Monday, 28 December 2009

Home education and the concept of ultra vires

Local authorities in this country are responsible for many of the things that we take for granted; schools and roads, street lights and rubbish disposal, to name just a few. Sometimes, your council needs to be reminded of their duties. On other occasions, they take too much upon themselves and need to be reined in a bit. In the last year or so, it has become common to see the term ultra vires being applied by some home educators to the behaviour of local authorities when they are undertaking the monitoring of home education.

As far as I can discover, it was Ian Dowty the home educating barrister from Leytonstone who first suggested that the idea of ultra vires might be relevant in this area. What in fact is meant by ultra vires? This Latin phrase translates literally as "Beyond the powers". In the case of a local authorities, this can mean that they take actions which are in conflict with the law of the land. How can we decide if this is actually happening? Since most laws are framed in a peculiarly impenetrable jargon which most of us can make little sense of, and since most statute laws are in any case subject to interpretation by the courts; the only way we can know if a local authority is assuming ultra vires powers is when a court rules this to be so.

It is quite true that a barrister such as Ian Dowty might believe that this or that action of a local authority constitutes ultra vires actions by a council. Unfortunately another barrister, perhaps one employed by the council, would argue quite the opposite. A court will consider the matter and deliver its judgement. Until this happens, it is absolutely impossible to say with confidence that any particular action of a local authority is ultra vires.

Incidentally, most actions against local authorities are to make them do things that they are not doing, rather than to restrain them from doing too much. Working as I do in the London boroughs of Tower Hamlets and Hackney, I have seen a number of individuals seek a judicial review in order to get the council to perform their duties. Again, this can only be established in court.

As far as I can make out, what is being complained of with respect to local authorities and home educators is that some officers claim to have more powers than they actually do have. Of course, if this is happening, it is most regrettable. As I said above, the other case also happens, that local authorities claim to have fewer powers than they have in order to evade responsibility for a homeless family for example. This is annoying of course, but for a local authority officer to be mistaken about the legal situation or to misinform parents is not in itself a question of ultra vires. If they do something though, perhaps issuing a School Attendance Order in an irregular fashion, then this can be unlawful and the council can be found to have acted "ultra vires". This is pretty rare and I have certainly never heard of it happening in recent years with a case of home education. Before companies began to frame their constitutions in such a way as to allow them to undertake any lawful object, the ultra vires business used to crop up when a company entered into a contract which its own articles of incorporation forbade it to do. The contract could then be ruled ultra vires . It would not have been a case of ultra vires though if the company secretary simply announced the intention of entering into such a contract. In the same way, local authority officers just claiming that they have this power or that is not a matter of ultra vires. If however, they attempt to exercise such powers, then the time may be ripe to seek a judicial review.

I would be curious to hear of a local authority which has actually taken legal action against a home educating family which has subsequently been ruled to be ultra vires. I would also be extremely interested if anybody can point me towards what Ian Dowty said about this. I am guessing off hand that he qualified his opinion by saying "It might be argued" or "This might constitute" or something of that sort.

It is always alarming when the laity get hold of impressive sounding legal expressions in this way! According to Tania Berlow, a third of home educating families live in ultra vires local authorities. I would be very pleased if anybody could explain just what this means.

(Those interested in looking into this a little more deeply, could do worse than consider Boddington V British Transport Police 1995 and also the Wednesbury Unreasonableness test. Both of these cases are very relevant to this debate)


  1. What puzzled me about all this debate in a previous posting was not the meaning of the term as described above, but the references to whether an LA (or any other body) was acting ultra vires when it spent money on something it strictly didn't need to. As might be expected I have a vested interest in that several groups of home educators here in Hants are busy at work persuading (successfully) the LA to provide services to home educators. Now if I understand the arguments of one of the anons (and I have now read the links) he/she would claim that for the LA to do that (since there is no written requirement for them to do so, and inevitably it would cause them to spend some money) would in fact be ultra vires?? However agreeing with Simon; presumably this could only be proved were someone to take the LA to court? (and hopefully no one has the money to do that!)

  2. If you offer something extra that is not outside of your remit if it can be said to be support, If you demand something from a family that would be considered ultra vires - it's the difference between voluntary participation and compulsory...if you see what I mean!

  3. The laity eh? What *are* they like?

    If a local authority is acting beyond its powers, but is not acting ultra vires unless a court has ruled that it has done so, then what would acting beyond its powers be called, in law?

    A analogy: the police cannot enter your home or any other private premises without your permission, except in certain specific circumstances, unless they have a warrant from a magistrate to do so. If they do enter the premises without permission, whether or not they arrest you, and whether or not they charge you with committing a crime, and whether or not a court rules that they had acted ultra vires, they would still have done so. Wouldn't they?

