help: NSPCC briefing on home education

The NSPCC briefing Home education: learning from case reviews highlights recommendations from seven serious case reviews (SCRs) published between 2008 and 2013 involving home-educated children. [The full briefing has since been replaced with a summary, but the original is still accessible here. Also note that the Serious Case Review for Child S listed in the NSPCC summary is for the wrong Child S.]

In the previous post I mentioned that the primary purpose of legislation is to protect the liberty of the individual. Historically the primary purpose of national government has been to protect liberty by defending the nation from attack from abroad, and of local government to do so by maintaining law and order.

But you’re unlikely to enjoy your liberty very much if you’re starving, sick or homeless. The massive increase in urban populations following the industrial revolution eventually resulted in the UK government, national and local, turning its attention to people’s quality of life. Over the last century or so national education, health and social care systems have been developed. Currently, education and healthcare are universal services, available to all. Significantly, social care isn’t.

social care for children and families

The parent of any child ‘in need’ according to the criteria set out in s.17 of the Children Act 1989 can request a social care assessment. The definition of a child ‘in need’ can be summarised as;

• unlikely to achieve or maintain a reasonable standard of health or development without the provision of services by a local authority
• health or development is likely to be significantly impaired, or further impaired, without the provision of such services; or
• disabled.

But there appear to be a number of hoops to jump through before a child ‘in need’ can hope to access support.

The first hoop is meeting the eligibility criteria for an initial assessment. Here, for example, are those of the Royal Borough of Greenwich. I’m not knocking the Royal Borough. Their criteria are explicit and specific. At least you know where you stand.

The second hoop is an initial assessment that determines whether or not the child is sufficiently ‘in need’ to be eligible for a core assessment. For many local authorities, the criterion for a core assessment is not so much about the child’s needs as about whether they are at risk.

The third hoop, the core assessment, presumably identifies what sort of support the child needs. Or not.

Despite s.17 of the Children Act 1989 saying

It shall be the general duty of every local authority…
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children’s needs.

the current focus of social care services appears to be on the safeguarding element of their general duties, not on the promotion of welfare element. The initial assessment prioritises safeguarding children already ‘in need’, not on preventing them from becoming ‘in need’ in the first place. This looks rather like locking the stable door after the horse has bolted.

In practice, it means you could be the parent of three children, each with complex disabilities and Statements of Special Educational Needs and repeatedly excluded from school, have a broken marriage and be estranged from your extended family as a consequence, be seriously sleep deprived, suffering from a bunch of mental and physical health problems and be unable to hold down a job because of your caring responsibilities, but if your children are not deemed to be at risk of harm or of harming others, you can still not be eligible for a core assessment.

Local authorities justify rationing support in this way by saying they must prioritise children who are most in need. On the face of it, this looks like a responsible use of taxpayers’ money. It isn’t of course. Low-level social problems don’t just resolve themselves because services are rationed; the costs are simply shifted elsewhere. Parents and children absorb many of the costs – financial and in terms of quality of life. Schools are expected to patch together the children’s lives and parents and children pitch up at GP practices with recurrent health problems. And in many cases social services end up having to support families anyway once their problems have escalated to the point where the children are deemed to be at risk of harm.

safeguarding

The task of safeguarding as presented in the seven SCRs involving home-educated children has three main features;

• identifying children already at risk
• monitoring their welfare
• intervening before they can come to harm

The focus of politicians, the media and the SCRs themselves has been on the failure to intervene in time to stop the children being harmed. The focus of those advocating increased regulation of home education is on monitoring the children’s welfare. The focus of social care assessments is on identifying children already at risk. It’s clear from the SCRs that none of the three features provide any guarantee that a child will stay safe – almost 30% of all children who were the subject of a SCR have had current or discontinued child protection plans. So why the focus on identifying, monitoring and intervention?

promoting welfare

The purpose of the seven SCRs was to examine the specific circumstances that led to a child coming to serious harm, not to catalogue all the support families received, so there’s little mention of what help parents asked for and what help they got. Most home educating families don’t want or need help, but in all seven cases cited by the NSPCC briefing parents had approached the authorities voluntarily at some point. That might simply have been impression management on their part, but let’s assume for the moment the approach was a request for help. What did they ask for? The evidence suggests that in six cases it involved specialist expertise; about developmental disorders, complex health problems, special educational needs, mental health and adoption. Specialist expertise isn’t always easy to access. Parents with children not deemed to be at risk have long reported difficulties getting it.

