welsh home education guidance 2015 and the law

There was no legal framework for regular monitoring in 2006, so what has now changed?

Is it possible that the Welsh Government thinks Children Missing Education provides justification for annual monitoring?

The Welsh Government is currently asking for views on new draft elective home education guidance.

The consultation runs until July 3rd 2015.

As I pointed out in the yesterday’s annual monitoring post, the 2015 draft guidance recommends that someone from the council meets with the family every year, to talk to the child and ‘consider evidence’, whereas the current Guidelines advise that the council ‘should assume that efficient educational provision is taking place, which is suitable for the child, unless there is evidence to the contrary’ adding that ‘there is no express requirement … to investigate actively …” and ‘no legal framework … to regularly monitor provision’

Chapter 2 of the new draft guidance declares that ‘Under section 436A of the Education Act 1996, local authorities have a duty to make arrangements to identify children not receiving education and the suitability of that education’ and Chapter 4 refers back to this in its section on Reviewing Provision.

Arrangements to identify the suitability of education which is not being received doesn’t actually make sense, so it’s hard to see what the guidance means unless it is trying to claim that 436A brought in a proactive duty to assess home educators’ provision?

If so, this is a misunderstanding of the legal position.

2006-7 saw the introduction of a new law relating to Children Missing Education which stated that “a local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but — a) are not registered pupils at a school, and (b) are not receiving suitable education otherwise than at a school.”

This new duty appeared in the Education and Inspections Act 2006 which added section 436A to the Education Act 1996 in February 2007 [Link]. It did not become part of the law in Wales until September 2009 (see WELSH STATUTORY INSTRUMENTS 2009 No. 1027 (W.89) (C.60) EDUCATION, WALES The Education and Inspections Act 2006 (Commencement No. 3) (Wales) Order 2009) [Link])

The Children Missing Education duty now applies in both England and Wales although each country has its own statutory guidance.

Statutory guidance on Children Missing Education for Wales – published 2010 – directs local authorities to take action only ‘where the local authority has significant grounds for believing that satisfactory home education is not being provided by parents’.

This is echoed in the statutory guidance on Children Missing Education for England – latest version published January 2015 – which says that the local authority can use its powers to serve ‘notice on parents requiring them to satisfy the LA that their child is receiving suitable education when it comes to the local authority’s attention that a child might not be receiving such education.’

In other words, the Children Missing Education legislation which has been in force in Wales for nearly 6 years does NOT bring any new duties or powers for local authorities to carry out annual monitoring of home educators.

However, local authorities DO have duties and powers relating to School Attendance Orders, and the first part of 2.2 of the new draft home education guidance sets out the position relatively clearly.

2.2 Making a School Attendance Order, 2015 draft home education guidance
“Under section 437 of the Education Act 1996, where it appears to a local authority that a child of compulsory school age is not receiving suitable education, either by regular attendance at school or otherwise, the local authority may serve a notice on the parent requiring the parent to satisfy them (within a period of at least 15 days specified in the notice) that the child is receiving such education. The definition of suitable education is the same as that contained in section 436A of the Education Act 1996 as detailed above. If the parent fails to satisfy the local authority and the authority considers it expedient that the child should attend school, the local authority must serve a School Attendance Order (SAO) on the parent. This duty applies equally in relation to all children, regardless of whether or not they have previously attended a local authority school in the area. The SAO must be in a prescribed form and requires the parent to cause the child to become a registered pupil at a school named in the order. Failure to comply with an SAO is an offence, unless the parent can demonstrate that the child is receiving suitable education otherwise than at school.”

“A parent’s wish to educate a child at home should be respected and, where possible, effort should be made to resolve issues about provision by a process of ongoing dialogue before issuing a SAO. Local authorities should consider the need to issue an SAO on a case by case basis, and a decision will need to take into account the circumstances of individual cases.”

Nevertheless, there are two significant problems with the School Attendance Order section in the new draft guidance.

Firstly, anything about enforcement and the legal process with regard to home education has to be viewed in context, and unfortunately, the section on School Attendance Orders in the draft home education guidance currently sits within a document which also encourages energetic and proactive monitoring of home educating families. This muddies the waters considerably.

It matters because advice that ‘effort should be made to resolve issues about provision by a process of ongoing dialogue before issuing a SAO‘ could be seen as benevolent in the context of assuming no concern unless there is evidence to the contrary, but is altogether less benign in the context of regular inspections where families could be in perpetual limbo trying to please the local council, and being ‘spared’ the legal process but also being denied access to a legally aided defence.

Secondly, the 2015 draft guidance signposts to the All Wales Attendance Framework which contains the misleading and incorrect information (page 19) that there is no statutory defence to the offence of failing to comply with a School Attendance Order. This is extremely unhelpful, since as the draft guidance itself points out, it is open to the parent to demonstrate that the child is in fact receiving suitable education otherwise than at school.

In short, the draft home education guidance goes beyond the law and also signposts to contradictory and inconsistent legal advice. The most serious problems are with Chapter 2, Legal Position in relation to section 436A and also with the whole of Chapter 4, Reviewing Provision.

Useful Links

    Welsh Government consultation web page (includes draft guidance, response form, children’s version now in pdf AND plain text, children’s rights impact assessment, and equality impact assessment)
    Draft guidance set out as web page
    Children’s version set out as web page
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7 thoughts on “welsh home education guidance 2015 and the law

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