Memorandum submitted by Education Otherwise
Elective Home Education
1. Education Otherwise is the major
home education support charity in
2. Home education has a long history, with the right to do so being preserved in successive Education Acts. Section 7 of the Education Act 1996 makes each parent of every child responsible for ensuring that their education is efficient, full-time and suitable for their age, ability, aptitude and any special educational needs. Parents are able to choose whether to discharge this duty by regular attendance at school or otherwise. All parents educate their children even when they also attend at school, home educators simply do so all the time. They may do so for a variety of reasons, preserving healthy democratic plurality. Home educators are to be found in every section of society.
3. Since 2006 home education has fallen under closer scrutiny. In that year the Department for Education and Skills carried out research considering whether light touch changes should be made to the law relating to the monitoring of home education. This concluded that no change was required. Following this, the Department established an in-depth consultation on the law, practice and monitoring of home education to which we contributed detailed representations. This resulted in the issuing of the Elective Home Education Guidelines for Local Authorities, which aimed 'to clarify the balance between the right of the parent to educate their child at home and the responsibilities of the local authority.' However, they also concluded that no increased monitoring of home education was necessary.
4. In comparison, the present Review was unduly rushed. As the terms of reference make clear, it was to be conducted in 4 months. It is not clear why such speed was required, particularly as the area is a complex one with a long history. There was no apparent need for immediate change, nor did the report discover one. Mr Badman was engaged, at the same time as this Review, in conducting the second Serious Case Review into the death of Baby P. It is impossible that this did not take a great deal of his time. It would have been inappropriate had it not. However, a four month period would have been too short even for a full time, experienced researcher to conduct work of this magnitude. We estimate that a proper survey of local authorities would, by itself, require two to three months. It was, during the course of the Review, clear that pressures of time prevented Mr Badman from fully engaging with stakeholders, and particularly from attending meetings. It is also, unfortunately, clear that the final Report was not the product of sufficient consideration.
5. The extent to which the Expert Reference Group was involved in the Review's process is unclear. There were only three meetings, and not all members were able to attend. We have heard that meetings of the Group were organised at very short notice, preventing some members from having an effective input. Their minutes have not been released. One of the meetings is said to have taken place on the 26th of March. However, the Review team indicated, on the 31st of March, that there was no agreed remit nor confirmed list of its members. It is curious that a useful meeting was nonetheless possible.
6. The Report fails at every stage accurately to summarise and engage with the evidence of consultees. The views of the entire home educating community, from whom nearly two thousand responses were received, are summarised in two paragraphs, with two quotations purporting to reveal their entire range. More surprisingly, at no time does the Report mention the views of home educated young people. This is despite nearly two hundred responding to the consultation, our having ensured that the author met with several groups and the Report's apparent concern for their participation. The Education Division of the Church of England is quoted to reveal their ecumenical concern for young people, but without the Report's disclosing that this is in the context of their overall support for the present system. Our evidence is acknowledged as being 'invaluable' and 'detailed', but its contents are not set out, nor are the merits of our proposals discussed. The author merely notes that some home educators disagreed.
7. A related problem is the Report's failure to evidence its recommendations. Recommendation 1, the Report's most significant, is reached without referring to the views of anyone except the author and A.S Neill. The detail of the recommendation is set out without any discussion at all as to its merits. The recommendation that parents should, on registration, provide a clear statement of their educational approach and outcomes is incompatible with the DCSF's 2007 Elective Home Education: Guidelines for Local Authorities, which notes that in the early stages of home education parents' plans may lack detail and fail to demonstrate that the education would be suitable and efficient. Whilst the Review may have reached an alternate conclusion, it is puzzling that it did not address the conflict with existing government guidance.
8. Recommendation 2 suffers from the same problems. The author feels able to comment on the necessity of a review of the definitions of 'suitable' and 'efficient' in relation to education despite not having consulted any legal academics or practitioners, nor having a legal background. The Department for Children, Schools and Families subsequently confirmed that no legal background paper was prepared, rather that
'Graham Badman read the legislation. He also talked to local authorities and other stakeholders about the actual application of the law in practice and the rights of the child.'
The effect of this is that discussions of relatively complex legal areas are conducted without full information. The author does not appear to recognise the distinction in status between the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights of the Child (UNCRC), and discussions of case law are at best partial and superficial, as with Article 2 of the First Protocol to the ECHR, or entirely mistaken. The latter is clear in his discussion of autonomous education, where a quotation is mis-attributed and applied entirely outside its context. His assertion that '"suitable" education [is] not defined in law' is simply wrong, as s436A(3) (previously s437(8)) of the Education Act 1996 does define the term.
