first reactions to new draft home education guidance Wales

I have very mixed feelings about the proposed new draft home education guidance for Wales and I can see why some home educators have welcomed it while others really don’t like it.

Wales does already have Elective Home Education Guidelines dating back to 2006.

However, what I found in 2012 was that many local authorities in Wales ignored the 2006 Guidelines and basically made things up as they went along. This is what I wrote at the time: “Local councils’ Freedom of Information answers confirm the impression that current practice tends to be inflexible and binary – a meeting or nothing – and does not follow the Government Guidelines which say that “Meetings or other forms of discussion should be taken as an opportunity to provide information for the parents or guardians and if meeting in person is not possible, local authorities should endeavour to provide the same information through the post.”

This situation doesn’t seem to have changed, for example a recent FOI revealed a policy of bi-annual inspections.

This makes it more difficult to comment on the lines of ‘the 2006 guidelines didn’t need changing and the 2015 guidance isn’t an improvement because xyz has been lost

Because was anything really ‘lost’ if local authorities never took any notice anyway?

Following that argument through though, the proposed new guidance is also non-statutory, so could also be ignored.

(The current law in Wales does not contain provision for the government to issue statutory guidance on home education.)

So maybe the conversation which we should be having about the proposed new draft guidance is…which bits do we think will be ignored and which bits will make a difference. And will the difference be good or bad.

The bits of the new non-statutory guidance I predict will be ignored are the bits that say schools and LAs should dip into their pockets to fund provision where there are problems at school but families don’t actively want to home educate. The reason why I think this is that there is already a massive shortfall in funding for EOTAS in Wales, which will probably be the subject of a subsequent blog post.

I also predict that there will no greater use of the schools complaints process as advocated in the new draft guidance and that where complaints are made against schools, parents won’t be any happier with the outcome than they have been in the past. Somewhat ironically, the complaints link in the proposed draft guidance is information for school governors explaining why parents lack faith in the complaints process.

The guidance also seems to want schools to try harder to keep pupils on roll. I can’t see any benefit to schools in doing this and I don’t believe for one minute that it will happen. We already know that schools in Wales offroll or illegally exclude pupils who are perceived to be difficult.

I would like to be proved wrong but neither do I think that Parent Partnership will be particularly effective in getting schools to improve SEN provision or stop illegally excluding/nudging out pupils they don’t want.

Therefore the main difference we might see in future could be the difference between ‘assume no problem until you have evidence to the contrary’ (2006) to ‘go in every year and ask for evidence.’ Which is what happens in some areas anyway, but will appear to be expressly sanctioned by the new guidance.

I’d love to hear from people who think that there are parts of the new guidance which will not be ignored and which will make a genuine positive difference for home educating families in Wales.

There is a consultation which runs till July 3rd 2015.

UPDATE MAY 22ND

I’m posting my consultation response here . So far I’ve said that Section 436A does not prescribe an annual check of parents’ provision and the statutory guidance on Children Missing Education Wales 2010 only recommends taking action “where the local authority has significant grounds for believing that satisfactory home education is not being provided by parents”. Therefore Part 4 of the guidance – ‘Reviewing Provision’ – goes beyond the law, in recommending that there should be an annual meeting with the family for the purpose of ‘considering evidence’ and also in recommending that there should be one to one conversations with home educated children.

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14 thoughts on “first reactions to new draft home education guidance Wales

  1. Jennifer Downing

    Six months ago, the High Court in Ali v London Borough of Newham [2012] EWHC 2970 (Admin) (30 October 2012) ruled on the status of a piece of non-statutory guidance: “The Department for Transport has produced guidance on the use of tactile paving to assist the visually impaired. The national guidance was developed in conjunction with and with the endorsement of Guide Dogs for the Blind and the RNIB.”

    So the guidance emanated from the executive, with the input of non-government expertise. The court ruled it had to be followed:

    “As to the principal contest between the parties, namely, the status and effect of non-statutory guidance, I recognise some force in [counsel’s contrary] submission that the court should be circumspect and careful so as to avoid converting what is a non-binding guidance into, in effect, mandatory rules. To do so would tend to subvert the intention of the guidance and would risk undermining the autonomy of the primary decision maker upon whom Parliament has conferred ultimate responsibility for discharging the function in question. However, this does seem to me to be yet another area which bears out Lord Steyn’s famous dictum that “in law, context is everything”.

    “In my view, the weight that should be given to particular guidance depends upon the specific context in which the guidance has been produced. In particular (without intending to create an exhaustive list) I believe that it is necessary to give due regard to the authorship of the guidance, the quality and intensity of the work done in the production of the guidance, the extent to which the (possibly competing) interests of those who are likely to be affected by the guidance have been recognised and weighed, the importance of any more general public policy that the guidance has sought to promote, and the express terms of the guidance itself. In my view, it would be unwise for the court to descend into the intrinsic merits of the guidance, unless it was seriously contended that it was unlawful or very obviously defective.” [my emphasis]

    The caselaw has arrived at a significant point in relation to non-statutory guidance: we may be bound by guidance because it is authoritative and expert, rather than because of its label.

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    1. Fiona Nicholson Post author

      I’m sketching out my consultation answers on the website, this is what I’ve got so far
      http://edyourself.org/articles/welshconsultation2015.php#consultquest

      Question 1: Do you feel that the guidance provides sufficient assistance for local authorities to support home educating families?
      Question 2: Is there anything missing from the guidance which you think should be included, if so please specify?
      Question 3: Does the guidance clearly outline the legal position of elective home education in Wales?
      Question 4: Does the guidance clearly outline the responsibilities of local authorities in relation to elective home education?
      Question 5: We have asked a number of specific questions. If you have any related issues which we have not specifically addressed, please use this space to report them.

      First thoughts: It’s difficult to separate ‘the legal position of elective home education’ from ‘the responsibilities of local authorities in relation to elective home education.’ The guidance correctly says that parents have a duty under section 7. The guidance is also accurate where it directly quotes from section 436A. The guidance is not accurate where it paraphrases s436A. Section 436A does not prescribe an annual check of parents’ provision and the statutory guidance on Children Missing Education Wales 2010 only recommends taking action “where the local authority has significant grounds for believing that satisfactory home education is not being provided by parents”. Therefore Part 4 of the guidance – ‘Reviewing Provision’ – goes beyond the law, in recommending that there should be an annual meeting with the family for the purpose of ‘considering evidence’ and also in recommending that there should be one to one conversations with home educated children.

      4.2 – ‘Children with Statements of Special Educational Needs (SEN)’ – omits the following sentence from the SEN Code of Practice “The LEA should consider…whether the child’s needs could be met in future within the resources of mainstream schools within the area without the need for continuing LEA oversight…” It is not simply up to the LA to decide that since nothing is being provided at home, therefore the statement should cease.”

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