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Ian Dowty Legal Talk HEFF 2016
Ian Dowty gave a talk about home education and the law at HEFF 2016. The focus was on England, with additional mention of Wales. The law in Scotland is different.
Criminal law relating to home education is covered in sections 437 - 443 of the Education Act 1996 which deal with investigation and enforcement. Parents can be prosecuted for failing to comply with a School Attendance Order.
An Act of Parliament creates a new law or changes an existing law. There is also secondary or delegated legislation, statutory guidance and non-statutory guidance or advice. The home education guidelines are not statutory guidance.
The starting point is section 7 of the Education Act 1996 which states that:
The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—
(1) to his age, ability and aptitude, and
(2) to any special educational needs he may have,
either by regular attendance at school or otherwise.
Ian analysed the legal meaning of each of these words and phrases in turn: "parent"; "compulsory school age"; "efficient education"; "full time education"; "suitable education;" "age, ability aptitude and special needs"; "regular attendance"; and "otherwise."
For enforcement purposes a "parent" is defined in the Education Act as "any person— (a) who is not a parent of his but who has parental responsibility for him, or (b)who has care of him.". This only applies to children below compulsory school age.
Compulsory School Age
"Compulsory school age" means the term school term after the child's 5th birthday up to the last Friday in June in the school year they turn 16 https://www.gov.uk/school-attendance-absence/overview The raising of the participation age in England does not affect this which is why benefits for 16+ education are opt-in and not continued automatically)
Efficient" education is the dictionary definition of "efficient" ie that which "achieves what it sets out to achieve" which is why it matters what parents are trying to achieve and what they say about their aims and values. More
"Full time" has no legal definition in relation to home education.
"Suitable" means "suitable to age ability aptitude and SEN" and there is no need to seek or create a further definition of "suitable education." A view put forward by a judge in a lower court in Worcester in 1981 (the Harrisons) about systematic instruction is not binding "case law".
In relation to autonomous education, Ian quoted the distinction made at Worcester Crown Court between the “transmissive” [didactic/teaching a body of knowledge] and the "autonomous method or self-directed study". The general consensus amongst those attending Ian's talk was that it wasn't helpful to describe autonomous education as children just picking things up for themselves or parents doing nothing.
Age, Ability, Aptitude and Special Needs
The section 7 duty is a balance between age ability aptitude and special needs. As indicated in http://edyourself.org/articles/guidelines.php#broadbalanced the Government Home Education Guidelines, home educated children do not have to "match school-based, age-specific standards." Ian suggested that one way of looking at the distinction betweeen ability and aptitude would be the following: "With ability, we are talking of where a child is already. With aptitude, we are talking of a child's scope for development in the future an innate talent in a particular area...aptitude is about potential" Link
Parents do NOT have to make the special educational provision set out in the statement or Education Health and Care Plan. More about home education and special needs here
Otherwise Than At School
"Education otherwise" may refer to education arranged for pupils unable to attend school or to elective home education provided by parents. It is vital to look at the context, and to be alert to clues that this is NOT elective home education, for example the word "pupil" (section 9) or reference to the authority's "functions relating to the provision of education" (section 13A).
School Attendance Orders
"(1) If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education.
(2) That period shall not be less than 15 days beginning with the day on which the notice is served.
(3) If (a)a parent on whom a notice has been served under subsection (1) fails to satisfy the local education authority, within the period specified in the notice, that the child is receiving suitable education, and (b) in the opinion of the authority it is expedient that the child should attend school,
the authority shall serve on the parent an order (referred to in this
Act as a “school attendance order”), in such form as may be prescribed,
requiring him to cause the child to become a registered pupil at a school
named in the order."
s.437 Education Act 1996
The Court Process
If the council decides to prosecute the parent for non-compliance with a School Attendance Order (ie the parent REFUSES to register the child at a school) then the parent will receive a summons from the magistrates court. Since this is a criminal offence, it is eligible for means-tested legal aid. The Law Society has a search facility for finding a solicitor.
The first step is when the parent receives a summons to appear before the magistrates court. The case is not "tried" at this stage, so the parent will go to court and plead not guilty, moving the process on to the next stage which is setting a trial date. The defence is that the child is receiving education otherwise than at school. If the parent is found guilty, the penalty is a fine. It is possible to get the service of an expert witness covered by legal aid. The parent's solicitor has to apply to the magistrates court for a Representation Order and to the Legal Services Commission for authority to instruct an expert.
The Clock Analogy
"Section 437(1) establishes that the LA must consider the adequacy of educational provision in two distinct stages, the first of which is a pre-condition for the second to come into operation.
Stage 1 - If it appears to an LEA that a child is not receiving suitable education, then, but only then,
Stage 2 - the LEA shall, by written notice, require a parent to satisfy them that the child is receiving such education.
Logically and legally the 2 stages must involve different considerations in view of the wording Parliament has chosen to use. In stage 1 the word “appears” is used and the “test” is phrased negatively. In stage 2 the LA makes a direct requirement that the home educator “satisfy” the LA that a suitable education is being received.
If Parliament had intended from the outset that the LA had the duty to seek, and a home educator had the obligation to provide, evidence capable of satisfying the LA, then there would have been no need for the 2 separate stages. If the LA were to be empowered to require evidence capable of satisfying it from the outset, the first stage would be redundant. If it is to be given any meaning, as it must, it must be a form of sifting test which only places on the LA the duty, and more importantly only empowers it, to take a general look at the provision being made to see whether further enquiry is necessary. It cannot authorise a requirement, when the LA first considers the educational provision, that the home educator produce evidence capable of satisfying the LA.
In effect the section establishes that not all parents should be required to satisfy the LA of the educational provision made, only those in respect of whom the LA considers “it appears” that a child “is not receiving suitable education” . This is why I say stage 1 is a “sifting process” and only those to whom the LA can say there is an appearance of no suitable education will have any obligation to produce evidence and to have to satisfy their LA.
An analogy might assist. If you look at a clock and it tells you roughly what you expect to be the time, you accept it even though you cannot be sure it is showing the right time, it has an appearance of not being wrong. If however, it shows a time that surprises you, then you would open up the back and have a closer look at the workings as it has an appearance of not keeping time correctly.
Thus it is not the right approach in law for the LA from the outset to write to parents requiring them to produce evidence capable of satisfying the LA that a suitable education is present. Indeed prosecutions in my experience founder because of such misconceptions.
As I have said, in my view, the first task of the LA in “assessing” any home ed provision is to find out from the parent what is their philosophy of education, what are their educational precepts and so to discover what their model of education is like. Provided that this is worthy of respect, it is this model and not the model of education that is preferred by the LA or its individual representatives that must be used in any “assessment”. An LA which does not carry this out risks difficulties in any future prosecution."
Deregister By Email?
The Pupil Registration Regulations refer to "written notification". An email isn't signed in the same way as a written letter, so if someone requires paper rather than email, there is no right to insist on email being accepted.
Ian agreed that fears about radicalisation and extremism would continue to have an impact on home education but noted that the Pupil Registration Regulations had been amended to allow more tracking of children taken out of school for reasons other than home education. More
If something is introduced in Scotland it doesn't follow that it's only a matter of time before it arrives in England. However, the recent successful legal challenge to the information sharing aspects of the Named Person for Every Child should serve as a warning to other countries in the UK