But not all the help needed was so highly specialised. In two cases, there were problems with housing. Child 3’s mother had sold all her furniture in an attempt to avoid the house being repossessed; it was during repossession that her daughter’s body was discovered. The chaos and tragedy into which Child 4’s family was precipitated appears to have been triggered by the mother’s attempts to improve their circumstances; she went on a diet, her partner moved in and she planned to relocate the family to a better neighbourhood. But her ‘healthy eating’ regime deprived her children of food, her partner had a troubled history, and she couldn’t get a tenancy transfer until she had ‘tidied up’ the house – the children had scribbled on the walls. Mrs Justice King, hearing the application for a care order for the surviving children, noted the chaos that the family descended into as a result of the mother’s partner attempting to lay laminate flooring throughout the house. Without wishing to trivialise the tragedy that followed, the outcome might have been very different if a lone parent with six children, some of whom had significant learning difficulties, had had access to old-fashioned services like meals on wheels and home help.

In some cases, the help the families did get appears to have made things worse. One parent experienced frustrating delays getting responses from the EOTAS service. Health interventions included two cases of over-prescription of medication, no conclusive diagnosis, being removed from a GP list and a suspicion of Fabricated or Induced Illness. Parents did get appointments with professionals – 130 in a year in one case, but the focus of social care appeared to be on assessing the risk to the children, rather than providing the support the family needed to lessen the risk. This might go some way to explaining the ‘combative’ and ‘aggressive’ attitude of parents.

Social workers, understandably, point out that a focus on high profile cases where they have failed to prevent children coming to harm doesn’t take into account the thousands of children that they help. That’s undoubtedly true, although I’ve never heard social workers elaborating on what sort of help families get; a recent interview on Radio 4’s Woman’s Hour (from 33m 40s) is a case in point. But I don’t think it’s the social workers who are responsible for the difficulty families have in getting help; the way social care services are designed makes this situation inevitable.

it’s the system

Most of us, at some times in our life, are faced with challenges we can’t cope with on our own. Some people have robust social networks they can call on for help. For others, their social networks are part of the problem. That’s what public sector services are for; to help people cope with those challenges.

In the early 1900s, the first social worker training course offered by the University of Birmingham included topics like British constitution, industrial history, economic analysis, statistics, law, and sanitation and hygiene. The emphasis was on understanding the wider context for the problems families faced. In the intervening decades, the focus has shifted from designing systems that improve people’s lives, to resolving individuals’ specific problems, to, more recently, a preoccupation with procedures.

For example, the 2013 statutory guidance Working Together to Safeguard Children reads less like statutory guidance than a handbook consisting of 97 pages of advice. Some of the advice is probably useful – there are flow charts for different types of cases, for example. But is it really necessary to tell experienced professionals planning a strategy discussion that it “might take the form of a multi-agency meeting or phone calls and more than one discussion may be necessary” (p.33)? It’s not surprising, with this level of micromanagement and the dire consequences of not paying attention to it, that local authorities’ focus is on following the procedures related to safeguarding rather than on promoting children’s welfare.

failure demand

If people don’t get the help they need when they need it, their problems don’t just go away. Services then have to deal with repeat referrals, complaints and worsening problems. This is what John Seddon calls ‘failure demand’ – demand caused solely by a failure to do the job properly in the first place. Successive governments have believed that the obvious way to deal with shortcomings is to use carrots and sticks to get services back on the strait and narrow. Unfortunately, the obvious way isn’t always the most effective. The focus of those working in the public sector has gradually shifted away from serving the public towards collecting the carrots and avoiding the sticks.

