Sunday, 20 January 2013

The concept of ultra vires and its inapplicability to home education



If there is one expression sure to be used by home educators in letters, blog posts, submissions to select committees and complaints to local authorities; it must surely be ‘ultra vires’! It is brandished like a talisman or magic incantation by many parents, as though the words alone will act to discourage interest or interference in the lifestyle which they have chosen for their children. This is absurd and in this article we shall see why.

Ultra vires’ is simply a Latin phrase meaning ‘beyond one’s legal power or authority’. It is sometimes translated as ‘beyond the law’ and this has given some parents the idea that an ‘ultra vires’ action is in some sense ‘against the law’ or illegal. Nothing of the sort. To understand the concept of ultra vires, as applied to local authorities, it is necessary to go back a few years, to the situation as it existed before 2000. Until the passing of the Local Government Act 2000, local authorities were very strictly bound in what they could and could not do. Essentially, they could only do those things which legislation specifically gave them the power to do. If they attempted something else, they were open to challenge that their actions were ultra vires. All that was necessary to prove this was to show that the local authority had not been required by law to undertake some duty or project. I worked in the London boroughs of Hackney and Haringey during the 1980s and 1990s and this sort of legal challenge was not uncommon.

The Local Government Act 2000 changed all that. Section 2 gave local authorities the general power to promote well-being socially and economically. They are no longer restricted only to doing what they are legally required to do, but can take any steps they feel necessary in that direction. There are limits of course. They cannot undertake actions which they are specifically forbidden to take by other laws. This act had the effect of making most ultra vires challenges exceedingly hard to sustain against local authorities . In the case of the monitoring of home education, such a challenge is now all but impossible.

Here is the basis for many of the complaints by home educating parents that their local authority is going beyond its authority; further than its legal powers. In the 2007 Guidelines for Local Authorities on Elective Home Education, we find this clear and unambiguous statement of the legal position:



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



We know that some local authorities do monitor the quality of home education on a routine basis, so surely this is ultra vires? They are going beyond their authority? Before 2000, this would almost certainly have been the case and a challenge in the courts might well have succeeded. Not now though. The monitoring of home education is undertaken as part of the general power of pursuing social well-being. There may be no duty to monitor home education, but there is certainly no law forbidding it! As such, local authorities may simply go ahead and do it. To make this a little clearer let us consider the case of a local authority which insures something with a particular company. They have no duty to use that company, but they are free to do so if they wish.

Let us sum things up so that they become clearer.



1. Local authorities have no duty to monitor home education.



2. No legislation forbids local authorities to monitor home education.



3. To undertake a duty intended for social well-being, although not

    specified in any legislation, is permitted under the 2000 Local

    Government Act, as long as the action is not forbidden elsewhere in

    legislation.



Of course, there is nothing to stop anybody from seeking a judicial review of such actions by a local authority. I have heard of three cases where preliminary moves have been made in this direction. In each case, solicitors, and in one case counsel, advised that the case had no legs.

I hope that this has made things a little clearer about the doctrine of ultra vires. Cases of this sort  against local authorities since the 2000 Local Government Act  have gone into freefall and other developments are likely to make a challenge on this ground even less likely to succeed. It might be time for parents to stop scattering the phrase 'ultra vires'  around indiscriminately in their communications, because all it really tells a local authority is that the person making this threat is hopelessly out of touch with the modern world!

35 comments:

  1. How very interesting, Simon. I hadn't realised that.

    How, though, would you prove that a Council is acting to promote general social well being by diverting funds away from children known to be in need to those that they have no duty to monitor when they have schools under their control that OFSTED have already identified as providing a poor education?

    I could be wrong, but doesn't 'general' mean "Affecting or concerning all or most people, places, or things?" You regularly and correctly point out that home educators are a tiny minority, so is the general well being actually being promoted by going beyond a legal duty at a time when funds are short and there is no evidence that home educated children are at any more risk either of getting a poor education or being abused than any other child?


    Atb Anne

    ReplyDelete
  2. 'How, though, would you prove that a Council is acting to promote general social well being by diverting funds away from children known to be in need to those that they have no duty to monitor when they have schools under their control that OFSTED have already identified as providing a poor education? '

    Which is a very good point. The problem is that we all have different priorities. An old person with no children would want the council to spend more money on services for the elderly, drivers want more done about pot-holes in the road and so on. Since there is a limit on the amount of council tax they can charge; councils have very tough decisions.

    You could not really expect a court to order a local authority to spend its funds in a certain way. We have elected the council to serve us and if we are not happy, then we can vote them out again. However money is spent, some of us will not be happy. In some ways, the situation was easier when an irritated ratepayer could just take the council to court and prove that they had no legal duty to do this or that and then have a judge order the local authority to stop!

