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.