would be sensible” to respond to inquiries as set out in the current Elective Home Education Guidelines section 2.8.
[OR just -] There should be no such specific duties on parents.
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17. Is it necessary to see the child and/or the education setting (whether that is the home or some other place), in order to assess fully the suitability of education, and if so, what level of interaction or observation is required to make this useful in assessing suitability?
DO NOT COPY EXACTLY
It is not necessary to see the child and/or the education setting in order to assess fully the suitability of education. Local authorities should not attempt to assess fully the suitability of the education unless and until there is an appearance that the education is unsuitable. (Section 437 of the Education Act).
[OR just - ] It is not necessary for them to do this.
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18. What can be done to better ensure that the child’s own views on being educated at home, and on the suitability of the education provided, are known to the local authority?
DO NOT COPY EXACTLY
The child’s own views on being educated at home and on the suitability of the education provided do not need to be known to the local authority. Parents must decide how best to carry out their Section 7 duty until and unless there is an appearance that they are failing to do so, as set out in Section 2.8 of the current home education guidelines and in Section 437 of the Education Act.
[OR just] The child’s own views do not need to be known to the local authority if there are no concerns about the education.
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19. What are the advantages and disadvantages of using settings which are not registered independent or state schools, to supplement home education? How can authorities reliably obtain information on the education provided to individual children whose education ‘otherwise than at school’ includes attendance at such settings as well as, or instead of, education at home?
DO NOT COPY EXACTLY
If there is no information which might lead to a Section 437 ‘appearance’ that the education is unsuitable, authorities should not seek to obtain such information. Parents must decide how best to carry out their Section 7 duty until and unless there is an appearance that they are failing to do so, as set out in Section 2.8 of the current home education guidelines and in Section 437 of the Education Act.
[OR just - ] Local authorities do not need that information if there are no concerns about the provision.
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20. What are the advantages and disadvantages of using private tutors to supplement home education? How can authorities best obtain information on the education provided to individual children whose education at home includes private tuition, or whom attend tuition away from home?
DO NOT COPY EXACTLY
If there is no information which might lead to a Section 437 ‘appearance’ that the education is unsuitable, authorities should not seek to obtain such information. Parents must decide how best to carry out their Section 7 duty until and unless there is an appearance that they are failing to do so, as set out in Section 2.8 of the current home education guidelines and in Section 437 of the Education Act.
[OR just - ] Local authorities do not need this information if they have no concerns about the education.
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21. Are there other matters which stakeholders would wish to see taken into account in this area? If so please insert comments below.
Yes /No
DO NOT COPY EXACTLY
[If you want to, you could describe experiences of interactions with over-zealous officers here and say again that they should comply with the law. ] [You could say that you prefer the current home education guidelines to the proposals in the draft guidance. ]
[Or you could leave this box blank.]
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22. What might be done to improve access to public examinations for children educated at home?
DO NOT COPY EXACTLY
[Give your views here.]
[Either nothing should be done to improve access to public examinations or something should, and what you think it should be.]
[Be aware of the possible ramifications of accessing funding for public examinations, ie: contact with LA, LA value for money assessments, etc.]
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23. What good practice is there currently in local authority arrangements for supporting home-educating families? Should there be a duty on local authorities to provide advice and support, and if so how should such a duty be framed?
DO NOT COPY EXACTLY
There should be no duty on local authorities to provide advice and support, although officers may wish to supply either on request if possible.
Adding a duty in this respect risks encouraging overzealous officers to supply advice and support that is unwanted by parents.
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24. Should there be a financial consequence for schools if a parent withdraws a child from the school roll to educate at home?
Yes/No
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No. Parents can withdraw their children from school for many valid reasons. The discouragement of this should not be incentivised because the result might be that parents are too strongly persuaded to keep their child in school.
[OR]
Yes. Schools should be made to work harder to resolve problems with children who are on the point of being deregistered.
[You could add experiences to support your view.]
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25. Should there be any changes to the provision in Regulation 8(2) of the Education (Pupil Registration) (England) Regulations 2006 requiring local authority consent to the removal of a child’s name from the roll of a maintained special school if placed there under arrangements made by the local authority?
Parents of any children should not need permission to deregister their child from school.
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26. Are there any other comments you wish to make relating to the effectiveness of current arrangements for elective home education and potential changes?
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[You can use this box to describe your worry about the proposed changes, which are to effectively move the educational provision assessment from Section 437 (ie: only where there seem to be problems with provision), to Section 436A, so that everyone’s provision is assessed regardless of whether there seem to be problems with it.]
[You could talk about how regular monitoring, home visits, meetings with officials and pre-set suitability criteria would negatively affect or damage your child or your ability to carry out your duty to provide a suitable education. ]
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27. What data are currently available on the numbers of children being educated at home in your local authority area?
I do not know. [Or include the data if you do know it.]
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28. Do you have any comments on any of the contents of the call for evidence document in relation to equality issues?
