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This is the work of many people, to whom I am very grateful for their time and expertise.It should not be regarded as a substitute for qualified legal advice.It is here merely as a parental guide to the law, regulations and rulings relating to educational issues. |
Item |
Short, relevant quotation or comment |
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Title |
Applic. |
Section |
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Education Act 1996 |
England
Wales |
Definition of a pupil - meaning that a home educated child cannot be a pupil. Thus, any law that relates exclusively to pupils, cannot include home educated children. | |
"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." | |||
Compulsory School educational age | |||
Establishes the principle that education should be in accordance with the wishes of the parents, providing it is not unreasonable or contrary to s7 provisions. NB refers to pupils see s3 therefore does not apply to home educated children. | |||
Refers to penalties for failing to follow regulations. For example the Pupil Registration Regulations. The penalty applies to Head Teachers who refuse to deregister children in reasonable time. | |||
A duty for LA's to make arrangements to identify children who are not receiving a suitable education either in school or otherwise. guidance makes it clear that s436a does not apply to EHE children |
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School Attendance Notices "If it appears to a local 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." |
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Process to Revoke an SAO at parents request | |||
Defence against prosecution for failure to register a child subjected to a SAO | |||
Failure to ensure the school attendance of a registered pupil | |||
Definition of a parent "Any person who has parental responsibility or who has care of the child" as per Children act 1989 |
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Education Act 2002 |
England |
"A Local Authority shall make arrangements to ensuring that the functions conferred on them in their capacity as a local education Local Authority are exercised with a view to safeguarding and promoting the welfare of children." confers no new or specific powers, it refers only to the exercise of existing powers, duties and roles. |
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The Children act 2004 |
England |
Making arrangements to safeguard and promote welfare of children. Does not empower anyone to enter homes without reasonable cause. Applies to LA's NHS Trusts, NHS Foundation Trusts, Police, District authorities, Police Authorities and Police Chief Officers |
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Ascertaining the children's wishes. Does not extend to a child's wishes regarding EHE since EHE is NOT a service provided by the local authority, However home visits are an LA function and so it could be argued that permission should be sought from the child prior to carrying them out. |
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Education Skills Act |
England |
Refers to young people post compulsory school age up to age 18 who have not obtained a level 3 qualification. Note, there is no penalty for failing to attend any education. Either for the 'child' or the adult | |
Pupil registration Regulations England 2016 |
England
2016 |
Deregistration process for schools in England other than special schools | |
Wales
2005 |
Deregistration process for schools in Wales other than special schools | ||
Children Act 1989 |
England and Wales |
Definition of Parental responsibility “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. | |
1Where a local authority — bhave reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare. F2. . . NB this is not a blanket power enabling the LA to insist on access to home educated children. Such an investigation can only be justified if there is evidence, specific to the child, that there is reason to suspect... The lack of evidence of a child's welfare is not of itself sufficient reason to act. |
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Rules relating to children in need of emergency protection orders. | |||
Statutory guidance on Children Missing Education |
England |
CME Guidance | Guidance for LA's on issues relating to children missing education. Does not directly apply to home educating parents since HE children are not missing education. For this to apply there must be direct evidence of a failure to educate, Refusing to have home visits for example, is not of itself a reason to engage CME guidance. |
Human Rights Act |
UK |
The right to freedom of thought, including religion and the right to teach a religious belief. This right is expressly limited to not offending the rights of others or protecting public safety, order health or morals etc. Any ideology must be worthy of respect in a liberal democracy | |
Right to a private family life including that of the child's right of course |
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"No person shall be denied the right to an 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 in conformity with their own religious and philosophical convictions." | |||
SEN related Legislation and Guidance |
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The Children and Families Act “CAFA” 2014 |
England | contains all the relevant sections about children and young people with SEN and disabilities. | |
The Special Educational Needs and Disability Regulations 2014 |