    ReplyDelete
  3. 'It might be time for parents to stop scattering the phrase 'ultra vires' around indiscriminately in their communications, because all it really tells a local authority is that the person making this threat is hopelessly out of touch with the modern world!'

    Ooops, better just tell Parliament and the Civil Service how stupid they are then for using the term in the Education Select Committee Report on Support For Home Education:

    '12. Local authorities have a responsibility to follow the law, and to be seen to do so.
    Considering evidence that only thirty do not currently have ultra vires statements on
    their websites, regarding home education, we urge all local authorities to undertake a
    swift review of their own material, and to ensure that their policies reflect the guidance
    available.'

    Everyone seems to be 'hopelessly out of touch with the modern world' apart from Simon.

    ReplyDelete
  4. ‘Considering evidence that only thirty do not currently have ultra vires statements on
    their websites’

    This was not the select committee’s own view, but referred to the evidence supplied by Alison Sauer. See;

    http://www.publications.parliament.uk/pa/cm201213/cmselect/cmeduc/559/559we16.htm

    She helpfully highlighted the point for them in line 12. The statement is a nonsense, because only a court can declare any action to be ultra vires; not a private individual, even when giving evidence to a select committee! Even if Alison Sauer were a skilled lawyer, which she is not, she would still be unable to state who is behaving in an ultra vires fashion.

    ReplyDelete
  5. Was it not published by civil servants on behalf of parliament? I didn't realise that Alison Sauer had written and published this report herself.

    ReplyDelete
  6. "only a court can declare any action to be ultra vires; not a private individual"

    Then let's stop beating about the bush with the polite Latin and state the problem in plain English: local authorities are lying about the extent of their powers.

    ReplyDelete
  7. 'Was it not published by civil servants on behalf of parliament? I didn't realise that Alison Sauer had written and published this report herself.'

    The report refers to the evidence of witnesses; one of whom was Alison Sauer. She gave it as her opinion that only thirty local authorities in the country do not have what she describes as 'ultra vires statements' on their websites. A statement cannot of course be ultra vires; this is limited to actions. In any case, this can only be judged in court.

    The select committee drafted their report and mentioned Alison Sauer's evidence, saying, 'Considering evidence that only thirty do not currently have ultra vires statements on
    their websites, regarding home education'. The evidence that they were referring to was that supplied by Alison Sauer.

    ReplyDelete
    Replies
    1. Yes, yes, I can read. What I said was that you needed to tell Parliament and the Civil Service that they are hopelessly out of touch with the modern world, as you put it, for using the term in their report.

      Delete
  8. 'Then let's stop beating about the bush with the polite Latin and state the problem in plain English: local authorities are lying about the extent of their powers.'

    Some local authorties may very well be deceived as to the extent of their powers, but this is not really a legal matter!


    ReplyDelete
    Replies
    1. "Some local authorties may very well be deceived as to the extent of their powers, but this is not really a legal matter!"

      Then perhaps they should be treated as any other intruder.

      Delete
    2. Now watch for Simon trying to eat his cake and still have it.

      Delete
  9. 'Now watch for Simon trying to eat his cake and still have it.'

    This is allusive to the point of opacity! Whatever are we to understand by it?

    ReplyDelete
  10. "Some local authorties may very well be deceived as to the extent of their powers, but this is not really a legal matter!"

    Deceived - that's terrible Simon; who is responsible for this deception?

    ReplyDelete
    Replies
    1. "Deceived - that's terrible Simon; who is responsible for this deception?"

      Perhaps this is a question that Simon would prefer not to answer.

      Delete
  11. 'Perhaps this is a question that Simon would prefer not to answer.'

    Or perhaps Simon has been very busy with his life! In any case, the answer is probably already known to the person who asked it; I took it to be rhetorical. Those local authorities who have an inaccurate or inflated idea of the scope of their powers have almost invariably taken advice from the Borough Solicitor. If they are indeed mistaken about the extent of their duties, it is by this official that they have been deceived.

    ReplyDelete
  12. "Those local authorities who have an inaccurate or inflated idea of the scope of their powers have almost invariably taken advice from the Borough Solicitor. If they are indeed mistaken about the extent of their duties, it is by this official that they have been deceived."

    I did not know this; it is a very interesting - and potentially useful - answer. Thankyou Simon.

    ReplyDelete
  13. Hi there! I'm at work browsing your blog from my new iphone 4! Just wanted to say I love reading your blog and look forward to all your posts! Carry on the outstanding work!

    My website strec
    My website - pvc

    ReplyDelete
  14. Hello outstanding blog! Does running a blog similar to this take
    a lot of work? I've virtually no expertise in coding however I had been hoping to start my own blog in the near future. Anyways, should you have any ideas or techniques for new blog owners please share. I know this is off subject but I simply had to ask. Thank you!

