Monday, 17 October 2011

An excellent summary of home education law.

I have been re-reading some of the blogs, consultation submissions and evidence submitted to the select committee lately after seeing many comments from new home educators about visits going well and "inspectors" being pleased with them.  This has probably always gone on but as more and more people begin home education it becomes more worrying that they are accepting the LA on it's own ultra vires terms.  Those of us who faught Badman and Balls tooth and nail for our civil liberties and freedom to educate as we see fit know the danger of this but they cannot begin to imagine how vile were the ambitions of that malevolent pair.

One of the submissions to the select committee stood out for me as a very good explanation of the law around home education, which thank goodness did not change, so I am posting it here together with a link to all the submissions just in case anyone wants to follow me down memory lane or learn for the first time what the LA's really think of us and want from us.

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Memorandum submitted by Sarita Goacher

I am a home educating mother of a child aged 6. We have been home educating for two and a half years (if you do not count all the time she spent with us from birth to 5 years).

I am writing to express my deep concerns about the Review into Elective Home Education. No doubt you will read and hear submissions about the following areas regarding the review from many home educators and experts:

1. The harassment of home educators after issuing 4 consultations in 4 years, all with the same outcome (existing guidelines and laws are sufficient) except for this review.
2. The way in which the review was launched amid claims in the press about home educators and child abuse.
3. The person conducting the review and his lack of impartiality or independence given the long string of state-sponsored education credentials he possesses and the lack of understanding he has shown throughout the review of home education.
4. The use of questions for the Local Authorities that were ultra vires and against DCSF guidelines for elective home education, thus skewing any results that could be obtained from such a questionnaire.
5. The fact that despite even though there was no evidence that home education has been used as a cover for abuse or neglect, that the few high profile cases that have been mentioned by Ed Balls have been shown not to have occurred as a result of home education, the recommendations are highly disproportionate and offensive to civil liberties.
6. Lack of meaningful and statistically-significant evidence contained within the report to back up his claims and heavy-handed recommendations, thus it has been impossible to see how the author reached his recommendations.
7. Home education experts testimony and responses were ignored or misinterpreted, including academically rigorous research.
8. Expert Panel for the review consisted of only one expert who showed an understanding of home education. No home educators or home education 'experts' were on the panel. Panellists also included close friends of the author.
9. No data was published with the report - hundreds of FOIs have had to be issued just in order to investigate how the author arrived at assertions made in section 8.12 of the review report. It is unacceptable that these FOIs have been largely unanswered, almost three months since the requests were made.
10. The Literature Review fails to show any reading of research produced in the USA - where over 1 million children are home educated, or in fact any books or research papers at all that any person investigating home education would normally read.
11. The recommendations include criminalising any form of education that is not school at home (goals, targets, tests) and suggests using the force of law to allow children to be interrogated alone without a parent or other trusted adult present. Any child protection training discourages leaving an adult alone with a child. Who would want to be alone with a child, except for a paedophile?
12. The recommendations are highly disproportionate relative to the actual evidence and problems presented.
13. The recommendations are discriminatory in that they fail to acknowledge any alternative methods of education other than forced, institutionalised learning.
14. The author and some of the panellists stand to gain financially from his recommendations, for instance the author is Chair of BECTA. There is a clear conflict of interest here.
15. Failure to include any evidence/summary from the public questionnaire which received over 2,000 responses.
16. The DCSF has been shown to be obstructive in providing any information that shows how the author arrived at his conclusions. This has included smearing the good name of home educators to the Information Commissioner if only for him to uphold their decision not to release the information needed in order to genuinely scrutinise the review report.
17. The DCSF has refused to answer to taxpayers who are demanding to know how much the review has cost them.
18. The DCSF has claimed the home educators are trying to harass and vilify the author of the report, yet no evidence of this 'harassment' has been supplied. Instead the DCSF has eluded to personal blogs, that question the author's credentials, statistics and motives. Surely the freedom of information ifs not dependent on the loss of freedom of speech?
19. The fact that the author only this week has called LAs to provide more 'evidence' to substantiate his claims. If his report findings were robust he shouldn't need to ask for more evidence retrospectively. In fact, this makes the report null and void.
20. The author's latest call for evidence suggests that his figures will be doctored to suit the political agenda, since the questions yet again are highly ultra vires and show a complete lack of understanding for existing law.

