Written evidence submitted by Mr Simpson Millar


Home Education

Response from Simpson Millar


At Simpson Millar we provide education advice to individuals both on a Legal Aid and private basis. We are the only law firm to currently hold a contract with the Legal Aid Agency to deliver Education Advice. We deal with most issues relating to education provision and disability discrimination in a school/college setting, with a particular emphasis on Special Education Needs. In the context of home education, legal advice related to this provision is not covered under the Civil Legal Advice Scheme and thus we only have a very small handful of private clients who consult us regarding home education. We do not deal with criminal matters and thus most home education cases that are escalated down that route, we would not be able to deal with and refer out.


We do however regularly act for families who are home educating not because that is their primary choice but because of circumstances and often come across concerns regarding the level of support that is available to such families, particularly with a view to providing suitable support to get children back into education.


We advise clients on packages of provision for children being Educated Other Than At School (EOTAS) and often such provision can be deficient unless action is taken against local authorities by way of either a Tribunal process or Judicial Review.


  1. The Duties of Local Authorities with Regard to Home Education Including Safeguarding and Ensuring the Quality of Home Education


There are two systems by which children are educated outside of the school system most often in the home, namely EOTAS and Elective Home Education (EHE). 


EOTAS is defined by section 61 of the 2014 Children and Families Act and in essence a local authority has the power to name and make provision for EOTAS only if it is satisfied there are no other suitable school placements available.  EOTAS often takes place at home with a programme of home education. Particularly for children with special educational needs under an EOTAS regime there is a duty to implement the provision set out in section F of an Education, Health and Care Plan (EHCP). 


In our experience the need for EOTAS can arise for a number of reasons. For example, if a young person has been regularly excluded or removed from school placements (“off rolled”) or the young person is a school refuser or has significant anxiety around going to school based on a traumatic even. Local Authorities are not generally well set up to offer EOTAS provision and experience suggests that they either put forward very unsuitable alternative placements in order to absolve their responsibility for providing education, and parents feel they have no option but to home educate without support, or they fail to engage with parents, essentially with the same results.


EHE has different emphasis and is the term used in a legal context to describe parents’ decisions to provide education for their children at home instead of sending them to a school when ordinarily they may be able to attend a school. EHE takes a myriad of forms. Some parents choose to engage private tutors or other adults to assist them with providing suitable education but there is no requirement for them to do so currently.  Learning may take place in a variety of locations not just the family home. 


Parents choose to home educate for a variety of reasons and at the present time local authorities are not entitled to enquire as to the reason why a parent wishes to home educate but only the suitability of any educational provision they are making. 


Our experience demonstrates that the main reasons for home educating are:



Currently the legal responsibility for a child’s education rests with their parents, not the Government or the school system (section 7 of the Education Act), which states that the parent of every child of compulsory school age shall cause him to receive efficient full time education suitable to his age, ability and aptitude and to any special educational needs he may have either by regular attendance at school or otherwise

An “efficient” and “suitable” education is not defined in the Education Act 1996 but “efficient” has, in various legal cases, been described broadly as an education that 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.


Parents are currently not required to register or seek approval from the local authority to educate their children at home and currently must be prepared to assume full financial responsibility including bearing the cost of any public examinations.  Education must be suitable full time education for as long as they are educated at home. 


DfE guidance recommends that each local authority provides written information about EHE that is clear, accurate and sets out the legal position, roles and responsibilities of both the local authority and parents. 


Local authorities currently have a statutory duty under section 436a of the Education Act 1996 (inserted by the Education and Inspections Act 2006) to make arrangements to enable them to establish the identities, so far as it is possible to do so, of children in their area who are not receiving an education.  The duty applies in relation to children of compulsory school age who are not on a school roll and who are not receiving suitable EOTAS


Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis but under section 437(1) of the Education Act 1996 local authorities can intervene if it appears that parents are not providing suitable education, either by regular attendance at school or otherwise. Parents are required to satisfy the local authority in a period of not less than 15 days that the child is receiving such education.  If the local authority are not satisfied with the home programme then they may start non-attendance proceedings which are criminal matters and dealt with accordingly. 


If a child or young person has special educational needs the local authority still has responsibility for that child even if they are home educated (section 24(1) of the 2014 Children and Families Act).  Local authorities may in that instance want to formally assess a child’s needs.  If as a result of that assessment they are happy that the form of EHE is meeting needs then they may be happy to keep the status quo in place.  If not they may propose an alternative scheme or placement in which case the parents would have to prove the suitability of the home education to the tribunal.


