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!

Buzzwords and catchphrases

Anybody at all familiar with the British home education scene will be aware of the way in which certain words and expressions are seized upon and then used and misused to death. Some word will catch the attention of home educating parents who do not really know its meaning and they will then work it into almost everything they write. ‘Conflation’ was one such word which enjoyed a vogue two or three years ago. The problem is that it quickly became apparent that few of those employing the word actually understood its meaning. Conflation means the combining of disparate things into a single entity. We might, for instance talk of, ‘the conflation of military and economic assistance’ to a country. Now possibly because both words began with the same four letters and ended with ‘ion’, many home educators soon persuaded themselves that ‘conflation’ was a synonym for ‘confusion’. This gave their observations a slightly surreal air, to say nothing of making the authors appear, at best, semi-literate.

Another old favourite, still widely used, has been ultra vires. The idiosyncratic way that this legal expression is often used makes me despair. I blame Ian Dowty for its widespread adoption by parents!

A word which has been gaining ground in the vocabulary of home educating parents over the course of the last year or two is ‘statist’. This is invariably used in a pejorative sense, as in ‘That Ed Balls; what a statist!’. Once again, it is clear that few of those using the word have the least idea what it means. They evidently believe that a ‘statist’ is somebody who wants more state intervention in the lives of citizens! I imagine that this meaning has been arrived at by a neat bit of folk etymology. ‘Statism’ sounds a bit like ‘state’ and must therefore indicate state control, right? Well, no. Wrong, actually!

Over the last fifteen years or so, we have witnessed a massive increase in state interference in our private lives. This is absolutely undeniable and we have now reached a point where applying for a job can require the production of one’s passport; a situation unthinkable even a few years ago. The state seems determined to poke about in every aspect of our affairs. Side by side with this rise in state intervention in our lives has been a corresponding and dramatic decline in statism. Statism is the doctrine that strong and centralised control is beneficial for society; control of the police, social policy, economic affairs and so on. The political developments which we have seen over the last decade and a half are the opposite of statism. From the devolution of power to Scotland and Wales, to the recent introduction of locally elected Police Commissioners; everywhere we look, statism is on the run.

Why does it matter to me if many home educating parents use words and phrases in a bizarre fashion? I suppose the main reason is that it casts home educators in a poor light. These are supposedly fulltime educators and they do not apparently even own dictionaries which would enable them to check the meanings of unfamiliar words! I am not of course the only person to notice this. Many of the submissions made to select committees, letters to newspapers, public statements by people on behalf of other home educators and so on, are riddled with elementary errors of language and grammar. Since, as I say, these are people claiming to be educating the younger generation, it does tend to give a poor impression. If they cannot write coherent English, some might say, how on earth can they hope to provide a decent education for their children?

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.

Innocent until proven guilty...

Every so often home educators catch hold of some phrase and before you know it you are seeing it on every blog, list and forum. Ultra vires is one of these, ‘innocent until proven guilty’ is another. Local authorities must be reminded that home educating parents are ’innocent until proven guilty’ if they should happen to ask about a child’s education. Most home educating parents simply parrot this expression without having the least idea what they mean by it. It ties in with the idea which I explored in a recent post, that many home educators like to feel that they are being persecuted. The idea that the government or local authority should wrongly be treating them as guilty of something fits in neatly with this craving for persecution. Let us look at the idea of ‘innocent until proven guilty’ and see just what these characters think they mean by it.


Commenting on a recent post of mine, somebody said:



There is a law that states that we must provide a suitable education. You are either
innocent or guilty of breaking that law. What's so difficult to understand about

that?



This is of course, complete nonsense. Nobody is breaking any law by not providing her child with a suitable education and I have no idea why anybody would believe this. Still, many home educators appear to think that this is so. Perhaps we can clear up this misunderstanding. If I have care of a child aged between five and sixteen and do not cause him to receive an education, I am not committing any sort of offence, either criminal or civil. If somebody suggests that my child might not be receiving an education, this cannot mean that they are accusing me of being ‘guilty’; there is nothing to be guilty of. I am not breaking any law by failing to educate a child, nor can I be arrested nor any civil proceedings be brought against me by anybody. The whole concept of innocence or guilt simply does not apply under those circumstances. Guilty of what, exactly? The thing is meaningless. I am not, even theoretically, guilty of breaking any law.

The only time that the idea of innocence or guilt could possibly enter into a discussion of a child’s education in this country is if the child is enrolled at a school or the subject of a School Attendance Order which names a specific school which he should attend. None of this applies to home educators. Their children are not enrolled at school and as many Freedom of Information requests have established, School Attendance Orders are issued my most local authorities perhaps once every couple of years and even then, hardly ever to home educating parents. Here is the wording used in School Attendance Orders:

http://www.legislation.gov.uk/uksi/1995/2090/schedule/made

It will be seen that the offence would be not failing the duty to provide the child with a suitable education, but one of ignoring the order itself. The offence is created and comes into being only by the serving of the order and relates only to that. No SAO, no offence.

