Home from home?

Satnam Virdi looks at some of the issues raised for local authorities surrounding home education.

Home education can be a highly emotive issue for parents who choose to educate their child in this way, with some being hostile to any notion of state interference, as they see it, with their right to home educate. It can also present real challenges for the local authority, particularly where special educational needs are involved.

In March 2013, the Government formally responded to the Education Select Committee’s previous recommendations in relation to home educated children. This article summarises some of the issues which exercised the select committee and examines in detail the thorny issue of the amount of information which has to be volunteered by home educators to local authorities.

All parents are required to ensure that their children of compulsory school age receive efficient full-time education suitable to their age, ability and aptitude, and to any special educational needs they may have, either by regular attendance at school or otherwise, pursuant to section 7 of the Education Act 1996 (“the Act”). This education otherwise might be way of home education.

Figures are difficult to obtain, but some estimates suggest that 60,000 children are educated in England this way, about 0.6% of the school population.

Issues raised by the Select Committee

The select committee expressed concern that home educated young people received markedly different levels and quality of support dependent “purely upon their postcode”.

The committee encouraged local authorities to co-operate and learn from each other, and explore shared servicers. It suggested the development of a more formalised professional association or annual conference for home education officers. Home education officers should be situated within dedicated teams rather than be located with those working on attendance, children in care or safeguarding, the committee felt. The committee had concerns about the uniformity of high quality advice to those transitioning from home education to further education.

Potential difficulties for local authorities when parents decided to home educate

If parents decide to move to home education, all they need to do is simply send a letter to the school notifying their intention to educate at home. This letter then enables the school to delete the child from the Admission Register.

Government guidance summarises the position as follows: “On receipt of written notification to home educate, schools must inform the pupil’s local authority that the pupil is to be deleted from the admission register. Schools should not seek to persuade parents to educate their children at home as a way of avoiding excluding the pupil or because the pupil has a poor attendance record.

"Schools and local authorities should not seek to prevent parents from educating their children outside the school system. There is no requirement for parents to obtain the school or local authority’s agreement to educate their child at home.”

Local authorities will in such a situation have to be mindful of their duty under section 19 of the Act to "make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them."

The reference to “suitable education” mirrors that in the aforementioned section 7 relating to parent’s duties. Case-law suggests that education is "efficient" if it "achieves that which it sets out to achieve" and a "suitable" education is one that "primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child's options in later years to adopt some other form of life if he wishes to do so".

If the child is indeed receiving both a “suitable” and an “efficient” education, then responsibility for the education of the child would lie solely with his parents. But the local suthority assumes a duty if that is not the case.

However, it is not always easy for the local authority to make the necessary enquiries.

Government guidance on home education states “Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis”.

All of this creates problems for local suthorities, as the select committee noted with concern: “…local authorities can only intervene in home education if there is evidence that it is either unsuitable or inefficient. In a school situation, such evidence might be revealed by accountability tables, Ofsted judgments, or local intelligence, but this cannot apply to home educators for obvious reasons. However, guidance is equally clear that local authorities do not have the power to enter the homes of, or otherwise see, children for the purposes of monitoring the provision of elective home education.

"It is very difficult to be able to ensure that the children receive a 'suitable' education or to ensure that they are being protected when, without reasonable justification that the child is or is likely to be suffering significant harm, there are no grounds to insist on entry to the home for a monitoring visit.”

The select committee concluded that “some aspects of existing guidance require clarification, and we recommend that the Department for Education undertake a review of the guidance concerning home education, working with local authorities and home educators to iron out any tensions”.

The Government response to this is worth quoting in full: “We recognise the positive intent behind the Committee's recommendation, but we have no plans to change the way the current arrangements operate and no plans to amend the guidance on home education that was published by the previous Government. We do not feel that the evidence presented to the Committee was sufficiently strong enough to warrant a Government review. Local authorities and home educators should work together to iron out tensions”.

