Thursday 13 September 2012
Are local authorities acting unlawfully when they monitor home education on a regular basis?
One of the most irritating features of home education in this country is the tendency of parents to latch on to random and fairly obscure words and phrases, incorporating them in every letter they write to their council or submission made to a select committee. ‘Conflate’ is one such word, ‘purposive’ is another; as in ‘learning by purposive conversation‘. Combined with the use of odd Latin expressions, I think that the hope is that this will lend their writing a veneer of erudition. Sadly, it has the opposite effect!
Without doubt, the most popular and overused expression in recent years has been ‘ultra vires’. These Latin words simply means beyond one’s powers and are generally used in connection with statutory bodies such as local authorities or government departments. For home educators, this phrase is most often used about the routine monitoring of home education. This is on the increase in some areas; the county of Lincolnshire and city of Nottingham, for example. The claim is made that these local authorities are accordingly acting in an unlawful manner and exceeding their powers. Let us see if this might be true.
The basis for many of the claims made about local authorities overstepping the mark with home education are founded upon a couple of lines in the 2007 guidelines on home education. They say:
2.7 Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine
basis.
There are three points to consider here. First, local authorities go beyond their statutory duties all the time and mostly people are glad about this. The statutory duties are the absolute bare minimum that an authority must undertake. If they do not do these things, then they are in breach of the law and Council Tax payers or the government can call them to account. Doing more than this bare minimum though is what most of us expect from our council. If my council has a statutory duty to run at least one library and then instead opens three or four, I am not going to complain about this. If they have a duty to empty my bin at least once a fortnight, I shall not be taking them to a judicial review if they want to collect my rubbish more frequently than this. They are not acting unlawfully by doing more than their statutory duty.
In other words, the fact that they may have no statutory duties in relation to monitoring home education on a regular basis does not mean that they cannot or should not do this. It is just one of those extra things that they might choose to do which goes beyond the absolute minimum that they are obliged to do by law.
The second point to consider is that it is in any case debatable whether or not such a duty exists in law. The law is unclear on this point and many local authorities take a different view of it than that held by home educating parents. Before instituting a policy of this sort, local authorities always take extensive legal advice, knowing as they do that home educators are a touchy bunch. I rang up Lincolnshire and Nottingham and they both confirmed that they have taken the advice of barristers on this question before sending out the letters to which some home educating parents object. What it essentially boils down to is this. The legal department at these local authorities believe one thing and have been confirmed in their belief by consultation with experts in the law relating to education. A handful of parents believe that they have a better understanding of the law, chiefly because of what they have read on various internet lists to which they belong. It will be interesting to see which side are right!
The third point is even simpler. Let us assume that local authorities do not have a right to monitor the quality of home education on a regular basis. In other words, let us concede everything that the most militant home educators assert so forcefully. Let us even grant that such actions on the part of local authorities would be unlawful. None of this makes the least difference. The aim of yearly checks has nothing to do with the quality of home education; they are intended simply and solely to establish that an education is actually still taking place. They have no reference at all to the quality of the thing; they just want evidence that the child is in fact being educated. The passage of time can have the effect of altering what would be a suitable education for a child and the fact that the local authority was satisfied that a child of five was receiving a suitable education tells them nothing at all about that same child at twelve or fourteen.
Local authorities are not acting unlawfully in checking each year that children who are not at school are receiving an education. It may not be strictly part of their duties to do this, but as I remarked above, we are usually pleased when our council does more than they have to! I am not at all sure that those home educating parents who have learnt all the law they know from just reading blogs and home educating forums really do know more than the Borough Solicitors in various places. The way to settle the matter would of course be to seek a judicial review and I understand that two people are currently attempting this in Lincolnshire. It will be interesting to see what happens.
Subscribe to:
Post Comments (Atom)
Simon wrote,
ReplyDelete"If my council has a statutory duty to run at least one library and then instead opens three or four, I am not going to complain about this."
Which is not to say that many others might well object to the council increasing their costs and therefore the taxes we will have to pay. Where local authorities exceed their statutory powers, they are regarded as acting outside the law and can be challenged in court (according to direct.gov). Besides which, as the 'graph of doom' may mean the end of libraries, http://www.bbc.co.uk/news/uk-politics-18610169, I'm not sure they will have the money for other non-statutory duties.