9. Despite its being tasked with considering the effectiveness of different practices, particularly in relation to monitoring, the Report concludes that the present approach 'may or may not be sufficient'. This failure to make a finding should cause the author to consider the evidence submitted to him which may reveal an answer. Instead he continues by a series of rhetorical questions, concluding with an apparently unsupported assertion of his belief. At no time are any other views, or indeed is any evidence, referred to.
10. Similarly, despite the terms of reference making clear that a literature review would be conducted, no such exercise was undertaken. The Report refers to two studies and mistakenly refers to a guide for home educators as constituting further research although it contains no new findings. The author expresses his doubts about the merit of existing research, although without mentioning quite which research is affected. This criticism is unconvincing, as any sample group in research of this nature would be self-selecting to some extent and many of the samples involved were large and diverse. This research is helpfully summarised in a research survey for the Cambridge Primary Review, which does not appear to share the Report's concerns. That the Report does not discuss this is surprising, especially as the lead author was Professor Conroy, a member of the Expert Reference Group.
11. There appears to be some attempt to frame discussion in this area in terms of a contest between the rights of parents and children. This is the only way to understand the somewhat curious choice of quotation which prefaces the report. However, this debate never fully makes its way into the text. It is, only implicitly, dispatched within two paragraphs, which also purport to deal with the definition of 'efficient' and 'suitable'. Having identified Articles 12 and 29 of the UNCRC and Article 2 of Protocol 1 to the ECHR, and having mistaken the duty in s7 of the Education Act 1996 for plural parental 'rights', the Review concludes that the rights of parents are equally matched by the rights of the child. It does this without ever fully articulating which rights are at stake, their relative weights, and why a presumption that they are in conflict is correct. This debate is important, but the Review fails to engage in it.
12. The Review's discussion of safeguarding is inadequate. We would respectfully draw the Committee's attention to the opinion of Professor Eileen Munro (at Annex A). We adopt her views entirely, and will not repeat them here. The number of local authorities who provided information about child protection concerns is small: 25. Further, one would expect those who volunteered the information by completing a lengthy questionnaire to be those with the greatest concerns, and so not constitute a representative sample from which one could generalise. The Review fails to set out the evidence which has been supplied, and concludes that the number of young people at risk 'may well be exaggerated'. Despite this, it goes on to assert a 'potential additional risk' to young people, without providing any supporting evidence. It is our experience that some local authorities habitually believe cases involving home education to raise issues of child protection, irrespective of the facts of the individual case, and so a higher number of investigations would be inevitable. However, the Review does not consider this, nor focus on the number of cases where suspicion proves to be justified.
13. The paucity of evidence in this area has, in effect, been conceded by the Review team. The DCSF local authority weekly email sent on the 17th of September requests further data from authorities, saying that the Review only heard from a small sample, and there is a desire to provide 'more statistically rigorous information to the Select Committee'. Despite this, it is said that there is persuasive evidence for change. In our submission this is clear policy-based evidence making: the Review has reached its conclusions, but is only now attempting to substantiate them. Even were such evidence now to be forthcoming it cannot rescue the failure of the Review to meet its terms of reference. We are also concerned that the closeness of this request to the Committee's deadline for evidence places those making submissions in a position where they do not know what further evidence may be presented to the Committee by the Review team, making proper investigation and challenge difficult.
14. The Review, again, fails to consider whether present powers, particularly those contained in s47 of the Children Act 1989 are sufficient. In the case of Khyra Ishaq they would have been, but for the unfortunate conduct of the social workers involved. At the trial of Khyra Ishaq's parents, the deputy head of her former primary school gave evidence that staff had been concerned for some time about the weight loss and apparent hunger of Khyra and her brother. When Khyra was de-registered from school, the deputy head phoned social services three times in 24 hours to express concerns about Khyra's safety. Social workers visited the family home, but they were denied admission and appear not to have taken any further action. Given the professional status of the complainant, this outcome is astonishing. We are puzzled by the Review's assertion that further powers of inspection are necessary when those already available are disregarded despite clear grounds for concern.
15. The recommendation that children's progress be demonstrated through 'exhibition' or other means is misconceived. It is arrived at without discussion, and we would suggest that the antiquated and inappropriate terminology employed suggests that it has not been fully considered. The views of young people have again not been taken into account, and we are aware that very many would not wish to see a local authority officer. The apparent presumption of meeting is at odds with the 2007 Guidelines, which make clear that local authorities should be open to receiving information in a wide range of formats. Again, the Review may have reached an alternate conclusion, but it is dismaying that there is no discussion to assist the reader.
