Correspondence various LAs Lord Soley Home Education Bill

Here are some discussions between Lord Soley and various local authority officers September to December 2017, derived from this FOI

• 4  September 2017 17.22, DH to all, Lord Soley meeting Lord Nash on 5 September wanting evidence increase numbers + confirmation meeting 17 October,
• 27 September 2017 12.15, VT to DH and JD,  query agenda 11 October [AEHEP committee] meeting,
• 27 September 2017 21.59, DH to V and J, invite Lord Soley to 11 October[AEHEP committee]  meeting? Invite SB to 11 October meeting? Success of private members bills? ADCS meeting Lord Nash “gov view is that LA’s need to stretch the guidance and they want case law to be tested”, DH to attend AEWM annual conference,
• 28 September 2017 11.35, JD to DH (and presumably VT), confirm invite Lord Soley to AEHEP committee meeting, also invite SB and DM “Problem with Lord N suggesting LA’s stretch the guidance is that this needs to be communicated to EHE community”,
• 04 October 2017 13.09, Annette Bailey to Vivian Trundell, Jenny Dodd, Kevin Grant, Anna Shaw, Frances Molloy, Fiona Lowery, Andrew Parker, Venetta Buchanan, Elaine Grant, Dave Harvey,  meeting with Lord Soley at Westminster 17 October,
•  04 October 2017 16.10, Frances Molloy, apologies unable to attend meeting on 17 October,
• 05 October 2017 13.38, Annette Bailey to all, change of timing for meeting with Lord Soley on 17 October,
• 11 October 2017 14.44, Lord Soley to DH forwarding emails with the Department for Education: 1/ SB to Lord S; 2/ Lord S to SB; 3/ SB to Lord S; 4/ Lord S to SB; 5/ SB to Lord S,
• 11 October 2017 15.19, DH to Lord Soley, AEHEP will write to S T, query invited other peers to meeting on 17 October,
• 11 October 2017 16.05, Lord Soley to DH, not invited other peers,
• 11 October 2017 21.28, DH to all, “DfE civil servants will join us [at meeting 17 October], if not other peers“,
• 24 October 2017 17.28, Lord Soley to DH, thanks for help, notes from meeting 17 October,
•  27 October 2017 16.23, DH to Lord Soley, additional points re meeting notes  “AEHEP happy to act as meeting coordination function”,  
• 30 October 2017 18.37, Lord Soley to DH, 2nd reading Bill Friday 24 November,
• O6 November 2017 08.42, DH FORWARDED EMAILS: 1/ Lord Soley changes to wording of bill remove physical and emotional development, query current practice re safeguarding referral; 2/ Dave Harvey response re safeguarding concerns process, offer collate AEHEP replies,
• O6 November 2017 08.53, DH FORWARDED EMAILS: 1/ Lord Soley changes to wording of bill remove physical and emotional development, query current practice re safeguarding referral; 2/ Dave Harvey response re safeguarding concerns process, offer collate AEHEP replies,
• 06 November 2017 09.32, FL, safeguarding concerns process,
• 06 November 2017 10.09, AS, duty to monitor educational development will put LA in better position,
• 06 November 2017 11.01, TW, Early Help Assessments to engage parents before safeguarding,
• 06 November 2017 14.42, DH, “Problem with EHH assessments is that parents need to agree and a lot refuse” 
• 06 November 2017 14.49, TW, agree “But if a matter goes to SAO then it can add weight to its need & shows parents not working with LA etc” , 
• 07 November 2017 15.16, VB, “Too much relies on parental permission” outlines LA safeguarding concern process,  “the starting point is to get access to educational provision. Looking at provision is firmer ground than trying to tackle emotional development”,
• 11 November 2017 19.19, DM, please forward commentary on bill to Lord Soley,
• 12 November 2017 17.24, DH to Lord Soley, enclosing D’s commentary, “general view of the executive of the AEHEP is that words ‘physical and emotional’ could be left out not least because this will distract and allow the EHE lobby to be critical. The important issue is the duty to monitor the child’s ‘educational’ development, safeguarding issues will be covered …” 
• DM [Daniel Monk] Commentary on Bill,
• 16 November 2017 20.45, DH,  ADCS [Association Directors Children’s Services] home education survey FORWARDING 16 November 2017 16.58, KB [possibly Katy Block, ADCS; confirmed as NOT Karen Beaton, Cambridgeshire) ,
• 17 November 2017 10.29, FM, Agenda items for team meeting,
• 08 December 2017 15.03, DH  FORWARDED EMAILS: 1/ Lord Soley, bill going to committee February/March possible further meeting; 2/ DH, “You are correct the EHE lobby is mobilising – already FOI requests, particularly to HCC and KCC asking for copies of all emails between officers and yourself. I think a further working meeting of interesting parties would be helpful in early January. We wondered if the guidance was to be rewritten whether the DFE would invite interested parties to contribute. I would include both the LA’s, safeguarding groups, associations like AEHEP, AEWM plus EHE lobby groups such as F N. I’ll circulate the committee of AEHEP for wider thoughts and get back to you” ,
• 08 December 2017 15.13, TW, agrees,
• 11 December 2017 08.11, KG agrees + hopes DM will attend “as his expertise would be essential I think”,  
• 11 December 2017 10.10, JD,  agree “essential we have D there”,
• 11 December 2017 10.15, VT,  “Not sure we all need to go and might be difficult to co-ordinate but we can gather views prior”,  
• 11 December 2017 17.01, DM,  “Very happy to contribute to this strategies meeting”, 
• 13 December 2017 11.55, VB,  “I agree with all that’s been said. A meeting will be needed to coordinate our response”, 
• December 18, 2017 11.42, AB, next meeting Lord Soley 23 January 2017 12 noon Houses of Parliament, “total number of people who can attend is approximately the same as previously, around twenty”,  
• 18 December 2017 12.17, DM, accepts,
• 20 December 2017 10.33, VF, accepts,

