Introduction

In January 2012 just under a thousand children throughout Wales were recorded as being home educated, which is a 10% increase on the previous year. There were more 15 year olds recorded as being electively home educated than any other age group.[1]

In September 2012 the Welsh Assembly Government announced proposals for substantial changes to local authority procedures for dealing with home educated children.[2] Some of the proposed changes would require the Welsh Assembly to bring in new laws, whilst other changes could be introduced using existing powers in law, without the need to go through the full legislative process. Passing a new law involves a number of separate stages: public consultation seeking a range of feedback via written responses and face to face discussions; Government response to the consultation; publication of a draft Bill with the opportunity for further consultation; before finally the proposed legislation starts to make its way through parliament and is subject to scrutiny by Assembly Members.[3]

1. The parent will have to apply to the council for permission to home educate
2. The application process will involve interviews with the parent and the child
3. The parent will have to satisfy the council that education is "suitable"
4. "Suitable education" is to be redefined in law
5. Access to the home/interviewing children/requiring children to show work are all controversial
6. All-encompassing "welfare issues" will give discretion to council staff with power to grant or refuse permission to home educate
7. New definition of "suitable education" preparing for "responsibilities of adulthood" interpreted as mandatory sex education, will give discretion to council staff with power to grant or refuse permission to home educate
8. Autonomous education may fail the new criteria for annual monitoring of suitable education where "no one aspect of learning is emphasised to the exclusion of others", giving discretion to council staff with power to grant or refuse permission to home educate
9. The special needs system in Wales is undergoing change which could significantly affect home education. SEN is to be re-categorised as "Additional Needs" and will include school phobics and school refusers. This could be interpreted by some authorities to include children who are taken out of school for home education.
10. Appeals process is yet to be defined but proposals will undoubtedly give rise to legal challenges

Welsh Government Policy Statement on Home Education November 2011: No Change

In November 2011, following the devolution referendum earlier in the year [4], the Welsh Government announced that "the Minister for Education and Skills has determined an approach to development of policy for education provided by parents (elective home education) in Wales. Date of decision: 22 November 2011.

Local authorities are not required to provide funding to parents who take their children off a school's roll and provide them with education. As local authorities do not receive funding to support home educating families, the level and type of support provided varies between one local authority and another. Current guidance on elective home education can be found in Section 6 of our Inclusion and Pupil Support circular."[5][6]

First Change to Law Announced in Legislative Programme for Wales, July 2012

The first official sign that the Government sought to change the law on home education came in July 2012 when the First Minister, Carwyn Jones, announced that the new Education (Wales) Bill would include: requirements for the registration of the education workforce; reform of the statutory framework for children and young people with special educational needs, and registration of children of compulsory school age who are home educated.[7]

Terms and Conditions for New Registration Scheme Revealed September 2012

On September 3rd 2012 the Welsh Assembly Government followed the July announcement by launching a consultation, to run till November 23rd, asking for views on proposals for the registration and monitoring of home educated children.[8]

The consultation document states that "Section 436A of the Education Act 1996 [11] places a duty on LAs which consists of two parts. The first part requires a LA to identify (so far as it is possible to do so) all learners of compulsory school age in their area who are not on a school roll. The second part requires a LA to establish if such learners are receiving a suitable education. In the remainder of this document we describe this duty as 'the section 436A duty'"[12]

Identifying and Tracking Home Educated Children

The consultation document goes on to explain that "LAs are finding it difficult to identify and track, in a timely and efficient way, all the children in their area who are being home educated. The main reason is that there is currently no legal requirement on parents to let the LA know that they are home educating.[13] As a consequence, LAs are finding it difficult to fulfil their section 436A duty."[14]

Paragraph 11 of the consultation document says that "in order for LAs to fulfil their section 436A duty, the Welsh Government believes that LAs need to know in a timely way which children in their area are being home educated. The Government believes that putting a duty on parents of home educated children to register with the LA will assist the LAs. A locally managed, formal register of home educated children will enable each LA to make more accurate assessments of the number of home educated children in their area."[15]

Assessing Suitability Education Provision

After outlining plans designed to discover how many children are home educated, the consultation document proceeds to consider how to assess the home education provided by parents, noting that "establishing the suitability of education in the context of home education can prove challenging as there is currently little guidance or training available to assist LAs in understanding the essential differences, variation and diversity in home education practice, as compared to schools."[16]

