DECEMBER 2022: THE SCHOOLS BILL HAS BEEN DROPPED. THERE IS CURRENTLY NO MECHANISM IN LAW TO INTRODUCE ANY OF THE PROPOSALS OUTLINED BELOW. READ MORE HERE
On Monday June 20th 2022 Committee of the House of Lords reached Day 4 of the Schools Bill. Peers debated the proposals for compulsory registration of children not in school. This post unpacks what was said.
Baroness Brinton: The system is broken. Children are dying and children are being let down. They are bullied and they are excluded. School is not always a safe place because medical advice is not followed or adjustments are not made. Children are not getting alternative provision.
Lord Storey: Recently attended a meeting with families of children in alternative provision. All had special educational needs and all had been permanently excluded from school. They should have been helped earlier.
Baroness Chapman: Reluctantly removing your child from school because you feel their needs are not being met is such a big thing to have to do as a parent. It should trouble us all that families are put in this situation.
Baroness Penn (standing in for the Minister Baroness Barran): “I assure noble Lords that we plan to legislate via regulation to require local authorities to record information about any special educational needs and disabilities a child may have within their register”
Lord Lucas: Need to make distinction between those who are electively home educated and children who have been offrolled or who are still on roll but on a reduced or non-existent timetable. There should be a unique pupil identifier number which also carries across to independent schools. What will happen with highly mobile families or even just families on holiday. Does the government intend to imply that permission will be required to home educate. Before any registration requirements are introduced there must be adequate time for parents to be informed.
Baroness Brinton: Shares many of the concerns about whether this part of the Bill is ready to be enacted and whether it will actually work. Over-representation of children and young people with disabilities and special educational needs in the out of school figures, high rates of unexplained pupil exits from school, Ofsted has identified a rapid increase in the number of children of secondary age being educated at home. Bill needs to make sure it is absolutely clear why children are out of school, so that we can start to analyse the data and understand how we can support these most disadvantaged and vulnerable children.
Lord Knight: Supports the right of parents to home educate. Mainstream doesn’t work for everyone eg children with special needs. Home education can also be innovative. But home education can hide abuse. But why are parents being criminalised by fines? Alarm bells over “any other information” – excessive powers. Found Square Peg briefing helpful. Perfectly reasonable to include gender and ethnicity information in the register, also the reason for not being registered in school and specifically, whether home educated. Regulations should follow affirmative procedure [more scrutiny, see https://www.parliament.uk/site-information/glossary/affirmative-procedure/] so parliament has more oversight. Has spoken to Professor Eileen Munro who is opposed to these measures (not the only person to mention EM] who has said there should be more social workers. Queries why children on roll “parked in alternative provision” should also be on the not in school register. Schools should be responsible. How will parents know they are meant to register separately with the local authority and then get into trouble when they don’t [although NB my comment is that they couldn’t get into the kind of trouble he means because they couldn’t be in breach of a school attendance order by failing to register the child at a school because the child is already registered at a school] “I ask the Minister to reflect on this regime she is bringing in. I am pleased to see that she has ministerial responsibility for home education, so I am not just talking to the person responsible for taking the Bill through—this is also in her policy brief. I remember as a Minister that you would make the basic, principled decision about the policy and then have to trust officials to draft the legislation accordingly. I know that she is a listening Minister. I hope that, as part of her reflections on how regulation is being used generally in the Bill, she can include whether regulation is being used too liberally and whether the Secretary of State is taking on too many powers, which in the end they would pass on to local authorities, some of whom—a minority—might use them in a draconian fashion.”
Lord Soley: Can’t remember exactly what was in his Bill but “the key bit of it of course was to create a register”. Lord Baker came up to him the other day and said “Clive, you’ve won.” Important to have a right to home educate and the Bill is meant to be supportive. Home educators can be put into three groups – 1/ those who are keen on doing it and do it well; 2/ those who have problems with school or with the local authority and think they should take over and do it themselves instead (Lord Soley thinks this is probably the biggest group); and 3/ very small but profoundly worrying, group who do it for the wrong reason of keeping the child isolated from society and not mixing with others which could at worst be for the purpose of radicalisation or concealing abuse. By the same token, the support measures in the Bill are to be welcomed, especially help with exams.