Increasing regulation in response to service failures, which is how government has responded and what the SCRs and the NSPCC recommend, won’t help. It will simply add to the services’ workload and make it even more difficult for them to help the people who need it. Counter-intuitively, what would reduce demand and service failures is making social care universally accessible and ensuring that front line professionals have the expertise, resources and flexibility to help prevent minor problems escalating into major ones. Not only is that likely to reduce overall demand but it could also make people’s lives better.

risk: NSPCC briefing on home education

This is the fourth in a series of posts prompted by the NSPCC briefing Home education: learning from case reviews. The briefing highlights recommendations from seven serious case reviews (SCRs) published between 2008 and 2013 involving home-educated children. [The full briefing has since been replaced with a summary, but the original is still accessible here. Also note that the Serious Case Review for Child S listed in the NSPCC summary is for the wrong Child S.] Also note that the Serious Case Review for Child S listed in the NSPCC summary is for the wrong Child S.] In my view, the briefing’s perspective on home education legislation is based on a misunderstanding of the legal framework that underpins it. I think the briefing also misunderstands how the law tackles risk.

legislation and education

In a democracy, the primary function of legislation is to protect the liberty of individuals. But there’s a tension inherent in that principle because protecting the liberty of one person usually means limiting the liberty of another. So legislators have to weigh up the costs and benefits of legislation to different people. I think this is what Graham Badman was getting at when he opened his 2009 report on elective home education (EHE) with a quotation from Isaiah Berlin’s Four Essays on Liberty:

The need to choose, to sacrifice some ultimate values to others, turns out to be a permanent characteristic of the human predicament

But Badman then goes on to frame UK education legislation relevant to EHE in terms of a “balance between the rights of the parents and the rights of the child” (p.3). Not only is the legislation not about ‘balance’, it’s not framed in terms of ‘rights’ either, although its purpose is to protect children’s liberty; it’s about parents and local authorities having specific duties that they are required to carry out in certain circumstances. Giving people duties doesn’t sound like it protects anyone’s liberty. It does in the case of education because education should help people understand how the world works and understanding how the world works helps people protect their own liberty and that of others. Under UK law, parents have primary responsibility with regard to educating children and local authorities have powers to step in if the parent asks them to or if it appears that the parent is in breach of the law.

What Badman, the NSPCC and many local authorities are most concerned about is the risk of harm to children educated at home. They argue that home-educated children are denied safeguards applied to children who attend school. In their view, home-educated children are by definition at risk of suffering harm that ‘the authorities’ wouldn’t be able to prevent because they wouldn’t know about it. What they are concerned about is a hypothetical risk.

legislation and the risk of harm

The law takes a dim view of harm and much legislation is about protecting people from it. But hypothetical risks pose a problem for the law because there’s an almost infinite number of them and it would be impossible (and sometimes counterproductive) to legislate against them all. As a consequence, legislation is almost invariably based on evidence of real risk.

For example, Mr A might take it into his head to go on a shooting spree and kill and injure several passers-by. To say that there’s substantial evidence that being killed or injured constitutes a real risk of harm is a something of an understatement, so the law prohibits people from killing and injuring each other. The real risks associated with people being killed or injured are pretty clear-cut. Other risks aren’t so straightforward, such as the consequences of not wearing a seat belt when motoring.

In the 1970s Ms B might have argued that she’d been driving in the UK for forty years without a seat belt and had come to no harm – and even if she did it would be her lookout, so making the use of seat belts compulsory was nothing more than an infringement of her liberty. All that Ms B’s evidence tells us is that not wearing a seat belt doesn’t inevitably lead to harm. As for it being only her business, if she’d been thrown through the windscreen she wouldn’t be the one picking up the pieces; personal tragedies have a wide impact.

On the face of it, the campaign for seat belt legislation and motorists’ objections to it look remarkably like calls to tighten up home education legislation and parents’ objections to that. One obvious difference is that they involve very different activities. A less obvious difference is whether there is evidence showing that not wearing a seat belt or educating children at home constitute real risks as distinct from hypothetical ones. Evidence of the real risk involved in not wearing a seat belt could be seen in casualty departments in hospitals up and down the land in the 1970s. Evidence shows that the real risk attached to being home educated is so vanishingly small that it’s non-existent.

major incidents and serious cases

In the BBC documentary Baby P: The Untold Story, Edi Carmi, who led the serious case review, observed that all the agencies involved made mistakes, but it was when they all happened at the same time that tragedy struck. Mistakes happening at the same time is a familiar scenario in risk management. It was a key factor in the Three Mile Island and Bhopal disasters. The people who design safety-critical systems like those in nuclear power stations and factories handling toxic chemicals take it for granted that mistakes will happen. But they design systems to ensure that if and when mistakes happen, they are very unlikely to happen at the same time. The key phrase is ‘very unlikely’. Systems designers can only minimise risk – they can’t eliminate it entirely.

