What is happening with new guidance and compulsory registration?
Summary
- New guidance has replaced the 2007 Elective Home Education Guidelines for Local Authorities
- The Government has dropped a number of ideas it seemed enthusiastic about last year
- There are two new proposals out to consultation relating to compulsory registration and support (2 or 3 years down the line)
1/ New Guidance Replacing the 2007 EHE Guidelines for Local Authorities
Last year the Department for Education published a draft of new guidance on home education intended to replace the 2007 Elective Home Education Guidelines for Local Authorities. There was a public consultation on the draft guidance which ran from April to July 2018.
On April 2nd 2019 the Government published the finished version of the guidance. This final version replaces the 2018 draft and the 2007 Guidelines. Despite looking very similar at first glance (eg the chapter headings and the layout remain the same) the finished version of the guidance is an improvement on last year’s draft, which is a welcome relief.
2/ Call for Evidence, Government Response
At the same time as it published new guidance, the Government also explained that it has decided not to proceed with most of the ideas which it put forward for discussion in the Call for Evidence published alongside the draft guidance last year. In particular, there will not be any new law defining “suitable education”, nor will there be increased powers for monitoring nor a right for the local authority to seek the voice of the child as part of an assessment of suitability.
3/ New Duty on Local Authorities a/ to Keep Register and b/ to Offer Support
However, there are two elements from the Call for Evidence that the Government does intend to pursue further, namely that at some point in the future, the local authority would be required to keep a register of children educated outside school, and also that the local authority would have to provide (inexpensive) support to home educating families on request.
The registration and support ideas are set out in a new consultation running till June 24th which anyone can respond to online. All the new consultation documents are linked from this page.
With regard to registration, it should be noted that the Government is not suggesting that parents would be committing a criminal offence if they failed to register their children as home educated, nor is it saying that families would have to pass some kind of test before being allowed on the register. In this respect it is hugely different from the suggestions made by Graham Badman 10 years ago which some home educators may still remember.
In fact the current consultation document specifically says “The inclusion of a child on the register would not form in any way some kind of licence to educate a child outside the school system; that right already exists under s.7 of the Education Act 1996, and it would be left intact under the proposed registration regime.”
Registration is presented as necessary in order to assist local authorities “to identify children who, during school hours, are not receiving an education in state-funded or registered independent schools“. The consultation document goes on to explain that “this would include children who are educated full-time at home, as well as those who may be receiving education during school hours from a variety of unregistered settings.”
What the Government is considering is the creation of a new law which would establish the basic principle of registration. This is what the consultation document says “this consultation is seeking views about the primary legislation. It also seeks views on the practical ways in which the system would operate, which the government would put in place through secondary legislation. It also seeks views on the likely costs.“
The consultation document goes on to say that “the proposals set out in this consultation paper would depend on gaining suitable Parliamentary time for the primary legislation which is envisaged. In consequence, no detailed timescale can be given for the implementation of the proposed measures. At a minimum, there would need to be an implementation period for local authorities following Royal Assent to any successful legislation. This means that full roll-out might be two to three years away”
All the small print would be left to regulations or secondary legislation. This is common practice and is not necessarily a sinister or sneaky move, but the worry is that once the door is opened by the creation of a general enabling law, much more could follow by way of regulation than the minimal data collection seemingly envisaged at present.
The second element being taken forward from last year’s Call for Evidence is the proposal that a new law be created giving local authorities new duties to provide support (as long as it doesn’t cost very much) to home educating families who request it. Again this is explained in the 2019 consultation document.
More About the New Guidance
My view is that the new home education guidance for local authorities – which again I must stress is in its final improved form not in last year’s draft – does not make things worse for home educating families, and in particular does not make it more difficult for autonomous or unstructured home educators.
Parents Guidance as well as Local Authority Guidance
NB If you go to this page, you will see that there is also new guidance for parents where previously there was just the one document namely “the guidelines.”
I would recommend paying much less attention to the parents guidance as it’s not something the local authority can effectively use against parents. The parents guidance is much more depressing than the LA guidance and in fact I would say the main reason to read the parents guidance is so you will be aware if someone has a negative quote from “the new guidance” supposedly demonstrating the government’s disapproval of home education, since anything negative will almost certainly be from the parents guidance rather than the LA guidance and of course the parents guidance is not binding on anyone, it is just advice designed to make parents think twice before they pull children out of school.
Chapters 9 and 10 Local Authority Guidance
My advice to anyone who has not yet read the new guidance for local authorities is to start with Chapters 9 and 10, rather than at the beginning.
Chapter 9 of the new guidance is entitled “What do the section 7 requirements mean“. Here are some key extracts, which should be read carefully as they depart in significant ways the earlier draft.