The consultation document proposes to address this issue [of assessing the suitability of education] by introducing new statutory guidance on educational suitability. "The content of the guidance will be consulted on separately and the objective is that such guidance together with the proposal set out in this consultation will better enable LAs to discharge their section 436A duty."[17]

In the Foreword to the consultation document, Minister Leighton Andrews puts forward the view that "more clarity is needed as to what a 'suitable education' might look like in the context of the variety of educational approaches used in home education. This will be covered in statutory guidance and will be consulted on separately."[18]

Proposed Government Criteria for Suitable Home Education

It is suggested in the consultation document that the key elements of "suitable home education" would be education suited to age, ability, aptitude, personality and interests of the learner; would provide provide a balanced range of learning experiences, so that no one aspect of learning is emphasised to the exclusion of others; would develop the personal, social and emotional skills of the learner and prepare them for the responsibilities of adulthood; and would ensure the development of basic skills including language, literacy and numeracy."[19]

Using Existing Powers Develop Statutory Guidance Best Practice LAs

In addition to statutory guidance on what constitutes suitable home education, the consultation document says that training materials will be developed "for use by LAs and those working with home educators to support a balanced, fair and consistent approach to the assessment of the suitability of home education provision."[20] The Ministerial Foreword adds that the Government wants to "use existing powers to develop statutory guidance which sets out best practice for LAs when working with home educating families and encourages LAs and home educating parents to work together in the best educational interests of the learner."[21]

The Section 436A Duty: Children Missing Education

According to the consultation document [22] the reason for changing the law on home education in Wales is "the section 436A duty". Section 436A of the Education Act 1996 (England and Wales) became part of the law in Wales in September 2009 [23] and states that:

(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.
(2) In exercising their functions under this section a local education authority must have regard to any guidance given from time to time by the Secretary of State.
(3) In this Chapter, "suitable education", in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have."[24]

Statutory Guidance on Children Missing Education

Statutory guidance on Children Missing Education (Wales), published in April 2010 [25] states that the section 436A duty "applies in relation to children of compulsory school age who are not on a school roll, and who are not receiving a suitable education otherwise than being at school (for example, at home, privately, or in alternative provision) and who have been out of any educational provision for a substantial period of time, usually agreed as four weeks or more."[26] Statutory guidance says that the section 436A duty "does not apply in relation to children and young people who are registered at a school who are not attending regularly" [27] nor does it apply "to children and young people whose parents have chosen to electively home educate them" [28] The CME Guidance directs the reader to the Government's Elective Home Education Guidelines for Wales, 2006.[29][30]

Good Practice Recommendations from Children Missing Education Guidance (Wales) 2010

"There is a range of proactive approaches that local authorities and their partner agencies can take to reduce the risk of children and young people not receiving a suitable education. Existing good practice falls broadly into the following categories where the local authority introduces measures to:

• provide named points of contact to receive notification of children and young people from other agencies;
• identify vulnerable groups and individuals who are recognised as being at greater risk;
• ensuring that they receive appropriate support and tailored provision;
• reduce the likelihood that children and young people fall out of the education system through transition tracking and audits of the rolls and registers of schools;
• ensure full usage of and training related to s2s [school to school] and the lost pupil database;
• follow-up cases where children and young people are known not to be receiving a suitable education at home and use existing section 437 powers of the Education Act 1996 [31] to issue a school attendance order if needed;
• ensure ongoing monitoring and tracking of vulnerable groups including those who have been excluded from school;
• Looked After Children and those registered as receiving education otherwise than at school;
• identify and locate children and young people who are not receiving a suitable education, via truancy sweeps;
• follow-up admission applications that do not result in a school place and unsuccessful admission appeals;
• re-engage children and young people with appropriate educational provision, for example via multi-agency panels to broker admissions."[32]

National Behaviour and Attendance Review

A Freedom of Information response sent to Dr David Shone in September 2012 stated that "the Minister made the decision to consider legislation in November 2011. The decision follows the National Behaviour and Attendance Review (NBAR)"[32]

NBAR has had a consistent focus on multi-agency partnerships in tackling issues of poor attendance and behaviour, including consideration of regional models, and was tasked with identifying potential new legislation that would assist in promoting positive behaviour and improving school attendance, including specific consideration of the provision of education for excluded pupils.