———–

From H D [Dave Harvey?]
Sent 04 September 2017 17.22
To
Subject Lords update
Hi all
Just an update to say C S [Clive,Lord Soley?] rang me today to see he is meeting Lord N [Lord Nash?] tomorrow – he wanted evidence of increase numbers so I gave him Hampshire’s incrase over 5 years (2011 = 4-3, 2017 = 1400) and said in general this reflected the national picture. I made the point it would help if the DFE demanded all LA’s provide data so they knew the extent of the issue. If DFE do not ask the questions they have no hope of finding the answers. In conversation we also raised the question of schools ‘easing out’ pupils to improve outcome data – again no data available but I did say that anecdotally many LAs had commented on this trend. Not dissimilar to Grammar schools preventing pupils from studying A levels if not predicted A/A* grades except the pupils we are talking about will not have rich parents able to employ a leading solicitor to fight their case …
October 17 is on – he will be in touch after his meeting – good sign it is tomorrow – he is hoping Gov will run with it.
D
D H

From T V [Viv Trundell?]
Sent 27 September 2017 12.15
To D J (F&C) [Jenny Dodd?]; H D [Dave Harvey?]
Subject RE Agenda for 11th Oct
Dear J and D
Hope your term has started well. What items would you like to put on the agenda [for AEHEP committee meeting on October 11] ? J I believe you kindly agreed to host again can you confirm the address. I have attached the previous agenda and notes from the meeting.
Kind regards
V
V T

From H D [Dave Harvey?]
Sent 27 September 2017 21.59
To
cc
Subject RE Agenda for 11th Oct
Hi V and J [Viv Trundell and Jenny Dodd?]
Apologies I have been a bit quiet recently. Think we keep the agenda simple – Discussion with Lord Soley – J do you want to invite him on the 11th? [to AEHEP committee meeting]  (He has said yes but we need to firm up) I am getting mixed messages about Private members bill but suspect it will get nowhere. Last week ADCS [Association Directors Children’s Services] met with Lord N [Lord Nash, then Minister with responsibility for home education] and he has suggested that the gov view is that LA’s need to stretch the guidance and they want case law to be tested (D M ) I’ll try to get more details from my DCS as he was one of the five DCS’s to meet Lord N. AEWM also seem to have got the same or similar message from S B [Stephen Bishop, DfE?] could we invite him? I am attending the AEWM annual conference in Birmingham on 18 November where I hope to cement AEHEP links as our agendas seem very similar. ADCS are putting out their survey again – so that should demonstrate rise in numbers (HCC up 56% to 1492. I have copied in everyone so we can have their input for agenda.
D

From D J [Jenny Dodd?]
Sent 28 September 2017 11.35
To
Cc
Subject RE Agenda for 11th Oct
Hi D [Dave Harvey?]
Sorry to hear you’ve been poorly. Yes, happy for Lord Soley to attend next meeting on 11th October. I was under the impression he wanted to meet the committee to gather people’s concerns. Would you like me to invite him or would it be best for you to do it as you have most contact with him? Problem with Lord N [Lord Nash?] suggesting LA’s stretch the guidance is that this needs to be communicated to EHE community so that is a lost leader. I’m happy to invite S B [Stephen Bishop?] to next committee meeting as I can see he intimated he would get back in touch with me which he hasn’t to date. I’ll wait to hear from you V please invite D M [Daniel Monk?] to the committee meeting on 11th October
Thanks J

From Bailey Annette [mail to annette.bailey@hants.gov.uk]
Sent 04 October 2017 13.09
To Trundell Vivian <vtrundell@buckscc.gov.uk>; Jenny Dodd <jenny.dodd@staffordshire.gov.uk>; Kevin Grant <kevin.grant@grovelandscentre.org.uk>; Anna Shaw <Anna.Shaw@hertfordshire.gov.uk>; Molloy, Frances <Frances.Molloy@lancashire.gov.uk>; ‘Fiona.Lowery@doncaster.gov.uk’ <Fiona.Lowery@doncaster.gov.uk>; Andrew Parker <andrew.parker@westsussex.gov.uk>; Buchanan Venetta <Venetta.Buchanan@sheffield.gov.uk>; Grant, Elaine <Elaine.Grant@croydon.gov.uk>; cc Harvey, Dave <Dave.Harvey@hants.gov.uk>;
Subject: Elective Home Education Discussion with Lord Soley
Dear all
Elective Home Education Discussion with Lord Soley
You will be aware that there has been a private members bill around Elective Home Education and Lord Soley would like the opportunity to discuss the private members bill with interested parties. The meeting is taking place on Tuesday 17 October at 3.00 pm at the Houses of Parliament. Exact location to be confirmed nearer the time. The room Lord Soley is booking has a maximum of twenty people therefore AEHEP members will shrink and grow according to outside representation. Could you please let me know if you are available to attend. If you have any queries regarding the above meeting please contact D H [Dave Harvey?] on the number below.
Many thanks
A

From M F [Frances Molloy?]
Sent 04 October 2017 16.10
To
cc
Subject RE Elective Home Education Discussion with Lord Soley
Hi
I am not available to attend
thanks
F M

From B A [Annette Bailey, PA to Dave Harvey?]
Sent 05 October 2017 13.38
To
Cc
Subject Elective Home Education Discussion with Lord Soley
Dear all
Unfortunately Lord Soley has had difficulty in finding a room for a 3.00pm to 5.00pm meeting. The meeting is now going to take place from 1.00pm to 3.00pm in the main building at the Houses of Parliament. Could you please let me know if the change in time is going to make a difference to your attendance at the meeting.
Thanks.
A
A B

*****
From SOLEY, Lord
Sent Wednesday 11 October 2017 2.44pm
To H D [Dave Harvey?]
Subject FW Meetings on Home Education (Duty of Local Authorities) Bill
FYI – I will be enabling them to attend.
Lord Soley

FORWARDED EMAILS

1/ From B S [Stephen Bishop DfE?]
Sent 11 September 2017 13.03
To SOLEY,Lord
cc B S
Subject: Meetings on Home Education (Duty of Local Authorities) Bill
Dear Lord Soley
During last week’s meeting with L N [Lord Nash?] you mentioned two meetings you intended to arrange for October. One was to be with Ofsted, LAs etc and the other with parents, and L N said that we would ensure that there were DfE officials attending in an observer capacity. Can you let us have details of the dates, location etc so we can decide how best to arrange this?
Thank you.