Simon wrote,
"What it essentially boils down to is this. The legal department at these local authorities believe one thing and have been confirmed in their belief by consultation with experts in the law relating to education. A handful of parents believe that they have a better understanding of the law, chiefly because of what they have read on various internet lists to which they belong. It will be interesting to see which side are right!"
And also, presumably, the experts in the law relating to education that the government department consulted when drawing up the guidelines you quote also disagree with those employed (according to you) by local authorities. To be honest, I'd be surprised if they could justify splashing out on consulting legal advice outside the council's own legal department, it certainly wouldn't be cheap and times are supposed to be hard. Maybe you should issue a FOI to check that they've told you the truth and also to discover how much money they've wasted by duplicating work already carried out by central government?
Your argument as usual falls early on: yes LAs do go beyond their statutory duty in many respects but in those they are providing a SERVICE to their tax payers. Whilst providing an extra service people are glad of is acting beyond their statutory duty, it is welcomed by those they provide it to. Monitoring of home educators is not providing a service and not welcomed, it is inflicting something unrequired.
ReplyDeleteTo act beyond the remit against the intersts of those against which you act is wrong in law and wrong in principle.
You also argue against yourself (not unusual for your muddled messages of doom) in that you refer to the LA barristers and then to their 'borough solicitors'. I have dealt with many LAs in legal issues and it is a rare autority that pays for counsel. Some do use retained solicitor's practices but most use their own in house lawyers. THey are often sound practitioners in fields that they regularly deal with but home educatin law is not one of those fields.
Let us allow Lord Parker and Donaldson to put it better shall we?
"an education authority should not, as a matter of policy, insist on inspection in the homes as the only method of satisfying themselves that children were receiving efficient full time education" (Judge Donaldson in Phillips v Brown, Divisional Court, [20 June 1980, unreported]).
"the Act of 1944 (replaced by the 1996 Education Act) does not provide for or contemplate an intrusion of a parent's privacy by inspectors coming into the home, and that it is quite wrong for a Local Authority to insist on such inspection." (Lord Parker of Waddington
You really are very quarrelsome and should spend your afternoon on the naughty step, or receiving an old fashioned smacking. Now there's a subject you could perhaps get into more knowlegeably: strict upbringings.
'Where local authorities exceed their statutory powers, they are regarded as acting outside the law and can be challenged in court (according to direct.gov).'
ReplyDeleteConfusion here between exceeding statutory powers and exceeding statutory duties; two very different things.
'And also, presumably, the experts in the law relating to education that the government department consulted when drawing up the guidelines you quote also disagree with those employed (according to you) by local authorities'
The law is complex, consisting as it does of case law dating back a hundred years mixed in with various statutes passed in recent years. None of this has been tested in the courts. Until that has happened, it is anybody's guess what will be decided.
'To act beyond the remit against the intersts of those against which you act is wrong in law and wrong in principle.'
ReplyDeleteThey are acting in the interests of the child, not the parents.
'Let us allow Lord Parker and Donaldson to put it better shall we?
"an education authority should not, as a matter of policy, insist on inspection in the homes as the only method of satisfying themselves that children were receiving efficient full time education" (Judge Donaldson in Phillips v Brown, Divisional Court, [20 June 1980, unreported]).
"the Act of 1944 (replaced by the 1996 Education Act) does not provide for or contemplate an intrusion of a parent's privacy by inspectors coming into the home, and that it is quite wrong for a Local Authority to insist on such inspection." (Lord Parker of Waddington'
None of this has anything to do with the case. These rulings concerned entry to the home. Requiring annual progress reports and other evidence is not affected in the least by this. Indeed, Nottingham, in their recent letter to home educators, makes it clear that nobody is compelled to accept a home visit. What they will require is evidence such as photographs, completed work and so on. The judgements you quote are quite irrelevant to this request.
'
"The judgements you quote are quite irrelevant to this request."
ReplyDeleteSo what statue or case law did these authorities point to when claiming they have a duty to monitor? Or did you just take their word for it?
'So what statue or case law did these authorities point to when claiming they have a duty to monitor? Or did you just take their word for it?'
