The more militant home educating parents in this country have constructed for themselves a mythos regarding the legal situation which surrounds home education. They have been supported in this by one lawyer, whose own child was educated at home. The problem is that it is becoming increasingly apparent that other lawyers do not agree with the interpretation which has become accepted by home educators. Let us take the case of monitoring home education.
The standard view among members of some home education groups is that the local authority should not trouble home educating families of whom they become aware, unless they have evidence that a suitable education is not being provided. They further believe that the local authority has no justification for returning every year or two for updates on the educational provision. This view is based partly upon the advice to local authorities contained in the 2007 guidelines. This particular point of view has become ossified and is now taken as fact by many less informed parents. They are founding their belief in general, not upon examining the law for themselves but by reading what people post on internet lists and forums. This is a mistake. If I wished to know where I stand with any legal problem, I would not rely upon what people were saying on the internet; I would consult a solicitor.
The consequences of this part of home educating mythology may be seen regularly on the lists and forums. I gave an example a couple of days ago of a woman who is indignant that her local authority has asked her to fill in a form. The impression that many of these parents now have is that they can adopt an intransigent attitude to their local authorities about requests for information and that the law supports them in this. Unfortunately, or fortunately for those of us who have the welfare of children at heart, both the majority of local authorities and also the Department for Education have quite a different opinion on the legal situation. Since they all have lawyers at their disposal, especially the Department for Education, it is starting to look as though Ian Dowty's interpretation of the law might be a minority view. What is the current position of the Department for Education about local authorities asking folk to fill out forms and answer questions? It is this:
' The current position is that local authorities have no statutory powers to monitor home education on a routine basis. However, they are required to make arrangements to establish (so far as it is possible to do so) the identities of children who are not pupils at school and who are not otherwise receiving suitable education. In order to
comply with this duty, local authorities need to make arrangements which will,
as far as possible, enable them to determine whether any children who are not
pupils at schools, such as those being educated at home, are receiving a
suitable education. In order to do this, local authorities should make
inquiries with parents educating children at home about the educational
provision being made for them.'
Note well, local authorities 'should make enquiries with parents educating their children at home about the educational provision made for them'. The use of the word 'should' suggests that local authorities are thought to have a duty to make such enquiries.
After all the fuss since Badman about home education, the Department for Education are very unlikely to be saying things like this without having taken extensive legal advice. This presents home educating parents with a bit of a problem. I have noticed in recent months a hardening of the position of some parents. They have been encouraged by Ian Dowty' interpretation of the law, as well as the views of the various barrack-room lawyers and malcontents who hang out on some forums. This is leading some parents to believe that they can ignore their local authority and take the position that unless the authority has good reason to believe that a suitable education is not being provided, then they should not concern themselves with home educated children. This is causing parents to receive advice such as that a questionnaire sent by the local authority should not be filled in.
All this is leading inexorably to a confrontation between some home educating parents and their local authorities. The authorities feel that the law is on their side. Their opinion is based upon advice which they have received from their own legal advisors and also from the Department for Education. Some parents are determined to be uncooperative. Their view of the legal situation is based upon stuff they have read on the internet, mainly by people who are not lawyers. It is fairly clear to me that if I got into a fight with my local authority about anything at all and I was basing by position solely upon things that I had read in internet chat-rooms, then I would probably be heading for a fall. If I were going to go head to head with my local authority, the very least I should do is see a solicitor to see if my interpretation of the law is the correct one or whether the local authority have a stronger case. I rather think that we are going to see a few court cases in the near future about this. There is currently one pending in Birmingham and there are others in the pipeline. This should prove interesting.
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"In order to do this, local authorities should make
ReplyDeleteinquiries with parents educating children at home about the educational
provision being made for them."
This is from the 'Statutory Guidance for Local Authorities in England to identify children not receiving a suitable education', issued in January 2009. In the section on EHE, in several places, the interpretation of the relevant legislation differs from the meaning of the primary legislation it cites, and/or from the interpretation of the legislation in the 2007 EHE Guidelines, which the statutory guidance advises LAs to follow. Since they cannot follow contradictory instructions, a problem arises.
I have a letter from Delyth Morgan, dated 4 March 2009 telling me that many people found the guidelines and legislation confusing and the Badman review had been set up in order to clarify matters. It clearly didn't, since the legislation that was supposed to result from it didn't happen. Statutory guidance relating to children missing education is still in place that conflicts with primary legislation and government guidelines.
