So Far As It Is Possible To Do So

So Far As It Is Possible To Do So

This article has been written in response to the 2023 consultation on proposed revised guidance on elective home education in England. However it also has relevance for families in Wales, where the government published new guidance earlier this year including similar unjustifiable attempts to extend state supervision of HE children.

What’s been said?

When the Welsh Government published its long-awaited statutory EHE guidance for local authorities in May, the significant changes were easily spotted. When the English Department for Education published draft revised EHE guidance and launched a consultation on it in October, many were pleasantly surprised by the change in tone from the current version. However, as time has passed people are realising that key changes concealed beneath the softer language are highly dangerous. There are minor differences in approach between the two governments, but the shift in definitions are similar in impact, implying that the state has every right to supervise the private lives of citizens, be they children or adults! (See ‘What can I do?’ below, for where to find the current consultation documents and a list of helpful articles.)

Both sets of guidance lean heavily on s.436A of the Education Act 1996, which was inserted into the original by s.4 of the Education and Inspections Act 2006. This reads in full:

436A Duty to make arrangements to identify children not receiving education
(1) A local authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but –
(a) are not registered pupils at a school, and
(b) are not receiving suitable education otherwise than at a school.
(2) In exercising their functions under this section a local authority must have regard to any guidance given from time to time by the Secretary of State.
(3) In this Chapter, “suitable education”, in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have (in the case of a local authority in England) or suitable to the child’s age, ability and aptitude and to any additional learning needs the child may have (in the case of a local authority in Wales)

Whilst this article focuses on the first clause, the other two are important because (2) explains the role of guidance, and (3) provides a definition of “suitable education”.

It is very important to note that clause 1 only authorises LAs to “establish the identities of children” who meet both of the criteria specified in sub-clauses a) & b). Children who are receiving a suitable education outside of school are only covered by a). This is an important point to grasp. It is also important to recognise that in Wales and England, both governments are interpreting this clause to mean that they must carry out annual checks on children who are receiving suitable education otherwise than at a school! (Please note this is not a party political matter, as the current Westminster government is in the hands of the Conservatives, whilst in Wales it is Labour which holds power.)

Ironically, s436A does not require a LA to establish the identities of all children in their area of compulsory school age who are not receiving suitable education. Children who are registered at a school are excluded because it is deemed that if they are not being provided with a suitable education in school, the shortfall will be recognised by “the system” and rectified. Unfortunately, many recent home educators have had to opt out of the school system because it was clearly not providing a suitable education for one or more of their children. But the astonishing reality is that those in the system seem possessed of a collective institutional blind spot when schools are failing children.

There is one further point to be made about s436A. Most people assume that words contained in brackets are the least relevant, but that is not the case with legislation. In this instance the phrase “so far as it is possible to do so” is included in brackets, but it is no less significant. In fact, it is a very important point because it limits the responsibility of LAs. It does so to save imposing unreasonable expectations on them, but at the same time it also recognises that there are restraints on their powers.

Let’s consider the phrase in the context of both sets of guidance under discussion in this article. First, the Welsh guidance:

2.22 Local authorities should note that the caveat in s.436A ‘so far as it is possible to do so’ should be interpreted as meaning the local authority should do all that is reasonable, practicable and appropriate to identify children.

In contrast the English draft guidance is a little more clear:

5.3 It should be noted that the caveat in s.436A ‘so far as it is possible to do so’ should not be interpreted as meaning ‘so far as the authority finds it convenient or practical to do so’. The authority should do whatever is actually possible.

Speculation around reasons for the differences of understanding is unlikely to prove fruitful, but we can usefully consider “whatever is actually possible.” This caveat benefits a local authority because there is a limitation on what resources, including staff hours, they can devote to any task, looking for needles in educational haystacks included. We are all aware that LAs do not have unlimited pots of taxpayers’ money to spend on whatever the Government decrees.

