Memorandum submitted by Leslie McKillop



Executive Summary of main points


- There is concern that a consultation stage Impact Assessment, signed off by the responsible Minister, has not been published as part of the formal consultation "Home Education - registration and monitoring proposals". This prevents stakeholders having details of costs, benefits, risks, race and disability equality impact assessments and other specific impact tests when they respond to the consultation.


- There is concern that the lack of a published consultation stage Impact Assessment indicates that the Impact Assessment process has not been followed by DCSF in addressing issues which lead to the review of home education by Graham Badman.



Introduction to submitter


The submitter, Lesley McKillop, is a home educating parent of more than 4 years. She was employed for many years in analysis and documentation of requirements for local government data migration.



Requirement to Publish a Consultancy Stage Impact Assessment


1. Department for Children, Schools and Families have signed up to the Code of Practice on Consultation. Criterion 3 of the Code of Practice states: "Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals."


2. Further expansion in the Better Regulation Executive (BRE) Code of Practice on Consultation[1] states:


3 "Estimates of the costs and benefits of the policy options under consideration should normally form an integral part of consultation exercises, setting out the Government's current understanding of these costs and benefits. A "consultation stage Impact Assessment" should normally be published alongside a formal consultation, with questions on its contents included in the body of the consultation exercise. An Impact Assessment should be carried out for most policy decisions and consultation of interested parties on the Impact Assessment and on equality assessments can bring greater transparency to the policymaking process and should lead to departments having more robust evidence on which to base decisions. It is important to read the guidance on specific impact tests, including the race equality impact assessment which is required by statute."


4. BRE Impact Assessment Guidance[2] explains that an Impact Assessment is required for "Any proposal similarly affecting costs in the public sector also requires an Impact Assessment, unless the costs fall beneath a pre-agreed threshold (generally 5m)."


Additional costs


5. Partial Regulatory Impact Assessment for Elective Home Education Consultation 2007[3] para 8, estimates an average cost of 200 per home educated child per annum. That gives a cost of 4M for the currently registered 20,000 home educated children. Graham Badman's report estimates 40,000 to 80,000 home educated children in total; that would result in an increase of 4M to 12M before considering the additional local authority workload.


6. There would also be an additional cost of state education where children move to state school attendance instead of being home educated (both enforced due to the proposed regulations and voluntarily due to the increased administrative burden and pressure on parents). It was estimated by Daniel Hannan MEP in 2008[4] that the full cost of a state education at around 9000 per child per year. This figure was derived by dividing the state education budget of 78bn by the number of pupils in state education. Therefore, an increase in state school population of 112 (0.28% of 40,000) at 9,000 per annum would be 1M. That does not allow for the higher cost for children with Special Educational Needs.



Questions To Consultation Co-ordinator


7. On 26 August 2009 the consultation co-ordinator was emailed by the submitter, to ask if there is a consultation stage impact assessment and, "If such an impact assessment exists, please would you refer me to the appropriate web page or send a copy to me via email. If no such impact assessment has been published, please would reply with the reasons for this failure to comply with the Government Code of Practice on Consultation.". On 1 September 2009, a reply was received saying that the email had been forwarded to the relevant policy team who would answer all of my questions.


8. At 21 September 2009, no such answer has been received.


8a. (paragraph added on 6th October 2009)

On 1st October 2009 a reply was received from ???. The email states:

"Thank you for your email dated 09 September 2009.  

An impact assessment is needed when a Government Bill, or Private Members Bill enjoying Government support, is introduced in either House of Parliament.  This means we must prepare an impact assessment regarding the impact on local authorities as part of the new Bill.

We are in the process of preparing the impact assessment but this cannot be finalised until the proposals contained in the consultation document have been agreed by Ministers. This cannot happen until the consultation has closed and Ministers have had time to consider the consultation responses.

Yours sincerely,

Sue Thomson
Independent Schools
Your correspondence has been allocated the reference number 2009/0077698.


Action when Deviating from Code of Practice


9. The BRE Consultation Guidance / Planning a Consultation web page[5] includes a paragraph on deviating from the Code of practice:-


"When deviating from the Code, you should:

ensure that the consultation is carried out according to best practice in other respects;

ensure that your stakeholders are made aware of the way in which your consultation deviates from the Code and the reasons for this, e.g. include this information on the basic information page of the consultation document; and

outline any measures you are taking to compensate for this such as supplementary ways of getting involved."


10. No such acknowledgement or explanation of the deviation from the code is obvious within the consultation documentation.



