Separating the Guidance from the Consultation

What’s been said?

Last week the Department for Education published its revised guidance for EHE in England, and at the same time launched a consultation on introducing a registration scheme. In the busy life of the average HE family, it is probable that few people have found the time to digest either. The objective of this Byte is to help those with little time available for reading yet more documents to appreciate the difference between the two. Even though they were launched at the same time, and are both in response to last year’s consultation, they are in fact two very different sets of documentation.

The first set are the revised departmental guidance on elective home education, though neither document is confined to HE – off-rolling, unregistered schools, madrassahs and flexi-schooling are all referenced. The more important of the guidance documents is the one for local authorities, as it sets the tone for future relationships with LAs. The guidance for parents is a much shorter synopsis of what was stated in the former, written to be accessible to most people. The important thing for the HE community to recognise about the guidance is that it expresses how the DfE believes existing legislation should now be interpreted.

Secondly, there is the consultation which closes on 24 June. This has no direct connection with the guidance, apart from using it as the foundation on which the rationale for a registration scheme is built. There is the consultation document and an on-line response portal. It should be understood that the DfE is not consulting on whether there should be an EHE registration scheme, but about how one should operate. The on-line form has space to say that you don’t think there should be one, but the focus is on how LAs can know the whereabouts of every child “not in school”. The consultation is being carried out ahead of drafting new legislation to make a EHE register mandatory in England. The Welsh government has also signalled its intention to consult on HE this spring, so it may take its lead from this.

Why does it matter?

It is very important that the two sets of documents, and the intention behind them, are not confused.

The political discussion concerning the revised guidance is complete, as far as the DfE is concerned. The only way to challenge this now, it seems, is through some form of legal action. This new guidance is now operative, having replaced the version published in 2007. With it has come a change of emphasis regarding pre-existing legislation. Though this predated the previous guidance, it has subsequently been amended. The relevant acts are referred to in the following paragraphs of the Guidance for LAs:

  • 4.2, The Education Act 1996 – Section 436A;
  • 7.2, The Children Act 2004 – Sections 10 & 11;
  • 7.7, The Children Act 1989 – Part 5.

The change in emphasis is mainly focussed on the safeguarding duties of LAs, which are discussed at length in Section 7, rather than on the education a child is receiving.

The consultation description has been carefully worded; the subject is not “home educated children”, but those “not in school”. The rationale behind this is again founded on the belief that the state has the lead responsibility to safeguard every child. To do this, it believes it must know details of where children are being educated and who is educating them. The DfE has recognised that it cannot achieve this without new legislation, and the new consultation is a step in that direction.

Unlike the guidance, this means that registration will continue to be a political issue. However, the prevailing trend across the parties today appears to be that parents’ wishes count for very little. For example, this week Damien Hinds wrote to the National Association of Head Teachers about RSE lessons, and the Tes headlined its report, “Parents should have no veto over LGBT lessons.” It will be much more difficult to find sympathetic MPs in the coming months than it was when Graham Badman first proposed registration. The DfE states in §1.8 of the consultation document that, given all the necessary preliminaries to the change, a “full roll-out might be two to three years away.” We could therefore see a Bill containing this proposal being drafted later this year.

There is no need to rush responses to the consultation. In coming weeks we shall be commenting on the questions asked. As with the previous consultation, there are features of the on-line form which only become clear as one works through it. There are four main sections to the response form, and one’s answer to the first question in each determines the remainder of the questions for that section. In each instance the first section asks respondents if they agree with a particular proposal. Agreeing takes you to one sequence of questions, disagreeing to another. Looking through all such questions, there does not appear to be significant differences between the two sets, and therefore this selection seems to be a way of presorting the responses. If this is the case, it begs the question whether or not the Department intends to treat all responses with equal weight, or if more importance will be assigned to those which agree with its proposals?

What can I do?

Within the home educating community we need to be discussing the implications of both sets of documents, and how best to respond to the changes – those introduced through the new guidance and those proposed in new legislation. We encourage everyone from all parts of our diverse community to find ways to think through the issues which now face HE families, and how we might protect our children’s rights to a private life away from unmerited state interference.