Memorandum submitted by Education Otherwise (CS 11)
1. Education Otherwise is the major home education support charity in England and Wales. It was founded in 1976, and offers support and information to members and to the general public. We provide telephone and internet helpline services, respond to all relevant consultations and have previously engaged in dialogue with government.
2. Home education has a long history, with the right to do so being preserved in successive Education Acts. Section 7of the Education Act 1996 makes each parent of every child responsible for ensuring that the child's education is efficient, full-time and suitable to 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.
3. Some families come to home education because the education system fails them and their children, others opt to home educate as a positive choice. Every child is different and every family is different yet the proposals will remove richness and diversity in current provision and instead will bring ever-increasing prescription and direction over the child's education at home.
4. Education Otherwise believes that Clause 26 Schedule 1 of the Children, Schools and Families Bill is profoundly flawed and must not pass into legislation. In addition to the devastating effect on home educating families, the proposed measures would be incompatible with existing laws and would have unforeseen consequences far beyond the present target group.
5. Education Otherwise believes that any move towards greater compulsion would not improve the situation in hard cases and would adversely affect the majority. The law is a blunt instrument and compulsion would not empower children or promote children's rights.
6. We cannot begin to convey the enormity of the distress and the strength of opposition shared by many of our members and the wider home education community to the Government's proposals and we urge the Government not to take these new measures forward into legislation.
7. The present powers are sufficient but poorly understood and the Department has not taken a lead in promoting the 2007 Guidelines. Education Otherwise recommends that the Government should take powers to put the 2007 Guidelines on a statutory footing.
Education Otherwise Blueprint from 2007
8. In 2007 we advocated a move from one-to-one policing role to advice and support and information. We said DCSF should issue Advice to Practitioners to accompany the Elective Home Education Guidelines. We also said there should be a Lead Professional for Home Education.
9. We recommended that the Department consider a number of innovative pilot projects aimed at promoting positive working partnerships.
10. The 2007 Government guidelines on home education were published after wide consultation and deliberation. The problem is that these non-statutory Guidelines were not publicised by the Department. Many local authorities remained unaware of their existence or treated them as merely advisory. The 2007 Guidelines may be read online but a hard copy has never been available.
11. In Oral Evidence to the Select Committee on October 14th there was some discussion of what constituted suitable education and the local authority witness suggested that in home education there should be the consistent involvement of parents or other significant carers; recognition of the child's needs, attitudes and aspirations and opportunities for the child to be stimulated by their learning experiences.
12. These proposals are of course already contained in the Government Guidelines at paragraph 3.15 further demonstrating that there is no need to reinvent the wheel.
The Present Legal Framework
13. The parent has a duty to cause the child to receive education via section 7 of the Education Act 1996. This can be done through school or outside the school system.
14. Section 437 of the Education Act 1996 requires the local authority to seek information from parents if it appears that a child is not receiving education. Ultimately if the local authority is not satisfied, it has a duty to serve a School Attendance Order. Further information about School Attendance Orders can be found in the Government publication "Ensuring Children's Right to Education" 2008 which is available online. Free paper copies may also be ordered from Teachernet.
15. The authority has further duties via the Children Act 1989 sections 17 and 47 in relation to establishing whether a child is in need of services and a duty to step in if the child is at risk of significant harm.
16. Section 10 of the Children Act 2004 obliges the local authority to co-operate with statutory partners to improve the wellbeing of children in their area. There have been various interpretations of "wellbeing", most recently in the January 2010 Child and Adolescent Mental Health Service Review Report which used the terms "emotional wellbeing and mental health" to describe "children and young people having the resilience, social skills and self-awareness to form relationships, enjoy their own company and deal constructively with the setbacks that face everyone from time to time."
2009 Proposals to Inspect the child and the home
17. Clause 26 of the Children Schools and Families Bill requires the family to apply for a licence to practice home education and sets out a requirement for family homes to be inspected annually.
18. The Bill requires the Education Welfare Service to serve an automatic fast track School Attendance Order compelling children to attend the local school if the family has not complied with every aspect of the licensing regime irrespective of the quality of the education being provided at home.
19. It is proposed that a new section be added to the Education Act 1996, further modifying section 436 of the Act which was last amended in February 2007. The new section 436ZA which may be found on pages 44-46 of the 2009 Bill states explicitly that "an authority shall disregard any education being provided to the child as a home-educated child."
20. Secretary of State Ed Balls stated on November 19th 2009: "There is no right for the local authority to enter the home or see the child without their agreement." However, on January 11th the Department for Children Schools and Families said: "We have decided that local authorities should visit the place where education is taking place, which will usually be the family home, as part of their monitoring work. This would allow local authorities to ensure that the home is in a suitable condition and is free from any factors that might interfere with the provision of education, such as a lack of power and/or heating, or severe overcrowding, for example. We will consider carefully what can be done to make the notice period of a visit as flexible as possible, to suit the circumstances of individual families. If families choose not to cooperate, and as a result are not on the register, local authorities will be able to use a school attendance order to require the home educated child or children to attend school."
