Tuesday 12 March 2013

Interpreting the law on home education




I am not at all sure that many home educating parents in this country have fully grasped the implications of the Department for Education’s recent change of stance concerning flexi-schooling. I suspect that there may be similar shocks to this in store,  in the not too distant future.

      The trouble is, most home educators have little experience with the law and fail to  realise the extent to which the law in this country is often a matter of opinion, rather than fact. That is to say that two lawyers or judges looking at the same passage in an Act of Parliament  can and do interpret the thing in quite different and contradictory ways. The same is true when examining precedent.  In the world of British home education, one interpretation of the law around home education is commonly held. Many local authorities have different views on the matter and which set of opinions is the correct one is open to question. 

      Returning to the matter of flexi-schooling, let us see what has happened and what could easily happen in the future. A few weeks ago the 2007 Elective Home Education, Guidelines for Local Authorities said of flexi-schooling;

 ‘“Flexi-schooling” is a legal option’ (5.6, page 17)

 Following the revision of the guidelines, section 5.6 on page 17 now says:

 ‘Where parents decide to educate their child at a school,  parents have a legal duty to ensure their child attends regularly. If they fail to do this they may be  committing an offence’

 It is important to bear in mind that the law  has not changed in the last few weeks. What has changed is the interpretation of the  law. A few years ago, the various legislation was thought to indicate one thing and now it is suggested that it actually indicates the complete opposite. In 2007 flexi-schooling was said to be legal; now it might mean that parents are breaking the law. I make no comment on which of these views is the correct one; I only point out that this is what has happened.

      Precisely the same thing could be done with any other part of the 2007 guidelines. For example, at the moment many home educating parents believe,  and frequently quote,  section 2.7 on page 5 of these same guidelines:

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

 Just as with the claim that flexi-schooling is a legal option, this is no more than an opinion. It does not have the force of law; it is one particular view of a complex legal situation. As I said above, many local authorities have taken legal advice and arrived at a completely different opinion. What happened with the section about flexi-schooling could happen tomorrow with the bit about the statutory duties of local authorities. It could be changed to read:

 ‘Local authorities have  statutory duties in relation to monitoring the quality of home  education on a routine basis.’

 There would be very little that anybody could do about this, short of seeking a judicial review.  This would be a dangerous game, because a court could rule that local authorities had extensive duties in this field. Just as with flexi-schooling, some lawyers will have one view and others quite another.
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11 comments:

  1. Anonymous12 March 2013 at 09:22

    Worn out Webb says-Local authorities have statutory duties in relation to monitoring the quality of home education on a routine basis.’

    There would be very little that anybody could do about this, short of seeking a judicial review.

    Or one can just tell the LA no meed for home visit or meting many thanks for your interest if you could put down in writing what it is you wish to know we will decide if we need to respond to you.That does the trick and your hear no more from your LA

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  2. Anonymous12 March 2013 at 09:29

    Elizabeth Truss said the following when she gave evidence to the Select Committee -

    "Well, the point is, it's the parent that has legal responsibility to make sure that child has a suitable education. So it's their legal responsibility and if they're not fulfilling that - if it comes to the notice of the local authority, then the local authority have a duty to follow that up. But it is the parent's responsibility and I think we've got to be careful about legislating from Westminster to try and interfere with that current position because the more duties we end up putting on local authorities to register, you then take the responsibility away from the parents and I'm very clear that when parents make the decision to home educate for, in many cases very good reasons - whether that's reasons specific to the way they want to educate their child or whether it's issues at school - they have taken that responsibility on and it's the parent that is accountable rather than the local authority."

    So while what you're saying is possible, it is no more or less so than it's ever been and there's no evidence of any change of attitude. Flexi-schooling was being promoted as a way for schools to maximise funding. Had it not been, then I have a suspicion that nothing would have changed.

    (There... we're all back to normal.)

    Anne

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  3. Anonymous12 March 2013 at 12:06

    Read it, knickers wet

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  4. Simon Webb12 March 2013 at 14:42

    'Read it, knickers wet'

    This blog is really about home education, but there is a site that can probably help you with your problem. It may be found at:

    http://www.allaboutincontinence.co.uk/help-and-advice.html

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  5. Anonymous13 March 2013 at 05:15

    If this is true, then it makes me wonder why the last government didn't just go and do that, instead of attempting to introduce all that legislation to do that same thing?

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  6. Anonymous16 March 2013 at 01:03

    Are you living in hope of this then, Simon?

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  7. Simon Webb18 March 2013 at 01:37

    'If this is true, then it makes me wonder why the last government didn't just go and do that, instead of attempting to introduce all that legislation to do that same thing?'

    Because the things that were proposed in the wake of the Badman enquiry, making home education unlawful without registering with the local authority and so on, are not covered by any possible interpretation of the existing law.

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  8. Simon Webb18 March 2013 at 01:38

    'Are you living in hope of this then, Simon?'

    Hardly. It will make no difference to me; I stopped being a home educator some years ago.

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  9. Anonymous18 March 2013 at 11:03

    But perhaps your grandchildren will want to be home educated?

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    Replies
    1. Simon Webb18 March 2013 at 11:46

      'But perhaps your grandchildren will want to be home educated?'

      Possibly so. I don't really see what you are driving at.

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    2. Anonymous20 March 2013 at 18:30

      Simon wrote,
      "I don't really see what you are driving at."

      I'm assuming they are suggesting that something that would affect your grandchildren would make a difference to you, even though you say above that changes to HE law would make no difference to you as you stopped being a home educator some years ago. But maybe you care nothing about the choices your children and grandchildren will be able to make (or not make), so any changes really are irrelevant to you? Others feel that they wish to maintain the current freedom of choice for our children as well as other families.

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