Sunday 30 September 2012

More about changing the law on home education

I feel a little sorry for the Welsh home educator who commented here yesterday, saying what a pleasure it was to find a place where home education could be discussed without the quarrelsome and ill -mannered antics of those on some of the home education lists and forums. No sooner had she said this, than some of the more aggressive types zoomed in and showed her that this blog was not a safe space after all! It would be interesting, incidentally, to know how many of those commenting here are, like her, Welsh and so likely to be affected by the laws being proposed by the Welsh Assembly. Anyway, back to the desirability or otherwise of changing the law.


When the Children Schools and Families Bill was about to be passed a couple of years ago, with its provision for the compulsory registration of home education, the assertion was made that such registration and monitoring would harm home educated children. The same suggestion is now being made about the proposed measures in Wales. Commenting here yesterday, somebody claimed that this sort of thing was bad because:



less confident home-educators, who are, nevertheless, doing a better job than schools, may be harmed, along with their children.



This is the sort of thing home educators often say whenever anybody wants to change the law.  I was myself mentioned in the blog Dare to Know, as somebody who would have 'blood on his hands'  if the parts of the CSF Bill relating to home education were to be passed! Statements like this are a bit true, but wholly misleading. For example, I might say that black people are lazy. Well, this is true as far as it goes; after all there are lazy black people. It is misleading though, because of course not all black people are lazy. So suggesting that home educated children will be harmed by this or that new regulation or law may be true, but misleading because not all children will be harmed. Some may be harmed, but others will benefit. So in a sense, both the local authorities and the more militant home educators are both right. The LAs say that registration and monitoring will benefit some home educated children and home educators say that some children will be harmed. This is what it is like in the real world; nothing is black and white and whatever you do, there will be bad consequences for somebody!

Let us draw a comparison with the introduction of compulsory seat belts some years ago. If at the time, I had campaigned against the proposed legislation by claiming that children would be killed and injured as a direct result of this law, I would have appeared to be a bit of a crank. Still, that is probably what has happened. Because drivers feel safer when they and their passengers are wearing seatbelts, they tend to drive faster. This is bad news for pedestrians in built up areas and is likely to end in more pedestrian casualties than when the cars were travelling more slowly. This of course has led to campaigns to reduce the speed limit in certain places. However, those actually in cars are far less likely to be killed and injured when they are wearing seatbelts, so on balance it was a good idea. This is because lots of children travel in cars and there are fewer on bicycles or foot; the net result is fewer children being injured in road accidents.

Introducing a law to regulate home education would be very similar to this situation. Some children would suffer harm, but others would benefit. In order to work out if it is a good plan or not, we have to consider a number of factors. For example, some home educated children are already suffering harm, although others are benefiting enormously from being home educated. A new law would change the balance, with perhaps more children benefiting and fewer suffering harm. Or perhaps it would be the other way round!

Simply stating that home educated children would suffer harm if new legislation were to be passed is utterly meaningless. Of course some will suffer harm, just as some are already suffering. What we must do, and it is not at all an easy proposition, is discover the relative proportions of the increase or decrease in those likely to suffer harm and those who will probably benefit. Then we must somehow calculate the proportions of those being benefited and harmed under the current arrangements. We also need to define just what we mean by 'harm' and 'benefit'.

None of this is straightforward and many of the suggested benefits and much of the supposed harm is pretty vague and intangible. In a sense, there is no fundamental difference between the views of home educating parents and those of most local authorities. Both sides know that some home educated children benefit from the education they receive. Both know also that some children are harmed by being withdrawn from school and educated at home. The debate hinges around the exact proportions involved and this is where the crux of the matter lies.

There is no such thing as a perfect human system or institution. Always, there are victims and winners. This is true of home education, just as it is with schools. I do not see this as grounds for doing nothing and declaring that no change should ever be undertaken. I can see ways that I think that schools could be improved and I can also see scope for new ways of organising home education. My suspicion is that those who oppose any change in the field of education are probably the sort of reactionaries who just do not like new ideas and new ways of doing things. I can understand this; the older I get, the less fond I am of change myself! However, there is a powerful reason for changing the law and this is that the present legal situation is not at all clear. This ambiguity leads to conflict, because sometimes local authorities overstep the mark because they genuinely believe that they have powers which they do not possess. If the precise duties of both parents and local authorities were to be set out in plain language, then I think it likely that there would be less antagonism and confrontation as a consequence, because everybody would know where they stood.

190 comments:

  1. "Then we must somehow calculate the proportions of those being benefited and harmed under the current arrangements."

    The evidence from New Zealand shows that annual monitoring visits do not increase the number of children who are helped. The same number of problem families were located and helped both with and without annual monitoring visits. The evidence from the US shows that different degrees of regulation do not affect academic outcomes. So no children are likely to be helped, which just leaves harm. Or do you have evidence that more children would be helped by the proposed system. Evidence, not theories.

