Updates of Interest

December 2022Schools Bill CancelledThe Department for Education has announced it is dropping the Schools Bill. Progress on the Bill had halted before it finished in the House of Lords and it would still have had to get through the Commons.The government needed new laws in order to make registration compulsory and to give local authorities new legal powers around school attendance orders for home educating parents who failed to register.Without a new law compulsory registration cannot be introduced.A maximum of two years remains for the present government before the next general election so in reality there is very little time to come up with a completely new education bill to replace the Schools Bill.The Secretary of State Gillian Keegan acknowledged this when she told the Education Committee ‘the need to provide economic stability and tackle the cost of living means that the parliamentary time has definitely been reprioritised on that.’Asked about possible timescales for bringing back compulsory registration proposals, the Secretary of State said ‘I cannot commit to dates or times because there is a process that has to be gone through and I do not have full control of it.’

The Schools Bill and Home Education   The Schools Bill was introduced in the House of Lords in May of this year.  It includes a range of measures about academy trusts, changing school funding, school attendance, unregistered schools, teacher misconduct and registers of all children who aren’t in school.  The concept of a register of all children not in school in each local authority differs from previous plans for compulsory registration and Fiona Nicholson has provided some detailed information and analysis of the proposals in six linked articles:

1  New register of children not in school – England only 2  Overview of changes proposed in the Schools Bill for home educated children 3  More detail about how the register will work4  Sanctions for not complying with registration requirements – school attendance order process5  School attendance orders – current system 6  New legal duty for local authorities to offer support

Fiona Nicholson has more detail about recent events on her web page https://edyourself.org/articles/registration.php and blog https://edyourself.wordpress.com/2022/12/13/no-legislative-vehicle-without-schools-bill/

Changes to Home Education Law in England?

Fiona Nicholson
October 2018

As I explained in a previous article, a new Home Education Bill suddenly appeared on the parliament website last summer. The bill is in two parts, the first part deals with compulsory registration and monitoring, while the second part consists of recommendations for updating the home education guidelines, stipulating that children must receive “supervised instruction.”

Issuing a bill is a way to change the law. A bill is what a law is called while it is going through parliament before it actually becomes a law. Finished laws are known as Acts of Parliament. A bill cannot become an Act until it has completed a set number of formal debates at prescribed intervals in both the House of Commons and the House of Lords where the wording of the bill is scrutinised line by line.

This Home Education Bill has been put forward by Lord Soley who has nothing to do with the government but is just an ordinary member of the House of Lords. Hence the Home Education Bill is not a government bill but is only a private member’s bill and moreover it has come from the House of Lords rather than from an MP in the House of Commons, making it the least likely of any type of bill to succeed.

I would just add in passing that although Lord Soley’s bill mentions Wales as well as England, this is a mistake and indicates the home-made nature of the bill since it is simply not possible for a law made in England to affect education in Wales. Education is one of the areas of government which has been devolved to Wales, which means it is up to the Welsh Government and not Westminster to make its own education laws.

If Lord Soley’s bill had been a government bill it would have been allowed as long as it needed to get through parliament, right up to the next general election if necessary. (Some home educators may remember the government scrambling to push bills through after the general election was called in 2010, when the Badman proposals fell by the wayside during “the wash-up”)

By contrast, a private member’s bill is only allowed a single parliamentary session before it “falls” and drops out altogether. A session normally lasts for a year but nothing is normal at present because of Brexit and in fact the current session has been extended to two years, as the government knew it would be too busy with Brexit to make many other laws.

Lord Soley’s bill has been tabled for Second Reading in the House of Commons on October 26th but in reality there is no conceivable scenario where MPs will get a chance to vote on the bill. Rather than looking on the web page for the bill, it is more useful to look at the web page for the schedule on that day. Granted the bill is listed for debate but it is so far down the list for the day that we can be sure the session will run out of time long before Lord Soley’s turn. This is why pro home education members of the House of Lords such as Lord Lucas and Lord Addington have been telling home educators not to worry and that Lord Soley’s bill can’t get any further.

