Interpretation of Legal Framework
The Department for Education has published non-statutory guidance on home education since 2007 and is currently consulting on changes to the 2019 guidance. Scroll down for a link to my Starting Page with all the consultation documents. The introduction to the new draft guidance [page 5] says “This guidance represents the Department’s interpretation of how the current legal framework affects the provision of home education. The guidance is not intended to provide legal advice. It does not create new powers or duties”
The current legal framework is the 1996 Education Act which sets out the elements of a suitable education when a child is educated otherwise than at school. Where parents take responsibility for their child’s education themselves – rather than sending them to school – this is commonly known as elective home education although the phrase does not appear in law.
There is no need for the Department to “interpret” suitable education since the law is already abundantly clear and specific; education is to be suitable to the child’s age, ability, aptitude and any special educational needs.
Aiding Understanding of Suitable Education
The consultation document accompanying the new draft guidance confirms that “A suitable education is one that is suitable to a child’s age, ability, aptitude and SEN” but goes on to say “we have made several edits to the guidance to aid in the understanding of suitable education and how to ensure its provision.”
The key issue is therefore to decide whether the edits help and I would argue that they do NOT. The problems start right at the beginning where the draft guidance says “suitable education” will be used as shorthand to include all element of section 7 of the Education Act 1996: suitable, efficient, and full-time”
Clearly, shorthand does NOT aid understanding because by shortening it to “suitable education” the Department then feels the need to EXPAND and SUGGEST and RECOMMEND, all of which makes the guidance much longer and more contentious and unclear than it need be, needing more and more unpacking such as the introduction of Case Studies.
By my reckoning the unhelpful shorthand phrase “suitable education” appears 36 times in the draft guidance, often with wordy thoughts on how it might be interpreted.
The word suitability crops up 27 times in the new draft guidance, in relation to“assessing suitability” [3.4; 3.8; 3.9 (4 times) or concerns as to suitability [2.6; 5.4]
The misguided view that the LA should take on the task of “assessing suitability” only brings further complications. Just like schools, parents may be coasting with their children not making sufficient measurable demonstrable progress. Paragraph 4.8 refers to the provisional judgement of “current suitability” which in turn morphs into “ongoing judgement of suitability” [6.2]
Relevant Consultation Questions
- Q14 Does the guidance clearly set out the factors that should be considered when assessing whether education appears suitable?
- Q15 Is it helpful to provide separate sections on (i) how local authorities decide whether a child appears to be receiving suitable education and (ii) what to do when it appears that suitable education is not being received?
- Q16 Is the guidance clear on what is considered a proportionate level of engagement between local authorities and parents when establishing whether home education appears to be suitable as part of the informal process?
- Q17 Do you have any comments regarding how suitable education is outlined in the guidance or further information that illustrates your answers above?