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  2. The first thing which strikes one about the above comment is that it serves neatly illustrate what I said about the need to define what we mean by 'harm' and 'benefit' in this context. By talking of the experience in New Zealand and America, I am guessing that she refers to the provision or otherwise of an adequate education, since this is what monitoring in those places looked at.

    When people warn that a change in the law would cause 'harm' to home educated children, they are not generally talking of the harm caused by an inadequate education. Rather, they mean the harm caused by forcing a bullied child to return to school; that kind of thing. Of course, since children are bullied at home as well as at school, this brings us back to the sort of situation which I discussed above about balancing various risks.

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    1. "When people warn that a change in the law would cause 'harm' to home educated children, they are not generally talking of the harm caused by an inadequate education."

      I'm the writer of the orignal comment. I include an inadequate education along with other harms when arguing against the proposals. Why not ask instead of guessing if you are confused?

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  3. 'Or do you have evidence that more children would be helped by the proposed system'

    Many home educating parents seem strangely reluctant to furnish anybody with evidence about their children's academic achievements! Part of the purpose of a change in the law would be to gather such evidence and see how well home education was actually working in this country; that is to say if the educational outcomes were as good as or better than those in maintained schools.

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  4. "I feel a little sorry for the Welsh home educator who commented here yesterday, saying what a pleasure it was to find a place where home education could be discussed without the quarrelsome and ill -mannered antics of those on some of the home education lists and forums. No sooner had she said this, than some of the more aggressive types zoomed in and showed her that this blog was not a safe space after all!"

    How so? The only substantive reply put the opposite view to her's, that your blog is not a safe place to disscuss the issues. Isn't giving and discussing opposing views the definition of a discussion? They were not personally attacked or flamed, so I'm struggling to see your problem. I suppose the reply did point out your modified personal attack approach. If you don't like an argument you attack the group putting forward the idea instead of the idea itself, but that's hardly the fault of the person who replied. They can't control your responses, after all.

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  5. Ok now, this is what was said yesterday

    "Well if you call branding anyone that disagrees with you as militant or tricksy and a holder of ulterior motives with no attempt to engaging with the the issues raised a discussion, I hate to think what you've been subjected to elsewhere! Simon seems to think that if he repeats something often enough and ignores all requests for evidence he has made a point."

    Theres at least one personal attack in there (on Simon), and a straw man. But even just looking at the tone of the thing, can I ask, honestly, is this what you'd consider reasoned debate? Is this how you speak to people in real life when you don't agree with them? If someone spoke to you like this, would you consider this an opening gambit to reasonable debate?

    My point was that if someone like me, directly affected by the proposals, raises an objection then this is the kind of thing they get back. Not debate or engagement, simply dismissive vitriol. If you are on the Welsh lists you will know that there have had to be repeated calls to avoid personal attacks, blocking people, and so on. It is such a shame that we cannot work together even on this.

    I am assuming-I truly hope-that people do actually know, deep down, blustering aside, that this is not a nice way to speak. But i do want to make the point that its is really turning people off posting on the lists or even getting involved in the campaigns right now. Its one thing to lose your temper and rant at someone who you have no evidence at all is actually who they say they are, quite another if you actually believe this is an acceptable way to speak to people.

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    1. "Theres at least one personal attack in there (on Simon), and a straw man."

      So describing Simon's modified personal attack approach is a personal attack? You brought up the issue of safety on Simon's blog and I responded with evidence that it's only safe if you agree with Simon. Exactly the complaint you have yourself for other places. Nothing I said was a lie or a distortion. If you think any of it was, please point it out and provide evidence to back it up. That's how discussions generally work. And can you be more specific about the 'straw man'.

      "But even just looking at the tone of the thing, can I ask, honestly, is this what you'd consider reasoned debate?"

      Tone? Doesn't this depend on how you read it? Try reading it with a quizzical, puzzled tone, because that was the intention. Maybe I should have added a question mark along with the exclamation point to make that clearer, but if you read things with a negative tone, you will feel under attack - I can't control your feelings, though I apologise if I caused distress, it was accidental.

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    2. "You brought up the issue of safety on Simon's blog and I responded with evidence that it's only safe if you agree with Simon. "

      Well, actually, no, I didn't bring up the issue of safety. I don't feel that its unsafe or feel personally threatened when people disagree with me. I find it frustrating when they do it in such as way as to close off debate, and it saddens me a great deal because right now I feel we have a need for open debate. But safety? Goodness, I'm sitting in my home with a cup of coffee by my side, its hardly an unsafe situation.