The rules governing private members’ bills are very restrictive. Such bills can only be discussed during a special few hours set aside on a particular day and House of Lords’ bills always come after MPs’ bills. Added to this, there are a few MPs who make a point of turning up to every debate and talking at great length whenever private members’ bills are on the agenda, reducing the number of bills even more. It doesn’t matter for First Reading of a bill where literally the only thing that needs to happen is for the title of the bill to be read out loud, but it starts to matter hugely at Second Reading and beyond because Second Reading offers the opportunity for a bill to be debated and this debate stage is not allowed to be left out.

I’ve heard it said that Lord Soley’s bill is unlikely to pass into law unless it is supported by the Government. This is a misunderstanding of the parliamentary process. We don’t need to try and work out the government’s attitude to the bill (although in fact the government has explicitly said that it is NOT supporting the bill) because the simple truth is that the government can’t get round the procedural rules for private member’s bills.

I said at the beginning of this article that Lord Soley’s bill contained proposals for amending the government’s home education guidelines. I then explained why Lord Soley’s plans will not make any further progress. Meanwhile however the government has put forward its own suggestions for changing the guidelines. It is crucial to keep Lord Soley’s bill and the government’s proposals quite separate in our minds.

Guidance issued by the government can’t go beyond the law or contradict existing law, and any government guidance on home education has to be non-statutory because there are no powers in English law for the Government to issue statutory guidance on home education·

I have been asked whether a document must be statutory if it is called guidance. The short answer is no. At one time the Government did tend to the view that anything non-statutory would be termed “advice” (or guidelines) and that anything called guidance would necessarily be statutory, but this is not a position which is being held now, and in fact the government has specifically said in consultation documents that this is to be non-statutory guidance.

I am also aware that some home educators think there is a potential difference between “guidelines” and “guidance” and they wonder whether the word “guidance” indicates something more hard-edged, more binding, and with more extensive powers for local authorities. In fact this is not a meaningful distinction. The Government now uses guidelines and guidance interchangeably.

If the Government wanted guidance to be statutory (which is more binding than non-statutory guidance) it would have to make a new law giving itself the power to make statutory guidance. The legislative programme (ie the timetable by which new laws will be introduced) was set out in 2017 after the election and will run up to summer 2019 because of the two year parliamentary session explained above. After this, there is a possibility that the government might announce an education bill but this would still take several years to get through parliament and would only be the start of the process for changing the law on home education.

A draft of the new government guidance on home education was published on April 10th and a public consultation was launched so that people could give their views. The consultation closed in early July and there has been some speculation as to when the new guidance will come into force. The simple answer is that we don’t know. My best guess is that there will be silence for a while and then the government’s official response to the consultation will be to say it is considering what everyone has said and will respond more fully in due course, ie it will be a non-response, giving nothing away.

The first thing to say is that consultations are not regulated the way they used to be. In the past the government would publish a document and invite comments during a 12 week consultation period. 12 weeks after the consultation ended the government would issue a formal response and the new version of whatever it was would be formally adopted. However, this is emphatically not how things work any more because the rule book was scrapped a while back.

Nowadays there are no set timescales for how long a consultation will run nor how soon afterwards the government has to explain what will happen next or whether indeed anything will happen at all. Politics is in a state of constant upheaval with ministers being swapped around and civil servants in the Department for Education being preoccupied with complications caused by academies.

Secondly, all we have seen so far of the new guidelines is a draft and a draft is not a final version. There seems to be a feeling amongst some home educators that the government publishes what it wants to happen nevermind that it is called a draft and then conducts a sham consultation exercise where it pretends to listen before going ahead with its original plan as intended all along. This is not how I interpret the current situation.

It probably depends to an extent on whether you think the government was hankering after an opportunity to clamp down on home educators and seized on Lord Soley’s bill as an excuse or whether – as I believe – the government was pushed into looking like it was doing something in order to shut the topic down and to have an answer ready for anyone looking to criticise or make demands.

If you subscribe to the latter view as I do, then the government is in a winning position at the moment in having taken the initiative and bought itself some time. I am guessing that the government’s aim is to draw a line and not have to think about it any more because there is simply too much else going on.

