HED0286

Written evidence submitted by Professor of Law at Birkbeck, University of London

Response to call for evidence from the Education Committee about Home Education

Addressing the following issues:

1. The duties of local authorities with regards to home education, including safeguarding and assuring the quality of home education;
2. whether a statutory register of home-educated children is required;
3. whether the current regulatory framework is sufficient to ensure that the wellbeing and academic achievement of home educated children is safeguarded, including where they may attend unregistered schools, have been formally excluded from school, or have been subject to ‘off-rolling’;
4. the role that inspection should play in future regulation of home education;

• The 2019 Guidance has provided much needed clarification of the duties of local authorities. While not changing the substantive law in emphasising their positive obligations it represents a significant change and a more accurate interpretation of the law that that offered in the previous guidance. More specifically the new guidance now provides the following:

• a more precise interpretation of Phillips v Brown, acknowledging that it legitimises and requires that local authorities adopt a proactive approach in circumstances where informal requests for information from parents are not forthcoming;
• a clear acknowledgment that Section 436A of the Education Act 1996 and the statutory guidance relating to a local authorities duties to identify ‘children missing education’ not only applies to home educated children but forms a key part of the statutory framework;
• a clear acknowledgment and advice about the general duties under Section 13A of the Education Act 1996, the Equality Act 2010, Section 175 of the Education Act 2002, and Article 12 of the UN Convention of the Child.

• However in order to safeguard the education of children  - especially vulnerable children where EHE is less clearly a genuine choice of the parents -  further reforms which would be welcome and requiring legislation include:

1. A Statutory Register. This has long been debated and there are principled and pragmatic reasons that make the case for a register compelling. It would make absolutely clear that responsibility for ensuring that all children receive sufficient education is a responsibility that requires local authorities and parents to work together. The currently legitimate response from parents that they ‘do not need to tell local authorities’ is difficult to reconcile with the statutory duties on local authorities to ensure that all children are receiving a sufficient education. Now the 2019 Guidance acknowledges that the CME provisions relate to home education the case for a register is all the more compelling. It is not acceptable that local authorities do not know how many EHE children exist in their area. Requiring parents to indicate how they intend to ensure a child is receiving sufficient education does not in any way restrict their options. Local registers are already acknowledged as ‘good practice’. A register might also provide a space for the reasons why parents have made the choice; this would assist in developing local and national plans and inform policies about schooling as much as EHE. Information about children is held in other places - this is a familiar argument against a statutory register. If this argument is to stand - and for the reasons above it is questionable - then much more precision about how precisely and what sources should be utilised for this task need to be provided to local authorities in future guidance (and GDPR issues addressed).  

2. Unregistered schools. Clarification about responsibility is required here. OFSTED determines whether or not an unregistered out of school setting is an ‘illegal’ school. While local authorities have responsibility for ensuring that where EHE includes attendance at out of school settings the education is sufficient. Many of these cases are politically sensitive and complex and there is a risk that local authorities and OFSTED can, unintentionally and in many easy understandably, ‘pass the buck’. Wherever the threshold for a legitimate ‘out of school’ setting is set, EHE provides a loophole where avoidance of registration is favoured. Critical to this issue is the definition of ‘suitable’ - see below.

3. Off rolling. Despite repeated expressions of concern and helpful references to the issue in the 2019 Guidance it remains a significant problem. The argument for statutory reform here is consequently compelling. Research by OFSTED into this issue has reinforced the perception that what is described as a ‘cooling off’ period is required when a child is removed from a school’s roll in order to enable a local authority to meet with parents to ensure that the decision to EHE is a genuine choice. Placing an onus on schools to pause before removing a child’s name from the roll, a duty to inform local authorities and to provide a set number of days before removal would be a relatively simple measure to introduce. 

4. Listening and seeing EHE children. There remains in law a lack of clarity about whether or not a local authority can have direct contact with a EHE child. The 2019 Guidance makes clear what a local authority can do if not satisfied that a child is receiving a sufficient education or indeed it does not have the information it needs to make that decision. But the School Attendance procedures are a blunt tool in practice and some local authorities are more litigation averse than others. Introducing an explicit right for local authority professionals to meet with a EHE child would, in some cases, avoid the need for the SAO process to be commenced, speed up safeguarding referrals and avoid unnecessary ones. It reinforces the obligations under the UN CRC. 

5. The meaning of ‘sufficient education’ is inherently complex; it goes to the heart of complex political and philosophical debates about the purpose of education. Enabling local authority professionals to exercise their own judgments respects their professionalism and allows for a child centred approach. But against this a clearer threshold at the lower end would assist local authorities. Placing requirements of literacy and numeracy on a statutory basis creates a positive requirement while keeping the threshold low enough to enable parents to practice a wide variety of pedagogic practices. There is no recent case law on this issue and the much cited Talmud Torah case in many ways is out of step with the more integrationist approach evident in requirements about British values. The Guidance advises that local authorities should consider litigation here to ‘test the boundaries’ of current case law (para 6.22). There is an anomaly here between the very clear statutory approach adopted with regard to the content of school curricula (local authority maintained, academies and independent) and the approach here which leaves these questions, in the final analysis, to the judiciary. This is not satisfactory and coupled with notable local authority reluctance to bring cases to court leaves a key issue unanswered which leaves local authority professionals on the ground uncertain about strategies to adopt.

December 2020