HomeSchooler.org.uk

"This is intended as a post inviting discussion; it is not written with the intention that it is a definitive legal opinion and it should not be taken or relied upon by anyone in that way."

Original Post can be read here, with any discussion.

"I hope that this is not too large a post and also that it answers the

questions which were in your minds. If not let me know, and also let me know
if you think I am wrong somewhere, thanks.

Before I set out what I wrote can I canvass one matter and make a
suggestion about another. The first is to enquire whether we should move away
from
using the word “home” in any description of what is in effect the
personalised education HE'rs provide. I know that may be pointless and I am
usually the last person to suggest that newspeak has any function other than to
highlight a manipulation, but maybe we do need to manipulate people away
from the assumptions that they make about what 'home' ed is. 'Ed in the
community' is probably a more accurate phrase for the HE'ers I have met, but
it's a bit of a mouthful. 'We educate otherwise' seems to be a
contradiction! It's just a thought.

The second point is perhaps more worthy of consideration. The Ed Act 1996
makes it clear in s7 that it is the responsibility (duty) of each parent to
ensure that their child receives a suitable education, which is one
defined in the Ed Act (and those who say it is not defined do not appear to be
right) as an efficient full-time education suitable to the child's age,
ability, aptitude and any SEN (it's defined in s436A(3)). Thus if a child is
not being educated (whether at school or otherwise) the person responsible is
the child's parent and it is the parent who has to take action to correct
that. I know that you might mount a counter-argument on behalf of a
parent, but it would not necessarily be right, so to proceed without
hesitation.

The attention being focussed on HE'rs to educate to a high standard seems
to overlook that when schools fail (as they do frequently according to the
statistics available) the parents also fail to comply with their s7 duty.
If we are being taken to task why aren't parents of children at school. I
do not think that this would be a very helpful national campaign to mount,
as we desperately need the help and understanding of non-HE parents IMHO;
but I think we ought at every opportunity to drop it into the ear of anyone
and everyone from the LA. For example if Mr Briden does say that he thinks
that welfare involves education, then he needs to be asked what he is doing
about all the children who are failing at school. If he says that that is
a matter for the school, he needs to think again as it in fact, as I have
I hope demonstrated, involves every parent of such a child and what they
are doing to ensure their child's education. To be consistent he has to go
and terrorise them too.

He also needs to consider what “welfare” means and what the LA remedies
are if a child's 'welfare' is not as he subjectively would wish it to be.
What it is not is a consideration that a child might be better off if it
were in a different environment, otherwise all children would be fostered by
rich people and those who could not provide that lavishment would be
childless. So welfare really cannot be a comparison with something
'better', it
has to be a failing, a parent is failing to do something to an unacceptable
standard, whatever that is decided to be. Similarly, it does not matter
if it is thought by someone that a child would get a better education in
school, if the ed they are getting complies with s7.

I would suggest that, at the moment, the law only sanctions any
interference in family life if a child is at risk of significant harm and then 
only
if there are reasonable grounds for such a belief, in other words a child
needs to be protected from her parents.

If Mr Briden thinks that the 5 ECM outcomes are not being achieved, but
that the child is not at risk of significant harm, he is not in the ball-park
of interference IMHO.
There is no duty on parents to provide the 5 ESM outcomes. We need to
resist the, 'well every parent would want that for their child' because
that
is an emotive argument which distracts from the strict legal position and
from the government's much mouthed platitude (from their position) that it
is parents not governments who bring up children.

The only duties with regard to an ECM outcome that are placed on the LA are
set out in the Children Act 2004. s10 of that Act for England and s25 for
Wales require each children’s services authority (LAs) in England must
make arrangements to promote co-operation with specified other official bodies
(which do not include parents, it also says that in considering this they
have to have regard to the importance of parents), such arrangements being
with a view to improving the well-being of children. s11 in England and
s28 in Wales require children’s services authorities to make arrangements for
ensuring that their functions are discharged having regard to the need to
safeguard and promote the welfare of children.

Sections 11 and 28 make it clear that their provisions do not apply to
education as s175 Education Act 2002 applies. If therefore Mr Briden is
carrying out a function of the LA as a local education authority (which I should
have thought he must be) any duty he has is only a duty imposed by s175 Ed
Act 2002 and cannot be under the Children Act 2004. So in that sense “
welfare” does not include education, however of course, s175 does relate to
“
safeguarding and promoting welfare”. I know I mentioned s175 yesterday but
for the sake of completeness I will set it out again and make the same
points I made yesterday.

s175 Duties of LEAs and governing bodies in relation to welfare of
children

(1) A local education authority shall make arrangements for ensuring that
the functions conferred on them in their capacity as a local education
authority are exercised with a view to safeguarding and promoting the welfare of
children.
(2) [applies to governing bodies of maintained schools]
(3) [applies to governing bodies of educational institutions]

(4) An authority or body mentioned in any of subsections (1) to (3)
shall, in considering what arrangements are required to be made by them under
that subsection, have regard to any guidance given from time to time (in
relation to England) by the Secretary of State or (in relation to Wales) by the
National Assembly for Wales.

