Education Committee - Pre-legislative scrutiny: Special Educational NeedsWritten evidence submitted by barrister Ian Dowty, Jane Lowe, Trustee of the Home Education Advisory Service, Tricia Farey, a home educating parent of a child with SEN, and Fiona Nicholson, independent home education consultant

Please accept our apologies for this late submission to the Committee’s pre-legislative scrutiny of the draft SEN Bill. Last week at a meeting of the All Party Group for Home Education we were able to begin a preliminary discussion of the draft Bill with Stephen Kingdom from the Department for Education. Whilst it was reassuring to hear that our interpretation of the draft Bill was not what DfE intended, we nevertheless felt that the issues should be explicitly addressed during the current pre-legislative scrutiny stage before the final version of the Bill is presented to parliament in the New Year.

We are concerned that local authorities may interpret some of the clauses in the Bill1 as meaning that they have a duty to ascertain whether any children in their area 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. Local authorities could view this as a new duty or as official endorsement of practice which has formerly been deprecated. This conflicts with current legislation and guidance. If the Department does not intend the present law to be superseded on these matters, then the wording of the draft Bill needs to be changed.

The duty to secure the special educational provision in accordance with the EHC plan falls on the LA. This is capable of being misinterpreted as local authorities being “responsible” for children with SEN,2 which supersedes the clear parental duty set out in section 7 of the Education Act 1996.

It should therefore be made clear that education has to be suitable to the child’s age ability aptitude and SEN, and that the new SEN legislation does not introduce a new requirement for the parents to satisfy the authority that their arrangements are “suitable” before being allowed to home educate. If the Department does not intend to depart from the present position, this needs to be noted; otherwise some readers will assume that the position has changed with the introduction of a new law.

We are concerned by the implication that parents may have to prove that mainstream is “inappropriate”3 before being allowed to home educate. We have been assured that this is not the Department’s intention but the text of the Bill must make this clear. Parents are able to choose to home educate their children and parents of children with SEN will not be required to prove that school is inappropriate.

Where services are delivered through schools (although not necessarily inside the school building) we recommend the Department makes it clear that this must not be used as a reason to deny services to home educated children; nor to insist that the child must access the service or support by going onto the school premises. Furthermore, the legislation must not appear to give the local authority a new duty or power to refuse home education because some services or support would be inaccessible to children who were not on roll at a school.

As an absolute minimum, regulations should also specify that there is 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 offer such an assessment without reasonable grounds for believing that the child does have additional needs.

At points the draft Bill is worded so as to suggest or imply that local authorities have an ongoing duty to monitor all children with special needs every six months4 There is also a possibility of reading the draft Bill as giving access to the place where education is provided for SEN;5 in the case of home educated children this would be the home, and again, if this is not the intention—as we are told it is not—for the avoidance of doubt, the Department should take the opportunity to state the position clearly, since we have long experience of legislation and guidance being misinterpreted (for example writing to the home educating parent as “Headteacher”).

There is also an opportunity for the Department to issue an explanatory note to any new EHC plans along the lines provided by 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”.6

The SEN Green Paper did mention elective home education, but the SEN Draft Bill does not. The Department may wish to consider restoring some variant of the following:

“Many parents, and particularly the parents of children with SEN, turn to home education because they feel that the school system has failed to meet their child’s needs. Where home educated children have a statement, local authorities have a duty to ensure that the child’s SEN are being met and the local authorities have to review the children’s statements annually. 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. We also expect local authorities to consider whether home educated children who had been in receipt of support at School Action Plus at school should continue to receive that support through local authorities using their power under the 1996 Act to make provision out of school.”7

December 2012

1 Clauses 3,4, 13 and 16

2 Clause 4

3 Clause 34

4 Clauses 13, 16, 17 and 23

5 Clause 38

6 House of Lords 29 October 2001

7 Para 2.54

Prepared 19th December 2012