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[You can state any problems you know of in this respect here, eg: ]
It may be difficult for young people/ those with disabilities who may be subject to proposed changes to reply to the Call for Evidence, for reason of…
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DRAFT REVISED DFE GUIDANCE ON HOME EDUCATION: FOR LOCAL AUTHORITIES
This section invites comments on different sections of the draft revised guidance document about the current framework for home education, which DfE proposes to publish for local authority use. Copies of the draft document can be downloaded from the Overview page.
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29. Comments on Section 1: What is elective home education?
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Flexi-schooling describes an arrangement between the parent and school where children are registered at the school in the usual way but attend school only part time. This does not encompass college students or anyone else not on the roll of a registered school.
Flexi-schooling should therefore not be included in this consultation.
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30. Comments on Section 2: Reasons for elective home education - why do parents choose to provide it?
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The reasons for home education are not relevant in law and therefore should not be listed in this guidance.
Listing them risks encouraging overzealous officers to use the reason for home educating to form prejudices in terms of their approach to families.
[OR just - ] Don’t give reasons/ don’t list any reasons [etc].
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31. Comments on Section 3: The starting point for local authorities
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3.4 "However, few people would argue today that parents should be able to exercise their right to home educate children with absolutely no independent oversight, despite their having the legal responsibility set out above." - This is conjecture and as such does not belong in this guidance.
[OR] I disagree with this assumption and it should be removed.
"The job of each local authority is therefore to find an appropriate balance between parental autonomy and its overall responsibilities for education of children in its area."
- This is not true. Their job is to carry out their duties in law.
3.6 Registration schemes should not be encouraged as they go beyond the law and can lead to problems such as unnecessary provision assessments and lack of clarity for officers and parents about regulations and the law.
[OR just - ] We do not want any registration schemes.
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32. Comments on Section 4: How do local authorities know that a child is being educated at home?
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Section 436A gives local authorities the duty to make arrangements to identify children not receiving education. Home educated children do receive education, therefore should not be the particular targets of this section of the law.
"Until a local authority is satisfied that a home-educated child is receiving a suitable full-time education, then a child being educated at home is potentially in scope of this duty."
This is not an accurate interpretation of the wording in section 436A. It implies that the provision of every home educated child must be assessed by their local authority, whereas the statute does not do this and nor does case law. It is enough for officers to ask parents whether the education is suitable. If the parents say yes and there is no information that would lead to the informal inquiries set out in section 2.8 of the current guidance, the section 436A duty can then be discharged.
Home educators have been advised by David Wolfe QC that the measures suggested in section 4.4 specifically to seek out home educators do not meet the requirements set out in the GDPR and Article 8 of the Human Rights Act.
[OR just]
This is not what Section 436A means. Local authorities should stick to the law. Further, we have received legal advice that sharing information about us between statutory agencies as described in s4.4 would be unlawful.
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33. Comments on Section 5: Local authorities’ responsibilities for children who are, or appear to be, educated at home
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5.1 again misinterprets section 436A, which makes no mention of home education. The underlining of 'routine basis' implies that there is also a statutory duty to monitor the quality of home education provision at all, which there is not.
5.2 again extends the interpretation of 436A beyond the statutory wording, which says nothing about maintaining oversight of home educated children.
5.4 recommends annual contact with home educating parents (we assume this is what the draft guidance means, not 'home educated parents' as it says) but this would constitute routine monitoring which might be helpful in some cases, but in others could interfere with the parents' ability to comply with their section 7 duty to cause their child to receive suitable education.
One example of such a problem would be if the officer challenged the parents' definition of 'suitable' based on their different opinions of the child's needs. In that case, where the provision would be found suitable in court, the parents' section 7 duty would be unnecessarily and damagingly undermined to the detriment of the child.
[OR just - ] We don’t want or need annual contact with the local authority.
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34. Comments on Section 6: What should local authorities do when it is not clear that home education is suitable?
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6.1 Local authorities should not be trying to grade the quality of provision. This will lead to all kinds of problems for which there is no justification in statute. They are only required to make a binary decision about whether there is an appearance that it is not suitable. This is set out under section 437 of the Education Act and in the case of informal inquiries, the current guidance section 2.8.
6.2 They should only be attempting to assess the provision if they have information which makes it appear to be not suitable (current guidelines 2.8).
6.4 The informal inquiries should take place before section 437 of the Education Act but not under section 436A. Section 2.8 of the current guidance sets out the position correctly. If the law makes the parent responsible for ensuring the receipt of suitable education but does not define 'suitable education' in individually specific terms, it implicitly assumes parents are capable of defining what is suitable for their individual child. If it appears for some reason that a parent is not fulfilling their duty, then the assumption may be questioned.
6.7 Flexischooling should not be included in these guidelines as the children are on the roll of a registered school.
6.10 That is by no means the only reasonable conclusion. The family might be away on a long holiday, for example, and not receiving their post.
6.12 Section 437 requires only satisfaction from the parent. It does not mention seeking information from other sources and the guidance should not imply that this should happen.
6.20 The guidance should not make such implications.
[OR just -] Keep the wording in section 2.8 of the current guidelines. Leave flexischoolers out of it because they are on a school roll.
