I refer specifically to the part of your reply which states:
“If a parent is refusing to engage, the LA must be entitled to presume that the
educational provision being provided at home is not suitable, unless evidence can be
provided to the contrary. Elective home education associations commonly assert that
a LA has no power to investigate whether the provision being made at home is
suitable unless they are notified of any concerns. This is clearly unsustainable as a LA
is unlikely to be able to establish such concerns unless they endeavour to investigate
that provision.”
This position is deeply offensive, shockingly ultra vires and takes a “guilty until
proven innocent” stance which goes so far beyond existing law as to be unmistakably
confrontational. It is an interpretation of the law as the LA might wish it to be, rather
than an interpretation of existing legislation; it also demonstrates a misunderstanding
or misapplication of case law, specifically Lord Justice Donaldson’s 1980 judicial
review in Phillips vs Brown – your legal department should note that this applied to a
family’s initial contact with a local authority, not to ongoing routine monitoring of
law abiding families.
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55 comments:
A curious and oddly distorted perspective. Let's see if we can clear this up and explain what Lincolnshire are up to. If we have dealings with a home educating family who have a child of five, finding that they are providing a suitable education for the child, then obviously there would be no reason at all to suppose that this stopped being the case a week later.
Suppose though that we had no further contact with this family for the next decade. Now the child is not five, but fifteen. We knew ten years ago that his parents were capable of furnishing him with an efficient education at that age, but is this still so? In other words, they might have managed well enough to stimulate a five year old; can they do the same for a teenager of fifteen? We have no idea. For all we know to the contrary, they are still giving him Topsy and Tim books to read!
The way to see whther this is a child who is missing out on an education is to ask them what they are doing now that their son is fifteen. The passage of time is, in effect, a change of circumstance, warranting a further enquiry. This is both logically and legally permissible.
I am presuming you are from LCC, the fact is that it is none of your business, the responsibility for education rests with the parent.
Graham Stuart Mp says of Wakefield LA they "give links to the 2007 government guidance but wilfully misstate the law:
"It is the LA’s duty to ensure children of school age are receiving a suitable education as defined by law, that is that it must be ‘suitable’ and ‘efficient’ in line with Section 7 of the Education Act 1996."
Let me be clear: local authorities have no such duty. It is the parents' duty to ensure their children receive a suitable education. Local authorities have no duty to carry out routine monitoring and are obliged to act only if it appears to them that a child is not receiving a suitable education.
It's a bit like the police. They have no duty to ensure that televisions aren't stolen (they don't knock on your door asking for your help in confirming your house isn't full of stolen goods - and you'd be rightly offended if they did) but do have a duty to act if they have evidence that you do have stolen goods."
Local authorities make this claim all the time, but they are wrong and arrogant in their idea that they can judge the education provided by the parent even when that parent has had to rescue the child from their failing school. They have not right to judge at all unless they receive evidence without snooping for it.
I find most interesting the "investigative" stance of seeking out evidence of suitability.
The law actually allows intervention on the premise that there are concerns a suitable education is not taking place.
This is a reactive stance, not a proactive one.
At the end of the day as long as LCC have robust procedures that fit with the law and they have followed them, then the person who will get sued for lack of fulfilling their duty in providing an education, should such a case come to court, will be the parent.
Ah the old saw that passage of time argument. Of course what is a reasonable passage of time? Is it one week, 24 hours, 10 years or what? For most LAs is an arbitary one year but note the term 'arbitary' they decide it and then they decide that parents should comply.
Naturally that does not make it a legal requirement for the parent to do so.Not does it mean that the parent would necessarily be sensible to do so as, quite clearly to many parents, an annual 'review' is intrusive and outside the authority of the LA.
In practice home educating parents tend to learn with their child, many will find themselves following the interests of the child to subjects foreign to their own knowledge. They then facilitate the child's learning whilst growing in knowlege themselves. No matter what the age of the child.
Of course parents are rsponsible for ensuring that the child is educated. That is NOT the role of an LA and HE parents wonder when they will wake up and realise that.
If the writer can name me one instance of an HE family teaching their child at the same level they did at 5 years old once they are 6 or 7, never mind 15 ( excluding extreme special needs children of course)I'll give some credence to the post above. Until then the writer is just makingnthemselves look rather foolish.