One characteristic of major incidents is several rare events happening simultaneously; a plane crashes because two engines fail at the same time as a pilot is taken ill and a passenger has a heart attack. I expected to see a similar pattern of rare events coinciding in the seven SCRs; a social worker crashes her car on the way to visit a parent who’s just received a diagnosis of cancer and whose eldest child has just been arrested.

Instead, the SCRs paint a picture of long-term challenging circumstances for the families, coinciding with a series of commonplace mistakes on the part of the agencies supposed to be supporting them. The children in the seven SCRs were adopted, chronically sick, disabled, bereaved, had special educational needs or faced housing crises. The mistakes made by the agencies were typical of those made in organisations that are overstretched; staff lacked relevant knowledge or experience, there was high turnover and problems with cover. Information wasn’t passed on promptly, or wasn’t passed on at all. No one had an overview of individual cases and no one had time to check that procedures were being followed and agreed actions carried out.

home-education and risk

According to the NSPCC, there were seven cases of home-educated children coming to serious harm between 2008-2013 – around 1% of the total number of SCRs for the equivalent period. In the University of East Anglia’s biennial surveys of SCRs I could find no mention of any additional cases between 2003-2007 involving home-educated children. If those seven cases are the only ones in the last decade, the 1% proportion would be more or less halved. In other words, only very small proportion of children coming to serious harm were home-educated.

A closer look at the seven SCRs shows that being home educated doesn’t itself constitute a real risk to children – and that monitoring home-educated children doesn’t guarantee that they won’t come to harm. What characterized the part played by home education in the seven case reviews is local authority confusion about it. LA officers were unclear about the law, their statutory duties or about who was responsible for doing what. But the fact that home education posed a problem for ‘the authorities’ doesn’t mean that it put the children at risk. If there is no evidence of home education posing a real risk to children, why do some people working in child safeguarding think there is one?

risk perception

Child safeguarding, like any other specialist area, is a small world, and people working in a small world tend to use that world, rather than the wider context, as their frame of reference. Child safeguarding is also a difficult and stressful occupation and agencies are clearly overstretched and have been for some time. Professionals working under intense pressure with inadequate resources are likely to perceive unusual family circumstances such as children being educated at home, coupled with an inadequate understanding of the relevant legislation, the ensuing confusion about what procedures to follow, and the risk of serious consequences if they fail to protect a child, as a real risk when in fact it’s a hypothetical one. Research into risk perception suggests that people find it difficult to make a distinction between hypothetical risks and real ones. That’s why basing policy on evidence rather than opinion is so important.

The evidence shows that there are particular groups of children at real increased risk of harm; being a young child or using roads for example. Over 60% of all SCRs involve under-5s and around 2,000 children are killed or seriously injured on UK roads every year. Steps have been taken to reduce those risks through legislation, but legislators are aware that they are risks that are unlikely ever to be eliminated completely. By contrast the evidence indicates that that being home educated isn’t something that poses a real risk to children. Tightening up the legislation might make the people worried about a hypothetical risk feel better, but it can’t reduce a risk that doesn’t exist.

What did put the children in the seven SCRs at risk was a combination of challenging circumstances for their families and mistakes on the part of the agencies whose job is supposed to be to help them. In the next post I look at something the NSPCC briefing and the SCRs mention only in passing – what services were on offer to help the families with the challenges they faced.

NSPCC briefing on home education: the law

In March this year the NSPCC published a briefing entitled Home education: learning from case reviews. [The full briefing has since been replaced with a summary, but the original is still accessible here. Also note that the Serious Case Review for Child S listed in the NSPCC summary is for the wrong Child S.] The briefing is based on seven Serious Case Reviews (SCRs) published since 2008 ‘where elective home education was highlighted as a key factor’ and ‘consists of learning about child protection pulled from the published versions of the reports’.

