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Portsmouth Judicial Review Home Education

The Portsmouth case was a judicial review brought by local home educators against Portsmouth council. Home educators in Portsmouth were seeking a ruling from a judge that certain actions of the council were not allowed.

In judicial review proceedings, the Court’s function is to determine whether the decision or conduct challenged was a lawful exercise of a public function, not to assess the merits of the decision or conduct under challenge. [SOURCE]

A judicial review looks at whether the actions of a public body were unlawful which is defined as inconsistent with the statutory framework and any government guidance in place.

Additionally a judicial review can look at whether a public body is in breach of its own policies or whether it treats every case in the same prescriptive way regardless of individual circumstances.

In a judicial review the person who seeks to change the decision of a public body is known as the claimant. Normally a claimant is an individual who has what is called “standing” in the matter ie is personally affected by the actions of the public body, in the Portsmouth case this was a local home educating parent. Meanwhile the public body who has made the decision is the defendant. This link explains more.

Other parties who may be affected by the outcome of the case may also be able to intervene, which is what happened in the Portsmouth case where the government’s elective home education guidance was under discussion so the Department for Education joined as an interested party.

The claimant has to supply a statement of grounds for bringing the claim, set out in numbered paragraphs. As explained here, the statement of grounds should identify each ground of challenge; identify the relevant provision or principle of law said to have been breached; and provide sufficient detail of the alleged breach to enable the parties and the court to identify the essential issues alleged to arise. Each ground should raise a distinct issue in relation to the decision under challenge.

For a claim to succeed the claimant must have at least one of the grounds of challenge not fail. By the time the case reached the final hearing the claimant in the Portsmouth case had four grounds which I set out below.

By way of background to this case, it is necessary to summarise the law in respect of School Attendance Orders, in particular what the Portsmouth judgment refers to as NTS or Notice to Satisfy orders. My page on School Attendance Orders can be found here.

A School Attendance Order requiring a parent to register a child at school is issued when the following two elements apply:
1/ the local authority is not satisfied by a parents’ response to a formal notice, and
2/ the local authority is of the opinion it is expedient the child should attend school.

The Notice to Satisfy is made under s 437 of the Education Act 1996 which states: “(1) If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education. (2) That period shall not be less than 15 days beginning with the day on which the notice is served.”

Government guidance on elective home education states that where a child is not attending school full time “the law … does require the local authority to enquire what education is being provided.”

The guidance goes on to say “There are no detailed legal requirements as to how such a system of oversight should work, and it is for each local authority to decide what it sees as necessary and proportionate” adding “The department’s advice is that in all cases where it is not clear as to whether home education is suitable (including situations where there is no information available at all), the authority should initially attempt to resolve those doubts through informal contact and enquiries.”

(NB “suitable” education means suitable to age ability aptitude and any special educational needs the child may have as per s 7 of the Education Act 1996.)

The Portsmouth case hinged on a disagreement over what was permissible during the “informal contact and enquiries” stage and when – and how – the transition from informal enquiries to a more formal procedure should be made.

Below are the claimant’s numbered grounds.

Ground 1 – Portsmouth Council has a policy of placing the burden of proof on parents from the outset (ie even where it has no concerns) and this is inconsistent with the statutory framework and with government guidance.

Ground 2 – Portsmouth Council’s policy and approach are that unless more than a report is provided by parents it will directly proceed to serve a Notice to Satisfy [NTS] order. In other words, the local authority requires information to be provided in a particular form and has adopted a rigid stance whereby it will reject reports provided by parents … [which] amounts to an unlawful fettering of the defendant’s discretion.’ This link has a short explanation about fettering of discretion in judicial review. The word “fetter” literally means something that is attached to the ankles or feet to restrict movement and is used metaphorically where a public body will have a blanket approach regardless of the merits or circumstances of individual cases.

Ground 3 – Portsmouth Council has a policy of serving a Notice to Satisfy Order [NTS] without ‘even identifying any specific concerns about the suitability of the education being provided … [which] amounts to an unlawful [my emphasis] failure … to act in accordance with its own published policy, as well as a breach of the requirements of basic procedural fairness’


Ground 4 – Portsmouth Council’s policy and approach means that it serves a Notice to Satisfy [NTS] order even when it has no concerns and when it is not even suggesting that suitable education is not being provided and this is inconsistent with the legal framework and statutory guidance.

