There were quite a few comments made to my recent post about offrolling. A couple of people took issue when I claimed that around 8% of children supposedly being home educated are not in fact receiving a suitable, fulltime education. I gave as my source the statistics from a number of local authorities which were sent to Graham Badman in September. It was suggested that I should take Tania Berlow's compilation of these data as being definitive. I shall work according to her spreadsheet for this post.
Considering the amount of work which she has put into the thing, it seems a little churlish to complain about her misuse of the expression ultra vires. Briefly, this is a legal term which means literally, "Beyond the powers". It is more commonly found in corporate law and refers to a company or other body making arrangements or carrying out actions which are beyond their legal powers. As far as I have been able to see, many home educators use the words to describe a statutory agency who claim to have more extensive powers than is in fact the case. This is ridiculous.
A genuine case of ultra vires action would be if a local authority were to prosecute parents for their child's truancy even though they had deregistered their child from school. What actually is happening is that local authority officers are saying that they must have this or that piece of evidence or claiming that they are entitled to see a child. Such claims alone are nothing to do with ultra vires action. There are several old and well established idiomatic English expressions which cover this sort of nonsense, "Trying it on" is one. Another would be, "Coming the old soldier".
Anyway, according to Tania Berlow's spreadsheet, the LAs claim that 2.35% of the home educated children known to them are not receiving any sort of education at all. Another 3.35% are not receiving a full time education and 1.71% are not receiving a suitable education. This comes to 7.41% of children who are not receiving a suitable, efficient and full time education, at least according to the local authorities. Another 4.51% refuse to have any contact at all or supply any evidence to the local authorities. It is a fair guess that many of those families too are not providing an education. This is why I originally said that according to local authorities 8% of home educated children are not receiving a proper education. I also suggested that we should treat these figures with some caution.
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Not sure about legal definitions, but ultra vires is a valid description of what LAs do if we just use the translation of, "beyond the powers". If a LA makes an appointment for a home visit and tells the home educator that they are required to allow the home visit (as happens) the LA are acting beyond their powers.
ReplyDeleteLA spending on anything not explicitly required in legislation can be challenged in court and prevented on ultra vires grounds. If LA employees spend time, and therefore LA money, on tasks not required in law the court would find against them.
ReplyDeletePlenty of references to ultra vires in relation to LAs on the net, including http://docs.google.com/viewer?a=v&q=cache:u47DnFUapokJ:www.ilex-tutorial.ac.uk/Assets/File/Text%2520Samples/Sample%2520-%2520Local%2520Government%2520Law%2520-%25202006.pdf+ultra+vires+activities+local+authority+spending&hl=en&gl=uk&sig=AHIEtbSK8EYNL-7_UBODHfXEjqNYALeAmg for example.
ReplyDeleteThere are even departments within law firms that specialise in advice regarding ultra vires and LAs, http://www.nabarro.com/Services-Sectors/Industry_Sectors/Public_Sector/Governance_Statutory_Powers_&_Ultra_Vires
"Another 3.35% are not receiving a full time education"
ReplyDeleteHow is 'full time' being defined by LAs? It's not defined in law for HE and will be difficult to quantify for most families.
Local authority officers, together wih all Jacks-in-office, have since time immemorial claimed that they have more extensive powers than is in fact the case. This is not really a legal question at all. If the local authority takes actions, for example issues a School Attendance Order without going through the correct formalities and then tries to enforce it; that would be an example of an ultra vires action. Solicitors are now cashing in on this as a compensation seeking dodge.
ReplyDeleteI have not heard of any cases of local authorities taking what are essentially illegal actions regarding home education which would fall into the ultra vires category. The only complaints which I have seen people making is that LA officers are pretending that they possess such powers. This is quite a different matter from attempting to exercise these powers.
What about demanding access to the home without any evidence of wrongdoing? Families should never be put in the position of having to refuse a local authority officer entry to their home because the officer was claiming powers they didn't have. There might be all kinds of legitimate reasons why the family might not want an LA officer in their home. Previous encounters with other Jacks-in-office might be one of them.
