The Law on Local Authority Contact

The Law and DfE guidance on Local Authority (LA) Contact - Latest APRIL 2019

(Relevant laws and information taken from government guidance in italics)

The following information applies to England although the procedure is broadly similar in Wales.  The Welsh Assembly Government has published its own Guidelines which, if anything, are more relaxed than the English guidance. In practice the Scottish system plays out much the same as in England. Their guidance can be accessed here.

Elective Home Education (EHE) is the term used by the Department for Education - and therefore local authorities - to describe parents’ decisions to provide education for their children at home instead of sending them to school. This is different from home tuition provided by a local authority, or education provided by a local authority ‘other than at a school’.

Local Authorities in England

Each of the 151 local authorities in England should have their own home education policy which sets out how their area will manage home educating families and how they will seek to gain contact and establish whether the education is suitable.

It is especially important that you read the policies from your local authority because this will set out how you will be treated, what they expect and how you can make a complaint.

New EHE guidance for local authorities and for parents was published on 2nd April 2019, following a consultation and call for evidence last year. Unfortunately, there does not appear to have been a big enough response to this consultation which has resulted in the new guidance being informed by an unrepresentative sample.

Although the laws underpinning home education have not changed (yet), this guidance sets out how the current law should be interpreted and how the local authorities should use their powers in relation to home educating families.

The guidance is, however, very ambiguous and still leaves a lot of room for interpretation. What constitutes ‘suitable’ education has not been defined any further nor is there any explicit guidance for the monitoring of EHE children; each local authority is free to decide their own system for dealing with home education.

‘There are no detailed legal requirements as to how such a system of oversight should work, and it is for each local authority to decide what it sees as necessary and proportionate to assure itself that every child is receiving a suitable education, or action is being taken to secure that outcome. Establishing a positive relationship between the local authority and the home-educating parent – where that is possible - will allow authorities to better understand parents’ educational provision and preferences and offer them appropriate support’.  

Many local authorities do not begin with establishing a positive relationship and are reluctant to offer appropriate support but hopefully, especially with the government consulting on support for home educators, this culture may change in the future.

“Parents have a right to educate their children at home, and the government wants the many parents who do it well to be supported. They devote time, financial resources and dedication to the education of their children. Most parents who take up the weighty responsibility of home education do a great job, and many children benefit from being educated at home”.

The new ‘children not in school’ consultation consults on proposed legislation to establish a duty to support parents who educate children at home and seek support from their local authority in doing so.

Home Educating

Parents may decide to home-educate their child from an early age and therefore the child may not have been previously enrolled at school. They may also choose to home-educate at any other stage up to the end of compulsory school age.

Parents are not required to register or seek approval from the LA to home-educate their children (unless they are attending a special school – see below and separate SEN guidance).

Parents who choose to home-educate their children must be prepared to assume full financial responsibility, including bearing the cost of any public examinations; this is a point the DfE appear to be pushing, in the guidance, even so much as encouraging the LAs to dissuade parents from educating by informing them of financial implications.

The government has made it clear, in the guidance, that local authorities should be understanding and supporting of home educating families and be open minded as to how they provide education.

Unfortunately, only days after the guidance was published, I received stories of local authorities sending letters to EHE families requesting a meeting and threatening legal action. This is not the best way to get on side with the home educating community.

Worryingly, the DfE have said:

“Where necessary - because it is evident that a child is simply not receiving suitable education at home and the use of school attendance powers is not achieving a change in that situation - the local authority should be ready to use its safeguarding powers as explained in this guidance. The overriding objective in these cases is to ensure that the child’s development is protected from significant harm.

SafeGuarding Powers

So, LAs have now been explicitly told that they can use their safeguarding powers in relation to home education and those considered to not be receiving a suitable education. The difficulty is - how can a local authority describe an education as unsuitable (and take further action) if there is no clear guidance on what is seen as a ‘suitable’ education?

Parents Responsibility

Parents must provide an efficient, full-time education suitable to the age, ability and aptitude of the child.

Home educating parents are NOT required to:

  • teach the National Curriculum
  • provide a broad and balanced education
  • have a timetable
  • have premises equipped to any particular standard
  • set hours during which education will take place
  • have any specific qualifications
  • make detailed plans in advance
  • observe school hours, days or terms
  • give formal lessons
  • mark work done by their child
  • formally assess progress or set development objectives
  • reproduce school type peer group socialisation
  • match school-based, age-specific standards

Right to Home Educate

The right to home-educate is conditional on parents providing a suitable and efficient education. Parents/carers can educate their children at home so long as they are fulfilling the requirements of Section 7 of the Education Act 1996.

  1. Duty of parents to secure education of children of compulsory school age.

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. (my emphasis)

In the new guidance it does reiterate:

“There are no specific legal requirements as to the content of home education, provided the parents are meeting their duty in s.7 of the Education Act 1996. This means that education does not need to include any particular subjects and does not need to have any reference to the National Curriculum; and there is no requirement to enter children for public examinations. There is no obligation to follow the ‘school day’ or have holidays which mirror those observed by schools”.

Although there is no definition of a ‘suitable’ education

“there should be an appropriate minimum standard which is aimed at, and the education should aim at enabling the child, when grown-up, to function as an independent citizen in the UK – and furthermore, beyond the community in which he or she was brought up, if that is the choice made in later life by the child”.

