Status Quo?

The primary legislation is clear, say many. Local authorities must simply be forced to keep their actions toward and demands of home educators within the boundaries of the law. To do otherwise, to create, for example, guidelines that appear to be more complex than the law itself, is to invite misinterpretation and mission creep.

Regulatory Framework

But local authorities must consider more than just primary legislation. They must deal with an entire regulatory framework, which includes, but is not limited to, the primary legislation. What else is included in the framework? For a start, there is case law, and other legislation (along with its accompanying guidelines) that may refer to or have an impact on home education (such as the children missing education legislation contained in the amended Education Act 1996 and the 2006 pupil registration regulations).

Then, there are the current guidelines, written in 2007. Many people insist that these guidelines are fine the way they are, and need not be tampered with. Ironically, some of the voices putting forward this argument were highly critical of the current guidelines when they first appeared. Now, however, there seems to be a “better the devil you know” movement, made up of people determined to cling to the old guidelines because they fear that any change is bound to be a change for the worse, and bound to give LAs more power, or more wiggle room for harassment.

Finally, there are individual local authority policy documents on EHE, some of which are developed in consultation with home educators, but many of which are ultra vires (in other words extending beyond the legal capacity of the local authority to demand more than current law permits). While these demands cannot be legally enforced, they certainly do affect the behaviour of local authorities’ employees, whose superiors expect them to follow the policies written for them. Indeed some local authorities believe they are entitled to make these demands or cannot fulfil their duties without making them. To make matters even worse, local authorities sometimes borrow policies from each other, and often choose the elements of their policies based more upon their own desires and prejudices than upon the law. MP Graham Stuart recently went through some of these in his speech to Parliament about the proposed changes to deregistration regulations.

Another look at the Current Guidelines. Why Change? 

Legislation and regulation change constantly, in many tiny ways. Many legislators and lawyers spend much of their waking hours trying to keep up to date with these small changes. Many of these changes have an impact on other, seemingly unrelated regulations. For example, children missing education legislation has had an enormous, and negative, impact on the way home education is treated.

Guidelines, therefore, need to be updated from time to time. No guidelines or policy documents stay current forever. These constant changes do often lead, as some of the critics of any change to the status quo have stated, to “mission creep,” and to ever more insidious growth of the nanny state.

But must it? It is interesting that Graham Stuart stated clearly that the opposite was his intent. From the beginning he made it clear that his objective in considering new guidelines was to rein in local authorities personnel who were going beyond the powers given them in law. These same local authorities often ignore the current guidelines. So why won’t they just ignore the new ones, some ask.

A new government, with a new understanding of home education (many MPs having been well educated by their constituents during the Badman debacle), may be willing to use new guidelines to force local authorities to respect the law. The new broom sweeps clean, as they say. While change for the sake of change may be pointless, on the other hand, the 2007 guidelines were a first attempt at this very purpose – an attempt to instruct local authorities in the limits of their duties and their powers.

Most people would probably agree that they have not entirely succeeded. It does not necessarily follow that guidelines are therefore pointless. It could be that both government and local authorities can learn from that attempt. It could be that a revisit to the guidelines will allow the government to create a document that more clearly examines the regulatory framework and defines the limits of local authorities’ duties so that there is no wiggle room for harassment.


EHE Guidelines in a Post-Badman Report Environment 

For some years, so-called safeguarding concerns have been repeatedly mentioned in conjunction with home education in many local authorities. This, combined with the increasing intrusion by local authorities and the state into private family life, has created an atmosphere of distrust between home-educating families and local authorities. The 2009 Badman Report’s attempt to use the tragic 2008 death of Khyra Ishaq in a smear campaign against EHE served to deepen this distrust.

Mr Badman’s proposals for EHE regulation were based on evidence that crumbled to dust at the slightest scrutiny, and after much concerted effort on the part of home educators, the Education Bill’s EHE section that was inspired by them crumbled as well. However the concerns and confusion of local authorities remained.

Many LAs were left believing they had active safeguarding duties (i.e. that they had to ensure every child is safe and well). Others erroneously believed it was their job to ensure that the education provided by home educators was up to scratch. Graham Stuart MP provided evidence of local authorities’ beliefs and confusion in his recent speech in the House of Commons, mentioned above.

Some voices in the home education community have been heard to say that there is no need for new guidelines because home educators should just stand up for their rights and not co-operate with ultra vires demands. This may work for some plucky or even lucky parents, who have access to support and good knowledge of the limits of the law, but one need only read a selection of home education blogs and forums to see evidence of a wide variety of struggles with local authorities that home educators across the country have endured during the past 12 months.

Others have suggested that local efforts by home educators to hammer out workable agreements with their local authorities are the answer. It is certainly true that such efforts often pay off, with good local policies being written as a result. Groups of home educators have expended great effort to get policy documents rewritten in Suffolk and Birmingham, for example. These examples, while heartening, do not provide a solution for the home educators who live in local authorities that are either hostile to the idea of collaboration, or in which there are simply not enough motivated home educators to pursue such an effort. Recent cases of home-educating parents suffering from unwarranted social services investigations show that something more is needed. There are new examples every week.

Protecting Freedom with Clarity 

Successful guidelines would need, as Graham Stuart stated, to be all encompassing with regard to the regulatory framework, able to connect and correlate all the related case law and related legislation in a manner that would be crystal clear and unlikely to lead to local authority misinterpretation. The whole point, he seemed to be saying, would be to clarify, not muddy the waters.