2/ From SOLEY, Lord
Sent 13 September 2017 20.36
To B S [Stephen Bishop, DfE?]
Subject RE Meetings on Home Education (Duty of Local Authorities) Bill
It is likely to be the 17th October – time uncertain at this stage but likely to be early evening. Stay in touch. Lord Soley

3/ From B S [Stephen Bishop, DfE?]
Sent 02 October 2017 09.10
Subject RE Meetings on Home Education (Duty of Local Authorities) Bill
Is there any more concrete news on the planned meeting(s)? You will have seen
that L N [Lord Nash] is no longer responsible minister. However, we would still wish to follow up events connected with the bill.
S B

4/ From SOLEY, Lord
Sent 02 October 2017 13.26
To
Subject Re Meetings on Home Education
Dear Mr B [Stephen Bishop DfE?]
The meeting is still planned for the 17th October probably between 3 and 5pm but I am currently trying to get a room in the House for the meeting. I understand the new Minister is S T A [Sir Theo Agnew] – is that correct? The other problem here is the position of the new minister on this issue. If he is still sympathetic to co-operating with me on getting the Bill into a form that satisfies the Government and myself then obviously I will try and involve the Department at all stages. If there is not a willingness to co-operate then I will have to reconsider how I handle the Bill. Any ideas about this?
Lord Soley

5/ From B S [Stephen Bishop, DfE?]
Sent 04 October 2017 14.29
To SOLEY, Lord
Subject RE Meetings on Home Education (Duty of Local Authorities) Bill
Dear Lord Soley
Thank you – we will try to have someone present in a purely observer capacity, when the date is confirmed – please let me know in due course but also copy in the two colleagues who are also receiving this email as I shall be on leave shortly. We have not yet had an opportunity to discuss home education with S T A [Sir Theo Agnew] , so at this stage we cannot comment on his view of the Bill.
S B

END FORWARDED EMAILS

***

Original Message
From H D [Dave Harvey?]
Sent 11 October 2017 15.19
To SOLEY, Lord
cc B A
Subject Re FW Meetings on Home Education (Duty of Local Authorities) Bill
Thanks C [Clive, Lord Soley?] Looking forward to meeting next week. A [Annette Bailey PA to Dave Harvey?] will send out the list of attendees later this week. The AEHEP intends to write to S T [Sir Theo Agnew?] to introduce ourselves. Have you invited other peers? I only ask since some like B D [Baroness Deech?] L L [Lord Lucas?] and L W [Lord Watson/Lord Warner?] have shown a keen interest in EHE.
Best wishes D

Original message
From SOLEY, Lord
Sent 11 October 2017 16.05
To H D
Subject RE FW Meetings on Home Education (Duty of Local Authorities) Bill
At this stage I haven’t invited other peers. If you wish to send the note I wrote to various correspondents a few months ago to all attendees please do so. I have attached another copy for your general use.
Lord Soley.

From H D [Dave Harvey?]
Sent 11 October 2017 21.28
Cc
Subject FW FW Meetings on Home Education (Duty of Local Authorities) Bill
Attachments HE Letter 16.docx
Hi all
Further to our meeting today DfE civil servants will join us, if not other peers but I guess Lord Soley can get their views more easily. I will send the attached note to all participants with room/joining details tomorrow.
Best wishes
D
D H

From SOLEY Lord
Sent 24 October 2017 17.28
To
Cc
Subject FW: Meeting notes and attendee list
D [Dave Harvey?]
Many thanks for your help and offer to help as from now. I thought it was a very positive meeting. The attached brief notes were taken by A. I could send them to all who attended but I am not sure how helpful or necessary that would be. Also, let me know if there is any vital point not included.
C

From H D [Dave Harvey?]
Sent 27 October 2017 16.23
To
cc
Subject RE Meeting notes and attendee list
Hi C
We thought the meeting was useful too. I have looked over the notes and think they covered the main points of the discussion. Minor points data collection should be requested by DfE – basic stuff like numbers but also which schools children are comingh out of. Gender/SEN/FSM etc Concerns that EHE is driven by schools and not always parents. AEHEP happy to act as meeting coordination function – look forward to hearing from you
Best wishes
D
D H

From SOLEY Lord
Sent 30 October 2017 18.37
To
CC
Subject RE Meeting notes & attendee list
Hi D [Dave Harvey?]
The second reading of the Bill will now be on Friday 24th November – sometime after 11am. You may wish to inform interested parties who can of course attend the debate as members of the public. It will be in the main chamber of the House and details for this can be found here.
C
Lord Soley

From C T
Sent 01 November 2017 16.11
To
cc
Subject RE link sent to D H yesterday
Dear D [Dave Harvey?]
I noticed when Lord Soley copied me in on the email sent you yesterday that the link had somehow got corrupted (and led to a “Page Not Found”) Here is the corrected link which takes you to “Visiting the HOuse of Lords” page:
Best wishes
C
Dr C T

From H D
Sent 01 November 2017 19.06
To
Subject FW link sent to D H yesterday
Correct link – please see below
Lord Soley

