An open letter…

I read this article on TES the other day, and felt utterly dumbfounded once again at the lack of understanding of the laws that govern those who purport to know better than us mere mortals. So Mr Wood, this an open letter to yourself, and I really hope you take notice. I know you probably but won’t but there is always a glimmer, correct?

Please note I have corrected all my spelling errors.

So let’s start with this, and let me be abundantly clear. I completely agree that illegal schools need to be dealt with. However what new powers would help with this exactly? When they aren’t using the powers they already have appropriately. Home educators have reported illegal schools to their local authorities. To date, they still have not been dealt with. Why are OFSTED not using their section 97 powers properly?


Councils need new powers to allow them to intervene in illegal schools, inquiry head says

New powers are needed to allow councils to intervene in illegal schools and protect vulnerable pupils, according to the man ministers have appointed to rethink local authorities’ role in education.

Alan Wood is not due to start his Department for Education review into the future of local government in education until the new year.

But in an exclusive interview with TES, he revealed that he was already of the opinion that radical changes were needed to safeguard pupils outside mainstream schools who could be learning in unsafe and unhygienic environments.

Mr Wood said the issue of illegal schools – as well as unregistered schools – was one that was “growing and will not go away unless it’s dealt with”.


The law is very clear with regards to unregistered and illegal schools. So why are OFSTED not already using the full extent of the law to their advantage?

Section 96:

96 Unregistered independent educational institutions: offence

(1) A person must not conduct an independent educational institution unless it is registered.

(2) A person who conducts an independent educational institution in contravention of subsection (1) is guilty of an offence.

(3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 5 on the standard scale (or to both).

(4) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c. 44), for “51 weeks” in subsection (3) substitute “ six months ”.

Under section 97, OFSTED has the power to act:

97 Unregistered independent educational institutions: inspection

(1) Where the Chief Inspector has reasonable cause to believe that an offence under section 96 is being committed on any premises, the Chief Inspector may at any reasonable time—

(a) enter and inspect the premises, and

(b) inspect and take copies of any records or other documents which the Chief Inspector has reasonable cause to believe may be required for the purposes of proceedings in relation to such an offence.

(2) Section 58 of the Education Act 2005 (c. 18) (computer records) applies in relation to the inspection of records or other documents under this section.

(3) This section does not confer power to inspect or take copies of anything of a kind specified in section 9(2) of the Police and Criminal Evidence Act 1984 (c. 60) (legally privileged material etc).

(4) It is an offence intentionally to obstruct a person in the exercise of the person’s functions in relation to the inspection.

(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

If I can find this so easily through a simple google search and understand what it is saying, what exactly is stopping OFSTED from understanding the laws that govern them?

Now to the bit I don’t agree with so much. I am trying to think the best but this comes across as you either don’t know the laws, or case law covering home education or you do and you simply don’t care.


And he warned that there was “clearly room for bringing in new arrangements” to allow councils to find out what was happening to children being taught outside school.

“I certainly don’t think we can continue on without clear guidance as to how local authorities can ascertain what’s happening to children,” Mr Wood told TES. “If someone can say, ‘I am home-educating this child’, they are under no obligation to tell you any more than that or to comply with any of the questions of work or where the education takes place. There is no requirement for people to give you that information.”

Mr Wood’s call for change comes in the same week that Ofsted chief inspector Sir Michael Wilshaw said it was “bizarre” local authorities had “absolutely no powers” to find out what was happening to children not in school.

Mary Bousted, general secretary of the ATL teaching union, said that academisation meant more children fell through the cracks into illegal schools. “How can local authorities take responsibility for all children if they can’t get the numbers excluded from academies?” she said.

The Local Government Association (LGA) has called for councils to be handed powers to enter people’s homes if they decide to home educate their children.

In September, Richard Watts, chair of the LGA’s Children and Young People Board, said that children listed as home-schooled were at risk of attending illegal schools. “With limited powers to check on the work a child is doing, however, councils are unable to find out whether this is the case,” he said.