England | The main Regulations underpinning CAFA. Should applied alongside amendments. Together they provide information to support CAFA 2014. | |
The Special Educational Needs Personal Budgets Regulations 2014. |
England | A special set of Regulations dealing with personal budgets and direct payments. The Regulations have been amended since 2014 | |
The Children and Families Act 2014 Transitional and Savings Provisions No.2 Order 2014 |
England | Regulations dealing with transition from Statements and learning difficulty assessments to EHC plans. See the section on Statements and transition for more information | |
Equality Act 2010 |
England | LA duties regarding socio Economic inequalities. | |
The Equality Act 2010 Disability Regulations 2010 |
England | Relating to the application of the Equality Act 2010. Regulations and act have both been amended, these need to be taken into account with application. | |
Aducation Act 2011 |
England | Details the rules relating to exclusions which schools and LA's must follow. | |
Education Act 2002 |
England | Powers relating to the power of a Head Teacher's exclusion of a pupil | |
Education and Inspections Act 2006 |
England | Extends school powers to discipline and make parents responsible for ensuring their child is not in a public space during the first five days of exclusion | |
School Discipline Pupil Exclusions and Reviews England Regulations 2012 SI 2012/1033 |
England | provisions about exclusions, and applies to maintained schools, pupil referral units and Academies | |
Education Provision of Full time Education for Excluded Pupils England Regulations 2012 |
England | The LA's obligations regarding excluded Pupils | |
Exclusion from maintained schools, Academies and pupil referral units in England |
England | Exclusions from Academies, Maintained Schools and PRUs | |
Non statutory Guidance |
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Elective Home Education Guidelines for Local Authorities 2019 |
England |
Guidelines produced for LA's on home education. QC's opinion has been sought and the legal standing of the guidance in this document is contested by other legal authorities and the home education community in general. Seek further advice before applying it. | |
Elective Home Education Guidelines for Parents 2019 |
England |
Guidelines produced for LA's on home education. QC's opinion has been sought and the legal standing of the guidance in this document is contested by other legal authorities and the home education community in general. Seek further advice before applying it. | |
Non statutory guidance to the Pupil registration regulations |
England |
Guidance on how schools and LA's should apply the Pupil Registration Regulations. | |
Behaviour and discipline in schools |
non statutory guidance has no force of law. it is simple guidance. | ||
Drug advice for schools |
Advice for LA's Head teachers, staff and Governing Bodies | ||
Searching, screening and confiscation – |
advice for headteachers, staff and governing bodies | ||
Use of reasonable force |
advice for headteachers, staff and governing bodies | ||
UNCRC Persuasive power only. Not law in UK |
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UNCRC |
UK |
primacy of parents H | |
The right of the child to be heard in accordance with their age and maturity. see children act 2004 part 5 s53 above |
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Right to a private family life | |||
parental rights common to both parents | |||
State Parties recognize the right of the child to education... | |||
Case Law |
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Campbell & Cosans V. The UK 7511/76; 7743 /76 1982 ECHR 1 25 Feb 1982 |
UK |
Establishes the nature of parental authority with respect to choice of education. Supports s7 Education Act 1996 in saying that parents wishes, so far as they are firmly held, worthy of respect in a liberal democracy etc should be followed | |
The Queen on the Application of "G"by his father & litigation friend "R.G" and Westminster City Council 25 November 2003 |
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Section 19 definition of "Otherwise" used in this paragraph, does NOT apply to EHE "22. This meaning of ‘otherwise’ is one that makes sense. If the local education authority has arranged for the provision of education which is suitable for a child and which it is reasonably practicable for the child to enjoy, it would not seem logical that the authority should be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility." | |
R v Gwent County Council Court of Appeal civil div 129 sj 737 10 July 1985 Judge Slade LJ |
England
Wales |
The right to have reasonable time to set up provision and to correct any report should there be errors of fact. "Essentially the duty of an education authority in carrying out that function is, in my opinion, simply to give the applicant a fair and reasonable opportunity to satisfy it as to the matters set out in the Regulation. Prima facie this opportunity will appropriately be given as was done in the present case if the Authority, having first allowed the parents a sufficient time to set in motion their arrangements for home education, " |
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High Court of Justice, Queens bench div. Administrative Court The Strand, 30th January 2003 DM & KC V Essex County Council |
? |
