Page last updated 16 October, 2005

Consultations - Section 437

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THE POWERS AND DUTY OF AN LEA IN DETERMINING SUITABLE EDUCATION

- Ian Dowty

The legal relationship between an LEA and parents in its area who have children of compulsory school age is founded on the provisions of s 437 Education Act 1996. If an LEA chooses to consider the educational provision made for such a child, whether that child be at a school or not, it derives its powers to do so from s437(1), yet an understanding of that sub-section, its proper interpretation and application are matters with which home educators, home education organisations, LEAs and their staff and now the DfES grapple alike.

Section 437 provides

"(1) 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.

(8) .... "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."

Section 437(1) establishes consideration of the adequacy of educational provision in two distinct stages, the first of which is a pre-condition for the second to come into operation.

Stage 1 - If it appears to an LEA that a child is not receiving suitable education, then, but only then,
Stage 2 - the LEA shall, by written notice, require a parent to satisfy them that the child is receiving such education.

The section thereby establishes that not all parents should be required to satisfy their LEA of the educational provision made, only those in respect of whom the LEA considers "it appears" that a child "is not receiving suitable education". Stage 1 is thus a "sifting process" and only those to whom the LEA can say there is an appearance of no suitable education will have any obligation to produce evidence and to have to satisfy their LEA, the "satisfaction test".

Logically and legally, different considerations must be in the minds of the LEA when considering the "sifting process", than when considering, in stage 2, whether it is "satisfied". It is important to consider the different emphasis which must be intended to exist between the "sifting process" and the "satisfaction test". The former is phrased in the negative and requires the LEA to consider if it has grounds to say that there is an appearance of no suitable education. Only the "satisfaction test" in stage 2 places a direct requirement on the parents to satisfy the LEA that a suitable education is being received by the child.

The "sifting process" does not require that an LEA be "satisfied" as to the educational provision. At this initial stage the LEA need only and, indeed, must give lesser consideration than being "satisfied". There is no obligation whatsoever on parents, at this stage, to assist the LEA in its consideration of whether there is an appearance of no suitable education, as Donaldson J (as he then was) establishes in Phillips v Brown (Divisional Court 20th June 1980, unreported) though, as he recommends, they might be best advised to do so. The case establishes that, in the absence of any information about a child's education, the LEA has grounds upon which to come to the view that no suitable education is being provided.

Accordingly, when an LEA considers the "sifting process", it should not be looking for, nor requiring, evidence which is capable of satisfying itself as to the position. The LEA should consider the information it has about the child and her parents and then ask itself the question posed by the "sifting test", which is effectively, "Can we say that it appears that there is no suitable education?" Unless that question can be answered in the affirmative, the LEA has no need, duty, nor power to move on to the second stage (the "satisfaction test") to require evidence capable of satisfying itself as to the provision.

If the same considerations were to apply to the "sifting process" as apply to the "satisfaction test", the former process would render the latter test redundant and purely a piece of formalism. It would be nonsensical if the position were to be that the LEA be entitled or required to call, in the "sifting process", for evidence capable of satisfying it that a suitable education was being provided, which, if it were not so satisfied, would then entitle it to call for exactly the same evidence (that is, evidence capable of satisfying it that a suitable education was being provided).

It must be that no evidential burden falls on the parent with regard to the first, sifting, stage, and the LEA is not concerned to be so certain that it is "satisfied" about the educational provision. It is only if the LEA can say that there is an appearance of no suitable education, that the second stage of s437 entitles the LEA to call for evidence capable of satisfying it as to the discharge of the parents' s7 duty.

Lord Donaldson, in Philips v Brown, envisaged that the first stage would be one where the LEA asks the parents for information (hence this is called by some the "informal enquiry" stage.) Parents would be under no duty to provide this information as this stage is not the same as the next, when a formal notice is issued requiring the parent to satisfy the LEA..

This analysis, it is submitted, accords with the precise wording of s437. If Parliament had intended otherwise, it would have been a quite simple and straightforward task to enact a one stage test and to frame it all in the positive, placing a direct burden on parents from the outset.

When the LEA considers the second stage, the "satisfaction test", the LEA must receive such evidence as the parent chooses to submit and then decide whether that evidence satisfies it on the balance of probabilities as to the provision; that is, whether it is more likely than not that a suitable education is being provided. The LEA, in considering their power and duty under s437, is beginning a process which might finally result in a prosecution under s443(1) Education Act 1996. In these criminal proceedings, the parents would be acquitted if they proved to the court that they were discharging their duty under s7. The parents would be able to bring evidence of their own choosing and the burden on them to prove would be on a balance of probabilities only. The same considerations must apply when parents are required to satisfy their LEA.

This is the intellectual property of Ian Dowty (iandowty@aol.com). No reproduction of any part of this article may be made without the express consent of the author.