Table of Contents
- Introduction to Home Education Law
- Freedom in Home Education
- Legal References For Home Education
- Children Missing Education
- Home Education Guidelines 2.7-2.11
- When And How To Serve School Attendance Orders
- Home Education Guidelines 3.4-3.6
- Phillips vs Brown: Where Parent Gives No Details of Home Education Provision?
- Taking Child Out Of School To Home Educate
- What Happens After Children Are Taken Out Of School
- Child Protection Issues in Home Education
- School Attendance Order Procedure
- New Guidance on Flexischooling and Home Education March 2013
- Special Needs and Home Education
- Taking Child With Special Needs Out Of School For Home Education
- Special Needs Code of Practice
- Part 4 in SEN Regulations
- Special Needs Statement and Home Education
- Special Needs Statement Annual Review
- Parents Not Obliged to Arrange Provision in Special Needs Statement
- Useful Links on Home Education and Special Needs
- Funding For Home Educated Children With Special Needs
Home Education Law in England
"Education otherwise than at school" comprises home education by parents under s.7 Education Act 1996 and also alternative provision which is arranged by the local authority under s.19 Education Act 1996. Click here to read the Government Elective Home Education Guidelines (England) which we have set out in easily searchable web-page format. Parents do not have to request permission to home educate or notify anyone, but parents wishing to remove their children from school need to deregister by writing to the proprietor of the school. A number of families whose children have special needs including autism find home education to be a lifeline.
The school leaving age is to be raised to 18 by 2015 For more information about part-time school, click on Flexischooling Children's social care services may become involved with a child when the family requests help or where a child protection referral is made to social services. Read more about Home Education and Social Services. Where separated parents disagree about home education, the family courts may become involved and lone parents are recommended to seek legal advice. Parents are not eligible for funding when children are home educated. Click here for a map showing the numbers of home educated children in different local authorities in England.
Local authorities have no statutory duty to monitor parents' home education provision. At the same time,section 436A Education Act 1996 gives local authorities the duty to make arrangements to identify children outside school who are not receiving education. Government Guidelines indicate that the authority should address the situation informally by making inquiries with parents. If it appears that a suitable education is not being provided, the local authority should seek to gather any relevant information that will assist in reaching a properly informed judgement. Ultimately if the authority is not satisfied that the child is receiving education, it has a duty to begin the process for a School Attendance Order. Suitable education is defined in law as education which is suitable to the child's age, ability, aptitude and any special needs he or she may have.
Freedom in Education
The parent is not required to provide any particular type of education and is under no obligation to:
have premises equipped to any particular standard
have any specific qualifications
cover the same syllabus as any school
adopt the National Curriculum
make detailed plans in advance
observe school hours, days or terms
have a fixed time-table
give formal lessons
reproduce school type peer group socialisation
match school, age-specific standards
produce examples of ‘work’ for inspection
seek permission to educate 'otherwise'
take the initiative in informing the authority
have regular contact with the authority
meet with the authority
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.Section 7 Education Act 1996 England and Wales
Children Missing Education: Section 436A Education Act 1996
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.
Children Missing Education Guidance
87. 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.
Statutory Guidance on Children Missing Education (England) January 2009 or http://webarchive.nationalarchives.gov.uk/20130401151715/https://www.education.gov.uk/publications/standard/Integratedworking/Page1/STATUTORY-LA-GUIDE
Government Home Education Guidelines 2.7 - 2.11
2.7Local authorities have no statutory duties in relation to monitoring the quality of home
education on a routine basis. However, under Section 437(1) of the Education Act 1996, local authorities shall intervene if it appears that parents are not providing a suitable education. This section states that:
“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.” Section 437(2) of the Act provides that the period shall not be less than 15 days beginning with the day on which the notice is served.
2.8 Prior to serving a notice under section 437(1), local authorities are encouraged to address the situation informally. The most obvious course of action if the local authority has information that makes it appear that parents are not providing a suitable education, would be to ask parents for further information about the education they are providing. Such a request is not the same as a notice under section 437(1), and is not necessarily a precursor for formal procedures. Parents are under no duty to respond to such enquiries, but it would be sensible for them to do so.(3)
(2) Statutory Guidance for Local Authorities in England to Identify Children not Receiving Education available at http://www.everychildmatters.gov.uk/ete/childrenmissingeducation/.
(3) Phillips v Brown (1980)
2.9 Section 437(3) refers to the serving of school attendance orders:
“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.”