"I have concluded on the totality of the evidence that the Essex programme does purport to impose a responsibility upon parents to participate in the delivery of the programme..." "Everything I have read points to the parents being given the obligation to which I have referred, supported only by the professionals. That is quite permissible, and would meet G's needs if there were parental consent to such a regime. There is not. Accordingly, I conclude that the LEA has failed to fulfil its statutory duty to arrange appropriate provision, and accordingly the tribunal has erred in law." "if an obligation is placed upon the parents to implement procedures, then such an obligation is unlawful." |
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R v Surrey Quarter Sessions Appeals Committee, ex parte Tweedie 1963 |
England
Wales |
"...as a general rule an education authority should not, as a matter of policy, insist on inspection in the home as the only method of satisfying themselves that children were receiving efficient full time education, " | |
1980 Phillips v Brown, Divisional Court 20 June 1980, unreported |
England Wales |
"LA's may "ask the parents for information" regarding what provision the parents are making for the child Of course such a request is not the same as a notice under s 371 of the Education Act 1944 and the parents will be under no duty to comply. However it would be sensible for them to do so. If parents give no information or adopt the course adopted by Mr Phillips of merely stating that they are discharging their duty without giving any details of how they are doing so, the LEA will have to consider and decide whether it "appears" to it that the parents are in breach of s 36. In this context there is no reason why it should necessarily accept the parents' view ‑ opinions differ on what has to be done in discharge of the duty ‑ and if the parents refuse to answer, it could very easily conclude that prima facie the parents were in breach of their duty..." | |
Harrison v Stevenson Worcester Crown Court 1981 |
England
Wales |
The appellants' children are, and have been, allowed to follow their own interests and to investigate subjects largely of their own choice without restriction. They have not, however ‑ so we think ‑ been simply left to their own devices. The overwhelming impression left by the evidence is that the children are always engaged in concentrated and creative activity or study, and that idleness or ineffectiveness would simply not be tolerated. On the evidence, we conclude that, despite the lack of formulation or structure, these children have received and are receiving education capable of informed description as the autonomous method, which can properly be described as systematic and which is certainly "full-time". | |
1985 Regina v Secretary of State for Education and Science Ex parte Talmud Torah Machzikei Hadass School Trust. |
England Wales |
Report Times April 12th 1985 |
Education provided by a school catering for the special provision and characteristics of a minority sect within the community would be suitable within the meaning of sections 71 and 76 of the Education Act 1944 s7 Education act 1996 if it primarily equipped a child for life within the community of which he was a member rather than the way of life in the country as a whole as long as it did not foreclose the child’s option in later years to adopt some other form of life if he wished to do so. |
Cambridgeshire County Council v FL-J2016 UKUT 0225 AAC |
The test for carrying out an EHC needs assessment is “provisional and predictive” – it simply needs to be shown that the child or young person may need support at a level which the school or other setting is unable to provide without an EHC plan. | ||
Buckinghamshire County Council v HW SEN 2013 UKUT 0470 AAC |
When considering whether to assess, the test is whether it may be necessary for support to be provided through an EHC plan; necessary means “somewhere between indispensable and useful or reasonable”. An LA must consider not only the present situation but also take into account future changes such as an upcoming change of school. | ||
MC v Somerset County Council SEN 2015 UKUT 0461 AAC |
An EHC needs assessment may be necessary in order to access enforceable rights – for example, where a school could theoretically do more to support a pupil but is unable or unwilling to do so, and so an EHC plan is necessary to access that support. | ||
Buckinghamshire CC v SJ 2016 UKUT 0254 AAC |
Whether or not a child or young person is capable of obtaining qualifications is not a relevant to deciding whether they should have an EHC plan. The only question is whether an EHC plan is necessary in order for them to obtain the special educational provision they require. | ||
R v The Secretary of State for Education and Science, ex parte E 1992 1 FLR 377 CA |
EHC plans must not be vaguely worded. Additionally, the LA must include special educational provision in Section F for each and every special educational need identified. | ||
EC v North East Lincolnshire LA HS 2015 UKUT 0648 AAC 2016 ELR 109 |
The First-tier Tribunal should not ‘rubber stamp’ an inadequately vague Statement or EHC plan. | ||
L v Clarke and Somerset County Council 1998 ELR 129 |
Where special educational provision is set out in Section F of an EHC plan it must be specific, which will normally involve specifying the number of hours of support. | ||
C v Special Educational Needs Tribunal and London Borough of Greenwich 1999 ELR 5 |
An LA must make decisions about provision when writing an EHC plan, and cannot delegate this responsibility to someone else, such as a school. For example, the EHC plan should not say anything like “Support to be determined by the setting”. | ||
