A critique…

This post is a critique of the document sent to Stephen Bishop by the West Midlands forum. One day I hope that Local Authorities will understand their remit, and not only understand it, will stop trying to go beyond it, but that is unlikely to happen.

Frankly this document shows an inherent prejudice against home education with Local Authority staff, it also smacks of wanting the law changed so that they can have their bad practice approved by the state.

So in the meantime, I will keep home educating my wonderful little one and keep fighting for his freedoms.

I’ll also be feeling a bit like this….

This document should be the basis for supporting Local Authorities to develop their policies and strategies in meeting their statutory duties with regard to Electively Home Educated children and young people and was written in 2007. Many similar guidelines from central government have been recently updated (CME, Attendance, Safeguarding, and SEND etc) and in anticipation that this will happen with the EHE guidelines, The West Midlands Forum for EHE officers have collated these suggestions which may help with any such future update.

The guidelines are detailed but without clarity. The document is long and ambiguous in parts leading to various interpretations. Local Authorities and home educators need the guidelines to be clear and accessible to enable them to fulfil their roles effectively in the best interests of home learners. Many aspects of the ambiguities could only be changed by a change in law. Some ambiguities could be resolved by citing case-law which has set precedence of future expectations.

The voice of the child is not implicit in these guidelines.

I have one question: Are children who are sent to school asked if they want to be there and are happy there? If not, then the point about the voice of the child not being implicit in the guidelines is moot. If you take this document at face value about the voice of a child answer this: If a child at school said they wanted to be home educated, but their parents refused their request because they didn’t feel it would be the right decision, what would happen then? (It’s also being discussed over at ‘Dare to Know’ who has written an excellent piece about the voice of the child, and the implications that may bring.)

Given their lack of understanding in the rest of the document, I would certainly hope that government do not base their policies and guidance on this document.

Part 1

1.3 Consider that it states clearly the statutory responsibilities, the legislative and roles and responsibilities of LA’s and parents.

1.4 not necessary

This section of the guidelines is actually quite important. It states it is the educational provision that must be the primary concern NOT the reason for doing so. Given many Local Authorities consistently ask why parents are choosing to home educate, then this part of the guidelines needs to stay as it removes the scope for Local Authorities saying that the parents have not provided a good enough reason for choosing to home educate, as it clearly states that it is not their concern. Thereby respecting the family’s right (and the child’s right) to privacy.

Part 2

2.3 not clear what ‘efficient’ education is – better if quote full case-law based on Harrison case what court deemed efficient: Harrison and Harrison versus Stevenson 1982:

“While it was accepted that autonomous learning was recognised by educationalists as legitimate, the court added: In our judgement “education” demands at least an element of supervision; merely to allow a child to follow its own devices in the hope that it will acquire knowledge by imitation, experiment or experience in its own way and in its own good time is neither systematic nor instructive…such a course would not be education but, but at best, child minding.”

It elaborates and court held:

“We regard the fundamental academic skills of writing, reading and arithmetic as fundamental to any education for life in the modern world – essential for communication, research or self-education. We should not in the ordinary case, regard a system of education as suitable for any child capable of learning such skills, if it failed to instill in the child the ability to read, write or cope with arithmetical problems, leaving it to time, chance and the inclination of the child to determine whether, if ever, the child ever achieved even elementary proficiency in these skills.

Actually 2.3 is quite clear. The anomalies the EHE forum put forward about it however, show a clear lack of understanding of the case-law. Only part of the judgement became case-law, and that is the part which is quoted in the guidelines. The education has to be suitable to the child and as such to make it prescriptive could do untold damage to a child’s educational opportunities, as well as their piece of mind – particularly in situations where the child has had negative experience(s) in school.

IMPORTANT to quote

Efficient education should include a systematic approach to learning the basic skills of reading, writing and numeracy.

No it should not, because a systematic approach in the way Jenny Dodd means (and her interactions with the local home educating community in Staffordshire would support), is not a suitable approach for all children, and may cause harm to that child’s educational opportunities and indeed cause them not to receive an education that is suitable to their age, aptitude, ability and any SEN due to the very fact a one size all approach does not work. It also fails to take into account that it is almost impossible for a child not to learn, and the fact that home educators are actively engaged in their children’s education.

2.4 needs to say efficient and suitable end of paragraph? – what is DfE’s interpretation of full-time education? Registration would be good but would involve a change of law. Possibly look at all children of statutory school age being registered with LA.

