Consultation on DfES guidelines for LEA's on Home education

Para. Number	DfES advice	Comments
1.1	GUIDELINES FOR LOCAL EDUCATION AUTHORITIES ON ELECTIVE HOME EDUCATION Part 1 Introduction Elective home education is where parents or guardians decide to provide education for their children at home instead of sending them to school. It is not home tuition provided by a local education authority or where a local education authority provides education otherwise than at a school.	We would prefer the term “based in the home” to “at home”. LEA personnel, especially those new to the field expect to find education to take place in the home and it can lead to difficulties when they encounter families where this is not the case.  It seemed to us that the document should start with a short statement of who has the responsibility to ensure education, parents and then to amalgamate and shorten the following paragraphs.
1.2	Home-educated children are those who, for a range of reasons, are being educated at home and in the community by parents, guardians, carers or tutors, and are not registered full time at mainstream schools, special schools, Pupil Referral Units (PRUs), colleges, children's homes with education facilities or education facilities provided by independent fostering agencies.	Although we have amalgamated this paragraph with another, if it remains, we would prefer the paragraph to begin “electively home educated children are….” “full-time” is not necessary as, if a child is registered at all, they are not electively home educated – they are full time pupils or flexi schooled pupils. Either way legislation applies to the child as a "pupil". Legally the child is not electively home educated. It is simpler and more efficient only to state that home-educated children are those who are being educated at home and in the community and are not registered at a school or other LEA institution. This sticks more closely to section 7 of the Education Act1996.
1.3	The purpose of these guidelines is to encourage local education authorities (LEAs) and home educating parents to work together to develop trust, mutual respect and a positive relationship that functions in the best educational interests of the child. The guidelines recognise that elective home education is a key aspect of parental choice and therefore aims to encourage good practice in relationships between LEAs and home educators by clearly setting out the legislative position, and by providing advice on the roles and responsibilities of LEAs and parents in relation to children who are educated at home.	We are concerned about the use of the term good practice as it could be used by the LEA to institute ultra vires actions. Good practice should be limited to those authorised by legislation and case law. Guidelines to LEAs are not for the guidance of parents or for encouraging parents to develop a relationship. Parents have no obligation to be in a ‘relationship’ with LEAs and this part should be deleted as outside the remit of government advice to their departments. We have therefore re-drafted this paragraph.
1.4	Reasons for Elective Home Education Parents may opt for home education for various reasons. The reasons should not, in themselves, have a bearing on the LEA's treatment of home-educating families since the LEA's primary interest lies in how well the parents are providing education for their children at home and not their reason for doing so. The following reasons for home-educating are common but by no means exhaustive: " Distance or access to a local school " Religious or cultural beliefs " Philosophical or ideological views " Dissatisfaction with the system " As a short term intervention for a particular reason " A child's unwillingness or inability to go to school	Home educators do not need to give any reasons for wishing to home educate. We feel uncomfortable about the phrase “how well the parents are providing education”. It gives an impression of a much more invasive duty than the law allows for. The question should remain to be whether they are fulfilling their section 7 duties. The wording currently leaves it open to poor interpretation. If the reasons have no bearing on the LEA’s considerations why is it helpful to give examples of reasons?  They should be omitted. We have accordingly re-worded it.
1.5	When a parent offers an account of their dissatisfaction with the public system of education provision, the education authority may wish to use this information as part of its ongoing supervision of specific problems in certain areas.	It is not clear what or who is to be so supervised. It should be made more clear that supervision here does not refer to home educators by substituting “internal review” for “supervision”
2.1	Part 2 The law relating to Elective Home Education The responsibility for a child's education rests with their parents. In England, education is compulsory (for children aged 5 to 16), but schooling is not.
2.2	Article 2 of Protocol 1 of the European Convention on Human Rights states that: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions. This right is enshrined in English law. Section 7 of the Education Act 1996 provides that: The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable- (a) to his age, ability and aptitude, and (b) to any special educational needs he may have, either by regular attendance at school or otherwise. And Section 9 of the Education Act 1996 provides that: In exercising or performing all their respective powers and duties under the Education Acts the Secretary of State local education authorities and the funding authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.	This paragraph seems to indicate that the enshrinement of Art 2 Protocol 1 is in s7 Education Act 1996, which is not technically correct. We have therefore separated the references to these provisions.  S7 should come first as it is the principal provision regarding the duty to educate. Art 2 Protocol 1 is incorporated into our law by the Human Rights Act 1998 and secures the human right of parents to determine their educational philosophy and thereby define what it is they wish to achieve by home educating their child and the parent’s philosophy of education identifies what that might be as distinct from the views and models adopted by the LEA. This is an important, perhaps even a key concept to home education that must be understood clearly by LEA's in their dealings with home educators Section 9 of the Education Act 1996 does not apply to home educated children who are not “pupils”. s.3 Education Act 1996 defines pupils ‘In this Act "pupil" means a person for whom education is being provided at a school,’  s9 thus refers only to parental rights applicable to children registered as pupils and therefore should be removed from the document.