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35. Comments on Section 7: Safeguarding: the interface with home education
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7.2 "However, it must be acknowledged that a child being educated at home is not necessarily being seen on a regular basis by professionals such as teachers and this increases the chances that any parents who are using home education to avoid independent oversight may be more successful by doing so."
This is pure conjecture which risks damaging the prospect of good relationships between local authorities and families. Please do not include it in the guidance.
The rest of section 7 of the draft guidance then degenerates further into a system of nightmarish threats and menaces which have no place in guidance about home education.
The mere mention of Care Orders in this guidance risks encouraging some overzealous officers to threaten and even issue them inappropriately, which could in itself cause significant harm to families. Also, it is by no means properly established that a suspicion of educational neglect on its own might breach the 'significant harm' threshold in the Children Act.
[OR just] Home educated children are at no higher risk of being abused so their families should not be unfairly targeted by Safeguarding measures in the way Section 7 does.
[OR just] Section 7 of the draft guidance needs to be rewritten in line with part 2 of the current guidelines, with updates only where necessary.
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36. Comments on Section 8: Home-educated children with special educational needs (SEN)
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The annual EHCP review should not be a general assessment of the whole education provision but only of the child's progress towards the outcomes specified in the plan.
[OR just - ] The Special Educational Needs Code of Practice should be followed and normal home education regulations apply to home educated children with SEN.
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37. Comments on Section 9: What do the s.7 requirements mean?
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Re: Article 2 Protocol 1, ECHR:
[Explain that if our philosophy is home education, the State shall respect it. If our philosophy is unschooling or autonomous education, the State shall respect it. ] From 9.3 “There is no definition of an ‘efficient’ or ‘suitable’ education in English statute law”.
[Explain that there is. It is that an education must be suited to the age, ability and aptitude of the child and see also the case law as referenced in 9.4. ]
9.3. “ This means that the wishes of parents are relevant. However, it does not mean that parents are the sole arbiters of what constitutes a suitable education….A court will reach a view of suitability based on the particular circumstances of each child and the education provided.”
[Explain why you think your views are not only relevant but paramount, as you know your child better than the LA and the courts and are therefore able to provide an education that better suits a child’s age, ability and aptitude.]
[Explain that it is essential that LAs and courts do not abuse this power to rule out a form of suitable education and that their judgement must be exercised with proportionality and reasonableness in order that they pay due regard to Article 2 Protocol 1 ECHR and in order to preserve freedom of education in this country from the control of the state and the judiciary. ]
[Explain that home educators are discussing Judicial Reviews should procedures lack reasonableness and proportionality. ]
“9.4 b. notwithstanding (a), the 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 [In regulations made under s.94 of the Education and Skills Act 2008 ]. 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;”
[Explain that b. is contradictory, misleading and will incite over-zealous officers to pursue School Attendance Orders inappropriately]
[Explain that in the view of most home educators, a suitable education is that which actually suits an individual child. “Suitable” should therefore not be defined in a generic way by the state, but by the family themselves who are able to tailor the education to genuinely suit the child. ]
Further the list of what does not need to be included for an education to be suitable that is found at 3.13 in the current Elective Home Education Guidelines for local authorities should be included in any new guidance,
ie: 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.
c. Sections 13 and 175 both talk about background, general duties. [Explain these sections do not confer extra powers on local authorities in respect of home education outside their normal duties. The guidance should be making this abundantly clear because as it is currently phrased, over-zealous officers will use this section as an excuse to be excessively rigorous. ]
“d. the first sentence of ECHR Article 2 of Protocol 1 quoted above confers the fundamental right to an effective education, and relevant case law (ref to German case law) confers very broad discretion on the state in regulating that law. “
German case law is not relevant here in UK’ as it derives from the Basic Law in Germany which had as a primary purpose, the need to prevent ‘parallel societies’, which do not create a dictator.
The Basic law and the Constitution of Baden Wurttemberg position is very different to the legal position in England, given that they make school compulsory save for in exceptional circumstances.
“d. a local authority may specify minimum requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable;”
[Explain that this is very poorly worded and may well mean that parents could not provide an education that is genuinely suited to the child since it allows for LAs to set an arbitrary level of state determined suitability that may have nothing whatsoever to do with whether the education is suited to the ability and aptitudes of the individual child.]
Also explain that giving LAs localised control of “suitability” would introduce a complete postcode lottery of state control.
[OR just - ] The law trusts parents to comply with their Section 7 duty until it has information to make it appear that this might not be happening. This trust is important and must not be undermined without good reason.
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38. Comments on Section 10: Further information
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Local authorities should not be encouraged to go beyond the law in trying to influence parents’ decisions because it confers unnecessary liability on them and can undermine the necessary trust between parents and children, and between parents and the local authority.
Flexi-schooled children are on the roll of a registered school and so should not be included in this guidance.
Attendance at unregistered settings is a matter for parents unless local authorities have safeguarding concerns or information that makes it appear that parents are not providing a suitable education, as set out in the current guidelines section 2.8 (which wording must be retained in any new guidance) or the law is being broken in some way.
[Add to the list of resources local authorities could provide if you want to.]
[OR just - ] Local authorities should trust parents unless they have good reason not to.
