Draft EHE Guidance Consultation Response

This time round, I’ve not blogged. I said I’d always fight, but I’ve felt weary. I’m extremely grateful that many home educators have continued fighting this fight, breaking down the legalities, analysing wording, seeking advice, working together. I should have, but here we are. Having said that, I’ve submitted my consultation response, which I’ve also pasted below. It’s somewhat rushed, due to, y’know, being busy educating my kids and stuff. Maybe that’s why they didn’t solicit home educators’ responses, and didn’t include us on the dropdown to identify our interest. Consideration for our precious time. *eyeroll*

Anyway, my views are as previously. My belief in the presumption of innocence. My belief that government should focus on the services that they actually are responsible for. My belief in the primacy of parents in upholding their children’s rights. My assertion that this won’t just affect home educators.

If you’ve not completed it yet, go go! You have one day left, you can absolutely still do it. Join the Facebook group here if you need help. It doesn’t need to be perfect. We just need to be heard.

My response (Sprout is completing his this afternoon.)...

8. How effective are the current voluntary registration schemes run by some local authorities? What would be the advantages and disadvantages of mandatory registration of children educated at home, with duties on both local authorities and parents in this regard?

Generally, it has been seen that local authorities do not treat their 'voluntary' schemes as voluntary. This then creates a poor relationship between local authorities and the home educators in their area, with home educators reluctant to approach them even if they wanted to.

Mandatory registration of home educated children is wholly undesirable. Parents of all children in this country, both schooled and home educated, have responsibility, in law, for their education. Many choose to register them at a state school to achieve this, some choose to register at a private school, whereas parents who opt to do neither are retaining that responsibility fully and should have no need to register anywhere. To do so is to indicate that some of this responsibility lies not with the parents but with the local authority, and to shift some of this responsibility for education is a dangerous precedent. No other group of law abiding people is required to be on such a register; it is discriminatory and disproportionate. 

9. What information is needed for registration purposes, and what information is actually gathered by local authorities? Would it help the efficacy of these schemes, and the sharing of information between authorities, if there were a nationally agreed dataset or if data could be shared by national agencies, such as DWP or the NHS?

It would be absolutely unacceptable for children's data to be shared in this manner. Data sharing of this kind needs to meet the requirements of Article 8 of the European Convention of  Human Rights, not to mention the General Data Protection Regulation, and doing so simply on the basis that a child was home educated would not fulfil these requirements.

Not only is it unlawful, but it is completely undesirable for government to be suggesting that it would even want to share the data of its citizens in this manner.

10. Does experience of flexi-schooling and similar arrangements suggest that it would be better if the scope of registration schemes included any children who do not attend a state-funded or registered independent school full-time? If so, do you think that local authorities should be able to confirm with both state-funded and independent schools whether a named child is attending that school full-time?

Flexischooled children are registered with a school, and therefore should not be included within the scope of this guidance. 

11. Would the sanction of issuing a school attendance order for parental non-compliance with registration be effective, or is there another sanction which would be more useful?

It bears repeating again that I do not agree with a registration scheme. Should one be introduced, an SAO would not be a helpful or acceptable sanction, as it would not be focused on the suitability of the education for that individual child's age, aptitude or ability, as the law requires, and so has the very real potential to stop the child's education being suitable as a sanction against the parent. This is inappropriate, poorly thought out, and is using the child as a pawn of the state.

12. What steps might help reduce the incidence of schools reportedly pressuring parents to remove children to educate them at home?

This problem cannot be addressed with regulation of home educating families. It is schools that are taking inappropriate action in these cases, and it is they who should be regulated on this point. Fines for schools where this is reported would be one possibility.

14. How effective is local authority monitoring of provision made for children educated at home? Which current approaches by local authorities represent best practice?

Routine monitoring should not be undertaken, just as it is not undertaken to ensure that parents feed their children properly. The assumption of innocence should be maintained, and enquiries only made if there is the appearance of a problem. The current guidance already allows for this.

