Section 436A again

Much of the draft guidance currently open to consultation is based on a misinterpretation of Section 436A of the Education Act.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

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

"If it becomes known that a child identified as not receiving education is being home educated, this should be recorded on the local authority’s database and no further action should be taken unless there is cause for concern about the child’s safety and welfare."

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who were opposing new local policy based on Section 436A being misinterpreted in the same way as this new national draft guidance.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

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

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

This misinterpretation of 436A is the most important element of the draft guidance.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

Sections 436A and 437

Section 7 of the Education Act, as we all know, tells us it is the:

Duty of parents to secure education of children of compulsory school age.

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 if it looks like we might not be doing this, Section 437 tells local authorities:

(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.

(2) That period shall not be less than 15 days beginning with the day on which the notice is served.

(3) 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.

Section 437 works perfectly well to ensure that our Section 7 duty as parents is carried out while at the same time protecting our Article 8 right to respect for our private and family life, home and correspondence. Crucially, it enables us as parents to decide how Section 7 applies for our own individual children, for each of whom 'suitable' means something different, which is best known to ourselves who live with them and have known them for all of their lives. Section 437 does this very carefully, by ensuring that the local authority's role in 'otherwise' education remains non-intrusive until and unless something makes them think the education might not be suitable.

So how (wail some local authorities) can we know that there is an appearance that education might not look suitable unless we can check everyone's education all of the time?

The answer is that there are many ways in which such an appearance can and does often arise. Police or social work reports being the main two serious sources of concerns. If a family is seriously struggling with living in a reasonable healthy and law abiding way then this would be a good reason to doubt the educational provision and get it checked. Anyone else who is worried about a child's educational provision is at liberty to raise a concern with the local authority who would then approach the family for information about the provision to check that it looked suitable. (Note that this information only needs to be such as would convince a reasonable person - i.e. not an education professional - on the balance of probabilities, because if it went to court it would be a civil and not a criminal "beyond all reasonable doubt" case.)

In 2006, Section 436A was introduced via the Education and Skills Act:

Children not receiving suitable education

436A Duty to make arrangements to identify children not receiving education

(1) A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—

(a) are not registered pupils at a school, and

(b) are not receiving suitable education otherwise than at a school.

(2) In exercising their functions under this section a local education authority must have regard to any guidance given from time to time by the Secretary of State.

(3) In this Chapter, “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.”

At the time, only the heads of the main home education organisations were consulted by government so this section reached the statute books without any of the rest of us being warned or given the chance to protest. The people who were informed were told that Section 436A was not intended to target home education.

Here is Jane Lowe, of the Home Education Advisory Service, giving evidence to the Commons Select Committee on Education on the 5th September 2012:

"The two sets of guidance...

(She means the Children Missing Education guidance which explains Section 436A to local authorities - and which still gives no instruction to check home education provision for suitability - and the Elective Home Education Guidelines for Local Authorities)

... were originally conceived to do two different things. I was involved with discussions when the first draft of that was made, of the Children Missing Education guidance, and the civil servants who we were dealing with assured us that this was not something which was being designed to entrap home educators. They assured us that the whole point of that exercise - giving the statutory guidance on section 436A - was to find children who had completely slipped through the net who were not receiving any education at all. It was not designed to target home educators in any way. And the first version of it actually said explicitly that this guidance does not apply to children who are educated at home."

The draft guidance for local authorities currently being consulted on by the government tries to turn this situation on its head, and use Section 436A to check the provision of every home educated child rather than only the ones about whom concerns have been raised, as Section 437 does.

The problems with this approach are as follows:

1. Section 7 gives parents the job of causing their children to receive suitable education, not local authorities. In order to ensure the suitability of the provision they must cause their children to receive, parents must be the arbiters of it - until and unless there are concerns that would create a Section 437 'appearance'. If local authorities are checking everyone's provision against the elements set out in Section 9.4 of the draft, for example, then parents will no longer be the arbiters of what constitutes 'suitable provision' in normal circumstances and will be unable to comply with their Section 7 duty.
2. The funding required for local authorities to thoroughly check the provision of every home educated child in the country will be both astronomical and unjustified.
3. The Article 8 right to respect for private and family life, home and correspondence will be breached - again, unnecessarily because the absence of specific concerns about the provision indicate that it does not need to be assessed.

Section 436A has been used successfully for its original purpose of locating those children for whom no education provision is being made whatsoever for the past twelve years since it was introduced. Home educating parents, on being asked under that section what provision has been made, have only needed to say: "home education" for this to have been accepted - unless and until specific concerns have been raised to give rise to a Section 437 'appearance' that the provision might not be suitable. This has freed up local authority resources for those families who have been in obvious need of more intervention instead of wasting them on unnecessary blanket checks.

Home educators in England who are affected by this consultation (Wales and Scotland are not) will have to consider their position en masse if this newly proposed misinterpretation of Section 436A taken forward beyond the consultation.