~ Elective Home Education ~

he has ceased to attend the school and the proprietor has received written notification from the parent that the pupil is receiving education otherwise than at school.

If the parent writes to the proprietor explaining that the child is being educated at home, they are obliged to take the child's name off the register, and the duty to secure regular attendance thus comes to an end.

Since 1995 this has been an absolute legal requirement: no discretion is involved. (Under regulation 13(3) the proprietor must also report the deletion of the pupil's name from the admission register to the LEA 'within ten school days'.) In this way the legal position of a parent embarking on home-based education is the same regardless of whether or not the child has been withdrawn from a school for this purpose. i.e., the LEA is entitled to make informal enquiries of the parent(s).

The only circumstances under which parents are under an obligation to inform the LEA of the intention to home educate a child concerns pupils registered at a special school where parents must seek the consent of the LEA, and pupils with dual enrolment at a school and LEA-run referral unit or special school, where the consent of both proprietors is required.

However, case law (Phillips v Brown, Divisional Court [20 June 1980, unreported] Judicial review by Lord Justice Donaldson) has established that an LEA is entitled, though not required, to make informal enquiries of parents. Lord Donaldson said:

"Of course such a request is not the same as a notice under s 37 (1) of the Education Act 1944 (now s 437 (1) of the 1996 Education Act) and the parents will be under no duty to comply. However it would be sensible for them to do so. If parents give no information or adopt the course .......... 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 of s 36." (now s 7 of the 1996 Education Act.)

LEAs should bear in mind when considering the replies to such informal enquiries (and other more formal ones, should the matter go that far) that parents taken to court for failing to comply with a School Attendance Order only have to show to the court that they are providing a suitable education on a balance of probabilities. That is the test that LEAs must also apply. Also a court will receive any evidence a parent produces, it will not have to be in any specified form and it will be sufficient so long as it shows that a suitable education is being given. Similarly an LEA has no power to require that information be given to it in a specified form or way.

The DfEE acknowledges this in their information leaflet entitled "ENGLAND AND WALES EDUCATING CHILDREN AT HOME":

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"3. LEAs, however, have no automatic right of access to the parent's home. Parents may refuse a meeting in the home, if they can offer an alternative way of demonstrating that they are providing a suitable education, for example, through showing examples of work and agreeing to a meeting at another venue."

Another "example" might be information provided in written form, sufficiently comprehensive to establish competence and intention, and beyond the mere assertion that education is taking place which Donaldson determined was inadequate. Judge Roy Ward (in Harrison & Harrison v Stevenson, Worcester Crown Court 1981) maintained that, "The burden of proof is on a balance of probabilities only."

Many parents are quite concerned not to have their child's privacy invaded out of respect for the child's autonomy, and any hint of testing or examination by strangers with a different agenda can be experienced as undermining. Therefore for reasons of educational approach, some parents may not wish to provide information to their LEA through home visits.

It would be helpful if LEAs do not disguise their duty to accept information provided in any reasonable and adequate form, by making a prior assumption of the normalcy of any particular form this might take, but on first approach to present the parents with the free choice the law supports.

In the case of R v Surrey Quarter Sessions Appeals Committee, ex parte Tweedie (1963). Lord Parker held that:

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

There is no legal requirement for the LEA to make continual enquiries. Once in receipt of a reasonable account of the educational provision, their legal obligation is fulfilled and no further contact is necessary. However, some parents may appreciate continuous help, support and contact and under these circumstances further contact can be arranged. Some LEAs arrange 'drop-in' centres where families can maintain contact.

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School Attendance Orders

Education Act 1996 s 437-443, (previously s 192-198 1993 Act)
This begins:

"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...."

The formal steps provided for in these sections should not be needed unless something has gone seriously wrong. Nevertheless they are summarised here for reference:

1. If the LEA has evidence that the educational provision appears to be inadequate, the LEA must serve the parents with a notice giving them at least 15 days to satisfy them that they are educating properly.

2. If the parents fail to do this, the LEA then have to consider whether it is expedient for the child to go to school. If they think it is, they must serve a 'school attendance order'. But before doing so they must serve a notice stating which school they intend to name in the order, and giving the parents a chance to choose an alternative.

3. The LEA serve a school attendance order requiring the parents to register the child as a pupil at the school named in it.

4. The parents can ask the LEA to revoke the order because they are educating 'otherwise'.

5. The LEA can prosecute the parents for not complying with the order, but the action will fail if the parents can show the court that they are educating 'otherwise'.

The evidence that a court requires to satisfy itself that adequate education is taking place, is such as would convince 'a reasonable person', 'on the balance of probabilities'.