No it does not need to say efficient and suitable. 2.4 follows on from 2.2. The government guidelines are referring to Section 7 of the 1996 Education Act which states clearly:


“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.”

The fact that some Local Authority staff (and those who work for companies contracted out by LAs) do not seem to understand this concerns me greatly, if they do not have even a basic grasp of the why the law is worded in the way that it is, then what hope do we have of them ever understanding how elective home education works?

Change of law for all children to be registered with the LA.

Now we get to the crux of it.
All children must be ‘GIRFECked’ – thanks to another home educator for that gem… (See GIRFEC petition in Scotland.) All parents are potential child abusers, incapable of providing a suitable education for their child, unless they are sent to school or it is proven otherwise and ratified by the state.

Legal position needs to spell out and not left to interpretation. Needs to include the interpretation of what an efficient education is as defined in case law by Harrison and Harrison versus Stevenson as above.

Question: If 17% of children are coming out of school ‘functionally illiterate‘ then how can it possibly be said that those children have received an education suitable to their age, aptitude, ability and any SEN if you apply the limits set by the West Midlands EHE forum? Currently it is accepted that what is right for one child, is not necessarily right for another and that all children learn at different rates, in different ways which is how it should (to use a word favoured by the EHE forum) stay.

2.6 Very confusing and needs re-wording ‘as far as possible.’ Section – CME identify EHE determine suitable education. Last sentence causes a great deal of confusion and damage to fragile relationships with community as there is an extremely hostile element.

The only ‘extremely hostile’ element with the community, is the attitude received by home educators from Local Authority officials… Frankly I would rather spend my precious time home educating my child, than dealing with the prejudiced, and frankly downright shameful actions of the Local Authorities. I would rather spend time with other home educating families enjoying watching our children have fun together, than having to comfort them when they have been bullied by the Local Authority. It isn’t a chore to support fellow home educators by any means, but you’re damn right I am going to be annoyed when they are caused needless distress, that would not have happened if the Local Authority followed the damn law and guidelines in the first place like they are supposed to.

‘As far as possible’ does not need re-wording. S436A states:

(1)A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—

(a)are not registered pupils at a school, and

(b)are not receiving suitable education otherwise than at a school.

(2)In exercising their functions under this section a local education authority must have regard to any guidance given from time to time by the Secretary of State.

(3)In this Chapter, “suitable education”, in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have. 

The Elective Home Education Guidelines for Local Authorities are guidance on the laws. Therefore ‘as far as is possible to do so’ is legally correct. Just because officials from Local Authorities don’t like that fact, does not make it any less true. The law is worded in a way that assumes the majority of society will act in a lawful way, and as such doesn’t place a duty on Local Authorities unless they are given reason to believe that parents are not carrying out their legal duty. In exactly the same way the Police would be expected to have reason to believe a crime has been committed before searching someone’s home. Again, it is worrying that those who are supposed to know this don’t seem to.

This a view supported when the original legislation was written.

http://hansard.millbanksystems.com/commons/1944/mar/21/clause-35-school-attendance-orders#S5CV0398P0_19440321_HOC_554

“This is the Clause which endeavours to secure that the parent carries out the duty imposed on him in Clause 34 to see that the child receives education suitable to his age, ability and aptitude. He is given the opportunity of doing that by sending the child to school or by having him educated otherwise. Obviously, in working out how this duty was to be enforced, the framers of the Bill had to have in mind some method by which the education offered otherwise than at school was to be tested for its efficacy and suitability to the age, ability and aptitude of the child. The manner by which that is sought to be achieved is first that there must appear to the local education authority to be a prima facie case that the education which the parent is providing is not suitable. That is the first examination of the efficiency of the education.”

New CME document November 2013 last sentence doesn’t appear to relate to the new CME document and can cause charities to actively dissuade families to engage with LA’s.

CME guidance has been updated since and does need to be re-linked to make things clearer, and re-affirm that the EHE guidance is statutory.

2.7 Need information in guidance of HOW – it’s going to appear to LA that education is not suitable.

Also perhaps clarify definition of routine monitoring.

It would be helpful if it stated in black and white that LA’s have the right to ask for information.

LAs do not have a right to ask for information unless they’ve been given a reason to believe that parents are not carrying out their legal duty. How hard is that to understand?

The guidance is clear.

Repeat after me….

