Wednesday, 9 February 2011

On the legality of routine monitoring

I think it fair to say that there is considerable opposition among some home educators to the idea of regular or routine monitoring by local authorities of the education which they may be providing for their children. Some parents, and we saw one commenting here yesterday, take the view that having told the local authority that they are home educating should be the end of the matter. Yesterday, somebody said 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'

This gambit was tried as long ago as 1977. It was not a success. In the summer of that year, Leeds Local Education Authority became aware that a child called Oak Reah was not attending school. They contacted his parents and asked why. The parents told them that they were teaching him themselves and that his education was nobody's business but theirs. Pretty much the line that some parents still advocate, in fact. Leeds did not go away and mind their business. They served a School Attendance Order and prosecuted the parents. Eventually, in 1980, the parents managed to get a Judicial Review. Lord Donaldson ruled that the LEA was quite justified in making enquiries of the parents about their child's education and that while they were entitled to refuse to provide any information, this might result in the LEA issuing an SAO.

Since Phillips V Brown, most parents have cooperated to some extent with their local authority; if only by providing a so-called 'educational philosophy'. Recently, we have seen a number of parents getting annoyed because their local authority has been coming back after a year or two and asking for an update. These parents are adopting the line that this sort of thing amounts to regular monitoring and that local authorities have been specifically told that they have no duty to this, at least according to the 2007 guidelines for local authorities on elective home education. These were issued by the then DCSF and so should be authoritative as far as the law is concerned. . There are two points to bear in mind about this. Section 2.7 of the guidelines says;

'Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis.'

This seems clear enough! They have no duties in relation to routine monitoring. Unfortunately, this is completely vague and quite ambiguous. They may have no duties, in the sense that they don't have to do this, but this does not mean to say that they can't do it. All that this means is that they don't have to. In other words, there is nothing in this to suggest that it would actually run counter to the law if they did choose to monitor the quality of home education on a routine basis. This is the first fly in that particular ointment. Local authorities do lots of things that they don't have a statutory duty to do; their statutory duties are a bare minimum that they must do. Many local authorities do more than this legal minimum and most people are very pleased about it. Few people are pleased to ring up their council with some problem, only to be told, in effect, 'We don't have to do that; it's not part of our statutory duties and so we refuse to help you.' In other words most councils go beyond that bare and irreducible minimum.

The second point to consider is this. The 2007 guidelines do not define what is meant by 'routine monitoring'. Many local authorities have sought their own legal advice on this and the generally accepted view is that the passage of time alone constitutes a change in the suitability of the educational provision being made for a child. Let us take an extreme case and see what this means.

Let us suppose that the local authority become aware of a five year-old child who is being educated at home by his parents. They contact the parents who provide them with chapter and verse of a marvellous, structured and appropriate education. they tell them the name of the reading scheme being used, cuisenaire rods, the whole works. That's great; the local authority are quite satisfied that this child is receiving a suitable education. They do nothing for ten years, perhaps they forget about the child. Now he is fifteen. they knew that his parents were teaching him to read and perform basic arithmetical functions at the age of five, but would that still constitute a suitable education at the age of fifteen? Perhaps not and so they contact the family asking for an update. Nobody could say that this was regular monitoring. Now let us suppose that rather than a ten year gap, the gap is five years. Or three years. Or even one or two years. Does this count as routine monitoring? Without a definition of the term 'routine monitoring', it is impossible to say.

There are signs that a number of local authorities are moving in this direction, that is to say coming back to people who have given them educational philosophies and asking for further information after a year or two. This is because of the points which I have outlined above. I make no comment at all on whether they are right to do so, but it is worth bearing in mind that they have taken legal advice before doing so. Those parents who adopt an intransigent attitude towards such requests based upon what they have read on internet support groups may not be acting their own best interests.


  1. It's a gamble I certainly would not be prepared to take. Especially when it is so straightforward to write a report every year.

  2. You speak truly, Anonymous. It is what I would describe as a high risk strategy.

  3. Old Webb says-There are signs that a number of local authorities are moving in this direction, that is to say coming back to people who have given them educational philosophies and asking for further information after a year or two.

