Thursday, 3 September 2009

The local authorities already have all the powers they need!

Whenever the discussion comes round to either new legislation on home education or home educated children who are not receiving an education some home educator is sure to claim, "But the LAs already have the powers, they simply don't use them." How true is this?

Why don't local authorities take action if their officers truly believe that they are aware of apparently home educated children who are not receiving a suitable education? There are a number of reasons. One might be because either the school or LA are wittingly complicit in the withdrawal of the child from the educational system and are therefore happy to leave him to his own devices. This is not uncommon, see my recent post and the associated comments. Howsoever, let us assume that an officer from the local authority does have reason to think that a child is not being educated, is not happy and wants to do something about it. What happens next?

The first thing to be done is for the LA to make informal enquiries. This generally entails writing to the family although it is not unknown for an EWO to turn up on the doorstep. Most families at this point do provide some evidence. Often, this is an educational philosophy downloaded from the internet. Of course, this is really evidence of nothing more than the ability to use a computer, but often it will be accepted by the LA. What is wrong with that? Well the problem here is that it does not really tell anybody anything at all about the nature or quality of the education being provided for a child. This is particularly the case if the family refuse visits. What can be done now if the LA are still not satisfied?

The answer is of course that proving a negative is, as any logician will tell you, a damned tricky business! How do you prove that a family is not educating a child? The decision is not left to the EWO on the ground. Those in direct contact with a family often know perfectly well that a child is not being educated and they report this to their line manager. It is at this, higher, level that the decision is taken whether or not to proceed further. There are various considerations. One is how long the legal process is likely to take and if it is worth dragging the child back into school where he will only make a nuisance of himself. If he is fifteen or sixteen, then it is unlikely to be worthwhile. A lot depends on the magistrates in the area as well. Some are famously reluctant to allow prosecutions under SAOs to succeed. This situation is exacerbated greatly by the lack of any standard definition of what constitutes a suitable education.

Eventually, the local authority might decide to issue a School Attendance Order. They have to give the parents plenty of notice before doing so, but in the end something like this might land on the doormat;

Statutory Instrument 1995 No. 2090 The Education (School Attendance Order) Regulations 1995

Regulation 3
Education Act 1993
[name of authority] Local Education Authority ("the Authority").
As you [name of parent] of [address of parent], being the parent[3] of a child of compulsory school age in the area of the Authority, have failed to satisfy the Authority in accordance with the requirements of the notice served on you under section 192(1) of the Education Act 1993 by the Authority on [date of notice] that [name of child] is receiving suitable education, either by regular attendance at school or otherwise: And as, in the opinion of the Authority, [name of child] should attend school:
You are required to cause [name of child] to become a registered pupil at the following school:
[Insert full name and address of the school and omit the whole or part of the following words as the case requires]
being the school [specified by the Authority] [selected by you] [determined by a direction of the Secretary of State for Education and Employment] [as the school to be named in this Order] [specified in the statement for the child under section 168 of the Education Act 1993]

Failure to comply with the requirements of this Order is an offence unless you can prove that [name of child] is receiving suitable education otherwise than at school.
Signed [name of officer] of [name of authority] Education Authority.

Impressive as it looks, this document leaves much to be desired, which is why most LAs hardly ever bother with them. For one thing, having got the parents into court the people they now need to persuade are lay magistrates. They tend to be lot more gullible than LA officers and it often does not take much for them to be convinced that a suitable education is being provided, despite all the evidence to the contrary. There is no point at all dragging the borough solicitor into court, only to see the case thrown out and so if the local authority feel that it is liable to be a waste of time issuing an SAO, they will just not bother. But suppose it isn't and the magistrate agrees with the LA, what happens then?

The relevant case here is Enfield Borough Council v F (1987) (2 FLR 126) and sobering reading this precedent makes for any LA hoping to prosecute parents for ignoring a School Attendance Order. For one thing, an SAO obliges a parent to register their child at a named school. What happens if having complied with the order in this way, they then deregister the child the following week? Good point and a grey area of law. What happens if despite all this, the parents have been successfully prosecuted by the LA and fined for disobeying an SAO? Well, the child is still not in school and so the LA must now launch a second prosecution, sometimes combined with an application for an Education Supervision Order. The longer this process continues, the more expensive it becomes. Also, at any stage they may encounter an awkward magistrate who will side with the parents and dismiss the case. Some parents are adept at playing the system. They may register their child at a school before an SAO is issued and then withdraw him again a few weeks later. Cat and mouse games like this happen regularly in some local authority areas.