One thing is certain: as soon as the government publishes a second guidance document (whether that is an altered draft or a largely unchanged draft), there will be an outcry. Both sides will invariably have strong objections and feel that their voice has not been heard, added to which all the local authority people who have been looking forward to “more powers” will be greatly upset if all they get is new government guidance, because it won’t include the things they suggested to Lord Soley, and there will definitely be renewed demands for more funding because we also know from Freedom of Information responses on the What Do They Know website that while local authorities were largely in favour of compulsory registration, they also said quite emphatically that new duties would require more money, which I simply can’t see happening.

It may be helpful to remind ourselves what the government originally said about changing the guidelines. The Department for Education made an announcement towards the end of last year during one of the debates on Lord Soley’s bill to the effect that the Government would publish new draft guidance on home education and that there would be a public consultation with an opportunity for all stakeholders to put forward their views which the government would consider carefully.

Lord Agnew, the Minister with responsibility for home education, said that existing legal arrangements needed to work better, and that local authorities were saying revised guidance would be helpful. Significantly Lord Agnew also said that “in particular, there is a need to ensure that, where there is genuine cause for concern about a child, local authorities are clear about the powers open to them” and “what is needed is an improvement in the way local authorities can go about their task, which is identifying children who may not be receiving a suitable education”.

The key message from the Minister’s speech was that the government believed local authorities already had the tools for the job, which is precisely what the government says when it is resisting calls for the law to be changed. The government felt that local authorities didn’t know the extent of their powers and that new guidance would help in making matters clearer. I have to say that by this metric, the new draft guidance failed spectacularly. On some key issues, things were either made less clear, or else were explained wrongly.

To my mind the draft government guidance reads as a response to the Department for Education mailbag, attempting to answer questions and pre-empt objections posed by local authorities. It is one version of what a solution might look like in order to fulfil the stated aim of clarifying the law and explaining that LAs have more powers than they might realise. I don’t believe the draft guidance is intended to go through unchanged because there is no point if readers are more confused after reading it than they were before. Moreover, guidance cannot go beyond the law so there are numerous ways in which the government’s first draft will either have to be amended or withdrawn as unworkable.

Adding even more confusion to the mix, the government threw an extra document into the consultation process which had not been mentioned before, namely “a call for evidence”. This was unfortunate because the key points in any new guidance were always going to seem much less clear if the guidance was read alongside a government document outlining lots of possible ways that the law might be changed.

I can only assume that the government felt there was no point consulting on new guidance without giving people the opportunity to hold forth on how they want the law to be changed, and I believe that the Government thought adding the call for evidence was a way to compartmentalise the different issues, ie tell us about whether you think our new existing-law guidance is helpful, but while you are here, by all means do tell us whether you think the law needs to be changed as well. If I’m right, this backfired somewhat because questions about the law being changed came ahead of questions about the guidance which just added up to a ridiculously large number of questions in the consultation without any clear message.

The government has said that it will deal with the new guidance before it responds to the call for evidence but that was at an earlier point when perhaps it had not realised the scale of the problem with the draft guidance and felt it could be dealt with quickly, or perhaps when it was felt important to be seen to be taking swift and decisive action. Meanwhile of course the current home education government guidelines remain current.

I am hazarding a guess that we won’t see the government response to the call for evidence for quite a while. A call for evidence by definition is the very first step in possibly thinking about making some changes. In a related area, the government took over two years to respond to the call for evidence on out of school settings (light touch registration and monitoring of settings providing 6 hours education a week) and then only to say “we have decided not to pursue the model proposed in our call for evidence.”

To sum up: the government will probably make some changes to the home education guidelines in due course but these changes must not go beyond the law and for various reasons we are unlikely to hear anything definitive in the near future. Meanwhile Lord Soley’s bill is stuck and can’t get any further through parliament.

Fiona Nicholson
Home Education Consultant

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Lord Soley’s Home Education Bill

Fiona Nicholson
January 2018

There are three things I want to cover in relation to Lord Soley’s Home Education Bill which proposes compulsory registration and monitoring.

The first is the progress of the bill in parliament.

