The Government has confirmed that it expects to publish draft guidance on home education in the next few weeks. Once the draft has been published it will be subject to a public consultation process.
HOUSE OF COMMONS RESEARCH BRIEFING CONFIRMS THE POSITION, FEBRUARY 13TH 2018
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The confirmation about timing for the new guidance occurred during a debate on school attendance in the House of Lords on January 24 2018.
Lord Storey began by asking about improving safeguarding for “children who go missing from our school system”
Lord Storey
I thank the noble Lord. I am sure he agrees that the majority of parents who home-educate do an excellent job and work with their local authorities. I appreciate that the new Minister has barely got his feet under the desk, but could he assure us that he will work with us to put in place robust procedures which will ensure that all children are safeguarded and that children are not taught a narrow religious curriculum at home or indeed radicalised at home, so that we know that the millions of children who go missing from our school system will be safe?
The minister replied that the government did have concerns about unregistered schools and was in the process of creating guidance on how to tackle unsuitable out-of-school settings and unregistered independent schools.
Lord Agnew of Oulton
I agree with the noble Lord. Much home education is very good, and we welcome the dedication of parents who take on that responsibility and do it well. However, we have concerns about unregistered schools. We have provided additional resources to Ofsted, including by creating a new team of dedicated inspectors to inspect suspected unregistered independent schools. They and the DfE have been taking action to make sure that these settings cease to operate unlawfully. We are also creating guidance for local authorities on how to tackle unsuitable out-of-school settings and unregistered independent schools, including on how to use their existing powers. We hope to publish this guidance as soon as possible.
Lord Laming asked about the increasing number of “children who are out of school” who might be “extremely vulnerable.”
Lord Laming
My Lords, does the Minister agree that the number of children who are out of school is increasing? Some may be receiving very good education but we do not know that, and we suspect that quite a substantial number of these children are beyond the reach of either the local authority or the safeguarding arrangements. By definition therefore these children are extremely vulnerable, and it is our responsibility to protect them.
The minister said that government will make it a priority “to provide clarity on what powers local authorities have to investigate unsafe or unsuitable home education and to take action.”
Lord Agnew of Oulton
I agree, but the important thing to stress is that local authorities have a statutory duty to safeguard and promote the welfare of all children in their area, regardless of where they are educated. This includes home education and unregistered schools. A survey of the Association of Directors of Children’s Services indicates that some 80% to 90% of home-educated children had been in school before being removed into home education by their parents, so they were already known to the local authority. The initial priority though is to provide clarity on what powers local authorities have to investigate unsafe or unsuitable home education and to take action.
Lord Soley said the home education bill he had introduced would “make sure that we protect vulnerable children”
Lord Soley
My Lords, does the Minister accept that my home education Bill, which is about to go into Committee, will give Parliament an opportunity not only to discuss the support that we can give to parents who are home-educating but to make sure that we protect vulnerable children?
The minister said that the government had “commissioned fresh legal advice, which we have just received” indicating that “local authorities’ powers in relation to home education often go further than is appreciated“, adding that the guidance on home education was in the process of being updated to reflect this advice and he expected a draft of the new guidance to be ready “for consultation in the next few weeks.”
Lord Agnew of Oulton
My Lords, I am grateful to the noble Lord for introducing his Bill and putting these issues before the House. I look forward to the debate when the Bill moves into Committee, which will give us an opportunity to discuss these matters in greater depth. I am aware that the number of children entering home education has increased. Following the Bill’s Second Reading we commissioned fresh legal advice, which we have just received. It indicates that local authorities’ powers in relation to home education often go further than is appreciated. We are updating our guidance to local authorities on home education, and will reflect this new advice in the guidance. We expect to produce these drafts for consultation in the next few weeks.
Lord Lexden asked how home educated children performed in public examinations, and added that he welcomed “the Government’s crackdown on unregistered independent schools”
Lord Lexden
My Lords, are there any statistics that indicate how children educated at home compare with those educated at school in public examinations? As a former general secretary of the Independent Schools Council, I add how much I welcome the Government’s crackdown on unregistered independent schools.
The minister said in the context of Lord Soley’s bill that the government would like to look at “making examination facilities available more easily for children who are home-educated”
Lord Agnew of Oulton
My Lords, there are no specific statistics on the outcome of home-educated children, but one of the issues that I would like to look at in our discussions on the home education Bill introduced by the noble Lord, Lord Soley, is making examination facilities available more easily for children who are home-educated. At the moment it can be difficult for them to find a setting where they can do their exams, which makes their education more difficult.