At the root of the matter is the lack of a satisfactory definition of what constitutes a "suitable education". Until this is sorted out and some sort of yardsticks devised which can measure this, then the situation will remain confused and open to abuse. This is why I believe that new legislation is urgently needed. Unless home educators are prepared to engage in a dialogue about this, then the matter will be decided by the unilateral imposition of rules by the DCSF and local authorities, a situation which would be welcomed by few home educators.


  1. What a load of crap that is! everyone must be innocecent in english law until proven in a court of law that there are guilty. A lot depends on the magistrates in the area as well of course it should magistrates are free think people who will judge on the evidence before them which is the only way to have justice.this is how our system works and it is a very very good one so that if some one is find guilty of a crime we knew that there have been though this proccess and are guilty.better for one or 2 guilty people to walk than convict many who are innocent of a crime.Under simon law many people would be find guilty and sent to jail with a wave of his hand brushing aside the parents saying we done nothing wrong! parents must have the right to defend there self in a fair and open court where ALL the evidence can be heard.
    At the heart of this matter is Simon belief that home education can only be done his way like a school if you do not do it this way you would be sent to jail and your children sent to a crap school and Simon would not care indeed he would say it was for your own good how long would you put the min jail for simon 1 year 2 more?
    I see anther aid has resigned from Browns government all good new i think dont you Simom? your said if your a Labour voter? I wonder if Badman is?

  2. Simon, I do agree that there is a problem - ie SAO's are ineffective and expensive and may do nothing to actually protect right of the child to education. Again though it is the solution that bothers me; would compulsory registration, compulsory visits ect actually make it any likelier that a "failed" child got a proper education? Looking at the newpaper reports about those children in the news yesterday for nearly killing two other children....if we can't ensure that relatively young children are nutured in such a way to ensure they don't become such feral beings, even with state intervention - (they were already in care but still left on the streets); how can we resolve education problems which may have less obvious immediate effects? If more regulation led only to the "non educated home educated" becoming properly educated either in school or at home, it wouldn't worry me so much; but I suspect that the new legislation will mean new legal battles, more truancy -and possibly more inprisonment. We still see a few high profile cases of parents jailed for truancy under current legislation, and it seems that this punishment never actually results in a long term return to school, but merely splits families, may result in children spending time in foster care and is an expensive tool anyway.
    Sharon, I think talked about the balance between doing good and doing harm; I am not sure that Badman has got it right. ON top of that I have fears that it may inpinge negatively on the lives of families who do actually successfully home educated - I can think of current examples where they are undermined by LA problems and this may become a greater issue.
    Must go and actually do something...dd1 has college interview today.....all this debate is addictive - now if only some of us could keep personal jibes at bay....

  3. Julie-What problem is there? innocent until proven guilty in a court of law where all the facts come out.We must not have a system where an LEA officer with a wave of his hands finds parents guilty.This is Simon way takes a quick look and finds you guilty off to jail you go.This is how hitler/stalin would act sending so many people to jail/death becuase there where not right/gay/poor/black/jew/women illness. just gone no court just gone,
    This is Simon way he would send tens of thousands of innocnent people to jail refusing to listen to the evidence.all for your own good! but we must not allow Simon way to prevail and must allow people to live in freedeom and innocence unless find guilty in a free and open court.

  4. ...but wouldn't it actually be better for all of us if it didn't get to court in the first place.... if the system worked differently ? I agree that SAO's don't achieve the aim of improving educational opportunity, and my point is that I am not sure more legislation would do that under the present proposals either!

  5. Julie-but it will always go to court because a number of LEA officers are against home education and the parents and want to find the guilty that is why we have a fair court to listen to all the facts not just what some silly LEA officer says. The parent must have the right to defend themself in an open court under Simon way you would not have this right and would be find guilty.
    i can see you wish for things to be different but human nature as it is well not allow this LEA/DCSF/Ed Balls will never allow it to be different and there belive parents are not to be trusted failing to ask why parents do not trust them?
    I have to give you an apple one day but dont tell any one has i do not want to be know as teachers pet!