2.10 A school attendance order should be served after all reasonable steps have been taken to try to resolve the situation. At any stage following the issue of the Order, parents may present evidence to the local authority that they are now providing an appropriate education and apply to have the Order revoked. If the local authority refuses to revoke the Order, parents can choose to refer the matter to the Secretary of State. If the local authority prosecutes the parents for not complying with the Order, then it will be for a court to decide whether or not the education being provided is suitable and efficient. The court can revoke the Order if it is satisfied that the parent is fulfilling his or her duty. It can also revoke the Order where it imposes an education supervision order. Detailed information about school attendance orders is contained in Ensuring Regular School Attendance paragraphs 6 to 16.(4)
2.11 Where the authority imposes a time limit (5), every effort should be made to make sure that both the parents and the named senior officer with responsibility for elective home education in the local authority are available throughout this period. In particular the Department recommends that the time limit does not expire during or near to school holidays when there may be no appropriate point of contact for parents within the local authority.
Government Home Education Guidelines 3.4 - 3.6
3.4 Local authorities should acknowledge that learning takes place in a wide variety of environments and not only in the home. However, if it appears that a suitable education is not being provided, the local authority should seek to gather any relevant information that will assist them in reaching a properly informed judgement. This should include seeking from the parents any further information that they wish to provide which explains how they are providing a suitable education. Parents should be given the opportunity to address any specific concerns that the authority has. The child should also be given the opportunity, but not required, to attend any meeting that may be arranged or invited to express his or her views in some other way. Parents are under no duty to respond to such requests for information or a meeting, but it would be sensible for them to do so.
3.5 If it appears to a local authority that a child is not receiving a suitable education it may wish to contact the parents to discuss their ongoing home education provision. Contact should normally be made in writing to the parents to request further information. A written report should be made after such contact and copied to the parents stating whether the authority has any concerns about the education provision and specifying what these are, to give the child’s parents an opportunity to address them. Where concerns about the suitability of the education being provided for the child have been identified, more frequent contact may be required while those concerns are being addressed. Where concerns merit frequent contact, the authority should discuss them with the child’s parents, with a view to helping them provide a suitable education that meets the best interests of the child.
3.6 Some parents may welcome the opportunity to discuss the provision that they are making for the child’s education during a home visit but parents are not legally required to give the local authority access to their home. They may choose to meet a local authority representative at a mutually convenient and neutral location instead, with or without the child being present, or choose not to meet at all. Where a parent elects not to allow access to their home or their child, this does not of itself constitute a ground for concern about the education provision being made. Where local authorities are not able to visit homes, they should, in the vast majority of cases, be able to discuss and evaluate the parents’ educational provision by alternative means. If they choose not to meet, parents may be asked to provide evidence that they are providing a suitable education. If a local authority asks parents for information they are under no duty to comply although it would be sensible for them to do so.Parents might prefer, for example, to write a report, provide samples of work, have their educational provision endorsed by a third party (such as an independent home tutor) or provide evidence in some other appropriate form.
Phillips vs Brown
"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."
Taking a child out of school
Our web page on deregistration gives further information about taking a child out of school.
Parents wishing to remove a child from school in order to home educate need to go through the deregistration process which is set out in Education (Pupil Registration)(England) Regulations 2006.This involves writing to the headteacher or proprietor of the school. The name of a school-age pupil is to be deleted from the admission register if he has ceased to attend the school and the proprietor has received written notification from the parent that the child is receiving education otherwise than at school. Parents do not have to ask the school or the local authority for permission. The proprietor of the school must report the deletion of the pupil's name from the admission register to the local authority immediately. Guidance on the Pupil Registration Regulations allows schools to delay the removal of the child's name from the register for a maximum of two days to allow notification to reach the local authority. Once parents have requested that the child's name be removed, the register should be marked "authorised absence" until the child's name is deleted.
The position is the same for child with a statement of special needs who is a pupil at a mainstream school (including a specialist provision/unit within the school or attached to the school).
The only exception to the general rule is where a child is registered at a special school. In this case, parents must obtain the consent of the local authority to withdraw their child from the school. Consent is required in these cases only to smooth the transition to home education for children with complex special needs. Read more on taking children with special needs out of school for home education.
What Happens After Children Are Taken Out of School?Once parents notify the school that they are home educating, this may prompt a review of the family's circumstances which could include prior child protection concerns or outstanding problems with the school. Some authorities also ask the Education Welfare Service to make initial contact with the family. Education Welfare Officers do not have teaching qualifications and in some cases may not be aware of the law on home education. Where children have a statement of SEN, the parent may also be asked for information about how home-based education will cater for the child's special needs as outlined in Part 2 of the Statement.
Who Deals with Home Education?
