Guidance

The current version of home education guidance for local authorities was published in April 2019. The emphasis is on ensuring LAs are fully aware of existing powers and duties. The Home Education Guidance does not introduce any new powers or duties for local authorities to monitor the suitability of home education nor any new definition of “suitable education”. The guidance is non-statutory. The government put forward some possible changes to the guidance at the end of 2023 but at the time of writing in January 2024 the proposed new version is still being decided and is not ready to be used.

This page covers what the current [2019] guidance says about School Attendance Orders; Children Missing Education; De-schooling; Suitable Education; Literacy and Numeracy; Progress; Annual Contact; Monitoring; Home Visits; Safeguarding Powers; and Special Educational Needs.

School Attendance Orders

An obvious power for local authorities is the power to issue School Attendance Orders so it is important to understand what this means in practice. I have more details on my SAO page about all the steps in the process, but the main point is that getting a School Attendance Order doesn’t mean the child “becomes registered” at a school. The Order TELLS the parent to register but the parent does not have to comply. More about who can register a pupil here. (The other point is that LAs may rely on the threat of a School Attendance Order without intending to carry it through.)

Children Missing Education

Local authorities have a duty to make arrangements to identify children outside school who aren’t receiving education. This is known as the Children Missing Education duty or CME. It may also be referred to the section 436A duty since it appears as s436A of the Education Act 1996.

In section 436A suitable education is defined as suitable to age ability aptitude and special educational needs the same as in section 7. The government has issued statutory guidance on Children Missing Education. My CME page is here.

The Home Education Guidance signposts to the CME guidance. Paragraph 4.2 of the Home Education Guidance says “Until a local authority is satisfied that a home-educated child is receiving a suitable full-time education, then a child being educated at home is potentially in scope of this duty. The department’s children missing education statutory guidance for local authorities applies. However, this should not be taken as implying that it is the responsibility of parents under s.436A to ‘prove’ that education at home is suitable. A proportionate approach needs to be taken.”.

The CME Guidance advises local authorities to look at what is going on when a child is out of school since in some cases arrangements may not be in place for the child’s education and a school place will be required. Children Missing Education guidance says “There are many reasons why a child stops attending a school. It could be because the parent chooses to home educate their child. However, where the reason for a child who has stopped attending a school is not known the local authority should investigate the case and satisfy itself that the child is receiving suitable education.”

Deschooling

The guidance says there is no legal basis for not educating your child because you are deschooling. It doesn’t mean you have to have a timetable, or be using textbooks or worksheets, as you can see from paragraphs elsewhere about suitable education. Paragraph 6.2 of the guidance says “Families beginning home education sometimes state that they are entitled to a period during which the home education provided for the child may not meet the requirements in s.7 because they are still, as it were, building up the provision to a satisfactory level. Some parents may go further and describe this period as being necessary for ‘de- schooling’. There is no legal basis for such a position. Any statement along these lines could be an indication that the child is not being properly educated.”

The guidance says families should be aiming to offer satisfactory home education from the outset, “and to have made preparations with that aim in view” [6.3] which is not saying families must have a detailed plan or programme, rather that they should try and think ahead and not just dwell on past problems with school which risks giving the impression that the decision to home educate is purely reactive against school, widely seen as a “negative” reason where parents are reluctant and not really committed to home education.

Suitable Education

It should be noted that the law already defines “suitable education” as “suitable to age, ability, aptitude and any special educational needs” as contained in section 7 and section 436A. Chapter 9 of the guidance deals with “the section 7 requirements” and I recommend looking at Chapter 9 FIRST, rather than starting at the beginning.

Paragraph 9.4 of the Home Education Guidance is worth studying in some detail since it says “if a child’s ability is significantly above or below what might be regarded as ‘average’ then allowances must be made for that”. 9.4 goes on to say “although it may well be a good starting point in assessing suitability to assess whether the curriculum and teaching have produced attainment in line with the national norms for children of the same age, it must be borne in mind that the s.7 requirement is that the education is suitable to the child’s ability and aptitude … the home education may legitimately cater specifically for particular aptitudes which a child has, even if that means reducing other content.”

In terms of literacy and numeracy, paragraph 9.4.d says: “a local authority may specify requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable, whilst accepting that these must be applied in relation to the individual child’s ability and aptitudes.”

There is nothing about minimum standards of literacy and numeracy in the final version of the guidance for local authorities; in fact the word minimum does not appear at all. Minimum standards were prominent in the draft guidance put out to consultation, but were subsequently dropped.

The Guidance does not support LAs insisting on their own version of suitability. Paragraph 9.4.h says “local authorities should not set rigid criteria for suitability which have the effect of forcing parents to undertake education in particular ways, for example in terms of the pattern of a typical day, subjects to be followed and so on. Some parents may decide that a very formal approach is necessary; others may decide to make a more informal provision that is more appropriate to the particular child. Whatever the views of the parents, the key focus for the authority should be on suitability for the child in question.”

The government has consistently opted not to meddle with the legalities of “suitable education”. Paragraph 9.5 of the guidance says: “The department does not believe that it is in the interests of home educated children, parents or local authorities for there to be detailed centralised guidance on what constitutes suitability. This issue should be viewed on a spectrum, and although there will be clear conclusions to be drawn at either end of that spectrum, each case must rest on a balance of relevant factors depending on the circumstances of each child.”