Personally, I'll save this for my 15 year old as a perfect demonstration of a straw man argument:
"they might have managed well enough to stimulate a five year old; can they do the same for a teenager of fifteen? We have no idea. For all we know to the contrary, they are still giving him Topsy and Tim books to read!"
Really, you'd think that parents hadn't been adjusting to their children's changing needs from birth to age 5.
S436A of the Education Act 1996 requires an LA to make reasonable attempts to determine the education status of children within its area, in order to determine that a child is not classed as CME. Once this has been done, usually by asking the parents, and a child is classified as home educated, duty under S436A is satisfied. The duty under S437 starts with "if it appears that..." which to most of us would suggest that some evidence of failing is required - no news is good news and families should be left alone.
If you want to use a passage of time argument, come back when the child is 18 and see the result.
'"if it appears that..." which to most of us would suggest that some evidence of failing is required - no news is good news and families should be left alone.'
This may perhaps be the attitude of the local authority over in Cambridge, where you live Dave H, but perhaps news has not yet filtered through there of Phillips v Browne (1980). Oak Reah's parents took just this very line and look where it got them! Not to be recommended.
'I am presuming you are from LCC, the fact is that it is none of your business, the responsibility for education rests with the parent. '
You presume too much, my friend. While it is certainly true that responsibility for a child's education rests with the parents, responsibility for identifying children missing from education lies with the local authority. From time to time, these two responsibilities are bound to collide and when this happens, one party or the other will end up feeling dissatisfied.
No, it's simple. Don't assume a child is missing education simply because they have moved or are older.
Home educated children are by definition not children missing education, evidence or suspicion of lack of education is still needed before the LA can investigate suitability of education.
To the anonymous:
As I understand it, Phillips v Brown was a case where the LA discovered the child for the first time and had nothing back from the parents. This part of the action is covered by the response as part of the S436A interaction, where it is indeed reasonable that the LA ask for information.
It's also worth noting that the judgement itself pre-dates the current legislation and guidance, and can be considered in the light of the fact that governments have chosen to make it clear that there is no duty for routine monitoring. You may choose to ask every year, but if you just get back a "yes, we're carrying on from last year" then that's a reasonable response to the informal enquiry.
"Oak Reah's parents took just this very line and look where it got them!"
No. They did not. Phillips v Browne dealt with the issue of whether a LA can request evidence of educational provision in the first instance, when a home educated child first comes to their attention. It had absolutely nothing to do with ongoing monitoring of law abiding families. The ridiculous monitoring nonsense routinely peddled as law has never so far been tested in court. I wonder why that might be? Perhaps because LAs tend to back down long before it gets to that point. And why might that be? Perhaps because they know that they are on very shaky ground indeed.
After all, a LA may not set the bar higher than a court would. A court would judge educational provision on what a reasonable person would conclude, on a balance of probabilities. And it is pretty clear that if family X have demonstrated that they are fulfilling their duty to educate (even just once, at any age/stage), then the balance of probabilities is that they will continue to do so, barring any evidence to the contrary.
Hence why there is no statutory duty to monitor; hence why gov guidelines explicitly state there is no such duty, and hence why LAs back down when pushed but continue to hope to pull the wool over the eyes of families who are less certain of their legal position. It's called bullying.
Ahhh Simon, have you stopped posting under your own name?
'Home educated children are by definition not children missing education, evidence or suspicion of lack of education is still needed before the LA can investigate suitability of education.'
For your homework tonight Maire, find out about the Phillips V Brown (1980) case, which I cited above, and write a thousand words on why this approach is neither wise nor prudent. Be sure to read the full text of Lord Donaldson's judgement before you attempt to do this.
' A court would judge educational provision on what a reasonable person would conclude, on a balance of probabilities.'
Nothing of the sort. This is why you need to read the case itself; not merely what other home educating parents tell you about it. Lord Donaldson said nothing at all about what a 'reasonable person' would conclude. He talked of a 'reasonable Local Education Authority'. These are two different things.
'If the writer can name me one instance of an HE family teaching their child at the same level they did at 5 years old once they are 6 or 7, never mind 15 ( excluding extreme special needs children of course)I'll give some credence to the post above. Until then the writer is just makingnthemselves look rather foolish.'