The guidance says that the local authority may use minimum expectations in assessing the suitability of the education but that this needs to take into account the age, ability and aptitude of the child or any special needs.

Are EHE advisors or EWOs (or whatever they may be called) in each area even qualified to assess the education?

I know, as parents, we do not have to be qualified but that’s because it’s assumed we come from the position of what’s in the best interest of our child and extensive knowledge of the child, but for a professional to be able to come in and say whether our education is good enough, whether the child is meeting minimum expectations, whether the education is suitable for the child’s special needs; I’d want to know they are qualified to make this decision.

The parents know the child inside and out, the local authority may have never met the child, yet they are able to make such a huge decision on their education. This is concerning.

“The department believes that although the primary responsibility for ensuring that children are properly educated belongs to parents, a local authority has a moral and social obligation to ensure that a child is safe and being suitably educated. If it is not clear that that is the case, the authority should act to remedy the position”.

The education at home ‘should not directly conflict with the Fundamental British Values as defined in government guidance, (although there is no requirement to teach these).

The part in brackets is an addition which clarifies that although the education shouldn’t go against British values, the values themselves do not have to be taught.

‘The local authority may wish to gain the child’s opinion on the suitability of the home education received (as distinct to the question of the child’s preference for being educated at home rather than at school), as this can be relevant to any decision it needs to make on whether the s.7 requirements are met’.

Child's Opinion

This is quite tricky ground – asking our children if they think the education, they are receiving is suitable?

Do they get this opportunity in school/ is their opinion on school ever considered?

Also, this causes problems for those who do not wish the local authority to have any contact with the child(ren). It does state, however, that although the child’s opinion will be taken into account it does not give the child authority over the parents, but could this produce a situation whereby the local authority may want to try and get the child on their side? (so, to speak), especially if the LA is in dispute with the parents over the suitability of the education.

The LA has no legal authority, still, to demand to see a child (unless there is safeguarding proceedings) so they can only gain this opinion from the children that are being seen with consent.

De-Registration

Once you have written to the school asking that your child's name be taken off the school roll (see our 'Mainstream De-registration' and SEN De-registration pages), the school must notify your Local Authority that your child's name has been removed from the register.

It was formerly the case that schools were obliged by the Education (Pupil Registration) (England) Regulations 2006 to notify the local authority that a child had been withdrawn for home education only when the school had been notified of this in writing by the parents. There is no legal duty for parents to provide this information in writing, although it is probably good practice and common courtesy to do this and to avoid a situation of unauthorised absence.

A parent could just withdraw a child from school without notice and without giving a reason; however, doing this may flag up as a concern with the school or local authority.

Although most local authorities encourage parents who withdraw a child from school, for home education, to notify the school and/or the authority, (and DfE guidance to parents also encourages this) there is no legal obligation on parents to supply such notification, either in writing or otherwise, or indeed to provide any reason for withdrawal.

The only exceptions to this are (a) that a child may not be removed from the roll of a special school without the consent of the local authority if enrolled there under arrangements made by the local authority, and (b) in cases where a child is enrolled at a school in accordance with a school attendance order, when the authority must revoke the order (or amend it to replace the school with a different school) before the child can be removed from the roll.

From September 2016, the Regulations were amended so that the local authority must be informed of all deletions from the admission register when this takes place at a non-standard transition time.

Local authorities may also need schools (including independent schools) to supply information, under arrangements set out by the authority concerned, about children who leave at standard transition times.

Local authorities are entitled to ask schools whether there is any further information available which would suggest that a child may now be home educated, but a school may genuinely not know the reason for the withdrawal from school.

Although the duty under s.436A means that local authorities must make arrangements to find out, so far as possible, whether home educated children are receiving suitable, full-time education, once that has been established local authorities have no specific statutory duty to monitor the quality of home education on a routine basis.

Essentially, LAs should only be enquiring about the quality of home education where there is a concern that a child is not receiving a sufficient education. However, local authorities are asking families (even those choosing to have no contact with the LA) to supply proof of the education they are providing for their child(ren). This is presumably so that they can tick those children off as receiving an education and needing no further investigation. Therefore, it is advisable to provide your LA with this information because otherwise they may infer that the child is not receiving a suitable education and LA proceedings may then follow which can, in some circumstances, lead to a School Attendance Order. See our page on writing a home ed philosophy.

The new guidance for local authorities and parents published on 2nd April 2019 makes it clear that if local authorities receive no information on the education being provided for a child, they have the right to assume that the child is NOT receiving a suitable education.

“the local authority’s task is to find out how he or she is being educated and whether that education satisfies legal requirements”.

Guidance for local authorities does attempt to remind them that children learn in diverse ways and at various times and speeds, but it is far less explicit than in previous guidance.

It should be appreciated that parents and their children may require a period of adjustment before finding their preferred mode of learning and that families may change their approach over time.

The DfE have, in this new guidance, made clear that they feel there is no legal basis for the process known as ‘de-schooling’.  We really don’t feel this needs any legal basis, it is common sense to allow a period of adjustment between leaving school and starting home education. It is, in fact, endorsed by experts.

It should also be made clear that parents from all educational, social, religious and ethnic backgrounds successfully educate children outside the school setting and these factors should not in themselves raise a concern about the suitability of the education being provided.