  6. Any situation where the law is brought into contempt or disrepute is not good for society generally. This is the current state of affairs with home education. Nobody, either local authorities or home educators, have any respect for the legal process as it stands. School Attendance Orders are, as I pointed out above, pretty meaningless. Education Supervision Orders are not much better. I agree completely that sending people to prison because their children are truanting or not being educated is not a good idea. The legal system is so vague as to what constitutes a suitable education, that it allows LAs to claim one thing while home educators claim another. Surely, the answer is to have a definition that both can agree with and a way of determining whether any particular child is being educated within this definition? Until this is done, there will be a semi-permanent state of conflict between local authorities and a large section of the home educating community. By the way Julie, good luck with your daughter's college interview. What is she planning to study?

  7. No the system as it works now is fine giveing the parents the right to defend there self in an open court where all the facts are heard.Home educators do have respect for the legal proccess the only people who dont are those like you who want to trample all over home educators and find them guilty unless you are doing home education like a school.

  8. She is definately doing AS maths; she did AS chem there as a part time student last year - which meant she went in for two half days a a week to do her 5 hours of chemistry. She needs to retake a module anyway to improve her grade (needed 1 more mark out of 300 for a grade above) and she is meant to be doing A2 chemistry this year - but I want her to redo the whole AS year for chem because her weakest area is practical - having done virtually none for IGCSE, she turns out to be rather scared about the whole thing. A2 chem has a big individual practical project and giving her another year to actually become more confident would be a good thing - but then colleges are odd about funding. Then she needs to do something else - but not sure what - to make her a full time (ie 12 hours) student. I had originally planned on physics AS (but that was before she refused to study the IGCSE...but as she still passed it she clearly 'could' do it). College said she could do ICT GCSE, but as she already has CLAIT diploma it doesn't seem worth it, dd fancies learning Japanese but that is not on offer.....she already took AS biology a couple of years ago, so can't really do that again. So hopefully will work something out today. On top of that I am slightly anxious that she will probably fail the Key Skills maths assessment - despite her A grade, because she thinks it is silly to make her do it and the she doesn't like change and will probably be too stressed to work out a load of arithmetic that she thinks it is pointless. So could be a stressful afternoon.....Is your dd doing Science A levels?

  9. Julie- that all sounds like far to much work!I guess that is the teacher in you? to much work and not enough play is not good.what do people do with all these exam results? hang them on the wall? frame them? what is the key skills maths assessment? nort keen on maths all those numbers jumping around but your never cheat me out of a penny of my hard earnt money!

    I suspect simon worked out all the subjects she be taking. how about a degree Simon or better still how about a Job?

  10. "Often, this is an educational philosophy downloaded from the internet."

    Evidence or opinion?

    "Impressive as it looks, this document leaves much to be desired, which is why most LAs hardly ever bother with them. For one thing, having got the parents into court the people they now need to persuade are lay magistrates. They tend to be lot more gullible than LA officers and it often does not take much for them to be convinced that a suitable education is being provided, despite all the evidence to the contrary."

    Either that or they the parents provide enough evidence to convince a reasonable person on the balance of probabilities that they are providing a suitable education (this is the level of proof required in a civil court). Do you have any evidence that magistrates are gullible in these cases and have been fooled? Do you know of particular cases or is this just a guess?

    "What happens if having complied with the order in this way, they then deregister the child the following week? Good point and a grey area of law.

    It is not a grey area, the SAO is in effect until the LA revokes it. The parent can apply for the SAO for it to be revoked but the LA can refuse.

    BTW, had you realised than nothing in the current round of planned changes will affect any of this? This is from the consultation:

    Registration would be granted automatically unless there were safeguarding concerns (see next section): if at any time a LA became dissatisfied with the quality of home education provided to a child, it would - as now - serve a school attendance order.

    We propose to legislate now for registration and monitoring arrangements that will focus on safeguarding but should also improve the quality of education."

    All the current plans do are give the LA the right to see the child and talk to them alone if necessary, something many home educators go along with already. Certainly all of the home educators I know in person who are known to the LEA accept visits. The only people I 'know' who submit written evidence are those I know over the internet. Do you have any evidence of how widespread the refusal of visits are? From reading lists I think it is a tiny minority and LA officials have been known to claim that 'all their other children love their visits' when a parents does ask to provide written evidence.

    I don't think parents lack respect for SAOs but for some reason LAs are very slow to issue them and I really cannot see a good reason for this. I doubt very much that the magistrate will ignore the professional unless they have very good reason for believing that they are wrong, especially where children are concerned in today's climate.

  11. "At the root of the matter is the lack of a satisfactory definition of what constitutes a "suitable education". Until this is sorted out and some sort of yardsticks devised which can measure this, then the situation will remain confused and open to abuse."