The NBAR Report only mentioned home education in the context of establishing reasons for home educating, noting that the reasons could include unofficial exclusion, the child's additional needs not being met, and also that bullying could be a reason for a child to be taken out of school. [33] Unofficial exclusions were seen as a significant problem, as was the low standard of provision for excluded children.

In the separate 26 page NBAR Summary [34] a recommendation was added that the Welsh Government should consider a more robust inspection of home educators. This suggestion does not appear in the actual Report.

Background: Setting the Scene

Ambitious plans to change the law on home education were dropped in England in 2010.[35] At that time, the Welsh Assembly Government said it "felt that it would not be appropriate to legislate in this area without carrying out a separate review in Wales, and to consult with all relevant bodies and persons in order to develop a distinctive approach in line with Welsh policy."[36]

At the end of 2010, Education Minister Leighton Andrews spoke of "working with local authorities and Estyn to scope out good practice for improved support and monitoring of elective home education as part of a larger review of Education Otherwise Than at School"[37] and the 2011 scoping study attributed to Sue Mitchell was subsequently published at the end of September 2012.[38]

Prior to March 2011, home education in England and Wales came under the same primary legislation, notably the Education Act 1996[39] and the Education and Inspections Act 2006.[40] The Welsh Assembly Government required Framework Powers to introduce its own Measures, though the Welsh Assembly did have powers to issue its own guidance. However, following the devolution referendum in March 2011[41], the Welsh Assembly Government is now able to make its own laws - now known as Acts - in many areas, including home education.

Other Legislation Announced by Welsh Assembly Government 2012-13

Bills to be introduced in Wales by July 2013: Local Democracy Bill; Control of Dogs Bill; Human Transplantation Bill; Social Services (Wales) Bill; Active Travel Bill; Further and Higher Education Bill; Education (Wales) Bill. The Government is also consulting on a Public service Workforce Green Paper and, subject to the consultation responses, hopes to bring forward a Bill in the spring. In addition to these eight bills the First Minister said that White Paper consultations would also be conducted on Ending Violence Against Women and Domestic Abuse Bill; a Sustainable Development Bill; an Environment Bill and a consultation on a Tenancy Reform Bill.[42]

The Education Department has launched an ambitious programme of consultations. [43] Radical changes are in the pipeline for 14-19 qualifications[44]; child protection[45]; overhauling the SEN system (children with additional needs)[46]; minority and ethnic achievement[47]; school admissions and appeals [48]; and standardising school holidays across the country.[49]

Sue Mitchell Welsh Assembly Government Research Published 2012

The Welsh Assembly Government became aware of the early stages of a research project being developed in Bridgend between the Local Authority and the home educating community. The Bridgend project was described to other LAs and WAG agreed to expand the exercise to develop a clearer overview of the situation among elective home educators in Wales and their relationships with local authorities.

The research found that in the area where the LA officer was the most stringent and eager for stronger regulation, the level of suspicion among home educators is definitely higher and more protective of their anonymity. Responses from both within the local authorities and the HE community emphasise that increased regulation towards HE provision would be counter-productive as it would increase suspicion and resistance to even basis interaction as well as being unwieldy to apply.

Three distinct attitudes [amongst local authority home education staff] were clearly definable in even so small a sample, as supportive, aggressive or conflictual. Developing an agreed and clarified best practice therefore is a matter of urgency. There is a significant argument that the provision of relevant, alternative curricular courses would reduce the numbers of families leaving mainstream education at key stage 4 and probably facilitate the reintegration of some HE older students. The research document may be read on the Welsh Assembly Government website.[50]

Summary Main Points Welsh Guidelines

In 2006 the Welsh Assembly Government published Elective Home Education Guidelines (14 pages) as part of a much larger document covering Inclusion and Pupil Support.[52]

What Do Current Welsh Home Education Guidelines Say?