LAs have NO statutory duties to monitor the educational provision.

– again how hard is that to understand? The only time the LAs would have any kind of duty would be if concerns about the educational provision were reported.

2.8 add in ‘insufficient’ and ‘parents are in breach of their duty’ and give reasons for request for information. Most obvious cause of action if the LA has (suggest adding) insufficient information that makes it appear that parents are not providing an efficient and suitable education – in other words in breach of their duty.

In last sentence state why it would be sensible for parents to provide information or explain to LA’s why not spelled out.

Again, it does not need changing. The law as it stands in the UK is that citizens are innocent until proven guilty. Therefore the Local Authority must have sufficient, clear-cut evidence to conclude that parents are in breach of their duty. To do otherwise, is unlawful. To say insufficient information implies they are not carrying out their duty is entrapment.

Very clear – the LAW.

They are right here, it is very clear. So why are some Local Authorities not following it?

2.10 ‘reasonable steps’ give examples of what these could be (Consider: – comment on letter on Education Otherwise website suggesting “educational work is property of child and won’t share with LA and as well it states it is neither the LA duty, nor right to pass the home education as satisfactory, but rather to act if it appears that I am failing in my duty to provide a full-time education suited to my child’s age, aptitude, ability and special educational needs. Should a court decide whether this is the case, it will be my task to present such information and evidence as would be sufficient to convince a reasonable person, on the balance of probabilities only, that a suitable education is taking place. The Court will receive evidence in any reasonable form. I consider that the information I have already supplied to you is sufficient to fulfil this criteria.”)

This isn’t advised unless the parent has already given information about the educational provision and they are still persisting with Ultra Vires demands. The child’s work IS their property and as such it is for them to decide who does or does not see their work. You can’t claim to want to uphold the child’s rights without accepting that some children simply may not want to share their work, or be subjected to visits from the LA.

2.12 Concern – safeguarding/welfare of children – this means that it’s no-one’s responsibility to see child is safe and well. Children can go under ground – Khyra Ishaq?
Who and how? Exemplar parent provides written information child no where to be found, no-one would know.

Repeat after me s-l-o-w-l-y…

Home Education is not a welfare issue. Khyra Ishaq was failed by social services, as stated in the judgement. They had sufficient welfare concerns and should have acted appropriately. This is a prime example of why welfare and education need to be kept separate and why the two should not be conflated. (Previously discussed in ‘The problem with if it only saves one…’)

It also appears that Khyra Ishaq was never de-registered in writing to be electively home educated – meaning Khyra Ishaq was truant from school for the period she was not attending, by law parents have to inform the school in writing that they wish to educate their child otherwise than at school in writing before the school can remove that child from the school roll. This combined with many reports from the school (at one point, 4 calls in 24 hours) social services had every cause for concern and should have acted appropriately, by not following the national guidelines Khyra Ishaq was failed by Birmingham City Council because due process was not followed and the EHE guidelines ignored, and ultimately died as a result of that failure.

https://www.whatdotheyknow.com/request/electively_home_educated#comment-9387

2.13 Needs to be taken out as it is no longer relevant under the present government.

As Every Child Matters is no longer in place, then it is correct that it is no longer relevant.

2.14 can be used by parents who don’t fully understand the roles of EHE officers and safeguarding teams – consider a reword.

“ However, this section does not place any additional duties or responsibilities on local authorities over and above section 175(1) of the Education Act 2002. “ – How is that not clear to parents? Maybe it is the Local authorities that need to look again at their own understanding?

2.16 Need child’s voice as they can sue parents if believe they haven’t received an efficient education so in turn the LA but this isn’t about service it’s about the rights of the child.

Yes, the child can sue the parents. The parents not the Local Authority, the parents have a duty to provide education, not the LA. 2.16 is very clear about the remit of the Local Authority. (Previously discussed in ‘that old chestnut…’)

2.17 mentions Contact Point – non-existent.

Again, Every Child matters has ended so this is correct.

Part 3

3.1 Very concerned here as we agree consult with home Ed and organisations for positive engagement but have real concerns that some of these charities organisations are actively discouraging and frightening those new to home education not to engage with the LA – believe that these organisations need to be held to account if it then discovered that the child is not receiving an efficient education.
Need some form of Quality Assurance of these organisations as 3.12 null and void as charities are not encouraging trusting relationships.

