At the end of May 2026 the Department for Education [DfE] released copies of emails between Portsmouth LA and DfE regarding elective home education in response to a Freedom of Information request.
Messages start mid way through a conversation in February 2023 and continue to February 2026. The first email from DfE appears to be continuing a discussion from the previous year.
The government repeatedly expresses to Portsmouth that LA oversight should be proportionate and it expresses concerns that Portsmouth is exceeding its functions under Section 496 Education Act 1996
DfE writes “Education should not be deemed unsuitable purely because examples of work have not been provided” and “A lack of samples of work, however, should not in and of itself necessarily be cause to commence formal enquiries or proceed to issuing a SAO” also “During the informal enquiries stage, local authorities should be considering whether education ‘appears to be suitable’. lt is not necessary at this stage for parents to have to ‘demonstrate’ that suitable education is taking place.”
From: DfE Official
Sent: 27 February 2023 14:12
To: Portsmouth LA official
Cc: DfE Official ; DfE Official
Subject: Portsmouth CC correspondence to EHE families
[Out of scope]
You may also wish to consider clarifying when parents do not have an obligation to respond to the requests made of them, although in most cases it certainly would make the local authority’s job easier when assessing whether education is suitable. For instance, education should not be deemed unsuitable purely because examples of work have not been provided.
If you would like to discuss any of this further please do not hesitate to get in touch.
All the best,
DfE Official
Department for Education Elective Home Education | Non-school education, activities, and integration unit Pupil Wellbeing and Safety
SECTION 40
From DfE Official
Sent: 10 July 2023 12:31
To:Portsmouth LA Official; Portsmouth LA Official
Cc: DfE Official; HOMEEDUCATION, Elective Elective.HOMEEDUCATION@education.gov.uk
Subject: Elective home education [SECTION 40 Portsmouth City Council
Dear []
I hope you are well.
Further to previous correspondence from us, in February, regarding I am writing to you today regarding SECTION 40 PCC’s assistance with this. I have enclosed a letter setting out the nature of SECTION 40 more detail. which includes a summary of the core themes identified in SECTION 40 We have also posed some questions for yourselves on each of the core themes identified, so we may better understand PCC’s position on these. If possible, we would be grateful for a response on these within the next two weeks, so that we may try and resolve these matters promptly and SECTION 40 accordingly. However, please do let us know if there are any issues with this timeframe.
We look forward to hearing from you.
Kind regards, DfE Official
Department for Education
Department for Education
Sanctuary Buildings
Great Smith Street
London SW1P 3BT
Tel: 0370 0002288 To: Portsmouth LA official; Portsmouth LA official; Portsmouth City Council
10 July 2023
Dear []
Further to previous correspondence from the Department on 27 February 2023, in which we SECTION 40 I am writing again to make you aware of SECTION 40 we have received. SECTION 40 how PCC and its staff have carried out their duties to establish whether a home-educating child is receiving a suitable education. SECTION 40
The Secretary of State has powers under section 496 of the Education Act 1996 (the Act) to investigate and, if appropriate, make directions where a local authority (LA) is acting unreasonably in relation to their powers and duties under the Act – including those set out in sections 436A to 443. At this stage, we want to ascertain PCC’s position in relation to SECTION 40 before we consider whether there are grounds for making a direction.
The following paragraphs set out a summary of the core themes of SECTION 40 we have received. The Annex to this letter contains SECTION 40 SECTION 40
There is no explicit requirement in legislation or guidance for LAs to provide home educators with detailed reasons as to why education appears to be unsuitable or what evidence could help satisfy the LA that suitable education is being received. SECTION 40 The case of R v Gwent County Council ex parte Perry (1985) says that when a section 437(1) notice has been served and a LA are unsatisfied on some specific point that may not be apparent to the parent, there can be a duty on the LA to give some indication of what that point is.
We would be grateful if you could explain how you work with home educators in Portsmouth to enable them to demonstrate their children are receiving a suitable education, particularly in cases where a section 437(1) notice has been issued SECTION 40 How does your approach work in line with the findings of the Perry case?
A LA may request different types of evidence to help demonstrate that an education provision is suitable, including work samples. The Elective Home Education guidance for LAs makes clear that providing such information or access is an effective way of demonstrating suitable education.
However, parents have no legal obligation to agree to those requests and may decline for whatever reason they wish. In declining a request, parents should be aware that this may leave their LA with insufficient evidence to be satisfied that a suitable education is being provided and lead them to take the necessary legal steps. A lack of samples of work, however, should not in and of itself necessarily be cause to commence formal enquiries or proceed to issuing a SAO.