One forgets just how literal-minded some home educators can be! The fault is entirely mine. I did not really mean to suggest literally that some parent might be getting her fifteen year old to read Topsy and Tim books. let me see if I can make the thing clearer.
Few people, including most local authority officers, would doubt the ability of the average parent to provide a stimulating and educational environment for a five year old. When it comes to doing the same for a fifteen year old, many would raise their eyebrows. One only has to look at the sort of questions asked on HE lists to see what I mean. The parent of a ten year old wants to know how to teach her son science, a fourteen year old's mother has no idea how to go about arranging for her child to take GCSEs.
When one hears of a parent whose knowledge of education is so limited that she is reduced to going into the street or onto the internet and asking complete strangers what she should do, which is what is essentially happening here, one is bound to ask whether or not she is able to provide a suitable and efficient education for her child. Imagine for a moment if I was claiming to be able to service cars and then you heard that I had been asking somebody in the pub how to change a wheel; wouldn't you have doubts about my ability to deal effectively with your car?
Of course, this does not mean that the parent is not providing an education, but it hints that this might be the case. In other words, this child might be missing from edcuation and it is reasonable for the local authority to check that this is not the case.
In other words, a local authority might very well take a parent's word for it that her child was being educated at five and then have serious doubts about whether this was still the case at fifteen.
"Lord Donaldson said nothing at all about what a 'reasonable person' would conclude."
I was not referring to Donaldson. I was referring to the evidence a court requires in order to quash a school attendance order. As stated in numerous places, including by Lincs CC themselves, in the very policy in question: "The court will accept evidence in a number of forms and will be looking for evidence that would convince a reasonable person on the balance of probabilities (rather than beyond all reasonable doubt) that a suitable education is being provided."
Do keep up. Oh - and do stop being a patronising twat. You have no idea what people have or have not read or researched, so why make snide remarks? You're making yourself look objectionable for the pure sake of being objectionable, rather than adding anything to the debate.
'Do keep up. Oh - and do stop being a patronising twat.'
Yes, I was waiting for somebody to descend into personal name calling. This usually happens with home educating parents when they feel out of their depth. Lincolnshire County Council do indeed make the same error about the Donaldson judgement. This does not of course actually affect the precedent case upon which all this is founded. The post upon which I was originally commenting seemed to be saying that Lincolnshire does not understand the law. You, on the other hand, apparently believe that they do. Like so many local authorities, they misquote and get muddled up. I suspect that the bit that they use about the 'reasonable person' has come about because they were foolish and misguided enough to allow home educators some input!
Whether or not I am a patronising twat has no bearing at all upon the case law which, for the time being at least, governs this matter. This particular case has not been superseded by any new statute and so remains our guide to the legal position. I'm afraid that Lincolshire County Council cannot alter this by sticking something up on their website.
Anonymous if you post anymore personal information about other bloggers you will be blocked. The posting of another commenters child's name is totally unacceptable and that you don't know that speaks volumes about your character. The subjects you seem to find unacceptable are in no way unacceptable to everyone so please do not try and shame people for their interests and areas of expertise.
In my professional life it would be considered the height of arrogance not to draw upon the expertise and good practice of others even in my own very specialist areas. Home education should be no different. How preposterous to draw the conclusion that someone asking for advice from a forum equates to incompetence.
Of course, in my professional life I could also be sacked for revealing the name of a child online without gaining parental consent. Seems those who want increased rules for home educators don't want to abide by the rules themselves.
Simon, when are you going to get it through your thick head that no one is remotely interested in your ridiculous opinions?
'Anonymous if you post anymore personal information about other bloggers you will be blocked. The posting of another commenters child's name is totally unacceptable and that you don't know that speaks volumes about your character.'
'Of course, in my professional life I could also be sacked for revealing the name of a child online without gaining parental consent'
The mother has already posted details of the child's name and a huge amount of personal information about her on a blog which is available to anybody! Just follow the link from secondaryathome. I can't see how this can possibly be an invasion of her privacy.
Tut! Tut! Posting a child's name. Not nice, and not allowed - a bit like the antics of a large proportion of LAs.
It is impertinent and inappropriate by any standards especially as it was followed by a snide insinuation that her child would inevitably be Inadequately educated due to the parent having an interest in a subject you scorn.
