It won't stop there though, will it? CME -> ECM, *invalid* guidance and mission creep

"If we can set out how often the provision should be checked..."

"Perhaps we can send in a report every five years or so..."

"Maybe not even that. They could just phone us or something..."

- are some of the things I've been reading in discussions about these new, non statutory draft guidelines.

It's just that there are two very real phenomena we shouldn't be forgetting about. The first one is mission creep, which is what happens when, for example, the government comes up with a scheme to track down all of the Children Missing Education (CME) and makes this a legal requirement for local authorities. "But isn't this going to affect us?" asked home educators anxiously. "No no," we were told. "This isn't about you."

They even wrote it into our non-statutory (advisory) 2007 guidelines for local authorities:

The guidance issued makes it clear that the duty does not apply to children who are being educated at home.

Look fondly on those words, because once we have new non-statutory (advisory, as opposed to the compulsory CME) guidelines, they'll be gone forever, and the mission creep gap between "It's not about you," and "Oops! It's all about you. Did we not say?" will be neatly sealed over, lost without trace. They can't be used in the new version, because they're no longer correct: the statutory (compulsory) CME guidance was amended in 2009 - in the same month the Badman review was launched - to say nothing of the sort.

So now we have a problem that needs a solution: the EHE guidelines disagree with the current CME guidance. The first says our provision doesn't have to be checked for suitability, because back in 2007 a parent's word was trusted unless there was good reason to doubt it. The second says it does, because by 2009 it was not. That's one version of events anyway. The best solution for us to that problem would be amended CME guidance, not a replacement of the EHE guidelines which are advisory only. Given that these two disagree with each other, which do you think local authority officers follow? The compulsory ones, or the advisory ones? The compulsory ones, of course.

Changing statutory guidance is apparently quite a straightforward procedure, which has been managed twice for home educators in Scotland. I've been reading about it, and first point I discovered was this:

1.2.5 Provisions in subordinate legislation must be intra vires, that is they must be within the scope of the enabling power. If they are ultra vires they are invalid.

In my previous post, I set out the bits of the enabling power (section 436A of the education act) and the subordinate legislation (Sections 87 and 92 of the 2009 CME guidance)which concern us the most. Are those sections of the CME guidance within the scope of section 436A? I don't think they are. What do you think? Because if they're not, they're

ultra vires

and therefore

invalid.

The other thing we should always remember is the elephant in the room called ECM (Every Child Matters), which provides local authorities with five outcomes that every child in its authority is supposed to meet. The five outcomes are: Be healthy; Stay safe; Enjoy and achieve; Make a positive contribution; and Achieve economic wellbeing. They all sound quite nice on the face of it, but are actually linked to a complicated system of tick-boxed measures and checks, intended for each and every child in every local authority. Home educating parents in Oldham have been falling foul of the first one already: we hear that some of their children are being weighed every six months and that three school attendance orders have already been issued there. I can't imagine what kind of breakdown in communications between home educators and local authorities has brought this state of affairs about, but the problem is that the CME guidance "gets their foot in the door", as it were, and once there, officers are obliged to check that all five outcomes are being met, not just the educational ones.

So it's really important that home educators are not the target of the CME guidance and that this is set out clearly in that guidance. Once parents say they are home educating, then unless there is good reason not to, officers should take their word for it.

New Labour did not trust parents to tell the truth about their own children, or even to make decisions about them. Does the present government? It remains to be seen.

No new guidance for HE, until you've fixed the CME.

No new guidance for HE, until you've fixed the CME

"The CME" is the Statutory guidance (revised) for local authorities in England to identify children not receiving a suitable education and the parts of this that need to be fixed before we can safely and effectively move forward with new and correct guidance for Local Authorities on Home Education are as follows:

87. Section 436A of the Education Act 1996 requires local authorities to make arrangements to establish (so far as it is possible to do so) the identities of children who are not pupils at schools and who are not otherwise receiving suitable education. In order to comply with this duty local authorities need to make arrangements which will as far as possible enable them to determine whether any children who are not pupils at schools, such as those being educated at home, are receiving suitable education. In order to do this local authorities should make inquiries with parents educating children at home about the educational provision being made for them. The procedures to be followed with respect to such investigations are set out in the EHE Guidelines, 2.7-2.11 and 3.4-3.6. [My emphasis.]

But the EHE guidelines say:

2.6 Local authorities have a statutory duty under section 436A of the Education Act 1996, inserted by the Education and Inspections Act 2006, to make arrangements to enable them to establish the identities, so far as it is possible to do so, of children in their area who are not receiving a suitable education. The duty applies in relation to children of compulsory school age who are not on a school roll, and who are not receiving a suitable education otherwise than being at school (for example, at home, privately, or in alternative provision). The guidance issued makes it clear that the duty does not apply to children who are being educated at home. [My emphasis]

This makes it very clear that the CME guidance was not originally intended to provide a tool for Local Authorities to seek to monitor home education provision, and yet the 2009 CME guidance was cited by my Local Authority later in 2009 for that very reason.

Next, from the 2009 CME guidance:

92. In order to discharge their duties in relation to children not receiving an education, local authorities should make inquiries with parents about whether their home educated children are receiving a suitable education. The Elective Home Education Guidelines for Local Authorities make clear that parents who home educate may take a number of equally valid approaches to educational provision for their children.

I think this is supposed to interpret section 436A of the Education Act, which says:

436A Duty to make arrangements to identify children not receiving education

(1)A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—

(a)are not registered pupils at a school, and

(b)are not receiving suitable education otherwise than at a school.