Home Visits

Home Educators do not have to accept home visits from their local authority/education welfare. However, once you have de-registered a child from school this usually, but not invariably, generates a first contact from the local authority. This is often from an Education Welfare Officer or an Elective Home Education officer, of some description, and will often be an enquiry to ensure that the child is safe, and that the parent has made an informed choice.

Many of these employees from the local authority do not have teaching qualifications; remember they CANNOT ask to assess the child's work or the child’s abilities.

Awareness and understanding of home education among local authorities is very variable. This initial contact may be followed by some attempt by the local authority to evaluate your educational provision.

LAs may not insist on home visits. They have NO RIGHT OF ENTRY into the home to check upon the child's education or your provision. Case law says:

ʺAn education authority should not, as a matter of policy, insist on inspection in the home as the only method of satisfying themselves that children were receiving efficient full time educationʺ

and:

ʺthe Act of 1944 (replaced by the 1996 education act) does not provide for or contemplate an intrusion of a parent’s privacy by inspectors coming into the home and that it is quite wrong for a local authority to insist on such inspection. ʺ

Informal enquiries can include a request to see the child, either in the home or in another location. But the parent is under no legal obligation to agree to this simply to satisfy the local authority as to the suitability of home education, although a refusal to allow a visit can in some circumstances justify service of a notice under s.437(1)

The above refers to a notice to satisfy which is when a parent is given an official notice giving them fifteen days to provide information that a suitable education is being provided.

This should normally follow informal enquiries and an opportunity for the parent to provide information. It should only come to a notice being served when the parent has failed to respond.

As unfair as this is, because it is not based in law, responding to local authorities (for now) is the only way to avoid an official notice being served and any subsequent School Attendance Order, Education Supervision Order or Care order being sought.

Children with SEN

“As with other children educated at home, local authorities do not have a right of entry to the family home to check that the provision being made by the parents for a child with special educational needs is appropriate, and may only enter the home at the invitation of the parents”.

Enforced Visit

An enforced visit can only be made where there is a genuine safeguarding concern or where the child is deemed to be at significant risk of harm. This would usually involve the social services department.

It has been known for local authorities to insist on a home visit and to otherwise threaten a referral to social services on welfare grounds.

To justify this, they may quote Section 175(1) of the Education Act 2002:

ʺA local education authority shall make arrangements for ensuring that the functions conferred on them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare of children. ʺ

Refusal to allow a visit may provoke the local authority to conclude that a suitable education is not taking place but if appropriate and detailed information is provided to the LA this should satisfy them that the law is being met.

Good Local Authorities

A good LA will be positive and supportive, will work with you, get to know your child and tell you about local groups and support networks.

They will explain that visits and form filling are not legal requirements and should provide you with some written information about the local EHE policies based on the governments EHE guidance.

If you read the guidelines and familiarise yourself with them, you are more likely to recognise when your local authority is acting outside of the law.

Regular Monitoring

This is a contentious, and complex issue. Some home educators never hear from their local authority (this is becoming quite rare now) although this is usually those that have never been in the school system.

It is usual for the LA to contact home educators, once they have become aware of them, to introduce themselves, provide a questionnaire to be filled in, ask for details on the education being provided and (if you’re lucky) to offer support and advice.

If you do not wish to have any or regular contact with your LA, you may still be required to provide them with information on the home education you are providing. The new 2019 guidance does state

“where it is clear that parents are educating a child well at home, the need for contact should be minimal and not made more onerous than is required by the parents’ own needs”.

And further states:

“The current legal framework is not a system for regulating home education per se or forcing parents to educate their children in any particular way. Instead, it is a system for identifying and dealing with children who, for any reason and in any circumstances, are not receiving an efficient suitable full-time education. If a child is not attending school fulltime, the law does not assume that child is not being suitably educated. It does require the local authority to enquire what education is being provided and local authorities have these responsibilities for all children of compulsory school age”.

Currently, the main focus appears to be on:

  1. Identifying those children that are being home educated (they are currently trying to collate numbers of home educated children in the UK)
  2. Asking for information on those children including why they are home educating; what sort of education is being provided and how.
  3. Whether the education being provided is suitable. (This is the main reason local authorities are demanding contact with home educators, at present)
  4. The obvious one – whether those children are at risk of harm in any way.

There is no legal duty for local authorities to continue to check your provision once they have accepted that you are supplying an adequate education and there are no further concerns.

Local Authorities are being advised to ordinarily make contact with home educated parents on at least an annual basis so the authority may reasonably inform itself of the current suitability of the education provided.

This will enable the local authority to fulfil its duty to serve a notice on any parent who does not appear to be supplying efficient and suitable education.

This contact does not have to take place face to face or in the home and this was, previously, included in the guidance. You can still request that all contact be carried out in writing allowing you to supply a report, education philosophies or examples of work etc to satisfy the authorities requirements. Unfortunately, not supplying evidence when asked, even informally, can result in the authorities assuming that the child is not receiving a suitable education and the LA taking further action.

“then it will normally be justifiable for the authority to conclude that the child does not appear to be receiving suitable education and it should not hesitate to do so and take the necessary consequent steps”

Our advice is to supply evidence of the education being undertaken because this often satisfies them and reduces demand for contact.

Remember, that this can be done in many forms and that education itself takes many forms; they must respect your way of doing things and that it may be quite different from traditional schooling.

