I’ve just submitted my response to the government consultation on home education (closes 2 July). The consultation documents (a call for evidence, and proposed guidance for local authorities and for parents) are the most poorly drafted I’ve ever seen. Home education is an obscure area of the law. Here’s why I’m interested…and why you should be too.
Home education is described as ‘elective’ because parents choose it. There wasn’t much choice in our case. One kid wasn’t well enough to continue attending school, but the local authority (said it) couldn’t provide home tuition because the consultant couldn’t give a date for return to school. School provision for the other fell apart after the school’s brilliant SENCO left and we couldn’t find a nearby suitable alternative.
When we started home-educating, the LA offered a visit from an ‘adviser’. I accepted – I did have a few SEN questions. But the ‘adviser’ said he couldn’t advise because home education was my responsibility; his job was to assess the suitability of my provision. He arranged for a colleague with SEN experience to visit. The colleague was willing to advise, but his advice contradicted that of the occupational therapist. I didn’t accept any more home visits.
My local authority isn’t the only one confused about its duties towards home-educated children. At least two sets of government guidelines have been issued to clarify LA obligations, the most recent in 2007. In 2009, the then Labour government commissioned a review of elective home education by Graham Badman, newly appointed chair of Haringey Local Children’s Safeguarding Board in the wake of the Baby P tragedy. (I’ve blogged about the political background to the Badman review here.)
it’s the law
The current legislative model for home education starts with an education suitable for the individual child. Parents have a legal duty to cause their child to have such an education (s.7 Education Act 1996) – wherever it takes place. LAs should make enquiries ‘if it appears’ a child isn’t receiving a suitable education (s.437(1) EA 1996), and must make arrangements for identifying children not receiving a suitable education (s.436A EA 1996).
In other words, parents are assumed to be complying with the law unless there is evidence indicating they might not be, at which point the LA can take action. This model is commonly applied in respect of other legal duties for individuals (e.g. taxation, vehicle registration). It’s not watertight – no model is – but it’s the most effective approach we’ve found to date.
Graham Badman’s conceptual model of the legislative framework was different. He saw home education as requiring a ‘balance’ between the parent’s and the child’s rights. But parents don’t have a ‘right’ to home educate, they have a duty to provide a suitable education. And legislation has to take into account the interests of different parties within the existing legislative framework, not to ‘balance’ rights regardless of the framework.
Badman’s conceptual model was way off the mark, but at least he explained it, and his recommendations were internally consistent with it, even if they were at odds with the legislative framework. The new proposals are all over the place.
The consultation was prompted by “lacunae or shortcomings in the current legislation which have been drawn to the department’s attention by local authorities and by local children’s safeguarding boards” (2.3)*, i.e. organisations experiencing ‘confusion’ (2.3e), being involved in frequent disputes with parents (5.4), and for whom the previous guidelines had to be written. Despite very diverse views about legislation amongst home-educating families, there’s no indication they were involved in framing the consultation documents.
Local authorities’ main concerns are:
- Home-educated children being radicalised.
- Children attending unregistered schools under the guise of being home-educated.
- LAs being unable to identify children not receiving a suitable education unless they know the identities of home-educated children, can find out whether or not a child’s education is suitable, and can monitor it regularly.
- Home-educated children might be at risk of harm.
- Some parents “willing and able to be fined repeatedly can continue unsatisfactory provision of home education indefinitely” (L6.20).
The focus of the consultation documents is on compiling registers of children and the sanctions that can be imposed on parents who don’t co-operate with the local authority, rather than on how best to ensure all children get the suitable education defined in law.
Proposals for change include;
- compulsory registration of home-educated children
- regular monitoring
- LAs should have access to the child
- LAs should know the views of the child about home education
- not receiving a suitable education constituting a safeguarding issue.
The first three proposals have long been on the LAs’ wishlist because LAs believe those measures will pick up children not receiving a suitable education or at risk of harm. There is no evidence to support that belief. In fact, any evidence was noticeable by its absence from the consultation documents.
absence of evidence
Local authorities frequently see the majority of children getting a perfectly adequate (often very good) education in schools. They rarely see the substantial number who end up not attending school, in pupil referral units (PRUs), or being educated at home.