(2)In exercising their functions under this section a local education authority must have regard to any guidance given from time to time by the Secretary of State.

(3)In this Chapter, “suitable education”, in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have.”

- but that's not an interpretation I would agree with, and nor is it one that preserves the principle set out in Section 7 of that act: that parents are responsible for their children's educational provision, not local authorities. Point 92 goes a step too far and urgently needs to be rewritten.

I can't understand why new guidance for local authorities on home education is being proposed, while the damaging 2009 CME guidance - which will have the effect of bringing in compulsory registration of home educators by the back door - is presumably to remain unchanged.

New guidance?

I'm hearing strange rumours that a group of people have been tasked with the job of rewriting some guidance for local authorities about home education.

It's a while since I blogged properly here and so I'm probably a bit rusty, but these persistent whispers from various quarters have brought me back with something to say. For one thing, the names I'm hearing mentioned have not been politically active in English home education for decades, like some others I can think of. So there seems to be a certain amount of re-covering of old ground and reinventing the wheel going on.

I can understand why the civil servants at the Department for Education and possibly certain Local Authority officers and so on might be pushing for new guidance. Carlotta set out the problem very clearly nearly two years ago and there's no need for me to repeat what she said there.

Kelly Green in Canada has also been grappling with the issue on her blog, where she was expertly and quite adequately answered by Barbara Stark in comment number 9 on that post. There are some other good answers in the comments there besides that one, but that comment of Barbara's in particular is worth a read because it provides such a clear explanation of the situation. Barbara is one of those people who have been politically active in English home education for decades. I read everything she has to say: she's a positive wealth of knowledge, experience, information and wisdom.

Between three and four years ago, many of us were involved in a government consultation which resulted in the 2007 [non-statutory] Guidelines for Local Authorities and which I - with my relative inexperience - quite liked (understatement of the year) but about which Barbara and AHEd were less happy.

And then as Kelly set out recently here, along came section 436A of the Education Act, creating the moot point, conflict and confusion over the issue of whether Local Authorities must ask for information about provision from parents who say they are home educating, or whether they only may ask for such information, which is the situation that was set out in a judgment by Lord Justice Donaldson some thirty years ago.

This has been further complicated, as Carlotta explained, by the Revised statutory guidance for local authorities in England to identify children not receiving a suitable education, which included the words:

87. Section 436A of the Education Act 1996 requires local authorities to make arrangements to establish (so far as it is possible to do so) the identities of children who are not pupils at schools and who are not otherwise receiving suitable education. In order to comply with this duty local authorities need to make arrangements which will as far as possible enable them to determine whether any children who are not pupils at schools, such as those being educated at home, are receiving suitable education. In order to do this local authorities should make inquiries with parents educating children at home about the educational provision being made for them. The procedures to be followed with respect to such investigations are set out in the EHE Guidelines, 2.7-2.11 and 3.4-3.6.

- stating that Local Authorities should make such inquiries of home educating parents, but then directing them back to the 2007 Guidance... which says:

2.6 Local authorities have a statutory duty under section 436A of the Education Act 1996, inserted by the Education and Inspections Act 2006, to make arrangements to enable them to establish the identities, so far as it is possible to do so, of children in their area who are not receiving a suitable education. The duty applies in relation to children of compulsory school age who are not on a school roll, and who are not receiving a suitable education otherwise than being at school (for example, at home, privately, or in alternative provision). The guidance issued makes it clear that the duty does not apply to children who are being educated at home.

- and then directs officers to the old, 2007 CME guidance which, as Carlotta points out, used to say:

3.3.16. If it becomes known that a child identified as not receiving education is being home educated, this should be recorded on the local authority's database and no further action should be taken unless there is cause for concern about the child's safety and welfare. Monitoring arrangements already exist for children being educated at home. Where there are concerns about the child's safety and welfare, Local Safeguarding Children Board procedures must be followed.

Muddy waters indeed, in which some further clarification probably would be useful, but I understand that the current government does not want to change primary legislation. So we're stuck with section 436A, though not necessarily with the precise wording of the 2009 CME guidance, which constitutes secondary legislation. Before the publication of that document, we still had a workable situation.

This makes me feel perplexed about the talk of new statutory guidance about elective home education, when really - I might be seeing this in terms that are too simplistic, or missing a crucial point somewhere - it would be much easier and less controversial to alter the faulty interpretation of Section 436A in the 2009 CME guidance instead and let the 2007 guidelines stand. Because that wording really is just somebody's interpretation of the primary legislation. I'd be very interested to know who wrote it.

Looking again at what section 436A actually says:

436A Duty to make arrangements to identify children not receiving education

(1)A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—

(a)are not registered pupils at a school, and

(b)are not receiving suitable education otherwise than at a school.

(2)In exercising their functions under this section a local education authority must have regard to any guidance given from time to time by the Secretary of State.

(3)In this Chapter, “suitable education”, in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have.”

In my view, this does not preclude the option of taking the parent's word for it unless there is good reason not to. As section 2.1 of the 2007 guidelines clearly state:

The responsibility for a child’s education rests with their parents. In England, education is compulsory, but school is not.

And I agree with those people who are saying that, taking all of the above into account, attempts to create a brand new piece of statutory guidance can only make things worse. You can't give ground in an argument when it's not your ground to give. If you put yourself forward for such a position as to negotiate new terms with government, you're morally obliged not to yield one inch of ground that was hard fought for by those who came before you. If you don't understand this properly (and I might not myself, but I'm not negotiating anything!) then you need to go and talk to those people exhaustively, until you really do.