      Similarly, "Well if you call branding anyone that disagrees with you as militant or tricksy and a holder of ulterior motives with no attempt to engaging with the the issues raised a discussion.". I didn't call anyone milliant or tricksy or having ulterior motives. What I said was that I didn't agree with them and many other HErs don't-which is fine-but also that those who did not share their views were being shouted out of the discussion. I do respect the views of those I don't agree with, and who knows they may even convince me of them. What I don't appreciate is the way that the debate is being conducted.

      Though on that note-a personal plea-could we please stop quoting Pastor Niemoller? "First they came for the Commmunists..." Whatever you think about the HE proposals-kids being led to the gas chambers vs kids being taught to read-bit of a qualitative difference, surely?)

      Tone may well depend on how people read something, yes. But part of our duty as writers is to think about how our readers interpret what we are saying. I agree it can be hard on the internet to convey that, so I think, on the whole, its best to play it as safe as you can. You can convey a lot by your choice of words without requiring a reader to adopt a particular tone of voice, and I think that's normally the best option.


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    3. “But safety? Goodness, I'm sitting in my home with a cup of coffee by my side, its hardly an unsafe situation.”

      That’s good to hear. I’m obviously reading more into your comments about conspiracy theorists, collective hysteria and flaming than you intended, for which I apologise.

      “I didn't call anyone milliant or tricksy or having ulterior motives.”

      I didn’t claim that you did. You said that you were happy that this blog appeared to be a place where you could discuss the issues without being flamed (at least, that was my impression, but maybe that's wrong too?). I replied that this is only the case if you agree with Simon, because if you disagree he is likely to call you militant, tricksy or of having ulterior motives in order to close the discussion down and avoid addressing the issues - not what I would call a discussion.

      “You can convey a lot by your choice of words without requiring a reader to adopt a particular tone of voice, and I think that's normally the best option.”

      In the interests of education, which words in particular did you find caused a negative tone?

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  6. Simon said,
    "My suspicion is that those who oppose any change in the field of education are probably the sort of reactionaries who just do not like new ideas and new ways of doing things."

    You assume that they (who?) oppose any change in the field of education without any evidence to support your assumption and then use this assumption to write off their views. Is this what the other commenter meant by an Aunt Sally? I'll have to look that one up.

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  8. Formatting and I are not doing too well here... sorry

    Simon said. "This ambiguity leads to conflict, because sometimes local authorities overstep the mark because they genuinely believe that they have powers which they do not possess."

    This is, I suppose, possible, Simon. While I am usually a fully functioning cynic, I feel that if this is the case then it could be sorted out quite easily by a letter from the Education Secretary advising LA's of the current guidelines both for Elective Home Education and for providing support and asking them to make a point of following both and attempting to engage with home educators

    My experience is that many home educators would bite the fingers off of anyone offering them an exam centre and/or workshops. Certainly those LA's who have successfully engaged have done it this way, by being useful and trustworthy.They then have a good working relationship so people can talk freely and ask for help and they have fewer concerns.


    Those LA's that are neither useful nor trustworthy will have a lower rate of engagement, and hence want the law changed to force what they could have got by treating those who home educate with the same respect that they would treat a school.

    I am sure I am not the only person who has left the education system and is well aware in the difference in attitude taken to a 'qualified' teacher and a 'mere' parent. I once had the surreal experience of asking all those at an SEN review meeting to go round the table explaining their experience of and training in the particular type of autism my children had. The only one who had had any experience of it was... yes, I'm sure you've guessed, the parent who was being categorised as the problem. The educational psychologist said what she'd learned had come from sites and books I'd recommended.

    Treat people with respect and courtesy and the overwhleming majority will work with you. Do the educational equivalent of coming into their home, kicking the dog, insulting your husband or wife and throwing up over the carpet and people will not only not invite you back but warn other people not to invite you either.


    (Apologies to anyone who was eating as they read this!)

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  9. Simon has still not answered the question of why new legislation is necessary. Several different responses to his previous post indicated that all that is needed is for LAs to resolve their understanding of the current legislation; there's nothing unusual or particularly difficult about this. Instead, he, and the LAs, wish to jump to new legislation.

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  10. Simon>
    'My suspicion is that those who oppose any change in the field of education are probably the sort of reactionaries who just do not like new ideas and new ways of doing things. I can understand this; the older I get, the less fond I am of change myself!'

    I'm probably not very far behind you in age and I see a desperate need to change an awful lot, and not only in education. However, there is a great difference between change for the sake of change, and change for good.

    Most of those who wish to control our lives have only a vague, wooly-minded sense of logic and reality, founded on lives driven by overweening ambition for power, and very little else (Ed Balls and Leighton Andrews are good examples, but politics is full of them). When people such as these call for change, it's time to run for cover.

    If there is confusion and conflict within the LAs, then the kind of people I've just mentioned should shoulder a lot of the blame. However, the LAs (or some of them) are looking for an easy way to do things; unlimited power is a handy tool, so that's what they'd like. Is that a good reason for change?