2.3 2.3 con-tinued	Thus, where a child is educated at home the parental responsibility for children's education, coupled with the Local Education Authority's responsibility to make sure that there is adequate provision for education in their areas, brings LEAs and parents into a relationship (as discussed in Part 4 of these guidelines).	This paragraph follows on and draws its conclusion from the erroneous inclusion of the reference to s9 Education Act. The LEA's responsibility to ensure there is adequate provision in their area relates exclusively to the provision of school places for enrolled children. It does not relate to home educated children. The legal premise behind this paragraph is erroneous. LEA's only have a responsibility to make inquires where there is cause for them to believe that no education is taking place. There is no duty placed upon an LEA to make any contact with the family if they are told that that a child is being home educated unless they have reason to believe that the family are either unable or unwilling to meet their section 7 duties. The idea that we have a relationship with the LEA seems to suggest that there is some form of parity of responsibility. There is not. Parents are solely responsible for providing an education for their children in all circumstances. That is the meaning of section 7. The LEA's responsibility relative to home education is to make inquires where there is some reason for believing that no provision is being made.  This derives from s437 Education Act.
2.4	Parental rights and responsibilities Parents may decide to exercise their right to home-educate their child from birth and so the child does not therefore need to be enrolled at school. However, as noted above, this right requires the parents to provide an efficient education suitable to the age, ability and aptitude of the child and home educating may offer distinctive benefits for some children and young people. An "efficient" and "suitable" education is not defined in the Education Act 1996 but "efficient" has been broadly described as an education that "achieves that which it sets out to achieve", and a "suitable" education is one that "primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child's options in later years to adopt some other form of life if he wishes to do so" . It is therefore recognised that there are many approaches to educational provision and what is suitable for one child may not be for another.	This could cause confusion – it may be interpreted that parents who have decided to HE from birth, must provide a suitable education right from birth whereas of course it is only during "compulsory school age" The right referred to is one with which all parents, whether they send their children to school or home educate them have to comply with Using this paragraph LEAs could routinely doubt home-education provision on the basis merely of prejudice. The law gives equal status to educational choices by saying a child must be educated either by regular attendance at school or otherwise. This paragraph implies that home education may not be suitable for some children leading some LEA's to perhaps argue that home educational provision could never be suitable for a particular child. This would not be a legally defensible position.
2.5	LEAs' responsibilities: Where LEAs are aware of home-educated children within their area, we would encourage them, as many do, to provide information for the parents or guardians who have chosen to home-educate (see paragraphs 4.5-4.6). LEAs will also wish to make it clear to parents that if they choose to home-educate, they assume financial responsibility for their child's education, including the cost of public examinations, and that the child must continue to receive suitable education until the end of 'compulsory education' (i.e. the last Friday in June in the academic year in which they reach age 16).	While there is no obligation placed upon LEA's to provide financial assistance to home educators they are still free to do so should they decide to. There is no duty placed upon an LEA to automatically make inquiries of a family who state that they are home educating a child unless they have reason to believe that their provision is unsuitable. LEAs should inform all parents about all of their education options before their child reaches “school age”. DfES guidelines on truancy states that this should be happening. We have reworded the paragraph in a way we believe is more felicitous.
2.6	Under Section 437(1) of the Education Act 1996, LEAs can intervene if they have good reason to believe that parents are not providing a suitable education. This section states that: If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education. Section 437(2) of the Act provides that the period shall not be less than 15 days beginning with the day on which the notice is served.	This paragraph might be interpreted as meaning that LEA's should issue an SAO early in the process. The courts have ruled that informal inquires should first be made and that though there is no legal obligation for a home educating family to cooperate with such an inquiry they would be wise to do so. We recognise that para 2.8 points recognises that an SAO is a last resort but it should also be stated that there are legal rulings regarding this issue. It is our view that this merits a fuller treatment and explanation and so we have provided it at our paragraphs 3.25 – 3.49.  This is a most contentious area and some clear, legally correct guidance to LEAs is needed.
2.7	Section 437(3) of the 1996 Act refers to the serving of School Attendance Orders: If - (a) a parent on whom a notice has been served under subsection (1) fails to satisfy the local education authority, within the period specified in the notice, that the child is receiving suitable education, and (b) in the opinion of the authority it is expedient that the child should attend school, the authority shall serve on the parent an order (referred to in this Act as a "school attendance order"), in such form as may be prescribed, requiring him to cause the child to become a registered pupil at a school named in the order.	We have moved reference to this as set out above.