Although ALL people working with children or families have a duty to ‘look out’ for any signs that a child may be at risk of harm, this does not mean that they are obliged to have contact with home educated children to check on their well-being or safety.

The duty simply means IF they spot any signs of concern, they must share this with the relevant agencies. It does not mean that they can go looking for signs of harm or that they must check that all home educated children are safe although this may now be how the guidance is being interpreted. Checking that children are safe is most definitely important, but it needs to be relevant and there needs to be some consistency in how this is carried out by LAs.

What constitutes a 'full time' education

Section 7 of the Education act 1996 stipulates that all young people of compulsory educational age must receive a full-time education.

There is currently no legal definition of what constitutes a full-time education, either at school or in the home.

Education which is clearly not occupying a significant proportion of a child’s life (making due allowance for holiday periods) will probably not meet the s.7 requirement.”

Although there is no need for home education to replicate school timetables, it may nonetheless be useful for it to be borne in mind that children normally attend school for between 22 and 25 hours a week for 38 weeks of the year, but this measurement of "contact time" is not relevant to elective home education where there is often almost continuous one-to-one contact and education may take place outside normal ‘school hours’.

The type of educational activity can be very varied and flexible. The department’s registration guidance for independent schools sets 18 hours teaching a week as the baseline for registration of the school.

However, in home education there is often continual one-to-one contact and education may take place outside normal ‘school hours’ and term time, and the type of educational activity can be varied and flexible.

Some LAs try to suggest that home educators should follow the same hours as schools. However, when supplying education to sick children unable to attend school, they tend to supply only around 5 to 8 hours tuition a week (at the most) and this is classified as full-time provision. So, 2-3 hours per day of home education would seem more than adequate.

Therefore, in many respects the term 'full time' is not really very helpful either to LAs assessment of home educational provision or to parents trying to work out what they are obliged in law to provide. Suffice to say that so long as the parents are providing an education suitable to the child's needs, that would be considered as sufficient to fulfil their obligations under the law. In any event most home educators, particularly those who autonomously home educate, tend to hold that education takes place during all waking hours.

What constitutes ‘efficient’ or ‘suitable’ education?

“The department does not believe that it is in the interests of home educated children, parents or local authorities for there to be detailed centralised guidance on what constitutes suitability. This issue should be viewed on a spectrum, and although there will be clear conclusions to be drawn at either end of that spectrum, each case must rest on a balance of relevant factors depending on the circumstances of each child”.

In terms of a ‘efficient’ education –

“An efficient education, within the meaning of s.7, is one which achieves what it sets out to achieve. It is important this concept is not confused with suitability. A wholly unsuitable education can be efficiently delivered – but would still be unsuitable”.

Elective home education Departmental guidance for LAs states:

it should always be borne in mind that there are no specific legal requirements as to the content of home education provided the parents are meeting their duty in s.7 of the Education Act 1996. This means that education does not need to include any particular subjects and does not need to have any reference to the National Curriculum; there is no requirement to enter children for public examinations. There is no obligation to follow the ‘school day’ or have holidays which mirror those observed by schools. Many home educating families do follow a clear academic and time structure, but it should not be assumed that a different approach which rejects conventional schooling is necessarily unsatisfactory or constitutes ‘unsuitable’ education”. (my emphasis)

  1. it should have a minimum standard which enables a child to participate fully in life in the UK by including sufficient secular education. This means that even if the home education is primarily designed to equip a child for life within a smaller community within this country it should not foreclose the child’s options in later life to adopt some other mode of living, and to be capable of living on an autonomous basis so far as he or she chooses to do so. This view is compatible with the small amount of potentially relevant case law;
  2. notwithstanding (a), the home education provision need not follow specific examples such as the National Curriculum, or the requirement in academy funding agreements for a ‘broad and balanced’ curriculum, nor the independent school standards prescribed by the Secretary of State14. Conversely, however, if the home education does successfully deliver one or more of those examples then that would constitute strong evidence that it was ‘suitable’ in terms of s.7;  g. Harrison & Harrison v Stevenson (Appeal, 1981, Worcester Crown Court, unreported) and R v Secretary of State for Education and Science ex parte Talmud Torah Machzikei Hadass School Trust (April 1985, unreported) 14 In regulations made under s.94 of the Education and Skills Act 2008 Draft 25
  3. local authorities should interpret ‘suitable’ in the light of their general duties, especially that in s.13 of the Education Act 1996 relating to the development of their community, and that in s.175 of the Education Act 2002 requiring that education functions are exercised with a view to safeguarding and promoting the welfare of children. Whilst these duties are very broadly drawn, it will be evident that if home education provided by a family taught children values or behaviour which was in clear conflict with the values of British society and would also be in conflict with ‘Fundamental British Values’ as defined in government guidance (for example by seeking to promote terrorism, or advocating violence towards people on the basis of their race, religion or sex), then it would not be in accordance with the authority’s general duties to regard that education as being ‘suitable’. However, there is no requirement on parents to actively promote the Fundamental British Values, as there is for schools;
  4. the first sentence of ECHR Article 2 of Protocol 1 quoted above confers the fundamental right to an effective education, and relevant case law confers very broad discretion on the state in regulating that law. For example, a local authority may specify minimum requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable;
  5. although it may well be a good starting point in assessing suitability to assess whether the curriculum and teaching have produced attainment in line with the ‘average child’ of the same age, it must be borne in mind that the s.7 requirement is that the education is suitable to the child’s ability and aptitude. If a child’s ability is significantly above or below what might be regarded as ‘average’ then allowances must be made for that; and similarly the home education may legitimately cater specifically for particular aptitudes which a child has even if that means reducing other content;
  6. factors such as very marked isolation from a child’s peers and being educated in an environment which makes it very difficult to learn (for example is very noisy or is otherwise very unsuitable environmentally) can indicate possible unsuitability.

