Schools Bill What Does Means Mean plus Forum/Panel New Guidance

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

A number of government amendments mitigating the compulsory registration of children not in school [CNIS] were passed at the end of Schools Bill Report stage in the House of Lords on July 18th.

These are my take-home points

• 1/ compulsory registration proposals are now much less bad which is not to say that they are OK;
• 2/ the “means by which the child is being educated” clause has received some preliminary clarification which will need to be carried over into regulation and guidance if the provisions ever make it onto the statute book;
• 3/ thus far the registration clauses have received far more attention and substantive concessions from the government than EITHER the school attendance clauses (for registered pupils) at the end of Part 3 OR the regulation of independent education institutions [treating more types of places as schools and inspecting as such] in Part 4 ;
• 4/ the newly unveiled proposal to establish a consultative forum to work on a DRAFT of new statutory guidance before it goes out to PUBLIC CONSULTATION – ie there will still be a full public consultation afterwards – is an intriguing development and we await further information;
• 5/ previous clauses 1- 18 which have been taken away for refurbishment will likely not be ready before next Spring;
• 6/ related to 5/ the last stage of the Lords is currently set for September, after which the Bill may have its First Reading in the House of Commons (stages of a Bill are explained here);
• 7/ the Minister has undertaken to write some letters which should be published in due course (alternative links here and here)

NB Baroness Barran is the Education Minister in the House of Lords plus sometimes Baroness Penn also speaks to the government position. As explained in previous posts, reference to something “being prescribed” means set out in regulations/secondary legislation.

Baroness Barran Third Reading not till Wednesday 14 September – signposts to the new version of Forthcoming Business https://www.lordswhips.org.uk/fb
Lord Baker consultation period from September to Christmas – which would mean amendments in Commons early Spring [re clauses 1- 18]
Lord Hunt Spring is optimistic! “It could take very much longer.”
Lord Judge “the House will have to consider a Notice of Motion that we should not consider Third Reading at all“
Lord Addington “one day of Committee, with 12, 20 or who knows how many more new clauses and a structure that we have not heard of yet—come on, that is not on.”
Lord Kennedy “We will have a new Government in September, and then it will be up to the Prime Minister. This Bill may disappear completely—we do not know”
Baroness Barran “the Bill is not beyond repair. There are significant parts of it—relating to the children not in school register and illegal schools—that are definitely not beyond repair.”
Lord Wei “I am from a home-educating family, which I am proud of. I wish there were more noble Lords in this Chamber who had the privilege of being part of home education”
Lord Soley the measures in Bill are “designed to be supportive”
Baroness Jones amendment 86B to scrap clause 49 not moved to a vote
Lord Lucas “hopes the department will use the time it has while dealing with Part 1 to advance its thinking on the guidance and other aspects of the Bill so that, by the time it gets considered by the Commons, its thinking is rather more detailed and matured than what we have had the chance to look at.”
Raises issue of parents being asked the “means by which the child is being educated” as part of the registration process “widely seen as permitting the Government to inquire deeply into the exact way in which a child is being educated. That is one of the ways the worst local authorities have adopted to oppress home educators. They ask for more and more detail. They ask for things that home educators are not doing, like having a timetable. There is a whole structure of education which is necessary in school but does not apply to home education. Home education can be centred on the child and be very different.“
Lord Bishop of Carlisle – “further to communication with the Department for Education and the Minister, we understand that their interpretation of the word “means” [as in means by which the child is being educated] does not relate to the educational content or methods of home educating but simply to the providers of the education, since separate rules for registration will pertain to out-of-school education. We have been informed that this framework will be set out in the future statutory guidance … I hope that the Minister can … state on the record that this simply means inquiring into who is providing the education and not the substance of the education or the methods of teaching … I know that the communication the Minister has had with my right reverend friend the Bishop of St. Albans has been greatly appreciated. It would be tremendously useful if she could confirm on the record how home educators will be both consulted and reassured as we move towards the statutory guidance that will underpin many of the provisions on home education.“
Baroness Fox The problem with the register is that it is not just a register; it ends up looking as though it requires far more on details of means … than you need in a register
Lord Storey “this debate is about protecting children and making sure that they are safe, secure and educated … We need a simple register which collects some simple information“
Baroness Chapman home education should be seen as a valid way of educating children “very helpful to alleviate some of the fears of home educators if the Minister could explain to the House what she intends to do ahead of, and after, implementation, to take home educators with her, so that the threat and fear can be reduced, and home educators can be properly reassured.“