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DRAFT REVISED DfE GUIDANCE ON HOME EDUCATION: for PARENTS
This section invites comments on different sections of the draft revised guidance document about the current framework for home education, which DfE proposes to publish for parents. Copies of the draft document can be downloaded from the Overview page.
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39. Comments on Section 1: What is elective home education (EHE)?
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Introduction: Introduces mission creep. It is not the for the government to decide the nature of a suitable education for children. It introduces a new concept of “world class” to the definition of education. An education does not have to be “world class”. It has to be suited to the ability and aptitude of a child. Home education can also work well when it is not a positive choice.
Section 1. Flexi-schooled children are on the roll of a registered school so should not be included in this guidance.
[Or just - ] Exclude/leave out flexi-schooling.
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40. Comments on Section 2: What is the legal position of parents who wish to home educate children?
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There is a general definition of suitability: A suitable education is that which is suited to the age, ability and aptitude of a child. Any other attempt at imposing a definition that rests outside the locus of the child will reduce the efficacy of that learning process as all children are different and have different learning needs.
Local authorities should not use minimum expectations for things such as literacy and numeracy in assessing suitability. Reasonable expectations for this vary widely between different children. Age should not be the determining factor in this equation, aptitude coupled with ability being the key determinants in successful learning.
The list of what home educators need not demonstrate in order to be providing a suitable education at 2.11 should be included in the LA guidance as well. There should not be two different sets of guidance with differing standards applying.
Social needs also vary widely between different children and should not be assessed by education officers.
Local authorities should only attempt to assess home education provision if they have information that makes it appear unsuitable (Current guidelines 2.8).
The suggestions as to how home educators can most easily demonstrate the delivery of a suitable education at 2.12 reveals that the guidance is prejudicing LAs to introduce judgements about suitability that are not required in primary and case law. A broad curriculum and assessment of progress are not required in primary legislation and therefore this should not be allowed in guidance on interpretation of the law. It will prejudice LAs against certain kinds of home educators who realise that a suitable education for their children may involve early specialisation or avoidance of assessment of progress.
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41. Comments on Section 3: So what do I need to think about before deciding to educate my child at home?
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The detailed curriculum does not need to be planned in advance. It can be adapted as the education progresses, according to the child’s changing needs.
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42. Comments on Section 4: If I choose to educate my child at home, what must I do before I start?
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If this guidance is to attempt to entice home educators to inform the local authority of their home educating in order to facilitate access to advice and support, the advice and support on offer should be useful enough to warrant this.
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43. Comments on Section 5: What are the responsibilities of your local authority?
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Parents should be advised that any information they supply to the local authority may be used to contribute to an appearance that the education is unsuitable under Section 437.
They should only be asked to provide detailed information about the provision if the local authority has information that makes it appear that the education is unsuitable. (Current guidelines for local authorities section 2.8)
Parents would be sensible to inquire about the information held on them by the local authority. A paragraph on how to make a Subject Access Request should be supplied.
Section 5 is far too threatening for guidance about an activity undertaken by parents to benefit their children.
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44. Comments on Section 6: Further information
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Flexi-schooled children are on the roll of a registered school and so should not be included in this guidance.
All criticisms of the Guidance for Parents should also apply to the Guidance for Local Authorities as the two must be consistent. It is arguable that two sets of guidance should be needed at all.
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45. Do you think that anything in the revised guidance documents could have a disproportionate impact, positive or negative, on those with 'relevant protected characteristics' (including disability, gender, race and religion or belief) - and if so, how?
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[Explain how the guidance will impact on you and your children (protected characteristics include age as well as disability, gender, race, religion or belief) in a way that you feel will differ from others without these protected characteristics.]
[Explain that whether or not home education counts as a protected characteristic, your experience of being outside the norm has resulted in prejudice against you and your family. Have you been falsely reported to Social Services, for example?]
[It is arguable that certain forms of home education such as unschooling or autonomous education could come under a protected characteristic of “religion or belief”. Do you think that you will be discriminated against on the basis of unschooling or AE or any other form of HE? ]
[Explain how you see this discrimination will impact you and your family.]
Wednesday, May 23, 2018
The Guardian on Flexischooling from 2009
The Guardian from 2009, but this is the current debate in home educating circles right now.
Monday, May 21, 2018
EHE Guidelines for LAs 2007 and 2016, and CME Guidance
EHELGA 2007 can be found here.
EHELGA 2013 can be found here.
============
Section 436A Guidance:
1. Children Missing Education Guidance 2007 and also here.
2. Children Missing Education 2009
3. Children Missing Education Guidance 2013
4. Children Missing Education Guidance 2016
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Brief summary of history of HEors exemption from s436A (CME)
2007 CME (1), exempts home educators from 436A twice. (in s2 and in section dealing with home ed)
2009 CME (2) exempts home educators in section on home education.
2013 CME (3) removes exemption of home educators, and removes all discussion of how the duty is to be enacted regarding home educators. Instead this version links to EHE Guidelines 2013 which says (confusingly):
2.6 Local authorities have a statutory duty under section 436A of the Education Act 1996, inserted by the Education and Inspections Act 2006, to make arrangements to enable them to establish the identities, so far as it is possible to do so, of children in their area who are not receiving a suitable education. The duty applies in relation to children of compulsory school age who are not on a school roll, and who are not receiving a suitable education otherwise than being at school (for example, at home, privately, or in alternative provision). The guidance issued makes it clear that the duty does not apply to children who are being educated at home.