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  11. 'If the precise duties of both parents and local authorities were to be set out in plain language, then I think it likely that there would be less antagonism and confrontation as a consequence, because everybody would know where they stood.'

    One could say:
    "Educate your children as Simon Webb dictates and without arguing, or else you and your children will be shot".
    That's plain enough, everybody would know where they stood, and there would be less antagonism and confrontation as a consequence. Does that make this a sensible proposition?

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  12. 'Simon has still not answered the question of why new legislation is necessary. Several different responses to his previous post indicated that all that is needed is for LAs to resolve their understanding of the current legislation;'

    By which, I take it, you mean interpret it in the way that suits you! The problem is a simple one. Some local authorities feels that they have a legal duty to monitor home education and also to check that every child in their area has access to the five outcomes of the Every Child Matters agenda. These authorities have taken legal advice and are able to call on lawyers who agree with this view of the situation. Some home educating parents on the other hand, do not think that this is the correct legal situation and they too are able to produce lawyers who agree with their own interpretation. That is why there is a conflict; because two sets of people hold different views and both think that they are right and the other side wrong.

    I make no comment on which of the two views I think is correct; that does not matter. What does matter is that the law is sufficiently vague for misunderstandings of this sort to arise. It results in antagonism and conflict between home educating parents and local authorities.

    Of course, one way of settling the problem would be if the local authorities did as some people commenting here feel they should and simply say that they and their lawyers have been wrong all along. Equally, the home educating parents could give up their position and acknowledge that the local authorities have been right all the time. I do not expect either of these things to happen and so the stage is set for continued confrontation. Another way of dealing with this would be to pass new laws that were clear and unambiguous.

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  13. Simon said:
    'Many home educating parents seem strangely reluctant to furnish anybody with evidence about their children's academic achievements! Part of the purpose of a change in the law would be to gather such evidence and see how well home education was actually working in this country; that is to say if the educational outcomes were as good as or better than those in maintained schools.'

    Why one earth should we have any confidence in such an exercise? I appreciate that you're struggling to find good reasons to justify new legislation, but you're really scraping the bottom of the barrel here.

    Many people, not only home educators, don't accept that the state is capable of measuring relative ability, even within the simple confines of a single examination. Think about the example of children who sat this summer's WJEC English GCSE in English schools (that's the majority of entrants); many of them have been penalised with respect to their peers in Wales because of a different grading scheme.

    One of the motives for home education is to escape this kind of lunacy.


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  14. Simon wrote:
    'These authorities have taken legal advice and are able to call on lawyers who agree with this view of the situation.'

    Can you provide a reference for this?

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  15. Out of interest, Simon, do you have access to the legal arguments used by LA's who do exceed the EHE Guidelines? If so, maybe you could write a post about why they feel they can't comply with them, especially when it comes to things like putting incorrect information on their websites. Going from cynic to idealist in one day, if we could understand what their problem is, then maybe we could begin to work to sort it out.

    I suppose I can see why they might be upset because we are effectively saying that their services are okay for other peoples children but not ours, which must be annoying. There again, I find a lot of what they and Central Government do annoying but I'd be punished if I go beyond the law because I don't like it and I think they should be too.

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  16. Anne B wrote:
    'I suppose I can see why they might be upset because we are effectively saying that their services are okay for other peoples children but not ours, which must be annoying.'

    I don't think we are saying that their services are OK for other people's children, are we? All we're saying is that we don't want them or don't find them acceptable, but it's up to others to decide if they are happy with them or not.

    If that annoys LAs, then that's their problem, not ours. The commercial world operates with freedom of choice all the time; company X might be annoyed if potential customers prefer company Y, but they don't (usually) try to hold a gun to the heads of the customers. If company X is sensible, it will try to identify the shortcomings in its products or services and improve them - although, all too often, it will try the "lipstick on a pig" approach.

    I think that the concept of choice is overrated in many public services, but I also believe that large elements of civil service and LAs see themselves as agents of social control, and want powers that would, in effect, force us to "kiss the pig".

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  17. I shall have to do a longer post about this tomorrow. In the meantime, it is enough to say that the 2004 Children Act lays the following duty upon local authorities:

    (1)Each local authority in England must make arrangements to promote co-operation between— .
    (a)the authority; .
    (b)each of the authority’s relevant partners; and .
    (c)such other persons or bodies as the authority consider appropriate, being persons or bodies of any nature who exercise functions or are engaged in activities in relation to children in the authority’s area. .
    (2)The arrangements are to be made with a view to improving the well-being of children in the authority’s area so far as relating to— .
    (a)physical and mental health and emotional well-being; .
    (b)protection from harm and neglect; .
    (c)education, training and recreation; .
    (d)the contribution made by them to society; .
    (e)social and economic well-being. .

