Donaldson's Judgment on Local Authority Duties
In March 1980 Lord Justice Donaldson gave judgment in Judicial Review concerning the case of "Phillips vs Brown" Many people who have read the DCSF Elective Home Education Guidelines for Local Authorities will be reasonably familiar with this case and will know that Lord Donaldson made a distinction between a local authority's simply asking for information on the one hand and on the other hand issuing a notice requiring the parent to satisfy the authority. The formal notice only occurs at a much later stage after the authority has commenced formal proceedings prior to issuing a School Attendance Order.
Mr Phillips was a home educating parent who made the argument in court that parents had the right simply to say that they were home educating, without giving further information and that local authorities had no duty in law to investigate home educators' provision unless they had reason to believe that it was unsatisfactory.
When the case came to Judicial Review Lord Donaldson stated "it seems to me that where an authority has a duty to take action in particular circumstances, it also has a duty to be alert in order to detect the possibility that those circumstances exist."
Lord Donaldson said that in order for local authorities to find out whether a child is being home educated, "the most obvious step is to ask the parents for information." Lord Donaldson went on to say "of course such a request [for information from parents] is not the same as a notice under s 37(1) of the Education Act 1944 [now s.437 Education Act 1996]
Mr Phillips was a home educating parent who appealed against the conviction and fine imposed by Leeds Magistrates for failure to comply with a school attendance order made by the local education authority under section 37(2) of the Education Act 1944 (now section 437 of the Education Act 1996). Two clear defence arguments to a School Attendance Order are as follows. One defence is to challenge the validity of the Order and to say that it was incorrectly issued, which is what Mr Phillips sought to do. The second defence - which Lord Donaldson asserted should instead have been made by Mr Phillips- is for the parent to supply evidence about the education which is being provided otherwise than at school.
The information we have about this case comes from the summary given to the Queen's Bench Division (Divisional Court) on 20 June 1980 where it was stated that the local education authority became aware that Mr Phillips' child was not attending any school. The LEA wrote to the parents who replied by letter dated 11th October 1976 as follows: "Oak Reah receives efficient, full time education (from Mrs. R.H. Reah and Mr. J.D. Phillips) which is suitable to his age, aptitude, and ability: he receives this education otherwise than by regular attendance at school: he has already received this education since (and inclusive of) his 5th birthday: such education falls in accordance with current Educational Law."
The family engaged a solicitor who wrote to the LEA: "We can do no more than reiterate what we have said previously. Your powers under the Education Act 1944 only come into operation if 'it appears... that the parents of any child... are failing to perform their duty.' In this case there has been nothing to give any such appearance. Our clients are conscious of their duty expressed in Section 36 of the Education Acr 1944 to educate their child in accordance with that Section and confirm that they are so educating him." After writing to the family several more times, on 27 February 1978 the LEA announced its intention to serve a School Attendance Order. The School Attendance Order itself was dated 3rd April 1978 and required the parents to cause Oak to become a registered pupil of a named school in the Leeds area. The parents did not comply with the order and the LA prosecuted for non-compliance.
When the case came to court, the parents gave no evidence concerning Oak's education but took the point that, before a local education authority could issue a notice under s 37(1) of the Act, something positive must have come to their notice as a result of which it could and did appear to the authority that there was a failure by the parents in their duty under s 36. The parents contended that there was no evidence of any such matter. It followed that it could not appear to the authority that the parents were failing in their duty, that the s 37(1) notice was invalid and so was the school attendance order based upon that notice. The parents were convicted of failing to comply with the School Attendance Order and the judgement was appealed. Lord Donaldson's views on the appeal are set out below.
What Lord Donaldson said in the Judicial Review
The following are Lord Donaldson's own words:
"Two questions are referred to this court, namely the interpretation of the words 'if it appears' in s37(1) of the Education Act 1944, and whether the respondent's judgement was a matter about which the court could enquire and if so whether there was sufficient evidence before the court, or any evidence, upon which it could be established that it did appear to the local education authority[...]
Mr Phillips submits that unless and until something comes to the notice of a local authority which causes it to conclude that prima facie particular parents are in breach of their duty under S 36 of the Education Act 1944 it is neither bound nor entitled to make enquiries of those parents. He claims that an LEA is in the same position as a policeman and says that policemen do not go from house to house enquiring whether a burglary has been committed. Similarly LEAs should not oppress parents by enquiring whether there has been a breach of s 36. In Mr Phillips's submission the LEA in this case is seeking to invert s 37(1) and to treat it as if it authorised and required the making of enquiries of parents before and in order that the LEA may consider whether it appears that there has been a breach of s 36.