9.4. a. [“suitable education”] “should enable a child to participate fully in life in the UK by including sufficient secular education. This means that even if the home education is primarily designed to equip a child for life within a smaller community within this country it should not foreclose the child’s options in later life to adopt some other mode of living, and to be capable of living on an autonomous basis so far as he or she chooses to do so. This view is compatible with the small amount of potentially relevant case law”
9.4. c. … “if home education provided by a family taught children values or behaviour which was in conflict with ‘Fundamental British Values’ as defined in government guidance (for example by seeking to promote terrorism, or advocating violence towards people on the basis of their race, religion or sex), then it would not be in accordance with the authority’s general duties to regard that education as being ‘suitable’. However, there is no requirement on parents to actively promote the Fundamental British Values in the same way as there is for schools”
9.4. d. … “a local authority may specify requirements as to effectiveness in such matters as literacy and numeracy, in deciding whether education is suitable, whilst accepting that these must be applied in relation to the individual child’s ability and aptitudes”
9.4. e. “although it may well be a good starting point in assessing suitability to assess whether the curriculum and teaching have produced attainment in line with the national norms for children’ of the same age, it must be borne in mind that the s.7 requirement is that the education is suitable to the child’s ability and aptitude. If a child’s ability is significantly above or below what might be regarded as ‘average’ then allowances must be made for that; and similarly the home education may legitimately cater specifically for particular aptitudes which a child has, even if that means reducing other content;”
9.4. f. “factors such as very marked isolation from a child’s peers can indicate possible unsuitability. Suitable education is not simply a matter of academic learning but should also involve socialisation;”
(In relation to 9.4.f, if your local authority tried to claim that the new guidance says “suitable education is not simply a matter of academic learning but should also involve socialisation” this is true but it is very important to be aware of the context because the guidance at this point is talking about “very marked isolation“.)
9.4. h. “local authorities should not set rigid criteria for suitability which have the effect of forcing parents to undertake education in particular ways, for example in terms of the pattern of a typical day, subjects to be followed and so on. Some parents may decide that a very formal approach is necessary; others may decide to make a more informal provision that is more appropriate to the particular child. Whatever the views of the parents, the key focus for the authority should be on suitability for the child in question.”
9.5 “The department does not believe that it is in the interests of home educated children, parents or local authorities for there to be detailed centralised guidance on what constitutes suitability. This issue should be viewed on a spectrum, and although there will be clear conclusions to be drawn at either end of that spectrum, each case must rest on a balance of relevant factors depending on the circumstances of each child.“
Chapter 10 covers children’s rights, offrolling, and flexi-schooling among other topics. Many parents will also find it useful to quote 10.14 -15 which read as follows:
10.14 “Parents’ education provision will reflect a diversity of approaches and interests. Some parents may wish to provide education in a formal and structured manner, following a traditional curriculum and using a fixed timetable that keeps to school hours and terms. Other parents may decide to make more informal provision that is responsive to the developing interests of their child. One approach is not necessarily any more efficient or effective than another. Although some parents may welcome general advice and suggestions about resources, methods and materials, local authorities should not specify a curriculum or approach which parents must follow.”
10.15 “Children learn in different ways and at different times and speeds. It should be appreciated that parents and their children may require a period of adjustment before finding their preferred mode of learning and that families may change their approach over time. Parents are not required to have any qualifications or training to provide their children with a suitable education. It should be noted that parents from all educational, social, linguistic, religious and ethnic backgrounds successfully educate children outside the school setting and these factors should not in themselves raise a concern about the suitability of the education being provided.”
The only useful bit at the beginning of the new guidance – which is otherwise a lot of waffle – can be found at 2.4
2.4 “There are no specific legal requirements as to the content of home education, provided the parents are meeting their duty in s.7 of the Education Act 1996. This means that education does not need to include any particular subjects, and does not need to have any reference to the National Curriculum; and there is no requirement to enter children for public examinations. There is no obligation to follow the ‘school day’ or have holidays which mirror those observed by schools. Many home educating families do follow a clear academic and time structure but it should not be assumed that a different approach which rejects conventional schooling and its patterns is unsatisfactory, or constitutes ‘unsuitable’ education. Approaches such as autonomous and self-directed learning, undertaken with a very flexible stance as to when education is taking place, should be judged by outcomes, not on the basis that a different way of educating children must be wrong.”
The new guidance is non-statutory. There is no enabling clause in any Act of Parliament which allows the Government to issue statutory guidance on home education. It doesn’t matter that the new guidance is called guidance rather than guidelines.
The new guidance is not telling local authorities how to interpret the law, rather it “is intended to help local authorities understand their existing powers, and their duties in relation to children who are being educated at home.”
References
I have a page on my website edyourself where I am collecting all the relevant documents and links on the new guidance and consultation etc.
Fiona Nicholson
May 2019