***
FORWARDED EMAILS
From H D [Dave Harvey?]
Sent O6 November 2017 08.42
To
cc
Subject FW Home education
Please read email trail below – I have suggested I collate all replies simply to make sure no emails are missed by C and A. You will see I have optimistically suggested I will reply by the end of the week – please “reply all” & copy in A as I am out and about most of the week.
Hope this makes sense
Best wishes
D
D H

1/ From Lord Soley
Sent 05 November 2017 00.37
To
cc
Subject: Home education
Hi D
I have been giving some careful thought to the wording of my Bill and thinking of changes that will enhance its chances of getting sufficient support and also making better legislation. I think there is a problenm when I include “physical and emotional development” including these words will increase opposition and in any event I am not sure how realistic it would be for an education officer to make such an assessment. For this reason I am minded to try and amend the Bill in committee excluding those words in the long title and in Clause 2(1) and Clause 2(4).
That would still leave a problem in relation to any child being subject to abuse or being radicalised etc. So I could add another sub clause saying something along the following lines:
“If a local authority has concerns about the welfare of the child they shall refer the child to the appropriate authority or call a case conference. “ This will have to be put into proper Parliamentary drafting language. Does an education officer have authority to call a case conference if they are concerned about a child’s welfare? What are they expected to do if they become concerned about welfare? I would find it very helpful if you could run this email past your colleagues to get some feedback – ideally before the second reading on the 24th. Can you do this for me? Please call if you need clarification.
Many thanks.
C
Lord Soley

2/ From H D
Sent 06 November 2017 08.37
To SOLEY, Lord
cc
Subject RE Home education
Hi C
If safeguarding concerns are identified by an education officer (ie suspicion of neglect, sexual, emotional or physical abuse) then this is referred to Children’s Services and due process takes place. Case conferences would be called by Children’s Service’s colleagues. The problem emerges where education officials do not have access to children so would not necessarily have any knowledge of any safeguarding issues so would not report. Different LA’s might do things differently but I will write to AEHEP colleagues and collate replies before passing back to you to avoid your inbox being bombarded with comments. I expect to reply to you by the end of this week (10 Nov)
Best wishes
D
D H [Dave Harvey] Strategic Manager Alternative Provision

***

FORWARDED EMAILS
From H D [Dave Harvey?]
Sent 06 November 2017 8.53 am
To
cc
Subject FW Home education
Hi D [Daniel Monk?]
Have a look at the email trail below…
Any queries please let me know
best wishes
D
D H

From Lord Soley
1/ Sent 05 November 2017 00.37
To
cc
Subject: Home education
Hi D
I have been giving some careful thought to the wording of my Bill and thinking of changes that will enhance its chances of getting sufficient support and also making better legislation. I think there is a problem when I include “physical and emotional development” including these words will increase opposition and in any event I am not sure how realistic it would be for an education officer to make such an assessment. For this reason I am minded to try and amend the Bill in committee excluding those words in the long title and in Clause 2(1) and Clause 2(4).
That would still leave a problem in relation to any child being subject to abuse or being radicalised etc. So I could add another sub clause saying something along the following lines:
“If a local authority has concerns about the welfare of the child they shall refer the child to the appropriate authority or call a case conference. “ This will have to be put into proper Parliamentary drafting language. Does an education officer have authority to call a case conference if they are concerned about a child’s welfare? What are they expected to do if they become concerned about welfare? I would find it very helpful if you could run this email past your colleagues to get some feedback – ideally before the second reading on the 24th. Can you do this for me? Please call if you need clarification.
Many thanks.
C
Lord Soley

2/ From H D
Sent 06 November 2017 08.37
To SOLEY, Lord
cc
Subject RE Home education
Hi C [Clive, Lord Soley]
If safeguarding concerns are identified by an education officer (ie suspicion of neglect, sexual, emotional or physical abuse) then this is referred to Children’s Services and due process takes place. Case conferences would be called by Children’s Service’s colleagues. The problem emerges where education officials do not have access to children so would not necessarily have any knowledge of any safeguarding issues so would not report. Different LA’s might do things differently but I will write to AEHEP colleagues and collate replies before passing back to you to avoid your inbox being bombarded with comments. I expect to reply to you by the end of this week (10 Nov)
Best wishes
D
D H [Dave Harvey]

***

From L F [Fiona Lowther?]
Sent 06 November 2017 09.32
To
cc
Subject RE Home education
Hi
If I had any safeguarding concerns I would refer to the Referral and Response Team who are part of Doncaster Children’s Safeguarding Trust (Social Care). A decision would be made by them as to any further action – including whether a Case Conference would need to be called.
Hope this helps.
F
F L

From A S [Anna Shaw?]
Sent 06 November 2017 10.09
cc
Subject RE Home education
Hi D
I think those words ‘physical and emotional’ could be left out. As long as there is still a duty to monitor the child’s ‘educational’ development, then safeguarding issues will be covered. Once EHE professionals are under duty to monitor the ‘educational’ development of the child by a visit to the home and a discussion with the parent and child, they will be in a better position to detect any safeguarding issues. If there are concerns, these would be referred to Children’s services and dealt with appropriately. The problem at the moment is that EHE professionals don’t have a duty to monitor the education or the right to see the child regularly and therefore would not be alert to safeguarding concerns. If the bill were modified to exclude the words ‘physical and emotional’, it would not change anything from the original bill wording, from a safeguarding point of view.
A
A S

From T W [Tony Waller, Somerset?]
Sent 06 November 2017 11.01
To
cc
Subject RE Home education
D
Your response would be the same as us. I wonder if there is the opportunity to raise the use of Early Help Assessments as a way of engaging parents before it gets to any safeguarding issues, to agree a supportive plan.
T

From H D
Sent 06 November 2017 14.42
To
cc
Subject RE Home education
Problem with EHH assessments is that parents need to agree and a lot refuse.
D H [Dave Harvey?]

