A council was within its rights to ask for examples of work to ensure a child’s home education was suitable, according to a landmark High Court ruling.
A parent launched a judicial review against Portsmouth City Council, saying it had been “unreasonable” in its demands before it issued a school attendance order.
The parent had sent a “detailed” outline of their three children’s home education. But in August last year the council asked to see examples of the children’s work.
The parent argued that this put the “burden of proof” on parents that children were receiving a suitable education, despite “no legal requirements” for them to mark or formally assess work.
But Justice Peter Lane backed the council, saying it was not “necessarily compelled to accept merely assertive statements by the parent.
“Without intending to be prescriptive, what may be needed in such cases could well involve a meeting with the child and/or an examination of the child’s work, whether or not this work has been marked by the parent.”
After the case, council barrister Paul Greatorex said that while “a lot of local authorities have accepted reports historically … it will be interesting to see if this decision leads to a change in practice.”
The decision comes as the number of children withdrawn from school for elective home education (EHE) soared 34 per cent last year.
Analysis by the Association of Directors of Children’s Services estimated that 115,542 pupils were home-educated at some point during the 2020-21 academic year, up from 86,335 in 2019-20.
Mike Stoneham, Portsmouth’s deputy director of education, said there had been a “significant rise” in EHE, with “numerous cases of unsuitable education”.
Parents have to ensure their child receives education that is efficient, full-time and suitable, while local authorities have a duty to identify children who are not receiving a suitable education.
Judge Lane said the parent’s report was “wholly assertive in nature” and contained “nothing by the way of actual work produced by the children”.
He said not teaching the curriculum or marking work did not “absolve” parents from showing their home education was suitable.
A spokesperson for Portsmouth Home Education, a parents’ group, said demands for work were “nonsensical”.
“Learning might be undertaken through conversation or on educational trips. It’s difficult to ‘prove’ that learning happened in those moments and some trust needs to be applied.”
David Wolfe QC, who represented the parent, told Schools Week the case should not be “a green light” for councils to become more prescriptive.
Suzy Horton, Portsmouth’s children’s chief, said the ruling vindicated its approach. She promised to give parents “further opportunity to work with us to demonstrate that a suitable education is taking place”.
Portsmouth Home Education is considering its next legal steps.
The Department for Education issued non-statutory guidance for local authorities and parents on home education in 2019.
Sir Alan Wood, who has led multiple government safeguarding reviews, said guidance should be clarified to make clear that enough information, including examples of progress and work, be provided by parents.
The DfE said it would review guidance, but signalled there were no immediate plans for any amendments.
The government is yet to respond to its own consultation on plans for a national register on home-educated children, despite it closing more than two years ago.
It has also ruled out producing a centralised definition of “suitable” home education, saying it would not be in the sector’s interests.
Correction: On November 30, we changed the line “local authorities had a duty to monitor” to “local authorities have a duty to identify children who are not receiving a suitable education”.