However, I will not be covering these issues and will instead be concentrating on the issues of assessments that should have been included in the report but weren't. The author states that he is "not persuaded that under the current regulatory regimes that there is a correct balance between the rights of the parents and the rights of the child either to an appropriate education or to be safe from harm." Yet, he fails to provide any evidence of this lack of balance, by not assessing the current legal framework. There is a systematic failure to address existing laws and guidelines and whether they are being adhered to, failure to understand home education and how it works, a failure to understand how these two shortcomings are endemic within LAs and how it affects relationships with home educators. The lack of any study of existing law and guidelines completely undermines the entire report as there is no factual indication whether change in fact is needed.

I find it unacceptable that a government of a free nation can use one very questionable report to rush through primary legislative change without scrutiny, and ignoring all other consultations deeming any change unnecessary.

I find it unacceptable that a government can use the recommendations of the same report in a draft legislative bill prior to collecting responses from any public consultation regarding the recommendations.

I find it wholly unacceptable that all this has been done without any regulatory impact or cost assessment.

I find it beyond contempt that the media have been used to downplay, hide and even distort the true contents of the report in order to gain public approval for a situation that has not been proven to exist.

Please find attached my submission with the hope that the committee will see this report and the actions of the DCSF for what they are and will call a halt to any consultation or legislative change that is taking place as a result.

1. Introduction:

1.1. The Report to the Secretary of State on the Review of Elective Home Education in England has been not only lacking in academic rigour, very misrepresentative, highly prejudicial and discriminatory and severely lacking in hard evidence but it also fails to tackle what most would consider to be a fundamental part of any review: providing a full appraisal of existing laws and guidelines and whether these are fit for purpose. One cannot begin to introduce new recommendations without a proper, unbiased and comprehensive investigation of the current situation. This report is unacceptably deficient and this submission aims to highlight the different areas where it is felt this has occurred:

- there is a failure to understand existing laws and guidelines.
- there is a failure to independently appraise the existing situation at ground level, within each local authority;
- there is a failure to understand why the home education community are hesitant and wary of engaging with the local authorities;
- there is a failure to properly research examples of good practice in the UK;
- there is a real failure to understand why and how home education actually works;

1.2. All of these shortcomings are underpinned by a failure to properly, respectfully and honestly engage the home education community in a useful and constructive way so as to gain a deeper insight into what is really going on. Home educators have been resourceful and diligent in seeking out the real data, the author would have done well to engage the home education community properly and legitimately in his search fro evidence.

2. Failure to Understand Existing Laws and Guidelines:

2.1. Current law states that parents have a legal duty to ensure that their children receive an efficient, full-time education suitable to the children's age, ability, aptitude and any special needs they may have either by regular attendance at school or otherwise[1].

2.2. This means that even if the parent chooses to delegate their responsibility to the state, he or she is solely responsible and has a legal duty to ensure that their child receives an education that is individually tailored to meet the child's needs. It also means that the parent is not obliged to inform the local authority of their decision to educate otherwise than at school, given that the legal responsibility for education rests with them and not the state.

2.3. It would appear that the author of the Review has either failed to understand, or chosen to ignore, this first and very important piece of primary legislation. Education is the parents' legal duty, therefore to recommend[2] that they have to register annually, seek permission to, and possibly be refused to, because of 'any other concern', undertake their legal duty is an unacceptable breach of civil liberty.

2.4. An efficient education, described by Justice Woolf, "achieves that which it sets out to achieve"[3]

2.5. A suitable education has been defined as one which "primarily equips a child for life within the community of which he is a member, rather than the way of life within the country as a whole, as long as it does not foreclose the child's options in later years to adopt some other form of life if he wishes to do so"3.

2.6. Another Crown Court judgement held that and education was suitable "if, and only if, the education is as such:
o to prepare the child for life in modern civilised society, and
o to enable the child to achieve his full potential."[4]

2.7. These definitions and the use of the word "suitable" in the original legislation serve to ensure that there is freedom in education; it is a safeguard to ensure that education starts with the needs of the child, and acts as a legal method of ensuring that state-sponsored education does not verge on indoctrination. Education is impossible to quantify into a series of targets and tick boxes, every child is unique and learns in his or her own way. Schools are monitored in this way because they have to be accountable given that their responsibility is to educate children on behalf of their parents and at the cost to the taxpayer. Checks and balances are required in order to make the state accountable to its citizens, not the other way around.

2.8. Again, a failure to understand these fundamental principles has led to a recommendation[5] to review the definition of the word "suitable". The author advises that the Every Child Matters outcomes should somehow be incorporated into this definition5. Since when does the state determine outcomes for its private citizens? The outcomes relate to service provision, not a duty to determine and measure outcomes for children. Children, with their parent's help, should be the sole determinants of their desired outcomes.

