A Summary of the Law Relating to Home Education in England and Wales |
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School is not Compulsory |
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In England and Wales parents have the primary responsibility for ensuring that their children receive an effective education. Although this responsibility is usually delegated to schools, some parents choose to exercise it directly by providing an education based at home. The following summarises the legal responsibilities of parents and local education authorities in relation to elective home education of children of compulsory school age. CONTENTSParental Responsibilities Responsibility to Ensure a Suitable Education The responsibility of parents is clearly established in section 7 of the Education Act 1996 (previously section 36 of the Education Act 1944): |
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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 |
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Definition of Suitable Education An interpretation of some terminology used in the Education Act 1944 (replaced by the 1996 Act) was provided by an appeal case which was brought at Worcester Crown Court in 1981 (Harrison & Harrison v Stevenson). In this case, the judge defined a ‘suitable education’ as one which was such as 1. to prepare the children for life in modern civilised society,
and The diversity of modern society and styles of education give parents considerable freedom of choice in enabling children to achieve their potential. In the case of R v Secretary of State for Education and Science, ex parte Talmud Torah Machzikei Hadass School Trust (1985) (Times, 12 April 1985) Mr Justice Woolf held that: |
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education is ‘suitable’ if it 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. | |
Examining the meaning of the expression full-time shows the hours spent on teaching in schools are not relevant to home education, which generally takes place on a one-to-one basis, or in small groups, in very different conditions. Provided the child is not a registered pupil at a school, the parent is not required to provide any particular type of education, and is under no obligation to • have premises equipped to any particular standard Enquiries about Educational Provision Sections 437 to 443 of the Education Act 1996 place a duty upon local education authorities to take certain actions if it appears that a child is not being properly educated. |
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| 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. (s 437 (1)) | ||
The LEA’s legal duty is concerned solely with children who appear not to be receiving suitable education. There is no implication that an LEA should be active where it appears that a child is receiving suitable education at home. Nowhere in the act is it stated that regular monitoring of suitable education is a legal responsibility of the LEA. Evidence of Suitable Education Although the legal duty of LEAs is concerned only with children who appear not to be receiving a suitable education, case law (Phillips v Brown, Divisional Court [20 June 1980, unreported] ) has established that an LEA may make informal enquiries of parents who are educating their children at home to establish that a suitable education is being provided. In Phillips v Brown, Lord Donaldson said: |
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| Of course such a request is not the same as a notice under s 37 (1) of the Education Act 1944 [now s 437 (1) of the Education Act 1996] 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 … 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 [now s 7 of the Education Act 1996]. | ||
If an LEA chooses to approach a family and informally ask for information, parents can provide evidence that a child is receiving an efficient and suitable education in a number of ways. Parents might, for example • write a report In their leaflet, "Educating Children at Home, England and Wales" (received June 1998), the DfEE state: |
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| 3. LEAs, however, have no automatic right of access to the parent’s home. Parents may refuse a meeting in the home, if they can offer an alternative way of demonstrating that they are providing a suitable education, for example, through showing examples of work and agreeing to a meeting at another venue. | ||
Occasionally, after examining the evidence, an LEA may have genuine concerns about a child’s education, but the way the evidence is presented should not form the basis for these concerns. Parents need only present evidence that would, on the balance of probabilities, convince a reasonable person that a suitable education was being provided. Disputes Between Parents and LEAs It should be possible to resolve most disputes without recourse to formal statutory procedures. However, where children of compulsory school age are not being educated at school and the LEA has serious doubts about the parents’ educational provision, the following scenario will apply. Initially the LEA may make an informal request for information. If the parents provide such information and the LEA is satisfied that it appears that a suitable education is being provided no further steps should be taken. If, after making informal enquiries, and then giving the family reasonable time and opportunity to explain or improve on their arrangements, it still appears to an LEA that a child is not receiving a suitable education, then it may decide to serve a school attendance order. The LEA should bear in mind, however, that should the case proceed to court the action will fail if the parents can satisfy the court that they are providing a suitable education. The court will accept evidence in a number of forms and will be looking for evidence that would convince a reasonable person on the balance of probabilities (rather than beyond all reasonable doubt) that a suitable education is being provided. At any stage during this process the parents may present evidence that they are now providing a suitable education and apply to have the order revoked. The Education (Pupil Registration) Regulation 9, 1995 sets out the conditions under which a pupil’s name must be removed from the admission register of a school. Under Regulation 9(1)(c), the name of a school-age pupil is to be deleted from the admission register if: |
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| he has ceased to attend the school and the proprietor has received written notification from the parent that the pupil is receiving education otherwise than at school. | ||
The parent does not need to ask permission from the LEA to begin home education and, as long as the parent has notified the governing body of the school, usually through the head teacher, of the intention to home-educate, the parent is under no obligation to inform the LEA of their intention. Under Regulation 13(3), however, the proprietor of the school must report the deletion of the pupil's name from the admission register to the LEA within ten school days. Parents seeking to home educate children registered at a special school, however, must obtain the consent of the LEA to withdraw their child from the school (Education (Pupil Registration) Regulation 9(2), 1995). This regulation ensures that LEAs can maintain continuity in their responsibility for children with special educational needs. The regulations, however, are not intended to be a hindrance to these children being educated at home and any such suggestion would be discriminatory. An increasing number of parents are requesting a more flexible use of schools, and some schools have been happy to accommodate them. This part-time schooling, where children are granted leave of absence to receive part of their education out of school, is a matter for schools rather than the LEA to negotiate with parents. Any ‘school age’ child who goes to school at all must attend regularly, but under s 444(3)(a) of the 1996 Education Act absence ‘with leave’ does not count as irregular attendance. During such absences the child is officially at school, but is effectively being educated off site. The child is therefore in the same position as any registered pupil as regards insurance coverage and also attracts full funding. Such arrangements are at the discretion of the school. (s 444(9)) Home Educating Children with Special Educational Needs The right to home educate a child with special educational needs (SEN) is stated in section 7 of the Education Act 1996: |
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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 |
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However, where a child does have a statement of special educational needs and begins home education, the LEA’s statutory duty to undertake an annual review continues. This review includes assessing whether the statement is still appropriate and it may be possible to alter or even cease to maintain the statement depending on the child’s current circumstances and the provision being made. Should it be necessary for the statement to remain in force, the parents continue to have responsibility for the education provided; however, the LEA has a legal duty to ensure that the child’s needs are met. At times there may be disagreements between parents and the LEA about how a child's special educational needs should be met. There are some situations in which parents can appeal to the independent Special Educational Needs Tribunal. However where this is the case, then the LEA would have a legal duty to inform the parent of their right of appeal. Parents of children with special educational needs do not need to have any special qualifications or training to assume direct responsibility for their children’s education. Furthermore, they do not need to inform the LEA of their intention to home-educate unless the child is registered at a special school when the consent of the LEA is necessary to withdraw the child from the school. |
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