For those interested a copy of the Donaldson judgement can be found here:
http://swarb.co.uk/phillips-v-brown-qbd-20-jun-1980/
The letters which form the subject of Maire’s original post concern a family which shall remain nameless. Why is this local authority a little dubious about claims that teenagers are receiving suitable and efficient, full-time educations? Schools have the time, money and expertise to educate children to the point where they might typically take ten or twelve GCSEs. The parent to whom the letter which Maire publishes here, on the other hand, says, ‘We physically do not have the time, patience or money to do 10/12 GCSEs’ This is partly because, ’ My heart says no GCSEs, for reasons of both principle and practicality.’ At the age of thirteen, this parent has more or less decided that her daughter will not be studying A levels at college. Why? Because she lacks the time, money and patience.
This is the sort of attitude which many, not only local education authority officers, would deplore. Still, all is not lost, because, ‘ Maybe I could persuade XXXX that what she really wants to be is an astrologer, an author, a writer or a medium’
Already, at the age of thirteen, this child’s options are being systematically closed down by her parents. At the very time when new ideas should be flooding into a young person consciousness, this parent is instead looking inwards to her own family for the child’s future. Little wonder then that the local authority are asking for a little more information.
Actually, I'm think of allowing my grandson to take a degree in Friendship Bracelet making. Would that suit as 'suitable education' do you think, Mr Simon or whoever you are?
'Tut! Tut! Posting a child's name. Not nice, and not allowed'
The child in question's mother has evidently allowed Maire to publish correspendence relating to her disputes with Linconshire County Council about the home education of her child. She had also posted here, giving a link to a blog which gives a huge amount of information about the child concerned, including both her first and last names and geographical location where she may be found. I hardly think that I am guilty of any indiscretion in repeating what her own mother feels able to tell anybody on the internet.
Many may deplore it anonymous, this is why many people home educate, to protect their children from coercive authoritarian adults with rigid view on what iis an acceptable education. There is nothing systematic or closed down about ponderings on a blog about the value and costs of GCSEs. The fact that you seem subscribe to the rigid and narrow view of what constitutes an education that society has been persuaded to accept as appropriate in no way invalidates a home educator wanting to open a child's eyes to possibilities not included in the national curriculum.
But suggesting a child might want to be a writer, shocking! (sarcasm alert).
What, precisely, gives you the right to make assumptions about my daughter's education? What gives you the right to make judgements on what I choose to do for a living? You cannot even get the simplest of facts straight - for instance, my book is not self published. But hey, let's not let facts stand in the way of a personal attack - even a personal attack on a young teenager. How low are you prepared to sink?
How ironic that you hide behind an anonymous handle yet, because I am no such coward, you use follow a link to my blog in order to launch such a pathetic attack. I think that speaks volumes about the way you choose to conduct yourself.
In that light, I can safely assume that what you have to say on the original issue is not worth hearing.
And while I'm flattered that you quote so extensively from my blog, the humour of the "maybe I should persuade her that what she really wants to be..." comment is obviously lost on you - as indeed is our entire educational philosophy. No surprise there, then. I suggest you report your concerns about my family to Lincs CC.
Use I words Simon, slagging off others is never a good way to promote fruitfully discussion.
And finally - my full name is not hidden from anyone. That's what happens when you are in business. Likewise an address. Would you now like to claim that I'm endangering my child. Go ahead - report that too.
'But suggesting a child might want to be a writer, shocking! (sarcasm alert).'
What was shocking was not that a child might want to be a writer, but that the mother was speculating that she might be able to persuade her child that she wants to be a writer. The one is a perfectly decent ambition for a teenager; the other, shameless manipulation by a parent and an attempt to mould a child in her own image.
We are not equipped to decide what is a perfectly acceptable ambition for another human being. Apart from morally reprehensible choices that hurt others this is entirely the remit of the person involved with the support of those chosen to advise. It is nothing to do with random people with strange ides on the internet. Please keep all posting on the subject of the blog.
Having read the Donaldson judgement and all pertinent legislation, having spent many years interpreting legislation and acting for clients in Court rooms, I would have no fear of relying upon the 'reasonable man'approach in a Court case. It is the standard accepted test of reasonableness in UK Civil Courts.
Actually the usual description was 'the man on the Clapham omnibus' but that is somewhat archaic.THe judge referred to what was reasonable in the case which, as several people have pointed out was in 1980 and predates legislation and guidelines that specifically state that thre is no duty to monitor.