==================
2005 Letter to Directors of Children's Services re CME
A history of Children Missing Education Guidance is here.
EHELGA 2013 can be found here.
============
Section 436A Guidance:
1. Children Missing Education Guidance 2007 and also here.
2. Children Missing Education 2009
3. Children Missing Education Guidance 2013
4. Children Missing Education Guidance 2016
==========
Brief summary of history of HEors exemption from s436A (CME)
2007 CME (1), exempts home educators from 436A twice. (in s2 and in section dealing with home ed)
2009 CME (2) exempts home educators in section on home education.
2013 CME (3) removes exemption of home educators, and removes all discussion of how the duty is to be enacted regarding home educators. Instead this version links to EHE Guidelines 2013 which says (confusingly):
2.6 Local authorities have a statutory duty under section 436A of the Education Act 1996, inserted by the Education and Inspections Act 2006, to make arrangements to enable them to establish the identities, so far as it is possible to do so, of children in their area who are not receiving a suitable education. The duty applies in relation to children of compulsory school age who are not on a school roll, and who are not receiving a suitable education otherwise than being at school (for example, at home, privately, or in alternative provision). The guidance issued makes it clear that the duty does not apply to children who are being educated at home.
==================
2005 Letter to Directors of Children's Services re CME
A history of Children Missing Education Guidance is here.
Sunday, May 20, 2018
Does s436A Test for Suitability or Not?
This, on top of Pam's Problems is the question that is taxing Home Educators right now.
It is transparently obvious that if home educators are asked, under 436A, to prove that their educational provision is suitable, there would be a gross inequity under that section, since schooling parents would only have to prove that they are sending their child to school in order to satisfy s436A and the question of whether that schooling provision is actually suited to the ability and aptitude of the child can go hang. Forget the fact that the school might be in special measures and that the pupil spends his time either staring out the window or sitting outside the head's office. That education, because it happens in school, is apparently under 436A "suited to his age, ability and aptitude"!
Given the way 436A is actually worded, ie: that local authorities have a
436A Duty to make arrangements to identify children not receiving education
(1) A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—
(a) are not registered pupils at a school, and
(b) are not receiving suitable education otherwise than at a school
this on the face of it seems a literal, if completely unjust, interpretation of the section. Naturally Home Educators are pretty darn cross about this inequity and are kicking off about it big time.
But that isn't the only problem with testing for suitability at 436A, because the fact of the matter is that there is a test for suitability of educational provision for home educators at s437 as well.
The question must be: how can you have two different places in the same Act (The Education Act 1996) which create two different routes by which a power of determination of suitability can be made, ie: one completely undefined process at 436A and then another totally different, well defined system in section s437 which involves checks and balances in the form of the courts?
The draft LA Guidance where LAs are encourged to use 436A to test for suitability, page 14:
6.4 The department’s advice is that in all cases where it is not clear as to whether home education is suitable (including situations where there is no information available at all), the authority should attempt to resolve those doubts through informal contact and enquiries. An authority’s s.436A duty (and that under s.437, see below) forms sufficient basis for informal enquiries. Furthermore, s.436A creates a duty to adopt a system for making such enquiries.
would make no sense were it not for the fact that 436A is being touted by the DfE as a way of avoiding the right of appeal by parents to the courts through the normal judicial process since s436A gives no protection to parents against a decision by an unaccountable local authority, where s437 actually does give such protection through the courts.
For this, see paragraph 6.19 (p17) of the Draft Guidance for LAs:
"6.19. The department is aware that some local authorities have been reluctant to prosecute for non-compliance with a school attendance order, for reasons connected with costs, and the behaviour of some parents who deliberately withhold information about home education provision but are then able to easily satisfy the court that the home education is suitable."
This is particularly important in this kind of case where a determination of unsuitability of educational provision by the parents could lead to a criminal prosecution. It fails the most basic test of natural justice where an LA is given powers of determination over suitability of educational provision with absolutely no immediate check or balance upon their powers.
That's of course putting aside all other worries parents have of the LA having far more resources than they do when it comes to going to the courts.
It is transparently obvious that if home educators are asked, under 436A, to prove that their educational provision is suitable, there would be a gross inequity under that section, since schooling parents would only have to prove that they are sending their child to school in order to satisfy s436A and the question of whether that schooling provision is actually suited to the ability and aptitude of the child can go hang. Forget the fact that the school might be in special measures and that the pupil spends his time either staring out the window or sitting outside the head's office. That education, because it happens in school, is apparently under 436A "suited to his age, ability and aptitude"!