    Until they are able to adequately define a suitable education in their schools I will not even begin to consider if they are capable of defining a suitable education for home educators.

    "Academics say national curriculum specifications have now been eased to give teachers more freedom but the damage may already have been done with many youngsters."

    "The Secretary of State for Education and Skills (Estelle Morris): The Government are fully committed to helping the estimated one in five adults who do not have adequate literacy, language or numeracy skills."

    How are new, effective educational theories and methods going to be developed if all children are confined to a standard educational straight jacket? State education could learn much from home education, especially in their attempts to provide a personalised education for each pupil (one of their stated aims).

  12. Sharon-We have refused a home visit from our Hampshire LEA or had any meetings Peter has been home educated since June 23rd 2003.

  13. I realise that it does happen but I think it's a minority of home educators who refuse visits. The email lists are a small minority of all home educators and the ones that 'speak' are a small minority of these (most members of lists lurk most of the time. By definition those that discuss refusing visits on email lists are an exceedingly small vociferous minority of home educators! As mentioned, over the 17 years I've been involved with home education I've met many, many home educators in many areas of the country and every single one who was known to their education authority agreed to home visits when asked.

    I think the current recommendations are an over reaction to a small problem and the closing of an important safety net for children with special needs who might struggle with a visit or in cases where an official is seriously unacceptable for some reason. I think they should wait until ContactPoint is up and running and use the information they gain to discover if any changes to the current system are necessary. ContactPoint will give them a full list of all home educators so there is no need for registration. They will then be able to produce accurate figures for the numbers refusing visits, those suspected of not providing a suitable education, etc. New Zealand recently cancelled annual reviews for all home educators because they found that it was unnecessary and not cost effective. I think they need far more information about the current system in the UK before they make unnecessary, expensive and possibly destructive changes.

  14. Julie, your daughter sounds as though she is going to be busy! My own daughter is doing Mathematics, English Literature, History, Government and Politics. I had hoped that she would do science and then medicine, but what can one do? Teenagers, they don't listen to a word you say...

    Yes Sharon, you are right about an SAO lasting for the time the child should be at school. It was not the case before 1996 and the example I reproduce is actually oudated. (But then I dare say you noticed that!). These days the game of registering the kid and then removing him later usually takes place at an earlier stage, before the SAO is issued. You ask whether my statement about educational philsophies being downloaded from the internet is fact or opinion. Well, one only needs to have been on the EO and HE-UK message boards to know how often this happens. When people ask, they are often directed to links. Then they need only fill in their own details. LAs know this, because they have on file many virtually identical educational philosophies!

    I am not entirely happy with aspects of the Badman report myself, but Recommendation 2 about defining a "suitable education" in partnership with home educators strikes me as sensible. If home educators opt out of the process, the DCSF and LAs will go ahead and do it by themselves.

  15. Sharon- We have refused a home visit from Hampshire LEA who asked for one! Peter has been home educated since June 23rd 2003 and no meeting have taking place or visits.Peter just had a letter from Dawn Primarolo M.P(Minister of State for children.young people and families)

  16. you boasting again about your daughter simon?

  17. "Sharon- We have refused a home visit from Hampshire LEA who asked for one!"

    I don't doubt this is true, where have I said it isn't? Why do you keep repeating it? I've spoken to others via the internet who have also refused visits. I know it happens. But it doesn't change the fact that all of the home educators I've met in person over 17 years in many areas of the country who are known to their LEA have agreed to visits when asked. My personal experience and the small numbers involved on internet email lists suggests to me that the number of home educators who refuse visits is small (not non-existent).

  18. Sharon your not met us then! no visits or meeting no matter how many threats where tried.and did there get cross when we said no thanks in a letter!

  19. Simon said,
    "These days the game of registering the kid and then removing him later usually takes place at an earlier stage, before the SAO is issued."

    If this happens the LA could still issue a SAO. At most it might extend the process by a month or two depending on how long the child went to school.

    "You ask whether my statement about educational philsophies being downloaded from the internet is fact or opinion. Well, one only needs to have been on the EO and HE-UK message boards to know how often this happens. When people ask, they are often directed to links."

    As mentioned before, email lists represent a small, self selected minority of home educators and those that write are an even smaller minority. Also, we don't know how many follow the advice (I'm not sure I would have the nerve to take this approach and I disliked the visits I had). Certainly I've heard it said on lists several times that a family is the only one in their area who are known to their LEA and are refusing visits and recently heard from someone who said that every known home educator in their area has visits.