2.8	The Department sees the taking of the above measures as a last resort after all reasonable avenues have been explored to bring about a resolution of the situation. At any stage following the issue of the Order, parents may present evidence to the LEA (or the court) that they are now providing an appropriate education and apply to have the Order revoked.	We have moved reference to this as set out above.
2.9	LEAs also have a duty under Section 175(1) of the Education Act 2002 to safeguard and promote the welfare of children. This section states: A local education authority shall make arrangements for ensuring that the functions conferred upon them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare of children. This will require a multi-agency approach by ensuring that all agencies working with children, young people and families are aware of the LEA duty to ensure every child of compulsory school age is receiving a suitable education. However, Section 175(1) does not extend LEAs' functions themselves, only that in the course of the functions conferred upon them should consideration be given to safeguarding and promoting children's welfare. Section 175(1) does not, for example, give LEAs powers to enter the homes of, or otherwise see, children undertaking elective home education.	We are concerned about the nature of this paragraph. We would like clarification as to what is meant by the phrase "This will require a multi-agency approach by ensuring that all agencies working with children, young people and families are aware of the LEA duty to ensure every child of compulsory school age is receiving a suitable education." The LEA has no such duty.  The duty solely belongs to parents as set out in s7.  The LEAs only powers and duties lie in the operation of s437 where there is only a duty to act where the LEA have grounds for believing that a child of compulsory educational age is not receiving an education suitable to their age ability and aptitude etc There is equally no duty upon other agencies to ensure that education takes place. This phrase employed by the DfES guidelines appears to empower an LEA to automatically refer a home educating family to social services on the grounds that the family home educate only.  Some LEAs already abuse their powers in this way in order to bring pressure to bear on home educating families, who cannot be reproached on educational grounds, to send their children to school. The sentence needs to be omitted.
3.1	Part 3 Clear policies and procedures All parties involved in home education should be aware of their roles, rights and responsibilities and be clear about the standards expected of them. Policies should be clear, transparent and easily accessible.	It should also be stated that they are fair and legally supportable, that is they do not make ultra vires demands upon families. LEA’s should also be aware that OFSTED have indicated that they require that LEA’s consult with home educators when arriving at policies.
3.2	The Department recommends that each LEA should have a named senior officer with responsibility for the provision of education for children and young people who are unable to attend school because of medical needs (see DfEE circular 0732/2001 Access to Education for Children with Medical Needs). Either the same officer or another who has responsibility for "education otherwise than at school" should have a role to play in the field of elective home education.	We don’t really understand why the DfES would want to recommend those specific staff for responsibilities re EHE Education otherwise than at school which is provided by the LEA should not be confused with elective home education which is the responsibility of the parent/s.
3.3	We also recommend that each LEA should have a written policy statement on home-educated children and their families, and be willing and able to provide guidance for parents and carers who request it. In addition, LEAs should organise training on the law and home education methods for all their Education Officers who have contact with home-educating families in their area.	OFSTED guidelines go further by saying that such local guidelines should be arrived at in consultation with local home educators. The second sentence starts “in addition”, whereas it should say “to that end” because without the understanding of law and methods, guidance, as recommended in the first sentence, is impossible.
3.4	De-registration from School First contact between LEAs and home educators often occurs when parents decide to home educate and approach the school (at which the child is registered) and/or the authority to seek guidance about withdrawing their child from school. It is important that this initial contact is constructive and positive. However, while parents must inform the school in writing of their decision, they are not legally required to inform the LEA about their intention to home educate unless they wish to remove a child from a special school (see section 3.22 onwards).	We don't believe that when parents decide to home Educate a registered child "they often seek guidance from the school/LEA about withdrawal" – the initial contact often occurs when the parent lets the school know they are withdrawing the child and the school may see this as “seeking guidance” because they often erroneously believe it is at their discretion. It is usually the school and LEA that need clearer advice on deregistration.
3.5	De-registration of a child from a school is covered by section 9(1)(c) of the Education (Pupil Registration) Regulations 1995. Parents who wish to home-educate their child who is registered at a maintained school or an independent school must inform the school formally and in writing of their intention to de-register. The school shall delete the child's name from their register upon receipt of written notification from the parents, guardians or legal carer, and make a return (giving the child's name and address) to the LEA within 10 school days of removal. Parents might be encouraged to inform the LEA, however, to enable the LEA to check that the child's name has actually been removed from the school register	This should read “regulation” not “section 9(1)(c). The paragraph is not drafted closely enough to the wording of reg 9(1)(c) and needs tightening up. It is better to use the words “must immediately” rather than “shall” which could be misconstrued as a future tense. The reluctance and failure of schools to deregister children is a substantial problem, even where it is pointed out that to fail to do so is an offence contrary to s434 Education Act 1996. It is not the job of Home educators to ensure that schools inform the LEA of a withdrawal. Home educators have performed their duty when they inform the school. It should be left at that. The DfES could instead say that they recommend that schools send letters of confirmation of de-registration to parents and to include in their policies that parents might expect one. Fuller information needs to be given as to the body to whom the letter must be sent , their need to act upon it and the effect legally of the letter.