(Under section 447, whether they prosecute or not, the LEA must also consider applying for an education supervision order.)

A clearer interpretation of some terminology used in the 1944 Education Act (replaced by the 1996 Act), was gained in the case of Harrison & Harrison v Stephenson (appeal to Worcester Crown Court 1981). The term 'suitable education' was defined as one which enabled the children 'to achieve their full potential', and was such as 'to prepare the children for life in modern civilised society'. The term 'efficient' was defined as achieving 'that which it sets out to achieve'.

Clearly this definition covers a great variety of educational approaches.

There is no one 'correct' educational system. All children learn in different ways and at varying rates, and chronological age has little bearing on the process. It would be wholly inappropriate for example to seek to impose 'reading and numeracy age' scales on home educated children, not subject to the specific educational methods in state schools. Individual children come to literacy and numeracy over a huge age range, which has no subsequent bearing on their competence in these areas as adults. It is vital that parents and children choose a type of education which is right for them, and it is important that LEA officials understand that there are many differing approaches or "ways of educating" which are all feasible and legally valid.

Education Act 1996, Part V (incorporating Education Reform Act 1988)

This introduces the National Curriculum, stating in Ss 351 to 353 (replacing ss1 & 2) that it only applies to children who are registered pupils of maintained (i.e. State or State-supported) schools.

Home educators may choose whether to base their studies around these guidelines fully, partially, or not at all.

a learning difficulty which calls for special educational provision to be made.

A 'learning difficulty' is further defined in section 312 (2)

The right to home educate children with SEN is specifically upheld by Section 7 (b) of the 1996 Education Act.

"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."

No particular qualifications or special needs training are required by parents fulfilling their Section 7 duty by educating 'otherwise'.

Identification and assessment of children with SEN

if he is in their area and..... he is not a registered pupil at a school but is not under the age of two or over compulsory school age and has been brought to their attention as having (or probably having) special educational needs.

Under Section 321 (2) of the 1996 Education Act, LEAs have a duty to identify children for whom they are responsible if:

he has special educational needs, and it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.

This makes it clear that LEAs would only need to identify children with SEN if they need to determine the provision they would be obliged to make if the parents had not made their own suitable arrangements. This would include children not registered at a school by virtue of their age (over 2 but under 5, or over 16), but not children being educated otherwise than at school, by elective home education.

Under section 323 an LEA also has a duty to assess the educational needs of SEN children, where the same circumstances, inappropriate to home-educated children, apply.

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Further, Section 313 (2) of the 1996 Act gives LEAs a duty to have regard to the provision of the The Code of Practice on the Identification and Assessment of Special Educational Needs issued by the Secretary of State, giving 'practical guidance in respect of the discharge by local education authorities ... of their (SEN) functions'.

This 1994 Code of Practice states in Section 3:3:

An assessment ... should be undertaken only if the authority believe that they need or probably need to determine the child's special educational provision themselves by making a statement. But statutory assessment will not always lead to a statement.

Statements of SEN

Section 324 (1) states that

If, in the light of an assessment under section 323 ... it is necessary for the local educational authority to determine the special educational provision which any learning difficulty ...calls for, the authority shall make and maintain a statement of his special educational needs.

This means that a child who is new to home education, may already have a statement of special educational needs in place.

Section 324 (5) states

Where a local education authority maintain a statement under this section, then - a) unless the child's parent has made suitable arrangements, the authority -
specified in the statement is made for the child

Suitable arrangements include fulfilling their Section 7 duty by home education. Therefore, if a parent notifies the authority that they are providing education 'otherwise', the LEA no longer have a duty to maintain a statement of special educational needs.

Where a statementing procedure is embarked upon, the LEA has a duty to honour the rights of parents detailed in Section 326 and Schedule 27 of the 1996 Education Act and to inform the parent of those rights. An LEA may also consider issuing a `note in lieu of statement' as described in The Secretary of State's Code of Practice, where they perceive that it is not necessary for them to provide for the child's special educational needs themselves.

Deutsch & Wolf observe that :

"It was never the intention of Parliament to compel all children to attend school. Nor was it ever the intention to specify, or to empower LEAs to specify, the form and content of every child's education. Parents who wish to provide a 'proper education' for their children otherwise than at school cannot legally be prevented from doing so......, and parents do not need to obtain permission or approval from anyone. (Pg.3)"......

"...There exist many contending educational philosophies, giving rise to many different styles of education which are reasonable even though they differ radically amongst themselves .... The issue is not whether the education is approved of or disapproved of by the LEA or by anyone else." "Both among experts and among laymen there is no unanimous agreement as to what constitutes a proper education......"