Many local authorities have very poor practice, where their documentation does not accurately reflect the law, so giving examples of those that have best practice is quite difficult. My former LA, Stoke-on-Trent, has no understanding of the ranges of effective approaches in home education and subsequently has extremely poor practice whereby they advise parents that there is a minimum number of hours which need to be dedicated to formal reading and writing. They wrongly quote case law that they say supports this. This has no basis in law, is not suitable for every child's learning style, does not focus on each individual child's age, aptitude, ability or special needs, and it created a hostile relationship, alienating the home educators in their area.

Currently, both Lancashire and Hampshire use good practice, recognising that, as is the law, most citizens are law abiding, and only making informal enquiries if concerns are raised, and then seeking to obtain evidence where concerns are apparent. This is not only desirable based on the important presumption of innocence in this country, but also because it allows the local authority's resources to be used in a much more targeted and cost-effective manner, rather than wasting them on monitoring an entire section of the population who are mostly going about their law-abiding business.

15. If monitoring of suitability is not always effective, what changes should be made in the powers and duties of local authorities in this regard, and how could they best ensure that monitoring of suitability is proportionate?

Routine monitoring should not be undertaken.

The current powers that local authorities already have are not even used effectively. There is widespread practice of local authorities not using their powers effectively with regards to welfare, and then conflating the resultant issues with home education. On the flip side, their powers to make enquiries, should concerns be raised regarding home education, are widely overstated by them to their local communities, and operated as routine monitoring schemes.

As previously stated, most home educators fulfil their duty in law with respect to educating their children, as they do for their other parental duties. Local authorities need to recognise this, and use their existing powers properly, lawfully, and in a cost-effective manner, using them to look into cases where concerns are raised that the education may not be suitable. They should not be given additional powers when they cannot properly use the ones they have.

It would be prudent to create a simple facility by which home educators can make a complaint when local authority staff abuse their powers. The current options are not easily accessible for most families, and leave the gate open for local authorities to continue abusing their powers on a regular basis, which is both financially wasteful and undesirable in terms of building good relationships with local home educators.

16. Should there be specific duties on parents to comply with local authorities carrying out monitoring if such LA powers and duties were created, and what sanctions should attach to non-compliance?

There should absolutely be no duty on parents to comply with enforced monitoring. The parent should always be the arbiter in the first instance of what a suitable education is for their own child in accordance with their age, aptitude, ability and any special needs they may have. Any suggestion otherwise is completely undermining the role of the parent in this country, and monitoring parental roles sets a dangerous precedent. Not only that, but for children, particularly those with special needs, the very act of monitoring is intrusive and could easily derail the process of their own, personally suitable education.

The local authority should only begin to play a part when concerns are raised that the duty may not be being fulfilled. The Court's role is then to sanction parents who fail in their duty, at the end of the full legal process leading to the enforcement of an SAO. This is not, and should not, be the role of the local authority.

There should be no sanctions for non-compliance. Giving local authorities such a power would be inappropriate and heavy-handed, particularly in view of the facts that LAs tend to abuse the powers they already have, and that many home educated children are recovering from the LA's failure to fulfil their service of providing a safe and suitable education themselves in school. 

17. Is it necessary to see the child and/or the education setting (whether that is the home or some other place), in order to assess fully the suitability of education, and if so, what level of interaction or observation is required to make this useful in assessing suitability?

This should absolutely not be necessary. This would be massively intrusive and my children would be very upset at this encroachment into their home. The child's needs should be at the centre of any guidance regarding their education, yet the effect on them of these kinds of unprecedented measures does not seem to be being considered. This is our home, we are law-abiding citizens, and it is not acceptable for the government to force such a huge intrusion. Who else has the power to come into people's homes, warrant-free, on a routine and regular basis? It's shocking that this is a possibility.

Should concerns be raised regarding the suitability of the education being provided, an education officer with the proper skill set should surely be able to assess, from a written report, whether the provision is suitable and whether it addresses the concerns. 