From T W [Tony Waller, Somerset?]
Sent 06 November 2017 14.49
cc
Subject RE Home education
Yes, I agree most will refuse. But if a matter goes to SAO then it can add weight to its need & shows parents not working with LA etc.
T W

From B V [Venetta Buchanan?]
Sent 07 November 2017 15.16
cc
Subject RE Home education
That’s basically the trouble with all of this. Too much relies on parental permission. It’s pretty much the same here in that any concerns are raised with our safeguarding board. They discuss the concern, request a written account and then pass it to social care. Social care then decide what action if any should be taken. I don’t think it’s a problem removing references to physical and emotional development. I agree with A , the starting point is to get access to educational provision. Looking at provision is firmer ground than trying to tackle emotional development.
All the best
V
Advisory Teacher Elective Home Education
Level 5 North Wing
Moorfoot
Sheffield
S1 4PL

From D M [Daniel Monk?]
Sent 11 November 2017 19.19
To
cc
Subject Re: Home education
Dear D and A
I’d be grateful if you could please forward the attached to Lord Soley and to his assistant A S. And do please forward it to your colleagues too on the AEHP. many children are EHE and must rely on voluntary contact from parents. Hope this is helpful. Best wishes. D

From H D [Dave Harvey?]
Sent 12 November 2017 17.24
To soleyc
Subject FW Home education
Attachments Comments on the Home Education Bill 2017.docx
Hi C [Clive, Lord Soley?]
I have attached D ‘s [Daniel Monk] very comprehensive commentary. The general view of the executive of the AEHEP is that words ‘physical and emotional’ could be left out not least because this will distract and allow the EHE lobby to be critical. The important issue is the duty to monitor the child’s ‘educational’ development, safeguarding issues will be covered as EHE professionals will be able to visit the child at home/neutral location home and with a discussion with the parent and child, they will be in a better position to detect any safeguarding issues anyway. If there are concerns, these would be referred to Children’s services and dealt with appropriately. That process is well established across all LA’s with minor differences dependent on how the LA organises itself. The core issues then are to to establish clear statutory access to the children and having full details of all EHE’s, not just those out of school or who volunteer. It would seem bizarre that in the 21st century we do not know exactly how many children are EHE and must rely on voluntary contact from parents.
Hope this is helpful
Best wishes
D
D H

