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Post by jo70mo on Sept 30, 2011 11:13:09 GMT 1
3. The Law relating to Elective Home Education
The responsibility for a child's education rests with their parents. In England, education is compulsory but school is not. - Section 7 of the Education Act 1996 (EA96) states:
“The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable; to his age, ability and aptitude and to any special educational needs he may have, either by regular attendance at school or otherwiseâ€.
In addition, Article 2 of Protocol 1 of the European Convention on Human Rights states that:
"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."
Thus the duty to ensure a child's education includes a parental right to discharge this duty through EHE. It is also clear, however, that this right to home educate is conditional on parents providing an "efficient" and "suitable" education for their child. The words "efficient" and "suitable" are not defined in the Education Act 1996 but "efficient" has been broadly described in case law1 as an education that "achieves that which it sets out to achieve", and a "suitable" education is one that "primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child's options in later years to adopt some other form of life if he wishes to do so". There is no legal definition of "full-time" in the Education Act 1996. The hours set for children to be in school do not apply to children educated at home but children in school normally spend between 22 and 25 hours at school each week. Although this measurement of ‘contact time’ is not specifically relevant to home education where there is often almost continuous one-to-one contact and where education also takes place outside ‘normal school hours’, this information may assist families in determining the amount of provision they would wish to put in place.
Under Section 436A of the Education Act 1996, inserted by Section 4 of the Education and Inspections Act 2006, LAs have a duty to
"…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— are not registered pupils at a school, and are not receiving suitable education otherwise than at a school."
The statutory guidance for local authorities2 relating to this duty sets out how this duty relates to Elective Home Education (paragraphs 86-94). In carrying out our duties under this provision, the statutory guidance refers us (paragraph 87) to the procedures set out in the non-statutory EHE guidelines paragraphs 2.7 – 2.11 and 3.4 – 3.6.
Case law (Phillips v Brown (1980) unreported) established that a LA may make enquiries of parents who are educating their children at home with a view to establishing whether a suitable education is being provided.
If it appears to the LA that parents are not providing a suitable education for their child(ren) under arrangements made for education otherwise than at school, Section 437(1) of the Education Act 1996 requires the local authority to intervene.
Section 437(3) of the Education Act 1996 relates to the serving of school attendance orders, which the LA should serve where provision is still deemed unsuitable after all reasonable steps have been taken to resolve the situation.
LAs are required by Section 175(1) of the Education Act 2002 to safeguard and promote the welfare of children. In addition, Sections 10 and 11 of the Children Act 2004 place a duty on children's services authorities and relevant partners to co-operate and to make arrangements to ensure that in discharging their functions they have regard to the need to safeguard and promote the welfare of children (see section on safeguarding responsibilities below).
Parental responsibilities
Parents who decide to home educate are required to:
provide an efficient, full-time education suitable to the age, ability and aptitude of the child. This does not, however, mean that parents / carers must follow the national curriculum or enter their child for national assessments or examinations assume full financial responsibility, including bearing the cost of any public examinations for which they elect to enter the child notify the school in writing when withdrawing a child from school for EHE, confirming that provision is being made for the child's education otherwise than at school and requesting removal from roll. Approval for removal from roll is not required from the LA except for pupils placed at a special school under arrangements made by a LA (see section on Special Educational Needs below) or where a child is registered at a school as a result of a school attendance order.
Although there is no specific legal requirement to do so, parents are encouraged to
notify the LA when they elect to educate their children at home. provide information when the LA asks for information about a child’s education. Parents are asked to provide information regarding the educational provision being made that would persuade a reasonable person that the child is being educated effectively, such as plans, records of their child’s work and progress made as well as professional reports in some instances.
Local authority responsibilities
In addition to discharging its statutory responsibilities as set out above, the LA should also
provide written information regarding EHE that sets out the legal position, and the roles and responsibilities of parents and the LA and give guidance where parents seek it. The Lancashire documentation will be published on the internet and will be available in hard copy, on request, from the EHE Business Support Officer. There will also be a leaflet for parents which will be reviewed on a biennial basis. provide advice to parents wishing to home educate and offer appropriate support to parents aim to establish positive and supportive relationships with parents to safeguard the educational interests of children and young people. address concerns regarding EHE provision informally before serving any Section 437(1) notices provide clear details of the relevant complaints procedure regularly review EHE policies and documentation, and seek input from home educators ensure staff working within EHE receive appropriate training
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Post by jo70mo on Oct 3, 2011 9:51:18 GMT 1
"Parents are asked to provide information regarding the educational provision being made that would persuade a reasonable person that the child is being educated effectively, such as plans, records of their child’s work and progress made as well as professional reports in some instances."
