On the legality of routine monitoring

I think it fair to say that there is considerable opposition among some home educators to the idea of regular or routine monitoring by local authorities of the education which they may be providing for their children. Some parents, and we saw one commenting here yesterday, take the view that having told the local authority that they are home educating should be the end of the matter. Yesterday, somebody said here;

'If the LA knows nothing about a child, and have concerns about the child receiving a suitable education, they are entitled to ask. In most cases, the parent saying that the child is home educated should be sufficient for the LA'

This gambit was tried as long ago as 1977. It was not a success. In the summer of that year, Leeds Local Education Authority became aware that a child called Oak Reah was not attending school. They contacted his parents and asked why. The parents told them that they were teaching him themselves and that his education was nobody's business but theirs. Pretty much the line that some parents still advocate, in fact. Leeds did not go away and mind their business. They served a School Attendance Order and prosecuted the parents. Eventually, in 1980, the parents managed to get a Judicial Review. Lord Donaldson ruled that the LEA was quite justified in making enquiries of the parents about their child's education and that while they were entitled to refuse to provide any information, this might result in the LEA issuing an SAO.

Since Phillips V Brown, most parents have cooperated to some extent with their local authority; if only by providing a so-called 'educational philosophy'. Recently, we have seen a number of parents getting annoyed because their local authority has been coming back after a year or two and asking for an update. These parents are adopting the line that this sort of thing amounts to regular monitoring and that local authorities have been specifically told that they have no duty to this, at least according to the 2007 guidelines for local authorities on elective home education. These were issued by the then DCSF and so should be authoritative as far as the law is concerned. . There are two points to bear in mind about this. Section 2.7 of the guidelines says;

'Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis.'

This seems clear enough! They have no duties in relation to routine monitoring. Unfortunately, this is completely vague and quite ambiguous. They may have no duties, in the sense that they don't have to do this, but this does not mean to say that they can't do it. All that this means is that they don't have to. In other words, there is nothing in this to suggest that it would actually run counter to the law if they did choose to monitor the quality of home education on a routine basis. This is the first fly in that particular ointment. Local authorities do lots of things that they don't have a statutory duty to do; their statutory duties are a bare minimum that they must do. Many local authorities do more than this legal minimum and most people are very pleased about it. Few people are pleased to ring up their council with some problem, only to be told, in effect, 'We don't have to do that; it's not part of our statutory duties and so we refuse to help you.' In other words most councils go beyond that bare and irreducible minimum.

The second point to consider is this. The 2007 guidelines do not define what is meant by 'routine monitoring'. Many local authorities have sought their own legal advice on this and the generally accepted view is that the passage of time alone constitutes a change in the suitability of the educational provision being made for a child. Let us take an extreme case and see what this means.

Let us suppose that the local authority become aware of a five year-old child who is being educated at home by his parents. They contact the parents who provide them with chapter and verse of a marvellous, structured and appropriate education. they tell them the name of the reading scheme being used, cuisenaire rods, the whole works. That's great; the local authority are quite satisfied that this child is receiving a suitable education. They do nothing for ten years, perhaps they forget about the child. Now he is fifteen. they knew that his parents were teaching him to read and perform basic arithmetical functions at the age of five, but would that still constitute a suitable education at the age of fifteen? Perhaps not and so they contact the family asking for an update. Nobody could say that this was regular monitoring. Now let us suppose that rather than a ten year gap, the gap is five years. Or three years. Or even one or two years. Does this count as routine monitoring? Without a definition of the term 'routine monitoring', it is impossible to say.

There are signs that a number of local authorities are moving in this direction, that is to say coming back to people who have given them educational philosophies and asking for further information after a year or two. This is because of the points which I have outlined above. I make no comment at all on whether they are right to do so, but it is worth bearing in mind that they have taken legal advice before doing so. Those parents who adopt an intransigent attitude towards such requests based upon what they have read on internet support groups may not be acting their own best interests.