2.9. Local Authority duties in respect of Elective Home Education are also enshrined in law and are clearly set out in the DCSF document: Elective Home Education: Guidelines for Local Authorities 20076.

2.10. Section 436a of the Education Act 1996 requires local authorities to establish as far as they are able to, the identities of those children not receiving a suitable education. In the statutory guidance issued by the DCSF, it states that in order to fulfil this duty and in making enquiries of home educated children, local authorities should adhere to the 2007 Elective Home Education Guidelines[6]. There is no additional duty to assess the quality of home education.

2.11. S436a only gives LAs the duty to establish identities. Once they have ascertained that a child is being home educated, the enquiries should end there. This new statutory guidance was issued on the same day the Review was launched. Local authorities have not yet had a chance to implement and measure the effectiveness of this new guidance[7].

2.12. Section 437 (1) then gives the local authorities powers to act should it appear to them that a child is not receiving a suitable education. The author of the review asks how this duty can possibly carry out this duty without powers to monitor home education provision and access to the child. Yet he fails to understand that this duty acts in the same way as any child protection law. If there is cause for concern, then the local authorities have the force of law to ensure that the child is not harmed. A local authority cannot randomly knock on people's doors just to check that a child is not being abused. They have to a welfare concern of some kind before instigating enquiries[8]. The same applies for the police - they cannot come into people's home on the off chance that they might have stolen goods - there has to be a report of some kind. So the same applies to children educated at home. This line of argument also leads very dangerously into undermining a fundamental freedom - that of the presumption of innocence. The author of the review is singling out the home education community as being guilty unless proved innocent.

2.13. The DCSF 2007 EHE Guidelines very clearly lays out how local authorities can act within the remit of their legal duties. They state that they can make informal enquiries, but if not satisfied or if they have any evidence that a suitable education (as defined by the parent and child, not the state) is not taking place, then they can ask formally for written evidence within a deadline. They may also instigate visits to offer support and advice, and if they are still not satisfied then local authorities can issue a School Attendance Order ([9]).

2.14. In other words, if LAs have evidence or concerns about the education of any child educated at home, they have sufficient powers to intervene, advise, support, and even to order children back to school. If there are child protection concerns, then the LAs are afforded the same legal recourses and duties that they have for all children with regard to safeguarding and promoting wellbeing: Section 175(1) 2002 Education Act[10]. However the EHE Guidelines make it clear that this section does not extend the LAs' duties by giving them powers to enter peoples' homes to gain access to the child or to assess the quality of the education. It states that this duty has to be enacted within their existing functions, which in this sense means that they have to have cause for concern before enacting their duties - in other words, they have to presume innocence until proven guilty!

2.15. Yet, according to the author, the evidence that he received from local authorities suggests that these laws are insufficient to the task. Did the author present data to show how many LAs were unsatisfied after informal enquiries, after S437 enquires, how many SAOs were issued, how many were upheld? In fact, there is no such data - home educators, after submitting numerous Freedom of Information Act requests from the LAs themselves have ascertained that not only are these existing powers rarely used, but that they are currently using powers that they do not have[11].

3. Failure to Independently Appraise the Existing Situation within each Local Authority:

3.1. Under current guidelines to LAs with regard to home education and how it works, the following is quoted6:

o Relating to the definition of full-time, the DCSF notes that the "measurement of "contact time" is not relevant to elective home education where there is almost continuous one to one contact and education may take place outside normal "school hours""
o Parents are not required to teach the National Curriculum, provide a broad and balanced education, have a timetable, have premises equipped to any particular standard, set hours during which education will take place, have any specific qualifications, make detailed plans in advance, observe school hours, days or terms, give formal lessons, mark work done by their child, formally assess progress or set development objectives, reproduce school type peer group socialisation and match school-based, age-specific standards."

3.2. So did the review seek to use the guidelines as the departure point to see how effectively the LAs were implementing current guidelines and law?

3.3. Calls for Evidence:
o There were three calls for evidence for this review:
o A public consultation of 6 questions open to everyone (over 2000 responses)
o A 60 question request for data to Local Authorities, with a promise of confidentiality (90 out of a possible 150 responses).
o A further in-depth questionnaire to LAs who responded to the previous questionnaire (25 out of the 90 responses).

3.4. The public questionnaire contained questions that were highly ambiguous and facile and referred to whether home-educated children are able to achieve the five ECM outcomes, a framework not applicable to private citizens. There was no means for the responder to assess LA provision of services.