21. The Department uses the phrase "choose not to co-operate" yet many families are telling Education Otherwise that they would have no choice since compliance would be too traumatic for their children. We cannot begin to convey the enormity of the distress and the strength of opposition felt by many of our members and the wider home education community to the Government's proposals and we urge the Government not to carry these measures forward.
Local authorities have tried to warn the Government of the dangers in the new proposals
23. Education Otherwise is currently undertaking research into home education services within local authorities. A number of local authorities have sent us copies of responses made to the latest Government consultation.
24. One authority told the DCSF in the Autumn: "It is hard to see how it can be justified for an inspection of a home where a child is being educated to have greater powers of entry than the police. There is an assumption in this recommendation that the premises where home education takes place is the home, and this is not always the case."The same authority went on to ask "Is the drive behind his recommendation an issue about the conditions under which education takes place or about the circumstances in which the child is living?"
25. In October 2009 Education Otherwise submitted to the DCSF: "There appear to be a number of conflicting reasons for home visits and interviews with children: a safe and well check by observing the child, ensuring that the child is receiving suitable education and verifying that the child is able to answer questions about academic work undertaken during the year. It also appears to be envisaged that the home interview would give the child an opportunity to disclose abuse to a trusted and familiar adult. These four objectives are counter-productive and wholly incompatible."
26. "We agree that home educated children must be seen regularly in their education setting, on their own, or with an independent person present as appropriate, so the LA can verify that the evidence of progress presented to them is up-to-date and accurate and confirm that these children are safe." Secretary of State Ed Balls June 2009.
27. One LA officer commented in a briefing on the right of access to the home "The police don't have this!" and on the right to speak with children alone, noted "major cultural issues!"
28. Another authority went on to tell the Department: "Our view is that most parents/carers would be unhappy for their child to be interviewed alone bearing in mind that in most cases, if this was the start of EHE, the parent would not know the LA representative. The circumstances to justify this power being applied would need to survive a judicial test as reasonable and not an infringement of parent's rights. Where such interviews currently take place they are within the context of child protection or police investigation, it would be a significant departure to place education on that footing. It is unclear if this is a child protection issue or an educational one. If the issue is child protection, then existing powers are in place given sufficient grounds for concern. If the issue is educational then the definition of when it is "appropriate" for the interview to be without the parents is very problematic."
29. Yet another local authority told the Department: "It would never be appropriate for LA officers within the role of supporting families with home education to insist on interviewing a child alone. The LA officer is not at all likely to be someone a child knows well or trusts and such power gives the impression that LA officers do not trust parents and believe they can get to some hidden truth by seeing children alone. LA officers need to share any concerns about the child's education with parents and in cases where the LA officer has concerns about the welfare of a child, the usual safeguarding procedures apply."
30. For safeguarding reasons we believe that many parents would not be prepared to allow children to be alone with unknown adult in position of power and authority. The child seems to be viewed both as a witness against the parent and also as evidence for the efficacy or otherwise of the parent's educational provision. A third view of the child is as potential abuse victim in all cases until proved otherwise.
31. The child needs an advocate chosen or approved by the parent and the child. An independent advocate is also necessary for the professional reputation of the local authority officer who should never see the child alone.
32. One LA officer told his colleagues: "There is however the safeguarding of our own workforce that must be considered. Home visits can not be done by just one person for their own safety, reference the Susannah "Suzy"Lamplugh case (1986). At the present time this is what has been happening in  as it has been the only way to carry out the limited monitoring that has been done"
33. The proposals burden the local authority with additional liability in law in cases where the official has signed off the family and reported that there is no cause for concern.
34. Unsurprisingly, the Local Government Association has now asked the Department to revise the Impact Assessment to include legal costs since these were entirely absent from the initial attempt to produce a cost/benefit analysis for the Government proposals.
Government Proposals are damaging home education
36. The Department speaks of positive working partnerships yet the Department's actions have institutionalised mutual suspicion and done nothing to establish and address the reasons why some families choose not to have a relationship with their local authority.
37. One Local Authority told DCSF that "The review and its recommendations will be perceived by home educators as a direct and unprecedented attack on the family, striking at the heart of the relationship between parents and their children, and could damage the relationship between LAs and home educators where there has previously been good and open dialogue from which the children have benefitted."
38. There are potentially huge benefits to voluntary relationships between the home educating family and the local authority. Where families feel respected and valued, they are far more likely to want to engage in dialogue with the authority.