    Feel free to surf to my webpage - originalno

    ReplyDelete
  15. I'm not sure why but this website is loading very slow for me. Is anyone else having this issue or is it a problem on my end? I'll check back later and see if the problem still exists.


    Here is my website ... vaga

    ReplyDelete
  16. Good day! This is kind of off topic but I need
    some help from an established blog. Is it very hard to set up
    your own blog? I'm not very techincal but I can figure things out pretty fast. I'm thinking about creating my own but
    I'm not sure where to start. Do you have any tips or suggestions? Appreciate it

    My webpage :: oprema

    ReplyDelete
  17. I am new to developing sites and I was wondering if having your blog title related to your content really that critical?
    I notice your title, "Blogger: Home Education Heretic " does seem to be spot on with what your website is about yet, I prefer to keep my title less content descriptive
    and based more around site branding. Would you think this is a good idea or bad idea?
    Any kind of assistance would be greatly valued.



    my web page - web

    ReplyDelete
  18. Wow that was odd. I just wrote an incredibly long
    comment but after I clicked submit my comment didn't show up. Grrrr... well I'm not writing all that over again.
    Anyway, just wanted to say superb blog!

    Look at my page grinding

    ReplyDelete
  19. Spot on with this write-up, I absolutely think this amazing site needs much more attention.
    I'll probably be back again to read through more, thanks for the advice!

    my weblog pancake aunt jemima

    ReplyDelete
  20. Its like you read my mind! You appear to know a
    lot about this, like you wrote the book in it or
    something. I think that you could do with some pics to drive
    the message home a little bit, but other than that, this is wonderful blog.
    A fantastic read. I will certainly be back.

    my homepage - who is rita dove

    ReplyDelete
  21. I am extremely impressed with your writing skills as well as with
    the layout on your blog. Is this a paid theme or did you modify it yourself?
    Either way keep up the excellent quality writing, it's rare to see a nice blog like this one nowadays.

    my web page :: Eczema Dial Soap

    ReplyDelete
  22. Hi there, after reading this remarkable post i am too glad to share my experience
    here with colleagues.

    Also visit my web-site :: chobani printable coupons july 2012

    ReplyDelete
  23. hey there and thank you for your info – I've definitely picked up anything new from right here. I did however expertise some technical points using this site, as I experienced to reload the website a lot of times previous to I could get it to load properly. I had been wondering if your web hosting is OK? Not that I am complaining, but slow loading instances times will sometimes affect your placement in google and could damage your quality score if ads and marketing with Adwords. Well I am adding this RSS to my email and can look out for a lot more of your respective fascinating content. Ensure that you update this again very soon.

    Stop by my homepage: buy digiorno pizza online

    ReplyDelete
  24. I'd like to thank you for the efforts you have put in writing this site. I am hoping to view the same high-grade content by you later on as well. In truth, your creative writing abilities has motivated me to get my own website now ;)

    Have a look at my homepage; snl old school kotex

    ReplyDelete
  25. hello!,I love your writing very so much! proportion we communicate extra about your post on AOL?
    I need an expert in this house to solve my problem.
    Maybe that's you! Looking ahead to peer you.

    My weblog - clean and clear coupons july 2012

    ReplyDelete
  26. Thanks , I've just been searching for information about this topic for a while and yours is the greatest I've discovered till now.
    However, what about the conclusion? Are you sure in regards to the source?


    Here is my webpage :: ultra suave toothbrush

    ReplyDelete
  27. I would like to thank you for the efforts you've put in writing this blog. I really hope to see the same high-grade content by you later on as well. In truth, your creative writing abilities has inspired me to get my very own blog now ;)

    My site :: where philadelphia cream cheese is made

    ReplyDelete
  28. excellent points altogether, you simply gained a emblem new reader.
    What might you recommend about your post that you simply made a
    few days ago? Any certain?

    Here is my website :: unhealthy powerade

    ReplyDelete
  29. Wonderful blog! I found it while browsing on Yahoo
    News. Do you have any tips on how to get listed in
    Yahoo News? I've been trying for a while but I never seem to get there! Thank you

    Feel free to visit my homepage: kleenex coupons printable june 2011

    ReplyDelete
  30. What i don't realize is in reality how you're not really much
    more well-liked than you might be right now. You are very intelligent.
    You already know thus considerably relating to this matter, produced me in my view consider it from numerous various angles.
    Its like women and men are not involved unless it's something to do with Girl gaga! Your personal stuffs outstanding. Always care for it up!

    Look into my web site descargar quake para xo

    ReplyDelete
  31. I used to be suggested this website through my cousin.

    I am now not positive whether or not this post is
    written by means of him as no one else realize such targeted about
    my trouble. You are incredible! Thank you!

    Here is my page; enzymes in kraft cheese

    ReplyDelete