	3.6 - 3.7 [spare]
3.8	Withdrawing the child Any procedures for dealing with home-educating parents and children should be fair, clear, consistent and timely, in order to provide a good foundation for the development of trusting relationships. The LEA will wish to follow its own policies and procedures in this regard but the following suggestions may be helpful.	This section should be amalgamated with the section on deregistering which it duplicates. They should also be in accordance with the law and not make ultra vires demands upon families. Schools and LEA’s may not for example add conditions for deregistration such as requiring them to fill in forms or to require permissions or pre deregistration inspections.
3.9	Where the child is enrolled at a school, parents have a responsibility to inform that school in writing that they are withdrawing their child in order to educate them at home. Although parents are not legally obliged to notify the LEA of their intentions, it is recommended that they do so as early as possible, in order to avoid unsettling the child unnecessarily and to ensure that support and advice can be offered as required or as requested. However, authorities should bear in mind that, in these early stages, parents' proposals may not be detailed and they may not yet be in a position to demonstrate all the characteristics of an "efficient and suitable" educational provision (see 3.12 onwards). If this is the case, a reasonable timescale should be agreed for the parents/carers to submit their proposals.	This paragraph largely repeats the previous two. Much of it could be deleted. It is unclear to us why not informing the LEA might unsettle the child. Again informing the LEA is the duty of the school not the family. We would like this to be removed By using the phrase "proposals" it looks like the family may be denied the right to home educate. The term "proposal" implies a future activity that is not yet being undertaken and which may be turned down. None of which is true. We would like the term "proposal" to be either removed from the document or clarified. Also case law has established the legal right for home educators to have a settling in period prior to the LEA informally requesting information regarding a family’s provision. This should be mentioned at this point. LEA's only have a responsibility to make inquires where there is cause for them to believe that no education is taking place. So there is no duty placed upon an LEA to make any contact with the family if they are told that that a child is being home educated unless they have reason to believe that the family are either unable or unwilling to meet their section 7 duties. It may be that this paragraph has drawn on the Scottish Guidance which had to deal with a different position where parents with children at school have to seek permission to withdraw them to home educate and  thus timescales and proposals are involved. This paragraph should be omitted.
3.10	Where parents have notified the LEA or the LEA is otherwise made aware of a child's withdrawal from school with the intention of being home educated, the LEA should acknowledge the receipt of this notification and consider quickly whether there is any existing evidence, either in an authority's own records or from other services or agencies, indicating whether there may be cause for concern over the withdrawal. Previous irregular attendance at school is not of itself a sufficient cause for concern. In many cases, parents and their children have reached a crisis point, for example, with bullying, so advice should be sought from education welfare services where there is any doubt. Specific instances where they may be concerns include: " where a child has been referred to social services or the police for child protection reasons, and the matter is being investigated " where a child is on the child protection register " where the child is the subject of a supervision order " where, probably in a minority of cases, there is a history of condoned absence, unmanaged truancy or other on-going, low level concerns that may lead to child protection procedures. Otherwise, the LEA should assume that efficient educational provision is taking place, which is suitable for the child, unless there is evidence to the contrary. There is no express requirement in the 1996 Act for LEAs to investigate actively whether parents are complying with their duties under Section 7.	This paragraph seems to contradict itself. It begins by saying that truancy itself is not sufficient cause and then says that it is. We are concerned about the inclusion of "low level concerns". This could be used as a criteria for unjustified referral's. We believe that any situation could be used to justify a "low level concern". We do not accept that a low level concern should justify a referral since it is "low level". In particular the fourth bullet point is unacceptable. Condoned absence and unmanaged truancy may well have been a child’s only safe or bearable option for a child suffering school refusal. By saying that the LEA has to cross reference with all other agencies, the name of all home educated children who come to their notice implies that a withdrawal of a child to home educate should be viewed as suspicious. We regard this as a hostile and unjustified position. In the light of the last paragraph of this section how does the DfES justify paragraph 3.4 where there is a discussion about contact between the family and the LEA. It seems that in many cases no contact is necessary. This should be stated in 2.5 (LEA’s responsibilities) before the section describing how to proceed in cases where there is good reason to believe that parents are not providing a suitable education. Again this seems to be based upon the Scottish Guidelines where prior permission has to be given and  the considerations referred to in this paragraph are not applicable in England. Specifically the concerns expressed are repeated in the Child Welfare section and should not be repeated here over-emphasising their impact.  Withdrawal to home educate is not and should not be a reason to invoke child protection concerns. This paragraph is better placed in the section referring to contact with the LEA and an assessment of home education.
