Are local authorities acting unlawfully when they monitor home education on a regular basis?

One of the most irritating features of home education in this country is the tendency of parents to latch on to random and fairly obscure words and phrases, incorporating them in every letter they write to their council or submission made to a select committee. ‘Conflate’ is one such word, ‘purposive’ is another; as in ‘learning by purposive conversation‘. Combined with the use of odd Latin expressions, I think that the hope is that this will lend their writing a veneer of erudition. Sadly, it has the opposite effect!

Without doubt, the most popular and overused expression in recent years has been ‘ultra vires’. These Latin words simply means beyond one’s powers and are generally used in connection with statutory bodies such as local authorities or government departments. For home educators, this phrase is most often used about the routine monitoring of home education. This is on the increase in some areas; the county of Lincolnshire and city of Nottingham, for example. The claim is made that these local authorities are accordingly acting in an unlawful manner and exceeding their powers. Let us see if this might be true.

The basis for many of the claims made about local authorities overstepping the mark with home education are founded upon a couple of lines in the 2007 guidelines on home education. They say:



2.7 Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine  
      basis.



There are three points to consider here. First, local authorities go beyond their statutory duties all the time and mostly people are glad about this. The statutory duties are the absolute bare minimum that an authority must undertake. If they do not do these things, then they are in breach of the law and Council Tax payers or the government can call them to account. Doing more than this bare minimum though is what most of us expect from our council. If my council has a statutory duty to run at least one library and then instead opens three or four, I am not going to complain about this. If they have a duty to empty my bin at least once a fortnight, I shall not be taking them to a judicial review if they want to collect my rubbish more frequently than this. They are not acting unlawfully by doing more than their statutory duty.

In other words, the fact that they may have no statutory duties in relation to monitoring home education on a regular basis does not mean that they cannot or should not do this. It is just one of those extra things that they might choose to do which goes beyond the absolute minimum that they are obliged to do by law.

The second point to consider is that it is in any case debatable whether or not such a duty exists in law. The law is unclear on this point and many local authorities take a different view of it than that held by home educating parents. Before instituting a policy of this sort, local authorities always take extensive legal advice, knowing as they do that home educators are a touchy bunch. I rang up  Lincolnshire and Nottingham and they both confirmed that they have taken the advice of barristers on this question before sending out the letters to which some home educating parents object. What it essentially boils down to is this. The legal department at these  local authorities believe one thing and have been confirmed in their belief by consultation with experts in the law relating to education. A handful of parents believe that they have a better understanding of the law, chiefly because of what they have read on various internet lists to which they belong. It will be interesting to see which side are right!

The third point is even simpler. Let us assume that local authorities do not have a right to monitor the quality of home education on a regular basis. In other words, let us concede everything that the most militant home educators assert so forcefully. Let us even grant that such actions on the part of local authorities would be unlawful. None of this makes the least difference. The aim of yearly checks has nothing to do with the quality of home education; they are intended simply and solely to establish that an education is actually still taking place. They have no reference at all to the quality of the thing; they just want evidence that the child is in fact being educated. The passage of time can have the effect of altering what would be a suitable education for a child and the fact that the local authority was satisfied that a child of five was receiving a suitable education tells them nothing at all about that same child at twelve or fourteen.

Local authorities are not acting unlawfully in checking each year that children who are not at school are receiving an education. It may not be strictly part of their duties to do this, but as I remarked above, we are usually pleased when our council does more than they have to! I am not at all sure that those home educating parents who have learnt all the law they know from just reading blogs and home educating forums really do know more than the Borough Solicitors in various places. The way to settle the matter would of course be to seek a judicial review and I understand that two people are currently attempting this in Lincolnshire. It will be interesting to see what happens.

Innocent until proven guilty...

Every so often home educators catch hold of some phrase and before you know it you are seeing it on every blog, list and forum. Ultra vires is one of these, ‘innocent until proven guilty’ is another. Local authorities must be reminded that home educating parents are ’innocent until proven guilty’ if they should happen to ask about a child’s education. Most home educating parents simply parrot this expression without having the least idea what they mean by it. It ties in with the idea which I explored in a recent post, that many home educators like to feel that they are being persecuted. The idea that the government or local authority should wrongly be treating them as guilty of something fits in neatly with this craving for persecution. Let us look at the idea of ‘innocent until proven guilty’ and see just what these characters think they mean by it.


Commenting on a recent post of mine, somebody said:



There is a law that states that we must provide a suitable education. You are either
innocent or guilty of breaking that law. What's so difficult to understand about

that?



This is of course, complete nonsense. Nobody is breaking any law by not providing her child with a suitable education and I have no idea why anybody would believe this. Still, many home educators appear to think that this is so. Perhaps we can clear up this misunderstanding. If I have care of a child aged between five and sixteen and do not cause him to receive an education, I am not committing any sort of offence, either criminal or civil. If somebody suggests that my child might not be receiving an education, this cannot mean that they are accusing me of being ‘guilty’; there is nothing to be guilty of. I am not breaking any law by failing to educate a child, nor can I be arrested nor any civil proceedings be brought against me by anybody. The whole concept of innocence or guilt simply does not apply under those circumstances. Guilty of what, exactly? The thing is meaningless. I am not, even theoretically, guilty of breaking any law.

The only time that the idea of innocence or guilt could possibly enter into a discussion of a child’s education in this country is if the child is enrolled at a school or the subject of a School Attendance Order which names a specific school which he should attend. None of this applies to home educators. Their children are not enrolled at school and as many Freedom of Information requests have established, School Attendance Orders are issued my most local authorities perhaps once every couple of years and even then, hardly ever to home educating parents. Here is the wording used in School Attendance Orders:

http://www.legislation.gov.uk/uksi/1995/2090/schedule/made

It will be seen that the offence would be not failing the duty to provide the child with a suitable education, but one of ignoring the order itself. The offence is created and comes into being only by the serving of the order and relates only to that. No SAO, no offence.

Nobody in this country could ever be taken to court for not providing a child with an education; it is not an offence. Therefore even the most zealous local authority officer could not suspect a home educating parent of committing an offence. The idea of ’innocence’ or ’guilt’ is utterly without meaning. The only time that any offence could ever be taking place would be if the local authority issued an SAO and that simply does not happen. It would only be at the moment that a School Attendance Order was served on a parent  that even the very possibility of an offence was created.

As I said at the beginning, this really has more to do with the widespread desire of many home educators to believe themselves victims of persecution than anything else. They want to believe that heartless officials are falsely  accusing them of breaking the law. One more time; it is not against the law to keep your child from school and fail to educate him. Nobody could, even in theory, be taken to court for this. The only way that you could fall foul of the law is if your child is a registered pupil at a school or fails to attend the school named in a School Attendance Order. Unless this is happening, you are not breaking any law, nor could anybody even suspect you of breaking any law regarding the education of your child.

One final time, unless any readers have actually been served with a School Attendance Order or have children who are registered pupils at a school and are not being sent regularly, there can be no possibility of any offence and consequently no talk of innocence or guilt. Forget the expression 'innocent until proven guilty'; it does not and cannot apply to you. No mechanism exists for prosecuting anybody for failing to abide by the duty of causing a child to receive a suitable education. Prosecutions can only be brought with regard to failing to send a child to school.