Benefits of an Impact Assessment


11. The BRE Consultation Guidance/Impact Assessment web page[6] states:-


12. "In the eyes of central Government, Impact Assessment is:


a continuous process to help the policy-maker fully think through and understand the consequences of possible and actual Government interventions in the public, private and third sectors; and

a tool to enable the Government to weigh and present the relevant evidence on the positive and negative effects of such interventions, including by reviewing the impact of policies after they have been implemented.

"Impact Assessments are generally applicable to all central Government interventions affecting the private sector, the third sector and public services, regardless of source: domestic or international. Their preparation and publication ensure that those with an interest understand and can challenge:

why the Government is proposing to intervene;

how and to what extent new policies may impact on them; and

the estimated costs and benefits of proposed and actual measures.

"They also give affected parties an opportunity to identify potential unintended consequences.

"As the Government aims to intervene only when necessary and since most policy objectives can be achieved through a range of options, the Government's aim is to identify proposals that best achieve its objectives while minimising costs and burdens."



Specific Impact Tests


13. Specific Impact Tests are listed and explained at the BRE Impact Assessment Toolkit/Specific Impact Tests web page[7]


14. Legal Aid impact test:

"Whenever consideration is being given to the introduction of new criminal sanctions or civil penalties the MoJ Civil Legal Aid Strategy Team must be consulted at an early stage in the development of the proposal to discuss and agree the consequences for the workload of the courts and legal aid. In these circumstances, policy-makers will be required to complete a legal aid impact test, full details of which can found at: Department for Constitutional Affairs:". The consultation proposes (Proposals para 2.3) that, "It will be a criminal offence to fail to register or to provide inadequate or false information;".


15. Health Impact Assessment:

The health and well-being of a child who had been traumatised in school is not helped by visits from a Local Authority inspector who could be perceived as having the power to send him or her back to school if they fail to "demonstrate both attainment and progress in accord with the statement of intent lodged at the time of registration.". (Quoted from Graham Badman's report, recommendation 7).


16. Race equality Impact Assessment is required by statute.


17. Disability Equality:

I understand that autistic children can exhibit behaviour which can be wrongly diagnosed as abuse. A disability equality Impact Assessment is required by statute.


18. Human Rights:

The consultation proposes "The local authority should visit the premises where education is conducted". Graham Badman recommends (recommendation 7),

"That designated local authority officers should:

- have the right of access to the home;

- have the right to speak with each child alone if deemed appropriate or, if a

child is particularly vulnerable or has particular communication needs, in the

company of a trusted person who is not the home educator or the parent/carer."


19. Rural proofing:

If there is a single school within a viable distance, and the local authority refuses or revokes permission to home educate, that could remove any choice the parents might have with regards to their children's education.



Risk, uncertainty and Unintended consequences[8]


20. There is the risk that more "false positives" are referred to Social Services and that the time allocated to them results in actual safeguarding cases being missed or given insufficient attention.


21. Some children fail, are unsafe and/or unhappy at school; there is the risk that Local Authorities refuse or revoke permission to home educate in cases where home education would be a better option than school.



Post implementation review


22. From the BRE Impact Assessment Toolkit / Post-Implementation Review[9] :

"You should use Impact Assessment as the starting point for the review. The review [I suspect this should say Impact Assessment] should establish a baseline and include the success criteria against which you will assess the effectiveness of the policy in delivering the objective."





23. Please note that the recommendations below do not imply acceptance by the submitter of the process or documentation preceding the consultation (e.g. the review or the report) and any recommendations in that area should be addressed prior to the recommendations of this submission.


24. The submitter recommends that,


a) the current consultation is suspended pending publication of a consultancy stage Impact Assessment;




b) a Consultation Stage Impact Assessment is published at the earliest opportunity;


and either


c) that the consultation documentation is rewritten in the light of the Impact Assessment findings, that a new consultation is opened;




d) that the consultation is restarted following publication of the Impact Assessment;




d) that the consultation is extended following publication of the Impact Assessment and that stakeholders who have answered the consultation already, without the aid of the Impact Assessment, are contacted, informed of the change and invited to either confirm their existing response or edit/replace it with a new response.


25. Any new or continuing period of consultation should be for a period which reflects that many stakeholders have already dedicated much of their limited free time to analysis and further investigation following the release of Graham Badman's report, requesting clarification/answers via MPs, answering the consultation as it currently stands, submitting evidence to the inquiry whilst concurrently home educating their children and in some cases working.


September 2009

[1] (Code of Practice on Consultation PDF)

[2] (BRE Impact Assessment Guidance PDF)