Lord Warner asked about the number of children in unregistered schools in Hackney and the lack of government powers.
Lord Warner
My Lords, has the Minister seen the report by the London Borough of Hackney that there are 1,500 boys in the borough in unregistered schools? Does he accept what the report also says, which is that the local authority’s powers to deal with this problem are inadequate? Is he aware that no operator of an unregistered school has been successfully prosecuted since that legislation was passed in 2008?
The minister said that the issue with Hackney was that these establishments were “operating as out-of-school settings” and did not meet the criteria for registering as schools, but the government had to tread carefully “because out-of-school settings can include things like Sunday schools and even sports club”
Lord Agnew of Oulton
My Lords, we are aware of the recent report from Hackney, which refers to between 1,000 and 1,500 Haredi boys attending out-of-school settings in the borough. The report made it clear that they are yeshivas offering religious teaching in settings that do not meet the criteria to register as independent schools, but they are operating as out-of-school settings. We are conscious of this, but we have to be careful because out-of-school settings can include things like Sunday schools and even sports clubs. We have been working with some of these religious groups to encourage them to offer a broader form of education, and recently we managed to persuade the Haredi schools in Manchester to adjust their curriculum to offer a broader education. We will continue to do that.
Lord Watson said that current government home education guidelines obviously needed updating as they were 11 years old. Lord Watson was critical that the government has “no idea how many children are out of school at the moment” and said that registering home educated children was “an urgent necessity.
Lord Watson of Invergowrie
My Lords, it is symptomatic of the Government’s complacency on this issue that the current document, Elective Home Education: Guidelines for Local Authorities, contains a ministerial foreword signed by Mr Jim Knight, the Minister of State, and Mr Andrew Adonis, the Parliamentary Under-Secretary. I have no idea what became of them, but that was 11 years ago and it has never been updated so I am very pleased that the Minister has announced today that he plans to update that document. The fact is that the Government have no idea how many children are out of school at the moment. They do not collect the figures, as we have heard, and local authorities are not obliged to do so either. How can anyone safeguard a child if they do not know about them? Does the Minister accept that a register of home-educated children, which is a provision in my noble friend Lord Soley’s Bill, is now an urgent necessity? Will he urge the new Secretary of State to make that one of his first priorities?
The minister said that much had already been done. Children Missing Education guidance had been updated, also Keeping Children Safe in Education and the Pupil Registration Regulations, plus the government had tackled out-of-school settings by recruiting Prevent education officers and giving Ofsted more powers. Finally, in relation to home education, “the legal advice we are receiving at the moment clarifies a lot of the powers available to local authorities, and we will seek to make them aware of those powers.”
Lord Agnew of Oulton
My Lords, I think I can reassure the House that quite a lot of activity has occurred in the last four or five years. For example, we updated the statutory guidance, Children Missing Education, in September 2016 and Keeping Children Safe in Education, and introduced the Education (Pupil Registration) (England) (Amendment) Regulations 2016, which particularly required any child leaving a school and going into home education to register with the local authority. We have tackled the out-of-school settings through the recruitment of Prevent education officers and, as I mentioned earlier, Ofsted has been given increasing powers. Lastly, as I referred to in an earlier answer, the legal advice we are receiving at the moment clarifies a lot of the powers available to local authorities, and we will seek to make them aware of those powers. We are keeping an open mind on the Bill sponsored by the noble Lord, Lord Soley, but I am certainly working with him collaboratively on this.
edyourself 
The interesting bit is:
“commissioned fresh legal advice, which we have just received” indicating that “local authorities’ powers in relation to home education often go further than is appreciated“,
Since the powers in the 1996 are so well known I speculate that they have done an audit of other legislation and case law in order to lower the threshold for legal action. This would tie in with the comment that the “gov view is that LA’s need to stretch the guidance and they want case law to be tested”.
In the absence of an amendment to primary legislation I don’t see how they could trigger a mandatory requirement for a report from home educating parents. Some LA’s do use the lack of response to an enquiry as the trigger for a school attendance order. This is obviously not legal but is an area which could trigger a legal fight and case law test. That, frankly, could go either way depending on what evidence is presented to the Court of a suitable education. Both sides could provoke this situation to achieve their ends.
The consultation will need to be very closely examined.
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I don’t think the 1996 act powers ARE well understood. But we will have to see.
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They’re well understood by us, but I suspect not by a lot of LA employees who really ought to understand them.
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The Government s still saying we’ll see something in a couple of weeks (albeit recess next week)
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February 15th added link to updated House of Commons Library Research Briefing on Home Education
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