  1. Whether a Statutory Register of Home Educated Children is Required


Although local authorities as set out above have a duty to establish identities of children who are not receiving suitable education this is only on a local basis and therefore there are instances of which we are aware, where children are moved around by their parents for whatever reason and slip through the net. There is no specific requirement for a register and if one was to be kept, coordination between local authorities would be essential and the register ought to be on a national basis not just a local basis.  Whilst it may not be possible to track every single child, having a national register would enable greater awareness of those families that do move their children for whatever reason.


Being able to nationally identify patterns of approach and support would assist when comparing with other data such as exclusion, mental health provision and tracking quality of education given to children being educated out of school. Poor practice would be more easily identifiable.


  1. The Benefits Children Gain from Home Education and the Potential Disadvantages They May Face


This very much depends on the reasons and rationale the parents provide for the desire to home educate.  As a firm we are most likely to hear from parents of children who are disadvantaged or who have special educational needs and often they report situations in school and lack of cooperation from local authorities which has left them with no alternative than to be forced down an EHE route, rather than a conscious decision to home educate for their own reasons. 


We have experience of children who do not thrive in what they perceive to be restrictive schools (for example where they are regularly placed in isolation and experience mental health issues, where home is a safer and more comfortable environment for them to learn). There are also a significant number of children removed from school (including a good proportion with special educational needs and from ethnic minorities) for various reasons including bullying. Support from other services such as CAMHS is so limited that children are unable to get the required provision to assist with re-entry to formal schooling. Families are left isolated with very limited options.


We also deal with a number of Traveller families and there is a lack of support from most local authorities to engage with these families. Practical and financial support is often lacking in order to make alternative education arrangements that are suitable to meet the needs of those particular children.  Traveller families face additional barriers to access any support that may be available (see below).


  1. 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


In our view, and in light of the client base we have described above, the current regulatory framework is insufficient.  Children whose parents are unable to provide a decent education in a home environment are completely failed by the system if those children are out of school for whatever reason.  These children and young people are often being home educated not through choice but as a result of the failures of the mainstream education system (off-rolling/insufficient provision for SEN) and failures in wider provision of joined up services to families including support in the community and with health, especially metal health, issues.


We have experienced a number of cases where clients have reported issues of their children and young people being extremely anxious and school refusing due to their mental health issues.  These children also have other underlying issues including in particular ASD.  The early interventions systems and the extra support from CAMHS that is so desperately required is not available and there needs to be a greater regime of help and support from experienced practitioners at an early stage.  CAMHS support is only available for the most extreme cases at the present time and the system leaves a significant proportion of young people vulnerable.  Too many families are being dealt with on a formulaic prosecution route and often the result of this is parents deciding to EHE to avoid the risk of prosecution.  By not having a suitable early intervention process the issues escalate and ultimately there are huge long term costs to the NHS and the wider society as the problems become more entrenched.  Significantly more resources need to be put into dealing with school refusal and social anxiety at an early stage and if it was done at that stage there would be considerable costs savings as opposed to the current situation.


Schools often focus on dealing with disaffection as behavioural, possibly because of the emphasis on league tables and other similar factors and do not always adopt strategies to prevent low level disruption before it escalates. This is almost always as a result of lack of funding and proper support from all services (local authority, CAMHS, social care). This means that more children end up excluded. As there is no legal aid funding available to support parents with the exclusion process and since the Exclusion Guidance was amended in 2012 (subsequent Guidance produced in 2017, but did not change appeal procedure significantly from the 2012 document) to remove proper appeal of exclusion decisions by Independent Appeal Panels, who can now only review a Governing Body decision on limited grounds, more children remain excluded and schools and local authorities are without robust independent challenge. Support for excluded children when out of school is not effective and parents often have no choice but to resort to home education. Families do not have the means (either financial or practical) to effectively challenge decisions made by school and the decision making process on appeal is flawed as very few Governing Bodies overturn the decisions of their own Head teachers. Local authorities also misunderstand Guidance on school admissions and many have internal policies that send children immediately down a route to a Pupil Referral Unit or similar rather than engaging with schools to take pupils. Many parents do not like this route and may end up EHE to avoid it. If parents have not chosen EHE themselves in our experience they are less engaged and able to provide suitable support at home despite their best efforts.