Comments on the Home Education (Duty of Local Authorities) Bill [HL]
(provided 11 November 2017)
D M [Daniel Monk?]
General Points
In some respects the Bill simply confirms and clarifies existing duties of local authorities – that they already have duties and responsibilities to secure the education of all children in their area. Emphasising this fact might be strategically useful. Some local authorities already see and monitor home education of all children in their area. They sometimes face difficulties doing this and the Bill will confirm their duties and in doing save time by helping avoid confusion and disputes and at the same time reassure other local authorities uncertain about their existing duties.
One way to make it clearer that the Bill in many respects is not creating new duties is showing in the Bill itself how it refers to and builds on existing statutory duties. Below I indicate ways in which this might be possible. I also note where the provisions in the Bill confirm the law as laid down by relevant case law. That is also a well-established role for legislation. Even if these specific details might be more appropriately a matter for Committee stage I hope they will be useful in the second reading of the Bill.
In other respects the Bill clearly does creates new duties. The most important is the duty on parents to register. But in addition placing the Guidance on a statutory basis is also new as it is currently not referred to or required by any statute.
The Bill would be the first time that the expression elective home education or indeed home education have been referred to by statute. I think it is worth noting that. Following specific comments on the Bill I have added other points and references to sources that might be of use in supporting the Bill.
Specific Comments on the Bill
S 436B(1)
Inserting the new provision after s 436A makes a lot of sense. That duty makes it clear that a local education authority:
‘…must make arrangements to enable them to establish … the identities of children in their area who are of compulsory school age but … (b)are not receiving suitable education otherwise than at a school.’
It makes clear that a duty already exists on local authorities.
The new provision here in s 436B(1) also confirms the position established clearly by case law (Phillips v Brown, 1980) that a local authority has a positive duty to take action in order to comply with their existing duty under section 437 (1)
Consequently on the basis of two existing statutory duties and established case law the new provision in s 436B (1) simply clarifies and confirms the current position.
I suggest that ‘physical and emotional development’ in s 436B(1) should be deleted. The safeguarding function of monitoring elective home education is important but can be dealt with elsewhere. Including it here weakens the argument that the key provision is simply clarifying the existing law. The key education duties on parents and local authorities in sections 7 and 437 (1) refer to ‘suitable education’ only. This provision should mirror those provisions as much as possible.
S 436B (2) – the new duty on parents to register
Where a new statutory duty is created it is usual and good practice to create a sanction for non-compliance with the duty. This is also important as it is likely that arguments will be raised about the point of a duty to register if people will can ignore it. The point can be dealt with easily by including a provision that makes clear that:’where a parent fails to register a Local Authority may take this into account in determining whether to issue a notice under the Education Act 1996 s 437 (1)’
Section 437 (1) is the key statutory duty that instructs local authorities about their duties ‘if it appears’ to them that ‘a child is not receiving sufficient education.’ Including it here in the Bill is building on and coheres with existing duties. Moreover case law has established that ‘if parents refuse to answer it could very easily conclude that prima facie the parents were in breach of their duty.’ (Phillips v Brown, 1980) In other words the inclusion of a sanction here for non registering is proportionate and coheres with existing law.
S 436B(3) As currently drafted this could be interpreted as saying that a local authority can only assess once a year. In practice some local authorities monitor once a year or less or sometimes more. I suggest that the provision should make clear that an assessment once a year is the minimum requirement.
‘Local authorities must undertake an assessment of each child receiving elective home education in their area not less than once a year (hereinafter referred to as ‘the assessment.’)’
S 436B(4) For the reasons noted above I suggest the deletion of ‘(b) physical; and (c) emotional development’.
I think it would be clearer if the provision simply read, ‘… must include an assessment of the education of each child.’
In order to make it clear that it refers to the existing statutory duty on parents under section 7 of the Education Act 1996 I suggest that here should be added:
‘Education for these purposes refers to efficient full-time education, including provision of instruction in reading, writing and numeracy, suitable – (a) to his age, ability and aptitude, and (b) to any special educational needs and disabilities he may have.’
This is what the assessment must monitor and it makes sense to say so clearly here.
S 436B(5) I think it would be clearer to state here:
‘In undertaking the assessment the local authority may: (a) visit the child’s home’; (b) speak with the parent and the child; and (c) see the child’s work.’
I think the word ‘interview’ might be overly formal, especially with a younger child. It is very close to ‘Child Protection’ in terms of tone (see references to Commons Selectg Committee findings below).
S 436B(6) I suggest inserting after ‘provide’: ‘within a reasonable time period.’ This is because case law emphasises the importance of fairness in proceedings and requests for information. See R v Gwent County Council ex p Perry (1985) 129 SJ 737 CA where it was held that ‘a sufficient time to set in motion their arrangements for home education’ and ‘a fair and reasonable opportunity’ to satisfy the concerns of the LEA’.
As this creates a duty on parents a sanction for non-compliance is I suggest required and could take the same form as noted above and for the same reasons: ‘where a parent fails to register a Local Authority may take this into account in determining whether to issue a notice under the Education Act 1996 s 437 (1)
S 436B (9) and s 3 In defining ‘elective home education’ I suggest that the Bill should adopt the terminology used in the existing provisions that enable a parent to opt to home educate under section 7 of the Education Act 1996: “elective home education” refers to the provision by parents of efficient full-time education suitable – (a) to his age ability and aptitude and (b) to any special educational needs he may have, otherwise than by regular attendance at school’.
This approach emphasises that the Bill is clarifying existing law and the terminology currently used in the Bill might prove problematic as some home educated children are not educated exclusively ‘at home’ and some have some connections with ‘the school system’.
S2 The Guidance Suggest change (1) to: the Secretary of State must issue guidance about elective home education for local authorities ….’ ‘Update’ is confusing as currently there is no statutory requirement or reference to the guidance and that is what is being created here. Of course the existing guidance does indeed need updating, but that is regardless of whether new legislation is enacted. It is a separate issue.
Suggest delete s 2(2) It is better covered above in the context of the assessment. In that context however I suggest deleting the word ‘supervised’ and it is open to too many interpretations – best left to guidance – and the while the case law (Harrison and Harrison v Stevenson [1982]) supports the idea it opens the Bill up to pedagogical debates about non-directed learning that might not be helpful here. And 9 (b) is very vague (which children and parents?). The importance of their views is covered by the reference to a public consultation in s 2 (3) This is an important provision as it legitimises a government department spending resources on a consultation.
S 3 Interpretation, for ‘elective home education’ see above.
Other Possible Relevant Information/strategic arguments to support the Bill
1. Safeguarding
This is, understandably, a highly emotive issue for home educating parents. Keeping the focus of the Bill on ‘education’, ‘narrowly defined’ might be strategically helpful. Moreover, existing statutory duties already make clear that local authorities have safeguarding duties in the context of home education.
The Education At 2202 s 175 (1) states that: ‘A local education authority shall make arrangements for ensuring that the functions conferred on them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare of children’.
R (SD and PD) v Essex County Council [2012] CO/6935/2012 upheld the right of a local authority’s Home Education Service to make a referral to the local authority’s social welfare services where they had not seen the child and had not had any response to requests for information about home education. So clear in law was this right that parental challenge was refused leave to apply for a judicial review by the High Court and the Court of Appeal to even consider the argument.
New legal duties are arguably not required but new guidance could clarify these issues and they certainly support the case for allowing local authorities to see a child as part undertaking the assessment.
The distinction between ‘education’ and ‘safeguarding’ has become blurred by including concerns about ‘radicalisation’ within the safeguarding agenda and statutory duties. This is particularly relevant here in the context of the government’s consultation about ‘out of school setting’ and unregistered schools:
The review states that ‘Ofsted would not be tasked with looking at the suitability of education’ but goes on to state that one of the ‘prohibited activities’ that are to be specifically targeted by inspections is: ‘Undesirable teaching, for example teaching which undermines or is incompatible with fundamental British values, or which promotes extremist views’.
Out of school education settings: call for evidence, DfE November 2015.

2. Unregistered schools
If these ‘schools’ are to be regulated, for whatever reasons, home education will have to be considered too. Sir Michael Wilshaw initial letter to the Secretary of State for Education, which raised OFSTED’S concerns, recommended that the government: ‘review the arrangements for home education to ensure that they cannot be exploited in order to avoid registration.’ In other words wherever the threshold is set requiring out of school sites to be registered, anyone wanting to avoid this can just opt to home educate. The provisions in this Bill address that loop hole and crucially this can be done here without the need to consider out of school settings.

3. Parent and child rights The education rights of parents under the Human Rights Actg (art 8 and art 2 of first protocol) and in domestic law are not absolute rights. They are conditional on the provision of efficient education to children. In H v United Kingdom (1984) No 10233/83 DR 105 it was held that under Art 2 of Protocol No 1 (no person shall be denied an education and respecting the rights of parents), that: ‘requiring the applicant [the parent] to cooperate in the assessment of children’s educational standards … can not be said to constitute a lack of respect for the applicant’s rights.’