Baroness Jones: Good to see such a broad coalition of Peers with concerns about this part of the Bill who are bringing so many amendments. “We should be trying to find children who will receive no education or a dangerously poor education. However, the net is cast far too wide and it risks trapping many home-educating families within a web of unnecessary bureaucracy and red tape. A great many families are worried about this prospect in the Bill, and I am sure that they have contacted many noble Lords about their concerns. Some concerns are fairly simple, such as the time limits being too short and the registration requirements being unclear. However, others are much deeper, such as the breadth of discretion granted to local authorities to decide whether a child is receiving an adequate home education or should be subjected to a school attendance order. If the Government’s intention is to extend the grasp of the state into the lives of home-educating families, they should be explicit about it, but so far the Government justify this policy as being about helping children who are not receiving any education. If that really is the policy intent, there must be a better way of legislating for it than this bureaucratic mess … It does not add up. The finances will not add up either – investigating and prosecuting families.”
Lord Storey: We have a problem with unregistered schools where we don’t know if children are safe. We have the problem of offrolling. And we have home education. Many home educating parents do a fantastic job but some do not and some are taking children out of school for the wrong reasons. Peers are being lobbied by home educators and some emails say they don’t want others speaking on their behalf and being adversarial. “The fear that has been put into genuine home educators is frightening.” “Some of the issues that we have heard about perhaps need to be thought through a little more carefully between Committee and Report, given how they relate to each other.”
Baroness Fox “there is sufficient anxiety created by the Bill that it would be wrong for the Government not to take note of it … [home educators] feel as though they are being told that they have to explain why they are doing it and are going to be intruded upon—and, in the course of it, are being demonised as well.” Agrees with Professor Eileen Munro who is opposed to the registration measures. Measures justified by safeguarding but “many children who are in school and in plain sight are missed by social services and the authorities in terms of their abuse” and also sometimes school itself is not safe eg in cases of bullying.
Lord Addington: Registration is required for support and support is necessary. We need to hear more about support.
Baroness Wilcox: Local authorities will need extra funding for support. “We support these school register measures in general, but we also recognise, as has been discussed in the debate, that there is a need to balance the concerns of some stakeholders.”
Baroness Barran: “It is absolutely the right of the House to challenge what the Government are doing, but, as a number of your Lordships pointed out, there are parents who are incredibly anxious about their children and the implications of these measures. The approach of the Government is as the noble Lord, Lord Soley, said and as the noble Lord, Lord Storey, suggested: we are there to support parents. I wrote down terms such as “criminalisation”, “colluding”, “demonised” and “attacking”. The Government are doing none of those things. I just ask your Lordships, out of respect for the parents who listen to this debate, who are worried about their children, to be fair in the challenge that is put to the Government and not to suggest that any of those things are in the Government’s mind, because I can absolutely assure noble Lords that they are not.“
“The registers are not just about those who are being home educated. They are for all those children who are not in school full-time … once local authorities know where children who are not in school full-time are and what kind of education they are getting, they can then focus their attention on those who are not receiving suitable home education and who are missing out in a range of different ways … I absolutely recognise the three groups that the noble Lord, Lord Soley, described and that is how we are approaching this. But our problem is that we do not know how widespread the situation is of children who are not getting a proper education. That is the problem that these clauses seek to address. We do not even know how many children are in home education; how many are ostensibly in home education but are not receiving a proper education; or how many are not receiving anything at all …”
“Only those children ordinarily resident in an area would be eligible for registration within a local authority register.”
“It remains the case that parents do not normally need the permission of the school or local authority to home educate. Agreement needs to be sought only in exceptional circumstances, such as when a school attendance order is in force …”
Rejects idea of not including children already registered but not receiving full time education but adds that regulations will set out any exceptions. Parents will not have to register where full time alternative provision is being arranged by the local authority (NB my comment here is that “full time“ appears with qualification in section 19 Exceptional provision of education in pupil referral units or elsewhere. https://www.legislation.gov.uk/ukpga/1996/56/section/19 (1) Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them …(3A) In relation to England, the education to be provided for a child in pursuance of arrangements made by a local authority under subsection (1) shall be— (a) full-time education, or (b)in the case of a child within subsection (3AA), education on such part-time basis as the authority consider to be in the child’s best interests [my emphasis]. (3AA) A child is within this subsection if the local authority consider [my emphasis] that, for reasons which relate to the physical or mental health of the child, it would not be in the child’s best interests for full-time education to be provided for the child.” (6) In this section “suitable education”, in relation to a child or young person in the area of a local authority in England, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have”. By contrast the Chapter about PARENTS providing suitable education otherwise than at school says without qualification “suitable education”, in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have (in the case of a local authority in England)”)
Baroness Barran: In terms of parents being made aware of new duties to register, regulations will provide for publicising the register and new statutory guidance will set out operational details. Regarding support, statutory guidance will add further clarity as to what factors local authorities should take into account when discharging their duty to provide support. The government will be consulting with local authorities and other interested parties, including home educators, prior to the issuing of the guidance.
