Elective Home Education
Legal Guidelines
INDEX
Page
Education Law 1
Parental Responsibilities 2
LEA Duties 3
Diverse Approaches... 5
Special Educational Needs 6
School Attendance Orders 9
Irregular School Attendance 10
Further Notes 11
Act numbers refer to The Education
Act 1996 unless otherwise stated.
Education is compulsory - school
attendance is not
The freedom to educate children at
home forms an intrinsic and essential element of educational provision in our
society, a right which has been protected by a succession of Education
Acts. The law is clear that while
education is compulsory, school attendance is not.
Education Law
The current legislation regulating
education in England and Wales is the Education Act 1996 (a consolidating act which incorporates and repeals
the 1944 Education Act and later legislation. Repealed law should no longer be
referred to).
The only sections relevant to
elective home education are: (emphasis added)
Parental Duties:
Section
7
"The parent of every child of compulsory school
age shall cause him to
receive efficient
full-time education suitable;
a) to his age, ability, and aptitude, and
b) to any special educational needs he
may have,
either
by regular attendance at school or otherwise."
LEA Duties:
The LEA's duties and powers in
relation to home-educated children are contained in the Education Act 1996.
These are fully set out in sections 437 to 443 of the 1996 Act and (except in
relation to special educational needs) are limited to the provisions of those
sections.
437. - (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.
Parental Responsibilities
Under section 576 of the Education
Act 1996, a parent is defined in relation to a child or young person as also
including any individual:
(a) who is not a parent of his but who has parental
responsibility for him, or
(b) who has care of him.
As parents are responsible for
ensuring that their children are properly educated, it is their decision
whether to use schools or provide education at home.
It is important to note that the
duty to secure education is stated entirely in section 7 and nowhere else.
Provided the child is not a
registered pupil at a school, the parent is bound by no other constraints. In
particular, there is no obligation
·
to
seek permission to educate 'otherwise';
·
to
take the initiative in informing the LEA;
·
to
have regular contact with the LEA;
·
to
meet with the LEA;
·
to
have premises equipped to any particular standard;
·
to
have any specific qualifications;
·
to
cover the same syllabus as any school;
·
to
adopt the National Curriculum;
·
to
make detailed plans in advance;
·
to
observe school hours, days or terms;
·
to
have a fixed timetable;
·
to
give formal lessons;
·
to
produce examples of ‘work’ for inspection;
·
to
reproduce school type peer group socialisation;
·
to
match school, age-specific standards.
De-registration
The grounds on which a pupil's name
must be deleted from the admission register are listed in Education (Pupil
Registration) Regulations 9, 1995
[SI 1995/2089]. Under regulation 9(1)(c), a 'school-age' pupil's name is to be
deleted from the admission register if:
he has ceased to attend the
school and the proprietor has received written notification from the parent
that the pupil is receiving education otherwise than at school.
If the parent writes to the
proprietor explaining that the child is being educated at home, the school is
obliged to take the child's name off the register, and the duty to secure
regular attendance thus comes to an end.
Since 1995 this has been an absolute legal requirement: no discretion is
involved. (Under regulation 13(3) the
proprietor of the school must also report the deletion of the pupil's name from
the admission register to the LEA ‘within ten school days’.) In this way the legal position of a parent
embarking on home-based education is the same regardless of whether or not the
child has been withdrawn from a school for this purpose. i.e., the LEA is entitled to make informal
enquiries of the parent(s).
LEA consent is required for the name of a child registered
as a pupil at a ‘special school’ – ‘under arrangements made by the LEA’, to be
deleted from the schools’ admission register. (Regulation 9(2) Education (Pupil
Registration) Regulations, 1995 [SI 1995/2089]).
The Regulations do not specify who should seek that consent.
Reasonably, such a request can be made by either the child’s parent, the
proprietor of the school, or both, in cases where it is the parental choice to
home educate. If the school has stated that it will, itself, seek LEA consent
for the child’s name to be deleted from the admission register, for example
where the parent has informed it that they have chosen to home educate, it is
advisable that the parent also seeks such consent themselves.
