Local authorities' consultation responses: Taking a 'risk-based approach'
I think, especially in the light of Carlotta's post today On LAs Calling for Mandatory Access, it will be useful for us to look at the term 'risk-based approach', as it appears in the context of the current Consultation on Home Education Guidelines.
Here's the relevant paragraph in the draft guidelines:
The decision to use the exact phrase 'risk-based approach' in the draft was, in my opinion, a very deliberate and calculated one on the part of its authors. This is no casual, throw-away term which appeared there by chance. It was designed, I think, to convey a specific and important message to Local Authorities, possibly with the hope that this would be overlooked by home educators. We should therefore explore in some depth the meaning of this term: risk-based approach.
The risk in this context is a legal risk to LA agents and personnel, based on the issue of Causation in English law. This basically means that if it could be demonstrated that a member of staff or other person acting as a Local Authority representative in respect of a home-educating family had a Duty of Care towards the family, they could of course be personally vulnerable to a Negligence suit, amongst other implications.
If I was any kind of an employee of a Local Authority in respect of home education, I would be urgently seeking good legal advice about my personal position regarding the ongoing monitoring of home educating families, in the light of this consultation. And if I was a home-educating family in Glouscester, the local authority which is, we're told, planning to "make appropriate representation to Government to highlight the concern that there is currently no legal process, which ensures that children, who are educated at home, are regularly seen, and their progress monitored, by Educating Otherwise professionals", I would be very loudly reminding my local authority of this risk.
Section 7 of the Education Act 1996 tells us that "The parent of every child of compulsory school age shall cause him to receive efficient full-time education." It does not tell us that the Local Authority of every child of compulsory school age shall cause him to receive efficient full-time education. If I was a Local Authority employee, especially a home-owning one, especially in Glouscester, I'd want to keep it that way.
The plight of the children in the Eunice Spry case should have been picked up by Social Services, pure and simple. The apparent attempts to make this into an issue about monitoring home educators should be firmly resisted, by local authority education personnel and home educating parents alike.
Glouscester aside, to counter such self-defeating requests from Local Authorities to make monitoring mandatory, I think we need to be making strong arguments about the negative effects of monitoring on our educational provision.
The autonomous method is particularly vulnerable to negative effects from monitoring, (although I think that probably all methods are to some extent.) Autonomous education relies on the student's intrinsic motivation, which usually springs from curiosity and the freedom to pursue it. In my opinion this is the most useful - possibly the only genuine - form of learning, as opposed to the basic skills training which is supposed to take place in our schools.
But yes, my very simple message to local authorities seeking increased legal powers to monitor home education provision would be this:
Be careful what you ask for: with increased powers will also come very real, very personal, increased legal and financial RISK.
Here's the relevant paragraph in the draft guidelines:
3.4 Many home educating parents welcome regular contact with the local authority as an opportunity to reaffirm their provision. However, where parents do not want any involvement with the local authority, the LA should not automatically assume that there is a problem which needs investigating. Instead, the LA should take a risk-based approach, taking into consideration the individual and community’s circumstances. As one example, recent research shows that “few Gypsy/Roma and Traveller parents have the knowledge, skills and resources to provide or deliver a full-time education that is efficient and suitable”. We do know that there will be Gypsy, Roma and Traveller children who do receive a good education at home. Those monitoring elective home education should seek advice from Traveller Education Support Services before engaging with parents from these communities.
The decision to use the exact phrase 'risk-based approach' in the draft was, in my opinion, a very deliberate and calculated one on the part of its authors. This is no casual, throw-away term which appeared there by chance. It was designed, I think, to convey a specific and important message to Local Authorities, possibly with the hope that this would be overlooked by home educators. We should therefore explore in some depth the meaning of this term: risk-based approach.
The risk in this context is a legal risk to LA agents and personnel, based on the issue of Causation in English law. This basically means that if it could be demonstrated that a member of staff or other person acting as a Local Authority representative in respect of a home-educating family had a Duty of Care towards the family, they could of course be personally vulnerable to a Negligence suit, amongst other implications.