    In other words, most local authorities feel that this legislation, which as can be seen from the above extract incorporates the five outcomes of Every Child Matters, lays upon them a duty to enquire into the education of every child in their area. I do not say that this is so, just that it is believed to be so and that any reasonable person reading the act could put that construction upon it.

    Some people, including a number of home educating parents, calim that this does not give the local authority a duty to enquire into education. They may be right, but it would be absurd to say that this is obvious from the text of the act; it is anything but.

    Once again, I must repeat that this is why there is confrontation, because the legal system is not clear and is open to differing interpretation.

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    1. Simon wrote:
      'In other words, most local authorities feel...'

      That's not as strong as your earlier statement:
      'These authorities have taken legal advice and are able to call on lawyers who agree with this view of the situation.'

      Can we see this legal opinion please?

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  18. Good point, Simon. It also seems to say that they ought to be a lot more involved in schools who also exercise functions or are engaged in activities in relation to children in the authority's area.

    The needs of the many outweigh the needs of the few, so I think they need to focus on the majority of kids who are being failed and improve facilities so that people HE from choice rather than necessity.

    In my area we have 2 good grammars, 1 reasonably good selective religious secondary school and 4 comprehensives which go in and out of special measures. In 2011 one of those had the distinction of being the school with the lowest GCSE pass rates in the whole country.

    As a local councillor from the ruling party said to me when I complained about the absence of any facilities for autistic children 'we have far greater problems than helping a few home educators.'

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  19. 'Can we see this legal opinion please?'

    Staffordshire's legal people were heavily involved in this document, part of which reads:

    2.2 In the context of the five outcomes identified in Every Child
    Matters and the Children Act 2004, Staffordshire County
    Council acknowledges that it is a key responsibility of the
    Local Authority and its schools to promote the educational
    achievement of all children resident within the county or
    attending its schools. The best way to promote these
    outcomes for children is to ensure that as far as possible
    children of compulsory school age are either enrolled with a
    school or registered as being “Electively Home Educated”.
    2.3 The Children Act 2004 places a duty on all agencies to work
    together to promote the welfare of children and to share
    information appropriately. This principle underpins

    You will see that Staffordshire and their legal department believe that the best way of fulfilling the council's duty is to track down home educated children and register them.
    I have not the slightest doubt that it would be possible to find a solcitor who would disagree with much of what this particular local authority says. Once again; this is what is causing confrontation between LAs and home educators. The law is not straightforward and clear.

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    1. Simon said,
      "I have not the slightest doubt that it would be possible to find a solcitor who would disagree with much of what this particular local authority says."

      I doubt that it would be easy to find such a solicitor. Certainly this matches Ian Dowty interpretation of the law.

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  20. 'The needs of the many outweigh the needs of the few, so I think they need to focus on the majority of kids who are being failed and improve facilities so that people HE from choice rather than necessity.'

    This is of course true. Perhaps if I had lived in a part of the county like Chelmsford or Colchester which had brilliant grammar schools, I might have considered school for my daughter. I agree with you entirely that we should tackle the problem of the schools where over 99% of children are being educated and bring them up to scratch. I would not allow the local secondary schools to look after my cat, never mind my child. Where I must part company from you is in thinking that this means that we shoudl forget about home education until all the schools in Britain are perfect.

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  21. I don't think we should forget about HE, Simon, but when cash is short and the problem is large I think we should look carefully at priorities rather than go for the view of 'Something must be done. Children are at risk. Oh look, there's something over there that we could do. Okay, there's actually no proven risk and no evidence that there is a problem, but it's a something that we could do without upsetting vested interests like teaching unions and local authorities so we'll do it.'

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  22. Quoting from your quote - "The best way to promote these outcomes for children is to ensure that as far as possible children of compulsory school age are either enrolled with a school or registered as being “Electively Home Educated”.

    Is that their legal opinion? That once they're enrolled in a school the problem is solved because the box is ticked? Oh, how I wish it was that simple.

    You're saying that Staffordshire's Legal People were heavily involved in drawing up the document. Perhaps I'm being obtuse here, but that's not quite the same as saying that it's a legal opinion. For all we know, the lawyers might have said something else entirely and been over-ruled or marginalised by the person who wrote the policy.

    Again, my cynical streak has sneaked out after discovering this year that my council's SEN legal expert has no legal training. She's simply the one who got all the queries about the code of practice and a lot of what she's been gleefully quoting isn't right.

    Being fair to them, they have now completely redesigned their forms and are training their staff now that they've checked the law, but I suspect my mile wide awkward streak may have had a lot to do with this and there are a lot of other things that I'd have enjoyed doing more over the last 5 years than annually correcting them. (Like baking or commenting here.)

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  23. 'Is that their legal opinion? That once they're enrolled in a school the problem is solved because the box is ticked?'