LEAs should not discriminate against parental choice to home educate their child by refusing such consent on the grounds that the child has SEN for whom it maintains a statement. If the authority does refuse to agree to such consent, the direction of the Secretary of State can be sought.
LEA Duties
The wording of the Education Act
1996 requires the LEA to act only if something comes to its attention
which gives it reason to suppose a breach of a parent's section 7 duty. It does not need to investigate any
instances of home education which come to its attention unaccompanied by any
grounds for suspicion that an adequate education is not taking place.
However, case law (Phillips v Brown, Divisional Court [20 June 1980,
unreported] Judicial review by Lord Justice Donaldson, as he then was) has established that an LEA may
make informal enquiries of parents.
Lord Donaldson said:
"Of course such a request is
not the same as a notice under s 37 (1) of the Education Act 1944 (now s 437 (1) of the 1996 Education Act) and the parents will be under no
duty to comply. However it would be
sensible for them to do so. If parents
give no information or adopt the course ………. of merely stating that they are
discharging their duty without giving any details of how they are doing so, the
LEA will have to consider and decide whether it ‘appears’ to it that the
parents are in breach of s 36. (now s7 of the 1996 Education Act.)"
LEAs should bear in mind when
considering the replies to such informal enquiries (and other more formal ones,
should the matter go that far) that parents taken to court for failing to
comply with a School Attendance Order only have to show the court that they are
providing a suitable education on
a balance of probabilities. That
is the test that LEAs must also apply.
Also a court will receive any evidence a parent produces, it will not
have to be in any specified form and it will be sufficient so long as it shows
that a suitable education is being given.
Similarly an LEA has no power to require that information be given to it
in a specified form or way.
The DfES acknowledge this on their web site:
4. LEAs have no automatic right of access to parents' home. Parents may wish to offer an alternative way of demonstrating that they are providing suitable education, for example through showing examples of work and agreeing to a meeting at another venue.
Another “example” might be
information provided in written form, sufficiently comprehensive to establish
competence and intention, and beyond the bare assertion that education is
taking place which Lord Donaldson determined was inadequate.
Many parents are quite concerned not
to have their child’s privacy invaded out of respect for the child’s autonomy,
and any hint of testing or examination by strangers with a different agenda can
be experienced as undermining.
Therefore for reasons of educational approach, some parents may not wish
to provide information to their LEA through home visits. Insistence or
assumption of a home visit by the LEA is a breach of Article 8 of the ECHR (the
right to privacy and respect for family life.)
It would be helpful if LEAs carry
out their duty to accept information provided in any reasonable and adequate
form, by not making a prior assumption of the normalcy of any particular
form this might take, but on first approach to present the parents with the
free choice the law supports.
In the case of R v Surrey Quarter
Sessions Appeals Committee, ex parte Tweedie (1963), Lord Parker held that:
'.....an education authority should not, as a matter of policy, insist on
inspection in the home as the only method of satisfying themselves that the
children were receiving full time education.'
There is no legal requirement for
the LEA to make continual enquiries.
Once in receipt of a reasonable account of the educational provision,
their legal obligation is fulfilled and no further contact is necessary. However, some parents may appreciate
continuous help, support and contact and under these circumstances further
contact can be arranged. Some LEAs
arrange 'drop-in' centres where families can maintain contact.
Diverse approaches to home education
The principle of parental choice is paramount. Families are entitled to choose what they
feel to be the most suitable educational approach.
The European
Convention for the Protection of Human Rights and Fundamental Freedoms,
Article 2 of protocol No 1 states:
No person shall be denied the
right to education. In the exercise of any functions which it assumes in
relation to education and to teaching, the State shall respect the right of
parents to ensure such education and teaching is in conformity with their own
religious and philosophical convictions.
One system cannot be expected to
cater for the needs and interests of all individuals, (many fail to thrive or
reach their full potential whilst receiving formal instruction in a school
environment). A variety of alternatives
in education is therefore important and the law protects this diversity.
A clearer interpretation of some
terminology used in the 1944 Education Act (repealed by the 1996 Act), was gained in the case of Harrison & Harrison v
Stephenson (appeal to Worcester Crown Court 1981). The term 'suitable education' was defined as one which
enabled the children ‘to achieve their full potential’, and was such as ‘to
prepare the children for life in modern civilised society’. The term 'efficient' was defined as
achieving ‘that which it sets out to achieve’.