I got the impression from the briefing that the seven cases involved tragic situations in which parents had neglected or abused children and that home education had played a significant role in that neglect and abuse. The picture painted by the SCRs themselves is somewhat different. In only three cases was there unambiguous evidence that parents and carers were directly responsible for the harm the child suffered. In only one case were local authorities unaware of the challenges faced by the families or of the risk to children. There were several examples of healthcare actually contributing to the harm. And the claims and recommendations highlighted in the briefing don’t accurately reflect the evidence in the SCRs.

The SCRs highlight important factors in the children coming to harm that the NSPCC briefing fails to mention. In order to understand how home education fits into the bigger picture, it needs to be seen in the context of those other factors. This is the first in a series of posts about the factors touched on but not explored by the briefing, including legislation relevant to home education, the evidence for claims and recommendations, and the systems factors that affect the way public sector services function.

Before I start I should declare an interest. At the beginning of my brief teaching career I taught two children who’d previously been home-educated and through them met home-educating families. I ended up educating both my own children at home for several years – through necessity rather than choice in my case, but it means my perspective on home education might be a bit different to that of people whose job is safeguarding children. Also, I need to point out that I could find some of the SCRs cited in the NSPCC briefing only as executive summaries and one only as an abstract, so my information could be incomplete.

In this post, I look at the legislation relevant to elective home education (EHE) – that is home education that’s undertaken by choice rather than because a child is unable to attend school.

education legislation

Under UK law, parents have primary responsibility for their children’s welfare and education. Unusually for legislation – which tends to prohibit things – the law gives parents a duty in relation to education;

“The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—
(a)to his age, ability and aptitude, and
(b)to any special educational needs he may have,
either by regular attendance at school or otherwise.”
(s.7 Education Act 1996).

Educating children at home is one way of complying with this legal duty.

The criteria set out in s.7 that determine whether or not a child’s education is suitable date back to the 1944 Education Act and have been fairly well defined in rulings in specific cases. People working in education in the post-war period would have been very familiar with the idea that an education should be suitable to an individual child. It seems to be a more difficult concept for people more familiar with a standardized education system and highly specified local authority functions.

There are only two grounds on which a local authority (LA) should get involved with a child’s education, both aspects of the services that it provides. One is with its education services hat on – if the parent asks the LA to educate the child, usually by applying for a school place. The other is with its law enforcement hat on;

“If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education.”
(s.437(1) Education Act 1996).

If the parent fails to comply, there are further steps the LA can take including compelling the parent to send the child to a particular school.

That’s a brief summary of the law relevant to home education. In 2007 the Department for Children, Schools and Families issued guidelines for local authorities who were encountering increasing numbers of children being educated at home and were often perplexed about the legal situation. What people working in child protection seem to struggle with is not just the legislation so much as the principles behind it. If the principles are clear, the legislation makes sense. If they’re not clear, it doesn’t. Here’s an outline of the principles.

principles underpinning home education legislation

1. Under UK law, parents have primary responsibility for their children’s welfare and education. There’s a good reason for that, and it’s not just a hangover from an era where women and children were regarded as the property of husbands and fathers. Although some parents do cause their children harm, parents tend to have a much better track record than institutions when it comes to bringing up kids. The history of institutional care is littered with failure, not only to protect vulnerable people from incidental harm, but also to protect them from abuse by the people paid to look after them, and abuse by the institutional system itself – think enforced adoption, sterilization and incarceration.

2. Under UK law, welfare and education are seen as distinct issues and are dealt with by distinct pieces of legislation. That’s because they are different things; a child could have access to good education but be at risk of harm, or be quite safe but poorly educated. Ultimately, welfare is more important than education. If you’re being maltreated you can’t make the most of your education, and you can catch up on missed educational opportunities but you only get one shot at childhood. So, rightly, legislation gives LAs greater powers in respect of safeguarding than in respect of home education.

