Accuracy, SEN and the Law

Should guidelines for local authorities on elective home education ignore sections of the law because home educators find those particular sections offensive?

One individual has suggested this, when he examined a bootlegged copy of draft guidelines supposedly submitted to MP Graham Stuart.

This person expressed shock and horror that the Special Education Needs section of this draft referenced the section of law that pertains to Local Authority duties toward children for whom they are responsible. This would include, according to section 321 (3) (d) of the Education Act, a child who is: “not a registered pupil at a school but is not under the age of two or over compulsory school age and has been brought to their attention as having (or probably having) special educational needs.”

Section 233 of the Education Act, Assessment of educational needs, states that:

"(1) Where a local education authority are of the opinion that a child for whom they are responsible falls, or probably falls, within subsection (2), they shall serve a notice on the child’s parent informing him—

(a) that they are considering whether to make an assessment of the child’s educational needs,

(b) of the procedure to be followed in making the assessment, 

(c) of the name of the officer of the authority from whom further information may be obtained, and 

(d) of the parent’s right to make representations, and submit written evidence, to the authority within such period (which must not be less than 29 days beginning with the date on which the notice is served) as may be specified in the notice.

(2) A child falls within this subsection if 

(a) he has special education needs, and

(b) it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for."

One question that might be raised is why any sensible person would suggest that draft guidelines to legislation should not refer to current laws.

The commentator in question suggested that some local authorities may not be cognizant of this section of law or currently enforcing it. In light of this, this person stated, many home-educating families would prefer to let sleeping dogs lie.

This contention is not tenable. Local authorities are not only well aware of their duties and responsibilities under law, they also run the risk of serious liability if they do not carry out those duties. The real issue is that they often too zealously pursue those duties in ways that sometimes result in ultra vires actions that harass home-educating families.