Unsuitable Education

Chapter 6 of the guidance advises LAs what to do when education appears to be unsuitable, ie not suitable to the individual child’s age ability aptitude and any special needs as per the previous section on suitable education, and not requiring parents to prove that education is suitable as per the section above on Children Missing Education.

Paragraph 6.5 of the Guidance says “The most obvious course of action [if education appears to be unsuitable] is to ask parents for detailed information about the education they are providing. Parents are under no duty to respond to such enquiries, but if a parent does not respond, or responds without providing any information about the child’s education, then it will normally be justifiable for the authority to conclude that the child does not appear to be receiving suitable education.”

This means that ABSENCE of information can justify serving a formal notice under section 437(1). It is not envisaged that this PRELIMINARY notice will automatically lead to a School Attendance Order, and again it is worth reminding yourself of all the steps in the SAO process. Paragraph 6.8 of the Guidance goes on to say “If informal contacts do not resolve the position, then the 1996 Act provides a framework for formal action to ensure that a child does receive suitable education”

Previous Guidelines suggested local authorities should explain to parents exactly what was wrong with the provision first – meaning LAs believed they had to collect evidence of failure – so this is a big change in the new guidance. (See also Portsmouth Judicial Review )

Education Actually Being Provided

The Guidance makes several references to parents giving information about education actually being provided. Paragraph 6.12 of the Guidance says: “an authority should not dismiss information provided by parents simply because it is not in a particular form preferred by the authority (eg, a report by a qualified teacher). On the other hand the information provided by parents should demonstrate that the education actually being provided is suitable and address issues such as progression expected and (unless the home education has only just started) achieved. It should not be simply a statement of intent about what will be provided, or a description of the pedagogical approach taken – this would not enable the authority to reach a legitimate conclusion that a suitable education is actually being provided. This is often a key point in separating out families which are genuinely providing a suitable education at home from those who are not, because the latter often cannot demonstrate satisfactory content or measurement of progress.”

In other words it wouldn’t be sensible for parents to supply a statement of their beliefs without any explanation of how it is suitable for the child’s age, ability, aptitude and special needs, and how it is enabling the child to make progress. NB However small or insignificant the progress may appear to an outsider it may still be a significant milestone for the individual child.

Home Visits

Paragraph 6.6 says “Informal enquiries can include a request to see the child, either in the home or in another location. But the parent is under no legal obligation to agree to this simply in order to satisfy the local authority as to the suitability of home education, although a refusal to allow a visit can in some circumstances justify service of a notice under s.437(1) In other words there will have to be particular circumstances which the LA can justify issuing a notice to satisfy.

Annual Contact

Paragraph 5.4 addresses the topic of annual contact and says “the department recommends that each local authority … ordinarily makes contact with home educated parents on at least an annual basis so the authority may reasonably inform itself of the current suitability of the education provided. In cases where there were no previous concerns about the education provided and no reason to think that has changed because the parents are continuing to do a good job, such contact would often be very brief.”

The Home Education Guidance is about the LA taking prompt action when necessary rather than encouraging the LA to go back year after year on the pretext of never having been entirely satisfied in the past. This is where it is important to understand the law behind the guidance.

The phrase about routine monitoring no longer appears in the 2019 guidance but was nevertheless affirmed in this written parliamentary answer on May 10th 2019 “Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis.”

Using Safeguarding Powers

Chapter 7 of the Guidance reminds LAs of their safeguarding duties and powers. If someone believes a child is at risk of significant harm, they should make a referral to the children’s social care team (social services) who may want to speak to the family. The case may be closed or it may go on to a formal assessment to decide whether the child is at risk which in turn could end with an Initial Child Protection conference or ICPC to decide on next steps which could include a Child Protection Plan.

The threshold for a safeguarding investigation can be found in section 47 of the Children Act 1989 ie where a child “is suffering, or is likely to suffer, significant harm”

Paragraph 7.6 of the home education guidance says “Whether the provision of unsuitable education does amount to significant harm must always depend on the particular circumstances of the child, and whether those circumstances mean that the child’s intellectual and social development are being, or are likely to be, significantly impaired … Although some cases will be relatively clear-cut (for example if a child was being provided with no education at all for months), in other cases a local authority may need expert advice from teachers or educational psychologists, preferably those with some familiarity with educational approaches which are wider than conventional schooling.”

The part about needing advice from those familiar with less conventional approaches is new in the final version and did not appear in the draft.

Special Educational Needs

For direct quotes from the SEN chapter of the guidance, see my page on introduction to special needs. I have summarised the main points below. My page on home educating with an EHCP is here

  • Parents have a right to educate their child at home irrespective of whether the child has an EHCP. [8.1] More
  • If parents take their child out of school they are deemed to have opted out and the LA has no duty to arrange provision [8.2] More
  • Local authority consent is required for deregistering child from special school “but this should not be a lengthy or complex process and consent must not be withheld unreasonably” [8.6] More
  • The LA does not have a right to enter the home to check on educational provision [8.7]
  • Parents do not have to make the same provision as a school [8.9] More
  • The annual review is not a judgment on whether home education is allowed to continue; the process for dealing with concerns about parents’ provision is the same as above when education appears to be unsuitable. [8.9] More on Annual Reviews
  • The EHCP naming a school does not mean the child automatically becomes a registered pupil – “It is not lawful for a school to do this, and local authorities should ensure that both schools and their own staff know that.” [8.10] More See also here

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