    If an LA comes back to a parent asking for further information no problem tell them your be happy to help by writing back to them! ask them what they want to know keep everything in writing no meetings or home visit put that in the letter the LA will like that! when you find out what they want to know write back and answer the bits you feel you wish to answer you may wish to tell your LA about the pond life you been studying with your child. The lA will leave you alone when it understands you want everything in writing! you can also get your children to write to them after all every child matters! LOL for some reason LA dont like children writing to them about home education! let you kid out of the cellar to write to the LA LOL!

    most people do not understand the process for a SAO its not as simple as old Webb makes out!

  4. Your account of Phillips v Brown is different to the one I recognise, although I'm aware we might be using different sources, and that I might have misread the account. My understanding is not that Oak Reah's parents told the LEA that they were home educating, but that they didn't respond to the LEA's initial inquiry. The whole point of Donaldson's ruling was that the LEA didn't know what educational category Oak Reah fell into because they had *no* information from his parents, not that the information was insufficient. What Oak's parents were arguing was that the LEA had no right to make enquiries without evidence that they needed to do so. Donaldson felt that it would have been remiss of the LEA to assume that no information and no response from the parents meant that all was well.

    UK law is based on a set of fundamental principles, in the same way that a house is built on foundations. As long as the foundations support the house, you can build the house in whatever style you like, but as soon as you start building outside the foundations, your house is in danger of collapse.

    With regard to the legislation relevant to home education, two fundamental principles come into play. One is the allocation of responsibility. If a dispute arises, the allocation of responsibility set out in law can be called on to settle the dispute. The law, until recently, was clear; parents are the people who have ultimate legal responsibility for ensuring that their children a suitably educated. LAs have a responsibility to provide such an education if the parents request it, or 'if it appears' that the parent is failing to do so. The latter duty is not one the LA undertakes as a provider of educational services, but in its law enforcement role.

    Another fundamental legal principle is that people are assumed to be innocent unless evidence suggests beyond reasonable doubt that they have committed a crime. So in the UK, law enforcement means bringing to justice people who 'it appears' have committed an offence; public bodies do not have a duty to go round looking for offences nor to check that everybody is adhering to their legal responsibilities, partly because that is considered to be a strategy that is hugely wasteful of public resources, and partly because public bodies have significantly more clout than the person-in-the-street, so monitoring members of the public can easily spill over into harassment and injustice. This isn't just speculation. Where it's been tried, that's what's happened.

    As I've pointed out before, the recent legislative framework starts building somewhere that isn't founded on these principles by, in effect, giving LAs and parents joint responsibility for education - without specifying precisely where one party's responsibility ends and the other's begins. It also gives LAs a duty to systematically check up on how members of the public to whom the LA is accountable are carrying out a legal duty which is the responsibility of said members of the public. This is a recipe for a constitutional and legal nightmare.

    *IF* there are concerns about the quality of education of children educated at home (and some evidence would be helpful) that is a separate matter from who's responsible for what and who can check up on whom, and needs to be addressed in the context of the education of children as a whole. Making the bodies that can't ensure a suitable education for all children in school responsible for ensuring that HE children do get a suitable education appears counterproductive from the outset. And lumping together the issues of allocation of responsibility, accountability and quality of education as if they are all one and the same and can be dealt with by badly thought-through legislation is also a recipe for failure.

  5. I think that most local authorities have always pursued some form of regular contact with home educating families. I don't think that's new.

    Many local authorities will happily present whatever they want as the law or, at the very least, necessary. I don't think it's 'intransigent' to call them on this. It is, of course, unwise to leave yourself open to an SAO unless that's the path you want to take! I don't imagine many people do want to do that.

    Speaking personally, we have ended up with an arrangement with our local authority that suits us fine - they have agreed not to contact us again unless they have reason to believe that our provision has changed. There was no 'intransigence' involved and it's all (of course) perfectly within the law.

  6. Allie,

    I'm interested in your relationship with the LA. Did you answer any enquiries/have any visits initially? Or have you never provided any information?

    I hope you don't mind answering.