Local authorities may have between 6 and 600+ home educated children "on their books" ie children who are known to the authority, usually because they have been taken out of school. The job of overseeing home education may be a full-time or part-time post or may simply be passed to someone who is already working in Education Welfare, Alternative Provision, Special Needs or Traveller Education Services. In some areas the job of overseeing home education may be carried out on a contract basis by a retired teacher who will be paid for each assessment or inspection. Local authorities do not receive any funding for home education services. For a map showing the numbers of home educated children known in each local authority in England, click here
As may be seen from the Government's Home Education Guidelines, local authorities do not have a statutory duty to monitor education provided by parents and there is no requirement in law for the authority to interview home educating families.
Child Protection Issues in Home Education
More information on home education and safeguarding can be found in our page on home education and social services and in the Goverment Guidelines on Elective Home Education and Child Protection
What Happens if the Local Authority Has Concerns that a Child is Not Being EducatedIf it appears that a child is not on a school roll and is not being educated elsewhere the local authority has a duty to take steps to satisfy itself that the child is in fact receiving education. Government Guidelines recommend that the situation is first addressed informally which would involve asking parents for more information about the arrangements they are making for their children's education. Ultimately if the authority considers it expedient that the child attends school, it has the power to issue a School Attendance Order. More information about SAOs can be found on our page about School Attendance Orders.
New Guidance from DfE on Flexischooling March 2013See http://www.education.gov.uk/schools/pupilsupport/parents/involvement/homeeducation/a0073367/elective-home-education-guidelines "On 22 February 2013, the Government published revised advice on school attendance. The advice clarified the Government’s expectations on how various school attendance codes should be used to record pupil school attendance. Schools should not mark a pupil as attending school, using the attendance code B for off-site education activity, unless the school is responsible for supervising the off-site education, and can ensure the safety and the welfare of the pupil off-site. Schools are ultimately responsible for the attainment of every child registered on their roll. Whilst being home educated, parents and carers are responsible for pupils, not schools. Where parents have entered in to flexi-schooling arrangements, schools may continue to offer those arrangements. Pupils should be marked absent from school during periods when they are receiving home education. The reference in the Government’s revised advice on school attendance, that was categorical that a school could not agree to a flexi-schooling arrangement, has been removed."
Home Educating Children with Special Educational Needs
A new website is being set up with answers to frequently asked questions about home education and special needs in England http://www.ehe-sen.org.uk/ In November 2012, the All Party Group for Home Education held a meeting to discuss the impact of proposed changes to SEN and disability Click here for more information on changes to the SEN system in England and here to read more about the SEN proposals in the Children and Families Bill. Click here to read more about the SEN Code of Practice is to be revised in 2013 http://edyourself.org/articles/newcode.php Our News Page has more items of interest for parents of children with special needs.
Some parents turn to home education when they have been unable to get their child's needs met in the school system. Other families decide when their children are very young that school is unlikely to meet their needs. In addition, parents of children with special needs may also have philosophical or religious reasons for home educating. Children with special educational needs have an equal right to be educated at home. Small scale research indicates that a significant number of autistic children are home educated. Click here for more information on changes to the benefits system regarding lone parents on Income Support, Jobseekers Allowance, Working Tax Credit, Universal Credit, and Personal Independence Payment which will replace Disability Living Allowance from 2013.
Taking Child with Special Needs out of School
If the child is a registered pupil at a mainstream school, the parent wishing to home educate should send a written request to the proprietor for the child's name to be taken off the school roll. The process is the same irrespective of whether the child has a statement of SEN or not. If the child is a registered pupil at a special school, the parent requires consent from the local authority before the child's name can be removed from the school roll. Some local authorities will ask for further information before agreeing that the child's name can be removed. Consent must not be unreasonably withheld. The Government's Home Education Guidelines set out the position in relation to home education and special needs. Our web page on deregistration gives further information about taking a child out of a special school.
Special Needs Code of Practice
8:95 Section 7 of the Education Act 1996 recognises parents’ right to choose to educate their child at home. Such arrangements are described as 'education otherwise than at school'. In such cases, if the child has a statement of special educational needs, it remains the LEA's duty to ensure that the child's needs are met. The statement must remain in force and the LEA must ensure that parents can make suitable, provision, including provision for the child’s special educational needs. If the parent's arrangements are suitable the LEA are relieved of their duty to arrange the provision specified in the statement. If, however, the parents' attempt to educate the child at home results in provision which falls short of meeting the child’s needs, then the parents are not making 'suitable arrangements' and the LEA could not conclude that they were absolved of their responsibility to arrange the provision in the statement. Even if the LEA is satisfied, the LEA remains under a duty to maintain the child’s statement and to review it annually, following the procedures set out in Chapter Nine.