3.5. The questionnaire sent to 150 LAs failed to assess whether LAs have implemented the 2007 Guidelines and how effective the guidelines and law are, but instead focussed on asking questions about actions that are outside of LA duties, that show a miscomprehension of the Guidelines and the nature of home education and have resulted in LAs revealing their current ultra vires actions, including questions such as[12]:

3.6. "Following the initial assessment visit, are further monitoring visits made to a home educated child?" The author fails to understand that assessment visits is an ultra vires action, as are monitoring visits and assessing the child. It is the education provision that should be enquired about (see above laws and guidelines).

3.7. "How is the 'suitability' of the education provided to the child assessed?" Again, it is not the duty of the local authority to assess the education provided unless there is a cause for concern.

3.8. "Does the Local Authority have systems in place to track the educational progress of the home educated child?" The author fails to understand that the local authority is not responsible for ensuring that children receive a suitable education and are therefore not entitled to track educational progress. To do so would involve changing primary legislation and leaving the LAs and government open to liability.

3.9. "...what proportion in your estimation are receiving a suitable, full-time (20 hr a week) education?" The author has failed to read the EHE Guidelines (see above), but also there is no law or duty that stipulates hours of education for home education, because it is not applicable.

3.10. "Does the local authority face any challenges in assessing whether home educated children receive a suitable education?" This question assumes that it is the duty of the LA to do this, yet it is not. The author's inability to understand this principle of Section 7, that the parent is responsible for the education of their child, regardless of where they receive that education, will lead to LAs being sued up and down the country for failing children in school and will lead to more teen suicide and bullying when LAs place home educated children back in school.

3.11. In other questions, the author uses leading and ambiguous language to obtain the information he requires. Furthermore, the extent to which the current laws and guidelines are not understood by many in government is plainly evident from the research conducted by home educators in requesting data individually from LAs on 'Suitable Education'11. It is noteworthy to say that these LAs, since the authors latest call for evidence to support his Select Committee submission (see below), have now been retracting their data from the research!

3.12. In fact, in Kent, the local authority has failed to, even now, implement the 2007 EHE Guidelines. One year after the publication of the guidelines, Kent was still sending out questionnaires asking for parent qualifications, a timetable and a curriculum (all outside of their remit and not applicable to home education). Kent, for the last 3 years, have been undertaking unannounced Educational Welfare visits to home educated families, illegally, as policy and without informing the families that they have a right to decline the visit, even though they have claimed that this was only in few isolated cases. In fact, in reality none of the document has been implemented and they have even halted all formulation of new EHE policy until the outcome of the review.

3.13. There is also plenty of evidence of ultra vires activity and lack of understanding a non-school method that show that Kent isn't alone in failing to understand home education and the law regarding it. The in-depth questionnaire, on which the author bases his recommendations, show the prejudice and lack of training and understanding of home education law. One only has to read through all the LA responses to the review questionnaires to come to the conclusion that they have been acting outside of their remit and have provided data that is questionable[13]. Research conducted by home educators11 has revealed very clearly how LAs have not adhered to current policy.

3.14. The author of the review has now (September 2009) called for further evidence from the LAs to support his findings, after the review report was published and in light of his Select Committee submission. One has to ask why a review that is supposed to be robust in its findings is asking for more evidence after the recommendations have been accepted? Is the data flawed? Why are Local Authorities retracting data from home educator research?

3.15. More worrying are the actual questions being asked in this further, extraordinary call for evidence[14], apart from the fact that home educators have already collated this evidence, the questions are again heavily skewed enough to provide data that is highly contentious. The author asks:

o for the number of families not co-operating with visit requests as part of 'non-suitable' assessment, yet families are not obliged by law to accept visits, therefore this should not count as no provision of suitable education.
o For "number of EHE children not known to be receiving a suitable education" rather than the more appropriate known not to be receiving a suitable education. In this way, the author will be including children who may or may not be receiving a suitable education thus inflating the figures and misrepresenting the actual situation.
o In requesting the number of School Attendance Orders issued, the LAs will no doubt be answering to calls for why they haven't effectuated their duties, if they have so many "concerns".
o The author further asks for numbers of NEETS. This is extremely hard to assess within the home education community, as children may just be taking time out to help with the family, to learn a new skill, to research an area of interest - all definitions of being a NEET but not necessarily in the sense that is measured by government. Without any place for comments or understanding of the reasons why young adults are not in employment, formal education or training, the author will again be skewing the results of this further call for evidence.

3.16. These questions will again provide highly ambiguous, misrepresentative and hence unusable data. Is the author trying to make the data fit the desired outcomes?

