The consultation is here:
My response identifier was only 25, so the HE troops need to get their loins girded to respond! (I remember this from the last consultation, that many of us did last minute responses to it... let's hope that happens again this time).
Please feel free to take anything useful from my response and use it yourself.
The short version of the response, for those without the patience to read the whole darn document and respond to each question:
"This proposed guidance is discriminatory, internally contradictory and out of step with previous education-related legislation and guidance. It is unpublishable without extensive redrafting and consultation with stakeholders and lawyers".
1 Based on your experience of local authorities implementing this duty since it was introduced in 2007, does the guidance make clear the actions which local authorities are expected to take to help them comply with the duty?
Before making any further comments, I should say that this guidance in its current form is so contradictory and muddled that it is hard to provide a coherent response to it.
It is not at all clear how LAs should comply with the Education Act 1996, s436A, and there seems to be a conflation of their duties under that section with their duties under S437, which adds to the confusion.
My local LA does not seem to be following the 2007 EHE guidelines at all. In this document: (deleted to maintain my incognito haha) we see several mentions of visits, either annually or more frequently, despite there being NO legal basis for this assumption; we also see undue emphasis on potential drawbacks of home education (the level of responsibility, the financial implications, possible social drawbacks).
There is an undercurrent in the draft guidance of suspicion of those who choose to discharge their legal responsibility to educate their children themselves rather than delegating it to a school.
2 Does the guidance make clear the role that implementation of this duty has in the wider programme of work led by local authorities to improve outcomes for children and young people, including promoting their safety and well-being?
As the law stands, it is parents rather than LAs who are responsible for outcomes for children and young people. The safety and well-being of children and young people needs to be carefully disentangled in the guidance from their educational needs.
If LAs wish to take on responsibility for educational outcomes of children and young people, then of course the law can be changed to reflect that. Are they ready, however, to be held legally accountable for failures to provide education suitable to the age, ability and aptitude of every child in the country? The bill will be large.
There is nothing here about supporting and helping EHE families, simply suggestions of how they might be policed.
Why are HEed children being included in these "vulnerable" groups? It is massively offensive not only to home educating families, but also to so many minority communities! It might even border on discriminatory - you will want to have your lawyers check very very carefully before publishing such a list. (and you may recall that the references to traveller/gypsy/roma families were massively toned down before publication of the 2007 EHE guidelines)
3 Does the guidance accurately describe the range of circumstances that put children's safety at risk and puts them at risk of not receiving a suitable education?
Children are not at risk because they are home educated! It's clearly stated in the law (it's even in your draft at one point) that EHE is NOT a welfare issue. And yet, on every other page of the guidance, EHE so clearly IS being regarded as a welfare issue.
If you want to describe the range of circs which puts children at risk of not receiving a fulltime education suitable to their age, ability, aptitude and any SEN they may have (and please, what is this "suitable" which keeps cropping up? Who is defining "suitable"? You might have been able to come up with a more ambiguous term, but you would have had to work hard at it. Sticking to the law would be better), then you need to look at children in ALL educational settings: private schools, state schools, HE and alternative provision. Look for the failing schools, for the children being bullied, for the children whose SEN are not being adequately met. It is pretty offensive to those HEing families who have, with great financial and personal sacrifice, removed their children from state schools in which their safety was so clearly being put at risk and their educational needs so abjectly unmet, to start HEing, and now to discover that, in the eyes of the State, it is their children who are now particularly "vulnerable"!
EHE really does not belong in this list (a list which reflects the prejudices of the drafters) - surely State officials would be better concentrating on the needs of individual vulnerable children rather than resorting to this check box approach, particularly when several of those boxes are disriminatory.
4 Does the guidance show effectively what steps local authorities should take when children are living in difficult circumstances that put them at more risk of not receiving a suitable education?
Firstly, how is being EHEed a "difficult circumstance"?! WHY are home educated children seen to be particularly vulnerable? Is there any reason to suppose that they are more at risk than schooled children of forced marriage or abuse? Why has forced marriage become integrated into this guidance? There are surely already powers in place to prevent forced marriages? What do they have to do with where children are educated? Similarly, Social Services already have powers to investigate suspected abuse and to take action to prevent it further occuring. What has suspected abuse to do with place of education?
Authorities get no clear guidance here about their statutory duties. If they follow this guidance, they will inevitably fall foul of the 2007 EHE guidlines. In fact, if they follow parts of this guidance they will, by definition, be contradicting other parts of it...
There is an invitation here to the LAs to practice high levels of intrusion into the private lives of lawfully EHEing families. Are we expected simply to surrender our right to privacy (European Convention on human rights Article 8) when there is NO reason for the State to believe that anything untoward is occuring in our homes except for the fact that we are educating our children ourselves rather than trusting the State to do it for us?