If I was any kind of an employee of a Local Authority in respect of home education, I would be urgently seeking good legal advice about my personal position regarding the ongoing monitoring of home educating families, in the light of this consultation. And if I was a home-educating family in Glouscester, the local authority which is, we're told, planning to "make appropriate representation to Government to highlight the concern that there is currently no legal process, which ensures that children, who are educated at home, are regularly seen, and their progress monitored, by Educating Otherwise professionals", I would be very loudly reminding my local authority of this risk.
Section 7 of the Education Act 1996 tells us that "The parent of every child of compulsory school age shall cause him to receive efficient full-time education." It does not tell us that the Local Authority of every child of compulsory school age shall cause him to receive efficient full-time education. If I was a Local Authority employee, especially a home-owning one, especially in Glouscester, I'd want to keep it that way.
The plight of the children in the Eunice Spry case should have been picked up by Social Services, pure and simple. The apparent attempts to make this into an issue about monitoring home educators should be firmly resisted, by local authority education personnel and home educating parents alike.
Glouscester aside, to counter such self-defeating requests from Local Authorities to make monitoring mandatory, I think we need to be making strong arguments about the negative effects of monitoring on our educational provision.
The autonomous method is particularly vulnerable to negative effects from monitoring, (although I think that probably all methods are to some extent.) Autonomous education relies on the student's intrinsic motivation, which usually springs from curiosity and the freedom to pursue it. In my opinion this is the most useful - possibly the only genuine - form of learning, as opposed to the basic skills training which is supposed to take place in our schools.
But yes, my very simple message to local authorities seeking increased legal powers to monitor home education provision would be this:
Be careful what you ask for: with increased powers will also come very real, very personal, increased legal and financial RISK.
posted by Gill at 10:01 am
8 Comments:
Will be adding your arguments to that letter as soon as poss! Thanks, Gill.
Am supposed to be working, but am grabbing moments. Would the Duty of Care necessarily apply were the LA to demand automatic access only when they wanted it and not as a duty to all HE children, do you think?
Sorry not to be pursuing this fully myself and TIA, if you do get a mo...
It's impossible to definitively answer that outside a courtroom Carlotta, but my personal opinion, on balance, would be that it would, in individual cases.
This is all complicated by the ECM agenda, but as a worker in education I would not be in a rush to take on any risk which properly belongs with a social worker.
It might be in national governments' interests to merge the two issues of education and welfare, but it's definitely not in the interests of families or individual local authority personnel, and they should all resist it where they can - not be asking for it to happen!
I really don't understand Glouscester's thinking on this. Maybe I'm missing something.
I assume they'll take decent legal advice before going ahead with this?
Sorry Gill, can't leave this idea alone, and also am kicking self for not going for the law degree, particularly as you point up in your last comment, the other side will most probably be as clued up as possible on this point.
I think you are absolutely right to highlight the phrase "risk- based approach" in the guidelines. I do see that this could be read as a risk to LA officials of potential trouble from failure to spot an HE problem, but do you think that it also refers to the assessment of risk of the HE child and it therefore actually potentially exempts LA Ed officials from negligence suits in the situation that there was insufficient reason to suspect that a child was at risk? ie: it implicitly exempts them from an automatic duty of care?
Well I'm no lawyer either Carlotta, but that's how it looks to me, yes. As things presently stand, there's no onus on an education officer to go looking for problems, without reason to think there may be some, therefore no duty of care if they didn't know about them.
Glos seems to be saying that they think the Eunice Spry case gives them reason to view home education itself as a reason to think there might be problems, thereby possibly giving them a duty of care but of course this isn't the case, even after ECM.
The Serious Case Review, of course, doesn't look at the ramifications on other families or on children's education provision and nor does it seem to consider the legal position of its individual workers, only to "to establish the facts of the case, to analyse the professional interventions with these children and to identify how the different agencies in Gloucestershire can work together better to safeguard children and young people," so it was limited in its remit.
the impression that "risk-based approach" was in reference to risk of children suffering disadavantageous outcomes (yes, it used to be harm, but ECM changes that).
However, all the evidence is that EHE is NOT a risk factor, in fact quite the opposite. Ipso Facto, a risk based approach should lead LA's to DOWNGRADE any interest in pursuing EHE families. They are, by definition, at lower risk of poor outcomes.
It won't, but it should.
Yes I thought 'risk-based approach' related to that at first glance too Pete, until I thought about it some more.
Post a Comment
<< Home