Thursday, October 14, 2010

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


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.


Blogger Ria said...

Thanks for spelling it out so clearly.


10:08 pm, October 14, 2010  
Blogger Gill said...

You're welcome.

10:12 pm, October 14, 2010  
Blogger Tech said...


10:38 pm, October 14, 2010  
Blogger Gill said...

You're welcome! :D

10:40 pm, October 14, 2010  
Blogger Helen said...

This comment has been removed by the author.

11:06 pm, October 14, 2010  
Blogger Gill said...

Sure, it was reported on two of the national home ed lists yesterday.

11:06 pm, October 14, 2010  
Blogger Gill said...

You're welcome, and oh that was me, deleting one for you, not realising you could do it for yourself! Sorry.

Suffice to say you were asking about the Oldham cases, because although you knew of health services being offered there, you weren't aware of any being compulsory?

I'd comment on that: the nature of 'compulsory' isn't always straightforward, if people are (rightly or wrongly) scared of the consequences of refusing such an offer.

11:16 pm, October 14, 2010  
Blogger Gill said...

Am I missing another of your comments now Helen? I'm sure one came into my inbox, LOL, to which I've replied here, but am not seeing it here!

11:17 pm, October 14, 2010  
Blogger Helen said...

Yes I did send a comment, where has it gone! :)

11:26 pm, October 14, 2010  
Blogger Gill said...

This is what I got, just to show you did. :)

Helen has left a new comment on your post "It won't stop there though, will it? CME -> ECM, *...":

Thanks.Sorry I accidently posted my comment twice and thought I'd delete one and it deleted both!

Posted by Helen to Sometimes It's Peaceful at 11:14 PM, October 14, 2010

I think Blogger is having issues with some ISP clusters maybe - I've heard it's quite widespread.

11:29 pm, October 14, 2010  
Blogger Elaine said...

This comment has been removed by the author.

11:53 pm, October 14, 2010  
Blogger Alison said...

Brilliantly put, Gill.

If the current CME guidance is indeed ultra vires - and it looks that way from perusing the enabling clause in the statute - it is obviously open to legal challenge.

It would be far more sensible to fix that bad guidance (and it isn't difficult because we have had our statutory HE guidance amended in Scotland). It just needs another consultation (groan) in which the ultra vires bits can be pointed out and deleted.

You have to wonder why these new EHE 'guidelines' are being mooted (but only informally, it seems, as there is no official statement that I can find) when the solution is so obvious. Perhaps it is rather more akin to a briefing paper from a lobby group seeking to influence policy (for whatever reason) than anything with official recognition - unless Faceboook is the latest official channel of communication. :)

We send our support from north of the border where we have seen it and done it several times over and now have a workable framework thanks to sound research and good legal advice. Not that the DfE has any interest in how the neighbouring nation achieved a satisfactory'settlement' which works when due regard is paid to existing guidance.

12:07 am, October 15, 2010  
Blogger Elaine said...

from CME
Elective Home Education
86. Parents of children who are of compulsory school age have a duty to ensure that they receive an efficient, full time education, suitable to their ages, abilities, aptitudes and any special educational needs they may have, either by regular attendance at school or otherwise (section 7 of the Education Act 1996). Some parents decide to provide suitable education for their children by educating them at home.

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.

88. Where parents decide to withdraw their child from school and notify the proprietor [“proprietor”, in relation to a school, means the person or body of persons responsible for the management of the school so that, in relation to a community, foundation or voluntary or community or foundation special school, it means the governing body (s579, Education Act 1996)] in writing that the child is receiving education at home, the proprietor must delete the child from the admissions register unless the child is the subject of a current School Attendance Order (see regulation 8(1)(a) and (d) of the Education (Pupil Registration) (England) Regulations 2006) (‘the Pupil Registration Regulations’) at If a parent on whom a School Attendance Order has been served fails to comply with the requirements of the Order they are guilty of an offence under section 443 of the Education Act 1996, unless they prove that the child is receiving a suitable education otherwise than at school.
89. It is the duty of the proprietor of the school to inform the local authority of the deletion and the reason for it, no later than when the pupil’s name is deleted from the register (regulation 12(3) of the Pupil Registration Regulations 2006). The Pupil Registration Regulations apply to all schools: maintained; independent; Pupil Referral Units; special schools; City Technology Colleges; and Academies.
90. Children with statements of SEN can be educated at home. The duty of the parent remains to provide a suitable education for the child. Where the local authority maintains a statement for the child, the authority is responsible for arranging that the special educational provision specified in the statement is made for the child, unless the child’s parent has made suitable arrangements (section 324(5)(a) of the Education Act 1996). If the parent’s arrangements are suitable, the local authority is relieved of their duty to arrange the provision directly, but it still remains the local authority’s duty to ensure the child’s special educational needs are met.