The department does not, however, believe that it is in the interests of home educated children, parents or local authorities for there to be detailed centralised guidance on what constitutes suitability. This issue should be viewed on a spectrum, and although there will be clear conclusions to be drawn at either end of that spectrum, in between each case must rest on a balance of relevant factors depending on the circumstances of each child.

What can the Local Authority do to check the standard of home education?

‘Identification of children who have never attended school and may be home educated forms a significant element of fulfilling an authority’s statutory duty under s.436A of the Education Act 1996 - to make arrangements to enable the authority to establish, so far as it is possible to do so, the identities of children in its 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 at school (for example, at home, or in alternative provision). Until a local authority is satisfied that a home-educated child is receiving a suitable full-time education, then a child being educated at home is potentially in scope of this duty. The department’s children missing education statutory guidance for local authorities applies. However, this should not be taken as implying that it is the responsibility of parents under s.436A to ‘prove’ that education at home is suitable. A proportionate approach needs to be taken’.

Legally, the local authority does not have a duty to satisfy themselves that a suitable education is taking place. This is often misunderstood. The authority only has a duty to act if it appears that a child is not receiving a suitable education. In other words: they do not have a duty to go and seek children who are not receiving a sufficient education but have a duty to act if they come across such a child. The new government guidance, however, does encourage local authorities to go and discover whether each home educated child is receiving a suitable education.

“The current legal framework is not a system for regulating home education per se or forcing parents to educate their children in any particular way. Instead, it is a system for identifying and dealing with children who, for any reason and in any circumstances, are not receiving an efficient suitable full-time education”.

This doesn't mean that local authorities should routinely try to check or assess home education.  However, as mentioned previously, we think it is in your best interests to provide the authorities with information that satisfies them to avoid any concerns being noted or further action being taken.

As unfair as this might be from a legal perspective it is probably the best course of action.

 ‘If a child is not attending school fulltime, the law does not assume that child is not being suitably educated. It does require the local authority to enquire what education is being provided’

The section below, contained in earlier guidance, has been removed but this is common sense so is still relevant.

It is important to recognise that there are many, equally valid, approaches to educational provision. Local authorities should, therefore, consider a wide range of information from home educating parents, in a range of formats. The information may be in the form of specific examples of learning e.g. pictures/paintings/models, diaries of educational activity, projects, assessments, samples of work, books, educational visits etc”.

Although local authorities may informally ask for some information from parents about the education they are providing, this is not the same as a formal notice under section 437 which means you legally must respond. You will be made aware when you are being asked to supply information under these circumstances.

“If informal contacts do not resolve the position, then the 1996 Act provides a framework for formal action to ensure that a child does receive suitable education”.

Each Local Authority should have a clear written policy about elective home education; it is worth finding and reading this because it should say how they will seek to engage and communicate with local home educating families.

What formal measures can the Local Authority take if they do not think I am providing a suitable education?

The first course of action is to ask parents for information about the education they are providing.

Parents are under no duty to respond to such enquiries, but if a parent does not respond, or responds without supplying any information about the child’s education, then it will be amazingly easy for the authority to conclude that the child does not appear to be receiving a suitable education.

This has been highlighted in the new guidance and is confirmed by relevant case law.

According to government guidance issued to local authorities

6.4 “The department’s advice is that in all cases where it is not clear as to whether home education is suitable (including situations where there is no information available at all), the authority should initially attempt to resolve those doubts through informal contact and enquiries. This is likely to be the most productive initial approach even when a child is not being suitably educated. An authority’s s.436A duty (and that under s.437, see below) forms sufficient basis for informal enquiries. Furthermore, s.436A creates a duty to adopt a system for making such enquiries. Local authorities should be in no doubt about the necessity for doing this in order to make an early move to formal procedures under s.437 if necessary, thus avoiding delay in securing a suitable education when it is not being provided”.

In many cases, this will allow the situation to be resolved, either by evidence being provided that the home education is satisfactory, or by agreement on alternative approaches. Under section 437(1) Education Act 1996, Local Authorities shall intervene if it appears that the parents are not providing a suitable education. They can serve a notice in writing on the parent asking the parent to demonstrate that the child is receiving a suitable education no less than 15 days from the date that the notice is served. Informal enquiries can include a request to see the child, either in the home or in another location. But the parent is under no legal obligation to agree to this simply to satisfy the local authority as to the suitability of home education, although a refusal to allow a visit can in some circumstances justify service of a notice under s.437(1) or even a school attendance order.

