Children and Families Bill

Memorandum submitted by Fiona Nicholson (CF 20)

Part 3 Children and Families Bill: SEN and Elective Home Education

1. This memorandum addresses itself to Part 3 of the Bill which deals with SEN and it focuses specifically on elective home education where children are educated at home by parental choice. For some children with SEN, home education is not just a lifestyle choice, it may be a lifeline.

2. I gave oral evidence on home education to a previous Public Bill Committee in 2010 and have also given oral evidence to Select Committees in 2009 and 2012.

3. At the end of 2012 I assisted the Home Education Advisory Service to organise a meeting of the All Party Parliamentary Group for Home Education chaired by Lord Lucas and attended by DfE and Ipsea specifically to discuss the impact of changes to SEN for children who are home educated.

4. In the SEN clauses of the Bill there is no acknowledgement that children may be educated otherwise than in a school, nursery or post-16 institution and this has not been corrected despite exhaustive pre-legislative scrutiny. A similar mistake was initially made in drafting the legislation on raising the participation age.

5. Local authorities may interpret clauses 22 and 23 in the Bill as a duty to ascertain whether any children in their area may have special needs, which in turn would require them to screen home educated children whose additional needs or learning difficulties would not be picked up by schools.

6. Regulations should specify there will no routine screening for SEN in home educated children and that while the parent may of course request an assessment, the authority should not seek to impose the assessment without reasonable grounds for believing that the child does in fact have additional needs.

7. The duty to secure the special educational provision in accordance with the EHC plan falls on the LA. What impact does this have on the parents' responsibility for the child where the authority and the family may disagree? EHC plans should echo the directive from Baroness Ashton during the drafting of the current SEN Code of Practice, namely that "we do not suggest that parents must carry out exactly what is written within the statement". Will this be included in regulations?

8. Education has to be suitable to the child’s age ability aptitude and SEN. Could it be clarified whether there is a new requirement for the parents to satisfy the authority that their arrangements are "suitable" before being allowed to begin home education or being allowed to continue home educating?

9. Where services are delivered through schools – or on school premises - could home educated children be denied those services? Will provision be made for services to be accessed other than in a school?

10. Will local authorities be able to refuse home education because services or support may be inaccessible to children with SEN who are not on roll at a school?

11. Clause 35 seems to be saying that children with SEN can be excluded from any school activities if the school decides that inclusion isn't reasonably practicable or if the school believes that inclusion might have some effect on other pupils.

12. Does clause 36 mean that local authorities have a new ongoing duty to monitor all children with special needs every six months?

13. Clause 42 says that the authority has no duty to secure the educational provision specified in the plan "if the child's parents or the young person has made suitable arrangements." This could be interpreted to mean that home educated children with SEN are entitled to nothing. However, the SEN Green Paper said "in some cases, parents on their own may not be able to make suitable provision for their children but could do so with some support from the local authority. We expect that when local authorities are considering whether parents are making suitable provision that they also consider whether to use their power under the Education Act 1996 to make special educational provision out of school to help the parents make their provision suitable for their child’s SEN." This has been dropped from the Bill.

14. Clause 45 says that the EHC plan may be ceased "where the child or young person no longer requires the special educational provision specified in the plan."

15. The combined effect of clauses 42 and 45 could be that the LA has no duty to secure provision when children are home educated and that therefore the plan will be ceased.

16. Will parents may have to prove that mainstream is "inappropriate" before being allowed to home educate? (Clause 56)

17. When will the Minister's amendment covering the new duty on health be published, since the concern is that under current case law, health needs which impact on education come under "education" and are enforceable by tribunal. If health is now to be kept separate from education, then the proposed new measures may make things worse for families rather than better.

March 2013

Prepared 13th March 2013