Given the way 436A is actually worded, ie: that local authorities have a
436A Duty to make arrangements to identify children not receiving education
(1) A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—
(a) are not registered pupils at a school, and
(b) are not receiving suitable education otherwise than at a school
this on the face of it seems a literal, if completely unjust, interpretation of the section. Naturally Home Educators are pretty darn cross about this inequity and are kicking off about it big time.
But that isn't the only problem with testing for suitability at 436A, because the fact of the matter is that there is a test for suitability of educational provision for home educators at s437 as well.
The question must be: how can you have two different places in the same Act (The Education Act 1996) which create two different routes by which a power of determination of suitability can be made, ie: one completely undefined process at 436A and then another totally different, well defined system in section s437 which involves checks and balances in the form of the courts?
The draft LA Guidance where LAs are encourged to use 436A to test for suitability, page 14:
6.4 The department’s advice is that in all cases where it is not clear as to whether home education is suitable (including situations where there is no information available at all), the authority should attempt to resolve those doubts through informal contact and enquiries. An authority’s s.436A duty (and that under s.437, see below) forms sufficient basis for informal enquiries. Furthermore, s.436A creates a duty to adopt a system for making such enquiries.
would make no sense were it not for the fact that 436A is being touted by the DfE as a way of avoiding the right of appeal by parents to the courts through the normal judicial process since s436A gives no protection to parents against a decision by an unaccountable local authority, where s437 actually does give such protection through the courts.
For this, see paragraph 6.19 (p17) of the Draft Guidance for LAs:
"6.19. The department is aware that some local authorities have been reluctant to prosecute for non-compliance with a school attendance order, for reasons connected with costs, and the behaviour of some parents who deliberately withhold information about home education provision but are then able to easily satisfy the court that the home education is suitable."
This is particularly important in this kind of case where a determination of unsuitability of educational provision by the parents could lead to a criminal prosecution. It fails the most basic test of natural justice where an LA is given powers of determination over suitability of educational provision with absolutely no immediate check or balance upon their powers.
That's of course putting aside all other worries parents have of the LA having far more resources than they do when it comes to going to the courts.
Problems for Pam (A Home Educating Parent).
...or in other words, the issues that arise from the government's re-interpretation of 436A and other areas of mission creep that may be found in the draft EHE Guidance, upon which the DfE is consulting at the moment.
In a previous post, we discussed how mission creep in the interpretation of 436A makes it seem as if home educating families are to be inspected for the suitability of their educational provision under 436A, ie: whether or not there is any reason to think that there is a problem with their provision.
But, why the fuss, you may ask? Given that home educators are often already inspected for their provision under section 437, why are they kicking off about something that happens anyway?
Well for starters, the re-interpretation of 436A will give rise to situations such as the following:
Pam's story:
Even though Pam and her family are known to their LA, (having de-registered the children from school and having represented other HEors at LA meetings), since Pam appears capable of providing a suitable education, she has never once been checked by the LA for the suitability of her educational provision.
Now under the draft guidance's strong interpretation at para 6.4 (page 14) of 436A, where it states:
"An authority’s s.436A duty (and that under s.437, see below) forms sufficient basis for informal enquiries. Furthermore, s.436A creates a duty to adopt a system for making such enquiries."
the LA will now take it that they have a duty to check Pam's educational provision for suitability and that Ofsted may be on their backs if they don't do this.
But that's not the end of it. Where Pam, up till now, only had to convince a Local Authority to a standard that would convince a reasonable person (ie: as if in the courts) that she is providing a suitable education and it would have been perfectly possible to do this in writing or on the most cursory of contact with the LA, now Pam must dance to the any old tune that the LA decides upon. Depending on which side of the bed the LA officer gets out of in the morning, and whether or not Ofsted is on his/her back, he/she might decide that "informal inquiries" must mean that they must inspect Pam's children every few weeks, and that they must be studying quantum physics 12 hours a day, given that Pam's children look as if they have the aptitude and ability for it and that this would therefore be a suitable education for them.
You might think this all a bit unlikely, given that LAs have never previously insisted that anyone do quantum physics before breakfast simply on the basis that the young person has the ability to do it, but there are a number of reasons to be worried that LAs will suddenly start imposing more demands regarding suitability upon HEors, and this is quite apart from the mission creep at 436A and the example from other parts of the world of how things can so easily go downhill in this regard, eg: in France, where a re-writing of HE law allows for all manner of capricious assessments of suitability . Quite apart from all this, the draft guidance also prompts for LAs to impose a minimum standard for suitability of education which is completely new, eg:
"a local authority may specify minimum requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable;"
Who knows what those minimum standards may be. Many unschooled young people don't learn to read until much later than the average schooled child and yet go on to do exceptionally well in public exams, quite a few of them scoring 100% in their English coursework, for example. But all this could go out the window if the LA decide that the minimum requirement is that everyone is reading "War and Peace" aged 10 just because they have the ability to do it.