E v Rotherham MBC 2002 ELR 266, 2001 EWHC Admin 432 |
An EHC plan cannot provide for provision to be amended unilaterally by the LA. In this case, the Statement said provision could be changed during the year following a ‘formal discussion’. Any change to a Statement or an EHC plan should follow a proper process e.g. annual review so that the parents have a right of appeal. | ||
R v Cumbria County Council ex parte P 1994 ELR 337 |
Simply referring to a financial banding or an amount of money to describe what special educational provision will be made in Part 3 of an EHC plan is not specific enough to satisfy the law’s requirement. | ||
Staffordshire County Council v JM SEN 2016 UKUT 246 AAC |
Transport is generally not special educational provision and should not usually be included in Section F of the EHC plan. | ||
R v Lancashire County Council ex parte M 1989 2 FLR 279 |
Speech and language therapy can constitute special educational provision. | ||
London Borough of Bromley v SENDIST and Others 1999 EWCA Civ 3038 |
There is a significant degree of overlap between what is educational and what is non-educational therapy. It was inappropriate to seek to impose a rigid demarcation between the two areas. In this case, physiotherapy, occupational and speech therapy were all considered to be educational. | ||
DC & DC v Hertfordshire County Council SEN 2016 UKUT 0379 AAC |
Therapies which train a child or young person to manage anxiety such as cognitive behavioural therapy or mindfulness can be considered special educational provision, but general psychological support to address mental health problems is unlikely to be educational as it does not involve instruction or training. | ||
East Sussex County Council v TW 2016 UKUT 528 |
First-tier Tribunals have the power to order changes to educational provision in an EHC plan. It can add to, amend or remove provision. Health and social care provision which educates or trains is ‘deemed’ to be special educational provision, and the First-tier Tribunal can order it to be moved to Section F. It cannot order changes to none educational health and social care provision. It is also able to make non-binding recommendations about the health and social care parts of the EHC plan. | ||
C v Special Educational Needs Tribunal and London Borough of Greenwich 1999 ELR 5 |
The setting named in Part 4 of a Statement now Section I of an EHC plan must be able to make the special educational provision set out in Part 3 now Section F. | ||
R v Surrey County Council Education Committee ex parte P 1997 ELR 516 |
An LA is not under a duty to provide the best possible education for a child. All that is necissary is that the school or college can meet the child’s special educational needs. | ||
Devon County Council v OH 2016 UKUT 292 |
While a local authority needs to give consideration to helping children and young people with SEN achieve "the best possible outcome in adult life", this does not override other considerations such as appropriateness and cost – they simply have to provide what is ‘reasonably required’. | ||
East Sussex County Council v TW 2016 UKUT 528 |
Section I of an EHC plan must name a place the child or young person will attend. Therefore it cannot be the child or young person’s home. This has implications for those educated otherwise than in school. | ||
Crane v Lancashire County Council 1997 ELR 377 |
An LA must first establish whether the parents’ choice of placement is more expensive than that offered by the authority. If it is, the LA must make the decision as to whether the additional expenditure involved in meeting the parent’s preference is justified. | ||
Essex CC v the SEND Tribunal 2006 EWHC 1105 Admin |
A parent or young person’s preference can only be displaced on the grounds of being ‘incompatible with the efficient use of resources’ where the extra cost is significant or disproportionate. A difference of between £2000-£4000 was not found to be ‘incompatible’. | ||
Hampshire County Council v R & SENDIST 2009 EWHC 626 Admin 2009 ELR 371 |
if a parent or young person requests a particular school is named in a Statement now an EHC plan and the LA argue that it is ‘incompatible with the efficient education of others’, there needs to be a positive finding of incompatibility, not merely evidence of impact on those other children. | ||
NA v London Borough of Barnet SEN 2010 UKUT 180 AAC |
The Upper Tribunal stated that this was a “strong test of incompatibility”, which means the test is a high threshold for the local authority. The local authority needs to have clear evidence of the difference the admission of that particular extra child or young person will make, and which students will be affected by this. | ||
Bury Metropolitan Borough Council v SU 2010 UKUT 406 AAC |
when considering the right of a child with an EHC plan to a placement in a mainstream school, whether or not the school is “suitable” is not a relevant consideration. The only issue to consider is whether attendance at the mainstream school is incompatible with the education of other children and if so, whether that incompatibility cannot be removed by the taking of “reasonable steps”. | ||
ME v London Borough of Southwark 2017 UKUT 73 AAC |
when a parent or young person has asked for a mainstream setting, even if the placement is rejected under s. 39 Children and Families Act 2014 on the grounds that it is unsuitable, or incompatible with the efficient education of others or the efficient use of resources, it may still be named under s. 33 Children and Families Act 2014 the right to mainstream unless the child or young person’s attendance would be incompatible with the efficient education of others and there are no reasonable steps that could be taken to avoid this. | ||