There is however another angle to this important caveat. All LA activity is limited by legislation, and departmental officials should help LA staff to understand how responsibilities authorised under one Act of Parliament may be limited by one or more other Acts. Such work may have been undertaken in the past, but these days civil servants frequently give the impression that they are more concerned about stretching some aspects of legislation, whilst shrinking others to the extent that they can ignore them almost totally. Both sets of guidance are examples of where familiar language seems to have been distorted beyond recognition.

In the first place this Byte is a plea to HE families not to ignore this important restraint on state power, even though the phrase – which occurs in many other pieces of legislation – is inserted in brackets. The Cambridge Dictionary is quite emphatic in its definition of the word ‘caveat’:

a warning to consider something before taking any more action, or a statement that limits a more general statement.

Whilst it is unsurprising that state employees regularly omit this important caveat when citing s436A, it is a matter for concern that those who seek to defend HE freedom are increasingly failing to mention it. Organisations as well as individuals can be guilty of such neglect, and in so doing they are surrendering important freedoms to the state.

Why does it matter?

Many HE families know something about education legislation and associated case law. However there is a great need for them to broaden their general awareness of other aspects of UK and international law. For example, the current English guidance invoked welfare (safeguarding) responsibilities far more than previous editions. This change has its roots in the Children Act 2004 which, amongst other things, merged education and child welfare into “Children’s Services.”

There are two further areas of legislation which all home educators need to familiarise themselves with if they are to preserve their liberties. These are the Human Rights Act 1998 and the Data Protection Act 2018. Whilst the Welsh guidance refers frequently to the ‘Rights of the Child’ in reference to the United Nations Convention on the Rights of the Child, both sets of guidance ignore the Human Rights Act completely.

Similarly, when it comes to data protection, the Welsh guidance for LAs only refers to “information sharing” between LAs and their partners, as is almost true for the English draft. The one exception is a footnote on page 22, which acknowledges that “Any processing of personal data has to comply with the requirements of data protection legislation.” A similar footnote appears on page 17 of the DfE’s Elective home education – draft departmental guidance for parents, but the Welsh handbook for home educators completely fails to tell families about data protection!

It is astounding that both Education departments seem unable to fully inform children and parents about their rights to protect their personal data. It is also worrying that they are unable to give clear guidance to local authorities as to the lawful basis on which they are asking them to collect data. Reports from HE families on both sides of the border emphasise that the lack of clear guidance has caused confusion in schools as well as LAs.

Whilst Human Rights are a complex matter and best left to lawyers, understanding data protection, though also complex, is something which every citizen should see as important. We have previously discussed “When ‘consent’ isn’t ‘consent” and encourage you to read or revisit that Byte. Data protection will be addressed further in subsequent articles.

What can I do?

The DfE consultation closes on 18 January, which will be about six weeks away by the time this Byte is published. The Byte team and others are working hard to provide insights between now and the holiday season into what seem to be quite complex issues raised by the draft guidance. For example, Fiona Nicholson has already published several helpful overviews on her Ed Yourself website, and the Home Education Channel on YouTube has begun compiling a series of videos on this topic. A useful starting place would be to take time to read the three consultation documents (linked from our English Consultation page) to familiarise yourself with the contents and make your own notes.

We suggest making a start on drafting your response as soon after Christmas as possible. The ‘consultation document’ encourages respondents to use the on-line form, but it is also possible to submit one’s comments by email or post. Most of the questions offer multiple choice answers through one of five options. Whilst this format has obvious drawbacks, there is a a free text box at the end of each section, all of which are reportedly unlimited in the number of words they will accept. These are therefore the most important parts of your responses. If you are planning to use the on-line form, it could be helpful to draft your responses to each section in a text document, then you can simply copy and paste them into each box all in one sitting. (We do not yet know if partially completed responses can be saved and returned to at a later date). Clearly, the intention is to ‘machine mark’ the multiple choice answers, but any free text will have to be read and processed manually – though these days AI cannot be ruled out, of course.

Over the coming weeks, we hope to provide further insights into key concerns about the draft guidance, along with resources to help you digest it and respond.

Please bookmark our English Consultations page as we will be adding new links as others publish helpful material about this consultation. You could also consider subscribing to our emails which are sent out when we publish new Bytes, or follow us on Facebook.