The Children Not In School [CNIS] Register will include home educated children but is quite different from the home education registration and monitoring schemes put forward in previous years by Graham Badman or Lord Soley where assessment would have been part of the registration system and children who failed to gain the necessary approval would not have been allowed to be home educated. Details of who will have to register can be found in the clause 33 (originally clause 48) – under the sub-heading Duty to register children not in school. (NB the clause numbering will change again if the Bill is further amended on its way through parliament)
The Schools Bill will add new subsections to the Education Act 1996 after section 436A (3) [https://www.legislation.gov.uk/ukpga/1996/56/chapter/II/crossheading/children-not-receiving-suitable-education ] [children missing education] starting at section 436B and going up to 436Q. These subsections will include new provisions for school attendance orders in England and therefore will replace the current sections dealing with SAOs in section 437 onwards. All reference to “suitable education” in the CNIS Register clauses of the Schools Bill therefore come under the proviso at the end of 436A which says “In this Chapter, “suitable education”, in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have”.
The CNIS Register will be compulsory which is to say that parents will have a legal duty to comply and will face sanctions if they do not. The proposed sanctions have proved extremely controversial despite the Government saying it is not about punishing parents, but purely about ensuring that the register is as complete as possible.
The Government sought to present the CNIS register as a simple notification system, whereby local authorities will have a duty to keep a register and parents will have to complete the registration process by confirming the necessary personal details, entirely disassociated from any assessment or approval at the point of registration, purely so that the authority will have an accurate record of numbers which can be shared with the Government. However, this representation did not stand up to scrutiny in the House of Lords and in July 2022 the Government gave way and replaced or altered some of the most contentious clauses. Fiona Nicholson has written more about this here https://edyourself.wordpress.com/2022/07/11/government-amendments-to-cnis-register-make-it-less-bad/
Specifically the Government has taken OUT the phrase about parents having to provide “any other information that may be prescribed” so what is there NOW for parents to supply is the child’s name, date of birth and home address, the name and home address of each parent of the child, plus “such details of the means by which the child is being educated as may be prescribed”
In parliament the Government Minister has said “The measures in the Bill do not give local authorities any new powers to monitor, assess or dictate the content of education …We are of the view that local authorities’ existing powers are already sufficient to assess the suitability of the education being provided. Therefore, I would like to be clear that the phrase in the Bill “the means by which the child is being educated” does not include the content of the education itself. I am happy to put that on the record. It is limited to matters such as whether the child is taught entirely at home or also attends education settings, which settings they are, and how much of their time the child spends there.”
HEAS would like to make the point that ministerial assurances given to parliament before a Bill becomes law are of scant value on their own until they are carried through into regulations and statutory guidance and we will continue to monitor this situation closely. We also remain fundamentally opposed to the principle of compulsory registration.
Concerns have been expressed about the unqualified requirement for both parents’ details as this could constitute a safeguarding risk in cases of domestic abuse plus the resident parent might not even know the other parent’s address, and the Government is trying to mitigate this by indicating that parents only have to provide the information they actually have, and that data sharing will be restricted.
Whenever we see the phrase “may be prescribed” it means that nothing will be determined before the Bill becomes law, and it will all be set out later in regulations and in statutory guidance where there is much less parliamentary scrutiny and which the Government can alter and expand more or less at will. This is in contrast to what we can read in the Bill itself, described as being “on the face of the Bill.” (Governments always want to limit the amount on the face of the Bill because it is more restrictive.)
The Government is seeking to give itself a great deal of regulation-making powers. However, in response to repeated concerns raised by peers as the Schools Bill went through the House of Lords, the Government has now increased the level of scrutiny that will be afforded to regulations in this part of the Bill and has also put a lot more detail on the face of the Bill which will be further debated as the Bill reaches the Commons.
Meanwhile, we know that the Government wants parents to have to specify and supply contact details where they are using external providers for the majority of the child’s education whether this is a tuition centre, an unregistered school, or a private tutor. The local authority will then ask providers to confirm the information given by parents. The Government hopes by these measures to identify institutions which are operating outside the law. The Minister has said this is why parents will be asked for details of “the means by which a child is being educated.”
There will be a system of fines for providers who fail to respond to enquiries, which has caused some confusion whereby commentators appear to believe it is parents themselves who will be fined, rather than being subject to the attendance order process as outlined above. The Government has said [https://www.gov.uk/government/publications/schools-bill-policy-statements ] that there will need to be regulations setting the threshold for a provider of out-of-school education as well as regulations making exceptions which will take certain providers or types of providers out of scope.
Earlier proposals to regulate out of school settings or to register part-time schools have been highly controversial and ultimately not been taken forward and the Government seems keen to stress that these will not come within scope of the new measures without at this point being able to offer any definitive proof except saying that regulations further down the line will make it clear who is exempt. It seems highly likely that anything to do with out-of-school provision or regulating independent institutions is only going to attract further controversy as the Schools Bill goes through the House of Commons.
Finally, in terms of information sharing, the Schools Bill says a local authority must if directed provide the Government with information “of a prescribed description from their register” and also provides for local authorities to share information from the register with “a prescribed person if the authority consider it appropriate to do so for the purposes of promoting or safeguarding the education, safety or welfare of the child or any other person under the age of 18”