One test for success for new guidelines, therefore, will be whether they will lead to greater clarity for both local authorities and home educators. Will they outline not only what local authorities should do, what their duties actually are, but also what they must NOT do? If they fail in this regard, if they instead lead to greater complexity, or offer more opportunities for LA misinterpretation or “mission creep,” then home educators would do well to reject them.

New guidelines should also move in the direction of less, rather than more, intrusion into the lives of home-educating families. Will Graham Stuart’s new draft do this? It is impossible to say until he decides to make something public. Only an examination of the actual proposals Mr. Stuart puts forward will allow home educators to answer this question for themselves.

Since he has consistently stated that he will be looking for the problems, and asking the home-educating population for feedback, one would hope that he will be able to take on board any concerns regarding specific points or issues. In light of this, the current round of speculation about Mr. Stuart’s proposals seems rather a waste of energy. 

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Section 436A of the 1996 Education Act & Revised statutory guidance for local authorities in England to identify children not receiving a suitable education January 2009

The Education (Pupil Registration) (England) Regulations, 2006

Elective home education: Guidelines for local authorities

Privacy, Secrecy, Anonymity and Transparency

Many home educators have been discussing these terms in various arenas recently, primarily in the context of the writing of draft elective home education guidance/guidelines. Here I will explore the meanings of those terms and how they may apply in this case. 

Private is the opposite of public. Private information is revealed only selectively, by the persons from whom it originates. Public input is not sought on private documents.  Some possible reasons why the first draft of a government document might be produced in private could be:

• Legislators often draw upon the information they can access through a variety of sources and then assign the writing of a first draft to a small group, knowing that the draft can subsequently be discussed openly. This is a tried and tested approach. As we know, many legislators draft documents in house, without even consulting the population that will be affected. Legislators who wish to work more collaboratively with the affected population will sometimes consult with a small group on the first draft, knowing, again that the better the draft is, the more likely the document is to meet the needs of both the population at large and those government bodies that must implement any regulatory changes. 

• When it is public knowledge that a potentially controversial document may be forthcoming, both the legislators and the authors are often inundated with (often conflicting) enquiries, recommendations and demands that make the drafting of the document an unreasonably unwieldy and time-consuming process. Also, having a great number of people involved in producing the initial draft may mean that the result is incoherent, incohesive or even contradictory. 

Secrecy is the act of concealment; it is complete denial of the topic at hand. It differs from privacy, which is polite refusal to discuss the topic. For example a private meeting is one which may be known about but which one has to be invited to whereas a secret meeting simply “does not exist”.

Some reasons why a draft document might be produced in secret could include:

• The author is trying to introduce procedures and policies with a particular agenda, and has no intention of asking for or listening to anybody else’s views. He or she might wish to get something all the way through the process without debate. 

• The author might be attempting to control a particular population. 

• The author might realize that “secrecy” would create so much controversy that the affected population would divide itself into opposing groups and thus be easier to “conquer.” 

Anonymity is where names and identifying information are withheld. This means people involved in something either private or secret would be anonymous. Anonymity in and of itself should not be used to imply secrecy or guilt.

Reasons why a document’s author(s) might wish to be anonymous include:

• To keep people’s focus on the content of the document rather than the name, position or perceived motivations of the author(s). 

• To protect their child(ren), close friends and family from any fall out. 

Transparency is the opposite of secrecy. With transparency one is supposed to disclose everything. Of course the danger is that transparency is in the eye of the beholder – one person’s transparency is another’s partial secrecy, particularly if one is found not to have actively disclosed information that the other party considers relevant.

Would anything justify a lack of absolute transparency about the drafting or authorship of a regulatory document?

• Legislators might wish to present a document that is in some reasonable shape before its release. 

• Regulatory documents are expected to succeed or fail on their own merits rather than those of author(s). 

• Authors of government documents are very seldom identified, beyond the legislators that initiate and take responsibility for them. This protects both the process and its contributors – i.e. it allows people to make mistakes which can then be spotted and corrected before documents are finalized.

One point that seems to have been lost in the debate about home education regulatory documents, and whether they should be revisited or not, is that private is not the same as secret. There are some cultural pressures to consider nothing private and to label refusal to disclose private information as secretive.

An example of the difference between private and secret that home educators might identify with can be found in the concept of the privacy of a family home. Home educators have shown great resistance toward demands for home visits by local authority officials. But why is that? After all, if one has nothing to hide why wouldn’t one invite them in? Maybe one wouldn’t let them in because one might be afraid of unfair treatment. Home educators recognize that one’s home is private property, a concept long respected by the law. Information that individuals are not yet ready to exhibit to the public can also be considered private property. This doesn’t make it secret.

One ironic aspect of the debate over any changes to to guidelines for elective home education is that a focus on absolute transparency regarding draft documents, with concomitant allegations of secrecy if demands for information are not met, can overshadow the opportunity to actually examine any draft document that may be presented.

Graham Stuart, MP, has assured the home education community that a period of complete transparency will follow his private consultation/drafting process of any draft home education guidelines. This should allow for comment in the most open way possible. It is also a good faith effort from a legislator that the home education community has seldom enjoyed.

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.