3.11	On the other hand, if information exists which may cast doubt on whether an "efficient and suitable education" can be provided, the LEA should seek to gather any relevant information that will assist them in reaching a properly informed judgement. This should include seeking from the parents any further information that they wish to provide explaining how they intend to provide a suitable education for their child(ren) and the parents should be given the opportunity to address any specific concerns that the authority has. The child should also be given the opportunity, but not required, to attend any meeting that may be arranged or express his or her views in some other way.	This again seems to refer to the position in Scotland as it refers to withdrawing a child from school.  It may have a place in the consideration of the position of all home educators but it cannot in England specifically apply to deregistering a child. It better finds a place elsewhere in the guidelines. It should be clearly stated that whether or not the child attends any meeting is a decision for the family to make.
3.12	Providing an "efficient and suitable" full-time education Parents are required to provide an efficient education suitable to the age, ability and aptitude of the child. An "efficient" and "suitable" education is not defined in the Education Act 1996 but "efficient" has been broadly described as an education that "achieves that which it sets out to achieve", and a "suitable" education is one that "primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child's options in later years to adopt some other form of life if he wishes to do so" . This will require home educators to have some kind of philosophy, approach or framework for the education of their child(ren).	This paragraph is also repeated in earlier sections. While home education support groups advocate that families articulate their philosophy or approach there is no legal obligation to do so and LEA's should draw no particular conclusions about a families inability or reluctance to share their approach with them. There can be no requirement to have a philosophy which is what this paragraph suggests.  It is better dealt with in a more general way elsewhere, as we have drafted. While most parents do have a more or less clear idea as to why and how they intend to home educate many are unable to clearly articulate this. Research to be published this summer ("the face of home education in the UK" by Mike Fortune-Wood, Educational heretics press may 2005) clearly shows that for many parents their philosophical approach is very simple, sometimes amounting to a simple statement such as they "will follow the child's interests".
3.13	There is no legal definition of "full-time". Children in school normally spend between 22 and 25 hours working at school each week. This measurement of 'contact time' is not relevant to home education where there is often almost continuous one-to-one contact and where education takes place outside 'normal school hours'. Nevertheless, the type of educational activity can be varied and flexible. It should be borne in mind that home-educating parents are not required to: " teach the National Curriculum " have a timetable " have premises equipped to any particular standard " mark work done by their child " set hours during which education will take place " have premises equipped to any particular standard " have any specific qualifications " cover the same syllabus as any school " make detailed plans in advance " observe school hours, days or terms " give formal lessons " reproduce school type peer group socialisation " match school, age-specific standards. However, LEAs should offer advice and support to parents on these matters if requested.	The suggestion that the LEA should offer advice on a bulleted list of things not required of them might be seen as an insinuation that they hold some relevance as base line. It is perhaps the “however” that presents it in this manner. While we are happy to see a list of things that some LEA’s might have erroneously supposed applied to home educators we would like the last paragraph removed. It should not in any event be necessary to again reinforce the message that LEA’s should be willing to offer advice and support should they be asked for it. The list could be more logically ordered.
3.14	An important point to note is that there are many, equally valid, approaches to educational provision. LEA’s should therefore consider a wide range of information from home educating parents. The way in which parents provide information is entirely up to them. The information may be in the form of specific examples of learning e.g. pictures/paintings/models, diaries of work, projects, assessments, samples of work, books, educational visits etc. Some home education consultants have been privileged to hear children read their own poetry, listen to musical instruments being played and even be an audience for a play.	While we welcome the earlier statement: "The way in which parents provide information is entirely up to them." This paragraph goes on to give several examples all of which include children's work. This should be altered to include examples of parental reports. Or even reports from others, including for example friends, tutors, etc. "Some Ed consultants have been privileged...” Is patronizing and puts undue weight on that method of providing “evidence”. We would like it removed from the document. In view of our expanded section on s437 we have moved this to be incorporated into it.