4. Failure to Understand why the Home Education Community are Hesitant and Wary of Engagement with Local Authorities:

4.1. Home educators have been responding to DCSF consultations for many years. Each time, the same answers are given - that of the ultra vires actions of the LAs, that home education cannot be measured like school education, that the fact that it is child-led means that there can never be a uniform set of criteria on which education can be judged. The ultra vires actions of the local authorities and the lack of understanding of any model of education outside of the school model have made it very difficult for the home education community to trust LAs.

4.2. Families who have never sent their children to school fear the consequences if they engage with the local authority. The author of the review does little to address this fear and its origins, instead concentrating on vilifying families for not engaging. At no point has there been an assessment to ascertain what are the real practices of the LAs. Moreover, in making his recommendations, in the tone of the his report, in the hasty acceptance of the report by the Secretary of State, more and more home educating families are ceasing to engage with their LAs, even where these relationships were good, for fear of having their children sent back to school or wrongly accused of being of 'concern'.

4.3. Over the years, home educators have tried to forge good working relationships with their local authorities and have together formulated local policy. This has led to a host of services provided by the local authority but also a higher incidence of engagement with the LA. There are also no instances of ultra vires actions by the local authority because they understand their duties form a home education perspective as well as a legal perspective. There are examples of good practice, but these were not case studied in the review report.

5. Failure to Properly Research Examples of Good Practice in the UK

5.1. Milton Keynes Council have a 'best practice' reputation amongst home educators. LA officers and home educators meet twice a year to develop policy, discuss ideas, provide support and advice. However, Milton Keynes was missing from the list of consultees to the review[15]. In fact, some of the councils that appear on the list are known for their ultra vires actions (see previous research T. Berlow/Ahed).

6. Failure to Understand Why and How Home Education Actually Works

6.1. Another aspect of the review that seems severely lacking is in understanding how home education works. The credentials of the author of the review show that he has spent his entire career in the state education system or monitoring for it. He knows no other model of education. Although he met with respected researchers in the area of home education, he failed to understand what they were trying to tell him. We know that at least two consultees speaking in favour of home education have refused to sign off notes from the DCSF because they felt that they were either wrong or misrepresentative.

6.2. The author, in recommending a system of registration, monitoring, plans, goals and targets that criminalises anyone who does not follow this regime, he has in effect outlawed many other forms of educational pedagogy. This report is also an attack on alternative methods of education.

6.3. The author negates any value in both educational methods surrounding autonomous learning (has he not heard of Montessori and the fact that DCSF has already implemented her methods in four state-run schools?) and any research that robustly and rigorously shows that home educated children outperform their school peers. In fact, all the research has been dismissed, in favour of questionable and outdated research[16]. The Literature Review for the report is notable by its absence of key works by noted authors on how home education works, which every parent and LA official should read. One has to wonder whether the author read 'the required reading list' before embarking on this task.

6.4. How could the author ignore this evidence and conclude that how families home educate is outside of the scope of the review? It is exactly this lack of understanding that has led to families being extremely mistrustful of LAs and the DCSF.

7. Conclusion:

7.1. Graham Badman has failed to undertake a proper review of home education in England. Instead he has pandered to a political agenda that calls for more government regulation and more powers over its citizens. This review is impartial and lacking in any statistical rigour given that the original Terms of Reference and calls for evidence go beyond the existing duties of both central and local government.

7.2. It is clear that all subsequent actions and legislation that are being pursued because of this faulty report should be halted immediately until all LAs have implemented and have adhered to the current guidelines. Then, and only then, should a review be undertaken to assess whether any change is necessary.

September 2009
[1] Section 7 of the Education Act 1996
[2] p.9, Recommendation 1, Report to the Secretary of State on the Review of elective Home Education in England, Graham Badman, 11 June 2009.
[3] Mr. Justice Woolf in the case of R Secretary of State for Education and Science, ex parte Talmud Torah Machzikei Hadass School Trust (12 April 1985)

[4] Worcester Crown Court in Harrison & Harrison v Stevenson (1981)
[5] p.10, Recommendation 2, Report to the Secretary of State on the Review of elective Home Education in England, Graham Badman, 11 June 2009.

6 2007 Elective Home Education - Guidelines for Local Authrorities, DCSF.

[8] Section 47 of the Children Act 1989 -
[9] Section 437 (3) of the 1996 Education Act

[12] Annex D, Questionnaire to Local Authorities, Report to the Secretary of State on the Review into Elective Home Education in England, 2009.

[13] See Freedom of Information requests for access to individual responses - or the DCSF.

[15] List of Consultees, Report to the Secretary of State on the Review of elective Home Education in England, Graham Badman, 11 June 2009.
[16] See FOI request for Literature Review.

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