“Current powers allow regulations to require local authorities to record further types of information in their registers. This could include the reasons parents choose to educate otherwise than at school, details of any persons providing some or all of the education, where this is being provided, and the proportion of time that may be being spent at particular settings. Regulations will provide flexibility to adjust information requirements over time in response to further evaluation of the registration system.” (NB my comment here is that this is precisely the issue with regulations, you can go back and just add more later, or remove exemptions as with recent consultation proposals to change the Pupil Registration Regulations about deregistration from mainstream for children with EHCPs https://consult.education.gov.uk/school-attendance-policy-and-strategy-team/school-registers-and-national-thresholds-for-legal/ )
Lord Lucas: Need more clarity about people identifying themselves as home educators, because legally their children are in a different position from those cases where the school or the local authority has a duty to arrange alternative provision. Queries whether the parents of a child receiving 5 hours a week tuition under s 19 would come within scope of the register ie whether that is viewed as “full-time”.
Baroness Barran: A letter will be sent with more information about having a unique child identifying number as this is also being considered elsewhere in Health and Social Care.
Lord Lucas: Big worries about the Bill making things easy for an abusive local authority, without giving any incentives to supportive local authorities.
Baroness Whitaker: Details about ethnicity on the register will support Gypsy and Traveller children. Details about gender will also highlight where more girls are taken out of school eg for cultural reasons.
Baroness Brinton: Asks how parents will not be criminalised given that the Bill states “A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale, or to a term of imprisonment not exceeding 51 weeks, or both.” Vital to know the reasons why a child is not in school. Who will have access to the register, what will be the terms of its publication and how long will the data be retained. “It seems completely inappropriate for the House to approve this part of the Bill without any notion of what personal information may be included or what will be published, or who will have access to that information. These are Henry VIII powers gone mad. As long as only the relevant staff, who will have to comply with GDPR, will see the raw data, a child’s personal information can be collected. Can the Minister reassure me that this is the case and, if it is not and is as printed in the Bill at the moment, can she please provide the House with a justification for why the Government are taking these very strong steps?”
Baroness Garden: All amendments in her name are at the request of home educators and eg reflect concerns about too much information being demanded for the register.
Baroness Jones: Local authorities already have information about children so why would we add more, instead of dealing properly with what we already have. “We are left at the moment with “other information”, which leaves a large void of worry for the parents who will have to provide this information, which could be very probing and intrusive.”
Bishop of St Albans: Data collection should be proportionate and not unduly intrusive and concerns about data sharing must be addressed. Quoting from the Bill itself “such details of the means by which the child is being educated” the Bishop says “the “means” by which a child is being educated is only one degree away from requiring the actual content of what a child is being taught.”
Lord Lucas: Registration information being put forward in the Bill “seems to be highly personal data, very loosely regulated, and I am concerned that that is neither appropriate nor actually needed” Additionally, putting it off now and saying it is all to be determined by regulation later introduces huge fear and mistrust “just at a flick of the pen, some whole new suite of information can be required of them, greatly altering the relationship between them and the system, and introducing that level of uncertainty. Unless the Government have clear plans for what they want to do, and a clear understanding of why it is needed, this seems very damaging for their plans and quite unnecessary … Given the powers of compulsion in this Bill, the short timescales and the way in which that could cascade into school attendance orders, this is really unreasonable.”
Lord Storey: We need to know what the real information is that we want, and why we want it in the first place … we must ensure that when we have had this pause and perhaps reflected on what we really want, this data is not retained at the end of a child’s schooling.