18. What can be done to better ensure that the child’s own views on being educated at home, and on the suitability of the education provided, are known to the local authority?

"What can be done to better ensure that the child’s own views on being educated at school, and on the suitability of the education provided, are known to the local authority?"

While all the many home educated children that I know would absolutely choose to continue home education, and have/take the option to go to school should they want to, there is no process in place for the local authority to solicit every school child's view on going to school and how suitable their education is, or ensure their parents provide an alternative should they not want to. The local authority does not, and should not, have a role in questioning the child in this way.

Article 5 of the UN Convention of the Rights of the Child, addressing parental responsibilities and state assistance, states that 'Governments should respect the rights and responsibilities of families to direct and guide their children so that, as they grow, they learn to use their rights properly. Helping children to understand their rights does not mean pushing them to make choices with consequences that they are too young to handle. Article 5 encourages parents to deal with rights issues "in a manner consistent with the evolving capacities of the child". The Convention does not take responsibility for children away from their parents and give more authority to governments. It does place on governments the responsibility to protect and assist families in fulfilling their essential role as nurturers of children.' This makes it absolutely clear that parents are there to represent the views of the child.

Article 18 of the UN Convention of the Rights of the Child, addressing parental responsibilities and state assistance, states that 'Governments must respect the responsibility of parents for providing appropriate guidance to their children – the Convention does not take responsibility for children away from their parents and give more authority to governments. It places a responsibility on governments to provide support services to parents, especially if both parents work outside the home.' This makes it clear that it is parents, not the state, which have this responsibility. We, as parents, will have the child's best interests as our main concern. Our rights and duties are not at odds.

19. What are the advantages and disadvantages of using settings which are not registered independent or state schools, to supplement home education? How can authorities reliably obtain information on the education provided to individual children whose education ‘otherwise than at school’ includes attendance at such settings as well as, or instead of, education at home?

This question is addressing unregistered schools, not home educators. Unregistered schools are not a home education issue. Rather, they are an issue for the local authority in terms of enforcing registration compliance for these schools where appropriate.

It's extremely important that home education groups, run by home educating families, are not conflated with unregistered schools. We are not schools. Conflating the two in this way muddies the waters and pulls a whole group of law-abiding families into an issue of the government's school monitoring process with which they are completely unrelated. It cannot be helpful, for the resolution of the issue of unregistered schools, to so grossly confuse matters in this way. 

20. What are the advantages and disadvantages of using private tutors to supplement home education? How can authorities best obtain information on the education provided to individual children whose education at home includes private tuition, or whom attend tuition away from home?

Tutors are not a home education issue. Tutors are used by all sectors of society, from school parents topping up inadequate provision or focusing on a specialist subject such as a foreign language, to adults revisiting the basics or starting off down a new path, to home educators as one aspect of providing an individualised education suitable for the child's age, aptitude, ability and special needs. Local authorities should not be obtaining any information about people who use tutors; this would be wholly inappropriate and intrusive. Should the government feel that tutors need some form of registration, then this is something that should be discussed with tutors.

22. What might be done to improve access to public examinations for children educated at home?

Local authorities could be provided with exam funding for home educated children. Exam centres could be made easily accessible for home educated children. Local colleges could be more widely encouraged to accept aged 14 to 16 year old home educated children. These are all positive steps that would make it easier for home educated children to access exams should they want to, but would also improve one aspect of how local authorities are viewed by home educating families.

23. What good practice is there currently in local authority arrangements for supporting home-educating families? Should there be a duty on local authorities to provide advice and support, and if so how should such a duty be framed?

My previous local authority, Stoke-on-Trent, considers 'support' to be encouraging/pushing children back into school. Good practice is thin on the ground among local authorities as their focus is very often on imposing a school-like education, which, in many cases, hampers the parents' ability to provide a personalised education suitable to their child's age, aptitude, ability and special needs.

Should a local authority wish to actually offer support, and have the resources to do so, some helpful ones that I have seen include enhanced library cards for home educators and links to local home education groups run by home educators.