Wow, brand new information! (Sorry, I resorted to sarcasm…)

There are SO many points that you (and the LGA) have wrong with this. Is it so hard to look up the laws, case law and guidelines surrounding home education? Or is that too much work?

  • “If someone can say, ‘I am home-educating this child’, they are under no obligation to tell you any more than that or to comply with any of the questions of work or where the education takes place. There is no requirement for people to give you that information.”
  • Mr Wood’s call for change comes in the same week that Ofsted chief inspector Sir Michael Wilshaw said it was “bizarre” local authorities had “absolutely no powers” to find out what was happening to children not in school.

– Yes they do! First of all the LA is able to make an initial enquiry about the educational provision, to which case law  (Philip Vs Brown 1980) recommends that parents do respond.  Thanks S!

Then, if the LA has cause to believe a suitable education is not being provided, they can serve a formal Notice to Satisfy. The parent can respond to this either through a meeting (although the home ed community do generally recommend against this because of LA’s repeatedly overstepping their boundaries) or in writing which can take many forms. With beautiful examples in the EHE guidelines for LAs. 3.4 and 3.6

 

3.4 Local authorities should acknowledge that learning takes place in a wide variety of environments and not only in the home. However, if it appears that a suitable education is not being provided, the local authority should seek to gather any relevant information that will assist them in reaching a properly informed judgement. This should include seeking from the parents any further information that they wish to provide which explains how they are providing a suitable education. Parents should be given the opportunity to address any specific concerns that the authority has. The child should also be given the opportunity, but not required, to attend any meeting that may be arranged or invited to express his or her views in some other way. Parents are under no duty to respond to such requests for information or a meeting, but it would be sensible for them to do so.

3.6 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. 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 can local authorities take responsibility for all children if they can’t get the numbers excluded from academies?” she said.

Well that depends, what kind of responsibility are they referring to? The state does not make a very good parent.

If the meaning is to see where children have gone once they have left school, then it’s using this wonderfully handy, updated law – which has been in effect from 1st September 2016!

It even has a detailed table here for ease! http://www.legislation.gov.uk/uksi/2006/1751/regulation/8/made

Also explained here:

The proposals affect all non-standard transitions; this is whenever a child of compulsory school age leaves a school before completing the school’s final year or joins the school after the start of the first year. Under the proposals set out, schools (including independent schools) would be required to:

• inform their LA when they are about to delete a pupil’s name from the admission register under all fifteen grounds;
• record details of the pupil’s residence, the name of the person with whom they will reside, the date from which they will reside there, and the name of the destination school (where they can reasonably obtain this information);
• inform their LA of the pupil’s destination school and home address if the pupil is moving to a new school; and
• provide information to their LA when registering new pupils within five days, including the pupil’s address and previous school (where they can reasonably obtain this information). The proposals will also give LAs the discretion to require the same information on children leaving or joining the school at standard transition points, which occur when a child of compulsory school age begins school at the start of the first year or leaves at the end of the final year of that school.

In addition, there are two other proposed amendments relating to sections 8(1)(f)(iii) and 8(1)(h)(iii) of the Regulations which will require ‘reasonable enquiries’ to identify a pupil’s whereabouts to be performed collaboratively between the school and LA where there is continuous absence after a grant of leave.

  • The Local Government Association (LGA) has called for councils to be handed powers to enter people’s homes if they decide to home educate their children.

Councils already have powers to enter the home if there are welfare concerns. Education and welfare are separate and should not be conflated. They are not one and the same, despite LA protestations that they are. Section 47 covers welfare concerns, why is this constantly ignored? Or is it ignored because it doesn’t suit the agenda that all home educated children are ‘hidden’ despite Graham Stuart MP pointing during the Badman Review that our that EHE children are ‘unusually visible.’


47 
Local authority’s duty to investigate.

(1) Where a local authority—


(a) 
are informed that a child who lives, or is found, in their area—

(i) is the subject of an emergency protection order; or

(ii) is in police protection;
(iii) F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


(b) 
have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare. F2. . .