Baroness Chapman: “I think that this is really sloppy, particularly when you are talking about something that could lead to imprisonment. I have done a lot of justice Bills, and I do not think I have ever seen anything quite like this where, in new Section 436C(1)(d), parents are asked to provide “any other information that may be prescribed”, then, in new subsection (2), the local authority register “may also contain any other information the local authority consider appropriate.” That is limitless at that point. The Bill goes on, in new Section 436D(2)(c), to say that the onus is on the parent to inform the registering authority—the local authority—of any changes to this information, which could be anything, as yet to be decided, “of which the parent is aware”. That is vague. Who decides whether the parent should be “aware”? How do you know that the parent is “aware”? That needs to be tidied up … It is no good the Minister standing there and saying. “This will hardly ever be used; it will be an exceptional circumstance”, because we are here to consider those circumstances. If that circumstance should be a very rare thing, we need to know the circumstances that would lead to it, rare or not. Being asked to agree to including in the Bill “any other information that may be prescribed” is very troubling to us. So we support the idea of a register and want very much to support the Government in what they are trying to do but we cannot just let this matter go, given the slack way in which the legislation is currently drafted.”
Baroness Barran: Clarifying remarks about criminalisation as requested “there is no criminal sanction for not providing information for registers by parents. The offence mentioned by the noble Baroness is an existing offence: the breaching of a school attendance order. Nothing is being made an offence in this case that is not already an offence.” Failing to register in and of itself “would be a civil matter but we will confirm it in writing.”
“The Government have already signalled their intention for certain information to be required for inclusion on the registers via regulations, such as ethnicity, sex and other demographic information. This is in addition to whether a child is electively home educated or receiving their education in other settings. The delegated powers in the Bill would also allow for prescription of further data at a later date, which could include, for example, unique identifying numbers if that were desired.”
“Under the new measures, local authorities will be able to require parents to provide them only with the information prescribed in legislation. They may, however, record any other information in their registers that they consider appropriate and have collected through other channels. To be clear, local authorities will be able to require parents to provide them only with the information that is prescribed in legislation; in this case it will be secondary legislation. I hear the concerns raised by noble Lords, particularly in relation to proposed new Section 436C(1)(d) [ Duty on parents to inform the local authority and provide the information required]. I will take that away and reflect on your Lordships’ comments.“
“Regarding data retention, the Bill already allows for regulations to make provision about the format and keeping of registers, as well as about access to and publication of the register. It is the Government’s intention to use this power to stipulate how local authorities must keep the information on their registers up to date and whether and how information is to be published. The requirement in the Bill for local authorities to provide prescribed information to the Secretary of State will help inform policy development; for example, in relation to the types and level of support needed by families and whether particular groups need more support than others. It is also important that the Secretary of State is able to, if needed, collect individual level data. This can be linked to other datasets for research purposes; for example, to understand who benefits from home education.” “It is also vital in improving our understanding of children going “missing” from data systems. We would be unable to gather a full picture of this from aggregated data. The Government do not intend to use the power on setting out how the registers are published to instruct local authorities to publish personal information about children or families, but again, I will reflect on the comments made by your Lordships in relation to that.”
“Registers will also include important information on children that may aid other professionals’ work for the purposes of promoting or safeguarding the education or welfare of the child. It is therefore necessary to enable relevant information to be shared with certain other persons external to a local authority without delay, especially where children are at risk of immediate harm. Existing UK GDPR obligations will apply, however, and should ensure that all the information held in the registers is protected like any other personal data. It also requires that personal data not be kept for longer than is necessary and is proportionate to achieve the purpose of keeping it. Data protection will be a strong focus in the new statutory guidance, and we will continue to engage with stakeholders on that prior to publication.”
“Regulations are likely only to require details of where a child is being educated and the proportion of time there. This will help local authorities to ensure that children are receiving a suitable education and identify those who are missing education or attending illegal schools.”
“I will take away a number of your Lordships’ remarks and reflect on them.“
Lord Storey: What discussions have taken place with the Local Government Association in respect of data collection?
Baroness Barran: This will be answered by a letter.
Baroness Whitaker: The register should be directed at children who are out of school and not well educated which could eg be due to illegal schools or parents not having time to home educate. However, in answer to each and every concern all the Minister can say is that it will be dealt with in regulations. This is less than satisfactory.
MY WEBSITE LINK https://edyourself.org/articles/registration.php
NB for readers who checked out this post on the morning of publication, I subsequently updated the information about section 19 and “full time education” (or not) later in the day.