Section 2.4 of Elective home education guidance for local authorities 2019:

it should always be borne in mind that there are no specific legal requirements as to the content of home education provided the parents are meeting their duty in s.7 of the Education Act 1996. This means that education does not need to include any particular subjects and does not need to have any reference to the National Curriculum; there is no requirement to enter children for public examinations. There is no obligation to follow the ‘school day’ or have holidays which mirror those observed by schools. Many home educating families do follow a clear academic and time structure, but it should not be assumed that a different approach which rejects conventional schooling is necessarily unsatisfactory or constitutes ‘unsuitable’ education.

The DfE has now made it clear that if a family do not respond or do not provide enough information regarding the child’s education a s.437(1) notice should be served.

“Local authorities considering whether they should serve a s.437(1) notice in a specific case should note that current case law means that a refusal by parents to provide any information in response to informal enquiries will in most cases mean that the authority has a duty to serve a notice under s.437(1). This is because where no other information suggests that the child is being suitably educated, and where the parents have refused to answer, the only conclusion which an authority can reasonably come to, if it has no information about the home education provision being made, is that the home education does not appear to be suitable. Local authorities should take care to ensure that the family has received any enquiries, and is not simply absent”

If your local authority does approach your family and ask for information, and you wish to provide that information, you might choose any number of ways to do so.

For example, you might offer either a written report; samples of work; a meeting at your home (with or without the child present); a meeting elsewhere (with or without the child); an endorsement of the educational provision by a recognised third party; or information in any other appropriate form.

So, in some cases, unless you provide the local authority with information on the child’s education, when asked, they can assume that either there is no education taking place or the education is not suitable and then they may take further action. If a local authority informally asks for information on the education being provided and this is not forthcoming, they may then issue a s.437(1) notice requiring parents to supply them with information on the education they are providing within 15 days of the notice being served.

It is only when a formal notice is issued under s437 that a local authority is required to be satisfied by evidence provided by the parents/guardians.

In other cases, this request for information is just ‘informal enquiries’.

If the LA are asking for formal evidence and information, it will be made clear that this is under s437 in relation to School Attendance Orders. Government guidelines also clarify that asking parents for further information or evidence of work is not the same as being formally requested under s437 (1) and is not necessarily a precursor for formal proceedings.

If a parent has been served a notice and has 15 days to provide evidence.

the information provided by parents should demonstrate that the education actually being provided is suitable and address issues such as progression expected and (unless the home education has only just started) achieved. It should not be simply a statement of intent about what will be provided, or a description of the pedagogical approach taken – this would not enable the authority to reach a legitimate conclusion that a suitable education is actually being provided.

The local authority may also consider information from other sources.

School Attendance Orders

If the parent does not satisfy the Local Authority within the notice period (15 days) that they are providing the child with a suitable education, the Local Authority can serve a School Attendance Order on them which, in effect, forces the child back into state school. The School Attendance Order names the school the child must attend and will direct the parents to register the child at the named school. The relevant legislation comes from section 437 -444 of the Education Act 1996.

“The local authority must consider any response made by the parent to the s.437(1) notice, in the light of s.437(3). Section 437(3) refers to the serving of school attendance orders: "If – (a) a parent on whom a notice has been served under subsection (1) fails to satisfy the local authority, within the period specified in the notice, that the child is receiving suitable education, and (b) in the opinion of the authority it is expedient that the child should attend school, the authority shall serve on the parent an order (referred to in this Act as a "school attendance order"), in such form as may be prescribed, requiring him to cause the child to become a registered pupil at a school named in the order."

This is usually a last resort and should only be done when all reasonable steps have been exhausted.

“The information needed to satisfy the test in s.437(3)(a) depends on the facts of the case and the judgement of the local authority. However, if the parent refuses to make any substantive response to a notice served under s.437(1) that refusal in itself is likely to satisfy the test in s.437(3)(a) - and such a parent should expect to be served with a school attendance order”.

The Order will name a school (which the parents may appeal to change) and offer the parents a period of 15 days to provide further evidence of suitable home education. The LA must explain in what way the parent’s response is unsuitable and be responsive to the parents during this time.

Since they are extremely expensive, LAʹs usually prefer to try every other avenue before serving a School Attendance Order and even where they are issued it does not inevitably mean that you must send your child to school or even that you will be going to court to defend your rights.

Section 437(3) refers to the serving of school attendance orders: "If – (a) a parent on whom a notice has been served under subsection (1) fails to satisfy the local authority, within the period specified in the notice, that the child is receiving suitable education, and (b) in the opinion of the authority it is expedient that the child should attend school, the authority shall serve on the parent an order (referred to in this Act as a "school attendance order"), in such form as may be prescribed, requiring him to cause the child to become a registered pupil at a school named in the order."

Where the authority imposes a time limit, every effort should be made to make sure that both the parents and the named senior officer with responsibility for elective home education in the local authority are available throughout this period. In particular, the Department recommends that the time limit does not expire during or near to school holidays when there may be no appropriate point of contact for parents within the local authority.

The parents can provide evidence at any time to request that the order is revoked. If the local authority refuses to revoke the order, parents can choose to refer the matter to the Secretary of State, who may give a direction to the local authority. If you are dissatisfied with the conduct of the local authority you can make a complaint to the Secretary of State for Education or the Local Government Ombudsman.

Whether or not the parents have sought revocation and intervention by the Secretary of State, if they do not cause the child to attend school then the authority will consider prosecution, and may go ahead with this, unless there is particularly good reason not to do so.

