The irritation with the DCSF about the letter which they sent to local authorities is still rumbling on. The main concern seems to be, as far as I can make out, that they state plainly that if a child with a statement is not seen once a year at the annual review, then a School Attendance Order should be issued. This is what they say in Paragraph 12 of the letter;
"If local authorities are denied access to the child and are unable to see the provision that is being made they cannot fulfil their duty of ensuring that the provision is suitable for the child and meets his or her SEN and should issue a school attendance order."
It is suspected that by offering this advice, the DCSF are in a sense jumping the gun a bit on the new law and setting a dangerous precedent as far as those parents whose children do not have statements are concerned. In other words, today they are advising this about kids with special needs, tomorrow they'll be saying that any child not seen once a year should be the subject of a School Attendance Order. This is nonsense.
The statement of special educational needs is a legal document which sets out a child's requirements. It names a school and also details such things as, for example, speech and language therapy. Every year, the statement must be reviewed. This is a statutory duty which the local authority has. Now if the statement names a particular school and a range of provision which a child requires, then it is the responsibility of the local authority to see that the child has these things. If the child is removed from school, then the local authority has a duty to see that the child is still getting those things as long as the statement remains in force; that is to say that the child is in receipt of as good an education and the same range of services as would have been the case if he was still at school. They are still in that sense responsible for the child. If the family won't let anybody see the child or visit the educational setting, then obviously the local authority will not be able to decide that the provision in the statement is being made for the child. In such a case, they must assume that they remain responsible for providing the education and services set out in the statement. The correct course of action is for them to return the child to the school named in Part 4. This has always been the case; it is not some sinister new plot by the DCSF! It certainly has nothing to do with the new Children, Schools and Families Bill.
This is the case legally and one can also see why the local authority would issue an SAO in those circumstances. They have a duty to see that this child is getting those services and if he isn't, then they are legally at fault. If for no other reason than covering their own backs, it would make sense for them to be a sure of this. I also think that there is a case to be made ethically for them to see the child in the educational setting and assure themselves that the education and services being received by the child is as set out in the statement. Failing to do this would mean an abdication by the local authorities of their responsibilities, both statutory and moral. I am certainly aware myself of cases where the local authority has not seen a child with a statement during the annual review and neither have they issued an SAO as a result. The DCSF are simply reminding them of their existing duty and telling them what they should do under these circumstances.
All this has absolutely nothing at all to do with possible annual visits to the educational setting of home educated children without special educational needs, as suggested in the Children, Schools and Families Bill. The only similarity between the two cases is that both the annual review of the statement and the proposed monitoring visits in the new law are both taking place once a year.
It is beginning to look as though some home educating parents of children without special educational needs have seized upon this letter as some sort of bargaining chip or weapon to use against the Department for Children, Schools and Families. Specifically they seem to be seeing it as a way to help prevent the introduction of the new act. This is unfortunate. Children with special needs can be horribly vulnerable, far more so than most children of comparable age. It is debateable whether or not local authorities should have the right to see regularly all home educated children. The general duty for parents to provide children with a suitable, full-time education is so vague that it would be hard for most parents to be proved not to be doing so. With children who have a statement, the case is far more detailed and specific. Rather than the wooly definition set out in cases such as Bevan v Sheers, there are explicit instructions about where a child with a statement should be educated and what extra provision should be made for her. Since the duty for providing these things devolves legally upon the local authority, it is not at all unreasonable that they should seek to establish that the terms of the statement are actually being adhered to.