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.