Legal Advice being Sought by Portsmouth Home Educators

Home Educators hoping to mount legal challenge to their City Council over aggressive actions towards them achieve their funding target within twenty-four hours

What’s been said?

On 21 December Portsmouth Home Education Group launched a fundraiser, seeking support “to start a legal challenge against the aggressive actions of Portsmouth City Council [PCC] towards home educators in Portsmouth, which we believe are beyond their legal powers.”

The problems Portsmouth home educators have experienced with PCC are clearly detailed on the fundraiser page. In summary, since the government’s April 2019 update of the national Guidance on EHE, PCC have been working to their own definition of “suitable education,” which includes components that are not legally required.

In the belief that home educators’ written reports about their provision were presenting a misleading picture to the Council, in recent months PCC started to insist upon visits rather than accepting written reports, again flouting national Guidance. This began as an unwritten policy, but has now been stated in writing after families challenged it through the complaints process.

Furthermore, some families who had previously had their educational provision confirmed as “satisfactory” have subsequently been told this is now unsuitable, though nothing has changed at their end. Parents who questioned the demands for increasing amounts of “evidence” have found themselves being served with Notice to Satisfy Orders, and in some cases ultimately School Attendance Orders.

Citing data obtained by FOI request, the fundraiser page states that in September 2019 two hundred and thirty-four home educated children in Portsmouth were known to PCC. By October 2020, parents of over half of these children had been issued with a s437 ‘Notice to Satisfy’ letter, with twelve SAO’s being served during the same period.

In view of all the above, Portsmouth Home Educators plan to seek legal advice from a suitably experienced QC about the strength of their case. If this is considered sound, they intend to issue PCC with solicitor’s letters telling them that they are starting proceedings for a judicial review.

As far as outcomes are concerned, it is important to note the group’s comments on previous similar situations with other local authorities: “… letters advising of intent to start judicial review proceedings have resulted in the local authorities changing their policies towards home educators and the cases have not needed to progress any further.”

The funding campaign was launched on 21 December and closed the following day, by which time donations totalling £4,730 had already been received from over three hundred supporters. QC fees amounting to £3,500 + VAT constitute the major portion of the expected budget of £4,700.

Ironically, the Policies and Procedures subsection of PCC’s Guidance on EHE web page asserts the Council’s belief that their EHE policy (updated July 2020) “provides clear guidance for parents and reflects the current law and statutory guidance.” Not only that, the page states that the Council “have taken on board input from home educating parents.” It also assures readers that all its officers dealing with EHE “are fully aware of our policy, government guidelines, and the law.”

Why does it matter?

It is vitally important to contest the moving of a boundary marker as soon as it happens. It does not take long for any incursion to become the “new normal”, by which point it becomes harder to challenge.

In this case it is too early to predict the final outcome. If PCC were to refuse to amend their policies despite the receipt of solicitor’s letters, a full judicial review (with all its attendant costs) may have to be considered. If such a course were pursued successfully however, Portsmouth Home Educators correctly state that in that case, “not only would Portsmouth CC need to change their policies but so too would all other councils across the country.”

This leads on to considering the relevance of events in Portsmouth to home educators in other parts of the country. One cannot express it any more clearly that they do:

“Whilst this is currently a local issue, we believe that it should be of concern to all home educators nationwide, because of the precedent it sets for other local authorities, especially as PCC was recently used as an example of good practice in the Local Government Association’s report into ‘Children Missing Education’.” [Emphasis added]

Or to put it another way, what is one council’s ‘good practice’ today will be adopted by others tomorrow.

If any further proof of this is required, consider the tone of another south coast local authority’s recent communications, namely Plymouth City Council. Their web page on EHE was updated on 17 December 2020. The following day Plymouth wrote to the HE families in their area, attaching a copy of their “Guidelines on presenting evidence of home education,” which can be found in Appendix B of their EHE Policy document.

What can I do?

Read the Portsmouth information carefully, and look out for updates about whether it becomes necessary for them to proceed to a higher level of legal challenge.

Keep your eye on your own local council’s policies and practice, noting any deviations or excess. Discuss these with other home educating parents in any local groups you may attend. Seek advice from one of the national HE organisations if you find yourselves coming under undue pressure.