Nobody in this country could ever be taken to court for not providing a child with an education; it is not an offence. Therefore even the most zealous local authority officer could not suspect a home educating parent of committing an offence. The idea of ’innocence’ or ’guilt’ is utterly without meaning. The only time that any offence could ever be taking place would be if the local authority issued an SAO and that simply does not happen. It would only be at the moment that a School Attendance Order was served on a parent  that even the very possibility of an offence was created.

As I said at the beginning, this really has more to do with the widespread desire of many home educators to believe themselves victims of persecution than anything else. They want to believe that heartless officials are falsely  accusing them of breaking the law. One more time; it is not against the law to keep your child from school and fail to educate him. Nobody could, even in theory, be taken to court for this. The only way that you could fall foul of the law is if your child is a registered pupil at a school or fails to attend the school named in a School Attendance Order. Unless this is happening, you are not breaking any law, nor could anybody even suspect you of breaking any law regarding the education of your child.

One final time, unless any readers have actually been served with a School Attendance Order or have children who are registered pupils at a school and are not being sent regularly, there can be no possibility of any offence and consequently no talk of innocence or guilt. Forget the expression 'innocent until proven guilty'; it does not and cannot apply to you. No mechanism exists for prosecuting anybody for failing to abide by the duty of causing a child to receive a suitable education. Prosecutions can only be brought with regard to failing to send a child to school.

Home education and the concept of ultra vires

Local authorities in this country are responsible for many of the things that we take for granted; schools and roads, street lights and rubbish disposal, to name just a few. Sometimes, your council needs to be reminded of their duties. On other occasions, they take too much upon themselves and need to be reined in a bit. In the last year or so, it has become common to see the term ultra vires being applied by some home educators to the behaviour of local authorities when they are undertaking the monitoring of home education.

As far as I can discover, it was Ian Dowty the home educating barrister from Leytonstone who first suggested that the idea of ultra vires might be relevant in this area. What in fact is meant by ultra vires? This Latin phrase translates literally as "Beyond the powers". In the case of a local authorities, this can mean that they take actions which are in conflict with the law of the land. How can we decide if this is actually happening? Since most laws are framed in a peculiarly impenetrable jargon which most of us can make little sense of, and since most statute laws are in any case subject to interpretation by the courts; the only way we can know if a local authority is assuming ultra vires powers is when a court rules this to be so.

It is quite true that a barrister such as Ian Dowty might believe that this or that action of a local authority constitutes ultra vires actions by a council. Unfortunately another barrister, perhaps one employed by the council, would argue quite the opposite. A court will consider the matter and deliver its judgement. Until this happens, it is absolutely impossible to say with confidence that any particular action of a local authority is ultra vires.

Incidentally, most actions against local authorities are to make them do things that they are not doing, rather than to restrain them from doing too much. Working as I do in the London boroughs of Tower Hamlets and Hackney, I have seen a number of individuals seek a judicial review in order to get the council to perform their duties. Again, this can only be established in court.

As far as I can make out, what is being complained of with respect to local authorities and home educators is that some officers claim to have more powers than they actually do have. Of course, if this is happening, it is most regrettable. As I said above, the other case also happens, that local authorities claim to have fewer powers than they have in order to evade responsibility for a homeless family for example. This is annoying of course, but for a local authority officer to be mistaken about the legal situation or to misinform parents is not in itself a question of ultra vires. If they do something though, perhaps issuing a School Attendance Order in an irregular fashion, then this can be unlawful and the council can be found to have acted "ultra vires". This is pretty rare and I have certainly never heard of it happening in recent years with a case of home education. Before companies began to frame their constitutions in such a way as to allow them to undertake any lawful object, the ultra vires business used to crop up when a company entered into a contract which its own articles of incorporation forbade it to do. The contract could then be ruled ultra vires . It would not have been a case of ultra vires though if the company secretary simply announced the intention of entering into such a contract. In the same way, local authority officers just claiming that they have this power or that is not a matter of ultra vires. If however, they attempt to exercise such powers, then the time may be ripe to seek a judicial review.

I would be curious to hear of a local authority which has actually taken legal action against a home educating family which has subsequently been ruled to be ultra vires. I would also be extremely interested if anybody can point me towards what Ian Dowty said about this. I am guessing off hand that he qualified his opinion by saying "It might be argued" or "This might constitute" or something of that sort.

It is always alarming when the laity get hold of impressive sounding legal expressions in this way! According to Tania Berlow, a third of home educating families live in ultra vires local authorities. I would be very pleased if anybody could explain just what this means.

(Those interested in looking into this a little more deeply, could do worse than consider Boddington V British Transport Police 1995 and also the Wednesbury Unreasonableness test. Both of these cases are very relevant to this debate)