  4. The police can enter premises under a wide range of circumstances without permission. Sometimes, the permission has been implied. For example somebody opens the door and then scuttles off when they see a police officer. Is opening the door an invitation to enter the house? Sometimes it can be. On other occasions, they might enter if there is a resonable suspicion that a crime is being committed, even if it turns out that this is not the case. These things happen every day. The only way of knowing whether they have exceeded their authority or if this was a legitimate action under the circumstances, is what is decided by a court. There can be no other measure. The laity, that is us suzyg, do not in general have access to all the relevant information about statute law and the way that it has been modified and intepreted by precedent. How could we possibly make an informed judgment? There are few cases where the thing is completely clear cut and unambiguous.

    You ask what it would be called if a local authority were to be acting beyond its powers and yet a court had not ruled that the action was ultra vires. It would be called day to day activity of a typical local authority. The council has responsibility for education, maintaining the roads and so on, but they have a huge amount of latitude in how they carry out the various functions. If somebody's hedge is very high and obscures a traffic light, are the council justified in cutting it without the owner's permission? Perhaps they are, because they have a duty to maintain the roads and make them safe. Then again, maybe they are overstepping their powers, because the hedge does not belong to them. These problems crop up all the time. They must act to maintain the peace, but can that include revoking the license of a club whose ptrons are too rowdy? It maintains the peace, but are the rights of the club owner being infringed? It depends. The only reliable way of knowing is to test the matter in court.

    Local authorities have to tread a delicate path, on the one hand being careful not to neglect their duties, but on the other trying not to overstep the mark. It is all but impossible for an ordinary citizen to know when they have done so. As I said, I would be curious to hear about any case where a council have actually been found to be breaking the law around home education.

  5. "In the last year or so, it has become common to see the term ultra vires being applied by some home educators to the behaviour of local authorities when they are undertaking the monitoring of home education."

    I've just checked and have found consistent references to 'ultra vires' actions by various HE people on email lists since May 1998, though funnily enough no mention of the term by Ian Dowty. Beginning to wonder if the idea that Ian starting use of the term amongst home educators is a myth. Maybe someone should ask him his understanding of the term re. HE?

  6. Ultra vires references in other countries:

    Scottish Consumer Council response to the Scottish Executive consultation re. Scottish HE guidelines in Feb 2007:

    "Section 3 of the guidance makes reference to the role of education authorities in listening to the views of children and young people. While the guidance refers only to providing the opportunity for this to happen, we found that 7 local authorities reported that they required meetings with the child and their parents and one reported that they would require meetings with the child on their own when making a decision about granting approval to withdraw from school. It appears to us that this may be ultra vires and we would welcome a discussion in section 3 of the guidance on the responsibility for listening to the views of children. "

    Pestalozzi Trust
    Legal defence fund for home education (South Africa)

    "In countries such as the USA, where home education has long been legalised, many court cases about home education arise from officials who act ultra vires – who esceed their legal powers[[i]]."

  7. The circumstances in which agencies can enter private premises without the permission of the occupier are set out in law. There are around 700 of them and they do not all apply to police officers. The default position is that *no one* is permitted to enter private premises without permission except in specified circumstances.

    The fact that the police and local authority officers overstep the mark on a daily basis is beside the point. It does not make it OK, or 'just one of those things'. Nor does it follow that they haven't acted in ultra vires fashion just because a court hasn't ruled that they have.

    If I break into my neighbour's house and steal their television, I have done so, regardless of whether I am arrested, charged and convicted of breaking and entering and theft. In the eyes of the law, I am innocent until proven guilty. In a legal sense, I am not guilty of criminal behaviour. That doesn't mean that I didn't commit the crime. And as far as I am aware, my neighbours are entitled to say, publicly, that they believe me to be guilty of the crime. This might result in me inviting them to press charges, or that they answer a suit for slander, but it makes not one iota of difference to the two (different) issues involved; how I have acted in real life, and whether a court has ruled that beyond reasonable doubt I have so acted.

  8. The problem is suzieg, that there is a great deal of uncertainty as to when and how people may come onto private property. There has even been debate about whether people are entitled to walk up your path and knock on the door! After all, the front garden is part of your property just as much as your house. The circumstances can be different depending upon whether a door or window is left open. A bailiff can enter a house under some conditions without a police officer being present, but only provided that he does not break in. It is quite legal though for him to climb through the window.

