DfE Consultation: proposed revision of Home Education Guidance

Fiona Nicholson
December 2023


The government has published draft revised versions of the elective home education guidance for local authorities and for parents and there is an online consultation which runs until January 18th 2024. Fiona Nicholson has put a lot of information about the consultation on her website, all linked from this page https://edyourself.org/2023-consultation-revised-ehe-guidance/ and this page https://edyourself.org/news/


The guidance was last revised in 2019. Significant changes were made at that time with elements being taken out and new points being added. The main revisions in 2019 were removing the following elements: 1) ‘Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis’ and 2) ‘A written report should be made stating whether the authority has any concerns about the education provision and specifying what these are, to give the child’s parents an opportunity to address them’ [at the informal enquiries stage]. Neither of these appears in the 2019 guidance.

A significant addition in 2019 was about taking formal action if parents would not give any information at all. The 2019 guidance says ‘a refusal by parents to provide any information in response to informal enquiries will in most cases mean that the authority has a duty to serve a notice under s.437(1) … where the parents have refused to answer, the only conclusion which an authority can reasonably come to … is that the home education does not appear to be suitable.’

This was in marked contrast to the previous version of the Guidelines where the LA was supposed to obtain information first and then explain any concerns to parents.

There was also much more emphasis in 2019 on the potential for using ‘safeguarding powers’ to address concerns about education.

2023 Draft Guidance

The proposed new version published in draft form in October 2023 has a lot of the same content as the current (2019) guidance and maintains the focus on using safeguarding powers, although the material is organised differently so it is difficult to compare them side by side.

The main point which has been taken out in 2023 is about the burden of proof not being on parents; the following no longer appears in 2023: ‘this should not be taken as implying that it is the responsibility of parents under s.436A to “prove” that education at home is suitable. A proportionate approach needs to be taken.’

Meanwhile the main element which has been added in 2023 and which changes everything for home educating families is that ‘parents should be able to provide information to the local authority so they can establish the child’s levels of literacy and numeracy and whether they are appropriate to the child’s age, ability, aptitude and SEN.’

All the investigation on the part of the LA has now been brought forward to the informal enquiries stage as part of a detailed ‘assessment of suitability’ and there are references to ‘ongoing judgement of suitability’ and ‘a routine annual review’ which amount to annual monitoring.

In the 2023 draft it is left entirely up to the local authority to decide how much information is sufficient at the informal enquiries stage and ‘insuffficient information’ now justifies escalation to the formal process.

These changes taken altogether would have a huge impact on home educating families in this country if the 2023 guidance were to be taken forward.

It is important to note that the 2023 guidance has only been published in draft form. It is not in force. The current guidance remains the 2019 guidance. It is also important to note that the law has not changed and that this is non-statutory guidance. The Introduction says ‘This guidance represents the Department’s interpretation of how the current legal framework affects the provision of home education. The guidance is not intended to provide legal advice. It does not create new powers or duties.’

Fiona Nicholson
Home Education Consultant

December 2022Schools Bill Cancelled

The 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/