Is the Draft EHE Guidance Fit for Purpose?

Is the Draft EHE Guidance Fit for Purpose?

Recent years have seen plenty of consultations, but this is perhaps one of the most difficult ones HE families have had to engage with. Only a few days left to respond now, before the deadline of 11.59pm on Thursday 18 January.

What’s been said?

The present consultation is far from accessible for the majority of people, be they electively home educating families (and especially their children), local authority councillors and staff, or anyone else.

Neither set of Guidance is clearly written, and it has to be asked whether this is because the authors themselves are confused about multiple issues and therefore trying to stretch legislation so that it covers areas it was not designed for. In years past, the Civil Service produced well-written documents which were precise, no longer than necessary and in good English. But if the DfE has indeed recruited the best products of our schools and universities for the responsibilities of improving the future English education system, it is far from a good advert for those who have been through it.

In support of this criticism we can cite a number of recent examples, beginning with the 2022 Schools Bill. This was so badly drafted that irritated Peers from across the House blocked its progress, even though they were desperate for some of its provisions to succeed, namely Children Not in School [CNiS] registers and the measures about legal alternative education settings having to register with Ofsted.

Several previous Education Ministers criticised the Bill’s use of extensive “Henry VIII powers,” with Lord Agnew expressing frustration at the quality of this rush job. He told the current Minister Baroness Barran:

“My noble friend has been bounced; the Bill Office has just said, ‘You’re the first cab in the rank in this new Session, get on with it,’ and she has not had the time to do the job properly.”

It is not just in the drafting of legislation that the DfE “could do better.” The problem of crumbling concrete in school buildings has been widely reported, though the announcement that several recently built schools are now to be demolished has not been as widely headlined. Last August the Guardian reported, “‘Staggering incompetence’: DfE under fire as new school buildings closed,” whilst as recently as 8 December, Schools Week quoted a building consultant saying that the DfE’s advisers “appear to have been asleep on the job.”

Other matters have landed the Department in expensive hot water too. At the start of last year’s Autumn Term, schools were misinformed about the amount of money they could expect to see in their budgets, with the eventual payments falling far short of what they had been told. When the Education Committee questioned the Minister and the Permanent Secretary, Schools Week headlined their report, “School funding: DfE admits £370m error in calculations.” Maths does not appear to be one of the DfE’s strong points!

The DfE also has a problem with keeping children’s data secure. In November 2022 the Information Commissioner’s Office reported its findings with regard to breaches of data protection under the headline, “Department for Education warned after gambling companies benefit from learning records database.” Commenting on its findings UK Information Commissioner, John Edwards, stated:

“This was a serious breach of the law, and one that would have warranted a £10 million fine in this specific case. I have taken the decision not to issue that fine, as any money paid in fines is returned to government, and so the impact would have been minimal. But that should not detract from how serious the errors we have highlighted were, nor how urgently they needed addressing by the Department for Education.”

Is it any wonder therefore that this Department has shown itself unable to issue EHE guidance which is clear, concise and accurate? Even its grammar checking software seems to have failed, as there are several examples of poor English in the draft guidance. The following faux pas in the Draft Guidance for Parents has been brought to our attention:

“5.4 To fulfil their duties, local authorities have the right to make informal enquiries of you to find out what education is being provided and whether it is suitable. The local authority should make informal enquiries if it becomes aware that you are educating a child at home. To aid a local authority’s judgment as to whether education appears suitable, this could include, for example, requests for face-to-face meetings (with or without your child), phone conversations, examples of work produced, or reports outlining educational process.”

Our correspondent commented:

“The phrase ‘to aid a local authority’s judgment as to whether education appears suitable, this could include, for example, request for face-to-face meetings (with or without your child)’ is not grammatically correct. It is therefore ambiguous and potentially misleading (there is no subject, the sentence starts with ‘to aid’ – and not ‘in order to aid’ – and the word ‘this’ does not refer to anything at all). The true situation is as follows. Whereas the Local Authority has a right to make informal inquiries, it has no right to demand face to face meetings.”

The DfE’s stated hope is that this replacement guidance will enable LA staff to better understand EHE legislation, thereby fostering positive relationships with families exercising their legal responsibilities. But in actual fact, both draft guidance documents are ambiguous and misleading. This is a serious concern, because the 2019 guidance has already left many LAs confused over what powers they do and do not have, and how they can lawfully exercise those they do possess.

Why does it matter?

If this were a well-written novel or even a good report, then the joint total of 77 pages in both sets of guidance would not be too onerous, but that is not the case. On her Ed Yourself website, Fiona Nicholson has asked, “Why Is The Home Education Guidance So Long?” Her theory is “that the purpose of the guidance changed in 2019.” She goes on to explain:

“Instead of advising on education law plus the application of general safeguarding duties in relation to home educated children as in 2007, by 2018-19 for various reasons the guidance on home education needed to showcase all the safeguarding powers LAs had at their disposal, as well as providing an expanded range of things the LA might want to consider in terms of suitable education.”