16. Access to the family home seems to have been recommended as a by-blow of the above. The Review does not properly articulate the reasons that a meeting with the family is essential. It then fails to consider whether, if this is so, a meeting in an alternate setting would be sufficient. We are especially concerned for those young people who suffered bullying at school, and for whom the home is a valuable sanctuary which should not be impinged upon. Entry to the family home is a draconian power, normally only granted where there is reasonable suspicion that a criminal offence has been committed. It is entirely disproportionate in this situation, particularly as local authorities may already require entry if they consider that a young person is at risk of suffering significant harm. That the author felt able to arrive at such a recommendation without meaningful discussion is surprising.
17. There has been a lack of transparency
over Graham Badman's appointment. The Department will not say whether other
people were considered for the post. Mr Badman had no experience of conducting
reviews, and no academic or research background. Although his professional
background is in education, and he has, long ago, worked as a home education
inspector, he does not appear to have come into sustained contact with
alternate methods of educational provision. It appears from the Report that he
has failed to understand the pedagogic theory of autonomous education, and so
does not consider it when making recommendations about the demonstration of
outcomes. Mr Badman also has no previous experience of child protection.
Although he was Director of Children's Services in
18. In our submission Graham Badman was an ill-advised choice to lead the Review. He lacked expertise in alternate methods of educational provision and in child protection. The Review failed to meet its terms of reference due, at least in part, to its rushed conduct; defective use of evidence; not engaging properly with consultees, particularly young people; failure properly to review the legal or research context to home education; and its apparent attempt to set up a conflict of interest between home educating parents and young people. Its recommendations, particularly those on safeguarding, 'exhibition' of young people and entry to the family home are ill-conceived and disappointing.
19. We have been asked to give oral evidence to the Committee, and welcome the opportunity. In the meantime, if we can assist the Committee in any way, please do not hesitate to contact us. We are currently conducting research with each Local Authority, and hope to be able to provide the Committee with a report of our findings as soon as they are available.
ANNEX A - COMMENTS OF PROFESSOR EILEEN MUNRO
A1 A pervasive problem in the section on safeguarding (pp28-34) is that the author wanders between talking of safeguarding and child protection without keeping a clear distinction between them. Safeguarding children relates to ensuring that all children fulfil their potential and covers all aspects of their welfare, including their education. Child protection refers to the specific problem of children suffering, or at risk of suffering, significant harm from abuse or neglect, usually at the hands of their carers. This means that all the recommendations have some plausibility in relation to child protection concerns but are phrased in terms of safeguarding where they seem poorly thought through and overly intrusive.
A2 One result of this muddled thinking is that it fails to consider what current good practice already achieves in child protection. Recommendation 24, for example, wants LAs to be able to deny home education for safeguarding reasons. This seems unjustifiable. This could exclude all low income families since poverty is the single biggest factor harming children's development. Nor would it be clear how attendance at a school would counteract the harmful factors. However, if this recommendation were re-phrased in terms of child protection then current good practice would already be active in dealing with this. A child on the CP register, for instance, would have the move to home education scrutinised and, if it raised concern, either the parents would be strongly advised against it or legal powers would be sought to either prevent or supervise such a move.
A3 Recommendation 23 would lead to considerable intrusion into the privacy of family members and is poorly thought through. When recommending new data sharing, one needs to consider the signal to noise ratio - how much of this data will add value to the practice of the receiver in safeguarding children and how much will be irrelevant but causing problems through taking up time that could be better spent. The author does not appear to have made any estimation of such statistics but my suspicion is that it would lead to considerably more noise than signal and, in fact, create risk of harm by obscuring the few 'signals' (of true concern) among a storm of noise (irrelevant data).
A4 Recommendation 22 that those monitoring home education should have some knowledge of child maltreatment and the child protection system is sensible and I am shocked that it is not already the case. Basic knowledge is necessary although the staff might then refer on to a more experienced colleague.
A5 Overall, I think this report confuses two overlapping agendas - to promote the welfare of children and protect them from maltreatment. It also overlooks or underestimates two current sources of safety for children: the current child protection system and the importance of community support and monitoring of home education.
 DCSF, Elective Home Education: Guidelines for Local Authorities, ministerial foreword
 G. Badman, Report to the Secretary of State on the Review of Elective Home Education in England (hereafter 'Report') §4.3-4.4
 Report §4.8
 The Church's response is available at http://www.cofe.anglican.org/info/education/electivehomeedu.rtf
 Report §4.9
 See note 1, §3.11
 Available online at http://www.whatdotheyknow.com/request/badman_review_of_existing_legisl
 Report §3.9
 Report §10.1
 Report §3.5
 Report §3.7
 Report §4.4
 Report §5.5
 J. Conroy, M. Hulme and
 Report Recommendation 21
 Available online at http://www.dcsf.gov.uk/everychildmatters/news-and-communications/la-weekly-email/laemail17september09/#ms883
 See note 1, §3.14