24. Should there be a financial consequence for schools if a parent withdraws a child from the school roll to educate at home?

There should be financial consequences for schools if they off-roll pupils.

There should absolutely not be consequences for schools when a parent elects to deregister in order to home educate. The unavoidable consequence of this would be that parents wanting to do so would be pressured not to. This already happens in many cases, which is already unacceptable, so any exacerbation of this would be a very poor outcome.

25. Should there be any changes to the provision in Regulation 8(2) of the Education (Pupil Registration) (England) Regulations 2006 requiring local authority consent to the removal of a child’s name from the roll of a maintained special school if placed there under arrangements made by the local authority?

Yes. Parents should not have to seek consent for this removal. Parents of children using the services of a special school should have the same rights to immediate degregistration that all other parents of schoolchildren have.

26. Are there any other comments you wish to make relating to the effectiveness of current arrangements for elective home education and potential changes?

The primary change that should be made is that all local authorities should be required to recognise the primacy of parents in responsibility for their own children, and recognise the undesirability of intruding on the homes and lives of law-abiding citizens without due cause.

In addition, and local authority staff who will be working in any way with home education should ideally have a background in home education, and should be required to undergo training in home education law, and the various types and practices of home education. This would go some way to removing the hostile and antagonistic 'us and them' environment which is set up by the appointment of people such as former teachers and school inclusion officers, very few of whom have any understanding of learning and education outside the school pedagogy.

27. What data are currently available on the numbers of children being educated at home in your local authority area?

Home educators regularly obtain this data via Freedom of Information requests to local authorities. Numbers vary hugely between authority areas. 

28. Do you have any comments on any of the contents of the call for evidence document in relation to equality issues?

The draft guidance and these questions make it clear that no equality is recognised between those parents who maintain the responsibility of educating their child personally, and those who elect to use the services of a school to do do.

The main stakeholders in this consultation should have been home educators, however, they are not even represented on the drop down options on which to indicate the capacity in which we are completing this form. This gives a clear message about the perception of parents who educate their children without the services of a school.

In addition, children with special education needs run the risk of being disproportionately damaged by the outcome of this guidance, as they may well struggle far more with intrusions such as enforced home visits and questioning by strangers. Many children with special educational needs who were failed by the school system's inadequate ability to provide them with a suitable and safe education  are now home educated, and the suggested that the very system that failed them would now be intruding into their lives in this way is dangerous and not taking the best needs of the child into consideration at all.

29. Comments on Section 1: What is elective home education?

Advice given by David Wolfe QC indicates that flexi-schooled children should not be included in advice relating to children who are not registered at a school, as they are registered at a school. I concur with this.

30. Comments on Section 2: Reasons for elective home education - why do parents choose to provide it?

Section two contains opinions and conjecture, which should have no place in guidance.

It is worth considering why home education would be considered to be a last resort. It is not presented to parents from the beginning as one of their options, their default position in fact. School is presented as a fait accompli. The result of this is that when it comes to the school system failing a child, home education feels like a desperate solution. It is not my experience that, as the draft guidance states, 'When the impetus is a negative one, that may well have implications for the quality of home education which can be provided.' So many parents I know, once realising under these circumstances that the opportunity to home educate their child is there, and taking it, find that they can create this wonderful, personalised, safe education for their child, and say that, had they known about the possibility previously and how positive it could be for their child they would have grabbed it with both hands.

So, although the opinion that a negative impetus may have negative consequences can legally be included in the guidance, the weight that those words carry when coming from the Government should be considered. Such words would very likely be taken as fact by local authorities, rather than pure conjecture.

31. Comments on Section 3: The starting point for local authorities

David Wolfe QC gave advice that ‘a recipient of Government guidance must have regard to it and give effect to it unless there is a basis to depart from it’. It needs to be made very clear to local authorities, in this section, that simply having a local policy isn't a good basis on which to depart from Government guidance. It can be seen across the country that local authorities have policies in place that are not in accordance with current guidance, and significant effort is then required from local home educators to push them to bring it back in line with it. This should not be necessary and should be protected from, from the outset. 

