Page last updated 10 November, 2005

OFSTED makes legal errors and judges LEA's performance against faulty guidance:

OFSTED is the governments regulatory standards authority for education. Among other things OFSTED performs inspections upon Local Education Authorities, judging how they perform their duties. On their website OFSTED offers guidance against which they judge LEA's performance. Yet OFSTED has made some basic and fundamental errors in its guidance which will lead LEA's to be judged against faulty legal guidelines with respect to their assessment of home educating families legal duties to provide an education for their children.

The offending article can be read at: OFSTED/Audit Commission guidance, December 2003 v.1a

In particular the guidance for section 5.2 EOTAS expects local education authorities to behave towards home educated children in ways which would not only be be ultra vires but would also be an expense on the public purse and consequently commits public funds unnecessarily.

In 5.2 (1) the Definition states that

"LEAs will be judged by the extent to which they meet statutory requirements, make effective provision for the education of pupils who by various reasons may not for any period receive suitable education unless such provision is made for them."

This judgement of LEAs is said to apply to their function with reference to various groups including children whose parents choose to educate them at home.

Yet children who are educated at home are children, and not pupils according to the legal definition of pupils. A pupil, under the legal definition in the 1996 education act is a child of compulsory educational age (5-16 year olds) who attends an institution of learning. A home educated child is not legally a pupil as a "home" is not an institution. Legally this is an important distinction that OFSTED has totally missed.

The LEA have a duty to provide an education for "pupils" in their geographic area whereas for "children educated at home" the LEA has no such duty to make provision as this duty primarily belongs to parents and home educating parents have not delegated this responsibility to the LEA under section 7 of the 1996 education act.

In section 5.2 (2) of OFSTED's judgment criteria they include the extent to which the LEA has systematic procedures for monitoring the quality and range of education of children whose education is arranged at home by parents.

Yet there is no statutory requirement upon LEA's to monitor the quality and range of education provided. LEAs may make informal inquires of home educating parents in order to help them to decide if there is any appearance of failure of parents duty to provide an education suitable to the child's age, ability aptitude and any special needs (section 7 of the 1996 education act). If there is such an appearance the LEA has a duty to seek further information in order to be satisfied that an efficient education is being provided. If they believe it is not they must consider whether to issue a school attendance order.

In the same table they go on to say that another criteria for judgment is that the LEA should ensure that:

"Children are routinely reintegrated into school. Rates of reintegration are in line with national and similar authorities.

and goes on to discuss meeting criteria. It seems from this that the DfES have minimum target levels of reintegration that include home educated children.

This is extremely worrying in a section that includes home educated children. It seems that OFSTED are judging the success of LEA's in terms of their ability to "reintegrate" children whose parents have chosen to home educate, thus second guessing parents choice and putting LEA's in the difficult position of either "reintegrating" home educated children or failing to meet targets.

There is no duty to monitor any family in their provision of education or any more specific aspect such as the 'quality and range' when informal esquires have been satisfactory.

5.2 (2) of OFSTED's guidance to LEA's imposes upon LEAs a judgment criteria in which they have no statutory requirement and which, if they attempted to fulfill, would be to behave beyond their legal remit. OFSTED is, in this respect, encouraging LEAs act in ways which would be ultra vires.

It cannot be a legal requirement for OFSTED to expect of LEAs what is not within their legal duty.

If you feel that this problem needs addressing then the contact OFSTED here