Whilst I acknowledge the force of this argument, it seems to me that where an authority has a duty to take action in particular circumstances, it also has a duty to be alert in order to detect the possibility that those circumstances exist.
It needs to know what children of school age live in its area in order that it may perform its statutory duty to provide sufficient schools (s 8 of the Education Act 1944) and to ascertain what children require special educational treatment (s 34). It knows which of these children attend its own schools. It follows that an LEA will or should know that certain children in its area are in a different category - namely being educated at other schools, being educated otherwise than by attendance at school or not being educated properly or even at all. Unless the LEA knows into which sub-category a particular child falls, it is put on enquiry.
What should it do? I do not accept that it should do nothing. This would rightly be criticised as an attempt to behave like an ostrich - to put its head in the sand in order that it should not learn of anything which might place upon it the burden of discharging its duty to consider making and, in appropriate cases, to make school attendance orders.
The most obvious step is to ask the parents for information. Of course such a request is not the same as a notice under s 37(1) of the Education Act 1944 and the parents will be under no duty to comply. However it would be sensible for them to do so.
If parents give no information or adopt the course adopted by Mr Phillips of merely stating that they are discharging their duty without giving any details of how they are doing so, the LEA will have to consider and decide whether it "appears" to it that the parents are in breach of s 36. In this context there is no reason why it should necessarily accept the parents' view - opinions differ on what has to be done in discharge of the duty - and if the parents refuse to answer, it could very easily conclude that prima facie the parents were in breach of their duty...
Life would have been much easier for all concerned, including Mr Phillips, if he had seen fit to place evidence before the magistrate designed to prove this point, but he did not do so. Instead he sought to argue that the school attendance order itself should not have been made because it did not in fact appear to the LEA that he and Mrs Reah were in breach of their s 36 duty and accordingly the LEA had not been entitled to issue the order. Alternatively, he would like to have contended that the LEA could not have formed the opinion that it was expedient that Oak should attend school. The learned magistrate held that it was not open to him to consider such an argument. Here I think that he erred.
In Secretary of State for Employment V ASLEF (No 2) }(1972] 2 QB 455, (1972] 2 All ER 949 the Court of Appeal was concerned with a statute which authorised the making of an application to the court "if it appears to the Secretary of State...The court held that this did not put the Minister's decision beyond challenge. It was open to a respondent to the application to seek to show that the Minister had not acted bona fide or that he must have misdirected himself in law. Similarly, in the case of proceedings brought for non-compliance with a school attendance order, in my judgement it is open to the defendant parent to place evidence before the court designed to show that it could not have appeared to a reasonable LEA, correctly directing itself as to what matters were relevant, that the parent was in breach of his s 36 duty or, as the case may be, that it was expedient that the child should attend school and that the making of the school attendance order was therefore unauthorised and a nullity. But courts should not readily accede to such an argument in the absence of evidence that in fact the parents are discharging their s 36 duty and, if this is once proved, the defendant would in any event be entitled to be acquitted and the court may make an order under s 37(6) of the Education Act 1944 that the school attendance order shall cease to be in force. In the circumstances parents would be well advised to concentrate upon the defence which is available to them under s 37(5) rather than to take on the very much heavier burden of seeking to attack the school attendance order in limine."
On the facts of this case the learned magistrate should have applied his mind to the question of whether it could properly have appeared to the LEA that the parents were in breach of their s 36 duty and whether it could properly have been of opinion that it was expedient that Oak should attend school and I answer the questions set out in the case stated accordingly. The conviction will be set aside and the matter remitted to the learned magistrate for further consideration should the LEA wish him to do so."
Lord Donaldson also added that "Mr. Phillips expressed concern lest, if the Magistrate's view of the law was right, it would be open to an L.E.A. to persecute a parent by issuing a series of School Attendance Orders at short intervals, making complaints that the orders were not complied with and on each occasion requiring the parent to prove that he was discharging his section 36 duty. There is no evidence whatsoever that this has happened in this case or in any other case. But Mr. Phillips need have no fear. Apart altogether from the power of the Magistrates Court to order that a particular School Attendance Order shall cease to be in force pursuant to section 37(6), the Divisional Court, in an appropriate case, has the necessary power and would have no hesitation in restraining such conduct by an L.E.A. by means of judicial review."
Phillips vs Brown and the DCSF Home Education Guidelines 2007
The judgement on this case is cited 3 times in the DCSF Home Education Guidelines of 2007 as "Phillips vs Brown", although it is not directly attributed to Lord Donaldson.
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