There is also the fact that under 436A, there are no checks and balances upon an LA in terms of deciding upon the nature of a suitable education, where under s437, there is such a check and balance, since if LAs wish to pursue a parent to show that they are failing in their s7 duties under s437, an LA must follow the procedure of issuing a School Attendance Order which then, if challenged by the family, would involve the check and balance of a court procedure. Under 436A however, an LA can set their own terms pretty freely, and for example, repeatedly check up upon, chivy, harass and generally brow-beat Pam into doing whatever the LA says, without even bothering to resort to using 437. Pam therefore ends up either teaching her children quantum physics before breakfast or sending them back to school in order to get the LA off her back.
There is also the fact that parental determinations of educational suitability are breezily dismissed in the draft guidance under Article 2 Protocol 1 of ECHR. Article 2, Protocol 1 states that:
"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions."
but the draft guidance says (page 25):
"d. the first sentence of ECHR Article 2 of Protocol 1 quoted above confers the fundamental right to an effective education, and relevant case law (16) confers very broad discretion on the state in regulating that law. For example, a local authority may specify minimum requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable.
The (16) in the above paragraph refers to a family in Germany who were not allowed to HE according to their religious convictions. From this, we must infer that the DfE is encouraging LAs believe they have similar latitude with regard to how they define suitability of educational provision, even though the legal framework that supported the German ruling is completely different to the one in the UK. This, in itself, should be sufficient reason to respond to the consultation.
The draft guidance also explicitly gives LAs a lot of latitude with deciding how to define suitability which when you consider the powers LAs now have as a result of the Localism Act 2011 could mean that LAs could specify almost anything they like by way of minimum requirements of an education.
From the guidance on the Localism Act: (page 7):
"Local authorities’ powers and responsibilities are defined by legislation. In simple terms, they can only do what the law says they can. Sometimes councils are wary of doing something new - even if they think it might be a good idea - because they are not sure whether they are allowed to in law, and are concerned about the possibility of being challenged in the courts. The Government has turned this assumption upside down. Instead of being able to act only where the law says they can, local authorities will be freed to do anything - provided they do not break other laws."
Read that together with the following:
"9.5 The department (the DfE) does not, however, believe that it is in the interests of home educated children, parents or local authorities for there to be detailed centralised guidance on what constitutes suitability. This issue should be viewed on a spectrum, and although there will be clear conclusions to be drawn at either end of that spectrum, in between each case must rest on a balance of relevant factors depending on the circumstances of each child."
and whilst it would be possible to read this as actually a deep respect for the spirit of s7, ie: that an education must be suited to the age, ability and aptitude of a child, there could nonetheless be a real and deep differences of opinion between LA and an HEing family here, given that no-one can ever be sure whether an education is genuinely suited to a person's ability and aptitude, (forget the issue of age, as the qualities of ability and aptitude subsume that consideration when it comes to determining suitability). There is even a problem in the tension between "ability" and "aptitude" since these are not the same things and depending on which one you chose to use as an assessment tool, may result in a differences in the type of education that is deemed suitable. So for example, whilst Pam's children clearly have the ability to understand quantum physics, they may have next to no interest (a component of aptitude) for doing it. The LA may insist Pam educate her children according to their clear ability, whereas Pam may prefer to offer an education suited to their aptitude!
Under the new draft guidance, Pam may well not be able to insist upon her version of suitability until far further down the line, at 437, when she may have already been routinely harassed and bullied by her LA.
All in all, after reading the small print, and giving it due thought, it becomes increasingly obvious why home educators should reply to the Call for Evidence with strong arguments as to how this is constitutionally disastrous. The proposals are deeply undemocratic, dangerous and have the potential to lead to the de facto piecemeal end of home education in this country.
This is, of course, putting aside all arguments about practicality. None of the proposals will actually work to help children who really ARE in need. It will cost LAs a huge amount of money to pursue a lot of difficult but otherwise successfully home educating HEors who don't want to be pursued, money which would be far better spent on Social Work departments who cannot cope with their current workload, all the while loading these departments with a load of false positives which which will result from a reinterpretation of 436A.
Current interpretation of law could suffice and were applied in a reasonable and proportionate manner. Let's help the DfE understand this point in our Call for Evidence responses.
For a helpful summary of the implications of a the draft guidance's interpretation of 436A v. the use of s437 , coupled with the Localism Act and an ambiguous discussion of the nature of a suitable education (page 24 in the draft guidance) and parental rights, please see this table:
In a previous post, we discussed how mission creep in the interpretation of 436A makes it seem as if home educating families are to be inspected for the suitability of their educational provision under 436A, ie: whether or not there is any reason to think that there is a problem with their provision.
But, why the fuss, you may ask? Given that home educators are often already inspected for their provision under section 437, why are they kicking off about something that happens anyway?
Well for starters, the re-interpretation of 436A will give rise to situations such as the following:
Pam's story:
Now under the draft guidance's strong interpretation at para 6.4 (page 14) of 436A, where it states:
"An authority’s s.436A duty (and that under s.437, see below) forms sufficient basis for informal enquiries. Furthermore, s.436A creates a duty to adopt a system for making such enquiries."
the LA will now take it that they have a duty to check Pam's educational provision for suitability and that Ofsted may be on their backs if they don't do this.