Clearly this definition covers a
great variety of educational approaches.
There is no one 'correct'
educational system. All children learn
in different ways and at varying rates, and chronological age has little
bearing on the process. It would be wholly inappropriate for
example to seek to impose ‘reading and numeracy age’ scales on home educated
children, not subject to the specific educational methods in state
schools. Individual children come to
literacy and numeracy over a huge age range, which has no subsequent bearing on
their competence in these areas as adults.
It is vital that parents and children choose a type of education
which is right for them, and it is important that any LEA officers understand
and are supportive of many differing approaches or "ways of
educating" which are all feasible and legally valid.
Education Act 1996, Part V
(incorporating Education Reform Act 1988)
This deals with the National
Curriculum, stating in ss 351 to 353 (replacing
ss1&2) that it only
applies to children who are registered pupils of maintained (i.e. State or
State-supported) schools.
Home educators may choose whether to
base their studies around these guidelines fully, partially, or not at all.
The right of parents to choose to home educate their
children with special educational needs is upheld by section 7 of the Education
Act 1996 and applies regardless of whether a statement is maintained by the LEA
for the child or not.
'The parent of every child of compulsory school age
shall cause him to receive efficient full-time education suitable: -
(a) to his age, ability, and aptitude and
(b) to any special educational needs he may have
either by regular attendance at school or otherwise
It is important that
LEAs recognise that a child with a disability will not automatically have
special educational needs (SEN). The definition of a person with a disability
under the Disability Discrimination Act 1995 is not the same as the definition
of those children who have special educational needs under the Education Act
1996.
Children with SEN are defined as those having “a learning difficulty.. (the definition of which
includes a disability) ..which calls for special educational provision to be
made for him.”
Special educational provision is itself defined as provision which is
additional or different to that made available for children of the same age in
ordinary schools in their area. (section 312).
Accordingly, it is possible for a child to be disabled under
the DDA and not have SEN (and vice versa). Equally, it is possible for a child
to be both disabled and have SEN (and, of course, be neither).
Under sections 321 (2) and 323 (2), LEAs have a duty to
identify and formally assess only those children for whom they are
responsible, where
(a) he has special educational needs, and
(b) it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.
It is therefore not necessary for LEAs to identify
and formally assess electively home educated children of compulsory school age
that have, or probably have, SEN, where the child’s parents and the LEA are
satisfied that those needs can be suitably met by the parents ‘otherwise than
at school’. Conversely, it is necessary for LEAs to identify and
formally assess children of compulsory school age that are electively home
educated in the following instances:
·
the
child has, or probably has, SEN, the child is to become a registered pupil at a
school and it is considered unlikely that the child’s needs can be met within
the schools own resources (e.g. at School Action Plus).
·
the
child has, or probably has, SEN, the parents’ no longer wish to fulfil their
section 7 responsibilities by electively home educating and the LEA is of the
opinion that it is necessary for it to determine the special educational
provision which any learning difficulty calls for.
LEAs shall make and maintain a statement only for those children for whom it is necessary that the LEA, as opposed to the parent, determines the special educational provision necessary.
Section 324:
“(1) If, in the
light of an assessment under section 323 of any child’s educational needs and
of any representations made by the child’s parent in pursuance of Schedule 27,
it is necessary for the local education authority to determine the special
educational provision which any learning difficulty calls for, the authority
shall make and maintain a statement of his special educational needs.”
The statutory procedures for formal
assessment and making and maintaining a statement are contained in Part IV and
Schedules 26 and 27 of the Education Act 1996 (as amended by the Special
Educational Needs and Disability Act 2001) and The Education (Special
Educational Needs) (England) (Consolidation) Regulations 2001
Parents need to seek permission to home educate a child for
whom a statement is maintained only where a School Attendance Order is
in force. Otherwise, the fundamental parental right to choose to home educate a
child with special educational needs is in no way undermined.