ReplyDeleteIt might not be illegal for LA employees to claim powers they don't have, but if they use these claims to harrass or intimidate families, they are sailing very close to the wind. Besides which, as Anonymous points out, they shouldn't be spending public money on activities for which they have no remit. There's never enough money for what they should be doing.
"The only complaints which I have seen people making is that LA officers are pretending that they possess such powers. This is quite a different matter from attempting to exercise these powers."
ReplyDeleteBut sending repeated letters, making unannounced home visits, doorstepping, etc all costs time and therefore money (LA have quoted £200 per home visit so unsuccessful visit costs must approach this level, especially if they make repeated attempts as has been reported) and if this is not required by legislation (and it isn't) this is ultra vires expenditure.
It is of course very irritating to receive pointless, misleading and inaccurate letters from one's local authority and I sympathise with those affected. It is not really a legal matter though; it is what councils do and have done for the last century or so. Having arranged to visit somebody or write a letter, it costs no more to add a few untruthful statements while you are at it! I agree that this is a nuisance, but it is not actionable. As I say, this use of the expression ultra vires is simply abusrd and wholly inapplicable to these circumstances.
ReplyDeleteSimon- I am Tania. I just wrote a long response to you but it disappeared and dinner is ready. (I saw you on my stat page yesterday and invited you to call me). I would like to offer you the opportunity to discuss my findings; my email address is bornjoyful@hotmail.co.uk.
ReplyDeleteYou have made one error about the 4.41%, and missed out some important information.
I would like to point out that the statement in the Impact Assessment, which informs the CSF Bill, that 8% are receiving no education and 20% receiving unsuitable education, is a blatant misrepresentation of the actual figures. Mr Badman states the real statistics from the third questionnaire in his letter to the Select Committee.
I will post a more thorough response later.
Hmmmm, I am wondering what the mistake I have made with the 4.51% are who you said are not co-operating with monitoring? I only went onto your spreadsheet because somebody on one of the comments here said that this was the most reliable summary of the supplementary statistics. All the figures which I gave above were taken from this source.
ReplyDeleteWhen cost is incurred due to lies or incompetence on the part of the LA, a referral to the local government ombudsman might be in order.
ReplyDeleteGiven that they are lying in an attempt to gain access to a child it could quickly become a legal matter and I'd be inclined to raise concerns about the potential danger of abuse to the child from the LA inspector, given that they are so "keen" that they are prepared to lie. Simon himself has said that inspectors pose a risk of death or abuse to children.
The press might also be interested in the activities of a local authority acting in such a manner - assuming the LA hasn't already obtained a gagging order.
What is a gagging order, Anonymous? I must admit that is a new one to me. I don't recollect offhand saying that local authority officers who are charged with monitoring elective home education might pose a threat of death to children. Could you refresh my memory about that?
ReplyDeleteTania's stats are very interesting especially given that the responses differ from those quoted by Mr B....In addition many of the Qs were so badly posed by the review that Authorities have, in a number of instances, "double counted" the children - that is put them in more than one category and so counted them more than once.
ReplyDeleteThe whole thing is a shambles, from the questions to the collation, treatment and publication. Tania figured out, for example, that with one statistic the review author appears to have taken 8 separate regional averages and added them and divided by 8 claiming this to be a national average...anyone with basic level stats knows that that is rediculous.....
Is it worth quoting stats when the DCSF claims certain LAs have contributed figures when they themselves claim they have not or where certain other LAs who contributed were not added in to selected samples?????
As Betsy, Imran, Tania and I were discussing last week; when writing a "review" it somewhat undermines one's argument when one discounts EHE research for using "self selecting" families and then uses stats from "self-selecting" LAs to prove one's points.....
A gagging order is a court order to stop someone talking about something, often in order to protect a child. There are gagging orders for example to stop nannies talking about their famous charges etc. I am not aware of any gagging orders in the home ed community involving a local authority in the way described above. If anyone knows of such an order I would be interested to hear more.....??
ReplyDeleteI DO know of a number of instances where certain Authorities (yes, more than one Authority!) have lied about the job description or identity of personnel sent to a home in order to gain access. Sadly the families involved are under too much scrutiny already to talk to the press as they fear it may result in them losing their children. A better way forward may be for them to get their MPs to make a fuss....