ReplyDeleteIt is by no means certain that they do have a duty to monitor. It really does not make any difference; it is not in the least unlawful for local authorities to take on duties in addition to those which the law obliges them to assume. Some certainly claim that they do have a statutory duty, but this is open to question. CME is usually cited in those cases.
You said that you contacted particular authorities before writing this article and they claimed that they have a duty to monitor after consulting barristers. Which laws specifically did these authorities quote when you contacted them, or did you just take their word for it? If they cited CME, which parts of CME in particular?
DeleteI cannot decide whether or not to shoot myself or to attemtpt once more to explain the situation here. Perhaps I could try once more to set the matter out in plain language and then if that fails I could retire to my room with a bottle of whiskey and a revolver.
ReplyDeleteLocal authorities provide services for people. Some are provided to adults and others to children. One of the services to children is to ensure that they are not being made to work and are instead being provided with an education. There are certain minimum steps which all local authorities are obliged by statute to take in regard of these matters, but most go beyond what is strictly required by law. This is because children are among the most vulnerable members of our society and should receive more attention to their needs than adults. It is not unlawful for a council to go to extra lengths to ensure that children are not being made to work down coal mines or up chimneys. Nor is it unlawful to make extra checks to ensure that they are receiving an education. These measures may be undesirable for unscruplous employers or lazy parents, but most people are glad to see them being enforced. Employers and parents cannot opt out of these checks; they are being undertaken in pursuit of a general principle of protecting the interests of children.
Simon wrote,
Delete"Employers and parents cannot opt out of these checks; they are being undertaken in pursuit of a general principle of protecting the interests of children."
Of course they can, unless there is a law that requires them to comply, and there isn't in this case.
' I have dealt with many LAs in legal issues and it is a rare autority that pays for counsel. Some do use retained solicitor's practices but most use their own in house lawyers. THey are often sound practitioners in fields that they regularly deal with but home educatin law is not one of those fields. '
ReplyDeleteYes, this is precisely right and it is why when a tricky question like this crops up that they obtain counsel's view on the matter. In other word, the Borough Solicitor will send out for an independent opinion about difficult legal questions. I strongly suspect that you have never actually worked for a local authority.
You're getting muddled again, Simon. Anonymous says they have dealt with many LAs, nor worked for one. Local Authorities touch so many areas of life there must be very few people who have not dealt with them in various ways over the years. I'm not sure why you would suspect them of lying?
DeleteJust tell you tick boxing LA when they write to you no thanks to a home visit or meeting or monitoring if you can put down in writing what it is you want to know about child education i decide if i need to reply many thanks for your interest.
ReplyDelete'You're getting muddled again, Simon. Anonymous says they have dealt with many LAs, nor worked for one. Local Authorities touch so many areas of life there must be very few people who have not dealt with them in various ways over the years. I'm not sure why you would suspect them of lying?'
ReplyDeleteTruly weird comment! Saying to somebody, 'I strongly suspect that you have never worked for a local authority' is a way of explaining that you do not think that the person is familiar with the procedures followed there; in other words, that she does not know anything about it. I might similarly say to somebody, 'It's clear that you have not worked in a school', if the subject of classroom practice were to arise and the individual did not seem to understand something about it. How this can be interpreted as an accusation of lying against anybody is a complete mystery to me. It honestly suggests that some of the people commenting here are unfamiliar with either idiomatic English or the way that normal people debate things.
Point 1 there is a difference between a SERVICE like emptying a bin (where a minimum level is required) and a STATUTORY INTERVENTION like picking up the pieces when a suitable ed is not taking place. In the second monitoring is not required but a response to an allegation of neglect of duty is. So in the first you could exceed minimum expectations (and after all if you only wanted your bin picking up once a fortnight you would only put it out once a fortnight so the extra service would be opt in, not compulsory) and in the second you would be causing undue interference (and by claiming it is a statutory duty you make it appear compulsory).