LAs and parents should be open to receiving and providing other means of evidence to demonstrate that the education is suitable, especially if the education approach being used does not necessarily lend itself to examples of work being supplied (e.g. unschooling pedagogy).
Could you please set out your requirements concerning the information requested from home educating parents in Portsmouth, and what reliance PCC places on physical examples of a child’s work as evidence of a suitable education taking place? If PCC are insisting to see samples of child’s work, is this prior to a 437(1) notice or after? Are physical examples of work the only way PCC will be satisfied education is suitable?
[Out of scope]
[Out of scope]
From Portsmouth LA official
Sent: Thursday, July 27, 2023 8:34 AM
To DfE official
cc DfE official; HOME EDUCATION. Elective Elective.HOMEEDUCATION@education.gov.uk; Portsmouth LA official, Portsmouth Cllr; Portsmouth LA official
Subject: RE: Elective home education SECTION 40 Portsmouth City Council
Importance: High
Hi
Further to recent correspondence and our letter dated 10th July, a formal response to the SECTION 40, are set out below.
It is important to note that most parents in Portsmouth who electively home educate their children have regular engagement and a positive relationship with the council, which in turns allows for the council to determine suitability quickly and with minimal intrusion. SECTION 40 [section 36]
The council fully respects the right of any parent to educate their child(ren) at home and we remain open, impartial and flexible when it comes to determining if the education is suitable. There is no strategy to actively undermine or discourage elective home education. The council adheres to the guidance issued to local authorities in April 2019. As you are aware our policy was recently subject to a Judicial Review which found the council to have acted appropriately.
As is the case with other Local Authorities, Portsmouth City Council has a two- stage approach which begins with informal enquiries and then moves to a more formal approach if those enquiries do not provide the evidence needed to demonstrate that suitable education is taking place.
Indeed, for those parents who wish or are considering to de-register their child from a school and move to elective home education, we go one stage further as per our agreed protocol with schools, by arranging a three-way meeting between the school, parents and the council. The parents have every right to decline this meeting, but we strongly encourage them to attend and as part of our protocol we require all schools to offer the meeting before de-registration can go ahead. This meeting provides an opportunity to resolve any issues that the parents might have with the school and /or talk about the expectations of the relationship between the LA and the parent. In many cases this has led to the child remaining on the roll. If the parent is keen to electively home educate, the council writes to them to enquire how they wish to engage with the council in order to determine suitability of education. This can be either a home visit, a Teams meeting, a meeting at a neutral venue and / or a written report. Guidance is attached to the letter that is sent to parents.
Once the parent has responded the council will continue with informal enquiries until such time we are satisfied that the education provided is suitable. Parents will be asked to provide sufficient information and evidence to demonstrate suitability. lt is not prescriptive, and the council provides examples of how that might be achieved. If that is not achieved, we continue to ask a wide range of informal questions to ascertain if the provision is suitable.
If the parent fails to provide sufficient evidence, then they are informed that the council has been unable to ascertain suitability.
Where a s.437(1) notice has been served the council continues to engage with all parents providing them with many options to engage so that suitability can be assessed. If the parent fails to answer our enquires, then we have little choice but to continue with the formal process.The council is very confident that our approach is not in contravention of current legislation or the Perry case.
[Out of scope]
From DfE Official [undated but presumably in covering email to August 2023 letter below]
Hi []
[Out of scope]
I also wanted to draw your attention to some observations we’ve made in our letter regarding the sections 436A and 437 process, for assessing whether a suitable education is being received. We would be grateful if you could give some consideration to these, and would welcome your response on these points SECTION 40 SECTION 40 [Out of scope]
Many thanks again, and kind regards,
DfE Official
DfE Official
DfE Official
Department for Education
Sanctuary Buildings
Great Smith Street
London SW1P 3BT
Tel: 0370 0002288
www.gov.uk/contact-dfe
Portsmouth LA official
Portsmouth City Council
14 August 2023
Dear []
Thank you for your response to our letter of 10 July 2023,
We believe that the details you have provided allow us to better understand how things operate in Portsmouth City Council (PCC). [Out of scope]
Thank you as well for outlining the two-stage approach PCC follows in its contact with EHE families, to assess whether suitable education is being received. As you know, sections 436A and 437 provide for informal enquiries followed by a formal process, where it does not appear education is suitable. However, from your description of PCC’s approach, I do have some reservations that PCC has been applying elements of the formal process at the informal enquiries stage. SECTION 40
I think it would be helpful for me to explain where we believe the distinctions between each stage lie.
