Section 436A again

Much of the draft guidance currently open to consultation is based on a misinterpretation of Section 436A of the Education Act. Without this misinterpretation, which runs throughout the draft, the pre-emptive checking of provision and invasive, problematic ongoing monitoring could not be encouraged. It is not encouraged in the current Guidelines for Local Authorities, as they do not misinterpret Section 436A in this way.

Section 436A instructs local authorities to find children who are missing education. It is not intended to instruct local authorities to check the provision of all home educators, whose children are plainly not missing education. The statutory guidance it spawns does not instruct officers to check the provision of home educated families under this section, and it never has. In fact, the original version of this guidance included this paragraph on the subject:

"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."

In 2011, Ian Dowty QC was asked to advise Lancashire home educators who were opposing new local policy based on Section 436A being misinterpreted in the same way as this new national draft guidance. His advice included the following:

It seems to me that Lancashire is attempting to put in place an assessment system which is based upon a misinterpretation of s436A and the statutory guidance issued on it so that they create a different regime for a child that they decide is “missing education”. In assessing this, it would appear that Lancashire believes it can insist on using greater powers than the law in fact permits to them.

The rest of his advice is very relevant to the issue we're facing in the current national consultation and is well worth reading, because it explains far better than I did the relationship between sections 436A and 437 of the Education Act.

This misinterpretation of 436A is the most important element of the draft guidance. If we let it go without properly challenging it, we will be set back 12 years politically, to the time before the current guidance was published, and that would only be the start of a series of changes that would lead straight back to where the draft currently wants to go and further. It should therefore be the key focus of our objections to the new draft, because anything else is effectively fiddling around the edges. We do not need to roll over on it; we are in a strong position.