When is a child of concern?

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If a local authority is aware that a child of compulsory school age is not attending a state or registered independent school full-time, and it is unclear how that child’s education is being provided, a local authority should consider the possibility that the child is being educated at home by its parents (possibly in combination with part-time attendance at another setting). In such a case, the local authority’s task is to find out how he or she is being educated and whether that education satisfies legal requirements.

 

Parents have a right to educate their children at home. Section 7 of the Education Act 1996 provides that:

"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."

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This means that the responsibility for children’s education rests with their parents. In England, education is compulsory, but – despite the phrase ‘child of compulsory school age’ quoted above – going to school is not. State-funded education is made available for all children of compulsory school age whose parents request it, and every child should be in school or receiving alternative provision made by the local authority or the child’s school, unless parents themselves can make suitable arrangements. If parents do educate children at home, section 7 means that the child should be getting an efficient, suitable full-time education.

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In the case of some children who are home educated, this means that they have never attended school. More commonly, however, perhaps in around 80-90% of the total in most local authority areas2, children who are being educated at home have attended school at some previous point.

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The current legal framework is not a system for regulating home education per se or forcing parents to educate their children in any particular way. Instead, it is a system for identifying and dealing with children who, for any reason and in any circumstances, are not receiving an efficient suitable full-time education. If a child is not attending school full- time, the law does not assume that child is not being suitably educated. It does require the local authority to enquire what education is being provided and local authorities have these responsibilities for all children of compulsory school age. Local authorities should ensure that their enquiries are timely and effective. Depending on the results of those enquiries, the law may require further action by the local authority and the department believes that this is the case for an increasing number of children. Local authorities must take such action where it is required, within the constraints of the law. Local authorities have the same safeguarding responsibilities for children educated at home as for other children. They should be ready to use safeguarding powers appropriately, when warranted. This flows from the general responsibilities which local authorities have for the well-being of all children living in their area.

 

Because of this, the department recommends that each local authority should, as a minimum:

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• have a written policy statement on elective home education which is clear, transparent and easily accessible by using different formats as necessary, is consistent with the current legal framework and preferably drawn up in consultation with local families who educate children at home so that it can reflect both the challenges and rewards of educating children in this way. It should take into account local circumstances and set out how the authority will seek to engage and communicate with parents;

• set aside the resources necessary to implement its policy effectively and consistently. This is not always easy at a time of constrained resources; but effective implementation in conjunction with work in related areas such as education welfare, children missing education and admissions, can reduce spend in the longer term on families where engagement is difficult;

• consider their organisational structures for dealing with home education and the related areas mentioned above. Although parents who educate their children at home sometimes say that home education should be dealt with in isolation, the reality is that it needs a holistic approach to issues of suitability, attendance, welfare and safeguarding. All of these factors need to be in place to ensure a good education outcome;

• seek to offer guidance to all known home-educating families in their area about their rights and obligations, and also provide advice on good practice and available resources for parents who request it;

• make it clear in all documentation that the local authority sees its role in relation to home education as part of its wider responsibilities, including safeguarding, for all children living in its area;

• regularly review its elective home education policies so that they reflect current law and local circumstances, and are compatible with this guidance document

• provide clear details of their complaints procedure and deal with all complaints in a sensitive and timely manner.

 

Local authorities may often choose to go further than this - for example by operating voluntary registration schemes so that support can be given more readily to those who wish to receive it, and by providing more information on home educated children in their locality. Such schemes can also help authorities discharge the responsibilities which they have under ss. 436A and 437 of the 1996 Act (see below) and the department would encourage those authorities which do not operate voluntary registration to consider doing so. However, registration is currently not a legal obligation for either parents or authorities.

 

Local authorities should bear in mind that when Ofsted carries out inspections of local authorities3, it reports on the way in which local authorities deal with vulnerable children in their areas. Home-educated children are NOT automatically ‘vulnerable’; but some children educated at home do fall into that category, and evidence from many local authorities is that the proportion who do is increasing. Unless a local authority uses all the powers at its disposal at an early stage, it is likely that many of these children will need more drastic – and more expensive – intervention later on.

 

Therefore Ofsted will look at the way each local authority deals with this issue, in particular the ways in which it identifies children who are not receiving suitable education and what steps the local authority takes to deal with that. Local authorities should keep known home educators and local home education support organisations informed of forthcoming Ofsted inspections and any input they can have, as well as outcomes of inspections – although reports on these are available on the Ofsted website. Ofsted has no responsibility for inspecting the provision of home education, only the way local authorities deal with it in the context of their statutory responsibilities.

 

Under s.136 of the Education and Inspections Act 2006.

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Because of this, the department recommends that each local authority should, as a minimum:

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• have a written policy statement on elective home education which is clear, transparent and easily accessible, and preferably drawn up in consultation with local families who educate children at home and setting out how they will seek to engage and communicate with them;

1 See survey report by Association of Directors of Children’s Services (ADCS) at

http://adcs.org.uk/education/article/elective-home-education-survey-2017-summary

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2 Sections 13 and 13A of the Education Act 1996 and s.175 of the Education Act 2002.7

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• seek to offer guidance to all known home-educating families in their area and provide advice and support for parents who request it;

• regularly review their elective home education policies so that they reflect current law and local circumstances, and are compatible with this guidance document;

• provide clear details of their complaints procedure and deal with all complaints in a sensitive and timely manner.