    As for that Anne, that is without doubt the legal position. That is to say that by sending your child to school regularly, you are deemed to have discharged your duty with regard to his education. It does not matter that the school is a complete mess and incapable of providing your child with an education suitable to his age, special needs and so on; send him to school and you are obeying the law. I agree, it does seem a bit mad.

    As to the extent to which Staffordshire's legal department were involved with drawing up the policy which I quoted, I took the trouble to ring up Staffordshire when they published this just before the summer holidays. They are absolutely sure that this is in keeping with the law and were happy to discuss it with me. You have to realise that everybody is very careful these days about the legal position with child protection and so on and everything goes past the lawyers to make sure that a local authority is not laying itself open to the charge of negligence.

    I would like to provide some more information about all this, but fear that it would put either my or my wife's livelihood in jeopardy. She is a social worker. There has been quite a bit of discussion in one nearby local authority on child protection as it relates to home education and they send absolutely everything to their legal department for checking. This particular council had a home educated child murdered by his mother a while ago and so are extra careful.

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  24. 'Can we see this legal opinion please?'

    Here's another example of a local authority, this time Lincolnshire, consulting their legal department and getting an expert opinion on the law relating to home education:

    http://secondaryathome.files.wordpress.com/2012/04/lincs-cc-reply1.pdf

    Once again, we may not agree with the view, but it remains the fact that a bunch of lawyers do think that this is the law and have advised the council accordingly.

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  25. Simon wrote,
    "Some people, including a number of home educating parents, calim that this does not give the local authority a duty to enquire into education."

    But Donaldson already gave them this duty well before the Children Act 2004. He said that a local authority would be burying its head in the sand if they did not make informal enquiries when a home educator became known to them. The statutory Children Missing Education Guidance states:

    "Section 436A requires all local authorities to make arrangements to enable them to establish (so far as it is possible to do so) the identities of children residing in their area who are not receiving a suitable education."

    Later it makes it clear that when a child is identified as a home educating child the Elective Home Education Guidelines for Local Authorities must be followed. These guidelines outline the procedure to follow when making informal enquiries, and if necessary, a school attendance order.

    The Children Act 2004 does not give them any extra functions as is confirmed in statutory guidance. It states that staff should carry out existing duties (the ones described by Donaldson and the EHEGLA, so informal enquiries, etc) with a view to the need to safeguard and promote the welfare of children - shorthand for the list you quote above. Section 10 (which you quote above) covers their duties to co-operate with each other and their partners and describes outcomes. But section 11, Arrangements to safeguard and promote welfare, tells them how to do this. The 'Statutory Guidance on Making Arrangements to Safeguard and Promote the Welfare of Children Under Section 11 of the Children Act 2004 states:

    "2.3. The section 11 duty means that these key people and bodies must make arrangements to ensure two things. Firstly, that their functions are discharged having regard to the need to safeguard and promote the welfare of children, and secondly, that the services they contract out to others are provided having regard to that need.
    2.4. The duty does not give agencies any new functions, nor does it over-ride their existing functions. It, however, requires them to carry out their existing functions in a way that takes into account the need to safeguard and promote the welfare of children. "


    https://www.education.gov.uk/publications/eOrderingDownload/DFES-0036-2007.pdf

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  26. Simon wrote,
    "Here's another example of a local authority, this time Lincolnshire, consulting their legal department and getting an expert opinion on the law relating to home education"

    I would say that this letter largely agrees with the legal summary posted by Ian Dowty elsewhere. There are just a couple of points I would take issue with. They suggest that they can control what type of evidence the parent provides in order to satisfy them that a suitable education is being provided, and it sounds like home visits are their favoured approach. The do this without attempting to support it with any legal argument, so I think they know they are on dodgy ground and they are right. Case law has already established that local authorities cannot insist on a home visit unless they have a good reason in individual cases. In the case of R v Surrey Quarter Sessions Appeals Committee, ex parte Tweedie (1963), Lord Parker held that:

    '.....an education authority should not, as a matter of policy, insist on inspection in the home as the only method of satisfying themselves that the children were receiving full time education.'

    A magistrate's court will accept evidence in any reasonable form, so it makes sense for a local authority to do the same since the magistrate's court is their ultimate recourse if there is any dispute about provision. If they refuse to accept evidence in a particular form, but then the magistrate accepts it and dismisses the LAs case as a result of that evidence, it would reflect badly on the LA and would obviously have been a waste of everyone's time and money.

    The other point is their suggestion that elective home education associations commonly assert that a LA has no power to investigate whether the provision being made at home is suitable unless they are notified of concerns. But on the contrary, if you check the various web sites (EO and Ahed, for instance) they describe the case law that established the LA duty to make informal enquiries in order to establish if it appears that a suitable education is not being provided (Donaldson), and then they go on to describe the steps the LA can take, the first being a legal letter that requires the parent to satisfy them that a suitable education is being provided, and then the issue of the SAO.