During the informal enquiries stage, local authorities should be considering whether education ‘appears to be suitable’. lt is not necessary at this stage for parents to have to ‘demonstrate’ that suitable education is taking place. Local authorities need only, through whichever communication methods are deemed appropriate and agreed with the parents during their introductory conversations, decide on the information provided whether education appears to be suitable. If it does appear to be suitable, there is no need to proceed to formal enquiries. If the education does not appear to be suitable, section 437(1) requires the local authorities to issue a notice to satisfy to the parents. This must occur in place of ongoing informal enquiries, and it is at this stage that parents must provide the evidence to demonstrate that their child is receiving suitable education. If the local authority is not satisfied by the evidence provided, or no evidence is provided at all, then it must proceed to issuing a school attendance order or explore other options where it would not be expedient for the child to attend school. In summary, local authorities should require less information at the informal enquiries stage as they are looking for the appearance of suitable education, not a fully evidenced demonstration of it in order to be satisfied. [Out of scope]
Yours sincerely,
DfE Official
DfE Official
From: Portsmouth LA official
Sent: Tuesday, August 15, 2023 2:55 PM
To: DfE Official; Portsmouth LA official
Cc: DfE Official >; HOMEEDUCATION, Elective Elective.HOMEEDUCATION@education.gov.uk; Portsmouth LA official ; Portsmouth LA official Portsmouth Cllr
Subject: RE: Elective home education SECTION 40 Portsmouth City Council
Hi []
Thanks for your response.
I confess I am somewhat confused by your reference to ‘appears’ and how Local Authorities are expected to make an informed decision about whether the education ‘appears’ to be suitable if there is not some form of demonstration.
I refer to the Department’s EHE guidance, paragraphs 3.1 and 3.5, i.e. https://web.archive.org/web/20230531170319/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/791527/Elective_home_education_gudiance_for_LAv2.0.pdf
“3.1 If a local authority is aware that a child of compulsory school age is not attending a state or registered independent school full-time, and it is unclear how that child’s education is being provided, a local authority should consider the possibility that the child is being educated at home by its parents (possibly in combination with part-time attendance at another setting). In such a case, the local authority’s task is to find out how he or she is being educated and whether that education satisfies legal requirements.
3.5 The current legal framework is not a system for regulating home education per se or forcing parents to educate their children in any particular way. Instead, it is a system for identifying and dealing with children who, for any reason and in any circumstances, are not receiving an efficient suitable full-time education. If a child is not attending school fulltime, the law does not assume that child is not being suitably educated. It does require the local authority to enquire what education is being provided and local authorities have these responsibilities for all children of compulsory school age. Local authorities should ensure that their enquiries are timely and effective. Depending on the results of those enquiries, the law may require further action by the local authority and the department believes that this is the case for an increasing number of children. Local authorities must take such action where it is required, within the constraints of the law.“
How do you determine whether that education satisfies legal requirements and / or if further action is necessary without seeking some form of demonstration / evidence? I think we have got the balance right in Portsmouth and the recent Judicial Review reinforced this, backed may I say by the Department. [Out of scope]
Kind regards
Portsmouth LA
Portsmouth LA official
[Out of scope]
[Out of scope]
THE HON. MR JUSTICE LANE JR judgement [NB the highlights below appeared in original from Portsmouth CC]
74 The claimant’s ground 1 hinges on the submission that the defendant is wrongly imposing a burden on parents, prior to service on an NTS notice (notice to serve School attendance order).
75 I reject that submission. There is nothing remotely problematic in the defendant approaching a home- schooling parent, as it did in the present case, to request evidence that, if satisfactory, would enable the defendant to discharge its duty under section 436A, without the need to serve an NTS notice.
76 I agree with Mr Greatorex that Mr Wolfe’s construction of the legislation represents an over-complication of a process that is intended to be (at least at this stage) relatively informal. It is not in the interests of parents or of the local authority (discharging its public interest duty) to construe the legislation in such a way that the local authority becomes satisfied of relevant matters only after an NTS has being served. Although the language of burden of proof is perhaps not helpful at this stage, it is plain that a parent who receives an informal inquiry at this stage needs to respond to it in a meaningful way, if he or she is to avoid the necessity of responding to an NTS.
78 The Secretary of State’s Elective Home Education guidance, at paragraph 6.4, advises that, where the position regarding the suitability of education is not clear, the authority should “initially attempt to resolve these doubts though informal contact and enquiries”. The guidance explains that the “authority’s s.436A duty (and that under s.437…) forms sufficient basis for informal inquiries”. These are the informal inquiries mentioned in the first box of the flow chart (see paragraph 18 above). I agree with the guidance that either or both of these sections contain the necessary legislative underpinning for the defendant’s approach, as set out in the correspondence. I also agree with the guidance that “Furthermore, s.436A creates a duty to adopt a system for making such enquiries”.Thus, the defendant’s system of initial inquiries is not only permitted by the statutory scheme; it is positively demanded.