3.15	Thus, in their consideration of parents' provision of education at home, LEAs may reasonably expect the provision to include the following characteristics: " consistent involvement of parents or other significant carers - it is expected that parents or significant carers would play a substantial role, although not necessarily constantly or actively involved in providing education " presence of a philosophy or ethos (not necessarily a recognised philosophy) - it is anticipated that the parents have thought through their reasons for home educating " showing signs of commitment and enthusiasm, and recognition of the child's needs, attitudes and aspirations " opportunities for the child to be stimulated by their learning experiences " involvement in activities - a broad spectrum of activities to cater for wide varieties of interests appropriate to the child's stage of development " access to resources/materials required to meet the objectives of the parents - such as paper and pens, books and libraries, arts and crafts materials, physical activity, ICT and the opportunity for appropriate interaction with other children and other adults.	The latter part of this paragraph appears to us to be a way of introducing the idea of ‘a broad and balanced curriculum’, a concept which only applies to schools and is not a duty placed upon home educating families. Any attempt at an assessment should first identify what it is that parents are intending to achieve .  Art 2 Protocol 1 establishes the parents’ right to determine this. The last item attempts to prescribe a curriculum and is inappropriate to be included.  Parents are free to determine the education that their children receive having to satisfy only s7 Education Act.  If you state as you do that no curriculum or syllabus can be prescribed then there should be no reference to particular materials that tend to imply “subjects” that need to be included in a curriculum. This appears to be saying that if the child does not (for example) do craft activities it may be grounds for saying the education is unsuitable, which negates the parental right to largely determine what is taught and how it is taught. For example many parents follow an autonomous pedagogy where if a child has no interest in an area of study then it will not be pursued. By trying to establish a check list the DfES effectively prescribe the form of education parents can offer in contradiction of article 8 of the human rights act. This section needs to be moved into the more detailed consideration of s437
3.16	If, on considering the educational provision, one or more of the above characteristics appear to be lacking, LEAs may choose to further investigate whether or not an efficient and suitable education is, in fact, being provided. We recommend that a full written report on the findings should be made and copied to the parents promptly, specifying the grounds for concern and any reasons for concluding that provision is unsuitable. If the authority is not satisfied that efficient education is being provided, and the parents, having been given a reasonable opportunity to improve their provision and report back to the education authority, have not done so, the authority should consider instituting formal attendance procedures in accordance with the provisions of Section 437 of the Education Act 1996.	This section needs to be moved into the more detailed consideration of s437
3.17	Access to the home Parents are not legally required to give the LEA access to their home. They may, for example, choose to meet a LEA representative at a mutually convenient and neutral location instead, or may choose not to meet at all. If the LEA chooses to approach a family and ask for information, parents can provide evidence that a child is receiving an efficient and suitable education in a number of ways. It should be in any form sufficient enough to convince a reasonable person of its appropriateness for the child's age, aptitude and ability. Parents might, for example: " write a report " provide samples of work " invite a LEA advisor/consultant to their home, with or without the child being present " meet a LEA advisor/consultant elsewhere, with or without the child " have the educational provision endorsed by a recognized third party " provide evidence in any other appropriate form.	There is confusion in the guidelines as to the meaning of s437.  In the first sifting stage there is no requirement to produce evidence capable of satisfying the LEA – see our separate article on this and our re-working of the relevant sections of the guidelines. In incorporating it, changes need to be made, however, as you have only given part of the legal criteria for proof in such a case and you have substituted 'appropriateness' for 'suitable' as it is in the 1996 act, therefore it should read, if at all: "sufficient enough to convince a reasonable person on the balance of probability of its suitability for the child's age, aptitude and ability and any special needs" It should also be stated that any form of evidence acceptable to the courts should be acceptable to the LEA since ultimately it is in the courts that families would have to prove their case should the LEA issue an SAO.
3.18	The frequency with which an authority will wish to contact parents to discuss their ongoing home education provision will vary depending on the individual circumstances of each family. It is for the LEA to decide how often to make contact with a family. However, it is recommended that the authority should ordinarily make contact on an annual basis. Contact should normally be made by writing to the family to request an updated report or, if thought necessary, to seek a meeting. A written report should be made after such contact and copied to the family stating whether the education authority has any concerns about the education provision. Where there are concerns about the efficiency or suitability of the education being provided for the child, more frequent contact may be required. Where concerns merit frequent contact, the authority should discuss these concerns with the child's parents, with a view to helping them improve their provision in the best interests of the child.	Since as you correctly acknowledge above that there is no duty to investigate a family unless there are grounds for considering that a family is not providing an education why do you here propose that there should be ongoing investigations? Investigations should only recur when there are grounds for believing that the education a family is offering their child(ren) is unsuitable.( S437 1996 education act). Your guidance is self contradictory and inconsistent. I would suggest that this whole paragraph is omitted up to: “where there are concerns…” from where some editing would be necessary.