But that's not the end of it. Where Pam, up till now, only had to convince a Local Authority to a standard that would convince a reasonable person (ie: as if in the courts) that she is providing a suitable education and it would have been perfectly possible to do this in writing or on the most cursory of contact with the LA, now Pam must dance to the any old tune that the LA decides upon. Depending on which side of the bed the LA officer gets out of in the morning, and whether or not Ofsted is on his/her back, he/she might decide that "informal inquiries" must mean that they must inspect Pam's children every few weeks, and that they must be studying quantum physics 12 hours a day, given that Pam's children look as if they have the aptitude and ability for it and that this would therefore be a suitable education for them.
You might think this all a bit unlikely, given that LAs have never previously insisted that anyone do quantum physics before breakfast simply on the basis that the young person has the ability to do it, but there are a number of reasons to be worried that LAs will suddenly start imposing more demands regarding suitability upon HEors, and this is quite apart from the mission creep at 436A and the example from other parts of the world of how things can so easily go downhill in this regard, eg: in France, where a re-writing of HE law allows for all manner of capricious assessments of suitability . Quite apart from all this, the draft guidance also prompts for LAs to impose a minimum standard for suitability of education which is completely new, eg:
"a local authority may specify minimum requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable;"
Who knows what those minimum standards may be. Many unschooled young people don't learn to read until much later than the average schooled child and yet go on to do exceptionally well in public exams, quite a few of them scoring 100% in their English coursework, for example. But all this could go out the window if the LA decide that the minimum requirement is that everyone is reading "War and Peace" aged 10 just because they have the ability to do it.
There is also the fact that under 436A, there are no checks and balances upon an LA in terms of deciding upon the nature of a suitable education, where under s437, there is such a check and balance, since if LAs wish to pursue a parent to show that they are failing in their s7 duties under s437, an LA must follow the procedure of issuing a School Attendance Order which then, if challenged by the family, would involve the check and balance of a court procedure. Under 436A however, an LA can set their own terms pretty freely, and for example, repeatedly check up upon, chivy, harass and generally brow-beat Pam into doing whatever the LA says, without even bothering to resort to using 437. Pam therefore ends up either teaching her children quantum physics before breakfast or sending them back to school in order to get the LA off her back.
There is also the fact that parental determinations of educational suitability are breezily dismissed in the draft guidance under Article 2 Protocol 1 of ECHR. Article 2, Protocol 1 states that:
"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions."
but the draft guidance says (page 25):
"d. the first sentence of ECHR Article 2 of Protocol 1 quoted above confers the fundamental right to an effective education, and relevant case law (16) confers very broad discretion on the state in regulating that law. For example, a local authority may specify minimum requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable.
The (16) in the above paragraph refers to a family in Germany who were not allowed to HE according to their religious convictions. From this, we must infer that the DfE is encouraging LAs believe they have similar latitude with regard to how they define suitability of educational provision, even though the legal framework that supported the German ruling is completely different to the one in the UK. This, in itself, should be sufficient reason to respond to the consultation.
The draft guidance also explicitly gives LAs a lot of latitude with deciding how to define suitability which when you consider the powers LAs now have as a result of the Localism Act 2011 could mean that LAs could specify almost anything they like by way of minimum requirements of an education.
From the guidance on the Localism Act: (page 7):
"Local authorities’ powers and responsibilities are defined by legislation. In simple terms, they can only do what the law says they can. Sometimes councils are wary of doing something new - even if they think it might be a good idea - because they are not sure whether they are allowed to in law, and are concerned about the possibility of being challenged in the courts. The Government has turned this assumption upside down. Instead of being able to act only where the law says they can, local authorities will be freed to do anything - provided they do not break other laws."
Read that together with the following:
"9.5 The department (the DfE) does not, however, believe that it is in the interests of home educated children, parents or local authorities for there to be detailed centralised guidance on what constitutes suitability. This issue should be viewed on a spectrum, and although there will be clear conclusions to be drawn at either end of that spectrum, in between each case must rest on a balance of relevant factors depending on the circumstances of each child."
Under the new draft guidance, Pam may well not be able to insist upon her version of suitability until far further down the line, at 437, when she may have already been routinely harassed and bullied by her LA.
All in all, after reading the small print, and giving it due thought, it becomes increasingly obvious why home educators should reply to the Call for Evidence with strong arguments as to how this is constitutionally disastrous. The proposals are deeply undemocratic, dangerous and have the potential to lead to the de facto piecemeal end of home education in this country.
This is, of course, putting aside all arguments about practicality. None of the proposals will actually work to help children who really ARE in need. It will cost LAs a huge amount of money to pursue a lot of difficult but otherwise successfully home educating HEors who don't want to be pursued, money which would be far better spent on Social Work departments who cannot cope with their current workload, all the while loading these departments with a load of false positives which which will result from a reinterpretation of 436A.
Current interpretation of law could suffice and were applied in a reasonable and proportionate manner. Let's help the DfE understand this point in our Call for Evidence responses.
For a helpful summary of the implications of a the draft guidance's interpretation of 436A v. the use of s437 , coupled with the Localism Act and an ambiguous discussion of the nature of a suitable education (page 24 in the draft guidance) and parental rights, please see this table:
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