The second is the announcement by the Department for Education about new guidance on home education, explaining to local authorities what powers are available. 

The third is what we have recently discovered about how certain local authorities are helping and encouraging Lord Soley.

In a follow up article I also want to look at media reports mentioning home education, what Ofsted, parliamentarians, the Children’s Commissioner, local authorities etc  have been saying about safeguarding children out of school and what impact this might have either on Lord Soley’s bill OR on the Government’s proposed update to the home education guidance.

Progress of the Bill

Last summer I posted here about Lord Soley’s private members bill to register and monitor home educated children. I said that after second reading, the bill might go on to committee stage, and indeed we now have confirmation that this will take place, most likely in early March 2018. We will probably only find out about the precise date a week or so in advance, and the best way to track timings and amendments is to register for email updates on the bill page here https://subscriptions.parliament.uk/service/subscribe.html?code=UKParliament_Bill_2000

Read the full article here

A Bill appears in the House of Lords: an evaluation

A new Home Education Bill suddenly appeared on the parliament website at the end of June 2017 setting out proposals for registering and monitoring home educated children. We learned that it had just received its “first reading” in the House of Lords. At first sight this would seem very alarming but there are a number of things to bear in mind which decrease the significance of this Bill immeasurably.

When the Government wants to bring in a new law a Government Minister will introduce it to parliament and at every stage of the Bill through parliament the Government will effectively have a majority to get the Bill passed. However, the Home Education Bill is not a Government Bill, it is a private members Bill. Moreover, it is a private members Bill starting in the House of Lords. Already these are two crucial reasons why it is much less powerful and threatening than a Government Bill. Thirdly, the House of Lords has a ballot system for members of the House of Lords to get parliamentary time for their Bills and this Home Education Bill is not even in the top five. Fourthly, with this type of Bill, time runs out at the end of every parliamentary year, whereas a Government Bill is allowed two or more years to get through parliament and the process is only terminated by a general election. Fifthly, the Bill concerns a divisive topic which we know will always provoke strong reaction and heated debate, and this is the complete opposite of what is required for a private members Bill to succeed.

If we look at what has happened with Bills of a comparable status, in the past 5 years only 2% of this type of Bill went on to become law, by being very high on the ballot and – critically – by not being controversial. The overwhelming majority of these Bills don’t get past what is called Second Reading in the House of Lords and the Bill would have to complete all the stages in the Lords before being passed to the House of Commons where elected MPs sit and where the process would begin all over again with First Reading, Second Reading, Committee and so on. Hence we have to assume that the main reason why peers introduce their Bills is in order to get an hour or two of debate about one of their special interests at Second Reading. Second Reading of the Home Education Bill is likely to take place in October or November. There is a special feature of private members bills which is that they are not debated on a normal busy day in parliament, traditionally they are slotted in on a Friday when most peers have already finished for the week, since they might have had to stay until late in the evening earlier in the week if there are important debates.

After Second Reading the Home Education Bill could go on to Committee stage which is another hour on a subsequent Friday where any member of the House of Lords can propose amendments (changes) to the Bill which must be considered for debate. The prospect of the Home Education Bill getting any further than this stage is vanishingly small.

LGA concerns

Another call for registration of children who are educated at home has been made by the Local Government Association.  Calls for registration and monitoring of home education have been resisted fiercely by home educators in the past because these measures would lead inevitably to state control of home education and loss of families’ freedoms.  Councils already have ample powers to address any problems which come to their attention.  It seems very unlikely that the Government will consider that home education is a priority when they have many other serious and high-profile educational issues to tackle during the lifetime of this parliament.

Rise in number of four-year-olds who are not ready for school

Research published in 2016 by the University of Loughborough has indicated that around 30 per cent of children are not ready for school by the time that they reach reception age.  Researchers discovered that large numbers of children suffer from poor mobility which in turn affects their balance and coordination, leading to reduced ability to learn in school.  Around 90 per cent of the children in the study were found to have some degree of difficulty with mobility compared with the expectation for their age.  Children who have been inactive in the early years are presenting with symptoms which are associated with conditions such as dyspraxia, ADHD and dyslexia, leading to an over-diagnosis of children with learning difficulties.  Dr Rebecca Duncombe of Loughborough said that greater physical activity in the early years is necessary to prevent children from suffering from these difficulties.