I have read many requests from teachers for help and advice on how to deal with educational matters. Further, to ask for advice on an issue in order to improve your professional approach is considered to be correct in most professional circles.
Presumably the writer does not move in professional circles or understand that no one person can be blessed with all knowledge of all subjects, even their own subject, including teachers. Aftr all, the best of surgeons will ask a collague for a second opinion on a regular basis.
Of course you didn't mean your point about age literally, but as you made it the point becomes open to analysis.
"Few people, including most local authority officers, would doubt the ability of the average parent to provide a stimulating and educational environment for a five year old. When it comes to doing the same for a fifteen year old, many would raise their eyebrows".
Do you suggest that because a parent chooses to HE then they are by virtue of that decision inadequately equipped to educate a child beyond a certain stage? If so then perhaps you could look to the basic fact that only this week a government report was published stating that 60% of secondary schools are not achieving standards that are adequate or above adequate. That would indicate that 60% of secondary schools are lacking the ability to provide a suitable educational environment for 15 year olds.
That, would suggest to any reasonable person that LAs would be better served by addressing their own failings than by attempting to criticise parents who are offering one to one education to their children in a caring, comfortable and supportive environment. That being where their educators are open to providing the best possible resources and facilities for each individual child to leatn at their own pace.
I've just realised my error. Throughout I have referred to a reasonable person. Someone with an entrenched need to criticise othres on matters that they clearly have little knowledge of or expertise in, would probably fall outside the stanard definition of 'reasonable'.
' Please keep all posting on the subject of the blog.'
Well of course that is precisely what I was doing, until I was called a patronising twat. Once people become abusive, one is inevitably interested to delve into their motives for trying to derail the discussion. I have discovered this person's motives for doing so and am now satisfied that Lincolnshire are quite right to be concerned.
In any case, the subject of the blog was Lincolnshire County Council's attitude towards home education and how they have come to hold such ideas. Since you chose to illustrate this by publishing a letter which they had written to a particular individual, you made this individual, at least to some extent, the subject of the blog. It was quite reasonable for me to ask why Linconshire was writing in this way to this parent. Had you simply limited yourself to publishing the council's guidelines, this would not have happened.
'Throughout I have referred to a reasonable person. Someone with an entrenched need to criticise othres on matters that they clearly have little knowledge of or expertise in, would probably fall outside the stanard definition of 'reasonable'.'
Yet another attempt to derail the discussion by personal attack.
Read the previous posts. It does not make the person the subject it makes what they have written the subject.
You would do well to wonder why many reasonable people are driven to such pronouncements after reading what you write.
Actually, as you would know if you bothered to read instead of skim, Lincs CC were not writing to me personally about concerns with my education provision. It was a standard letter to all Lincs home ed parents informing them of a change in policy. But again, don't worry about the *facts*, just make it up as you go along.
The purpose of the post and the two previous post is to publish the good work being done to contain rent seeking and self aggrandising LAs within the law.
'as several people have pointed out was in 1980 and predates legislation and guidelines that specifically state that thre is no duty to monitor. '
You seem, if I understand you correctly, to be saying that this particular piece of precedent is no longer binding. Could you provide us with details as to when and where this was held to be the case?
'Actually, as you would know if you bothered to read instead of skim, Lincs CC were not writing to me personally about concerns with my education provision. It was a standard letter to all Lincs home ed parents informing them of a change in policy. But again, don't worry about the *facts*, just make it up as you go along'
This is quite mad. Maire actually posted a link on April 26th to a letter addressed to you by name. It begins, 'Dear Mrs Harper'. Are you really suggesting that they begin all their letters to home edcuators in this way? As I say, if a blog post contains letters to an individual in this way, then it fair to enquire into the circumstances of the individual.
Here is the link which Maire posted on April 26th, the one which drew Nikki Harper to our attention;
http://secondaryathome.files.wordpress.com/2012/04/lincs-cc-reply1.pdf
When this is done, and a link also posted to a blog which gives details of a child's name and location, it is absurd to suggest that there is something unethical about repeating the name in comments.
And on the 22nd to a letter to LCC. It is not really that difficult.
