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Council has right to see home educated pupils’ work, court finds

But lawyers warn this shouldn't be a 'green light' for local authorities to become more 'prescriptive'

But lawyers warn this shouldn't be a 'green light' for local authorities to become more 'prescriptive'

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The decision comes as the number of children withdrawn from school for elective home education (EHE) soared 34 per cent last year.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”.



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5 Comments

  1. Peter Endersby

    Councils should have the right to know who all the school age children are in their area, know who is teaching them and what they are teaching. Those people teaching children should be able to produce evidence of this work and children’s progress. To keep children safe society needs to be able to see and know they exist. Children also have a right to an education and unfortunately taking a parents word for it is not enough.

  2. The overwhelming message this ruling sends is that parents are not to be trusted with their own children. Having worked in public organisations, I have enough experience of writing reports to know a report is generally formed via statements of assertion. Report-based systems only work if there is trust. Teachers do not normally attach samples of children’s class-based work to their reports to parents so as to prove their assertions – they simply make a statement and parents trust that statement if the relationship between the two is a trusting one. It is difficult to see how the further erosion of trust this ruling creates will improve relationships if local councillors and employees of local authorities do use the Portsmouth ruling to impose their personal opinions onto families in their areas.

    There are clear signs of double standards between professionals and parents in the ruling which stated that parents do not have to do a long list of things but also allowed for local authorities to cherry pick which items they required from that very same list of items. For instance, Portsmouth’s policy clearly stated curriculum requirements despite the governmental guidance clearly stating parents were not required to follow that type of curriculum. This appears to be deemed fine as long as the local authority didn’t require all of things on the ‘not required’ list. Parents are not required to do (option a) but if the local authority chooses to pick (option a) and the parents do not do it, they and their children, will be punished with an SAO. It is kafkaesque, or Orwellian, depending on your preference.

    Importantly, the government’s guidance does not even require local authorities to tell parents which part of the education they find unsuitable so parents can challenge the assertions of the local authority. A local authority can simply say they are unsatisfied. Parents are entirely at the mercy of their local authority’s whim, or rather the interpretation of their home education officer, who is often not a qualified teacher either.

    It is a very problematic situation. The government, through their decision to support local authorities imposing their own particular will in this area and through their 2019 guidance which signposts local authorities to remove children from the homes of those who do not comply with the local authority’s whim, has left home educating parents, and their children, wondering who this postcode lottery will benefit.

    Sorry, less a comment, more a second article but this is an almighty mess, and it certainly hasn’t achieved its goal of putting children first. If anything, it has done the opposite by negatively impacting the well-being of home educated children who now have to be prepared for the possibility that their local authority may attempt to force them to meet a, potentially very biased, stranger who will question them about their learning and force them into schools if they, or their parents, fail to perform well on a short test for which there is no syllabus.

  3. Home educating parent

    I think the LA need to have a duty to identify schools who are not providing a suitable education to their pupils in accordance with the education act. Perhaps then they’ll realise why so many take their children out of the archaic system!

  4. John West

    The known problem with inspectors is their assumption that they ‘know’ better than the inspected. Consequently they asuume superiority and become little interested in what is actually being achieved.