(2) 
Where a local authority have obtained an emergency protection order with respect to a child, they shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child’s welfare.


(3) 
The enquiries shall, in particular, be directed towards establishing—

(a) whether the authority should make any application to the court, or exercise any of their other powers under this Act [F3or section 11 of the Crime and Disorder Act 1998 (child safety orders)], with respect to the child;


(b) 
whether, in the case of a child—

(i) with respect to whom an emergency protection order has been made; and

(ii) who is not in accommodation provided by or on behalf of the authority,

it would be in the child’s best interests (while an emergency protection order remains in force) for him to be in such accommodation; and


(c) 
whether, in the case of a child who has been taken into police protection, it would be in the child’s best interests for the authority to ask for an application to be made under section 46(7).


(4) 
Where enquiries are being made under subsection (1) with respect to a child, the local authority concerned shall (with a view to enabling them to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable—

(a) to obtain access to him; or

(b) to ensure that access to him is obtained, on their behalf, by a person authorised by them for the purpose,

unless they are satisfied that they already have sufficient information with respect to him.


(5) 
Where, as a result of any such enquiries, it appears to the authority that there are matters connected with the child’s education which should be investigated, they shall consult [F4the local authority (as defined in section 579(1) of the Education 1996), if different, specified in subsection (5ZA).


(5ZA) 
The local authority referred to in subsection (5) is—

(a) the local authority who —

(i) maintain any school at which the child is a pupil, or

(i) make arrangements for the provision of education for the child otherwise than at school pursuant to section 19 of the Education Act 1996, or

(b) in a case where the child is a pupil at a school which is not maintained by a local authority, the local authority in whose area the school is situated.]

[F5 (5A)For the purposes of making a determination under this section as to the action to be taken with respect to a child, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—

(a)ascertain the child’s wishes and feelings regarding the action to be taken with respect to him; and

(b)give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.]

(6)Where, in the course of enquiries made under this section—

(a)any officer of the local authority concerned; or

(b)any person authorised by the authority to act on their behalf in connection with those enquiries—

(i)is refused access to the child concerned; or

(ii)is denied information as to his whereabouts,

the authority shall apply for an emergency protection order, a child assessment order, a care order or a supervision order with respect to the child unless they are satisfied that his welfare can be satisfactorily safeguarded without their doing so.

(7)If, on the conclusion of any enquiries or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or a supervision order they shall—

(a)consider whether it would be appropriate to review the case at a later date; and

(b)if they decide that it would be, determine the date on which that review is to begin.

(8)Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child’s welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so).

(9)Where a local authority are conducting enquiries under this section, it shall be the duty of any person mentioned in subsection (11) to assist them with those enquiries (in particular by providing relevant information and advice) if called upon by the authority to do so.

(10)Subsection (9) does not oblige any person to assist a local authority where doing so would be unreasonable in all the circumstances of the case.

(11)The persons are—

(a)any local authority;

(b)F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)any local housing authority;

[F7(ca)the National Health Service Commissioning Board;”, and]

(d)any [F8clinical commissioning group,][F9[F10Local Health Board] , Special Health Authority]F11[F12, National Health Service trust or NHS foundation trust]; and

(e)any person authorised by the Secretary of State for the purposes of this section.

(12)Where a local authority are making enquiries under this section with respect to a child who appears to them to be ordinarily resident within the area of another authority, they shall consult that other authority, who may undertake the necessary enquiries in their place.