Home educators are never discouraged to engage with the Local Authority if they are contacted with initial contact asking for information about the educational provision, however it is recommended by some home educators that contact is kept in writing, because of Local Authorities repeatedly and un-ashamedly stepping beyond their remit. Staffordshire for example, has an awful reputation for this, and it is not unwarranted. Time, and time again they have gone back on their word, yet the local community still keep trying to work with them to improve relationships, why? Because law-abiding citizens do not deserve to be harassed simply because they have made a decision that is not the ‘norm’. Ultimately however it is encouraged that parents make the decision that is right for their family, as long as the choice is an informed one. How is asking Local Authorities to comply with the laws and guidance actively discouraging parents from engaging with them? What they actually mean is that parents are being discouraged from having visits. This is not the same as not engaging with the Local Authority. It is Local Authorities not adhering to the laws and guidelines that damages relationships and damages trust, not home education charities/groups discouraging visits. (Previously discussed in ‘Tensions’.)

3.3. This has training implications and LA officers would prefer professional training rather than charities/individuals set themselves up as trainers. This is where the setting up of a national body will be vital; ability to invite Daniel Monk and others.

Daniel Monk is not an expert, nor a professional on home education. There are NO professionals in elective home education. The only people who could be considered to be professionals in home education are the parents who are doing it with their children. Jenny Dodd (and others – as I’m not trying to single her out here, it’s just that she was the person who sent the e-mail to Stephen Bishop) have shown time and again, that they have a very narrow view of what education looks like.

3.4 Give an indication of time scales, possibly a flow chart of process. Unclear meaning/interpretation “if it appears” for example the LA has insufficient information to determine…
Ensure that it is clear that where the guidance states “should” it means must as the LA has a duty to carry out. May help home educators to be clear about what LA’s must do so avoid ultra vires claims against LA officers.

This section actually states that the LA should seek to gather any relevant information that will assist them in reaching a properly informed judgement.
Which law underpins this? Make it clear that CME/EHE are two sides of same coin. Is this to do with the 436A Education Act 1996 inserted Education and Inspections Act 2006? If so – refer to Phillips versus Brown 1980.

“CME/EHE are two sides of the same coin” 

– and here lies the problem. If some officials in Local Authorities have an inherent prejudice against home education such as this, how can they ever be expected to understand elective home education, and the limits of their power or the laws surrounding it? Furthermore – why were they chosen for the job?

Not only that case-law does not supersede actual law! The case-law is from 1980. The law was updated in 2006. ‘If it appears’ means exactly what it says. The Local Authority has to have information that would make it appear an education suitable to the child is not being provided – in other-words they must have some proof. Being told a child is home educated does not = an education not being provided and should not be treated as such without due cause for concern, to do otherwise without any reason to believe parents are not carrying out their parental duty and then say because information hasn’t been given then its reason to believe a suitable education is not being provided (as Staffordshire have done) is entrapment.

3.6 Too vague and doesn’t consider the child’s voice. Ambiguity in not allowing access to home/child is not the same as not engaging with the LA but it reads as though it is.

*3.6 could include 5.1 and 5.2 (as rest of part 5 is irrelevant)

“Some parents may welcome the opportunity to discuss the provision that they are making for the child’s education during a home visit but parents are not legally required to give the local authority access to their home. They may choose to meet a local authority representative at a mutually convenient and neutral location instead, with or without the child being present, or choose not to meet at all. Where a parent elects not to allow access to their home or their child, this does not of itself constitute a ground for concern about the education provision being made. Where local authorities are not able to visit homes, they should, in the vast majority of cases, be able to discuss and evaluate the parents’ educational provision by alternative means. If they choose not to meet, parents may be asked to provide evidence that they are providing a suitable education. If a local authority asks parents for information they are under no duty to comply although it would be sensible for them to do so.10 Parents might prefer, for example, to write a report, provide samples of work, have their educational provision endorsed by a third-party (such as an independent home tutor) or provide evidence in some other appropriate form. “

How is that vague? It spells it out crystal clearly, so why do Local authorities still struggle to understand it? Local authorities do not have a right of access to the home/child, and if they are going beyond their remit, they are quite rightly going to be called out on it. 5.1 and 5.2 deal with slightly different issues, so no it would not be appropriate to include them here.

3.7 refer to 5.1 but 5.2 could do with review in part.

“local authorities should provide written information (see paragraph 2.5) and direct parents to a range of useful contacts such as those described in paragraph 5.1.”