The HE Byte Team agree, and believe this direction of travel has been clearly signalled by these draft documents. We also concur with Fiona’s observations that the 2019 guidance sought to balance this with a number of reassurances:

“that the most extreme safeguarding powers would only be a last resort; that suitable education in law still meant suitable to age ability aptitude and special needs; that parents did not have to “prove” that their education was suitable; and that the LA’s oversight of home educating families should remain proportionate “and not made more onerous than is required by the parents’ own needs.” [Emphasis Fiona’s]

On the last point she comments elsewhere that in the draft LA Guidance, 6.2 in part reads:

“A parent being able to demonstrate what education is taking place is usually the easiest way to establish whether suitable education is being received. This could include engagement with the child or seeing examples of work.” [Emphasis added]

It appears that the DfE no longer believes it needs to balance the guidance in the way they did five years ago. More importantly, it appears they have also abandoned all pretence of restraint when it comes to using safeguarding as a lever to encourage LAs to invade your family’s privacy. Nowhere is this direction of travel more clearly demonstrated than in 6.2-6.8 of the proposed Guidance for parents and 8.5-8.14 of the Guidance for LAs.

The guidance for parents is particularly threatening, designed it seems to coerce families into compliance – in fact the overriding tone of these two documents is one that parents are not to be trusted, and LA staff should use every means possible to keep them in order. The DfE’s willingness to stretch existing legislation to assist them to do this, even if it goes beyond its original purpose, reaches new heights and will inevitably result in even more ultra vires policies being adopted. With this objective, the DfE state:

“6.2 The local authority may decide that the circumstances justify applying to a court for an education supervision order (ESO) or even a care order made under the Children Act 1989. Both give the local authority the right to have contact with your child. To obtain information in preparation for an application for either type of order, the local authority may initiate an investigation under section 47 of the 1989 Act if it has reasonable cause to suspect that your child is suffering, or is likely to suffer, significant harm. If you do not comply with the investigation under section 47 the local authority may ask a court to grant an order under section 43 of the 1989 Act for a child assessment to be made to gather further information to determine if the significant harm threshold is met. Your local authority’s published policy on EHE may explain the circumstances in which the authority may decide that use of the 1989 Act powers are justified.”

Talk about using a sledgehammer to crack a nut! In fact this is far stronger; it is putting parents in fear of having their children taken away by inflating the dangers of not complying with their LA’s demands. These statements are not even prefaced with a caveat such as “in extreme instances.”

This is a large stride from the previous paragraph which claims that LAs have “a general duty to make arrangements to safeguard and promote the welfare of children in relation to their local authority education functions,[31]” and continues by declaring that this “applies to all children, both those educated at home and those attending school.” It should be noted that footnote 31 refers to s175 of Education Act 2002, which says nothing about children being educated otherwise than in school, but refers extensively to governing bodies and proprietors of various types of institutions. That mismatch apart, it is a massive jump to move from general duties to “safeguard and promote” (a responsible approach to protecting children whilst they are in schools) to threatening parents with court proceedings simply for protecting their own children from unrequested and unmerited intrusion into their lives.

The equivalent sections for LAs are more extensive, and whilst containing some degree of caution, are oppressive from the outset, with 8.5 opening with:

“A failure to provide suitable education can satisfy the threshold requirement contained in s.31 of the Children Act 1989 that the child is suffering or is likely to suffer significant harm. ‘Harm’ can include the impairment of health or development, which means physical, intellectual, emotional, social or behavioural development and the provision of unsuitable education clearly can amount to this.” [Link to s.31]

This approach also amplifies anxiety, because Children’s Services departments these days already operate in a culture of fear. This can be traced back to the tragic death of Peter Connelly in 2007, known for a long time as ‘Baby P’. Since then, many staff have understandably lived in fear of a child dying on their watch. Such fears cannot help but be amplified when the above approach is used with staff who have not been trained in “child protection.” The outcome will inevitably be employees who act in their own best interests rather than those of the children whose education they are being encouraged to examine with a fine-tooth comb. This approach cannot therefore be endorsed.

Further, it seems that in their enthusiasm to impose state-supervised education on all children, the Department has once again demonstrated its own shortcomings. Instead of producing documents which are clear and well-written and maintain a proper balance around the right to a private family life and therefore the best interests of children, this guidance seems to emanate from an anti-parent culture. Whatever the reason for this prejudice against parents in general, it encompasses those with some of the protected characteristics described in the Equality Act 2010 and referenced on page 11 of the Consultation document and in Questions 4 to 7 of the online response form. One may ask why the authors cannot see this.

Set in the context of a Department which is currently failing in multiple ways, this draft guidance can only be described as something of a “dog’s dinner.” It is therefore a danger to the wellbeing of all children going forward; if this is brought into force, then every family will in the not-too-distant future lose the freedom to opt out from state oversight of the values their children are taught. If that happens, the requirement will no longer be for children to receive an education which is suitable to their “age, ability and aptitude, and to any special educational needs they may have.” Instead, the education they receive will only be judged ‘suitable’ based on its conformity to the worldview of those in government at any future time!

What can I do?

If you have not already responded to the consultation, please do so before the deadline on Thursday 18 January. Please refer to our page “Five Ways to Respond to the DfE’s Consultation on Draft Guidance.” If, like many others, you have not been able to get your head round the draft documents, we encourage you to use the first or second suggested approaches.

It is important that the DfE hear from as many HE young people and adults as possible. One way or another, we encourage you to make clear to the Department that this draft guidance is not fit for purpose. If you wanted to emphasise their lack of competence in drafting these documents, you could consider asking in response to question 12 why they need others to point out “any inconsistencies between the two” sets of guidance. If they had done their job properly, they would have eliminated these before publication!

Do what you can over the next few days, but remember that even after the close of this consultation, the fight for our children’s futures will continue, both in regard to guidance and also the drive to legislate for LA registers of HE children. Conservative MP Flick Drummond has a second Private Members Bill awaiting its Second Reading in March, and recently the Shadow Education Minister, Bridget Phillipson, has confirmed Labour’s commitment to establishing such registers in the future.