Baroness Barran “There are a number of routes for complaints available for parents in relation to school attendance orders. First, they can ask the local authority to revoke the order, and the local authority must act reasonably in deciding whether or not to agree to this. If the local authority refuses, the parents can appeal to the Secretary of State to give direction; the Secretary of State will consider each case individually and will make a balanced judgment on the information available, and has the power to direct the local authority to revoke a school attendance order. The Education Act 1996 also gives the Secretary of State powers to intervene when a local authority exercises its functions unreasonably or fails to comply with duties under that Act. We are also looking at how we can strengthen independent oversight of local authorities and considering alternative routes of complaint for home-educating parents. I will also write to my noble friend, and to the House, to clarify once again the fact that the failure to provide information to a local authority is not criminal. Rather it starts the whole process for a school attendance order, but in the interests of time I will set that out in a letter .. The measures in the Bill do not give local authorities any new powers to monitor, assess or dictate the content of education …We are of the view that local authorities’ existing powers are already sufficient to assess the suitability of the education being provided. Therefore, I would like to be clear that the phrase in the Bill “the means by which the child is being educated” does not include the content of the education itself. I am happy to put that on the record. It is limited to matters such as whether the child is taught entirely at home or also attends education settings, which settings they are, and how much of their time the child spends there. It is important to keep this existing drafting to ensure that local authority registers not only include information on where a child is being educated other than at school, such as entirely at home or at out-of-school education providers, but what proportion of their education they are receiving at those settings. Capturing this information will help local authorities identify those children who may be receiving most, if not all, of their education in unsuitable settings, such as illegal schools … it is already the Government’s intention, through regulations, to require local authorities to record the reasons why a child is eligible for registration, and Amendments 68, 69 and 73 in my name make provision for this. We believe that this information will be invaluable for understanding why parents may be home educating, including identifying systemic issues such as insufficient SEN support or off-rolling—all concerns that your Lordships have raised, rightly, during the passage of the Bill … It was always our intention that the power in new Section 436C(1)(d) should be used to prescribe the inclusion of information, such as this, aimed at promoting the education, welfare and safety of children, but we recognise the concerns raised about its breadth. We have therefore proposed its removal and replacement with a targeted list of matters, which would allow for the inclusion of information such as reasons for eligibility, the child’s protected characteristics, or whether they are a looked-after child, on a child protection plan or a child in need … It is our intention that data protection be a key area of focus during implementation, but to provide more reassurance we have sought to introduce additional protections for families. Amendment 70, in my name, will place in the Bill our existing commitment that no data that could identify a child or parent be published or made publicly available. Amendments 71 and 72, also in my name, will also ensure that the information parents are required to provide is limited to information that is essential for the operation of the registers, which I hope will reassure parents of our commitment to processing sensitive data only where it is necessary. Disclosure of any additional information prescribed for inclusion in the registers under new Section 436(1)(a), such as protected characteristics, which may be more sensitive, will be voluntary. The amendments also remove any possibility for the school attendance order process to be triggered on the basis that a parent has failed to provide information for a local authority’s register that they do not have or know. While the power in new Section 436C(1)(a) would still allow for some additional information to be prescribed, not detailed in the matters listed, noble Lords should be reassured that this is limited, allowing only for information of a similar kind to be prescribed where the Secretary of State considers it appropriate for promoting the education, welfare or safety of children. It is important that there be flexibility in this power should other types of information come to light as beneficial for inclusion, such as whether a child is subject to a supervision order or is a young carer. However, parents would still have the option not to disclose this, should they wish … we will be working with parents, local authorities and safeguarding experts to create the implementation guidance for the register. We hope very much that local areas will watch what is happening with that national panel, and encourage them to do so, and, if they feel it is appropriate, perhaps to consider mirroring it in their local area. The hopes and fears we have heard expressed in the debate will be felt by parents, children, local authorities and safeguarding experts. It is only by bringing all those groups together that we can come to proposals that will, I hope, work in practice but also be trusted and understood by those who are affected by them.

Lord Lucas and Baroness Garden home educators should get support for exams.
Lord Knight backs support for exams. Also local authority to have regard to special educational needs and listen to the wishes of the child and the parent + important that there is some kind of independent complaints service or ombudsman service
Lord Addington “need for independent appeals processes which are not operated just by local authorities or the Government. The current regime, where something like that is already in place, is clearly insufficient. Families are being left in the lurch — often for a very long time“
Baroness Jones thanks Minister for meeting with home educators
Lord Hacking has tabled amendments to take everything out of Parts 3 and 4 but will not move to a vote

