Minister's Letter to Graham Stuart 2013

From Edward Timpson, Parliamentary Under Secretary of State for Children and Families
To Graham Stuart MP

19 June 2013

Thank you for your letter of 20 May, addressed to the Secretary of State, about the changes to special educational needs (SEN) legislation in the Children and Families bill. I am replying as the minister responsible for the bill.

It was good to discuss the issue of home education with you at the report stage. I would like to reassure you that the bill would not restrict home education or increase the scrutiny expected of local authorities. The provisions in clause 22 and 23 of the bill are designed to ensure that a local authority responds where a child or young person's SEN are brought to its attention. Parents' option to home educate would remain. Clause 42, in fact, acts to preserve the option to home educate where a pupil has an Education Health and Care Plan (EHCP), when, by definition, a child's SEN will have been brought to the attention of the authority. lt would do this by relieving the authority of its duty to provide where a parent chooses to home educate, although the local authority's responsibilities in respect of satisfying itself that provision is suitable would continue to apply. Clause 56 is intended to allow education for pupils with SEN to take place outside schools, while providing some protection to parents who want their child to remain in school.

Under current arrangements, and when provisions in the bill are enacted, subject to the will of Parliament, local authorities can provide support to parents of children with statements who are being home educated to help them meet the child's SEN. The department wrote to authorities about this, explaining that they are expected to consider whether their power to make special educational provision other than in school, including in the home environment, could be used to support parents when they are considering the suitability of provision being made by parents at home for children with SEN. Where an authority draws up a statement, or in future, an EHCP, which "names" home education as the right provision for the child, then it must make any additional special educational provision set out in part 3 of the statement.

During debate at the bill's report stage, we spoke about the position where parents take a child with a statement, or in future an EHCP, to home educate and the local authority's duty to assure itself that the provision the parents are making is suitable. I promised to write setting out the position.

I think at report stage we may have been talking at cross purposes. I entirely accept the point I think you were making that under section 7 of the Education Act 1996 there is no duty on local authorities to assure themselves that the provision being made by parents for home educated children is suitable. Under part IV of that act, however, there are duties on local authorities to assess a child's SEN, draw up a statement and arrange provision which meets the child's SEN and, where alternative provision is being made by the parent, to assure themselves that that provision is suitable. There are parallel arrangements in the bill.

Under clause 42 of the bill, as under section 324 of the Education Act 1996, the local authority has to secure the special educational provision in the EHCP, unless the child's parent or the young person has made suitable alternative arrangements. The local authority would have to assure itself that the parents are making suitable arrangements before its duty to arrange the special educational provision at the school named on the EHCP/statement was discharged. ln order to assure itself that the parental provision was suitable in accordance with clause 42(5), the local authority would not necessarily have to see the provision being made in the home any more than it currently does under section 324(5. lt has no right of access to the home anyway, but may be able to judge suitability through descriptions by the parents of what they are providing or through examples of the child's work. lf the authority is assured the provision is suitable, then it is relieved of its duty to make the special educational provision set out in the statement. It, however, remains under a duty to review the statement annually and should continue to be satisfied that suitable alternative arrangements are being maintained.

This is consistent with section 7 of the Education Act 1996, which says that the parents of children of compulsory school age shall cause them to receive efficient full time education which, among other things, is suitable to their SEN. Section 7 will continue to apply following royal assent for the bill. Local authorities would continue to have the power to arrange special educational provision to support parents in making suitable provision and, as I said during the report debate, I would strongly encourage local authorities to consider using this power when deciding whether parental provision is suitable. This power would be given by clause 56 of the bill. The parents of home educated children would also benefit, along with other parents, from the new duty on clinical commissioning groups to arrange the health provision set out in EHCPS.

Edward Timpson
Parliamentary Under Secretary of State for Children and Families