4. The Wood Review of the role and functions of local safeguarding children boards, 26 May 2016
A recent and very clear expression of concern about home education regulation. The government has not responded. See relevant paras below:
A number of Directors of Children’s Services (DCSs) and chairs of LSCBs have raised the lack of effective statutory provision about children in unregistered school settings or receiving home education. They point to the fact that public agencies do not have the right to gather information on the children in such settings and have no way of assessing the level of risk children face. This issue is not covered in multi-agency arrangements and it needs to be. (para 102)
A similar issue exists in respect of children who are home educated. The majority of parents who arrange home education for their children work closely with, and share information with, the local authority. However, this is a voluntary act on behalf of the parent and a number of parents are not willing to provide information to the local authority. In both of these cases the local authority is not able to assess either the quality of education being received by the child or whether there are any safeguarding issues that require attention. This needs to be addressed urgently. New guidance should be provided which makes clear the responsibility of parents to ensure information about their child’s education is provided to the local authority
In conclusion the current guidance with regard to children who are educated at home – which some parents of children who attend unregistered settings will claim – needs urgent review in order to enable local authorities to fulfill their safeguarding responsibilities and ensure the wellbeing of those children. I welcome therefore the proposal in the White Paper, “Educational Excellence Everywhere” to consider the role of the local authority in ensuring the safety of children in these settings; this needs to be undertaken soon. (para 105)

5. White Paper, “Educational Excellence Everywhere” March 2016, Cm 9230 ‘We will set high expectations for every child, ensuring that there are no forgotten groups or areas and we will focus on outcomes.’ p3

6. Concluding observations on the fifth periodid report of the United Kingdom of Great Britain and Northern Ireland 2 June 2016

It is hard to see how the resistance to the Bill is compatible with the government’s commitments under the UN CRC and the findings from the recent review.
Relevant findings:
(a) Introduce a statutory obligation at national and devolved levels to systematically conduct a child rights impact assessment when developing laws and policies affecting children, including in international development cooperation; (d) Ensure that children are not only heard but also listened to and their views given due weight by all professionals working with children

7. House of Commons Select Committee on Children, Schools and Families Final
Report: The Review of Elective Home Education, 9 December 2009
This review, while ambivalent about all the recommendations by the Badman review, is a valuable source as it made clear that inaction was not acceptable. It concluded that it was ‘unacceptable that local authorities do not know accurately how many children of school age in their area are in school, are being home educated or are otherwise not at school’. The Committee heard from Sue Berelowitz, the Deputy Children’s Commissioner, who argued that it was ‘not acceptable that the state should not be able to vouch for the education of so many of its citizens’.
On ‘un-officual exclusions’ it concluded that: we are not convinced that the Department’s proposed response of simply strengthening existing guidance on exclusions is sufficient; the Department should investigate what is driving this practice on the part of local authorities and schools, bearing in mind some of the findings of this Committee’s recent inquiry into school accountability. (Paragraph 3) The Bill here would strengthen initiatives to investigate the use of these exclusions.
On registration by parents: Given that existing databases could not provide an equally efficient and secure means to that end, we believe that a separate registration system for home educating families should be put in place. This would assist local authorities in knowing which children were in school, which were home educated, and which were not known to be in either category. The Government should review and, where necessary, strengthen the duties on local authorities …(para 5)
We believe that registration would encourage local authorities and home educators to recognise that it is to their mutual advantage to have a clear record of children who are being home educated. Any registration system for home educating families should be light touch. In view of the concerns expressed by home educators about compulsory registration, we suggest that registration should be voluntary. Local authorities should publicise the benefits of registration, including the resources that will be available to registered families. The success of a system of voluntary registration (combined with improved information sharing) should be reviewed after two years. If it is found not to have met expectations—in terms of assisting local authorities in identifying and working with the families of children who are being home educated and those of children not otherwise at school—we believe that a system of compulsory registration would need to be introduced. (para 6)
A most of the Bill clarifies current law IF there was resistance to the registration by parents provision there would still be much value in it going ahead.
On safeguarding: The law relating to the duties and powers of local authorities with regard to home educated children has become very complex and difficult to interpret. This is reflected in the Department’s existing guidelines on home education. The Department should take the opportunity provided by the Children, Schools and Families Bill to provide a definitive, succinct statement of the applicability of the Children Act 2004 and the Every Child Matters outcomes to home educated children. The Department should then provide guidelines that better enable local authorities to translate the law into practice, especially in relation to the safeguarding of home educated children as well as children with no record of school attendance. (para 7)
We do not believe that local authority officers responsible for liaising with home educating families should be given the right to interview a child away from the child’s parents. That right should be reserved for colleagues who have primary responsibility for child safeguarding, including social care services and the police. A parent’s or child’s refusal for such an interview to take place should not be included as grounds for revoking registration to home educate. Any related concerns on the part of the home education team should be passed to social care services. (para 8)
This partly informed my ambivalence to the word ‘interview’ in the Bill. Referring to ascertaining the wishes and feelings of the child locates it more widely in general UN CRC compliant language rather than something that appears close to child protection.
For further information and more detailed analysis of the current legal
framework I would be happy to provide copies of the following articles:
Monk, D (2016) “‘Out of School Education’ and Radicalisation: Home Education
Revisited” Education Law Journal 1: 17-31
Monk, D (2009) ‘Regulating Home Education: Negotiating Standards, Anomalies and
Rights’ Child and Family Law Quarterly 21 (2): 155-184.

***
From H D [Dave Harvey?]
Sent 16 November 2017 20.45
To
Subject FW Results of the ADCS elective home education survey
Thought you would all like to see this in case not filtered down to you. T* sent the draft which he (as AEWM president) and me (AEHEP) were given access to the draft last week and we both made comments. Could not share at that point as under strict confidentiality. T also sent to Lord Soley so fingers crossed for next week. Is anyone able to attend the debate – if yes can you let me know and I’ll pass on to Lord Soley, unfortunately I am committed elsewhere so cannot make it.
Best wishes
D
D H
[*possibly Tony Waller Somerset?]