Baroness Penn “The law is clear that parents have a right to educate their children at home, and local authorities should already be working collaboratively with parents to ensure the best outcome for the child. We are keen to ensure that home-educating parents, and local authorities, are fully supported in ensuring that the education received at home is suitable. Therefore, as my noble friend Lady Barran said, as part of the implementation of the Bill we will be reviewing our existing guidance and publishing new statutory guidance for local authorities on their “children not in school” responsibilities, which will include advice on how they should discharge their new support duty … As my noble friend said, we will develop this collaboratively, prior to public consultation, with the new implementation forum [first mention of forum but see above re national panel] we are establishing of local authorities, home educators and safeguarding partners to support the introduction of the registers, ensure the system works for everyone and that parents have the support that they need. As I think my noble friend acknowledged, statutory guidance is the appropriate medium to outline best-practice examples of how local authorities and home-educating parents can engage positively to achieve the best outcome for the child, while also encouraging local authorities to maintain a consistent approach … the registers will help local authorities and the Department for Education to identify where decisions to home educate are in response to failures by particular institutions, perhaps in relation to special educational needs provision or bullying, and where those issues are common or recurring. That would allow for targeted action to be taken to resolve the underlying issues and improve education provision overall … the new statutory guidance will set out clearly what factors local authorities should take into account when discharging their new support duty … For many home-educated children, finding an exam centre is not a problem. Candidates use private exam centres or approach schools and colleges to arrange to sit exams with them. A new database run by the Joint Council for Qualifications now enables candidates to locate the nearest centre available to sit their GCSE, AS or A-level exams. Where parents or children are not able to make their own arrangements, local authorities would already be able to provide support with this as a way of discharging their duty. However, the Government do not believe that setting out in law exactly how the support duty should be discharged, as proposed by my noble friend Lord Lucas, would be the best outcome for home-educated children. Decisions are best made locally, reflecting both what the parents want in terms of support and the local authority’s assessment of the needs of the child and the wider needs of families in the area. On the issue of cost, as my noble friend the Minister has said before, parents electing to home educate accept full responsibility for their child’s education and its cost. Under the duty, local authorities will consider requests for different types of support, again taking into account individual and wider circumstances. Support with exam fees would already be a valid way of discharging the duty, and we could outline it as an example in the new statutory guidance depending on the outcome of the collaboration and the public consultation.“
Lord Knight has government done assessment of cost of requiring local authorities to cover exams?
Baroness Penn “I am not sure whether that assessment has been made. If it has, I will be happy to share it. As we have said several times, there are at least two more stages to go on the guidance. One is a collaborative process to produce the draft guidance, and then a consultation process. There are plenty of opportunities as we go along to look at it—for example, whether exam costs would be included in the statutory guidance. I will find out whether we have that assessment and, if we do, I will share it … We are also continuing to consider what more we can do to support home-educating parents and strengthen independent oversight of local authorities, such as exploring alternative routes of complaint … I heard the noble Lord’s [Lord Hacking] request for a meeting and my noble friend is very happy to do that because, as I think she has been at been at pains to stress throughout the passage of the Bill, we want to make sure that we engage with a broad range of voices from the home-education community to be clear about what we are aiming to do with the Bill. It is not at all about reducing or interfering with the right to home education, but just ensuring that we have the proper processes in place to make sure that the best interests of all children are protected while doing so … in the statutory guidance we are seeking to create, we will look at the support duty. We are looking to work collaboratively with local authorities and home educators to hear all those different views in order to help us co-create that guidance. Then we will also consult on it. We are keen to ensure that we hear those views as part of that process.”

Lord Hacking thanks Minister for meeting home educators
Lord Lucas need independent appeal process. Support duty in the Bill is not compulsory.
Lord Wei “A lot hinges on the composition of this consultation committee, review committee or implementation committee. In the interests of transparency, I would love to know the criteria for inviting those to join such a group and to have reassurance as to whether they will be preselected to be favourable towards the Government’s current views or will be genuinely independent members with genuine expertise in some of the really sensitive matters that will be dealt with as the Government seek to implement this … I would be pleased to know more from my noble friend the Minister how the guidance provided will be consulted on, including with those of us who have spoken in this debate. “

Baroness Penn “It is expected that the statutory guidance will be used to set out operational and day-to-day processes for how local authorities should implement their new duties under new Sections 436B to 436G. There is a risk that placing this level of detailed guidance in legislation could result in guidance for local authorities becoming more rigid and less able to be adjusted to better support operational need. For example, we intend to outline in the guidance how local authorities should work with home educating families, but it may be that there are circumstances where a local authority needs to diverge from these guidelines, such as where a home educating family expresses particular preferences on how they should be engaged with based on their specific circumstances. We think that level of flexibility is important, but I assure noble Lords that if the department received reports that local authorities were not following the guidance, that would be followed up as a matter of urgency. As mentioned, the guidance will be developed in close collaboration with local authorities, home educators and safeguarding partners. I reassure my noble friend Lord Wei that we will ensure that we engage a wide range of people in that process. We think that is the appropriate level of scrutiny, given the likely operational and technical nature of the content.”

Baroness Penn “I do not think we will be returning with amendments from the Government at Third Reading” [ie nowhere near finished working on the removed clauses 1 – 18]

Lord Lucas and Baroness Brinton hair trigger actions for school attendance order process. Baroness Brinton “Above all, we need clarity. We need to ensure that this part of the Bill does not act solely as a form of prosecution.”
Lord Mendelsohn unregistered schools are longstanding problem

Baroness Barran “There are existing options for parents who want to challenge a school attendance order, and we will outline them in our updated guidance for parents, and make them clear in the new statutory guidance for local authorities, including that they should follow the recommendations of the Local Government Ombudsman. As I mentioned earlier, we are also exploring how we might further strengthen independent oversight of local authorities … I want to reassure the noble Baroness, Lady Brinton, that the reference to a maximum custodial penalty of 51 weeks is standard drafting practice. Where the Bill refers to a maximum custodial penalty of 51 weeks, this will be read as three months’ imprisonment until the commencement of Section 281 of the Criminal Justice Act 2003, for which there are no present plans—obviously, I cannot speak for future Governments. This aligns the offence with that of knowingly allowing a school pupil to fail to attend school … on 11 July the department issued a call for evidence on the use of unregistered alternative provision settings …“

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