  3.6 Some local authorities go further than this, for example by operating voluntary registration schemes so that support can be given more readily, and more information is available on home educated children in their locality. Such schemes can also help authorities discharge the responsibilities which they have under ss. 436A and 437 of the 1996 Act (see below). However, registration is not a legal obligation for either parents or authorities.

  3.7 Local authorities should bear in mind that when Ofsted carries out inspections of local authorities3, it reports on the way in which local authorities deal with vulnerable children in their areas. Home-educated children are NOT ‘vulnerable’ by definition; but some children educated at home do fall into that category, and therefore Ofsted will look at the way each local authority deals with this issue, in particular the ways in which it identifies children who are not receiving suitable education and what steps the local authority takes to deal with that. Local authorities should keep home educators and home education support organisations informed of Ofsted reviews and any input they will have.

 

3 Under s.136 of the Education and Inspections Act 2006.8

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4. How do local authorities know that a child is being educated at home?

Children who have never attended school

 

4.1 One of the most significant issues for local authorities in maintaining adequate oversight is the initial identification of children who are being educated at home. As already noted, some children never attend school in the first place, and therefore an authority may be unaware of the very existence of a child who is being educated at home. There is no legal duty on parents to inform the local authority that a child is being educated at home. There is no overall database of children who live in particular areas. Local authorities may find census data useful, but it will never be accurate in that it is may be several years old, and may not have been completed accurately in the first place. Local authorities may not in general have open access to data relating to health or benefit claims (as opposed to being able to confirm receipt of benefits for specific families), and in any case there may be some parents who do not claim such benefits. Local authorities are therefore encouraged to use any other data sources available to them to identify children living in their area who are not on the roll of a state school or registered independent school.

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4.2 Identification of children who have never attended school and may be home educated forms a significant element of fulfilling an authority’s statutory duty under s.436A of the Education Act 1996 - to make arrangements to enable the authority to establish, so far as it is possible to do so, the identities of children in its area who are not receiving a suitable education. The duty applies in relation to children of compulsory school age who are not on a school roll, and who are not receiving a suitable education otherwise than at school (for example, at home, or in alternative provision). Until a local authority is satisfied that a home-educated child is receiving a suitable full-time education, then a child being educated at home is potentially in scope of this duty. The department’s children missing education statutory guidance for local authorities applies.

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4.3 It should be noted that the caveat in s.436A ‘so far as it is possible to do so’ should not be interpreted as meaning ‘so far as the authority finds it convenient or practical to do so’. It means what it says, and the authority should do whatever is actually possible. If the department receives a complaint that a local authority is not doing enough to meet its duty under s.436A, it will consider whether there is sufficient basis for making a direction under s.496 or s.497 of the Education Act 1996.

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4.4 In particular, local authorities should explore the scope for using agreements with health authorities, general practitioners and other agencies, to increase their knowledge of children who are not attending school. Some local authorities already actively encourage referrals from doctors and hospitals of children whom there is reason to think may be home educated. Under s.10 of the Children Act 2004 local authorities should have arrangements in place to promote co-operation between the authority and its partners who deal with children, and under section 11, arrangements should be in place to ensure that functions are discharged with regard to the need to safeguard and promote the welfare of children. These arrangements should include information sharing protocols and it is possible for these to allow sharing of data on children who appear to be home educated and about whom there is a concern as to the adequacy of that education. The Data Protection Act 1998 allows for such sharing of data in principle but local authorities and their partners will of course need to ensure that their particular arrangements are compliant.

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Children who have attended school

4.5 In some respects, fulfilling the s.436A duty in relation to children who may be home educated is easier for local authorities when a child has attended a school, but it is not necessarily the case that such children will automatically become known to the local authority.

 

4.6 Although most local authorities encourage parents who withdraw a child from school for home education to notify the school

and/or the authority, (and DfE guidance to parents also encourages this) there is no legal obligation on parents to provide such notification, either in writing or otherwise, or indeed to provide any reason for withdrawal. The only exceptions to this are (a) that a child may not be removed from the roll of a special school without the consent of the local authority if enrolled there under arrangements made by the local authority4, and (b) in cases where a child is enrolled at a school in accordance with a school attendance order, when the authority must revoke the order (or amend it to replace the school with a different school) before the child can be removed from the roll5.

 

4.7 It was formerly the case that schools were obliged by the Education (Pupil Registration) (England) Regulations 2006 to notify the local authority that a child had been withdrawn for home education only when the school had been notified of this in writing by the parents. From September 2016 the Regulations were amended so that the local authority must be informed of all deletions from the admission register when this takes place at a non-standard transition time. Local authorities may also require schools (including independent schools) to provide information, under arrangements set out by the authority concerned, about children who leave at standard transition times. Local authorities are entitled to ask schools whether there is any further information available which would suggest that a child may be now home educated, but a school may genuinely not know the reason for withdrawal. A state-funded school must respond reasonably to any request from the local authority for any information it has about the reasons for withdrawal.

 

4.8 As set out in the statutory guidance on Children Missing Education, referenced above, local authorities should also be working together to identify children, and share data about those who have left a school in one local authority area but have moved to

4 Regulation 8(2), Education (Pupil Registration) (England) Regulations 2006. A question on the future of this provision is included in the Call for Evidence issued at the same time as this draft guidance.

 

5 Regulation 8(1)(a) of the same regulations

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4.9 These changes mean that a local authority should be more readily able to identify children in its area who are being home educated, or may be home educated, and it should be maintaining data on all such children, whether or not it also operates a voluntary registration scheme for home educating families.