An initial consideration of the latest Welsh consultation and the difficulties of responding to it.
What’s been said?
On 30 January the Welsh Assembly Government [WAG] launched the second of its promised consultations related to home education. The consultation page provides links to a total of eight documents. Here we introduce just two – the Consultation Document and the Response Form. We shall almost certainly comment on others in the near future.
The consultation closes on 22 April, so the need at present is to think about whether you wish to respond, and how to do so most effectively. Remember that consultations are not referenda; they do not seek a majority view on a matter, but look for constructive suggestions for developing the measures the consulting government wishes to take forward.
This is very relevant in this instance because the consultation does not ask if LAs should collect and record information about children not in school, but how they can do so efficiently.
The introduction (page3) to the Consultation Document correctly states:
“Under section 436A of the Education Act 1996, LAs have a duty to make arrangements to identify children in their area who are of compulsory school age and not receiving a suitable education.”
Adding that the the proposed database regulations are intended to assist LAs to meet their duty under this clause, the document explains:
“At the moment LAs have no reliable or consistent method for identifying all compulsory school aged children in their area who have never been to school, and or are missing education.”
We are confident that our readers will be able to spot the significant difference between these two sentences. There is a very significant shift in focus. The 1996 Act is precisely focussed on children who:
(a) are not registered pupils at a school, and
(b) are not receiving suitable education otherwise than at a school.
Both clauses have to be satisfied for a LA to be required to identify a child, whereas the consultation is seeking means of identifying children who “have never been to school,” as well as those who are missing education. Given that the database is designed, according to last year’s consultation, to enable LAs to monitor EHE children, then the 1996 Act cannot be used to justify collecting data on EHE children who are receiving a suitable education, without some sleight of hand.
It’s also important to note that §436A makes clear that this duty to identify children missing education is limited by the clause, “so far as it is possible to do so.” The politicians who framed this Act had their reasons for including this caveat. Whilst they may have intended this to mean as far as resources allowed, they more probably recognised that this responsibility is limited by other legislation.
This points our thinking in the direction of the question conspicuously missing from the consultation. There is no recognition in either of these documents that the WAG may be overstepping its legal remit by seeking to collect data on children who are receiving a suitable education at home. This possibility could perhaps explain why the English DfE decided to consider a registration scheme rather than a data collection exercise.
In several respects, the WAG seems to have taken notice of the Supreme Court’s 2016 judgement concerning the now abandoned Scottish Named Person Scheme. It is emphasised on page 3 for instance that the database as proposed “is not a tracking tool.” The section headed “Information held on the database” (p.3-4) reveals that the data they are proposing to collect is very limited indeed compared with that collected in Scotland.
Despite the fact that they propose to collect data on children who are receiving a suitable education, to “assist LAs in identifying all children in their area,” the consultation response form does not include any question on the legality of this suggestion. Those wishing to question its lawfulness are limited to using the open question (26) at the end.
Why does it matter?
It is important to realise the implications of the consultation approach. For example, whilst Q1i), seems to provide an opportunity to say that the information being sought for the database is far too much, Q1ii) makes clear that what is being sought are suggestions about how LAs can “identify children of compulsory school age to ensure they are receiving a suitable education.”
This objective is repeated in Q2, “Do you think the database will help LAs, as far as it is possible to do so, to identify children not currently known to them and/or children missing education in their area?” Similarly, Q3 also falls outside the remit of the Children’s Act 1996, “Without a database, what reliable and consistent alternative method would enable the LA to identify a child they have no prior knowledge of?”
Interestingly, neither of the consultation documents under consideration make any reference to “safeguarding.” This is notable, because in England the DfE built its case for a register of EHE children on LAs’ safeguarding responsibilities – see §2.1 & 2.5 in the 2019 consultation document. Last year’s Welsh consultation on revised Statutory Guidance for LAs made no appeal to these perceived responsibilities either.
In the light of these two facts it has to be recognised that the WAG’s proposals are reasoned from a significantly different basis than the English proposal for a register. They are based on a belief that LAs in Wales have an educational responsibility towards every child, rather than a safeguarding one, though it is probable that to most politicians and children’s professionals the two have now merged.
What can I do?
Understand that the proposals being consulted on essentially have the stated objective of collecting data on every child, whether or not they are receiving a suitable education outside of school, on the premise of identifying those who are not being educated. When considered alongside last year’s consultation, it becomes clear however that the information collected will be used to enable monitoring of all EHE children.
Given the nature of the consultation, readers in Wales need to continue to engage with their Assembly Member particularly over the delayed response to the previous consultation, and the petition calling for the WAG to “Withdraw the proposed home education guidance.”
If you don’t live in Wales, do all you can to support HE families there. It is also important to keep engaging with your own local politicians so they are better informed about the real benefits of EHE.