  7. We have no arrangements with our LA HCC nor have we ever had a meeting with them or a home visit! we have also been right though the SAO process and it was revoked but not on the grounds that our son Peter was geting a suitabe education!

  8. Peter,

    Do you mind telling us on what grounds it was revoked?

  9. Anon- asks Peter,

    Do you mind telling us on what grounds it was revoked?

    it was revoked on the grounds that Peter would be to old to go to the school that was named in the SAO.this is what the letter from HCC said but the real reason was that if an SAO is issued you can write to the sectary of state to have it revoked on the grounds you are home educating! it was Ed Balls then who wished Peter well with his home education and we belive then asked HCC what they where playing at as it was quite clear that Peter was geting a full time home education not long after we got a letter saying SAO has been revoked Peter to old for that school i must remind you that it is your duty to make sure Peter gets a suitable home education! I think it hurt EWS a Mcgilvery to have to write this!

    One other thing a school has to agree to be named in an SAO this school did not agree the head and the governors wrote to Ed balls to say so! The head and governors complained to HCC LA as well! a right kettle of fish not heard a word from any one since that letter LOL

    Peter did meet the head of the school in SAO and he was not a happy man! draging his school into all of this! he could see and had read about peter playing for england it was quite funny really Peter shaking the heads hand going over the law and the education act Peter got a file with all the letters from LA amazing really! The head said what are they playing at? I will write at once to all of them!

  10. "I'm interested in your relationship with the LA. Did you answer any enquiries/have any visits initially? Or have you never provided any information?

    I hope you don't mind answering."

    Not at all. We had one visit after de-registering our eldest child in 2004. We pre-empted their next 'offer' of a visit by writing saying that we would send them a written report instead. As far as know, we were the first local 'known' home educators to do this. We sent them annual reports for the next three years and then wrote again suggesting that they had had plenty of information to satify them that our provision was ok and that they shouldn't bother contacting us again unless they had some reason to assume things had changed. They agreed and we haven't heard from them since.

    They might get in touch again at some point, I suppose. If they do then we'll send them some more information if they want it but, on the whole, I'd rather be home educating my children than telling the local authority about home educating my children!

  11. I see. Very similar story to our own.

    After several years of visits and then reports we finally thought enough is enough and requested no more contact. That worked fine for us.

    What worries me though is people who have never given their LA any information at all.

  12. Anon says-What worries me though is people who have never given their LA any information at all.

    Does that include if only the child has been prepared to give the information in a written statement or a confernece call over the phone about the education he/she is getting?

  13. 'Does that include if only the child has been prepared to give the information in a written statement or a confernece call over the phone about the education he/she is getting? '

    The problem is Mr Williams, that many people believe that you are actually writing the things which you claim are written by your child. Have a look at this email received by Penny Jones at the DCSF;

    Subject: Registration

    To Penny

    I will never comply with a registration scheme.My parents will never fill in a form for registration.I will NEVER meet with any one from Hampshire County Council Education department.I will just be saying no.What are you going to do about that then? I also will not comply with the 5 ECM outcomes I will decide my own outcomes based on what I need.I’m not scared of a school attendance order do it go for it. I burn it on the fire like the other one! I’m not scared of you Ed Balls DCSF come on Ed takes us to court I’m soooooooooooo scared!

    The Queen Mary model boat is made and I’m now working on theTitanic liner which sunk in 1912.


    Master Peter A Williams

    Does anybody recognise the style?

  14. Report us then Webb to HCC if you belive Peter did not write this you have a duty to tell HCC lf you belive a child is not geting an education you want the number?

    The SAO was burnt on the fire!

  15. We supposed to be scared cos you keep anything we write on here? Im soooooooooooo scared! dont phone up HCC Webb tell old Balls maybe he help you he could hold your hand while you phone up HCC?

  16. Who has the courage to phone up HCC and claim that Peter is not receving a suitable full time home education? one of your supporters Webb on here must have the guts to do this? lets us know and i provide them with the number and the right person to phone in HCC.

  17. Yet again Peter, you have let down the Home Education Community in the UK.

    Time to shut up before you do any more damage.

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