[Out of scope]
[Out of scope]
From: DfE Official
Sent: O2 October 2023 12:39
To Portsmouth LA official; Portsmouth LA official
Cc: HOME EDUCATION, Elective Elective.HOMEEDUCATION@education.gov.uk; Portsmouth Cllr; Portsmouth Cllr; Portsmouth LA official ; Portsmouth LA official
Subject: RE: Elective home education Section
Council
Dear [] and []
Thank you both for your time on Wednesday 20 September to talk following our written correspondence regarding Portsmouth City Council’s (PCC) elective home education (EHE) practice, and the local authority legal requirements related to EHE.
[Out of scope]
Action: PCC to share with the Department the reviewed intro letter for information.
You asked for clarity on the difference between judging appearances of suitable education versus demonstration / being satisfied, which we provided but further explanation is offered below:
- A local authority is only required to commence more formal proceedings, in the form of a preliminary notice (s.437(1) of the Education Act 1996), should a child appear not to be receiving suitable education. Where the child appears to be receiving suitable education, the Department would expect local authorities to engage with parents through informal enquiries. Such enquiries may be sufficient for the local authority to come to a view. An authority’s duties under s.436A and 437 of the 1996 Act form sufficient basis for informal enquiries, and s.436A creates a duty to adopt a system for making such enquiries. The focus of these enquiries is to establish whether the child appears to be receiving suitable education, and there is not a requirement to satisfy a local authority that education is suitable at this stage. The need to satisfy the local authority is only required once a preliminary notice has been issued and a school attendance order would be issued if a local authority was not satisfied.
- Whilst information requested from parents does not need to be as extensive as what would be required in response to a preliminary notice, local authorities should be asking home educating parents for information that demonstrates to the local authority the child is receiving education that is full-time, efficient, and suitable. A parent being able to demonstrate what education is taking place is usually the easiest way to establish whether suitable education is being received. This could include engagement with the child or seeing examples of work. As part of a local authority’s ongoing engagement with parents to ensure education remains suitable, local authorities may wish to advise parents what would be useful to be shared at the next informal engagement to aid their ongoing judgement of suitability.
- What is considered informal enquiries can be varied and will be subject to individual circumstances. For instance, it could be a simple phone conversation outlining progress of learning or it could include a request to see the child, either in the home or in another location. The Department is of the view that seeing the child can be an effective means to judge whether it appears that the child is not receiving suitable education. The parent is under no legal obligation to agree to this simply to inform the local authority’s judgement as to the suitability of EHE. However, seeing the child in their educational setting can be very valuable as part of considering whether it appears that the child is not receiving suitable education. The approach to informal enquiries should be proportionate to the level of doubt about whether the child is receiving efficient suitable full-time education.
Whilst you still felt the difference between appearance and being satisfied was not clear, you felt that PCC was doing what was set out in guidance and relevant legislation: informal enquiries to see if education appears unsuitable and if it doesn’t, or PCC has no information to reach a conclusion, then a preliminary notice is issued. You assured us that the informal process is light-touch and suitable education is not seen solely through the school-at-home lens.
You raised that you may bring some of what was discussed to a future meeting with PHEG. We would be happy to provide content for that, should it be required.
Action: PCC to let the Department know should further information be required for sharing with PHEG.
SECTION 40
Kind regards,
DfE Official
DfE Official
Department for Education Elective Home Education | Non-school education, activities, and integration unit Pupil Wellbeing and Safety
Mobile: DfE official
Department for Education
Sanctuary Buildings
Department
for Education
Great Smith Street
London SW1 P 3BT
Tel: 0370 000 2288
Email enquiry form: www.qov.uklcontact-dfe
Date: 24 July 2025
FAO Portsmouth LA official
Portsmouth city Council
cc Portsmouth LA official
Dear []
Information requested under s 496 Education Act 1996
The Secretary of State for Education SECTION 40 Portsmouth City Council have acted unreasonably with respect to its duties imposed by sections 436A and 437 of the Education Act 1996. Namely the local authority’s duties related to identifying children not receiving a suitable education. The Secretary of State may give directions under s 496 of the Education Act for the exercise of the power or performance of the duty as she thinks expedient.