By the way (aside from apologising for any lack of flow or spelling mistakes above - I blame my current 'flu-like virus) to my recollection the person who first coined the use of the term "ultra vires" when referring to LAs making demands outside of their legal duties, was in fact Ian Dowty. He's a barrister so I jolly well hope he knows what he is talking about!! It happened in public on a certain well-known list a number of years ago.....several other legally trained people who home educate also use the term.
ReplyDeleteBack to statistics....I think that it is clear that no one has much faith in Graham Badman's statistics, but I still feel we are shooting ourselves in the foot by drawing attention continually to their inaccuracies; doesn't it add to the case for compulsory registration in order to make the stats more " valid"?
ReplyDeleteAnon said "LA spending on anything not explicitly required in legislation can be challenged in court and prevented on ultra vires grounds. If LA employees spend time, and therefore LA money, on tasks not required in law the court would find against them."
ReplyDeletebut it is this use of ultra vires which makes no sense at all.....? Baffled!
Ah, now I understand what Anonymous meant by a "gagging oeder". Presumably refers to a suppresion order or perhaps what has become known as a "super injunction". Quite how a local authority would do this with respect to a case of home education is something of a mystery to me. Has anybody heard of such a case? I would be interested.
ReplyDeleteTania Berlow's statistics are interesting. There are perculiar aspects to them though; I have already mentioned that she tries to calculate the percentage of local authorities who are apparently taking ultra vires action. She seems to do this by counting up all those councils who people have complained about on the lists! This is a very strange way to do it. People are rightly sceptical when local authorities tot up children who are not receiving an education in this way, but it appears to be OK for home educators to convict local authorities simply by making assertions about their practices. More research needed here, I think.
ReplyDeleteI was also intrigued to read that many home educated children are educated 24/7! This puts me in mind of the sleep conditioning in Brave New World. Am I out of touch with modern home education?
"but it is this use of ultra vires which makes no sense at all.....? Baffled!"
ReplyDeleteDo you have legal training? If so, maybe you could ask Ian Dowty to explain his use of the term in reference to LAs?
er- since you seem to have directed this comment to me....I am not doubting what Ian said (and presumably he does know what the term means in law), but what someone else quoted above - (one of the many anons)- which was about LA spending, which I think had nothing to do with Ian. If you are the anon in question, perhaps you could explain what you meant!
ReplyDeleteI pointed you in the direction of Ian because I'm not legally trained, but if you had followed the links given above you will see the phrase ultra vires being used when LAs have spent money on activities they are not legally required to carry out. Much of the activities they currently undertake with regard to home educators are not required in law, so surely these activities and the related spending are ultra vires?
ReplyDeleteSimon said,
ReplyDelete"It is more commonly found in corporate law and refers to a company or other body making arrangements or carrying out actions which are beyond their legal powers."
http://www.ilex-tutorial.ac.uk/Assets/file/Text%20Samples/L35%202008%20samples.pdf
"A local authority is incorporated, which means that it has a legal status similar
to that of a company...
The most important aspect of incorporation of local authorities is the
application of the ultra vires doctrine. This common law doctrine demands
that an incorporated body must act strictly within the powers conferred upon
it by statute. A corporation which exceeds its powers is said to act ultra vires,
while one which adheres to its limitations is said to act intra vires."
This is of course perfectly true, Anonymous. It is just that I have not heard of a case where a local authority has been found to have behaved in an ultra vires fashion with regard to home education. has anybody any knowledge of such a finding in a court?
ReplyDeleteWho would bother to take them to court? The LA break plenty of laws related to home-ed and education but are unlikely to be prosecuted. Schools often refuse to de-register children from school immediately for instance, or blackmail parents of truants into de-registration (as you've mentioned yourself).
ReplyDeleteThe only way that we could know whether a local authority had been taking ultra vires actions would be if a court ruled on the matter. This is the very definition of the matter. Simply because some parents don't like what a local authority officer tells them does not in itself make a council guilty of anything!