Many traveller children are home educated as a result of the failure of schools to deal with racist based bullying.  Often in those communities parents have also had a bad experience of school and do not want their children to suffer and therefore are likely to remove them from the system. The children often retaliate when bullied which in our experience leads to schools punishing them and following the exclusion route rather than addressing the key issues.  Parents often do not have the ability to assist with their children’s academic achievement or indeed to engage with the relevant authorities in the appropriate manner to ensure that sufficient provision can be made for their young people. 


We have also acted for children from what are perceived to be socio economically advantaged homes whose parents have taken children out of school and who are able to “fob off” occasional visits from limited and disengaged local authority staff (if indeed visits even happen at all as there is no power available to local authorities to enter a home against the wishes of a family when the child is being home educated unless abuse is suspected) leaving children to miss out on aspects of their education and in particular socialisation. This has led to the distress of the children (who we have acted for as older teenagers when they have rebelled against their parents).  No checks are currently made as to the wished and feelings of youngsters who are being home educated.



  1. The Role that Inspections Should Play in Future Regulation of Home Education


At the present time inspection plays a very limited role. As stated above, there is no power for local authorities to enter a family home to verify provision being delivered. Often provision of limited written information is accepted by local authorities who have limited resources and in our experience without a duty to comply, checks on what is actually being delivered “fall by the wayside”. Whether provision is suitable is at present a very subjective decision by an individual each local authority and can vary. There is lack of consistency without a proper inspection regime. A statutory set of criteria which covers more than academic issues should be considered. Socialisation and independence skills are equally as important and require consideration. This would need to be supported by a more robust way of ensuring delivery of the provision is being achieved. Entry to homes to verify is one method, but we anticipate that introduction of this could be controversial. However it is difficult to see how thorough any inspection can be without full evidence.


There needs to be significant investment in Traveller education teams in order that they can assist in stopping children ending up being home educated in the first place and more robustly assist in helping those who are out of school to return to school. 


Schools also need to be trained to fundamentally deal with the complex issues that arise when children with SEN and from certain backgrounds are bullied and dealing with this on a behavioural basis is not effective. There should be greater channels of support and early intervention rather than escalation to exclusion. 


Inspection also needs to reach children in more socially economically advantaged families where the parents are making decisions which are potentially highly detrimental to the children, as our experience shows that some children do not wish to be home educated, particularly those who are competent enough and of an age to express their own wishes and feelings.


  1. What Improvements Have Been Made to Support Home Educated Since the 2010-15 Education Committee Published Their Report on Support for Home Education in 2012?


There have been only very limited improvements, as the position of clients we see has varied little over the last 10 years. If anything the problem has been exacerbated by the limitation on a robust appeal against exclusion and funding cuts across the board which have left local authorities, health and social care unable to effectively make provision. EHE and EOTAS are two areas that fall behind as resources are prioritised and diverted to the majority in schools.


  1. The Impact Covid-19 Has Had on Home Educated Children and What Additional Measures Might Need to be Taken in Order to Mitigate Any Negative Impacts


There are some pockets of good examples (e.g. organisations like Oak National Academy) who have continued to provide additional measures to support during the Covid period.  It is very difficult to ascertain at this stage the impact Covid-19 has had on home educated children because in many ways if a regime of home education had already been set up by the family, this is likely to have been able to continue in the main unaffected by the pandemic. 


Simpson Millar has raised concerns previously in this forum regarding children with special educational needs not being given funding for provision and support to meet their needs during the pandemic.  Any child with an EHCP now has an entitlement to all the specified and quantified provision set out in section F as the Government has lifted the rules relating to relaxation of enforcement of that provision on local authorities. The situation is still slow to pick up now that schools have returned and there are still some minor pockets of disruption and failure to engage services, but in the main the system is operating almost as well as it did before. We have not seen a significant increase in cases relating to lack of provision than we would usually see at this point in the school year. The system still has many flaws and is not operating effectively, but those matters were clear before the pandemic.


Simpson Millar have also been concerned regarding children’s mental health on return to the school system and an increase in behavioural incidents which would lead to disaffected children and an increase in exclusions.  It is a little early at this stage to say whether that impact is clear at the present time as the children have only been in school for a six week period and of course the arrangements for them during that period have been very different to previous school arrangements.  It may be that in the lead up to Christmas as a result of a second lockdown and the ability to get out and about more frustrations will increase and we will in fact see a decrease in mental health and behavioural incidents in schools. We could in all likelihood see an increase in EHE if this occurs. With schools providing a lot of resources online, this makes it easier for parents to decide to EHE if they feel their child is not settling at school for whatever reasons. When schools are no longer providing this, it may be harder to get some of those youngsters back into education.


Simpson Millar


November 2020