Staffordshire only provide links to local groups that support a school at home approach, and refuse to link to any they ‘don’t approve of’ – not exactly a range of contacts is it? Considering the wealth of groups available in Staffordshire.

Regardless, 3.7 is clear.

3.10 How is the DfE expecting us to be informed by parents at the point of coming out of school. Schools have to inform us not parents.

Again 3.10 is clear, it says Local Authorities can encourage parents to inform them directly, but that parents don’t have to.

3.12 Concern here that schools are now seeking to persuade families as a result of attendance regulations near exclusion and where they struggle to meet child’s needs especially emotional needs. Problem with insufficient number of school places (numbers trebling)

This is a Local Authority issue. Not a guidance issue. How exactly will changing the guidance on Elective Home Education solve the problem?

3.13 Doesn’t make clear what the parents role is as educators. Better to say what parents do have to do rather than not ie what is an efficient education
3.13 and 3.15 needs to include case-law to identify what education should include.

My role as an educator is to facilitate my child’s learning through following his interests and maximizing his educational opportunities that will help him to develop into a healthy, happy adult. The education has to be suitable to the child. 3.13 is exceptionally clear and section 7 states clear what the parental duty is about education. In Staffordshire the parents who have more positive experiences tend to be following the more structured/school-at-home approach, those who home educate in a more autonomous/child-led approach tend to have problems with the LA overstepping their remit and acting in an Ultra Vires manner. Staffordshire have also been asking recently for evidence of literacy, numeracy and reading citing case-law. Case law does not supersede the actual law. Section 3.13 exists because Local authorities keep acting in an Ultra Vires manner and it needs to be made clear that home education is not school.

3.16 Timescales – How long do we keep going before taking action?

The education is either suitable to the child or it’s not. 

3.18 Irrelevant due to new code of practice.

It does need to be updated to show the new law in place.

Part 4

4.1 Relationships tricky when EHE groups actively discourage engagement with LA.

FOLLOW THE BLOODY LAW AND GUIDELINES THEN.

Discouraging visits, is not discouraging engagement. Lancashire have a positive relationship with the local home educating community because they follow the law and guidance and understand their remit well. Where Local Authorities consistently act in an Ultra Vires manner, and ignore the law and guidance, then their relationship with the local community is going to show that. It’s not exactly rocket science is it? Most people don’t like being lied to.

Families carrying out their legal duty and following the law, should not be harassed if there is no evidence to suggest that they are not carrying it out. The law is reactive, it is not a proactive duty.

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3 thoughts on “A critique…

  1. Thank you for this…am trying to work way through it. re: voice of child, I think there is some relatively recent Jan 2014 guidance on pupil voice here:

    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/271814/Listening_to_and_involving_chidren_and_young_people.pdf

    I mean, we all know that it won’t mean that children really do either have a voice or get listened to, or get their views and preferences respected and acted upon, but I suppose it makes it difficult to claim that there isn’t at least a token equivalent right for schooled children.

    So rather than legal or guideline inequity, the problem is one of total hypocrisy. Whilst schooled children are nominally given rights to be engaged as “active participants in their education”, we know that this is a complete sop to fulfill the UNCRC briefing re rights of the child to be heard and doesn’t represent any real respect for the child’s voice, however cogent it may be adjudged to be by many who have thought outside the box.

    Home educators, on the other hand, really DO listen to the rights of the child. Not only that, but they actually ACT on the wishes of the child. …and all without guidance of any sort or kind.

    Already, way too often, I have seen absurd lip service paid to the notion that a child may actually have some voice and degree of autonomy with regard to his education. A child with demonstrable capacity says they want to be home educated, and the authorities blatantly ignore him. Social workers lie, pretending they never heard the child say that. Advocacy services nominally in post to represent the voice of the child, but appointed through LAs, simply back up the social workers, and don’t kick up the stink they should when they know SWs are lying.

    If this right for the child to be heard is to be written into the guidelines, I think we should say that this has to mean something. It has to mean that the adults adjudicating upon the matter must realise that all their knowledge is tentative. They may have NO idea whether a child’s view is or is not cogent, they cannot bring their own prejudices to bear upon the subject, but in due respect for proper democratic process, they should assume capacity/competency whenever there is no obvious evidence to the contrary and should therefore not only respect the right of the child to be heard, but should do their very best to not intervene in parental actioning of the wishes of the child.

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