Yet Another Consultation Response

Consultation response by Peter Darby, Home educating parent, former Welsh Correspondent of Action on Home Education, Drama Group Facilitator, Welsh resident.

Executive Summary:  The compulsory licensing proposals are unnecessary, expensive, detrimental to the relationship between Local Authorities and home educators, and predicated on a fundamental misunderstanding of the statutory duties of LA’s.

1. The entire basis of the proposals is that in order to discharge their duties under Section 436a of the Education Act (1996), Local authorities must register and monitor the education of children electively home educated. However, the All Wales Attendance Framework of 2011 makes it explicit that Section 436a duties do not apply to children who are being educated at home.

Put simply, with regards to Section 436a of the Education act, Local Authorities have NO special duties towards home educated children.

The intent of Section 436a was to confirm that Local Authorities have responsibilities to ensure that children not attending school but not being electively home educated are receiving a suitable education from the Local Authority, under Education Other Than At School provision (EOTAS).

If legislation is passed on this basis, it will seriously extend the duties of the LA’s into a realm previously covered by parental responsibility, far beyond that intended by Section 436a.

2. The proposals are not for a registration programme, but a licensing program. Properly formed, a register is the recording of information, and as such does not require permission or approval.

By restricting the ability to be entered onto a register of home educated children to make it by the approval of the Local Authority, this makes the register a licensing scheme, far beyond the intent of a simple register of information.

This is an unnecessary and extreme intrusion of arbitrary authority into parental responsibility.

Furthermore, the suggestion that license to home educate be restricted on the judgement of an education officer that there are welfare concerns confuses education and welfare issues. Educational and general welfare issues are separate issues, and should be addressed by separate LA officers with appropriate training in each.

The introduction of such language into educational legislation seems to hint that the intent is that only the “right sort of people” will be “permitted” to educate their children outside of the school system, a class based assumption that is countered by research showing that it is the most “deprived” families that benefit most from education outside of school.

3. While there is some debate in the Home Education community about the conduct of the Bridgend pilot scheme, the participants, both Local Authority and Home Educator, seemed to agree that where the relationship was based on respect, trust and integrity, LA’s were better able to discharge their (actual) statutory duties and also engage positively with the home educating community.

Where LA’s are demanding, forceful, and inflexible, the relationship suffers, as home educators exercise their right to withdraw co-operation from an LA they perceive as acting in an adversarial role.

Compulsory registration and licensing by LA fiat forces LA’s into an adversarial role. Already I’ve had feedback from LA workers that the proposed legislation will damage what can be a fragile relationship with families who have often felt let down and stigmatised by the education system.

4. In informal talks about the proposed legislation, it has been expressed that compulsory registration will decrease the number of home educating families that are not known to the authorities.

I would ask how.

Proclaiming that “registration is now compulsory” will not automatically make people register. How will the authorities find families that have decided not to register? Will they further make it an offence not to inform the authorities of a known home educating family? Are we to be set as informers on each other?

Would it not be true that the adversarial nature of stating that, if we find you have not registered, we will force your children into school and possibly prosecute you, will make families less likely to engage with the local authority? What have they to lose by staying hidden? What have they to gain by coming forward and saying “yes, been home educating without registration for ten years now, please send my children to school until you’ve come to a decision as to whether I’m fit to teach my own.”

Compulsory registration with legal consequences is not a “find home educators” spell. It’s an invite to go into hiding.

5. Not consulted upon are the intractable problems of implementation.

What are the penalties for non-registration going to be? Fines? Imprisonment? Making something a legal requirement means that legal consequences must be brought to bear for infringement. What would be proportionate for an offence which is only an offence because non-compliance makes the LA’s job more difficult?

Where is the money coming from? Do education departments have inspectors standing idle at the moment? At a time when those very departments are struggling to fulfil their current, actual duties, inventing new ones, with commensurate increased demands on scant resources, seems perverse.

As stated above, how are the LA’s going to find families that have not registered? If they think they can find them, why do they need compulsory registration? If not, how will making registration compulsory help them?

Will families be “permitted” to home educate during the six (or possibly twelve, it varies in the documents) weeks it takes to prepare the report? If they are refused permission after twelve weeks, will they be subject to the legal consequences of home educating without license during those weeks?

6. The introduction of a licensing system fundamentally alters the balance of education law. It makes the responsibility of the parent to provide an education to their children subject to the approval of the local authority. This means that the LA assumes ultimate responsibility for the education of the child, which is a thought that should stop any LA legal representative in their tracks.

Currently, the buck for inadequate education stops with parents. By licensing home educators, that buck gets passed to the LA’s, and in principle this applies to all parents in Wales, including those with children in state schools. The shift from the current “we will step in if there are demonstrable, serious concerns” to “we will permit you to educate if we choose to” is a vast one, and should only be taken if the WAG believes that there is a problem serious enough to expose itself to the greatest increase in state educational liability in British history.

                                      

7. It is perhaps unfortunate that this consultation period ends in the week when the minister has suggested that responsibility for schools could be taken out of Local Authority control. Two LA’s in Wales are already under special measures, with perhaps more to follow. It would not be unfair to say that state provision of education in Wales is in crisis, has been for some years, and is unlikely to resolve that crisis any time soon, whatever the best wishes and efforts from the LA’s, the WAG, the teachers and their unions, etc.

But it does lead one to ask: If the education departments cannot oversee schools to a standard which is acceptable to either Estyn, the Minister or the people of Wales, why are they expected to license the education of those children who have chosen not to participate in their failing system?

8. I have not answered the prepared consultation questions, as they are almost entirely framed by the assumption that compulsory licensing will go ahead and it is only the minor details of where the assessments are to be made and how long home educators will have to wait for the license to be debated. The fact that the whole thing is based on a faulty reading of the education act renders the questions posed as virtually meaningless.