This is not just a matter of home educators believing what they read in chat rooms rather than the DfE website, it's a matter of statutory guidance not being able to supersede primary legislation. It can't do that, whether the government department in question wants it to or
not.
Prior to the statutory guidance, the law on EHE was clear, even if there were differences of opinion over the exercise of judgement in specific cases. Since the statutory guidance, there has been a legal anomaly which is still in place.
Old Webb says-If I were going to go head to head with my local authority, the very least I should do is see a solicitor to see if my interpretation of the law is the correct one or whether the local authority have a stronger case.
ReplyDeleteWe did and the solicitor agreed with us that a Local authorithy has no right of entry to your house and you also do not have to have a meeting with any one from your LA over the fact that you home educate.It was very pleasing to have this confrimed by our legal adviser!
I think UK home educators would be a lot less worried about this sort of thing if they learned more about the situation of home education in Australia, The US, and Canada.
ReplyDeleteIn all three places (well, in the two and most states in the US), H.E. is much more heavily regulated and monitored than in the UK. The regulations in NSW and in Washington, Pennsylvania, and New York states in the US are particularly comprehensive, requiring some combination of visits, testing, portfolio evaluation by a teacher, pre-filed plans and (in WA) a certification course for H.E. parents who have never been to university.
What else do all of those places have in common? H.E. is _booming_, increasingly becoming a 'normal' option for families to consider along with state and independent schooling. H.E. parents (even autonomous educators) are able to deal with the bother caused by extra rules and get on with things. Of course, home educators resist regulation - and they should do so to make sure that they have a voice and regulation stays navigable! - but it doesn't keep people away from H.E. by any means, or keep H.E. children out of uni or any other institution.
Anon says-Of course, home educators resist regulation - and they should do so to make sure that they have a voice and regulation stays navigable! - but it doesn't keep people away from H.E. by any means, or keep H.E. children out of uni or any other institution.
ReplyDeleteincreased regulation would keep some family's away from home education.The family's Balls/Badman want to stop home educating are lower working class It is an afront to Balls that these family's have rejected his state school system where everyone has to be the same! Balls/Badman/ maybe Gove? belive like Webb does that you can stop the rot of home education by legal regulation it may work for a short period but unless you address the real reason while a number of people home educate you will never stop the flow from state schools Why do LA side with schools in a dispute in most cases? Why did the old children department tend to always sides with the LA or the school in any dispute? Why is it so hard to sack teachers? why are children with SEN not given a lot more help by they LA? Why are parents views just dismissed out of hand? why are state schools so inflexible?
The regulation if it comes is a last throw of the dice to attempt to slow down home education.peoplw will find a way round any new regulation we quite clever really and may be that is anther thing Balls/Badman and Webb miss?
I remember our county councilor saying that you appear to know more about home education and the law on it than i do! to which we said yes we a lot smarter than you think! now he a very good friend and has asked for our advice on home education!
Ian Dowty has never disputed that LAs can make informal enquiries as a result of Donaldson. Where are you getting the idea that Ian says otherwise?
ReplyDeleteBut being able to make informal enquiries does not give the LA the right to specify how the parent gives them them the information which is what the original query is about (the LA questionnaire). The official HE guidance makes it clear that a parent can provide information in any appropriate format.
"They are founding their belief in general, not upon examining the law for themselves but by reading what people post on internet lists and forums. This is a mistake."
ReplyDeleteIf this is the case, can you point me to the law that states that regular monitoring is required? Presumably you have found this law as you are disputing this interpretation and also believe it's a mistake to just believe what other say. Or are you just taking the word of LAs that the law states they are required to monitor?
Anon says-The official HE guidance makes it clear that a parent can provide information in any appropriate format.
ReplyDeleteyes that is what Balls/Badman maybe Gove and Webb dont like! it is up to the parent or child how infromation is provided. dont you ever get the feeling that those types are always talking to you like your a pupil at a school? they want you to provide evidence in they way with loads of meeting and visits to your house which in turth is a power game they dont like the fact you can so NO to them! it hurts them real bad so much so that they would like to change the law on this!
now i remember saying to some fool from HCC that we dont want a home visit he did not like it at all!