In England the guidance that has been issued is the Elective Home Education
Guidelines for Local Authorities. I regret I am more than a bit rusty
about what the position is in Wales but I cannot find any more than the
guidance they set out in Chapter 6 of a document rather inaptly named
“Inclusion
and Pupil Support”. All it has in there is this, as far as I could see
from quickly reading through it

“3.12 The authority does not however have the right to insist on seeing
education in the home and some parents may not feel comfortable in allowing an
education officer access to their child or family home.”

If there is any more anywhere else, I should welcome a nudge in its
direction. I do know that it is likely that guidelines are likely shortly in
Wales for children missing education. s436A has yet to be brought in in Wales
and only applies in England (when I last checked).

So to deal with the position in England, paragraph 2.12 of the Elective
Home Education Guidelines for Local Authorities. which states the position
about s175 quite clearly (although s175 applies in both England and Wales, I
do not know if Wales has issued any guidance about it, I can’t find any -
or for England come to that).

“Section 175(1) does not extend local authorities’ functions. It does not,
for example, give local authorities powers to enter the homes of, or
otherwise see, children for the purposes of monitoring the provision of
elective
home education.”

Further clarification of the powers of the LA is set out in the following
paragraphs

“2.14 Section 11 of the 2004 Act sets out the arrangements to safeguard and
promote the welfare of children. However, this section does not place any
additional duties or responsibilities on local authorities over and above
section 175(1) of the Education Act 2002. Statutory Guidance on Making
Arrangements to Safeguard and Promote the Welfare of Children under section 11
of the Children Act 2004 has been updated and published in April 2007.

2.15 As outlined above, local authorities have general duties to make
arrangements to safeguard and promote the welfare of children (section 175
Education Act 2002 in relation to their functions as a local authority and for
other functions in sections 10 and 11 of the Children Act 2004). These
powers allow local authorities to insist on seeing children in order to enquire
about their welfare where there are grounds for concern (sections 17 and 47
of the Children Act 1989). However, such powers do not bestow on local
authorities the ability to see and question children subject to elective home
education in order to establish whether they are receiving a suitable
education.”

Para 2.15 makes it clear that the only “right” to see the child is if
grounds already exist for concern. In fact the duties and powers under s17
and s47 Children Act 1989 require more than simple “concern”. s17 places a
duty to provide services for children in need of them. s47 places a duty
to investigate where the LA has “reasonable cause to suspect that a child who
lives, or is found, in their area is suffering, or is likely to suffer,
significant harm” in which case, but not unless, s47 empowers the LA to take
all reasonably practicable steps to have access to the child.

Two points need to me made about s175 Ed Act 2002. The duty is “with a
view to safeguarding and promoting welfare”; is it a duty to safeguard (that
is by itself) and a duty to promote welfare or a duty to safeguard welfare
and promote welfare? The language used is capable of either construction
but a court might well decide that it means the latter. Until it does, I see
no reason for us not to say that the only duty with regard to welfare is
to “promote” it, that is not to ensure a child’s welfare unless grounds
exist to believe that she is at risk of significant harm.

The upshot of all that is that the LA only has the right of access to a
child if that there is reasonable cause to suspect that the child is
suffering, or is likely to suffer significant harm. Badman is recommending
that
that be extended for HE children.

So to return to education and not welfare, if a parent does not ensure a
suitable education, whether at school or not, the local authority has power
to remedy the position in accordance with s437 Ed Act 1996. Under that
provision the LA has the power to issue a school attendance order, which
requires that a parent register their child at a school. Once the parent has
registered the child, the parent’s duty is (additionally to s7) to ensure
that the child attend at the school regularly (every day) and failure to ensure
that is an offence.

Before the LA can issue a school attendance order it has to come to the
conclusion (in the words of s437(1)) that “it appears that no suitable
education is being received” by the child “either by regular attendance at
school
or otherwise”. In Phillips v Brown (a case in 1980) Lord Justice
Donaldson, (who later became Lord Donaldson) ruled that the LA had a duty to
make
enquiry to see what education was being provided in order to see “if it
appears that no suitable education is being received”. Parents, he said, did
not have to reply, but if they did not, the LA could assume that there was
an appearance of no suitable education and move on to the next part of s437
which entitled them to “serve a notice in writing on the parent requiring
him to satisfy them within the period specified in the notice [which has to
be not less than 15 days] that the child is receiving such education.” If
they could not do so the LA can move to making a school attendance order.

