The Portsmouth case [2021] was a judicial review brought by local home educators against Portsmouth council. Home educators in Portsmouth were seeking a ruling from a judge that certain actions of the council were not allowed in law.
In judicial review proceedings, the Court’s function is to determine whether the decision or conduct challenged was a lawful exercise of a public function, not to assess the merits of the decision or conduct under challenge. [SOURCE]
A judicial review looks at whether the actions of a public body were unlawful which is defined as inconsistent with the statutory framework and any government guidance in place.
Additionally a judicial review can look at whether a public body is in breach of its own policies or whether it treats every case in the same prescriptive way regardless of individual circumstances (sometimes called “fettering discretion”)
In a judicial review the person who seeks to change the decision of a public body is known as the claimant. Normally a claimant is an individual who has what is called “standing” in the matter ie is personally affected by the actions of the public body, in the Portsmouth case this was a local home educating parent. Meanwhile the public body who has made the decision is the defendant. This link explains more.
Other parties who may be affected by the outcome of the case may also be able to intervene, which is what happened in the Portsmouth case where the government’s elective home education guidance was under discussion so the Department for Education joined as an interested party.
The claimant has to supply a statement of grounds for bringing the claim, set out in numbered paragraphs. As explained here, the statement of grounds should identify each ground of challenge; identify the relevant provision or principle of law said to have been breached; and provide sufficient detail of the alleged breach to enable the parties and the court to identify the essential issues alleged to arise. Each ground should raise a distinct issue in relation to the decision under challenge.
For a claim to succeed the claimant must have at least one of the grounds of challenge not fail. By the time the case reached the final hearing the claimant in the Portsmouth case had four grounds which I set out below.
School Attendance Orders
By way of background, it is necessary to summarise the law in respect of School Attendance Orders, in particular what the Portsmouth judgment refers to as NTS or Notice to Satisfy orders. My page on School Attendance Orders can be found here.
A School Attendance Order requiring a parent to register a child at school is issued when the following two elements apply:
1/ the local authority is not satisfied by a parents’ response to a formal notice, and
2/ the local authority is of the opinion it is expedient the child should attend school.
The Notice to Satisfy is made under s 437 of the Education Act 1996 which states: “(1) If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education. (2) That period shall not be less than 15 days beginning with the day on which the notice is served.”
Government Home Education Guidance
Government guidance on elective home education states that where a child is not attending school full time “the law … does require the local authority to enquire what education is being provided.” My page on the EHE guidance is here.
The guidance goes on to say “There are no detailed legal requirements as to how such a system of oversight should work, and it is for each local authority to decide what it sees as necessary and proportionate” adding “The department’s advice is that in all cases where it is not clear as to whether home education is suitable (including situations where there is no information available at all), the authority should initially attempt to resolve those doubts through informal contact and enquiries.”
(NB “suitable” education means suitable to age ability aptitude and any special educational needs the child may have as per s 7 of the Education Act 1996.) My page on the EHE guidance is here.
What Were Parents Challenging
The Portsmouth case hinged on a disagreement over what was permissible during the “informal contact and enquiries” stage and when – and how – the transition from informal enquiries to a more formal procedure should be made.
Below are the claimant’s numbered grounds.
Ground 1 – Portsmouth Council has a policy of placing the burden of proof on parents from the outset (ie even where it has no concerns) and this is inconsistent with the statutory framework and with government guidance.
Ground 2 – Portsmouth Council’s policy and approach are that unless more than a report is provided by parents it will directly proceed to serve a Notice to Satisfy [NTS] order. In other words, the local authority requires information to be provided in a particular form and has adopted a rigid stance whereby it will reject reports provided by parents … [which] amounts to an unlawful fettering of the defendant’s discretion. This link has a short explanation about fettering of discretion in judicial review. The word “fetter” literally means something that is attached to the ankles or feet to restrict movement and is used metaphorically where a public body will have a blanket approach regardless of the merits or circumstances of individual cases.
Ground 3 – Portsmouth Council has a policy of serving a Notice to Satisfy Order [NTS] without ‘even identifying any specific concerns about the suitability of the education being provided … [which] amounts to an unlawful [my emphasis] failure … to act in accordance with its own published policy, as well as a breach of the requirements of basic procedural fairness’
Ground 4 – Portsmouth Council’s policy and approach means that it serves a Notice to Satisfy [NTS] order even when it has no concerns and when it is not even suggesting that suitable education is not being provided and this is inconsistent with the legal framework and statutory guidance.
Ground 1 failed because the judge said this was not inconsistent with the statutory framework or with government guidance and considered that that parents do need to respond to informal enquiries in a meaningful way to avoid the necessity of responding to a formal Notice to Satisfy.
Grounds 2 and 3 were dealt with together and both failed because the judge considered that the local authority did not reject the reports because they did not follow a particular form, it was more the case that the LA had further questions after reading the reports and the parent did not answer the follow-up questions to the LA’s satisfaction. “Despite the length of the claimant’s reports, they were wholly assertive in nature. They contained nothing by way of actual work produced by the children … there was no material showing the degree of comprehension … merely a series of statements from the claimants …”
Ground 4 failed because the judge found “that the defendant does not have a policy of issuing an NTS [Notice to Satisfy] in circumstances where it has no concerns.”
My Comments
Firstly and most importantly a judicial review is very limited in what it can decide.
Essentially it is looking at whether the actions of a public body were unlawful which is defined as inconsistent with the statutory framework and any government guidance in place.
Additionally a judicial review can look at whether a public body is in breach of its own policies or whether it treats every case in the same prescriptive way regardless of individual circumstances.
The judge found that the council’s actions were not inconsistent with law and guidance.
That doesn’t mean that other local authorities are obliged to copy Portsmouth; government guidance on elective home education says LAs have wide discretion; ”it is for each local authority to decide what it sees as necessary and proportionate”
My personal view is that there is very little benefit to LAs in requiring more and more information before they can reach a view because they just end up with a big backlog of cases where nobody really knows what is going on.
There is no reason for LAs to change their policies and procedures as a result of the Portsmouth JR which was about a policy choice on the part of this particular LA and nothing in the judgment or from the government to suggest that local authorities whose approach may differ from Portsmouth’s are somehow doing it wrong.
Neither is there anything in the judgment which indicates that the government guidance on home education is in any way defective or unclear or inconsistent with the statutory framework.
What I also take from this is that “concerns” need not be restricted to identifying and itemising specific shortcomings in the parents’ provision. NB the previous Elective Home Education Guidelines in operation from 2007 to 2019 did say “Parents should be given the opportunity to address any specific concerns that the authority has … A written report should be made … to the parents stating whether the authority has any concerns about the education provision and specifying what these are, to give the child’s parents an opportunity to address them.” However, it should be noted that there is nothing directly comparable in the 2019 Guidance. My page on the guidance is here.
THIS PAGE ORIGINALLY APPEARED ON MY BLOG IN NOVEMBER 2021