    The average local authority now has forty seven officers who have the power to enter private premises without a police escort and without a warrant. These reasons can range from checking to see if ragwort is growing in the garden to making sure that you are not running an unlicensed abatoir. Northamptonshire has the highest number of such employees; almost five hundred. You talk about the seven hundred reasons that an agenciy can have for entering private property in this way, but it is much more complicated than that. For example, in some situations you can walk past a householder who has opened the door and you don't need to ask permission. However, if he blocks the way and you start shoving him, you have exceeded your powers. There are also accepted cases such as when a neighbouring property is on fire and so on. People are always getting muddled up about these rules and being unsure of their rights. That is why we rely upon the courts to judge these things. That is why ultimately, whether an officer from a local authority has acted in an ultra vires way can only be decided by the courts and not by an irritated home educating parent.

  9. I think we are at cross-purposes, Simon. You are talking exceeding a legal remit in practice; I am talking about that remit being exceeded in principle. Bailiffs are not permitted to wander the streets looking for open windows order to enter the house to check whether or not the occupant has an unpaid court order. There would be questions to answer if a police officer strolled past you into your home and asked to see the receipts for your electrical equipment on the grounds that you might have stolen it.

    The underlying principle is that no one can enter private premises without permission except in certain circumstances. The principles underlying those circumstances include; safeguarding life and property (as in the case of fire or flood), to retrieve goods rightfully belonging to another, and to make inquiries if there is good reason to suspect that a crime has been committed or is about to be committed. There are also circumstances where public health is deemed to be at risk (which is where the ragwort and abattoir come in). The right of entry is restricted to certain people, and those people have to be prepared to demonstrate to a court that they have good reason for entering the premises in question. People are indeed always getting muddled up about these rules. This is understandable if the people are, as you put it ‘the laity’. But local authority officers, police officers and bailiffs are not ‘the laity’, they are professionally engaged in law enforcement, and it doesn’t seem unreasonable to expect them to know what they are permitted to do, even if they exceed that permission in practice. The practice might not be clear in individual cases, but the principle is.

    What home educators mean about LAs acting ultra vires, is not that the odd EHE officer gets a bit overenthusiastic, but that the local authority’s policy itself is ultra vires. Local authorities are permitted to make inquiries ‘if it appears’ that a parent is not causing their child to have a suitable education. This is the principle of suspected wrongdoing in action. It is an area where local authority officers are expected to use their judgement.

    Officers who decide that a particular parent ‘appears’ not to be providing a suitable education on the grounds that the LA knows nothing about the child are within their legal remit, but only just. In the Philips vs Brown case, the judge ruled that it was reasonable for the LA to ask Mr Philips if his child was being provided with a suitable education, and it was reasonable to expect Mr Philips to respond. The case arose because Mr Philips didn’t respond to the initial enquiry. This is analogous to a police officer saying, ‘excuse me sir, would you mind telling me how long you’ve owned your car?’ If you say nothing and drive off, the police officer would be right to be suspicious. There would be public outcry, however, if the police started writing to people and saying they wanted them to provide evidence that their pc wasn’t stolen, or the bailiffs dropped in whilst passing just to check you hadn’t got any outstanding debts that might be cleared if they relieved you of your three piece suite.

    If a local authority has a written policy, on their website, stating that they have a duty to ensure that all children receive a suitable education, that they will make inquiries on the basis of home-education per se, rather than ‘if it appears’ a suitable education is not being provided, that they will require families to be visited at home annually, and that parents should produce evidence of the child’s educational progress, they are clearly and without doubt acting ultra vires, because they are claiming powers they do not have in law. In individual cases, circumstances may indeed be unclear, and the only way to determine ultra vires practice might be for a court to rule. But in principle, either a local authority’s policy adheres to the law, or it doesn’t.

  10. We are probably not going to agree on this Suzieg. A council which has a policy stating that they expect to see examples of work from home educated children is not claiming any powers at all; they are saying that this is their policy. Essex, where I live have a policy of this sort. It carefully avoids quoting the relevant legislation and simply asserts a number of dubious things.
    The best comparison which I can think of is that some local authorities place signposts around premises which warn that trespassers will be prosecuted. This is wholly untrue; trespass, except in certain rare cases, is a civil not a criminal matter. They are exaggerating the matter in order to deter trepassers. This is very common. The fact that they make an untruthful and exaggerated claim about the powers available to them with regard to trespass does not mean that they are behaving in an ultra vires way. Sensible folk simply see such signs and smile. Suppose though that the council actually tried to prosecute somebody for trespass. Now they are acting ultra vires and any court would strike down the action on those grounds at once.
    Precisely the same applies to the various policies that you talk of. They give the impression that the council has more powers than is actually the case and, as in the case of the notice saying "Trespassers will be prosecuted", the correct response is to laugh at them. If the council then tried to prosecute a parent for not allowing a home visit, then would be the proper time to talk of ultra vires actions, not before.

  11. "Ultra vires" - whether it has to be proven in law or not - is much too polite. Let's be clear, these LA officials are lying in an attempt to gain access to a child. Perhaps the finger of suspicion should be turned towards the official.