"This is quite mad. Maire actually posted a link on April 26th to a letter addressed to you by name. It begins, 'Dear Mrs Harper'. Are you really suggesting that they begin all their letters to home edcuators in this way? "
Ahem, I presume you've heard of mail-merge?
"When this is done, and a link also posted to a blog which gives details of a child's name and location, it is absurd to suggest that there is something unethical about repeating the name in comments"
Except that, one was with the express permission of the parent and the other was not. Ethics 101. Simples.
You seem, if I understand you correctly, to be saying that this particular piece of precedent is no longer binding. Could you provide us with details as to when and where this was held to be the case?
You seem fixated on the Donaldson judgement as if it was set in stone forever with the particular meaning you've attached to it. It has not been challenged in court to my knowledge, because one side or the other has always backed down before matters got that far. What I am saying is that given events subsequent to that time, it is not unreasonable to question its validity in the light of those events.
The judgement itself is somewhat narrow in scope because it is not at all clear whether or not Donaldson was applying it to the particular instance of initial contact and lack of information or whether he considered on-going monitoring to be a duty. If it was the first case then that's covered by my explanation as to S436A, and if it's the second case then I would hold that the subsequent legislation has made it invalid and so it should not be considered a binding precedent.
'Ahem, I presume you've heard of mail-merge?'
Why yes, except that this particular letter goes on to thank Mrs Harper for her email of April 16th. Are we expected to believe that every home educating parent in the county sent the council an email on this date? It seems unlikely. I think that we can be pretty sure that this is actually a personal letter to Nikki Harper and not a general circular to parents.
'I would hold that the subsequent legislation has made it invalid and so it should not be considered a binding precedent.'
I dare say that we all have personal opinions on this case, but the question is; has a higher court over-ruled it? Until this happens, it is a key piece of precedent which will continue to shape the relations between home educating parents and their local authorities for the time being.
I received a standard letter from Lincs CC on (I think) the 5th April, announcing their new policy. All other Lincs home educators that I am aware of also received the same letter announcing the new policy. It really is perfectly simple.
So: let me recap for you. Standard letter arrives from Lincs CC re new policy. I make a formal complaint about said policy on the 16th. Lincs CC reply to me; I then reply further to them. Got it now? Which part of that process do you deduce is Lincs CC writing to me, stating that my educational provision is not satisfactory/that they have concerns over it?
Time, I fancy, to bow out from what seems to be becoming an increasingly acrimonious debate. Although the original post centred around one individual in a particular county, I tried to discuss the matter in broader terms. Of course, I need not have bothered, because within a few hours I was being called a twat by the person about whom the post was concerned. She appeared determined to bring the matter back to the personal level of her own problems.
All of this really serves only to confirm the stereotypes circulating in some quarters about home educating parents; that is to say they have enormous difficulty in holding rational and objective conversations on the subject of education.
Anyway, I shall now withdraw. For those who keep referring to me as Simon, I can only say; my name is Legion (Mark 5.9).
' Which part of that process do you deduce is Lincs CC writing to me, stating that my educational provision is not satisfactory/that they have concerns over it?'
I suppose that, before leaving, I should reply to this. I actually said of the letter only that it had been addressed to you personally. I did not say anything about Lincolnshire writing to you because your educational provision was unsatisfactory. I said to Maire; 'Since you chose to illustrate this by publishing a letter which they had written to a particular individual, you made this individual, at least to some extent, the subject of the blog.'
She did indeed publish a letter written to a particular individual, which was you. I said nothing about the contents; merely that it was addressed to you.
"this parent is instead looking inwards to her own family for the child’s future. Little wonder then that the local authority are asking for a little more information."
"relating to her disputes with Linconshire County Council about the home education of her child."
"and am now satisfied that Lincolnshire are quite right to be concerned."
In the above comments, you have clearly insinuated that Lincs CC are in "dispute" with me over the education of my child, and that they have concerns about my child's education. Naturally, I corrected you on that. If you did not mean to insinuate/imply that, then you really should choose your words more carefully. If you did mean those statements as they are written, then you should learn to read correspondence properly before commenting on it.
Until this happens, it is a key piece of precedent which will continue to shape the relations between home educating parents and their local authorities for the time being.
As more and more home educators stand their ground and insist on interpretations similar to mine, it will eventually come to court because if we refuse to back down then either we win by default or an LA somewhere has to secure a definitive judgement.
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