In the first instance, on behalf of the Secretary of State I am requesting further information from yourselves in order to satisfy whether there is a case that Portsmouth city Council has acted unreasonably. I will be leading for this stage of our considerations, on behalf of the Secretary of State, and am keen to ensure that I gain a clear understanding of each case. SECTION 40 SECTION 40 have carefully considered all information provided to me thus far, with due regard to the legal context and non-statutory Elective Home Education guidance (2019) which has been issued by the Department. I am also aware of Portsmouth City Council’s previous correspondence with my colleague SECTION 40 DfE Official in 2023 SECTION 40
As stated above, I require further information in order for the Secretary of State to be satisfied under section 496 of the Education Act. I have set out overleaf some initial specific areas of enquiry SECTION 40
I would be grateful if you could provide me with your initial response by 3 September 2025, or advise if you expect additional time will be needed to complete your initial response.
Yours sincerely,
DfE Official
DfE Official
Attached:
SECTION 40
From: Portsmouth LA official
Sent: 30 July 2025 18:01
To: DfE Official
Cc: Portsmouth LA official
Portsmouth LA official
Subject: RE: Information requested under Section 496 Education Act 1996
Dear DfE Official
Thank you for your letter dated 24 th July 2025 regarding SECTION 40 under Section 496 Education Act 1996
I would like to begin by revisiting the context of previous correspondence and legal proceedings, particularly the judicial review in PCC vs Goodred. At the time of that case, Portsmouth City Council was operating an identical policy to the one currently in place, and the outcome was firmly in favour of Portsmouth City Council. The judgement supported the Council’s interpretation and application of its duties under sections 436A and 437 of the Education Act. Given the Department for Education’s involvement and support during that process, I trust you will have access to the full judgement and associated documentation.
DfE Official
The debate at the time SECTION 40 DfE Official centred on the practical application of the word “appear” in section 437. The Council’s position has consistently been that “appear” must be interpreted in a way that allows for a professional judgement based on the evidence, in any form provided, particularly where there are gaps or inconsistencies. This interpretation was upheld in court and remains the foundation of our approach.
Since the judicial review, our policy and practice have undergone further scrutiny, including through Portsmouth City Council’s Education, Children and Young People Scrutiny Panel, which published its findings in July 2025. The panel concluded: “Portsmouth City Council has a very robust system in place to ensure children are receiving an appropriate education and has their best interests at heart. This is recognised by other authorities and academy trusts across both the region and nationally.”
The report also noted that Portsmouth’s approach would place it in a strong position should the proposed Children’s Wellbeing and Schools Bill come into effect, and that: “The vast majority of parents who EHE are doing so effectively and efficiently.”
This external scrutiny complements a recent internal audit, which concluded that Portsmouth has a clear and consistently applied policy in relation to Elective Home Education.
We will provide a detailed response to each of the twelve points raised in your letter SECTION 40 and provide an update on the mediation process and website correction (which has already happened).
We will, of course, aim to provide all of the information requested in your letter by the deadline of 3rd September 2025. If additional time is required to collate supporting documentation, we will advise accordingly.
SECTION 40
We look forward to continuing to work with the Department to ensure our approach remains lawful, proportionate and in the best interests of children.
Kind regards,
Portsmouth LA
Portsmouth LA official Portsmouth LA official
Portsmouth City Council, Civic Office, Guildhall Square, Portsmouth, PO1 2EA
From: Portsmouth LA official
Sent: 27 August 2025 18:15
To: DfE Official
Subject: RE: Information requested under Section 496 Education Act 1996
Dear DfE official
Further to my email of 30 July 2025, please find our responses to the specific questions that you have raised
SECTION 40 SECTION 40 SECTION 40 SECTION 40
[Out of scope]
From Portsmouth LA official
Sent 11 February 2026: 14.17
To: DfE Official
cc DfE Official; Portsmouth LA official
Official sensitive
EMAIL SENT ON BEHALF OF Portsmouth LA official Portsmouth LA official
Dear DfE Official
Re: Further Information Requested Under Section 496 Education Act 1996
Thank you for your letter of 23 January 2026 requesting additional clarification in
relation to our earlier responses given in August concerning elective home education
and related processes. Please find below Portsmouth City Council’s formal response to
Questions 1-3.
SECTION 40 SECTION 40 SECTION 40 SECTION 40
Background
The person making the Freedom of Information [FOI] request used the What Do They Know website. The FOI asked for correspondence related to School Attendance Orders dating back to 2023 and the page link is HERE.
FOIs are covered by the Freedom of Information Act 2000. The scope of FOIs has to be limited by eg dates or subject matter otherwise the request may exceed cost limits as explained by the Information Commissioner’s Office [ICO] Personal information must also be redacted, hence the SECTION 40 references.