“Under s.447(1) of the 1996 Act, a local authority considering prosecuting a parent for non-compliance with a school attendance order must in any case consider, either as an alternative to prosecution or as well as prosecution, making an application for an Education Supervision Order”.

If the local authority does prosecute the parents for not complying with the order, then it will be for a court to decide whether or not the education being provided is suitable, full-time and efficient.

The court can direct that the order shall cease to be in force if it is satisfied that the parent is fulfilling his or her duty. It can also revoke the Order where it imposes an education supervision order.

“At any stage following the issue of the order, parents may present evidence to the local authority that they have now made satisfactory arrangements for the child’s education and apply to have the order revoked. This evidence must be considered, and the order must be revoked unless the authority is of the opinion, having considered that evidence, that the parents have not made satisfactory arrangement.”

If you do fail to comply with an SAO please note

“that the offence of not complying with a specific school attendance order is only committed once. Therefore, if a parent is convicted and fined, but still does not send the child to school, the process of serving a notice under s.437(1) and if necessary, serving a further order under s.437(3) must be undertaken again”.

This means that a parent could enter a cycle of continuously being prosecuted and fined for not complying and start the whole process again – in these situations (which I cannot imagine are common) the local authority has been advised to consider using other powers, such as safeguarding.

When a person is found guilty of breaching a school attendance order, the court can make a parenting order requiring the parent to attend up to three months of counselling or guidance (which can be specified by the local authority). This is, at present, exceedingly rare but something you need to be aware of in light of the new guidance.

Should you be issued with an SAO my advice would be to see a Lawyer who is knowledgeable of home education and the Education Acts.

Special Educational Needs

Parents' right to educate their child at home applies equally where a child has SEN. This right is irrespective of whether the child has a statement of special educational needs or EHCP or not.

The law regarding local authority contact for home educated children with SEN is the same for other children although you may have more contact if the child is receiving LA support or services.

“It can, of course, be the case that a local authority has no knowledge of a child’s special educational needs if the family has not sought assessment or support. However, local authorities have a duty under s.22 of the Children and Families Act 2014 to try to identify all children in their areas who have SEN. This includes home-educated children”.

Where a child has a statement of SEN or an EHCP and is home educated, it remains the local authority's duty to ensure that the child's needs are met.

You still have the legal right to home educate your child and your local authority or education authority will be responsible for maintaining and reviewing the statement or EHCP for as long as it remains in force.  However, unless the EHCP specifies provision at home to be made by the LA, the plan becomes a legally unenforceable document. The LA will no longer have a statutory duty to arrange the provision specified in the Statement and nor will parents (who have no statutory duty to provide such anyway).

The LA are still under a duty to review the plan at least annually, until such time as they cease to maintain it. Where a child is established in elective Home Education, it may be reasonable for the LA to conclude that it is no longer necessary for them to make provision or to continue to maintain the plan. Parents who no longer seek provision from the LA could write to the LA asking them to cease to maintain the statement, as it is no longer appropriate.  The law on special needs changed in England in 2014. The EHCP isn't enforceable on the parent.

Other than this, the rest of the home education law applies; there are no special provisions or expectations for SEN children other than for the parents/carers to provide education suitable:

(b)to any special educational needs he may have,

How this provision is provided and to what standard is not stipulated.

Guidance states:

When a child has a EHC plan, it is the local authority's duty to ensure that the educational provision specified in the plan is made available to the child - but only if the child’s parents have not arranged for the child to receive a suitable education in some other way. Therefore if the home education is suitable, the local authority has no duty to arrange any special educational provision for the child; the plan should simply set out the type of special educational provision that the authority thinks the child requires but it should state in a suitable place that parents have made their own arrangements under s.7 of the Education Act 1996. The authority will of course continue to check the suitability of the home education as required by sections 436A and 437 of the 1996 Act, and if at any point it considers that the home education is no longer suitable, it must ensure that the special educational provision specified in the EHC plan is made available.

The Children & Families Act 2014 defines Special Educational Needs and Disability (SEND) in the following way

  1. A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made for him or her
  2. A child or a young person of compulsory school age has a learning difficulty or disability if he or she:
    • has a significantly greater difficulty in learning than the majority of others of the same age, or
    • has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions
  3. For children aged two and over, special educational provision is educational or training provision that is additional to or different from that made generally for other children or young people of the same age by mainstream schools, maintained nursery schools, mainstream post-16 institutions or by relevant early years providers. For a child under two years of age, special educational provision means educational provision of any kind
  4. A child under compulsory school age has special educational needs if he or she is likely to fall within the definition in paragraph 2 above when they reach compulsory school age or would do so if special educational provision was not made for them (Section 20 Children and Families Act 2014)
  5. Post-16 institutions often use the term learning difficulties and disabilities (LDD). The term SEND is used across the 0-25 age range and includes LDD
  6. A child or young person does not have a learning difficulty or disability solely because the language (or form of language) in which he or she is or will be taught is different from a language (or form of language) which is or has been spoken at home.

Many children and young people who have SEN may have a disability under the Equality Act 2010 – that is ‘…a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities’. This definition provides a relatively low threshold and includes more children than many realise: ‘long-term’ is defined as ‘a year or more’ and ‘substantial’ is defined as ‘more than minor or trivial’.