    I'm not sure why they would suggest that HE organisations are making these claims when it's clear they are not and it can be checked so easily. Local authorities have wide powers to share information and discover children who may be missing education (Children Act 2004). Once they are told that a child is home educated, they can make informal enquiries, and if not satisfied, begin the formal process that legally requires the parent to satisfy them that they are providing a suitable education.

    ReplyDelete
  27. How very interesting, Simon, and how awful that any child dies under any circumstances, especially when something could have been done to stop it.

    However, looking at this logically, rather than emotively, if the law says that a Council has discharged its legal responsibility once the child is on the roll of a school no matter how poor it is, then isn't it a logical extension that that same Council has also discharged its legal responsibility once a parent tells them that they are home educating and ansewered reasonable enquiries in line with the EHE guidelines.

    If you say 'ah, but how are they to know that parents are telling the truth without checking,' then I would suggest a counter argument that they do know in many of their schools because OFSTED have told them so and put the school in special measures.

    I am not saying all schools are awful and all home educators wear haloes. That would be daft and untrue. What I am saying is that there should be a level playing field when it comes to applying the law and a degree of respect shown to home educators by LA's unless and until they have shown that they are not fulfilling their legal duties.

    ReplyDelete
  28. 'then isn't it a logical extension that that same Council has also discharged its legal responsibility once a parent tells them that they are home educating and ansewered reasonable enquiries in line with the EHE guidelines.'

    That's a perfectly logical way of looking at the thing, but not quite what the law says. You certainly discharge your duty by ensuring a child's regular attendance at school, but the otherwise is not defined. So while you are defintely abiding by the law if you send your child to any school, no matter how dreadful and unsafe, there is no easy definition of what the 'otherwise' might be.

    I agree that this is quite mad, but there you are; that's what the legal situation is!

    ' and a degree of respect shown to home educators by LA's unless and until they have shown that they are not fulfilling their legal duties. '

    Another interesting point. It hinges around what you mean by a home educator. Just because somebody has deregistered a child from school does not mean that they are being home educated! People take their kids out of school for all sorts of reasons, one of which might be to educate them. Local authorities have to work out who the home educators actually are before they can show them any respect.



    ReplyDelete
  29. Simon wrote:
    'So while you are defintely abiding by the law if you send your child to any school, no matter how dreadful and unsafe, there is no easy definition of what the 'otherwise' might be. I agree that this is quite mad, but there you are; that's what the legal situation is!'

    So, are you calling for this mad law to be changed as a matter of great urgency, in addition to new legislation on home education?

    ReplyDelete
  30. The documents LA documents that you have linked do not constitute legal opinion; the legal people might have been 'heavily involved' and even quoted, but these do not show the original unexpurgated opinion. Non-legal people may have filtered or selectively quoted from the original document; important warnings, cautions or qualifications may have been omitted.

    However, let's assume that these are an accurate and comprehensive representation of the legal opinion; in that case, it would appear to be clear - or at least clear enough to be tested in court against any opposing view, so that the matter could be resolved. I see no case for new legislation,

    ReplyDelete
  31. 'So, are you calling for this mad law to be changed as a matter of great urgency, in addition to new legislation on home education?'

    I think that there is urgent need to examine and perhaps change a few of the laws relating to education in this country.



    ReplyDelete
  32. Simon wrote:
    'I think that there is urgent need to examine and perhaps change a few of the laws relating to education in this country. '

    What are the numbers involved in this particular case, e.g., relative to HE?

    ReplyDelete
  33. 'What are the numbers involved in this particular case, e.g., relative to HE?

    '

    The proportions are roughly 99.5% of children in school and around 0.5% being educated otherwise.

    ReplyDelete
  34. Again, Simon, I'm confused. (Happens easily, especially when I've got a cold!)

    '
    You say -
    Just because somebody has deregistered a child from school does not mean that they are being home educated! People take their kids out of school for all sorts of reasons, one of which might be to educate them. Local authorities have to work out who the home educators actually are before they can show them any respect.

    So you're saying that it's okay for every home educator to be approached on the assumption that they are not genuine? Oh dear, we're back to 'innocent till proved guilty' again aren't we? How about it working like this?

    1) Council becomes aware someone has become to home educate or that there are concerns about an existing home educator.
    2) Council asks in writing for them to supply details of the education being provided, either by allowing a visit or by written report, remembering that the EHE guidelines recommend a reasonable 'settling in' time to allow parents to assess what level their child is at and how they learn best. Council does not turn up unnannounced on the doorstep or claim powers it does not have.
    3) If Council does not receive those details or does not find them satisfactory then it starts the procedures that lead to a SAO. Parent has a chance to defend what they are doing in a magistrate's court and isn't judged by an official's opinion.
    4) If the Council has welfare concerns, they are passed to Social Services because welfare and education are 2 different things.