Perhaps this is to be expected from a government which is disinclined to increase guidance generally, and has a philosophical leaning towards freedom of choice and against “red tape”.

If it comes to a local authority’s attention that a child is being home educated, the existing guidance suggests that informal attempts are made to establish the suitability of the provision but it goes on to note that “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”.

This raises the interesting legal question – if a local authority has no, or patchy, information on a child, how can it appear to the LEA that the child is not receiving a suitable home education?

This argument was explored by the Divisional Court in the case of Phillips v Brown [1980]. It was argued by Mr Phillips, a parent prosecuted for the non-attendance of his child at school, that the LEA is in the same position as a policeman and “policemen do not go from house to house inquiring whether a burglary has been committed. Similarly LEAs should not oppress parents by inquiring whether there has been a breach”.

Lord Justice Donaldson gave the lead judgment. “It seems to me that where an authority has a duty to take action in particular circumstances, it also has a duty to be alert in order to detect the possibility that those circumstances exist,” the learned judge argued.

He continued “unless the LEA knows into which sub-category a particular child falls, it is put on inquiry”. The court even suggests that failure to investigate whether a child is being appropriately educated or in need of council support would be “an attempt to behave like an ostrich — to put its head in the sand in order that it should not learn of anything which might place upon it the burden of discharging its duty”.

The judge suggests the parents are asked, informally, for information, but noting they are under no duty to comply, but adding that it would be sensible to do so. This judicial advice is mirrored in the guidance.

“If parents give no information or adopt the course adopted by Mr Phillips 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. In this context there is no reason why it should necessarily accept the parents’ view — opinions differ on what has to be done in discharge of the duty — and if the parents refuse to answer, it could very easily conclude that prima facie the parents were in breach of their duty.”

Cases involving Special Educational Needs

Cases involving children with special educational needs are particularly sensitive. It is not unknown for parents to lose tribunals where they seek independent provision but then declare they will home educate rather than have their child attend the tribunal’s provision.

If the child is statemented, it remains the council’s duty to ensure that the child’s needs are met. The Statement must remain in force and the council must ensure that parents can make suitable, provision, including provision for the child’s special educational needs. If the parent’s arrangements are suitable the LEA are relieved of their duty to arrange the provision specified in the statement.

If, however, the parents’ attempt to educate the child at home results in provision which falls short of meeting the child’s needs, then the parents are not making ‘suitable arrangements’ and the LEA could not conclude that they were absolved of their responsibility to arrange the provision in the statement. Even if the LEA is satisfied, the LEA remains under a duty to maintain the child’s statement and to review it annually.

In that situation, the SEN Code of Practice recommends that Part 4 of the Statement does not require the specific name of any school but should state the type of school the LEA consider appropriate but goes but then go on to declare that: “parents have made their own arrangements under section 7 of the Education Act 1996.” The statement can also specify any provision that the LEA have agreed to make under section 319 to help parents provide suitable education for their child at home.’

Flexi-schooling

Flexi-schooling can be an area of difficulty for schools, and recently it seems, for central government as well. The practice was described in the 2007 Elective Home Education (‘EHE’) guidance as “an arrangement between the parent and the school where the child is registered at school and attends the school only part time; the rest of the time the child is home educated (on authorised absence from school). This can be a long-term arrangement or a short-term measure for a particular reason…Flexi-schooling is a legal option provided that the head teacher at the school concerned agrees to the arrangement.”

The Government had a brief change of policy on this, suggesting in February 2013 that "the law does not provide for a combination of both" home and school based education, and highlighting the irregularities of schools being funded for full-time pupils, yet only providing part-time education.

The Government have now reverted to their original advice – flexi-schooling is a lawful way to combine school-based education with education at home. It would not be surprising in the future to see the Government revisit this topic to try to clarify the funding implications of home education.

Satnam Virdi is a solicitor and principal at SV Law. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..This email address is being protected from spambots. You need JavaScript enabled to view it.