Scrutinising the Scrutiny Committee: Bradford

Yesterday, myself and two friends attended a meeting of Bradford Metropolitan District Council's Children's Services Overview and Scrutiny Committee which I was allowed to address on the report about home education submitted by its Children's Services department.

I took with me some paper copies of the AHEd briefing paper which lists the legal problems with the content and handed them around at the meeting. Councillors in attendance had received this earlier by email too.

I quoted the commentary about this report from data protection expert Tim Turner:

"The Supreme Court [The Christian Institute and others v The Lord Advocate (Scotland), 28 July 2016] ruled that a clear data protection condition is required with reference to the Data Protection Act and that human rights proportionality cannot be wished away just because you think you are doing the right thing for children. Bradford Council have to be able to show how they can justify the disclosure from and to HMRC and DWP. If a 'legal obligation' is claimed, they need to be able to say which one i.e. which act, which regulations, which section precisely. There is no mention in the report to councillors of any consultation with stakeholders and data subjects on the sharing of their personal records, never mind any legal impact assessment of these proposals in the light of the recent Supreme Court judgment which set strict parameters for information sharing. They have to be able to show that the disclosure is proportionate and should have done a human rights proportionality assessment. They should also directly inform parents of any data sharing agreements, including evidence of the data conditions they think they have met."

- as well as answering questions about the law and practice of home education. Committee members were frustrated by the reactive position set out by Section 437 of the Education Act, so I explained the reasons for this in conjunction with Section 7 and the duty being on the parent to cause the child to receive the education and not on the local authority. Therefore, the parent has to decide the content based on her relationship with her child and so local authorities must only intervene if there are concerns.

The general sentiment expressed by members of the council and officers present was that this situation was regrettable. One member even later suggested "We should abandon" the "wooly worded' S437 and rely instead on Section 175 which, the meeting seemed to think, gave the local authority the duty to safeguard and promote the welfare of all children in the area including unregistered elective home educated ones. I disputed this interpretation but officers disagreed with my arguments and I was accused by one committee member of "muddying the waters" by my suggestions that the report should comply with the law.

Needless to say, officers and councillors cannot cherry pick the laws they like the best and ignore all others, much as some of these meeting attendees wished to do so. I think many of the problems faced by home educators in their interactions with local authorities are caused by this mistaken attitude to the law.

There was much talk of tracking and safeguarding responsibilities, "There is no legal definition of a suitable education, so how can we know what one is?" and "We don't know what we don't know."

I think some of this consternation may have come from the most recent edition of the Children Missing Education guidance which now stipulates that they should have "..robust policies and procedures in place to enable them to meet their duty in relation to these children, including ensuring that there are effective tracking and enquiry systems in place.." but it also stipulates, in line with the recent Supreme Court judgment in the case of The Christian Institute and others v The Lord Advocate (Scotland) that "Local authorities should not make blanket enquiries", which is exactly what the report in question seems to be describing in its second section 5.4, when it says:

"We do not have a data sharing agreed with DWP but it has now been agreed with HMRC that we can be involved in their second phases, which began in Sheffield. This means they will share details of families who are in recived of child benefit, allowing us to cross reference that data with the information we hold on CYP in the district. The pilot will run from Jan – June 2017 and is likely our intelligence will increase during that pilot."

Members of the meeting, councillors and officers alike, kept reassuring me that this report was "not about me". And yet, as I explained, if this kind of hunting down of lawful home educators goes ahead, my children's education provision will be negatively affected, because it will be a slippery downward slope from that point until we are back at the nightmarish situation recommended by Graham Badman which cannot happen while there are so many unknown elective home educators to provide support to those who are known.

But "It's just like having your bag checked at the airport," said one councillor. "It's not nice, but we have to put up with it so that everyone can be safe."

It's really NOT like having your bag checked at the airport.

I asked, if it's all about illegal schools as this local issue apparently was in the beginning, then why weren't the illegal schools more effectively policed under Section 98 of the Education and Skills Act? "We have no powers under that section," I was told. "The only department who could enforce that is planning and they have no right of access to a building.." But they do.