    If, as you claim, LAs receive numerous copies of the same philosophy (which doesn't mean they have also refused visits, some people do both), then I've no idea where this is happening. Assuming it happens for the sake of argument, then the LA should ask further questions to clarify that the parents understands the philosophy they claim to follow and evidence that they are following it in practice (lists of resources, visits, independent verification, provide samples of work, etc. as preferred by the parent). There is no reason under current legislation that the LA cannot request more information if they have doubts.

    The action of copying a philosophy from the internet is not evidence that they are not providing an education based on that philosophy! If people are being advised to send in a philosophy they have no intention of following then they are being poorly advised and hopefully will have the sense to see this for themselves. When I have seen information about philosophies on web pages there are also suggestions for other evidence such as a report and list of resources that should be sent with the philosophy. The philosophy is not generally seen to be sufficient evidence on its own.

  20. "Sharon your not met us then!

    Well yes, I had worked that out for myself.

  21. Sharon-Good! did you know that the head of children's service here in Hampshire worked with Badman on the Baby P case? he got very cross when we said no thanks no home visit,

  22. I am surprised Sharon, that you did not know that educational philosophies are widely used as evidence of providing a suitable education. Mike Fortune-Wood's site provides a good template; all you have to do is download it and fill in your own details. They are usually sent to the LA with some feeble accompanying evidence such as photographs of activities or a list of places like libraries and so on that the kid uses. A lot of information on how to give the LA the bare minimum is exchanged on various message boards. Indeed, a lot of the time people seem more concerned with fooling the LA than they are with educating their child. You certainly see more posts about fobbing the LA off with an educational philosophy than you do about exchanging tips on helping a child to learn to read.

    I know that the majority of home educators do not belong to those lists, but even so a lot of people research home education on the internet. Googling "educational Philosophy" and "home education" will give you over ten thousand hits. You do not need to be a member of HE-UK in order to download the educational philosophy. There is quite an art in parents giving the LA a little bit here and a little bit there in order to keep them off their backs.

  23. Again this is one of the areas where we can only guess what the truth is because our perception of home ed is mostly governed by the chat that goes on on email lists. Some people never meet many real life home educators and others spend too long on the internet (hmm..pots and kettles!) and certainly some of the major lists are more representative of a certain type of home educator that would perhaps fit the stereotype Simon describes. As I said before it is perhaps more of a pity that sometimes people seeking more educational help when they first land on the lists don't get that easily.

  24. How many home education groups have you attended personally? I've attended about 8 different groups in 4 areas over 17 years, most of them several times, some of them many times and they are usually attended by between 10 and 30 families. I don't recognise your description of home educating families at all. Most families I've met use a combination of structure and autonomy and those that are known to the LEA have home visits.

    Mike specifically states on his web site that the philosophies are not supposed to be copied wholesale but rather form a basis for your own philosophy of education and resource list. His examples include one based on a more structured approach as well as various autonomous and ethnic versions. Mike also does not suggest that the philosophy and resource list is enough. He suggests:

    "I would suggest that at least one face to face meeting should take place on neutral ground, a library or cafe, even a McDonald's. This meeting should help put a face to the names and establish a relationship between yourselves and the LEA representative...

    Take as much documentation as you are happy to offer, in particular if you haven't already produced one you should prepare an educational philosophy (according to article 2 of the first protocol of the ECHR The authorities must respect the parents philosophy with respect to education and your educational philosophy outlines this).

    Also the 1996 Education Act says that an education should be efficient. The courts interpret that as "that which achieves what it sets out to achieve". So its important to state in your educational philosophy what it is that you are setting out to achieve."

    As I think I've mentioned before, the planned changes over turn a standard practice in law, the right to provide evidence in the form you prefer:

    "However the form that this evidence takes is up to us to decide, not the LEA. The LEA may not demand any particular form of evidence. Since there is a legal principle (known as "audi alterem partem" literally meaning: "hear the other side"). This means that it is the right of the defendant to present evidence in any reasonable form of their choice and since an LEA must work to the same standards as the court the LEA may not therefore prescribe the form of evidence it will accept by for example limiting evidence to a home visit."

  25. BTW, my post at 9:27 yesterday was in reply to Simon's at 8:13, not Julie's as it might appear. Julie's post wasn't there when I wrote mine.

  26. Don't worry- I realised that!

  27. Oh good, just thought my first para could have been read as a dig after your pots and kettles comment.