Special Needs in New Guidance 2

This page is a continuation of https://edyourself.org/special-educational-needs-in-new-guidance/ and looks at paragraphs 9.6 – 9.13 of the SEND chapter in the new draft home education guidance. Legal references are to Part 3 of the Children and Families Act 2014. Extracts from the SEND Code of Practice are in blue. The SEND Code is statutory guidance.

The new guidance is not ready to be used. It is still at the draft stage. The consultation closed 18.1.24. The current guidance remains in force until such time as a final new version is published. The current guidance can be found here https://www.gov.uk/government/publications/elective-home-education

Draft 9.6 is about EOTAS. It is very repetitive and has the same misleading introductory remarks about parents’ feelings as current 8.5. It does not quote from the actual law (section 61) and also misses an opportunity to clarify 10.31 and 10.32 in the SEND Code of Practice. It does not signpost to recent case law providing guidance on when it may be “inappropriate” for provision to be made in a school.

Draft 9.7 covers deregistration from special school and from mainstream school. It expresses at greater length information contained in paragraph 10.33 of the SEND Code of Practice but i/ leaves out There is no provision in law for a ‘trial period’ of home education” and ii/ is less clear than the Code about deregistration from mainstream ie that the school must delete the pupil’s name on receipt of written notification (this requirement is set out in the Pupil Registration Regulations 2006 Regulation 8 (1))

For comparison this is what the SEND Code of Practice says “10.33 Where a child or young person is a registered pupil and the parent decides to home educate, the parent must notify the school in writing that the child or young person is receiving education otherwise than at school and the school must then remove the pupil’s name from the admission register. If the school is a special school, the local authority must give consent for the child’s name to be removed, but this should not be a lengthy or complex process. There is no provision in law for a ‘trial period’ of home education.”

Draft 9.8 is about access to the home and covers the same material as 10.35 of the SEND Code of Practice. It is broadly the same as current 8.7 but leaves out “may only enter the home at the invitation of the parents” and rather than an attempt to undermine the parents’ right to home educate” from the 10.35 SEND Code of Practice.

Draft 9.9 and 9.10 and are broadly the same as current 8.8. In practice LAs do not provide support for children with EHCPs because parents who home educate are deemed to have opted out. Indeed LAs may oppose parents wanting to home educate children with SEND for this very reason ie that the LA will withdraw access to services.

Draft 9.11 is about enforcement powers and the School Attendance Order process. It is almost the same as current 8.9 and still leaves out points about support and last resort in the SEND Code of Practice. The SEND chapter should not be considered in isolation when considering the impact of new guidance on SEND families because the new draft guidance has already suggested detailed “suitability assessments” amounting to annual monitoring as well as using the School Attendance Order process backed up with child protection enquiries if the LA feels it has insufficient information about educational provision.

For comparison purposes the SEND Code says “10.36 In some cases a local authority will conclude that, even after considering its power to provide support to home educating parents, the provision that is or could be made for a child or young person with an EHC plan does not meet the child or young person’s needs. The local authority is required to intervene through the school attendance order framework ‘if it appears…that a child of compulsory school age is not receiving suitable education’. The serving of a school attendance order is a last resort if all attempts to improve provision are unsuccessful. ‘Suitable education’ means efficient full-time education suitable to the child or young person’s age, ability and aptitude and to any SEN he or she may have.”

Draft 9.12 deals with the situation where a school is named on the EHCP (outside the School Attendance Order process although this is not specified) and correctly and helpfully says that the child does not automatically become a registered pupil. Draft 9.12 is virtually the same as current 8.10 but leaves out “local authorities should ensure that both schools and their own staff know that” . Draft 9.13 covers EHC needs assessments and is the same as current 8.11 except it leaves out “the right to appeal” [ie SEND tribunal].