91. Local authorities should keep a record of children who are known to be educated at home by parents. Parents are not, however, required to inform the local authority if they decide to home educate a child who has not previously attended school.
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.

12:17 am, October 15, 2010  
Blogger Gill said...

Thanks Alison, I appreciate your support. So how did you go about getting the SI changed, NOTB? Was it something you just had to lobby for and you then got, or did you go through a legal procedure instead?

6:28 am, October 15, 2010  
Blogger Alison said...

It came from the minister, prompted by MSP questions, but it was not unexpected. We were prepared for it and independent research was being already being undertaken in anticipation of the consultation.

All is not well, however, as LAs (with some notable exceptions) continue to lobby for more powers without evidence of need (we checked!) One was most put out to find that s30 of the 1980 Act was 'the law', not her council's ultra vires policy. She announced indignantly that they'd make sure that was changed!

You really couldn't make it up, but councils frequently do. They don't need training so much as reprogramming!

The most pressing concern AFAIAC is eCare (ECM/GIRFEC) which will effectively subject everyone to Early Indoctrination 'for their own good'. The Scottish Review is doing a good job of exposing the roots of the Laming Herbison double con, and the reality is slowly beginning to dawn on more families as they are sucked into receiving compulsory services.

Home educators are simply a pesky subset of human capital that is resistant to the state's tick box tyranny and happen to be nearer the beginning of the steamroller's path. A bit like nails that haven't been hammered down properly...

'Every Citizen Monitored' and 'Getting Information Recorded For Every Citizen' is what it's all about and is EU driven. There may be a new UK government but they are heading for the same destination as the last one, albeit by a slightly different route.

10:40 am, October 15, 2010  
Blogger Squiggle said...

Since LA's don't 'have a duty to ensure that they intervene with families to improve the five ambitions as enshrined in the Every Child Matters initiative'.. how are they using it?'s-response-to-the-'Suitable-Education'-consultation,-October-2008

Thanks :-)

11:28 am, October 15, 2010  
Blogger Gill said...

The ECM agenda was 'rolled out' gradually, over a period of years. (Overt mission creep, if you like!) So it's difficult to work out which bits are statutory and which are not, although I have tried at various points in the history of this blog to do that.

Whether LA officers think they 'have a duty to ensure that they intervene with families to improve the five ambitions as enshrined in the Every Child Matters initiative' or not is an arguable point and the answer will vary between cases, and between one year and the next and so on. Obviously I'd rather they didn't!

In other words, I can't answer your question definitively, sorry. If anyone else wants to try, I'm all ears.

11:35 am, October 15, 2010  
Blogger Gill said...

Thanks Alison. So it wasn't something you asked for - but something you made to work in your favour?

Seems like some local authority officers are the same the world over :(

Are you sure it's EU driven? Got anything I can read along those lines? I thought it was, but then when I checked it seemed to come from America. I couldn't find anything in the EO about it - must have missed it.

11:39 am, October 15, 2010  
Blogger Squiggle said...

Thanks for answering, I'm all ears too. :)

12:20 pm, October 15, 2010  
Blogger Gill said...

EO... sorry, I meant EU. Got blummin EO on the mind today!

12:41 pm, October 15, 2010  
Blogger Squiggle said...

Would you point me to an example of when they've been used other than being promoted by service providers?

I'm aware of the Oldham issue re weighing and measuring and the opt out option for schooled children.

I wonder what would happen in schools if parents declined the offer of health checks?

1:29 pm, October 15, 2010  
Blogger Gill said...

I wonder too - it's something that's very much on my mind. If I can think of or find the location of any such specific example, I will point you to it. Let me know if you find one first. :)

5:17 pm, October 15, 2010  
Blogger Gill said...

There's an even better idea here.

6:03 pm, October 28, 2010  

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