Giftedness is not regarded in law as a ‘special educational need’ although a child may be gifted AND have a disability which prevents them from accessing mainstream education.

If the child is a registered pupil at a special school, the parent needs consent from the local authority before the child's name can be removed from the school register.

the name of a child who has under arrangements made by a local education authority become a registered pupil at a special school shall not be removed from the admission register of that school without the consent of that authority, or if that authority refuse to give consent, without a direction of the Secretary of State.

Special school deregistration is covered by 8.-(2) of the Pupil Registration Regulations, NOT 8.1. It is important to note that The regulations stipulate that the parent must seek consent or permission to have the child’s name removed from the register and NOT for permission to home educate the child with SEN.

“this should not be a lengthy or complex process and consent must not be withheld unreasonably”.

Some local authorities wrongly believe that a child becomes registered at a school by virtue of the school being named on the statement of special needs or EHCP. This is not the case.

The current position is that the child is a registered pupil from the "expected first day of attendance" which is the first day that the parent has agreed or notified the school that the child will attend.

For those with children who still have a statement and have not transitioned to the EHCP:

Transition provisions set out in the transition regulations (SI 2014/2270) enable existing statements to continue in place under the Education Act 1996 until an EHC needs assessment is concluded. This applies regardless of whether the Statement would have lapsed under the earlier system. For any child or young person in that position, local authorities will remain responsible for ensuring that the provision and placement in their statement continues to be made. If you are moving to another area and still only have a statement and not an EHCP, the receiving local authority may bring forward the annual review of the Statement or conduct a new assessment, but they are not obliged to do so – they may decide to accept and implement the Statement in its current form. Where LAs have Statements of SEN remaining beyond the end of March, they will be in breach of a statutory duty. There will be follow-up, by DfE, with every LA in that position.

Home educating parents can request an EHC needs assessment which may, eventually, result in an EHCP. You will need to collect evidence to demonstrate that your child has significantly greater difficulties than other children of the same age and would need much greater support than other children if he/she attended school or has a disability which prevents them from accessing their education in an ordinary school. More The process may take some time.

If the child were a pupil in school the school would also have to show that they had already made various adjustments and implemented various strategies and show that these had not worked. This is known as the ‘graduated approach’ or ‘Assess, Plan, Do, Review’ cycle. If you are asking for an EHCP because you believe your child would need one in school, you may find that the authority suggests enrolling the child in school first to see how it goes. You do not have to agree to this and there is a right of appeal against a refusal to assess. If you want an EHCP in order to get support while you are still home educating, you may be disappointed because the authority have been known to say that parents have opted out of such a system by home educating. Wanting an EHCP in the hope it will bring the possibility of Personal Budgets and Direct Payments also often finds parents disappointed because this is quite rare. The DfE does confirm:

Under s.19 of the Children and Families Act 2014, a local authority must have regard to the views, wishes and feelings of the child and parents when exercising its SEN functions. Where parents feel strongly that their child with SEN (with or without an EHC plan) should be educated at home but cannot undertake this themselves, and the local authority agrees that it would be inappropriate for the child to receive the necessary special educational provision in a school, post-16 institution, or state-funded early years setting, the authority has the power, under s.61 of the 2014 Act, to arrange for the special 27 educational provision that the child requires to be made in the child’s home. If a local authority does this for a child with an EHC plan, the plan should clearly explain the arrangements, and the authority will have a duty under s.42(2) to ensure that the education specified in the plan is provided.

Some home educated children have a number of complex SEN’s and Disabilities which require support and assistance from the LA. Under these circumstances it seems to be common sense that home visits can enable all the agencies involved to correctly asses the children’s needs in the home environment.

Safeguarding

Under education law, a local authority can take action if it appears that a child is not receiving a suitable education. However, the new EHE guidance for local authorities has brought safeguarding in relation to education firmly into the arena.

“unsuitable or inadequate education can also impair a child’s intellectual, emotional, social or behavioural development, and may therefore bring child protection duties into play. This will depend on the facts of the case, but local authorities should consider whether they ought to take action under safeguarding law, especially where the steps described above have not been, or seem unlikely to be, sufficient to address a risk to a child’s welfare”

Please note

 “Local authorities should approach all cases where the suitability of home education is in doubt using their powers in the Education Act 1996, but they should also be ready, if a lack of suitable education appears likely to impair a child’s development, to fully exercise their safeguarding powers and duties to protect the child’s well-being, which includes their suitable education”.

And

“A failure to provide suitable education is capable of satisfying the threshold requirement contained in s.31 of the Children Act 1989 that the child is suffering or is likely to suffer significant harm. ‘Harm’ can include the impairment of health or development, which means physical, intellectual, emotional, social or behavioural development, so the provision of unsuitable education clearly can amount to this. The causing of significant harm need not be intentional or deliberate, but case law11 indicates that it must be ‘considerable, noteworthy or important’. This is a key point for local authorities in considering whether the use of safeguarding powers is appropriate in a case relating to the home education of a specific child. However, local authority staff should be clear that when the use of safeguarding powers is justified, they should be used”.

What has Ofsted got to do with home education?

During inspecting local authority children's services, Ofsted inspectors ask LAs about children missing education and also ask for the number of home educated children along with how each local authority are dealing with home education. In April, 2015, Ofsted provided the inspectorate with guidance about home education which can be read here.

 
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