ReplyDeletePoint 2. In my experience too, lawyers retained and employed by LAs will know a lot about education law pertaining to school etc but next to nothing about EHE. In fact we have even known the DfE lawyers to get it wrong, and not infrequently. I cite the case this year of the Directgov site which, until it was pointed out to them was utter nonsense, maintained that Authorities have a duty to ensure that a suitable education is taking place (with EHE children). Sadly by then many LAs had copied this phrase into their web pages and policies and even Nick Gibb was using it in letters....In fact it is STILL incorrect because it states "Local authorities can make informal enquiries of parents who are educating their children at home to establish that a suitable education is being provided". Whereas they are looking, in so-called "informal equiries" for the appearance that a suitable education is NOT being provided, an important distinction in law.
Point 3 LAs if they are merely asking "how are you educating your child" and accepting the answer "through home education" would be sticking strictly to their remit. However they are attempting to assess "suitability" usually which is a qualitative assessment.
6/10 for effort. 0/10 for accuracy. Could try harder Simon......
Alison said,
Delete"Point 3 LAs if they are merely asking "how are you educating your child" and accepting the answer "through home education" would be sticking strictly to their remit."
But case law says otherwise. Lord Donaldson said the following with regard to an LA's actions when a home educating family is brought to their attention,
"What should it do? I do not accept that it should do nothing. This would rightly be criticised as an attempt to because like an ostrich -- to put its head in the sand in order that it should not learn of anything which might place upon it the burden of discharging its duty to consider making and, in appropriate cases, to make School Attendance Orders. The most obvious step to take is to ask the parents for information. Of course such a request is not the same as a notice under s 37 (1) of the Education Act 1944 (now s 437 (1) of the 1996 Education Act) and the parents will be under no duty to comply. However it would be sensible for them to do so. If parents give no information or adopt the course .......... of merely stating that they are discharging their duty without giving any details of how they are doing so, the LEA will have to consider and decide whether it ‘appears’ to it that the parents are in breach of s 36. (now s7 of the 1996 Education Act.) In this context there is no reason why it should necessarily accept the parents' view -- opinions differ on what has to be done in discharge of the duty -- and if the parents refuse to answer, it could very easily conclude that prima facie the parents were in breach of their duty."
See, it's not just home educators who like to throw in the odd latin phrase here and there.
Simon wrote,
ReplyDelete"Truly weird comment! Saying to somebody, 'I strongly suspect that you have never worked for a local authority' is a way of explaining that you do not think that the person is familiar with the procedures followed there; in other words, that she does not know anything about it."
That makes no sense either. It's entirely possible to have sufficient contact with a local authority to understand how they operate were without actually working for them! Anonymous stated that they have dealt with many local authorities over legal issues; your suggestion that they have no idea how local authorities deal with legal issues disputes this claim.
You said that you contacted particular authorities before writing this article and they claimed that they have a duty to monitor after consulting barristers. Which laws specifically did these authorities quote when you contacted them, or did you just take their word for it? If they cited CME, which parts of CME in particular?
ReplyDelete'Point 1 there is a difference between a SERVICE like emptying a bin (where a minimum level is required) and a STATUTORY INTERVENTION like picking up the pieces when a suitable ed is not taking place. In the second monitoring is not required but a response to an allegation of neglect of duty is.'
ReplyDeleteNobody is talking about statutory intervention and I am at a loss to know where you have got this idea from. The process of dealing with a case where a child has been shown not to be receiving a suitable education is quite different from checking that such a state of affairs does not exist.
'In my experience too, lawyers retained and employed by LAs will know a lot about education law pertaining to school etc but next to nothing about EHE.'
This is true, which is why I explained above that counsel's opinion is sometimes sought on this matter because it is not the sort of thing that solicitors employed by a local authority are likely to know much about.
'Point 3 LAs if they are merely asking "how are you educating your child" and accepting the answer "through home education" would be sticking strictly to their remit. However they are attempting to assess "suitability" usually which is a qualitative assessment.'
Alison, I honestly wonder how you have the cheek to write this! You have been involved with training local authorities and I have seen material from such sessions in which you advise that the passage of time is effectively a change of circumstance and that they can come back after a year or two and request further information, simply because the child is now older. You are, in effect, telling them that regular checks are quite OK. Please make this clear to readers.
Gall 9/10
Honesty 0/10
Alison claims that this is the legal situation with enquiries by the local authority when they come across a child being educated at home:
ReplyDelete' LAs if they are merely asking "how are you educating your child" and accepting the answer "through home education" would be sticking strictly to their remit.'