Ground 1 failed because the judge said this was not inconsistent with the statutory framework or with government guidance and considered that that parents do need to respond to informal enquiries in a meaningful way to avoid the necessity of responding to a formal Notice to Satisfy.

Grounds 2 and 3 were dealt with together and both failed because the judge considered that the local authority did not reject the reports because they did not follow a particular form, it was more the case that the LA had further questions after reading the reports and the parent did not answer the follow-up questions to the LA’s satisfaction. “Despite the length of the claimant’s reports, they were wholly assertive in nature. They contained nothing by way of actual work produced by the children … there was no material showing the degree of comprehension … merely a series of statements from the claimants …”

Ground 4 failed because the judge found “that the defendant does not have a policy of issuing an NTS [Notice to Satisfy] in circumstances where it has no concerns.”

My Comments

A judicial review is very limited in what it can decide.

Essentially it is looking at whether the actions of a public body were unlawful which is defined as inconsistent with the statutory framework and any government guidance in place.

Additionally a judicial review can look at whether a public body is in breach of its own policies or whether it treats every case in the same prescriptive way regardless of individual circumstances.

The judge found that the council’s actions were not inconsistent with law and guidance.

That doesn’t mean that other local authorities are obliged to copy Portsmouth; government guidance on elective home education says LAs have wide discretion; ” it is for each local authority to decide what it sees as necessary and proportionate”

My personal view is that there is very little benefit to LAs in requiring more and more information before they can reach a view because they just end up with a big backlog of families they haven’t made their minds up about.

There is no reason for LAs to change their policies and procedures purely as a result of the Portsmouth JR which was about a policy choice on the part of this particular LA and nothing in the judgment or from the government to suggest that local authorities whose approach may differ from Portsmouth’s are somehow doing it wrong.

Neither is there anything in the judgment which indicates that the government guidance on home education is in any way defective or unclear or inconsistent with the statutory framework.

What I also take from this is that “concerns” need not be restricted to identifying and itemising specific shortcomings in the parents’ provision. NB the previous Elective Home Education Guidelines in operation from 2007 to 2019 did say “Parents should be given the opportunity to address any specific concerns that the authority has … A written report should be made … to the parents 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.” However, it should be noted that there is nothing directly comparable in the 2019 Guidance.

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Upper Tribunal Case, Leaving Section I Blank

This is a case I won at the Upper Tribunal in September 2021, NN V Cheshire East Council (SEN): [2021] UKUT 220 (AAC) . It concerns education otherwise than at school [EOTAS] where it is not intended that the child will actually attend school but a school is nevertheless named on the EHCP whether that is for funding purposes or because the LA thinks it is better in some way to be attached to a school or for a school to manage the provision.

NN v Cheshire East builds on and goes further than Derbyshire 2019 which dealt with confusion at the time over whether it was always NECESSARY to name a school. The present case is about whether a school necessarily SHOULD be named, given that it is possible either to name or not name.

The First-tier Tribunal ordered the following words for Section I “Specialist Provision: [the school], Bespoke provision.” The parent took the case to the Upper Tribunal on the basis that the First-tier Tribunal had erred in law by naming a school in Section I.

The Upper Tribunal agreed and ruled that the contents of Section I had not been decided correctly firstly because there had been insufficient consideration of the appropriateness of school ie whether school would ‘not be suitable’ or ‘not be proper’; secondly that it would not be right to name a school where the child would not attend (even with a wide interpretation of “attendance”) and thirdly that it was not legitimate to add further descriptive terms to Section I.

Is School Inappropriate?
At the Upper Tribunal Judge Rowley gave the following guidance for EOTAS cases [see paragraph 47 Summary and guidance page 11] :
“a. The tribunal must consider section 61 CFA 2014. It must separately ask whether it is satisfied that it would be inappropriate for (i) any special educational provision that it has decided is necessary for the child to be made in any school and (ii) any part of the provision to be made in any school.
b. In considering these questions, the tribunal must ask if a school would ‘not be suitable’ or would ‘not be proper’. To do that, it has to take into account all the circumstances of the case. Without being an exhaustive list, those circumstances might include:
i.the child’s background and medical history;
ii. the particular educational needs of the child;
iii. the facilities that can be provided by a school;
iv. the facilities that could be provided other than in a school;
v. the comparative cost of the possible alternatives to the child’s educational provisions, either at school or elsewhere;
vi. the parents’ wishes (although they are not generally determinative); and
vii. any other particular circumstances that apply to a particular child (TM v London Borough of Hounslow (above).
c. If the tribunal is satisfied that it would be inappropriate for any such special educational provision to be made in any school, then Section I must be left blank.”