As in the case of the Serious Case Reviews, the laws are already in place for identified problems to be resolved, but they are not properly used because they are poorly known about, poorly understood or forgotten about and more laws are called for instead. I would contend that this is neither an effective nor an efficient way of delivering a service.

As my subsequent letter to the leader of the council explained, the scrutiny committee failed, in this case, to scrutinise.

Worryingly these points were not picked up by the scrutiny committee, one of whom accused me of "muddying the waters" by raising them. A friend who attended the meeting with me described the committee's processing of the report as "a head-nodding, rubber-stamping exercise" which I feel I should bring to your attention.

What was secured was an agreement to change the wording of the currently misleading information supplied by the local authority to parents on home education and for the new safeguarding hub/team to be noted as "ensuring the promoting and wellbeing of all children", rather than just those who are "not attending any registered provision".

These are small victories when the data protection concerns alone should have led to the report being withdrawn and rewritten, but my understanding is that this meeting was not our last chance to secure this outcome.

Engaging with local authorities in committee meetings is something I can recommend though, despite the challenges they can present. We were made to feel welcome and our views were heard. It is something I will be doing again and again, especially now that so many changes appear to be being pushed through at the local authority level instead of the national one. I think if more committees were scrutinised by the public on a regular basis, council meetings might become more dynamic and involve less 'head-nodding and rubber-stamping'. We are not powerless in the situation, our elected representatives are supposed to be answerable to us and the system of open meetings is designed specifically for this purpose.

I can see it becoming a national pursuit for home educators up and down the country, because I hear that similar data-sharing schemes are also either planned or already underway in the boroughs of Staffordshire, Sheffield, Haringey, Greenwich and Sunderland. HMRC is apparently "unsure about the legal position" of this data sharing, but doing it anyway. And yet according to the momentous victory secured by the Christian Institute and others in the Supreme Court this summer, blanket data sharing is quite definitely unlawful.

Dear members of the Bradford Metropolitan District Council Children's Services Overview and Scrutiny Committee,

For your meeting on Wednesday 12th October you are being asked to scrutinise a report on Elective Home Education by Judith Kirk, the Deputy Director of Children's Services in Bradford. I am a home educator of long standing, having first deregistered a child to home educate in 1993, and my blog on home education politics and law in England has been running for over ten years now. As a lifelong West Yorkshire resident I also feel a personal connection to this report and whatever consequences ensue from it.

My thoughts on the report are as follows:

The explanation of the current legal position is technically correct but requires further context. There is a specific and important reason why official routine monitoring of elective home education is explicitly precluded in the government guidelines for local authorities, which is based on the duty given to parents in Section 7 of the Education Act. I wrote a post on this in 2014 if you want to read more detail, but essentially the key point is this: If parents are to retain the duty to cause receipt by their children of suitable education then parents must be given the leeway to decide what form this education should take. If they have no leeway to decide upon form and content, then logically they cannot be held liable if the education proves to be unsuitable - for example, at the end of a disastrous period of tuition at school followed by poor outcomes for the child on leaving.

Routine official monitoring is not conducive with parental choice in education because in practice what tends to happen is that the provision changes to fit officials' stated requirements and expectations rather than the more effective tailor made, child-focused approach that many of our unmonitored offspring enjoy. An example of this process can be found in this post from 2009, which explains why we campaign so vociferously to resist developments which might exacerbate the problem.

The current approach in Bradford is in breach of the government Guidelines for Local Authorities in that is does seek to routinely monitor, attempting to visit families on an annual basis even where no concerns are apparent. This has been causing unease amongst home educators on a local and a national basis because of the potentially damaging effects of such expensive, unnecessary and ultra vires interventions on our children's education.