8:96 In such situations section 324 (4A) of the Education Act 1996 does not require the name of a school to be specified in part 4 of the statement. Part 4 should state the type of school the LEA consider appropriate but go on to say that: "parents have made their own arrangements under section 7 of the Education Act 1996." The statement can also specify any provision that the LEA have agreed to make under section 319 to help parents provide suitable education for their child at home.
8:92 Section 319 of the Education Act 1996 empowers the LEA to arrange for some or all of a child’s special educational provision to be made otherwise than at school. Such arrangements would include education in a pupil referral unit, home tuition or education that reflected key stage 4 flexibilities.
Part 4 in SEN RegulationsPart 4: Placement [Here specify] (a) (b) the type of school which the authority consider appropriate for the child...or any provision for his education otherwise than at a school which the authority make under section 319 of the Act and consider it appropriate to specify.
Named School in Part 4 of Statement
The fact that a school may be named in Part 4 of the statement before the parent has enrolled the child, does not mean that the child is automatically registered at the school without any further action on the part of the parent. Nor does naming the school in Part 4 mean that a child who is not currently on the roll of the school will be obliged to attend the named school in future rather than - for example - being home educated. Read more about Part 4 http://www.ipsea.org.uk/What-you-need-to-know/SEN/A-Statement-of-Special-Educational-Needs.aspx here.
Statement of Special Educational Needs
Where a child has a statement of SEN, the local authority has a duty to review the statement annually to establish whether the child's needs are being met and whether the statement should remain in force. The statement is not enforceable on the parent. The parent has a legal duty to provide education to meet the child's special needs, but education at home may be very different from school-based provision. In some cases, the home educating family will be able to make the case that the statement is irrelevant and should cease to remain in place. In other cases, particularly when the family wishes for the child to return to school, it is possible for the statement process to be initiated while the child is home educated. Read more about some families' experience of the Annual Statement Review on our Briefing on the SEN Green Paper
Not Mandatory to see Child as Part of Annual SEN Statement Review
The Westminster Government confirmed in 2010 that it was not mandatory to see the child or the home as part of the annual statement review and in March 2010 said: "However, the suggestion in paragraph 12 that an LA should seek a school attendance order only applies in cases where an LA considers it is unable to assess suitability because it has been denied access to a child and is unable to see the child, and there are no other means of establishing suitability. There is a range of ways in which an authority can make an assessment of suitability which do not involve being able to see the child or having access to the home. We apologise for any concern that paragraph 12 has caused the parents of home-educated children." The matter was placed on record in the House of Lords on March 17th 2010. See also http://webarchive.nationalarchives.gov.uk/20100413151441/http://teachernet.gov.uk/wholeschool/sen/home-educatedchildren/ and - in the event that the web archive page may be unobtainable - the same Teachernet page on SEN Review as word doc held on the EdYourself server
Parents do not have to arrange the provision specified in the statement of special needs
All parents have a duty to cause their children to receive education suitable to age ability aptitude and special needs. In the case of children with a statement of SEN, The Government has made it clear that parents of children with SEN statements do not need to arrange the provision specified in the statement. The point has been reiterated in case law (see DM and KC vs Essex 2003 below)
Some noble Lords have raised issues concerning the parents of children with statements who choose to educate their children at home. Advice on this is included in the draft code. It makes clear that where such education takes place, local education authorities will retain their duty to ensure that the child's needs are met. The statement must remain in force and the authority must make sure that parents can make suitable arrangements. The term "suitable arrangements" does not mean having to specify exact arrangements in the child's statement. However, the authority must satisfy itself that the arrangements put in place by the parents are suitable to meet the needs of the child. Where that is the case, the authority is relieved of its duty to arrange for provision as specified. If, however, the arrangements fall short, then the authority is not absolved of its responsibility. However, the authority could, for example, itself make some provision to help the parents to put in place suitable arrangements. Furthermore, even where authorities are satisfied that arrangements are suitable, they will still have a duty to maintain the child's statement and to review it annually.
Funding for Special Needshttp://edyourself.org/articles/funding.php updated March 2013
In March 2011 the Government Green Paper on Special Educational Needs reminded local authorities of their "power under the Education Act 1996 to make special educational provision out of school to help the parents make their provision suitable for their child’s SEN." Click here for more about the SEN Green Paper.
More information about the lack of support for home educated children with special needs can be found in this web page with links to relevant research from Ofsted and the University of Birmingham and in our Response to the SEN Green Paper June 2011