ReplyDeleteSo if the LA carries out actions that they are not required to carry out by any law, it's not possible to conclude that they are acting ultra vires unless a court agrees? We cannot read a law, look at what the LA do and reach our own conclusions? Even if a barrister with an interest and extensive knowledge of home education law agrees with your interpretation? Do you have to be told everything by someone 'in authority' over you before you believe it to be true? Are you sure you were a home educator?
ReplyDeleteWell I think that I was a home educator. At least, my sixteen year old daughter never attended school! Of course local authorities carry out actions that they are not required to do by law and a very good thing too. Their duties and responsibilities are inclusive, not exclusive. By this, I mean that there is a minimum that they must do to fulfil their statutory obligations. Frequntly they do more than that. Often, this means that they will help people that they have not a strict duty to help, that they do things as a gesture of good will that they they need not do. As for looking at a law and reaching our own conclusions, this is a damned tricky business unless we are aware of all the precedent. For example we could look at the whole of statute law and find no definition at all of what constitutes a suitable and full-time education. Unless we were to plough through the law reports for 1911 and stumble across Bevan v Shears, we would be in the dark! It is nothing to do with someone in authority, I certainly have not a great deal of interest in such people. I need to see what the courts have previously ruled, the so-called precedent, before I know whether some body really has acted in an ultra vires fashion. This is the only real test. But then I am a legal positivist, not only in this but in all ethical matters! (See bentham on this subject).
ReplyDeleteThe final figures including ' not full time' are just over 7% and that does not include the 'not co-operating' column. It is impossible to say how many families in the 'not co-operating column are actually families where there are concerns. It would have been easy to make this a proviso of the question to differentiate from those families who are being obstructive and there are concerns previous and those families where the parents are simply saying ' if you have no concerns then you are not entitled to visit'- but alas , no, as the whole point of the exercise was to inflate figures to make it look as though this was a problem that needed funding.
ReplyDeleteThe same holds true for the 'missing' category.
Only one LA commented on a family who had 'done a runner' and there were concerns previous. Obviously some of the families included in this category would have been those where there were prior concerns but it also includes those who simply move house as they are under no obligation to inform an LA of a move.
Another interesting point is that the 3-4% who were considered 'not full time'- that depends on the LA interpretation of guidelines. Plymouth still has the DfeS school guidelines on their website and put ALL 135 of their registered population in the category. Yes that's 100%.
However , lets say as the top figure that half of all LAs have an average of 10% where there are concerns. This is a stretch and still half of the numbers the DCSF are claiming are 'problematic'.
If you speak to Essex and North Yorkshire and South Somerset you will find that within that 10% are families where with some extra visits and suggestions and support they do just fine after a year and are removed from the category.They say somewhere around 3-5% remain problematic. Very few families end up being prosecuted(SAO) because in good LAs they spend the time and money supporting them (which means they have no resources or time left to insist of visiting all families). For families where things do not improve, because there has been an effort at partnership, the family often agrees they should try school again instead. Problem solved although admittedly a year has often passed by then or the child is over compulsory education age by then.
The experience of LAs where they have not alienated the community is that about 5% remain an issue.
Some LAs need to spend more time and money concentrating on building relationships with families where there are known issues rather than targeting all families.
Another interesting tidbit of information is that in some LAs the people on the 'floor' who understand their own population demographics were 'not allowed' to fill in the questionnaires and instead someone 'above' who had no direct understanding of HE filled it in. This is particularly true for the Consultation where some EHE visitors were not even 'allowed' to read their own LAs responses before it was sent in. I suggest that these staff who want to know what their CHildrens Department said , should send in an FOI in an anonymous name!
My concluding opinion is that the true numbers of problems nationwide would not be high enough to justify imposing an expensive national licensing scheme. Inflating the figures was the only way to secure funding from central government .It remains true that some LAs do experience higher proportions of 'problem' families than others, but surely decentralised funding (such as is being proposed by central government when they say they are devolving to Local Authority level)would mean that individual EHE departments could draw down the money needed to deal with the families they feel need 'more attention'?
interseting- noone , myseklf included thought to put alink to the information
ReplyDeletehttps://docs.google.com/?pli=1#all