This is quite untrue, as somebody pointed out above. The case law actually is that, ' If parents give no information or adopt the course .......... of merely stating that they are discharging their duty without giving any details of how they are doing so, the LEA will have to consider and decide whether it ‘appears’ to it that the parents are in breach of s 36. (now s7 of the 1996 Education Act.) In this context there is no reason why it should necessarily accept the parents' view -- opinions differ on what has to be done in discharge of the duty -- and if the parents refuse to answer, it could very easily conclude that prima facie the parents were in breach of their duty."'
In other words, the duty of the local authority goes beyond simply getting an assurance from the parent that the child is being educated at home. In fact, Alison knows this perfectly well and trains local authorities on this very point. She is attempting here to hunt with the hounds and run with the fox; in other words to be both a home educator and also somebody telling local authority officers the best way to monitor home education. She seems, at least when talking to some LAs, to be in favour of regular, routine monitoring and tells local authorities that this is fine, because the passing of time means that the circumstances have changed with regard to the education which a child should be receiving. This is music to the ears of many local authorities, who take this to mean that they are quite justified in coming back annually for new information. Where Alison makes her great mistake is in thinking that this sort of thing will not leak out and become generally known!
Ahh you are both confusing a check to see if a child is being educated with a response to a concern.....but as my lawyer said to me only this evening it is so difficult to explain the nuances..and text is not a good medium for that so I apologise if I was unclear.
ReplyDeleteGosh I never noticed you at one of my courses Simon. Which one did you attend? I am surprised that you know what is in them! Or are you
listening to rumour again? Routine annual monitoring indeed...that phrase never passes my lips except to denounce it as an outmoded and unneeded activity.
In Scotland Annual enquiries are in Statutory guidance however I think you will find. Maybe you came to a Scottish Course and are a little confused?
Pragmatically, over time it would be great to see Authorities move from rigid annual or even quarterly monitoring in some cases to a more evidence based, flexible and respectful/supportive position. We are, however, a long way from that in the mindset of most LAs.
Finally let us remember where passage of time concept actually comes from shall we ??? Ian Dowty quite some years ago. Let us also remember that interpretation of law changes over time and I have not heard Ian speak of this for some years......
'Gosh I never noticed you at one of my courses Simon. Which one did you attend? I am surprised that you know what is in them! Or are you
ReplyDeletelistening to rumour again? Routine annual monitoring indeed...that phrase never passes my lips except to denounce it as an outmoded and unneeded activity.'
It is quite true that you have not said that routine annual monitoring is a good idea. It is also true that you have told local authority officers that the passage of time is a change in circumstance which is sufficient to justify new enquiries. They have then seized on this and later distorted it. Before we go any further with this, could you simply tell us whether or not you agree that you have said this in the course of training local authorities? In other words, do you recall telling local authority officers working with electively home educated children that the passage of time is a change in circumstance?
Neither of those have anything to do with me. I think I may have disseminated the first one IIRC but I didn't write it! Clearly you are not paying your spies enough biscuits.
ReplyDeleteThe website is not mine.
Oh, and for the record, my husband has nothing to do with my work! He's far too busy doing his own.....
While Alison is here, it might be interesting to ask her about one or two of her past achievements . Here is a very strange document which she and her husband, produced:
ReplyDeletehttps://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnx0aGVob21lb2ZlZHVjYXRpb258Z3g6M2QzODc2MDdhMjQzZWY5ZQ&pli=1
And here is a website which they set up so that they could put across Alison’s views on home education and make them see a little more objective than just a personal opinion;
https://sites.google.com/site/thehomeofeducation/educational
You might not want to use one or two of the slogans suggested by Alison and her husband here. For instance, ‘Home Educate - It turns children on’ is probably one to avoid when people are fretting about the possible link between home education and the abuse of children!
'It turns children on'
DeleteTell me you're joking.......
'Oh, and for the record, my husband has nothing to do with my work! He's far too busy doing his own.....'
ReplyDeleteCompanies House thinks otherwise... I observe that you seem a little reluctant either to confirm or deny that you have been telling local authority officers that the passage of time constitutes a change in circumstance which justifies further enquiries by the authority. Since this is the basis for demands for regular monitoring, this is important. All you need to say is, 'I have never told local authorities this'.