    ReplyDelete
    Replies
    1. Sorry, 'become' in point 1 should read 'begun'

      Delete
  35. Simon wrote,
    "Just because somebody has deregistered a child from school does not mean that they are being home educated! People take their kids out of school for all sorts of reasons, one of which might be to educate them. Local authorities have to work out who the home educators actually are before they can show them any respect."

    But home educators say they are de-registering in order to home educate in the de-reg letter and other people give other reasons for de-registration. Unless the local authority has a good reason to doubt the parent they should assume that a parent who says they are de-registering to home educate are genuine home educators.

    Then the local authority has a duty to make informal enquiries (as directed by Donaldson) before moving on to the SAO procedure as laid out in statute, if the informal enquiries give them cause to suspect a suitable education is not being provide. The procedure is fully described in the government's document, Elective Home Education Guidelines for Local Authorities, just to make it easier and clearer for Local Authorities.

    ReplyDelete
  36. 'But home educators say they are de-registering in order to home educate in the de-reg letter and other people give other reasons for de-registration.'

    Yes, but unfortunately people other than home educators deregister their children and give as the reason 'home education'. I could introduce you to the mother of fourteen year-old who did this to avoid prosecution for truancy, a man who wanted his twelve year-old daughter to keep house for him after his wife left him and a mentally ill woman who felt lonely during the day and so took her daughter out of school to keep her company; I know of many others. In each case, the reason given was home education. I am not saying that these people are the majority; merely that some of those who claim to be going to home educate actually have no intention of doing so. I think that I should do a longer post about this in the next few days and give readers the chance to play local authority officer and decide how they would deal with some cases of which I have knowledge.

    ReplyDelete
  37. "I am not saying that these people are the majority; merely that some of those who claim to be going to home educate actually have no intention of doing so."

    But the local authority can make informal enquiries to ensure an education is being provided (whatever other reasons they may have for home educating). Why do you think local authorities should have greater powers to investigate education provision than they have to investivate the safety and welfare of children?

    ReplyDelete
  38. "I could introduce you to the mother of fourteen year-old who did this to avoid prosecution for truancy, a man who wanted his twelve year-old daughter to keep house for him after his wife left him and a mentally ill woman who felt lonely during the day and so took her daughter out of school to keep her company; I know of many others."

    I trust you have reported these families to their local authorities? Then the local authority would have reason to suspect that a suitable education is not being provided and they can start the SAO procedure, the first part of which is a letter requiring the parents to satisfy the local authority beyond reasonable doubt that they are providing a suitable education within a specified time limit.

    ReplyDelete
  39. 'I trust you have reported these families to their local authorities? '

    These are people who became known to their local authority and sent their childrne back to school as a result.

    'Then the local authority would have reason to suspect that a suitable education is not being provided and they can start the SAO procedure, the first part of which is a letter requiring the parents to satisfy the local authority beyond reasonable doubt that they are providing a suitable education within a specified time limit.'

    I shall go into this tomorrow. As you know, an educational philosphy downloaded from HE-UK, accompanied by a list of resources is usually enough to get the LA off one's back. This does not really prove that the parents are home educators!

    ReplyDelete
  40. "These are people who became known to their local authority and sent their childrne back to school as a result."

    So the current system worked, that's good to hear.

    "As you know, an educational philosphy downloaded from HE-UK, accompanied by a list of resources is usually enough to get the LA off one's back. This does not really prove that the parents are home educators!"

    In these cases the local authority would be justified in asking for more details. If the parents do not provide sufficient information to allow the local authority to decide if there is evidence that a suitable education is not being provided they can ask for more information. It has been established in case law (Donaldson) that if they do not receive enough information to decide the local authority can conclude that the parents are in breach of their duty and begin the SAO process.

    The philosophies are provided as examples, to be adapted to suit individual families, not as something to be copied. It is also recommended that people send descriptions of how the resources have been used by the children along with descriptions of activities, not just a list of resources.

    This is very similar to the system used in New Zealand, there are examples of completed forms online for home schoolers to refer to for help too. New Zealand found that routine monitoring visits did not reveal more problem families than written evidence so they cancelled routine monitoring and rely on just a written report from parents. After this initial report the parents just sign a declaration that they are continuing to home school, there being no requirement for future evidence or reports. Evidence from America also shows that higher levels of regulation make no difference to outcomes.

    ReplyDelete
  41. Simon wrote:
    'The proportions are roughly 99.5% of children in school and around 0.5% being educated otherwise.'

    Simon describes a law that affects 99.5% of children as 'a bit mad', yet the urgent priority for change is law that affects 0.5% of children, because it seems confused - allegedly. We have yet to see and test the unexpurgated legal opinion.

    Strange, isn't it?


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