Ian Dowty Hesfes Legal Talk

Ian Dowty is a former home educating parent and criminal barrister. Sections 437443 of the Education Act 1996 deal with investigation and -ultimately – enforcement ie School Attendance Orders which is where a criminal law background is helpful. [My page on SAOs is here]

Criminal law is a different branch of law from family law. Where there is a disagreement between parents such as when one parent tries to prevent the other from home educating this would ultimately be dealt with in the family court.

An Act of Parliament creates a new law or changes an existing law. There is also secondary or delegated legislation, plus statutory guidance and non-statutory guidance or advice. The home education guidance is non-statutory. [My page on the EHE guidance for local authorities is here and my page on home education law is here.]

The starting point is section 7 of the Education Act 1996 which states that:
“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.”

Ian analysed the legal meaning of each term: “parent”; “compulsory school age”; “efficient education”; “full time education”; “suitable education;” “age, ability aptitude and special needs”; and “otherwise.”

For enforcement purposes a “parent” is defined in the Education Act as “any person— (a) who is not a parent of his but who has parental responsibility for him, or (b)who has care of him.”.

“Compulsory school age” means the school term after the child’s 5th birthday up to the last Friday in June in the school year they turn 16. The raising of the participation age in England does not affect this which is why benefits for 16+ education are opt-in and not continued automatically. [My page on the school leaving age is here]

Efficient education is that which achieves what it sets out to achieve, which is why it matters what parents say about their aims and values. Any assessment of the parent’s provision must be informed by the parent’s own philosophy of education. It is accepted in law that parents may have diverse philosophical convictions when it comes to their children’s education. The Human Rights Act 1998 quotes Article 2 of the First Protocol to the European Convention on Human Rights declares that “the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

There is an important case in European Law, Campbell and Cosans, where “education in accordance with the parents’ philosophical convictions” has been defined as convictions being “akin to the term “beliefs” (in the French text: “convictions”)and denoting views that “attain a certain level of cogency, seriousness, cohesion and importance.”

“Full time” has no legal definition in relation to home education.

“Suitable” means “suitable to age ability aptitude and special educational needs” and there is no need to seek or create a further definition of suitable education. Government guidance is wrong to say that suitable education is not defined in law, since of course it IS defined as suitable to age ability aptitude and special educational needs. A view put forward by a judge in a lower court in Worcester in 1981 (the Harrisons) about systematic instruction is not binding “case law”.

In relation to autonomous education, Ian quoted the distinction made at Worcester Crown Court between the “transmissive” [didactic/teaching a body of knowledge] and the “autonomous method or self-directed study”. It wasn’t helpful to describe autonomous education as children just picking things up for themselves or parents doing nothing.

The section 7 duty is a balance between age ability aptitude and special needs. Home educated children do not have to match school-based, age-specific standards. Ian suggested that one way of looking at the distinction between ability and aptitude would be the following: With ability, we are talking of where a child is already. With aptitude, we are talking of a child’s scope for development in the future an innate talent in a particular area ie aptitude is about potential.

“Education otherwise” may mean education arranged for pupils unable to attend school OR elective home education provided by parents. It is vital to look at the context, and to be alert to clues that this is not elective home education, for example the word “pupil” in section 9 or reference to the authority’s “functions relating to the provision of education” in section 13A. Ian demonstrated the concept of ejusdem generis whereby if a law lists specific class of things and then refers to them in general, the general statements only apply to the same kind of things specifically listed. [My page on alternative provision and EOTAS is here]

Ian looked at the implications of “children missing education.” Section 436A (children missing education) was inserted before section 437 in 2006. Parents can be prosecuted for failing to comply with a School Attendance Order although this is rare. My page on SAOs is here. Ian urged everyone to familiarise themselves with the Government Home Education Guidelines (now Guidance) for local authorities. [My page on the EHE Guidance is here and my page on CME Guidance is here.]

There is no right to insist on email for deregistration. The Pupil Registration Regulations 2006 as amended refer to “written notification”. An email isn’t signed in the same way as a written letter, so if someone requires paper rather than email, there is no right to insist on email being accepted. [My page on taking a child out of school is here]

The Clock Analogy

Ian gave permission for the following to be quoted from Observations made in 2011.

Section 437(1) establishes that the LA must consider the adequacy of educational provision in two distinct stages, the first of which is a pre-condition for the second to come into operation.

Stage 1 – If it appears to local authority that a child is not receiving suitable education, then, but only then,

Stage 2 – the LA shall, by written notice, require a parent to satisfy them that the child is receiving such education.

Logically and legally the 2 stages must involve different considerations in view of the wording Parliament has chosen to use. In stage 1 the word “appears” is used and the “test” is phrased negatively. In stage 2 the LA makes a direct requirement that the home educator “satisfy” the LA that a suitable education is being received.

If Parliament had intended from the outset that the LA had the duty to seek, and a home educator had the obligation to provide, evidence capable of satisfying the LA, then there would have been no need for the 2 separate stages. If the LA were to be empowered to require evidence capable of satisfying it from the outset, the first stage would be redundant. If it is to be given any meaning, as it must, it must be a form of sifting test which only places on the LA the duty, and more importantly only empowers it, to take a general look at the provision being made to see whether further enquiry is necessary. It cannot authorise a requirement, when the LA first considers the educational provision, that the home educator produce evidence capable of satisfying the LA.

In effect the section establishes that not all parents should be required to satisfy the LA of the educational provision made, only those in respect of whom the LA considers “it appears” that a child “is not receiving suitable education” . This is why I say stage 1 is a “sifting process” and only those to whom the LA can say there is an appearance of no suitable education will have any obligation to produce evidence and to have to satisfy their LA.

An analogy might assist. If you look at a clock and it tells you roughly what you expect to be the time, you accept it even though you cannot be sure it is showing the right time, it has an appearance of not being wrong. If however, it shows a time that surprises you, then you would open up the back and have a closer look at the workings as it has an appearance of not keeping time correctly.

Thus it is not the right approach in law for the LA from the outset to write to parents requiring them to produce evidence capable of satisfying the LA that a suitable education is present. Indeed prosecutions in my experience founder because of such misconceptions.

As I have said, in my view, the first task of the LA in “assessing” any home ed provision is to find out from the parent what is their philosophy of education, what are their educational precepts and so to discover what their model of education is like. Provided that this is worthy of respect, it is this model and not the model of education that is preferred by the LA or its individual representatives that must be used in any “assessment”. An LA which does not carry this out risks difficulties in any future prosecution.”