Alison said,
ReplyDelete"Ahh you are both confusing a check to see if a child is being educated with a response to a concern"
In what way did I confuse this issue? The case law established that if an LA asks a parent about HE, the parents would be best advised to offer more than the mere assertion that they were home educating. Yet you appeared to suggest that the LA should accept such an assertion when you said,
"Point 3 LAs if they are merely asking "how are you educating your child" and accepting the answer "through home education" would be sticking strictly to their remit."
In the case in questions (Phillips v Brown) the LA became aware of a child who was not attending school and asked for details of his education provision. The parents believed that the LA should accept their assurance that they were educating their child according to age, ability, etc. otherwise than at school, but the LA wanted details of the educational programme. The defendant argued that an LA exceeds its powers if it asks parents to prove that they are discharging their duty to ensure that their children are properly educated, unless the LA has some reason to doubt that this is the case. The defendant lost the case.
Do you count this as, 'a check to see if a child is being educated', or, 'a response to a concern'? Can you give an example of the other situation? How should each situation be treated by an LA in your view?
Anonymous said,
ReplyDelete"You said that you contacted particular authorities before writing this article and they claimed that they have a duty to monitor after consulting barristers. Which laws specifically did these authorities quote when you contacted them, or did you just take their word for it? If they cited CME, which parts of CME in particular?"
So can we assume, Simon, that you just took the LAs word for it? You didn't ask which law they are relying on to support the conclusion that they have a duty to monitor? Very trusting of you, if that is the case.
Simon said,
ReplyDelete"She is attempting here to hunt with the hounds and run with the fox; in other words to be both a home educator and also somebody telling local authority officers the best way to monitor home education."
You wrote this just after the Donaldson quote. Just to be clear, this case says nothing about monitoring and in fact Donaldson's comment at the end of his judgement suggests opposition to monitoring:
"Finally, I should mention that Mr. Phillips expressed concern lest, if the Magistrate's view of the law was right, it would be open to an L.E.A. to persecute a parent by issuing a series of School Attendance Orders at short intervals, making complaints that the orders were not complied with and on each occasion requiring the parent to prove that he was discharging his section 36 duty. There is no evidence whatsoever that this has happened in this case or in any other case. But Mr. Phillips need have no fear. Apart altogether from the power of the Magistrates Court to order that a particular School Attendance Order shall cease to be in force pursuant to section 37(6), the Divisional Court, in an appropriate case, has the necessary power and would have no hesitation in restraining such conduct by an L.E.A. by means of judicial review.
'So can we assume, Simon, that you just took the LAs word for it? You didn't ask which law they are relying on to support the conclusion that they have a duty to monitor? Very trusting of you, if that is the case.'
ReplyDeleteSee my latest post for a discussion of this.
But it still doesn't answer the question I'm interested and have asked. Which section, of which law, are the two councils you contacted relying on when they say they have a duty to monitor? Or did you just take their word for it when they said that they exist?
Delete''It turns children on'
ReplyDeleteTell me you're joking.......'
Not at all! Just look at the website and you will see it there.
'You wrote this just after the Donaldson quote. Just to be clear, this case says nothing about monitoring and in fact Donaldson's comment at the end of his judgement suggests opposition to monitoring:'
ReplyDeleteHinges around the meaning of 'at short intervals' Few people would regard an annual enquiry as taking place at 'short intervals'.
Alison tells us:
ReplyDelete'Oh, and for the record, my husband has nothing to do with my work! He's far too busy doing his own.....'
This is very puzzling. Alison works for a set-up called Sauer Consultancy, currently trading as SC Education. Look at this site:
http://uk.linkedin.com/pub/ralph-sauer/14/149/8a7
You will see that Alison’s husband Ralph is listed as being the managing director of the company for which Alison is working. Some connection then with her work, surely?
Hi, i think that i saw you visited my site so i came to
ReplyDelete?return the favor?.I'm trying to find things to enhance my web site!I suppose its ok to use some of your ideas!!
My web page :: as explained here
Everyone loves what you guys are up too. This sort of clever
ReplyDeletework and exposure! Keep up the good works guys I've incorporated you guys to blogroll.
Look at my page :: youtube view increaser free