Section
324 (5) of the Education Act 1996 places a statutory duty upon LEAs to arrange
the provision specified in a statement it maintains only if parents are
not themselves making suitable arrangements.
Section 324:
“(5) Where a local education
authority maintain a statement under this section, then
(a) unless the child’s parent has made
suitable arrangements,
the authority –
(i)
shall
arrange that the special educational provision specified in the statement is
made for the child……”
Where parents that are electively home educating their
child for whom the LEA maintains a statement of SEN are fulfilling their
responsibility under section 7 of the Act, they are indeed making ‘suitable
arrangements’.
Nowhere in
the legislation is there a duty placed upon parents to arrange the provision
specified in the statement maintained by the LEA for their child. LEAs cannot
conclude that a parent is failing to cause their child to receive suitable
education on grounds that the parent is not arranging the special educational
provision specified in the statement. Parental responsibilities are defined
entirely in section 7 and nowhere else. LEAs must accept that electively
home educating parents may choose alternative special educational provision or
an alternative approach to meeting their child’s SEN than that which is
specified in the statement.
Parental rights and duties are not affected where a
Special Educational Needs and Disability Tribunal (SENDIST) Order has been made
regarding the content of the statement. Accordingly, a parent is not required
to register their child as a pupil at the school named at Part 4 of the
statement, nor to arrange the special educational provision specified at Part
3, where the contents of these Parts of the statement are decided by the
Tribunal upon conclusion of an appeal.
LEA’s are absolved of their duty to arrange the
special educational provision specified in the statement it maintains where the
child is electively home educated. This does not prevent a LEA from offering to
arrange some, or all, of the special educational provision specified at Part 3
of the statement, although parents are free to decline such an offer. If the
LEA and the child’s parent are agreeable to the suitability of LEA arranged
provision for meeting the child’s special educational needs otherwise than at a
school, section 319 provides that such provision be specified in the statement
and duly arranged.
An LEA cannot insist that a child for whom it
maintains a statement or a child with SEN for whom no statement is maintained
be assessed by an educational psychologist, specialist teacher or similar in
order to establish that the parents are fulfilling their section 7
responsibilities. LEAs can only expect
a child to be presented for an assessment ‘examination’ when a statutory
assessment under section 323 is underway.
LEAs retain the duty to review a statement maintained
for a child that is electively home educated at least every 12 months, as
required by section 328 (5) of the Education Act 1996. Regulation 22 of The
Education (Special Educational Needs) (England) (Consolidation) Regulations
2001 prescribes the statutory procedures of such reviews and the matters which
must be considered.
Once a LEA is satisfied that a child’s special educational needs are being suitably met through elective home education and that parents are established in and committed to providing long term home educational provision, consideration to ceasing to maintain the statement should be made. An appropriate opportunity for such consideration would be when the statement is reviewed, although such consideration can be made at any other time. LEAs concerned that this may not be an appropriate course should recognise that statements should only ever be maintained “…where it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for…” (from section 324 (1)).
Education Act 1996 s 437-443, (previously s 192-198 1993 Act)
This begins:
"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...."
The formal steps provided for in
these sections should not be needed unless something has gone seriously
wrong. Nevertheless they are summarised
here for reference:
1. If the LEA has evidence that the educational
provision appears to be inadequate, the LEA must serve the parents with a
notice giving them at least 15 days to satisfy them that they are educating
properly.
2. If the parents fail to do this,
the LEA then has to consider whether it is expedient for the child to go to
school. If they think it is they must
serve a 'school attendance order', but before doing so they must serve a notice
stating which school they intend to name in the order, and giving the parents a
chance to choose an alternative. If a statement is maintained for the child,
the LEA must name the school specified in Part 4 and is not required to serve a
notice which allows parents to choose an alternative school. However, if no
school is named in Part 4 or if the school named is determined by the LEA to be
unsuitable, an amendment must be made in accordance with paragraph 10 of
Schedule 27 of the Education Act 1996. Accordingly, parents will have the right
to make representations against the contents of the statement, express a
preference for the name of a maintained school or make representations for
another placement and to appeal to the SENDIST, if necessary. Similarly, if the
parents request a change of named school, the LEA must comply with that request
in accordance with paragraph 8 of Schedule 27 and parents will be able to
exercise their right of appeal to the SENDIST if the LEA determines not to
comply. The LEA should not issue the school attendance order until the time
limit for lodging an appeal has lapsed.