Harrow Council v AM 2013 UKUT 0157 AAC |
Where a parent requests a mainstream school and there is no suitable school available whether inside or outside its area, the LA is under an absolute obligation to make a mainstream school suitable to meet the child’s needs, subject only to the qualification that it must be compatible with the efficient education of other children. | ||
London Borough of Hillingdon v SS and others SEN 2017 UKUT 250 AAC |
This case sets out the law to be applied when a parent or a young person makes a request for an independent placement. | ||
EC v North East Lincolnshire LA HS 2015 UKUT 0648 AAC 2016 ELR 109 |
Where the parents are asking for an independent school, the First-tier Tribunal must first consider whether the parents’ and the LA’s choices can meet need. If they can both meet need, then it must then consider whether the additional expense is justified by any advantages attending that school would have for the child or young person. | ||
Hampshire CC v R & Sendist 2009 EWHC 626 Admin |
If the preferred placement is more expensive this doesn’t necessarily constitute unreasonable public expenditure. The tribunal must carry out a balancing exercise and can look, in addition to the educational benefits, at the wider health and social care benefits for the child to attend the school of the parent’s choice. | ||
Haining v Warrington Borough Council 2014 EWCA Civ 398 CA |
Costs savings to the LA of the child attending the school the parent prefers are also relevant. For example, the saving to the LA of a respite care place which will not be needed if the child goes into a residential school, onsite staff specialism/therapies which would otherwise present a cost to LA/NHS, or direct payments for social care which the parents may now no longer need. | ||
R v Oxfordshire County Council ex parte Pittick 1996 ELR 153 |
If a school is not able to fund the special educational provision in the Statement or EHC plan from its own resources, the obligation to arrange and secure the provision remains with the LA. A dispute about funding between a school and LA should never be the reason why a child or young person does not receive the special educational provision in the EHC plan. | ||
N v North Tyneside Council 2010 EWCA Civ 135 |
Where an EHC plan identifies special educational provision, the LA has an absolute obligation to ensure that it is provided. It is not open to the LA unilaterally to change the provision when they thought it appropriate. | ||
R v London Borough of Harrow ex parte M 1997 ELR 62 |
The LA is responsible for ensuring the educational provision in a Statement now an EHC plan is made, even where the provision in question is actually provided by another body here, the health service. If the health service fails to make the provision the LA must step in. | ||
Buckinghamshire CC v SJ 2016 UKUT 0254 AAC |
Where a young person has the mental capacity to make decisions relating to an appeal, they must bring the appeal themselves, although their parents can help. Where the young person does not have the capacity to do so, an ‘alternative person’ usually their parent should do so. | ||
R v Hereford and Worcester County Council, ex parte P 2 1992 2 FCR 732 |
Where an LA has responsibility for transporting a child or young person with special educational needs to school or college, that transportation must be ‘non-stressful’. | ||
S and another v Dudley Metropolitan Borough Council 2012 EWCA 346 |
This case details the circumstances where it is permissible for an LA to charge parents for transport – which is where the child does not attend their nearest suitable school and to provide transport would be an inefficient use of resources. | ||
Staffordshire County Council v JM SEN 2016 UKUT 246 AAC |
When determining whether free transport is necessary for a young person aged over 19, an LA must exercise their judgment “judiciously and in good faith" – essentially it must make its decision fairly. Even if it does not consider it ‘necessary’, an LA has a discretion to pay some or all of the reasonable costs of transport if no other arrangement has been made. | ||
R v East Sussex County Council, Ex p Tandy / In re T A Minor 1998 2 WLR 884 |
The LA is under an absolute duty to provide suitable education for children who are out of school due to illness, exclusion or otherwise. An LA may not take its own financial constraints into account when assessing what is an appropriate education. | ||
F-T v The Governors of Hampton Dene Primary School SEN 2016 UKUT 0468 AAC |
A school was found to have discriminated against a disabled child by putting her on a part-time timetable without providing any other support for the time she was out of school. | ||
R on the application of Y v Croydon LBC 2015 EWHC 3033 Admin; 2016 E.L.R. 138 |
The parent of a learning-disabled child is unable to get him to attend, despite significant efforts and the LA refuses to either change the named school, or provide other alternative education. The LA is in breach of its s.19 Education Act 1996 duties to provide a suitable education. | ||
Ombudsman Rulings |
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Leicester CC Home visits and SAOs |
England |
Leicester City told to apologise for demanding routine investigation of family, refusing to identify reason for investigation and issuing unwarranted SAO. |
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