The questions asked by the local authority of home educating parents in the appendix 3 far exceed the instruction to "ask the parents for information" set out by Judge Donaldson in the 1980 precedent case of Phillips v Brown. Our concern here is that the questions enable officers to pre-judge an educational provision that they should not be judging at all, unless Section 437 concerns are apparent. It takes some considerable time after deregistration for parents to assess their children and settle into a course of study and this usually has to be a very flexible process involving much trial and error. To be encouraged by officials to state their specific provisional intentions in advance of this happening is again to risk damaging the personal and perfectly tailor made approach that usually develops only without such interventions.

Most home educating parents are not teachers in the school sense, because their parental relationship prevents this form of interaction. The practice of home education usually does not resemble school and nor should it, because it is not a mechanism for the instruction of children en masse. In the absence of apparent and specific concerns of suitability it is not legally open to the scrutiny of local authorities in the way that schools are because homes and family life are necessarily private and parents are not being paid by the state (as in the case of schools) for the tuition of the children of other parents. In the absence of Section 437 concerns they are answerable only to their children and such wider circle of involved neighbours, friends and relatives as they think fit.

This is something of an anomaly in the present culture but such privacy is vital to the often delicate relationship the parent tries to foster between the child's natural curiosity and the things he or she needs to learn. The parent cannot usually dictate to the child what he or she must be curious about and nor can she proceed regardless as happens at school. Instead she must work dynamically with the child to develop and draw out his or her own interests in an educational way. This relies on a relationship of trust between the two which must not be breached if the child's curiosity and willingness to learn is to continue. In my own older children this has resulted in various successful outcomes in which entrepreneurial young adults are contributing to the economy by utilising those very interests we fostered in home education, in the commercial field. They are actively engaged in their work in a very healthy way, which was my aim but which was repeatedly thwarted by unsolicited contact from the local authority that challenged the trusting relationship between parent and child which is such a prerequisite for elective home education provision to succeed.

As home educators we would prefer our engagement with local authorities to be entirely voluntary unless there are concerns about our provision, and we feel the current national regulatory system perfectly reflects this. This is because a voluntary arrangement ideally supplies only the advice we seek in a relaxed setting that enables us to utilise and adopt it properly. A heavy handed more unsolicited and proactive approach from the local authority is more likely to deter us from asking for advice or from taking on board any advice supplied as anything other than an unwelcome and ultra vires intervention. A voluntary relationship (in the absence of Section 437 concerns) is therefore more efficient, economical and substantially more effective than one routinely imposed by the local authority on its own terms.

Home educators do have concerns about the misuse of the term 'home education', particularly in the use of illegal schools and when there are specific welfare concerns, but we are of the firm opinion that current statute and regulations (Section 98 of the Education and Skills Act and Sections 7 and 47 of the Children Act) provide ample measures to resolve these issues without the need for any changes which might potentially damage our children's learning in the way I've explained above.

We challenge the view that 'a child not seen by the authorites is a child at risk of abuse': The NSPCC's report into the 7 Serious Case Reviews that have featured home educated children in the last decade or so demonstrated that all of the children listed were known to their local authorites, but that already existing regulations were not followed correctly. It therefore follows that extra regulations will not make children more safe and what is required is a more thorough knowledge and adherence to current guidelines and statute instead.

We regard the proposal to delay deregistration from school by 20 days as a breach of Section 8 of the statutory Education (Pupil Registration) (England) Regulations 2006 and may seek to take action accordingly if this change is adopted in Bradford or elsewhere.

The tracking down of children who may be missing education by sharing details of families "..who are in recived of child benefit.." [sic] is then, in light of the above, an alarming plan especially as the intention appears to attempt to proactively and routinely monitor the provision of those who are found in this way. The problem of illegal schools should be addressed by proper policing of Section 98 of the Education and Skills Act. Any concerns about our children's welfare should be addressed by appropriate and correct use of sections 7 and 47 of the Children Act and concerns which may arise from individually involved members of the community about our children's educational provision should be dealt with by the informal process set out in the Elective Home Education Guidelines for Local Authorities followed by, if unsuccessful, the formal process set out in Section 437 of the Education Act.