3.19	School Attendance Orders Where there is conflicting evidence as to the home-educating characteristics noted in paragraph 3.15 above, the only way the LEA can reasonably clarify these contradictions may be to seek access to the home environment. However, the authority must have demonstrable grounds for concern and must outline those grounds to the parents when requesting access to their home. If the parents refuse to allow access to their home, the authority might reasonably conclude in these circumstances that they have insufficient information to satisfy themselves as to the efficiency and suitability of the parents' education provision, and consequently serve a School Attendance Order (SAO) on the parents under Section 437(3) of the Education Act 1996.	Case law identifies that only in exceptional circumstances may an LEA expect to be able to gain access to a home, the only authority that supports it (ex parte Tweedie) was an extreme case.  This paragraph appears to try to generalise from that in a completely insupportable way. It does not explain what the “contradictions” are and how seeking access to a home might resolve them.  Home based education does not have to take place only in the home and it might not take place there at all (in the formal sense that LEAs too often seek). It also appears to suggest that a refusal to allow access is a sufficient ground for the issuing of an SAO where elsewhere the guidelines are at pains to say that this must be a last resort. LEAs will use this paragraph to force home educators to allow access or to issue unnecessary SAOs. DfES policy up to now has been unequivocally that there is no right to enter a home, why is this changing?
3.20	A SAO continues to be in force for as long as the child is of compulsory school age. If there is a continued failure to register the child, the LEA has the option of referring to Social Services for consideration of care proceedings. In exceptional circumstances, the case may be taken to the Family Proceedings Court instead of the Magistrates Court where an application can be made for an Education Supervision Order (ESO - under Section 36(5)a of the Children Act 1989). Where an ESO is in force with respect to a child, the duties of the child's parents under section 7 and 444 of the Education Act 1996 (duties to secure education of children and to secure regular attendance of registered pupils) are superseded by their duty to comply with any directions in force under the ESO.	If the parent fails to comply with the terms of the SAO in this or any other way, then the next and only legitimate step available to the LEA is to take them to court for breach of the order, where they may defend by demonstrating the provision of efficient and suitable education to the court.  This should be mentioned and not care proceedings.  This will provide comfort to those LEAs who resort to social services when they are unable to fault educational provision. To invoke care proceedings at this point is to completely side step the enforcement provisions prescribed in the very statute that provides for the making of SAOs, and is completely spurious. Neglect of education is not of itself a child welfare issue, it is an educational issue. This step is contrary to the intention of the Children Act 1989 which removed the educational ground from the grounds upon which care orders might be sought.  There has to be more than an educational reason to seek a care order.  The 1989 Act provided a replacement mechanism, the ESO (which is applied for under s36 CA 1989 and not s36(5)a. The reference to s444 is also in error as it does not apply to home educated children, the document it is taken from (at www.dfes.gov.uk/schoolattendance/prosecutions ) is at the point it is mentioned referring to parents who have children registered at a school.
3.21	However, parents' wishes to educate their children at home should be respected and, wherever possible, efforts should be made to resolve issues about provision by a process of ongoing dialogue before Section 437(3) is invoked as a last resort. Only in extreme cases, where the education is clearly not efficient and suited to the age, ability and aptitude of the child, should a SAO be served (see paragraph 2.6 to 2.8 above). More information about School Attendance Orders is contained in Ensuring Regular School Attendance paragraphs 6 to 16 - (available at www.dfes.gov.uk/schoolattendance/prosecutions/index.cfm ).
3.22	Children with Special Educational Needs Parents' right to educate their child(ren) at home applies equally where a child has special educational needs (SEN) (see Section 319 of the Education Act 1996). Some children with special educational needs are statemented but others are not.	This section needs to be referred to earlier in the guidelines and requires considerable redrafting. It mirrors s19 provision for those with SEN. S319 has no application to home education or indeed to parents, it permits LEAs to make arrangements “otherwise than at school” for the education of pupils for whom they are responsible. The affirmation of the right of parents to home educate children with SEN is found in s7. “are statemented” is an unfortunate term and should read “have a statement of special educational needs”
3.23	Where a child has a statement of special educational needs and is home-educated, it remains the LEA's duty to ensure that the child's needs are met. The statement must remain in force and the LEA must ensure that parents can make suitable provision, including provision for the child's SEN.	But the parents do not have to fulfil the provision as stated in the statement. Statements refer only to obligations placed upon the LEA not the family.  Case law establishes that any provision in the statement which purports to place an obligation on parents is null and void. The LEA can only have any responsibility for a HE SEN child, if the parents do not make suitable arrangements.  This on a proper construction can only mean that they fail to discharge their s7 duty This should be clearly stated in the guidance which tends to support the erroneous view that the statement of special educational needs is enforceable against the parents who home educate The LEA can properly cease to maintain the statement if it is no longer necessary as set out in the SEN Code.
