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Information for Local Authorities and other professionals. (ENGLAND)

Written by Cheryl Moy

I have spent many years now talking with families and helping them work with their Local Authority, or helping them deal with ultra vires requests from an LA.  We have built up an amazing team of volunteers, who also work with their local home educators and Local Authority. Between us we have spoken with and worked with most LAs to help improve their service and create a good working relationship with local families. However there are still some reoccurring patterns in the behaviour from LAs, and their understanding of Home Education and the relevant guidance and laws.  I wish to address some of these and ask that if you work for an LA and would like to improve your service then we are more than happy, with local families, to work with you to re-write policies and letters and discuss good practice with staff.

I shall go over some of the more commonly misunderstood and misquoted parts of the EHE guidelines (ENGLAND):

2.6 Local authorities have a statutory duty under section 436A of the Education Act 1996, inserted by the Education and Inspections Act 2006, to make arrangements to enable them to establish the identities, so far as it is possible to do so, of children in their area who are not receiving a suitable education.  The duty applies in relation to children of compulsory school age who are not on a school roll, and who are not receiving a suitable education otherwise than being at school (for example, at home, privately, or in alternative provision).  The guidance issued makes it clear that the duty does not apply to children who are being educated at home.

This section means that if a child comes to the attention of the LA and it is unknown as to how they are educated, then the LA may make enquiries.  It would be good practice to make this contact in writing as turning up unannounced, or phoning the family, is bad mannered and not professional.  Many families feel like they have done something wrong and often feel bullied into agreeing to let EWO/CME into their home, when they’d much prefer not to.  If a family responds to the enquiries, saying that they Home Educate, then this is the end of this duty.

From experience, this contact is usually an EWO (or similar), and they very often try to claim things such as Home Education being illegal, that new laws mean they can enter the home, that the child must be seen and that forms have to be filled in.  I’ve also heard EWOs threaten to come back with the police if the family don’t allow access there and then.  These claims are not accurate and cause upset and tense relationships with the Home Education team.  So I advise that if you are an EWO/CME that you read the following carefully.  Your first contact can determine the relationship a family has with the LA.

3.7 First contact between local authorities and home educators often occurs when parents decide to home educate and approach the school (at which the child is registered) and/or the authority to seek guidance about withdrawing their child from school.  It is important that this initial contact is constructive and positive, and 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.

This section supports that first contact should really not be an EWO with no training in EHE.  A more constructive first contact would be an informal letter with information about any services available and local groups in the area – directly from the EHE person.  We see all too often that a family deregisters from school and within hours has an EWO on their doorstep, scaring the family.  Sometimes a member of staff from the school turns up demanding to know how the parent will educate.  It is disrespectful to turn up unannounced and generally deemed not to be good practice.  If you have concerns that the family have deregistered for reasons other than willingly choosing to Home Educate, then by all means write to them, or if it is really urgent then ring them.  But a parent doesn’t, and shouldn’t, have to explain themselves as to why they have chosen to Home Educate.

A common misunderstanding is that the EHE team think they have a duty to monitor, often attempting to monitor on a 3 monthly visit, even when there have been no concerns.  Some LAs think that demanding information from families about the education/copies of work and regular visits are part of their role, that it is ok to write and tell a family when they will be visiting, or that a ‘monitoring teacher’ will assess the work.  All of this is unacceptable, and good practice would be to write to a family and ask if they’d like to give you some information but they are not obliged to.

2.7 Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis.
However, under Section 437(1) of the Education Act 1996, local authorities shall intervene if it appears that parents are not providing a suitable education.  This section states that: “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.”

Clearly here it states there is no such duty, and that if it appears that a suitable education isn’t being provided the LA should intervene.  It does not mean that the LA can go looking for a reason.  Just like the role of social workers, they should make enquiries if they have concern, don’t ask every family once a year for information as to whether the child is fed, clothed and loved.

2.8 Prior to serving a notice under section 437(1), local authorities are encouraged to address the situation informally.  The most obvious course of action if the local authority has information that makes it appear that parents are not providing a suitable education, would be to ask parents for further information about the education they are providing.  Such a request is not the same as a notice under section 437(1), and is not necessarily a precursor for formal procedures. Parents are under no duty to respond to such enquiries, but it would be sensible for them to do so.

And

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.

Section 2.8 is often misquoted, using only the line ‘parents are under no duty to respond to such enquiries, but it would be sensible for them to do so.’  LAs fail to explain that this is in response to enquiries relating to causes for concern and not in response to their annual demands for information.   3.4 supports that these requests for information are in response to an LA becoming aware of a concern, not to be confused and used as a way to go looking for concern!

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.

Section 3.6 is often used out of context, as you will see (when looking at the guidelines)  the preceeding sections 3.4 and 3.5 discuss the LAs duty and recommended actions in response to concerns.  LAs often quote 3.6 and use it in relation to the initial informal enquiries and annual monitoring requests to try and convince families that they have to either meet or send in information, rather than as a follow on from responding to concerns.

LAs often use safeguarding as a reason to push for home visits and seeing the child.  The following duty is not one of going looking for welfare concerns; it is a duty to act if there are concerns.

2.12 Local authorities also have a duty under section 175(1) of the Education Act 2002 to safeguard and promote the welfare of children.  This section states: “A local education authority shall make arrangements for ensuring that the functions conferred upon them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare of children.”  Section 175(1) does not extend local authorities’ functions.  It does not, for example, give local authorities powers to enter the homes of, or otherwise see, children for the purposes of monitoring the provision of elective home education.

And

4.7 The welfare and protection of all children, both those who attend school and those who are educated at home, are of paramount concern and the responsibility of the whole community.  Working Together to Safeguard Children 200619 states that all agencies and individuals should aim proactively to safeguard and promote the welfare of children.  As with school educated children, child protection issues may arise in relation to home educated children.  If any child protection concerns come to light in the course of engagement with children and families, or otherwise, these concerns should immediately be referred to the appropriate authorities using established protocols.

Select Committee review.

Early in 2013 Graham Stuart MP chaired the Education Select Committee review on Home Education, the committee concluded that:

Section 2  Relationships between home educators and local authorities

The role of local authorities in home education 10. The role of the local authority is clear with regard to home education.[7] They have two duties: to provide support for home educating families (at a level decided by local authorities themselves), and if families wish it; and to intervene with families if the local authority is given reason to believe that a child is not receiving a suitable education. It is not the role of the local authority routinely to monitor whether a suitable education is being provided, and local authorities should not act as if it is, or cause parents to believe that it is.[8]

Section 11. Despite this clarity in Government guidelines, though, we heard evidence suggesting that a number of local authorities are currently acting outside the law, or at least making misleading statements with regard to home education; this, in turn, jeopardises relationships between local authorities and home educators. Educational consultant Alison Sauer told us that she had completed “a survey of all the local authority websites and [found that] there are only 30 that do not have ultra viresrequirements on their websites—30 out of 152”.[9] Ms Sauer further notes that the most compliant local authorities, based on their websites, are also those which “either have had ongoing input over a period of time from local home educators or have a strong knowledgeable member of staff”[10], suggesting the importance of co-operative working with home educators, to which we shall return.

Section 12. Local authorities have a responsibility to follow the law, and to be seen to do so. Considering evidence that only thirty do not currently have ultra vires statements on their websites, regarding home education, we urge all local authorities to undertake a swift review of their own material, and to ensure that their policies reflect the guidance available.

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