There is currently no duty or power for LAs to routinely monitor elective home educators. I am aware that many LA officials are unhappy about this. This guidance opens the door to abuses of their current powers - unless the intention is to change the law by an underhand route. But if changing the law is the intention - are LA officials aware of the responsibility they will hold if they become responsible (rather than the courts) for determining a child's educational needs? This would override the 1996 Education Act (section 9) and will inevitably make the State vulnerable to litigation when their assessment of a child's educational needs is mistaken.
5 What are the key challenges local authorities could face to implementing these guidelines effectively?
The fact that this guidance is in complete contradiction to the 2007 EHE guidelines, published after a full consultation process with over 900 responses is one massive problem.
The question of how ContactPoint works with CME, especially given that ContactPoint isn't even in operation yet.
The fact that this guidance apparently overrides the legal rights of parents to educate their children as they see fit, and indeed, overrides the legal responsibility of parents for ensuring that their children receive an education suitable to their age, ability, aptitude and any SEN, at school or otherwise.
6 Does the guidance make clear the duties and powers that local authorities have in relation to home educated children when parents are not providing them with a suitable education?
How can any authority follow both this guidance and the 2007 guidelines, which DID make clear the duties and powers of LAs (much to their chagrin, I understand).
Again, what is a "suitable" education? This guidance really should stick to the legally accepted terminology, however distasteful that is to the LA officials.
The guidance does not summarise clearly the law as it stands
7 Does the guidance contain all the 'signposts' to other relevant guidance; sources of support and advice for local authorities that will enable them to implement this duty effectively?
The guidance is not built on the current legislation and guidance, but is apparently an attempt to massively increase the duties and powers of LAs. The signposts to the 2007 EHE guidelines are particularly laughable since, as I have already mentioned, there is no way that an LA could be in harmony with both.
There are no signposts here to the experts in the area of EHE. The HE support and information organisations, for example.
There are also massive and under-considered data protection issues in this proposed bonanza of data sharing. They are going to need careful advice on that.
8 Beyond the publication of the guidance, what would be the most effective means of communicating the importance of implementing the new duty, and the processes that will help its implementation, to professionals working with children?
LA officials need training in EHE. They are mostly inexperienced and massively ignorant. As an absolute minimum, they should be expected to read the most recent research on UK-based EHE (Paula Rothermel, the recent Alan Thomas book "How Children Learn at Home", for example). They should be introduced to the different educational philosophies and learning styles of home educating families, and it should be absolutely impressed upon them that EHE is legally, educationally, socially and morally the equivalent of school-based education. They should approach their work with humility. Here, the experts and professionals are the families who home educate their children, and those experts and professionals should be treated with the respect they deserve, unless they give good reason to indicate that they are NOT educating their children.
The attention of LA officials should be particularly drawn to the research of Paula Rothermel which shows that educational outcomes for working class children are better at home than at school. There are discriminatory assumptions underlying so much of the proposed guidance which reflects the prejudices of LA staff.
In my opinion, the proposed guidance is completely unworkable in its current form, so that publication of the guidance would be a most ineffective means of communicating the importance of implementing any new duties. (when you say “new duties”, are we to understand that this does indeed constitute a change to the law?)
9 Have you any details of good practice that would be useful to include in the final version of the 'guidance'?
Yes Hey! A yes! Not entirely a negative response then!
LAs could try following the existing Education-related legislation, perhaps including the 2007 CME guidance and the non-statutory 2007 EHE guidelines? Perhaps the final version could summarise the law accurately rather than this hysterical conflating hodge-podge of educational and child-protection issues?
10 Did you find the draft guidance clear, unambiguous and easy to follow?
On the contrary, I found it contradictory, disorganised, ambiguous, discriminatory and bordering on ultra vires.
Truly, this needs to go back to the drawing board, and needs the eagle eye of a legal team before it goes anywhere near publication.
Full consultation with stakeholders is also essential before this goes to publication, and that means proper consultation with the ethnic minority groups, groups of immigrants, Home Education groups, religious minotiries, travellers, gypsy and roma communities and so on, who are seen as particularly "vulnerable". This certainly has not happened yet with the Home Education community.
11 a) We have developed standard data definitions at Appendix 1 of the guidance. These were developed in consultation with several local authorities. Do you agree with these definitions?
Disciminatory against EHEed children. If the quality of education is to be part of the CME remit, then that must apply to all settings - state schools, private schools, EHE and alternative provision.
And where was the consultation with other stakeholders?
11 b) If not, what amendments would you suggest and why?
The CME team needs to have a field in its database which says
"place of education known/unknown".
If unknown, then they make enquiries about the location of the education.
If known, then the duty of the SME team is discharged.
Then the EHE team on the LA look at any children noted on the database as being educated at home, and follow the existing 2007 guidelines in any further action (which may well be none, if they have no reason to suspect that an education is not taking place)