All this has been complicated a bit by the insertion of s436A into the
Education Act 1996 on 27 February 2007. This places a duty on LAs to identify
children missing education and it provides

(1)A local education authority must make arrangements to enable them to
establish (so far as it is possible to do so) the identities of children in
their area who are of compulsory school age but (a) are not registered pupils
at a school, and (b) are not receiving suitable education otherwise than
at a school.

LAs have to comply with guidance issued and the first such guidance, issued
in Feb 2007, said that this section did not apply to HE children.
However, the revised guidance, issued in January this year, makes it clear that
this is no longer the case.

Paragraph 92 of the ‘Revised statutory guidance for local authorities in
England to identify children not receiving a suitable education’ states :

“In order to discharge their duties in relation to children not receiving
an education, local authorities should make inquiries with parents about
whether their home educated children are receiving a suitable education. The
Elective Home Education Guidelines for Local Authorities make clear that
parents who home educate may take a number of equally valid approaches to
educational provision for their children.”

Paragraph 87 makes it clear how LAs are being told to do this :

“Section 436A of the Education Act 1996 requires local authorities to make
arrangements to establish (so far as it is possible to do so) the
identities of children who are not pupils at schools and who are not otherwise
receiving suitable education. In order to comply with this duty local
authorities need to make arrangements which will as far as possible enable them
to
determine whether any children who are not pupils at schools, such as those
being educated at home, are receiving suitable education. In order to do
this local authorities should make inquiries with parents educating children
at home about the educational provision being made for them. The procedures
to be followed with respect to such investigations are set out in the EHE
Guidelines, 2.7-2.11 and 3.4-3.6.”

Thus it seems, the duty placed on LAs under s436A is required now by
guidance to be a duty to locate and then, following the procedure set out in the
EHE guidelines, to enquire about the educational provision. What is
undetermined is whether, until the LA “approves” the education, the child is
considered as “missing education”. s436A could be seen as reversing the
burden imposed in s437 in negative terms on the LA, alternatively it probably
does no more than put into statutory form the duty Donaldson LJ established
in Phillips v Brown. In practical terms I should have thought that the
interpretation which will be put on s436A is that the LA has a duty to locate
all children not on a school roll and establish where they are being
educated; if they are being electively home educated, the LA will have the duty
to investigate that provision under its powers in s437 and in accordance
with the EHE guidelines.

The effect of s175 Ed Act 2002 is that when the LEA is carrying out its
functions under s436A and s437 it has to do so with a view to safeguarding and
promoting the welfare of a child. As the guidance confirms this section
applies to functions the LA already has and does not create any new ones.
It is how the LA should carry out the functions that it has and so
compliments and cannot supercede any function or create any new function. As
such
it has no reference to s7 which only places duties on parents. It does
impact on s437 however but not, as the guidance emphasises, so as to permit
access to a child. The LA can only require access to a child for whom there
is a reasonable suspicion that she is at risk of significant harm as to
empower access to all children no matter what would require a specific and new
power set out in an Act of Parliament. It cannot be achieved in guidance
or indeed in subsidiary legislation such as statutory instruments or other
delegated legislation.

Mr Briden is of course aware that he has to safeguard and promote the
welfare of a child at school and if that child is bullied or distressed by being
made to attend at school, perhaps the best way of carrying out his duty is
to recommend home education. Similarly if a child who is being home
educated is being asked questions which are causing distress or is distressed
by
the prospect of being made to attend at school, that would not promote the
child’s welfare. It cuts both ways.

Finally while I am on my soapbox, LAs sometimes say that they have a duty
to ascertain the views of children about home ed. This is not correct,
there is no such duty. If there were they would have to ask children at
school if they wanted to be educated there. It is parents who decide how
children should be educated as a matter of law, see s7. If a child wanted
something different, it might well be that a court would decide that if the
child
was mature enough to decide for herself, her choice would over-ride that
of her parents, but that is not to say that it is good for the welfare of a
child for the LA to sew the seeds of doubt about the wisdom of her parents
in the mind of a child.

The EHE guidelines make the position clear in para 2.16:

“Section 53 of the 2004 Act sets out the duty on local authorities to,
where reasonably practicable, take into account the child’s wishes and
feelings
with regard to the provision of services. Section 53 does not extend local
authorities’ functions. It does not, for example, place an obligation on
local authorities to ascertain the child’s wishes about elective home
education as it is not a service provided by the local authority.”

I hope that helps to make things a bit clearer?


Ian