They have no legal basis to ask for this at this stage. This is a requirement to satisfy them that an education is taking place and puts the bar at the level that would satisfy a reasonable person. They have no standing to ask for this unless, having made initial enquiries, they have reason to believe that it appears that an education is not taking place. They have to have specific concerns, conveyed in writing to the parents, in order to legally ask for evidence to be satisfied at this level. In short this level of evidence is not required for initial enquiries from the LA. They do not say that they are legally required to do this just that they will. However it makes it appear that that is what they ave the right to ask for.
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kath
New Member
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Post by kath on Oct 3, 2011 17:59:34 GMT 1
'Although there is no specific legal requirement to do so, parents are encouraged to
notify the LA when they elect to educate their children at home. provide information when the LA asks for information about a child’s education. Parents are asked to provide information regarding the educational provision being made that would persuade a reasonable person that the child is being educated effectively, such as plans, records of their child’s work and progress made as well as professional reports in some instances.'
I am probably seeing things too black and white here and I don't fully understand all the legal stuff, but doesn't the 'although there is no legal requirement to do so, parents are encouraged to' actually state that I don't have to comply with their requests for info, reports, work etc unless they have reason to believe that it appears that an eduction is not taking place.
I would like to see this statement at the top of their annex on procedures.
Please will someone let me know if my view on this is too simplistic.
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fran
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Post by fran on Oct 3, 2011 18:12:36 GMT 1
The way LCC 'encourage you to do so' is by saying that the provision is not suitable unless they have seen the child and signed and dated work and by threatening you with CME if you don't jump through their hoops. Reminds me of Barry Shearman and his compromise on compulsory registration. "We'll give them a couple of years to register voluntarily and if they don't we'll being in compulsory registration." I think LCC might do well to consult a dictionary on a number of word definitions, like, "voluntary"; "informal"; "efficient"; "suitable"...
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Post by tricia on Oct 3, 2011 23:12:40 GMT 1
I am probably seeing things too black and white here and I don't fully understand all the legal stuff, but doesn't the 'although there is no legal requirement to do so, parents are encouraged to' actually state that I don't have to comply with their requests for info, reports, work etc unless they have reason to believe that it appears that an eduction is not taking place. I would like to see this statement at the top of their annex on procedures. Please will someone let me know if my view on this is too simplistic. No, you're spot on Kath. Not only should it be more prominent but any letters sent to parents re. visits/inspections should also make it clear. They have no legal way to force parents to engage with them and they know it but would rather parents didn't. Instead they resort to threats of CME which is contrary to the CME statutory guidance. Why does the word 'duress' come to mind when reading this document ?
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fionan
Junior Member
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Post by fionan on Oct 19, 2011 7:57:11 GMT 1
I completely agree with posters on the above thread who have said that Lancs has got this wrong. This sentence is particularly wrong "Parents are asked to provide information regarding the educational provision being made that would persuade a reasonable person that the child is being educated effectively, such as plans, records of their child’s work and progress made as well as professional reports in some instances.'" 1/ Child is not on school roll 2/ LA thinks child MAY be "missing education" (even in cases where school has informed LA that child has been deregistered for home education???.) 3/ LA gets in touch with parent and says seeing as how your children aren't on a school roll, what arrangements are you making for your child's education 4/ Parent says like we told the school, we are home educating, did the school not tell you 5/ LA says could you tell us a bit more about this "home education" please Step 5/ is NOT a formal request for the LA to be satisfied under s.437(1) of the Education Act 1996. The formal notice is ONLY issued when it appears to the LA that a child is not receiving education. Therefore it ISN'T incumbent on the parent to provide information that would "persuade" someone. The burden of proof is NOT on the parent at this stage. These phrases apply more properly to a much later stage in the proceedings after the LA has issued a formal order under s.437(1) I put a bit on my website about this here edyourself.org/articles/lancsconsult.php#summarykeyissues including a quote from Ian Dowty's document which Lancashire home educators sent to the Council in March this year.
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kath
New Member
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Post by kath on Oct 23, 2011 11:10:14 GMT 1
In the introduction to the document, the first aim is: 'To ensure that the LA's position in respect of its responsibilities to children/young people who are electively home educated is clearly defined.'