3.24	If the parents' arrangements are suitable, the LEA is relieved of its duty to arrange the provision specified in the statement. If, however, the parents' attempt to educate the child at home results in provision that falls short of meeting the child's needs, then the parents are not making 'suitable arrangements' and the LEA could not conclude that they were absolved of their responsibility to arrange the provision in the statement.	This could cause lots of unnecessary problems if the LEA saw following statement as the only way of providing a suitable education. Parents are not obliged in law to provide an education in line with the provisions mentioned in a statement as statements only oblige LEA’s to provide what it is they identify as suitable provision. The parents’ attempt” is an unfortunate but revealing slip. Is this paragraph indicating that, if the child is home educated the LEA would have to make the provision in the statement but at the child’s home?
3.25	Even if the LEA is satisfied, it remains under a duty to maintain the statement and review it annually, following procedures set out in Chapter 9 of the SEN Code of Practice. Where the LEA is satisfied that the child's parents have made suitable arrangements it does not have to name a school in part 4 of the child's statement though it should state the type of school it considers appropriate and go on to state that "parents have made their own arrangements under section 7 of the Education Act 1996".	There is no statutory requirement for the LEA to be “satisfied” that the parent has made suitable arrangements” and none should be imported into these guidelines. The parent does not have to make the special educational provision set out in the statement despite the wording of s324(4A) as Baroness Ashton of Upholland (govt minister in the House of Lords) made clear in her speech on 29th October 2001 when introducing the amended section.
3.26	The statement can also specify any provision that the LEA has agreed to make under section 319 to help parents to provide suitable education for their child at home. If the child to be de-registered is a pupil at a special school, the school must inform the LEA before the child's name can be deleted from the school roll and the LEA will need to consider whether the home education is suitable before amending part 4 of the child's statement.	Parents of non SEN children do not have to obtain consent to deregister before they can home-educate.  Parents of SEN children who have a statement do not have to obtain consent to deregister if they are pupils at a mainstream school.  It would therefore be discriminatory to refuse consent to a child with a statement simply because she is registered at a special school, (especially when she may be there as a result originally of the exercise of parental preference).
3.27	A parent who is educating their child at home may ask the LEA to carry out a statutory assessment of their child's special educational needs and the LEA must consider the request within the same statutory timescales and in the same way as for all other requests. The views of the designated medical officer for SEN should be sought by the LEA where a child with a statement is educated at home because of difficulties related to health needs or a disability. Relevant references in the 1996 Education Act: Section 324 (4) of the Education Act 1996 "the statement [of special educational needs] shall specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement." Section 324(4A) of the Education Act 1996 "does not require the name of a school or institution to be specified [in a child's statement] if the child's parent has made suitable arrangements" Section 324(5)(a) of the Education Act 1996 "Where a local education authority maintain a statement then, unless the child's parent has made suitable arrangements, the authority (i) shall arrange that the special educational provision specified in the statement is made for the child, and (ii) may arrange that any non-educational provision specified in the statement is made for him in such a manner as they consider appropriate."	The legislation quoted is not relevant to an assessment of home education provision for SEN children.  The statement is not addressed to the parents and has no application to them.  The only legislation that affects them is that which affects all home educators, namely s7 and ss437-443 Education Act 1996. The sections quoted will mislead LEAs into the belief that the statement has to be considered and they should therefore be omitted.
	Part 4 Developing relationships 4.1 As noted in the Introduction to these guidelines, the central aim of this document is to assist local education authorities and home educators to build effective relationships that function to safeguard the educational interests of children and young people; relationships that are rooted in mutual understanding, trust and respect. The guidelines outline a number of recommendations that are geared towards the promotion of such relationships.	Section 7 of the 1996 Act clearly identifies that parents are responsible for ensuring that their children are properly educated either at school or otherwise in the home. LEA's should not be encouraged to believe that it is in anyway their remit. The only duty of the LEA with respect to home educators lies in section 437 of the 1996 Education Act
4.2	Whilst there is no current legal obligation on education authorities or home educators to develop such relationships, doing so will often provide parents with access to any support that is available and allow authorities to better understand parents' educational provision and preferences. A positive relationship will also provide a sound basis if the authority is required to investigate assertions from any source that an efficient and suitable education is not being provided. This will be true whether or not parents are required to demonstrate that suitable home-education provision is being made available.	This reads like advice to parents and not the LEA. It should read: “there is no legal obligation on education authorities or home educators to develop such relationships. LEA’s should foster positive relationships with home educating families so as to facilitate their duty to investigate families where they have reason to believe that provision may be unsuitable. LEA’s may encourage home educators to do so by providing support and advice.”
4.3	Acknowledging diversity