3. The primary function of a local authority is to provide services for local people. The term ‘authority’ refers to its duties and the powers delegated to it so it can carry out those duties. It doesn’t mean that a local authority is in charge of local people; it’s the other way round – at least in principle. Because LAs have much greater resources at their disposal than individuals, the law is weighted in favour of the individual – LA powers are subject to various limits, checks and balances in order to prevent those powers being abused.

4. Local authorities and government agencies are authorized to intervene in the private lives of individuals without their consent only in a limited set of circumstances. One is if there is reasonable cause to suspect that an individual has broken, or is about to break, the law. In the case of child welfare it’s if an LA has reasonable cause to suspect that a child is at risk of significant harm (s.47 Children Act, 1989). In terms of education it’s if it appears that the child isn’t receiving a suitable education (s.437(1) Education Act 1996). In both sets of circumstances LAs have power only to ‘make enquiries’ initially. If the enquiries show that a child is being harmed or isn’t getting a suitable education, further steps can be taken that could go so far as removing the child from the parent’s care or ordering the parent to send the child to school.

The point at which ‘the authorities’ are entitled to make enquiries has always been a bit of a grey area. It got even greyer with the introduction of the Children Act 2004. S.11 gives various authorities a proactive duty in discharging their functions to safeguard and promote the welfare of children. Many LAs appear to have interpreted this as meaning they, rather than parents, have ultimate responsibility for the safeguarding and welfare of children. This perception was reinforced by the aftermath of the Baby P case in Haringey. Not surprisingly, LAs feel uneasy if they can’t keep an eye on children, and that seems to have fuelled calls for increased regulation of home education.

the perspective of the NSPCC briefing

With those main principles in mind, it becomes more apparent where the confusion lies in the perspective taken by the NSPCC briefing. It’s summed up in this quotation from Birmingham Local Safeguarding Children Board (LSCB) claiming that there is a

major safeguarding flaw within home education legislation which focuses on parental choice and rights at the expense of children’s rights, wishes, welfare or protection.

Framing legislation relevant to home education in terms of rights, and conflating safeguarding and education both muddy the water. Let’s look at rights first.

rights

Home education legislation was framed in terms of ‘a balance between the rights of the parents and the rights of the child’ by Graham Badman in his review of elective home education in 2009. Many local authorities have adopted the same conceptual model. Badman goes on to say ‘I believe that balance is not achieved through current legislation or guidance, and the imbalance must be addressed’ (p.3). I suggest that what’s actually flawed is not the legislation, but some of the assumptions being made about the legal framework it’s based on.

The term ‘rights’ is used several times in the NSPCC briefing. But the rights referred to are not all the same sort of rights, nor do they all carry the same weight in law. They range from rights enshrined in the UN Convention on the Rights of the Child, through principles underlying recent government policy (e.g. parental choice in education) to powers they would like the local authorities to have (e.g. to enter the home and interview the child alone). Lumping together principles, duties, policies and legally unwarranted powers and calling them all ‘rights’ isn’t at all helpful.

Contrary to the view of the NSPCC briefing and Birmingham LSCB, legislation relating to home education doesn’t focus on ‘parental choice and rights’ but on ensuring that each child gets an education suitable to them as an individual. The parental ‘right’ or ‘choice’ to educate a child at home is derived from that legal duty and is subject to those criteria. It isn’t derived from the principle of consumer ‘choice’ that underpins the market model of education popular with recent governments, and shouldn’t be confused with it. (An education system designed around the performance of the average child of a particular age should take note.)

welfare and education

Under UK law, welfare and education are seen as distinct issues and are dealt with by distinct pieces of legislation. In each case, LAs can make enquiries and take further action if they have reasonable cause to suspect a child is at risk of significant harm or if it appears they are not receiving a suitable education. In some of the SCRs, local authorities have clearly seen the absence of powers to monitor the way children are educated as an obstacle to their monitoring them on safeguarding grounds. But having no grounds for making enquiries about a child’s education doesn’t prevent LAs from making enquiries if they have reasonable cause to suspect a child is at risk of significant harm.

The briefing also appears to misunderstand the way the law approaches risk. Before moving on to that point, I want to look more closely at the claims the briefing makes about the risks to home-educated children, and the way it evaluates the recommendations from the SCRs.

Note

Edited to clarify the wording of the legislation.