• Assume efficient and suitable education unless evidence to contrary
• Know when to serve school attendance order
• Seek to build effective relationships
• Provide named contact knowledgeable about home education
• LAs to post information to parents where not meeting in person
• No legal framework for regular monitoring
• Make contact on annual basis
• Seek agreement to see provision first hand without undue pressure
• No right to insist on access to home
• Reports, samples of work, 3rd party endorsement, alternative venue
• Expected characteristics of provision
• Respecting parents' philosophy

Assume efficient and suitable unless evidence to contrary

The Welsh Home Education Guidelines state that the local authority should assume efficient educational provision is taking place, which is suitable for the child, unless there is evidence to the contrary. "There is no express requirement in the 1996 Act for LEAs to investigate actively whether parents are complying with their duties under Section 7" (page 3, paragraphs 2.6-2.7)

Know when to serve School Attendance Order

Welsh Guidelines say that "under Section 437 of the Education Act 1996, an LEA must by law serve a School Attendance Order (SAO) on the parent of a child of compulsory school age who fails to prove that the child is receiving suitable education and where the authority is of the opinion that the child should attend school" (page 2)

Seek to build effective relationships

Welsh Guidelinessay that local education authorities "should seek to build effective relationships with home educators that function to safeguard the educational interests and welfare of children and young people. Doing so will provide parents with access to any support that is available and allow authorities to understand the parents' educational provision" (page 4, paragraph 3.1)

Provide named contact knowledgeable about home education

Welsh Guidelines recommend that education authorities "should provide parents who are, or who are considering, home educating with a named contact within the authority who is familiar with home education policy and practice and has an understanding of the relevant legislation and a range of educational philosophies. The named contact's role could include liaising on a regular basis with already-established local groups of home educators or developing new groups where these don't already exist" (page 4, paragraph 3.2)

LAs to post information to parents where not meeting in person

Welsh Guidelines say that "meetings or other forms of discussion should be taken as an opportunity to provide information for the parents or guardians and that if meeting in person is not possible LEAs should endeavour to provide the same information through the post" (page 5, paragraph 3.6)

No legal framework for regular monitoring

Welsh Guidelines state that "there is no legal framework for the LEA to regularly monitor provision of home education, however such an arrangement is likely to help the LEA to fulfil their duties and can help provide new information and support to parents. The frequency with which an authority will contact parents to discuss their ongoing home education provision will vary depending on the individual circumstances of each family" (page 5, paragraph 3.8)

Make contact on annual basis

Welsh Guidelines recommend "that the authority should ordinarily make contact on an annual basis. Contact with the family should normally be made in writing and should seek a meeting or request an updated report. A report should be made after such contact and copied to the family stating whether the education authority has any concerns about the education provision" (page 5, paragraph 3.9)

Seek agreement to see provision first hand without undue pressure

Welsh Guidelines say that "LEAs should, where possible, and without placing undue pressure on parents, seek agreement to see the provision at first hand as the learning environment can have a strong bearing on the effectiveness of learning. Seeing the child responding to the educational provision of the parents may provide a strong indication that efficient education is being provided" (page 6, paragraph 3.11)

No right to insist on access to home

The Guidelines go on to say that "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. Trusting relationships may need time to develop before a parent is happy to invite an authority officer to visit. However, 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" (page 6, paragraph 3.12)

Reports, samples work, third party endorsement, alternative venue...

"Where LEAs 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. Parents might prefer, for example, to write a report, provide samples of work, have their educational provision endorsed by a third party, meet at another venue such as a library or cafe or provide evidence in some other appropriate form" (page 7, paragraph 3.13)

Expected characteristics of provision

The Guidelines say (page 7 paragraph 4.1)that "in their consideration of parents’ provision of education at home, education authorities may reasonably expect the provision to include the following characteristics:

• consistent involvement of parents or other significant carers - it is expected that parents or significant carers would play a significant role, although not necessarily constantly or actively involved in providing education;
• an indication that parents have thought through their reasons for home educating and what they hope to achieve;
• signs of commitment and enthusiasm, and recognition of the child’s needs, attitudes and aspirations;
• opportunities for the child to be stimulated by their learning experiences;
• involvement in activities to cater for the interests of the child and his/her stage of development;
• access to resources/materials required to meet the objectives of the parents;
• the opportunity to interact with other children and other adults;
• the involvement of Careers Wales at an appropriate stage; and
• development of numeracy and literacy skills suitable to the child’s age, aptitude and ability and taking into account any special educational needs that they may have