FORWARDED

From K B [Katy Block, ADCS Policy Officer?] confirmed as NOT Karen Beaton, Cambridgeshire
Sent 16 November 2017 16.58
Subject Results of the ADCS elective home education survey
Dear all
The findings of the Association’s recent survey on elective home education are attached here for your information. We received a total of 118 valid responses to this exercise, so I wanted to thank you all for taking the time to reply. We’ve shared this report with DCs, the Department for Education, Ofsted, the Children’s Commissioner, the LGA, and the Education Select Committee today and will be publishing it on our website in the morning.
A brief summary of the findings can be found below:
118 respondents (77% of LAs) reported 35,487 children and young people being home schooled in their local area, aggregated up to 152 LAs it is likely this figure is closer to 45,700
95% of respondents reported year on year increases in this cohort
This cohort is very fluid with the results of this survey suggesting between 35,819 and 49,154 children and young people were home schooled in 2016/17, a variation of 37% across the year
The majority of respondents reported over 80% of their known home schooling cohort had previously attended school
Thanks again for your help and support with this, you’re probably aware the Home Education Duty of Local Authorities Bill (2017) will receive its second reading in the House of Lords next week…Hopefully our collective efforts will influence the DfE’s thinking and perhaps even the debate, fingers crossed!?
Thanks K
K B
***

From M F [Frances Molloy?]
Sent 17 November 2017 10.29
To
Subject FW Results of the ADCS elective home education survey
Attachments ADCS EHE Survey Analysis 2017 FINAL.PDF
Hi
Agenda items for team meeting
F M

***
FORWARDED EMAILS
From H D [Dave Harvey?]
Sent 08 December 2017 15.03
Subject FW HE
Hi guys
C has suggested a further meeting you can see my reply below. Can you let me know your thoughts and I’ll collate and get back to C next week (by 14 DEC?) Have a good weekend. Best wishes

1/ From Soley Lord
Sent 06 December 2017 18.22
To
Subject HE
D
Following the debate last week I estimate that my Bill is unlikely to go into committee before February and quite possibly March but I think we ought to be ready by February just in case. That means getting our amendments ready and also working out how best to enlist public support as the opposition is now growing – although still far less than it was some years ago. Any suggestions? Would another meeting of your group be helpful?
C

2/ From H D
Sent 08 December 2017 14.33
To Soley, Lord
Subject RE EH
Hi
Delighted with the debate, well done. You are correct the EHE lobby is mobilising – already FOI requests, particularly to HCC and KCC asking for copies of all emails between officers and yourself. I think a further working meeting of interesting parties would be helpful in early January. We wondered if the guidance was to be rewritten whether the DFE would invite interested parties to contribute. I would include both the LA’s, safeguarding groups, associations like AEHEP, AEWM plus EHE lobby groups such as F N. I’ll circulate the committee of AEHEP for wider thoughts and get back to you. Best wishes D
D H

END OF FORWARDED EMAILS
***

RESPONSE TO FORWARDED EMAILS?
From T W [Tony Waller?]
Sent 08 December 2017 15.13
To
Subject Re HE
Fine by me
T

From K G [Kevin Grant?]
Sent 11 December 2017 08.11
To
cc
Subject Re: HE
Good idea D [Dave Harvey?] and I hope D M [Daniel Monk] can be available to
attend as his expertise would be essential I think.
Kind regards

From D J [Jenny Dodd?]
Sent 11 December 2017 10.10
To
cc
Subject RE HE
That sounds like a good idea. I can do 8/01, 09/01 and currently free wk beg 15/01 except Wednesday 17/01. I completely agree with K[Kevin Grant?] essential we have D [Daniel Monk?] there.
J

From T V [Viv Trundell?]
Sent 11 December 2017 10.15
To
cc D M [Daniel Monk?]
Subject Re HE
I would echo this. Not sure we all need to go and might be difficult to co-ordinate but we can gather views prior.
Kind regards
V
V T

From D M [Daniel Monk?]
Sent 11 December 2017 17.01
to
Subject RE HE
Dear all
Very happy to contribute to this strategies meeting. I am available in the afternoon of 8th and 9th and all day 10th and morning of the 11th and all day on the 15th and 18th until 1.
Best wishes
D

From B V [Venetta Buchanan?]
Sent 13 December 2017 11.55
Subject RE HE
Yes I agree with all that’s been said. A meeting will be needed to coordinate our response.

From B A [Annette Bailey, Dave Harvey’s PA?]
Sent Monday December 18, 2017 11.42
To
Subject EHE
Hi Everyone
Lord Soley has asked D to co-ordinate the next meeting to discuss in particular amendments to the Bill in order that it works in practice. Lord Soley is also very keen to have case studies. The exact agenda can be determined over the Christmas holidays and early January but the date for your diaries is Tuesday 23 January 2018 at 12 noon at the Houses of Parliament. Please can you confirm your attendance and if you know of any other interested parties please me know. The total number of people who can attend is approximately the same as previously, around twenty. Please can you get back to me either way by Thursday 21 December.
Have a good Christmas
Thanks
A
A B

From D M [Daniel Monk?]
Sent 18 December 2017 12.17
To
cc
Subject RE: EHE
Thanks, A.
That’s fine for me, In the diary best wishes and happy christmas
D
D M

From V F
sent 20 December 2017 10.33
To
cc re EHE
Good Morning A
Thank you for your email. I am confirming my attendance on 23rd Jan.
With kind Regards
V F

—–SEE ALSO MY WEB PAGE ON DANIEL MONK