3. The LEA serve a school attendance
order requiring the parents to register the child as a pupil at the school
named in it.
4. The parents can ask the LEA to
revoke the order because they are educating 'otherwise'.
5. The LEA can prosecute the parents
for not complying with the order, but the action will fail if the parents can
show the court that they are educating 'otherwise'.
The evidence a court requires to
satisfy it that adequate education is taking place, is such as would convince
‘a reasonable person’, ‘on the balance of probabilities’. (Under
section 447, whether they prosecute or not, the LEA must also consider applying
for an education supervision order.)
Irregular or Non-attendance at
School
Education Act 1996 s 444, (previously s 199 of 1993 Act derived from s 39 1944 Act)
This deals with the non-attendance,
or irregular attendance at school, of registered pupils. If poor/non attendance is due to severe
school anxieties, usually the Educational Welfare department becomes involved and
the family should be informed of all their duties, rights and available options
including education at home.
Many LEAs, when confronted with the
problems of School Phobia/Anxieties, School Refusal/Truanting, encourage
families to contact one of the home education support groups for help and
advice. This provides a useful alternative course
of action for officials, because if endeavours are made to pressure children
with the above problems back into schools under duress, the whole family (as
well as the child) suffers the ensuing stress and the truanting and nervous
illnesses inevitably continue. Education
at home may prevent further distress and the possibility of the child returning
to school at a later date remains an option.
Flexi-time or Part-time schooling
There may be families who would
prefer a flexi-time schooling approach.
Under s444(3)(a) of the 1996
Education Act
Any ‘school age’ child who goes to
school at all must attend regularly, but absence ‘with leave’ does not count as
irregular attendance. During such
absences the child is officially at school, but is effectively being educated
off site. (S)he is therefore covered
for insurance and attracts full funding.
Such arrangements are at the discretion of the school. (s 444 (9))
Further Notes
Truancy Patrols
It has unfortunately become
necessary in this revision to draw attention to the statutory guidance:
‘GUIDANCE DOCUMENT POWER FOR THE POLICE TO REMOVE TRUANTS’, as the widespread
experience of home educators around the country has revealed that many police
officers and accompanying EWOs have not read this guidance before undertaking
truancy patrols under the Crime and Disorder Act despite being required to do
so.
Section 4.21 of this guidance
states:
Local procedures should take account of possible
contact with such home-educated children and it should be emphasised that they
are not the target group for the new power. The power can only be exercised in
relation to registered pupils of compulsory school age absent from school
without authority; it does not apply to children who are lawfully educated at
home. No further action should be taken where children indicate that they
are home-educated - unless the constable has reason to doubt that this is the
case.
Some police officers and EWOs have
used the opportunity these actions provide to insist on names and addresses
being given, and refusal as a reason for doubt. There is no compulsory registration of home educators, therefore
to so insist against the clear direction contained in the statutory guidance is
an abuse, and an avoidable source of friction and resentment where it
occurs. Home educators and their
children have been advised that legally, once they have stated that they are home
educators, that as they commit no offence, they are entitled to go on their way
without further question, and that any further detention is unlawful.
It would be appreciated, at first
LEA contact, and in any written LEA guidance that the following web site be listed:
www.home-education.org.uk
This web site is independent of any
one organisation or educational philosophy, and is the home of the UK Home
Education web ring, linking with many other sites created as self help
resources by and for home educators.
All the home education organisations can be found through this one site.
The information, help and mutual support available is an unrivalled resource of
immense value to many.
This document is the work of a large number of home educators including,
but not exclusively, members of ‘Education Otherwise’ and ‘Choice in
Education’. It was edited, and has been
further revised in March 2003 by Neil Taylor, and checked for legal accuracy by
a team of home educating lawyers. It is
online at www.home-education.org.uk/guide.htm
Free copying and distribution of this document, unaltered and in its
entirety is encouraged.
Authenticity of the original can be verified by the editor contacted
through the above web site.