32. Comments on Section 4: How do local authorities know that a child is being educated at home?

The guidance should make it clear that routine data sharing, on the basis simply that a child is home educated, is not acceptable. It does not fulfil the requirements of either the GPDR or Article 8 of the ECHR, as I detailed previously. Some local authorities actually have such illegal data sharing written into their home education policies, or in letters to families, so it needs to be stated from the outset that this kind of data sharing without the express consent of the parents, unless it is necessary to prevent significant harm to the child, is not allowed.

Local authorities have no need to know that a child is being educated at home, any more than they need to know that a child is vegetarian or Buddhist.

33. Comments on Section 5: Local authorities’ responsibilities for children who are, or appear to be, educated at home

I have concerns with this section, in that section 5.1 sets out that there is no duty for routine monitoring, then 5.2 speaks of 'proportionate' and 'light touch', then 5.3 puts that judgement in the hands of the local authority. History shows that local authorities abuse the powers they already have, insisting that, even where home education has already been found to be satisfactory, frequent visits, detailed reports and the showing of a child's private work, for example, are all perfectly reasonable and backed by law. An approach that was proportional and light touch would not require anything of law-abiding citizens unless concerns were raised, in which case enquires could then be made.

5.4 outline, contradictorily, routine monitoring on an annual basis. This isn't a desirable aim, as outlined previously, as it is disproportionate when no concerns have been raised, intrusive on family life, and a waste of resources when they are so very much needed elsewhere.

34. Comments on Section 6: What should local authorities do when it is not clear that home education is suitable?

David Wolfe QC has given advice which states that local authorities should not insist on meeting home educators or getting them to complete their responses in a designated manner. Both of these are unnecessarily prescriptive, and this needs to be made clear in the guidance. In addition, local authorities, including Stoke-on-Trent, regularly turn up at people's houses with no warning, and there are national reports of police doing the same to home educated children. Threats of social services for non-compliance with overly-prescriptive reporting demands are also reported in various local authority areas. It should be made clear in the guidance that these types of actions are unacceptable, and that responses to satisfy concerns, during the proper process, can take any form that communicates the information. These types of poor practice further perpetuate the hostile 'us and them' environment, and make what should be a simple process of addressing concerns into an antagonistic, and not at all transparent, affair.

35. Comments on Section 7: Safeguarding: the interface with home education

Section 7.7 states that 'in other cases a local authority  may need expert advice form teachers or educational psychologists'. It needs to be made abundantly clear that teachers and other professionals whose only frame of reference is the school pedagogy may actually not have the expertise or understanding of the wide range of effective educational approaches used in home education to be able to advise effectively.

It should be made clear, as laid out in Section 3.6 of the current guidance, that a parent declining a home visit does not constitute grounds for concern about the education being provided. It would also be helpful for medical professionals to be made aware of this, due to the frequent occurrence of home educated children being referred to social services by these medical professionals simply because they are home educated.

36. Comments on Section 8: Home-educated children with special educational needs (SEN)

I have the responsibility to provide an education suitable for my individual children's ages, aptitudes, abilities and any special needs they may have. This applies equally to my children who would be considered to have special educational needs and those who would not. There should be no difference.

37. Comments on Section 9: What do the s.7 requirements mean?

It needs to be made very clear here that local authorities should not be measuring the suitability of home education by referencing the school pedagogy, or what is expected of schools. Home educators are much better placed to provide an individualised education suitable for the child's age, aptitude, ability and special needs, and so the individual educations, timescales and visible results at various parts along the way will all look very different.

Sections 3.13 to 3.16 of the current guidance are very important as they were very effective in making clear that home education does not need to look like school. This information should be retained in any new guidance, as the loss of it will give local authorities perceived legitimacy in insisting on more formal, school-like, approaches, regardless of the suitability for each individual child.