They also see a very small number of shockingly memorable cases of children educated at home who are neglected or abused. What they don’t see is the large number of home-educated children who get a perfectly adequate (often very good) education at home, and are completely safe and well.
I can’t find figures for the number of school attendance orders issued by local authorities – which suggests it’s very small. Fewer than 0.4% of home educated children had child protection plans in 2009 (see the parliamentary exchange about that here ). And in none of the cases of neglect or abuse cited as examples of the risk to home-educated children, have the children been previously unknown to the authorities. In fact, in several of the cases cited by the NSPCC, the failure of the authorities to follow procedures properly contributed to the harm experienced by the child.
If you don’t have evidence of the extent of a perceived problem, or of the effectiveness of your proposed solutions, your argument is based on speculation, and speculation knows no bounds. As a consequence, the consultation documents:
- cherry-pick human rights
States that have ratified the United Nations Convention on the Rights of the Child or are party to the European Convention on Human Rights must have regard to all the Articles when they legislate – not just those that support recommendations governments happen to think are a good idea. The Articles about a private family life weren’t mentioned.
- ignore legislative principles
Even when human rights conventions were a mere twinkle in the eyes of politicians and lawyers, UK law enshrined principles such as the presumption of innocence, protection from undue state intervention, and reliance on evidence. The consultation documents blithely ignore all three.
- change the wording of the legislation
Some legislation is cited inaccurately in a way that changes its meaning e.g Part V Children Act 1989 (L7.8) – the ‘reasonable cause’ threshold.
- extend the original scope of the legislation
For example, the duty to make arrangements to identify children not receiving a suitable education (s.436A EA 1996), is turned into a duty to find out whether or not a child is receiving a suitable education, exceeding the ‘if it appears’ limitation imposed by s.437(1).
- cite irrelevant legislation
For example in L9.4c, s.13 EA 1996 (availability of primary and secondary education) and s.175 EA 2002 (general duty to promote and safeguard children’s welfare). Some legislation is referred to despite being described as irrelevant e.g. s.17A Children Act 1989 (L10.2).
- conflate education and safeguarding
Despite warning against conflating education and safeguarding, which are distinct issues in law, section 7 of the guidance for LAs and section 5 of the guidance for parents proceed to do precisely that. These very muddled sections appear to be the result of LAs wanting a way to deal with the small number of parents mentioned in L6.20.
- assume average is normative
Requirements and advice for schools are cited despite being irrelevant to home-educated children e.g. L9.4. Children vary widely – they are not departures from the ‘average’ (L9.4e).
- focus on bureaucracy
The focus of the law is on an education suitable for the individual child. The focus of the consultation, in contrast, is on compiling a register of children not receiving an education suitable to the average child, and on compliance by local authorities and parents.
- offer sanctions not support
The consultation emphasises sanctions that can be imposed on parents who fail to co-operate with LAs. Significantly it does not propose a statutory duty for local authorities to provide advice and support for home educating families. This calls into question the claim that children receiving a suitable education is a local authority’s chief concern.
take home lessons
Whoever drafted the 2007 EHE Guidelines understood the legislation, its purpose and the principles behind it. The current consultation documents appear to have been drafted by someone who sees legislation as being about people’s views; and whoever cites the most pieces of legislation bearing a superficial resemblance to their view, wins.
For many children, home education is their last shot at getting a suitable education. If there’s evidence that home education is causing them significant problems, let’s see it. If there’s evidence to support the proposed changes to the law, let’s see that too. And consult on that, not whatever local authorities think would make their lives easier regardless of the impact it might have on local families.
If the Department for Education can produce consultation documents as poor as these in respect of home education, they can do it for other areas of education too. Parents of children with SEND, beware!
*References in brackets are to the consultation document. References prefixed L are the proposed guidance for LAs.