39. Any type of "inspection" or "monitoring" service will not be conducive to reflective listening and to the ability to be non-judgemental.
40. On the other hand, where families feel attacked or undermined, they will react defensively and an adversarial position is likely to become entrenched on both sides.
Every Child Matters?
41. Until the 2004 Children's Act there was a clear distinction between educational issues and welfare issues. Since then the picture with regard to home education has become much less clear and the two issues have become conflated.
42. Communication problems are ongoing between the Department and local authorities. When the Home Education Review was launched, a number of local authorities only learned of the questionnaires via Education Otherwise. The DCSF Elective Home Education Team does not keep a list of home education officers in each authority.
43. The introduction of the Every Child Matters agenda has brought many more professionals from many different agencies into awareness of home education. This has not been accompanied by relevant training, clear lines of responsibility or a proper framework.
Support: "Access is meant to be voluntary but support sounds like you need it."
44. The Minister says the Bill is about support. Home educators prefer to talk about "accessing services" rather than individuals "getting support". The notion of "support" is patronising, does not empower the individual and does not meet the family's needs on the family's own terms particularly when refusal to accept "support" provokes heavy-handed Government intervention. Home educating families are also frequently excluded from Government services and initiatives which are promoted as being available to all children or all families. Education Otherwise is engaged in ongoing research in the regions to establish precisely what is available to home educating families.
45. If more local authorities had a free drop-in facility for home educators without the need to give names at the door, then this would break down barriers to communication. It would promote the five outcomes of Every Child Matters in terms of a dialogue with a hard-to-reach group excluded from the usual funding streams; it would enable local authorities to find out what home educators actually want and it would provide social and networking opportunities for home educating families.
46. In terms of other support which is offered to home educating families, we are aware that a very limited number of local authorities offer access to exam centres at Pupil Referral Units or will take up the exam centre issue with local schools. A few local authorities have careers advice and guidance sessions. We are aware of one authority which publishes a termly newsletter for home educators and several authorities provide virtual learning resources. A minority of local authorities run drop-in sessions for home educating families. We have been told that some local authorities will provide references for college and some try to assist with work experience. We are aware of a few local authorities which pass on information about special needs support services and others may have information about Gifted and Talented schemes. Some local authorities offer to assist with the Child Benefit Office for post 16 Child Benefit entitlement should this be necessary. We have met one local authority which is working on access to sporting facilities for home educated children.
47. At the national level, Education Maintenance Allowance is not available for home educate young people in England. It is clearly discriminatory when home educated young people are engaged in full-time education with defined learning goals and yet are still unable to claim EMA.
48. It also comes as a shock for home educating families to learn that entitlement to free eye tests and NHS vouchers ceases on a child's 16th birthday if the child is not attending a registered educational institution. There appears to be a postcode lottery where some opticians will provide free care but others will point to guidance from the local Primary Care Trust which specifically rules out this possibility.
Special Needs and Disabilities
49. Some home educators with disabled children have great difficulty accessing health services and require very specific disability help. Families want to be able to choose. In the past the children may have had treatment or services imposed on them which simply haven't worked.
50. Home educating parents with disabled and special educational needs children want contact with people who respect their values and expertise.
51. We are continually hearing from home educating families where the child is on the autistic spectrum and a member of the children's workforce is attempting to impose their own rigid ideas about "normal behaviour" or "socialisation".
52. As one home educating parent with a disabled child put it "in a perfect world we want to access help and services. We want information about how to get things but sometimes the things we want just aren't there."
53. Treehouse autism education charity told the Department in October 2009: "Parents who we have spoken to and who home educate are fully aware of the responsibility they are taking on and often find it a costly option and let down by their local authority. In this context the introduction of registration and monitoring processes held by the local authority can seem inappropriate and intrusive. The provision of information and support for parents instead, would be helpful."
Government's Cost/Benefit Analysis of the Home Education Proposals
54. Bill Committee members will be aware of the controversy and criticism surrounding the statistics used to justify a massive change to the law on home education. The Select Committee Report published in December 2009 referred to "less than robust evidence". We anticipate that detailed submissions will be made to the Committee which dealing with these issues and we published our own Briefing Paper at the beginning of December. We would be more than happy to take questions in this area, particularly in view of the fact that the home education clause purports to have the largest non-monetised benefit of any area of the Bill.
• Overview to 2007 consultation response on Home Education Guidelines
• DCSF Elective Home Education Guidelines for Local Authorities published November 2007
• School Attendance
• Ensuring Children's Right to Education : Guidance on the legal measures available to secure regular school attendance. DCSF 2008.
• CAMHS Review January 2010
• Education Otherwise Briefing Paper on the Children Schools and Families Bill
• Education Otherwise Position Statement January 2010