are the home education guidelines statutory?

UPDATE APRIL 11TH 2015: at the end of March 2015, Ofsted summarised the guidelines for inspectors and advised them to be aware of the guidelines when questioning local authorities about home education in the course of their inspection of children’s services. More 

Someone made this comment on my blog recently:

“I’m confused as to whether the EHEGLA (the “guidelines”) are statutory or not. The briefing note states they “are still in force” implying LAs have to abide by them. Also, does being referenced in the statutory CME guidance mean they are therefore also statutory? A group of HE’ers recently met with councillors and officials from Staffs, and were told they treat the guidelines as something they can choose to do or not. Do you know the definitive answer about this?”

My answer is a bit complicated.

Some sections of the 1996 Education Act have enabling clauses which allow the Secretary of State to issue guidance at some future date. They keep the wording of the actual law as non-committal as possible to get it through parliament but allow wiggle room later. There is nothing in the Education Act about guidance on home education.

You need to look out for this type of  phrase  to see whether there could be statutory guidance:

“In exercising their functions under this section a local education authority must have regard to any guidance given from time to time by the Secretary of State.”

The Department for Education distinguishes between “statutory guidance” and “non-statutory advice.”  There is a list of advice for schools here 

The Government Elective Home Education Guidelines are an example of non-statutory advice, as is the Advice on School  Attendance

The Department for Education published a useful page about statutory guidance and non-statutory advice in 2011 which has now been archived here 

Between January 2009 and November 2013 the Elective Home Education Guidelines for Local Authorities had the force of statutory guidance because the statutory guidance on Children Missing Education directed local authorities to follow the Home Education Guidelines.

After November 2013 when the CME Guidance was revised this was no longer the case.

I have also been asked about the Newham tactile paving case.

My view is that this case cannot establish a precedent by which all guidelines should henceforth be treated as having the force of statutory guidance since the judgement is qualified by reference to its context.

Having said all that though, the Department for Education is clear that it expects local authorities and other bodies to follow government advice. You don’t see schools arguing that the advice on how to mark the school register “isn’t statutory” or that “we’ve heard it might change soon, so we can just ignore the bits we think are wrong”   

Also the Department for Education does write to local authorities to reproach them for breaching the guidelines.

The Children Missing Education Guidance was revised AGAIN as recently as  January 2015 specifically to put in an up to date link to the Government Elective Home Education Guidelines (since very little else was changed) so the Government clearly wants LAs to have regard to the Guidelines.

And as the person who commented on my blog pointed out, the Briefing Note for parliamentarians states that the Guidelines are “still in force.” 

I’ve been asked – presumably in relation to what Daniel Monk says – about whether “case law trumps guidelines” but I’ll leave that for another post.

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