'Prior to the statutory guidance, the law on EHE was clear, even if there were differences of opinion over the exercise of judgement in specific cases. Since the statutory guidance, there has been a legal anomaly which is still in place'
ReplyDeleteThe basic problem here is that hardly any of the law surrounding home education is statutory. Apart from that one, small phrase, 'at school or otherwise', all the legal aspects are covered only by precedent. This means that in order to see what the legal situation is, we have to examine what some judge said about a case which is a bit like the problem we are now facing. Some of the most important of these cases did not even concern home education. Mr Justice Woolf's famous definition of a 'suitable education' for instance in 1985, the one about an education 'achieving what it sets out to achieve', was about an orthodox school.
Most precedent can be overturned by a higher court. The 2007 guidelines offer no definition of what might constitute regular monitoring, even though they say it is not required by law. This means that the passage of a year, in other words the development of the child over that period, might be seen to constitute a change in circumstances which means a new request for information. Different lawyers have different views about all this and this is really caused by the fact that there is no statutory mention anywhere of home education.
Statute law doesn't mention home education because it has seen education (since 1944 at least) as a responsibility ultimately of the parent, and a responsibility that has to be exercised according the the child's needs and individual circumstances. It's impossible for statute law to cover every child's educational needs, which is why it has never attempted to do so. Statute law expects parents and teachers and local authorities to exercise their judgement and to appeal to the law only in cases where there is a dispute that can't be resolved. I can't see a problem with this.
ReplyDeleteSignificant difficulties have arisen since the Children Act 2004 gave local authorities a rather ambiguous duty to promote and safeguard the welfare of all children in their area. The statutory guidelines for CME have muddied the waters further.
I don't understand your reference to the 2007 guidelines; if regular monitoring isn't required by law, why would it need to be defined? Monitoring of children's education by LAs is required only in relation to educational services they provide or commission, and 'if it appears' a child is not receiving a suitable education.
'I don't understand your reference to the 2007 guidelines; if regular monitoring isn't required by law, why would it need to be defined? Monitoring of children's education by LAs is required only in relation to educational services they provide or commission, and 'if it appears' a child is not receiving a suitable education.'
ReplyDeleteIt is agreed that local authorities are entitled to make enquiries when they hear of a home educated child and that parents are wise to answer those enquiries. Most home educating parents assume that having done this, the local authority should then, having satisfied themselves that an education is being provided, carry on assuming that in the future. However, local authorities feel that when the child is a year or two older, then circumstances have changed and they are entitled to ask again about the educational provision, to see if it is still suitable. Some would see this as monitoring. This is a grey area which is not covered by statute law and is a matter of contention between parents and local authorities. That is why the 2007 guidelines are deficient; they do not explain what is meant by monitoring. Some would call the above scenario routine monitoring and claim that the 2007 guidelines say that it is not required by law; the local authorities would take another view.
'It is agreed that local authorities are entitled to make enquiries when they hear of a home educated child and that parents are wise to answer those enquiries.'
ReplyDeleteThat isn't agreed at all. The Donaldson ruling about local authorities making enquiries was in relation to children whose educational status was unknown to the LEA. He's quite explicit about them wanting to know what *category* the child is in.
Statute law gives LAs a duty to make inquiries only 'if it appears' the child is not receiving a suitable education. The Donaldson ruling was in relation to the 'appearance' that might trigger an inquiry. Donaldson said not knowing about the child's educational category constituted grounds for making inquiries. LAs and parents are expected to exercise common sense here. If the LA knows nothing about a child, and have concerns about the child receiving a suitable education, they are entitled to ask. In most cases, the parent saying that the child is home educated should be sufficient for the LA - only if they still suspect the child isn't getting a suitable education do they have grounds for further investigation.
A central issue in all this is who has legal responsibility for what. Parents have had, and still have, legal responsibility for their child's education. Since the Children Act 2004, LAs have - wrongly in my view - seen themselves as having a specific responsibility for the welfare of all children in their area, even though statute law makes it clear that their responsibility is only in relation to services they provide. This wrong view was reinforced by the sanctions applied to LAs by the previous government.
I can't see how a shared responsibility between LA and parent can operate, since parents have no control over LA services and LA's have no control over how parents bring up their children.
This isn't just a question of some parents or lawyers reading the law one way and others reading it another way, it's a question of who has precisely what legal responsibilities and how workable the law is. Since the stautory guidance of January 2009 EHE legislation has been inherently contradictory and unworkable.
This is such an interesting point that I'll make a proper post about it tomorrow.
ReplyDelete