Annotations:
Amendments (Textual)
F1S. 47(1)(a)(iii) and preceding word repealed (12.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 112(2), 116(6)(a), Sch. 8 Pt. 13
F2Words in s. 47(1) repealed (12.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 112(2), 116(6)(a), Sch. 8 Pt. 13
F3Words in s. 47(3)(a) inserted (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 para. 69; S.I. 1998/2327, art. 2(1)(y)(2)(u) (subject to arts. 5-8).
F4S. 47(5ZA) and words substituted (5.5.2010) for words in s. 47(5) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), arts. 1, 5(1), Sch. 2 para. 37(8)(a)
F5S. 47(5A) inserted (1.3.2005 for E. and 1.4.2006 for W.) by Children Act 2004 (c. 31), s. 53(3); S.I. 2005/394, art. 2(1)(g); S.I. 2006/885, art. 2(2)(d)
F6S. 47(11)(b) repealed (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), arts. 1, 5(1)(2), Sch. 2 para. 37(8)(b), Sch. 3 Pt. 2
F7S. 47(11)(ca) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 53(a); S.I. 2013/160, art. 2(2) (with arts. 7-9)
F8Words in s. 47(11)(d) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 53(b)(i); S.I. 2013/160, art. 2(2) (with arts. 7-9)
F9Words in s. 47(11)(d) substituted (1.4.1996) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. III, para. 118(7)(with Sch. 2 para. 6)
F10Words in s. 47(11)(d) substituted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961), arts. 2, 3 {Sch. para. 20(2)(f)}
F11Words in s. 47(11)(d) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 53(b)(ii); S.I. 2013/160, art. 2(2)(with arts. 7-9)
F12Words in s. 47(11)(d) substituted (1.4.2004) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), s. 34, Sch. 4 para. 79; S.I. 2004/759, art. 2
Commencement Information
I1S. 47 in force at 14.10.1991 see s. 108(2)(3) and S.I. 1991/828, art. 3(2)

 

  • In September, Richard Watts, chair of the LGA’s Children and Young People Board, said that children listed as home-schooled were at risk of attending illegal schools. “With limited powers to check on the work a child is doing, however, councils are unable to find out whether this is the case,” he said.

Repeat this after me…

A child in any kind of school establishment illegal, or otherwise by definition is not electively home educated. If a child is attending a school of any kind, it is more likely that their parents will say they are attending school. Because that IS what they are doing.

You need to tackle illegal schools, you need to tackle the lack of school places available to parents that mean hundreds, if not thousands of families are forced into home education against their will, you need to tackle illegal off-rolling by schools who don’t want ‘troublesome’ students on their school roll, leave parents wondering what the heck happens next, and when they will be sent work by the LA for their child to do because they have been tricked into removing their children from school.

None of this happens by demonising elective home educators, who actually are doing their part for society, are also reporting illegal schools that they know of and while doing so, are saving the government thousands of pounds by choosing to educate their children themselves and pay their taxes into the education system just like everyone else does.

Thankfully at least, the DfE seem to understand perfectly. At least for now.

A DfE spokesperson said: “Unregistered schools are illegal and unsafe. We have given Ofsted additional resources to root them out and take action through the courts.

“Where children are being put at risk or not receiving a suitable education, local authorities and police have clear powers to intervene.”

Yours,

A concerned home educating parent who quite frankly, is fed up of home education being blamed for the many government failures to follow the laws that govern it.

Fellow home educators, feel free to share this and add your name to it if you feel it is relevant to you and your family.

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4 thoughts on “An open letter…

  1. I so agree! Please add my name! Manchester City Council has a new policy (June 2016) which is not in line with statute or government guidelines, so right now I am waiting to find out when SS are being engaged for our lawfully refusing a home inspection re EHE.

  2. It’s harder to root out illegal schools than it may seem, because it hinges on the number of hours an individual pupil is being taught. (I’ve blogged about this and there’s information on my website as well)

    Alan Wood is an interesting character. He was controversial while at Hackney because of the Learning Trust among other things, and again as chief of the Association of Directors of Children’s Services, and he has made some controversial proposals about scrapping safeguarding boards which are currently going through parliament.

    The purported second stage of Alan Wood’s review looking at the local authority’s role in education services appears to have been delayed, and this area is in a mess anyway because it looks like when the Government scrapped its education bill recently it put local authorities in the position of retaining central education service duties which were to have been retained while at the same time the funding is being removed on the basis that the duties no longer exist. The Local Government Association has been making a pretty rubbish job of explaining this in my opinion.

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