Respecting parent's philosophy

Guidelines state that "the approach home educating parents take to assessing their child's progress is likely to be dictated by their own philosophy or views, and in many cases, the absence of formal assessment may be a feature of the education provision" (page 9, paragraph 4.6)

Current Practice Amongst Local Authorities in Wales: Freedom of Information 2012

Opposition to Proposals

On September 25th a group of families met for a picnic outside the Senedd and delivered decorated handprints from children objecting to Government proposals to regulate and monitor home education. [55] Legal advice is currently being sought to establish the grounds for Judicial Review.[56] Issues raised in the early stages include access to the home; one-to-one interviews with children who will be required to answer questions about their education; wide-ranging powers to prevent home education because of "welfare issues"; and central Government's re-defining "suitable education."

The consultation document makes it clear that parents will have to apply for permission to home educate and sets out the grounds for refusing permission or withdrawing permission.[57] The following aspects have been identified as particularly controversial:

Access to the home + permission refused for "welfare issues"

Parents and children will have to be interviewed at home by representatives from the council as part of the application process for being allowed to home educate.[58]The Government takes pains to avoid using the word "home", but the consultation paperwork refers to "the place where the child is being home educated"[59] which is hard to interpret otherwise than as "the home." Grounds for refusing or withdrawing permission to home educate will include "welfare or safeguarding issues that affect the suitability and effectiveness of the education provided" [60] Fears have been expressed that the home could be deemed to be too cramped, too tidy, too messy, too isolated, have too many pets, be too urban with no outside play space, or too rural in a remote area. The age of the parent could also become a "welfare issue" with the parent being judged too old or too young.

"Welfare issues" should perhaps come with a trigger warning since some members of the children's workforce see home education in and of itself as a welfare issue. "Welfare issues" could include socialisation; objection to home education from the non-resident parent as part of ongoing access/maintenance dispute; neighbours reporting children for playing outside during "school hours"; council staff objecting to the child's education being shaped by religious precepts; the parent having previously suffered from depression; a preference for alternative medicine; not being registered with GP or the GP not having seen the child within a particular timeframe; the family being seen as "too large"; an only child being seen as lonely or enmeshed. Where the parent has a disability, the authority may arbitrarily decide that the child is home educated in order to be a carer.

Mandatory interview with child + Government definition of "suitable education"

Registration can be refused or revoked where the parent fails to satisfy the LA that education is "suitable" [61]. "Suitable education" is to be defined by central government in new statutory guidance [62] Parents have expressed concern about the mandatory interview with the child [63]; the requirement for child to demonstrate language skills [64]; and for the child to show samples of work demonstrating progress [65] as precondition of being allowed to continue in home education.[66] Not all children are able or willing to show work or to talk about themselves, and this will be particularly stressful knowing that not saying enough or saying the wrong thing will cause home education to be disallowed.

Sex Education

Concerns have been raised over the requirement for home education to "prepare [children] for the responsibilities of adulthood" [67] interpreted as meaning that the parent has to teach children about sex and contraception by a particular age. Some parents who are home educating because of particular religious or philosophical convictions would find themselves unable to comply and would not wish their children to be asked about sex education during the mandatory interview.

Autonomous Education

Home educators who follow autonomous or self-directed learning will have problems with the new definition of "suitable education" which would prohibit spending too long on one activity, as "no one aspect of learning is emphasised to the exclusion of others."[68]

Special Educational Needs

Where a home educated child has special needs, the Government wants the local authority to establish the suitability of education provision in conjunction with a qualified and appropriate expert in the relevant field.[69] Since the expert assessment will be a determining factor in whether the child is allowed to be home educated, the likelihood of legal challenge would seem to be relatively high.

The Welsh Government is currently reviewing legislation on SEN, and special needs is to be re-categorised as "Additional Needs."[70] SEN statements are to be replaced with new integrated Individual Development Plans. School phobics and school refusers are to be designated as having Additional Needs [71] requiring Individual Development Plans to be reviewed every 6 months by a multi-agency team.[72] This may have a considerable impact on home educating families, since school phobics and school refusers are not defined and could be interpreted by some authorities to include children who are taken out of school for home education.

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