New Children Missing Education (CME) Guidance

In addition to the amendments to the Pupil Registration Regulations for the autumn term 2016, the Government has opted to issue a new version of Children Missing Education Guidance. This is the fifth time that CME Guidance has been rewritten, and on every occasion the Government makes some changes to the home education part. This time round the changes to home education are minor, but I think they are an improvement because they make it clearer exactly when the school should inform the council. This version also marks a departure for the Government in not publishing a draft for consultation but jumping straight to the final version which in its entirety is vastly different from its predecessor. I assume this was because everything had to be put in place in a tremendous hurry and the Government could conceivably argue that the changes were mostly ‘technical’ but it is still a notable precedent.

More robust tracking of children out of school

The Education (Pupil Registration) (England) (Amendment) Regulations 2016 have been issued and came into force on 1st September 2016.  On the last day of Parliament when many schools had already broken up for the summer holidays, the Government confirmed that from the start of the new school year local authorities and schools would have to keep much better track of children who stop going to school. Schools were already supposed to tell the council when a pupil left to be home educated, but there were many other circumstances where schools didn’t have to inform anyone, and somehow the lack of home education registration always ended up getting the blame for these ‘missing children.’ The Government could have proposed a register of home educated children as a way to address these concerns and we know from the consultation responses that a few organisations called for this, so it is significant that the Government chose not to do this and to close the non-home education loopholes in the regulations instead.

Read more here http://edyourself.org/articles/pupilregconsult.php

Scotland: Named Person scheme halted

At the end of July 2016 the Supreme Court allowed an appeal against the Named Person scheme for children in Scotland. The issue for the Supreme Court was about the legitimacy of information sharing and data processing without knowledge or consent for the purpose of “ wellbeing” when there was no known risk of significant harm to the child. The measures were due to come into force on August 31st 2016 but have now been halted. Minister John Swinney has now told the Scottish Parliament that there will be a three month consultation with the aim of having an amended Named Person scheme in place by August 2017. Campaigners are now asking what happens with councils which had already begun versions of the scheme with the full backing of the Government but without the law actually being in place to support what they were doing.

Read more here https://edyourself.wordpress.com/2016/08/04/named-person-every-child-scotland-supreme-court-judgment/

Wales: Dylan Seabridge Review published but no Guidance yet for Wales

In Wales, the Child Practice Review into the death of Dylan Seabridge was finally published in early July 2016. Media reports focused on the fact that Dylan was home educated but the Review also pointed out that the family wasn’t hidden, and that information wasn’t evaluated properly and wasn’t shared with relevant professionals. Significantly, the Minister went on record as saying that ‘the home education element is just one part of this particular case’. There has been nothing further about the introduction of new Elective Home Education Guidance for Wales which was initially proposed two years ago. In my view the Welsh Government is stuck as it is aware that nobody was happy with the new proposals, since they went too far for home educators but stopped short of making registration or monitoring compulsory which is what safeguarding campaigners want.

Read more here https://edyourself.wordpress.com/2016/07/11/dylan-seabridge-child-practice-review-july-2016/

Term Time Holiday Ban Overturned

At the High Court in London, 9th June 2016, the judge backed Isle of Wight father Jon Platt who took his daughter on holiday during term time and refused to pay the fine. The judge said that magistrates should look at the overall pattern of attendance before deciding whether an offence had been committed. After the judgement was announced, term time holiday bookings rose, and some councils indicated that they would not be prosecuting parents until the Department for Education came up with something definitive which could not be challenged in court. Mr Platt has now said he will help other parents pursue refunds against fines but the Department for Education has offered financial support to the Isle of Wight in making an appeal.

Read more here https://edyourself.wordpress.com/2016/06/02/isle-of-wight-v-platt-high-court-judgment/  (families new to home education please note: home educators are not bound by the restrictions on taking holidays in term-time.  They may take their holidays at any time during the year)