These responsibilities are then given as:
Local authority responsibilities
In addition to discharging its statutory responsibilities as set out above, the LA should also
provide written information regarding EHE that sets out the legal position, and the roles and responsibilities of parents and the LA and give guidance where parents seek it. The Lancashire documentation will be published on the internet and will be available in hard copy, on request, from the EHE Business Support Officer. There will also be a leaflet for parents which will be reviewed on a biennial basis. provide advice to parents wishing to home educate and offer appropriate support to parents aim to establish positive and supportive relationships with parents to safeguard the educational interests of children and young people. address concerns regarding EHE provision informally before serving any Section 437(1) notices provide clear details of the relevant complaints procedure regularly review EHE policies and documentation, and seek input from home educators ensure staff working within EHE receive appropriate training
Could someone enlighten me as to where within those responsibilities the LA believes it can ask for reports, evidence, justify visits and have annual monitoring. It hasn't been 'clearly defined' enough for me.
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Post by jo70mo on Oct 23, 2011 16:54:50 GMT 1
Hi Kath, the document is far from clear and indeed does not do what it states it will ie clearly define! It indeed does not justify any of those things even though it certainly attempts to. Jo
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Post by jo70mo on Oct 29, 2011 14:58:46 GMT 1
It appears to me that Lancs have no decision making framework for the initial inquiries stage. they can ask for info about provision but the decision at this stage is not have I seen enough info and is that info such that a reasonable person would believe a suitable education is taking place. The judgement at this stage should be is there any clear reason to believe a suitable education is not being delivered. Only then should the LA ask for the sort of info that they mention here and that should be after written info to the parents explaining exactly why they believe a suitable ed is not being delivered. Lancs recognise they can't legally insist on it but still ask for it which seems to suggest that that is what they are incorrectly basing their decision making process on and they are asking themselves are we satisfied that a suitable ed is taking place. By continuing to ask for this level of information at this stage they seem to belie that they have a muddled decision making framework for initial inquiries which could lead them into all sorts of messes legally should they be challenged by parents. How do the LA plan to make decisions about parents who provide info as would be wise about the style and philosophy of their education but quite legally do not provide evidence and info at the level the LA are asking for. My thoughts are that they will ask for more info informally as they feel unable to make a judgement that the ed is suitable (they are not required to do this). They do not appear to have a framework for what they are supposed to do which is judge if the parents info gives them any clear reason to belive the ed is not taking place. The audit also mentions that they make value judgements based on opinion and do not have a framework for making decisions about the provision they look at. Jo
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Post by archelaus on Oct 29, 2011 15:36:55 GMT 1
The LA obviously like their flowcharts so why not write one for them clarifying the different stages and the level of info that should be sufficient for each stage.
At the moment any family who refuses to engage is automatically referred to CME, the officers are not looking at any of the evidence they have, such as school reports, and making a decision based on that.
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Post by jo70mo on Oct 29, 2011 16:12:35 GMT 1
I think that is true about parents that do engage just not in the way the LA demand. I also would like to see professional discernment used over school reports and a recognition that a schools view of the situation is not objective and that a report may often be negative due to them holding one position around an issue and a parent holding a different but often valid position. Whilst info from schools may be in some situations be useful it should not be seen as gospel. I am uncomfortable with the questions Lancs asks schools about dergegged children and their families. Jo
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fionan
Junior Member
Posts: 60
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Post by fionan on Oct 29, 2011 17:02:23 GMT 1
Hi Jo,
I think the policy should just say that schools have a duty (via the Pupil Registration Regulations) to notify the Council when a child is no longer on the school roll and that the Council should confirm that this is all they will be saying to schools. There are already procedures in place for ALL children in need of services and ALL children at risk of significant harm. They don't make schools fill in a 6 weeks summer holiday risk assessment do they? (Actually perhaps with Lancs Council that's a dangerous question)
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Post by jo70mo on Oct 29, 2011 17:18:00 GMT 1
I agree
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fionan
Junior Member
Posts: 60
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Post by fionan on Nov 2, 2011 8:49:50 GMT 1
The LA obviously like their flowcharts so why not write one for them clarifying the different stages and the level of info that should be sufficient for each stage. At the moment any family who refuses to engage is automatically referred to CME, the officers are not looking at any of the evidence they have, such as school reports, and making a decision based on that. I think there's an upside and a downside to home educators (either groups or individuals) producing their own flow charts for Government officials. I can see the temptation but mostly I think it is A Bad Thing. I've seen a few of these charts over the years and in most cases the authors have had second thoughts and withdraw them. The charts end up having more and more boxes being added in order to cover all the bases (where someone says "yes but what if...") which just strangles the whole subject in red tape and people actually LOSE sight of the big picture because they are looking at the boxes which are putting ideas in their heads. Same with that list of characteristics of suitable provision in the home education guidelines where many of us didn't want them included because we said "it will become a checklist, a box-ticking exercise" . And sho nuff...in some LAs it did!
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