Attendance at School Named in Section I
In deciding whether it is permissible to name a school the tribunal must consider whether the school will in fact be “attended” by the child, bearing in mind that attendance does not have to be full time and is not limited to the classroom. Attending provision provided by the school at an alternative setting outside a conventional classroom setting still means the child is attending, but NOT where provision is delivered at the child’s home because home is not a setting [see East Sussex 2016 ]

Additional description in Section I
The Upper Tribunal confirmed as per Regulation 12 and following previous case law in East Sussex 2016 and Derbyshire 2019 that what is specified in Section I must be strictly limited to the name/and or the type of the school to be attended.


What are the implications?
Where a child has an Education Health and Care Plan and there are strong indications that a child will not attend school eg because of something in the child’s background or medical history -including eg the child’s own strong views or levels of anxiety or fatigue, or where there is something particular in the child’s educational needs, then proper consideration of these factors may lead the local authority – and if relevant the tribunal – to conclude that it would be inappropriate for provision to be made in a school. In such cases a school must not be named as the placement in Section I irrespective of whether the local authority wishes the school to deliver an outreach programme or bespoke package of education.

This is a significant ruling because of what may otherwise follow from a school being named in Section I “just to get the funding” but where a child was not expected to attend. This may include the parent being accountable to the school for provision made by the parent during “school hours”; the child being treated as a pupil who should really start attending or joining in with school; or the child being treated as a pupil who cannot be taken off roll without permission.

NB there are other situations where a child with an EHCP does not attend school but is receiving elective home education ie the parents are making their own provision. These are cases where the LA will say that a type of school is suitable but parents have chosen to make their own arrangements. In such a scenario, Section I will NOT be left blank but nor should it say anything about home education because as above the only permissible contents of Section I are the name and/or the type of school.

Teens Magic Project

HE Hub

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Applications are now open to take part in the Wellcome Collection’s free magic project for 14 to 19-year-olds. The aim is to learn the trade of conjurers and magicians, then step into the spotlight and perform. Not only is the project free to participate in, food and travel expenses will be covered!

Participants are required to attend on all dates, and these cover two Saturdays in July and two Tuesday to Friday weeks during the August summer holidays.

Early bird application deadline is on Monday, 17 June. More info and the application form can be found HERE. Good luck!

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New GCSE course for Home Ed Teens

HE Hub

gcse_image

Received the following email earlier in the week. If based in London and interested for your child/ren, please read through and apply via the link at the bottom. Kindly share so that as many home edders as possible know about this opportunity.

I’m very pleased to announce that the new GCSE course for home ed teens (14+) at City & Islington’s Angel campus is now live!  The subjects being offered are:

English (language & literature)
Maths
History
Double Science

The final decision re: the duration of course (1 or 2 years) will be made depending on the ages/needs of those registering interest.  I’m not sure whether the college has decided to allow a la carte selection from the subject menu or to require commitment to all subjects. The form linked below asks respondents to tick desired subjects so it may be that you can pick and choose.

Specific exam boards have not yet been…

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14+ Free GCSEs City and Islington College from 2019

Home education 14-16 funding details here http://edyourself.org/articles/14-16collegeFAQ.php

HE Hub

gcse

City & Islington College in London (CANDI) will be piloting a free, part-time, 2 year course for home educated children (14+) from September 2019.

The course will run 3 days a week at their Angel campus (Angel tube, Zone 1, Northern Line).

The pilot is now in the design phase, so if you are interested in a place for your child, please complete this survey to register your interest and contribute to the final subject selection. The link is repeated below.

Subjects:

GCSE English Language

GCSE Maths

+

Another subject or subjects, TBC. At this point, it looks likely to be a BTEC (Level 2) in ICT (Information & Creative Technology) with digital projects in partnership with a major tech company (TBD). However, there may be an opportunity to change this, or add an additional elective subject depending on interest. NB the children will be timetabled as a group, so…

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Background Information Lord Soley’s Home Education Bill

 

Here is some background information regarding Lord Soley’s Home Education Bill as set out in this FOI  from Hertfordshire CC, including correspondence from AEHEP in April 2017 and notes from the meeting with Lord Soley and others at the House of Lords in October 2017.

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