The guidance also needs to make it clear that whatever approach is taken by a local authority, it only shapes how they exercise their powers, it does not mean that they can determine what a home educating parent can or cannot do in discharging their Section 7 duty.  Once a local authority has discharged its obligations with regards to notices and SAOs, where applicable, the court would determine whether any section 443(1) offence was committed. This overarching impression given by many local authorities in their dealings with home educators is that they are the arbiters of suitability, and this, again, leads to an antagonistic and hostile relationship.

Section 9.9 has the issue that it will lead local authorities to believe that they can set hours in which and for which children need to do certain types of work. Stoke on Trent local authority already does this, with no basis in law. It needs to be made clear in the guidance that such rigid policies are not acceptable, nor desirable, as they enforce an environment where it is not possible to focus on the individual needs of the child.

38. Comments on Section 10: Further information

I don't think that home education guidance should address flexischooling, as these children are registered at a school. However, I think that further constraining what head teachers can and cannot approve of is unhelpful and ties their hands even further than has already been done with many aspects of the school system.

39. Comments on Section 1: What is elective home education (EHE)?

Why are there separate sections for local authorities and parents? This further perpetuates the 'us and them' mentality, and is unhelpful in the way that it discourages local authorities from being an approachable and supportive resource and into being an educational police for those who don't use the school service. 

40. Comments on Section 2: What is the legal position of parents who wish to home educate children?

It is the parent who has a duty to provide an education suitable for the age, aptitude, ability and special needs of each individual child. They are the arbiter of the first instance as to what is suitable, just as they are with any other aspect of raising their child. Schools are monitored and reported on so that parents can assess the suitability of the education being provided. There is no need to assess and report back to me on the education I am providing for my own child, it is backwards and unnecessary.

It should be made clear that, if any parent does fail in their duty to educate their child, the decider of this is the court, not the local authority. 

41. Comments on Section 3: So what do I need to think about before deciding to educate my child at home?

For any aspect of raising my children, I consider whether each decision is in their best interests. Whether this is the food they eat, the activities they choose, any religion they wish to follow, and how I will educate them. The law takes the same position, not stating that our children must be educated in accordance with the school model or what our current local authority views as suitable, but instead suitable for that individual child's age, their specific aptitudes, their own ability, and any special needs that that individual child has. 

So one question: Is it best for them?

42. Comments on Section 4: If I choose to educate my child at home, what must I do before I start?

1. If they have never been registered at a school, then proceed to educate them to suit their age, aptitude, ability and any special needs they may have.

2. Notify the school in writing, obtaining a proof of receipt in case of issues. Then proceed to educate them to suit their age, aptitude, ability and any special needs they may have.

43. Comments on Section 5: What are the responsibilities of your local authority?

I consider my local authority's responsibility to be making informal enquiries should any specific concern be raised regarding the education of my children. I can then address that specific concern, then they will have no further responsibility. Should someone not be able to address the specific concern raised by the proper process, then it is the local authority's responsibility to follow the correct procedure for addressing these concerns, and leaving the decision with the court should it come to that. 

44. Comments on Section 6: Further information

I feel very strongly that there should be one set of guidance for both local authorities and parents, rather than separate ones.

45. Do you think that anything in the revised guidance documents could have a disproportionate impact, positive or negative, on those with 'relevant protected characteristics' (including disability, gender, race and religion or belief) - and if so, how?

I believe, as previously stated, that children with special education needs will be disproportionately affected by this guidance.

Families who home educate in a child-focused, rather than curriculum-focused, way, are more likely to be negatively impacted by this guidance due to their philosphical beliefs, due to the fact that the guidance, and demonstrably local authorities, have mainly only school experience and therefore a focus on enforcing an education that resembles school.

I also think that, due to the conflation of unregistered schools and home education, which has been made clear in these questions and the draft guidance, there is a very real possibility of the guidance disproportionately affecting people of certain races and religions who may be profiled as more likely to attend an unregistered school.