  12. You might be right, Simon. It might be perfectly legitimate for local authorities to spend public money doorstepping parents and demanding compliance with rules they've made up. I suppose the parents who find this upsetting, daunting, worrying or downright terrifying constitute 'the laity' as distinct from 'sensible people' who would just smile indulgently and say things like 'Oooh, you local authorities and your 'Trespassers will be prosecuted" signs..."

    *You* might feel confident to do such a thing in relation to *your* local authority, but I can assure you that after one has had to spend considerable amounts of time and effort checking up on what powers the LA has because it won't tell one, and because it proffers vague threats of prosecution if one doesn't comply with requirements one is not sure it has or not, the entertainment value of such claims wears a bit thin.

    One might be able to simply ignore this kind of behaviour if one hadn't also had to spend considerable amounts of time and effort trying to get the same local authority to fulfil its own responsibilities in relation to the education of ones children in the state system. After that, one is aware that almost anything, however bizarre, might happen.

    This is not how local authorities are intended to act and the appropriate response is not, in my view, to smile indulgently and look the other way.

  13. What can I say suzieg, except that all kinds of people try and bluff us every day of our lives? The Inland Revenue, the guy from the TV licensing authority, the man trying to get me to switch to another electricity supplier, the local authority, park keepers, the woman in the post office; the list is absolutely endless. Half the time these people are avoiding fulfilling their duties for a variety of reasons and the other half of the time they are pretending to have more power and authority than they actually possess. Most adults are used to these games, they are part of the backdrop to everyday life. I do get pissed off with particular individuals who are trying it on with me from time to time, but mostly I just try and out-manouever them! I can see that you take a more serious view of the matter and won't play the game. The only difficulty then is that you are apt to sepnd a good deal of your life writing letters, being angry and brooding about the iniquities of those supposedly serving us! My life is short and there is a strict limit on the amount of time that I am prepared to spend on these scoundrels. What should I do, the next time that I get a telephone call from some wretch who assures me that I have won a cruise in the West Indies? Should I sue his company? What about the man yesterday who knocked at the door and told me that my electricity supplier had changed and that I needed to sign a form just to confirm that he had told me this? Should I pursue Npower through the courts to prove that he exceeded his authority? Every day such things happen. The fact that Essex County Council have a misleading and inaccurate policy on their website about elective home education is and always has been, the least of my problems!

  14. "The fact that Essex County Council have a misleading and inaccurate policy on their website about elective home education is and always has been, the least of my problems!"

    You say LAs misleading potential home educators are the least of your problems and obviously we have to pick our battles (we only have so much energy and time).If someone is concerned enough about the misleading information provided by an LA, information that might be sufficient to put off a prospective home educator, and they decide to challenge it, then I say all power to their elbow. I might not have the time or energy to challenge them but I'm happy that they should do so and I fail to see why you feel the need to criticize and ridicule them for doing so? In a worst case scenario, this sort of misinformation could lead to the death of a child from suicide due to bullying if a parent is sufficiently intimidated by an LA into not de-registering and their not-required-in-law requirements. You feel strongly enough about the need for HEers to be more accountability to LAs for their child's education and have taken serious and sustained action in that direction. You have met opposition from others who feel that their children will be harmed by your recommendations. You are also now spending your time and energy on opposing people who challenge LA information. Is this because you feel someone will be harmed by their actions or are you doing so for some other reason? What problem are you attempting to solve by taking these actions?

    If, as you say, "the fact that Essex County Council have a misleading and inaccurate policy on their website about elective home education is and always has been, the least of my problems", what is so important about the issue to you that you feel the need to spend your valuable time and energy on criticizing people for asking them to correct the information?

  15. My time isn't that valuable, Anonymous! I'm not opposing people who challenge local authorities for providing misleading information; I just feel that there are better things for people to be doing. My main point was that this is nothing to do with the legal concept of ultra vires. I'm not sure that i was criticising and ridiculing anybody. Poking a little gentle fun perhaps, but no more than that. Of course misleading informatin can lead to unfortunate and unforeseen consequences, there is no doubt about that. I would think that the chances are pretty slender in this case though. I have certainly never heard of an inaccurate education policy resulting in the death of a child. Do you have a particular case in mind?

  16. "Do you have a particular case in mind?"

    No, but is it that big a stretch? We know that a few children commit suicide every year because of bullying (the last I heard it was about 16 per year). Many children are withdrawn from school to HE because of bullying. Some parents are put off taking the HE step because of what they read on LA web sites (judging by discussions amongst non-home educators who have looked into HE I've read in various places on the internet and the fears expressed by some considering HE on the lists). As I said, it's a worse case scenario, but even without that extreme, I think it's likely that there are children out there continuing to suffer bullying because their parents read their LA information and decide HE was not for them.