Legal Issues

Information regarding the current legislative position in England with regards to Home Education

Current Government Stance

Education Minister Jacqui Smith, in response to a question from David Amess MP, on 6th December 2005 described home education as a parent's "fundamental right":

"This Government believe that, for most children, school is the right place in which to receive education. However, we respect parents' fundamental right, under section 7 of the Education Act 1996, to educate their children at home if they so wish. Where that happens, the parents must take responsibility for ensuring that the education provided is suitable and, for children of compulsory school age, is full-time. We have no plans to change this right."

1996 Education Act of the UK

Section 7 of the 1996 Education Act states:

7. The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable-

(a) to his age, ability and aptitude, and
(b) to any special educational needs he may have,

either by regular attendance at school or otherwise.

This booklet was distributed by Education Otherwise in 1999 to all LEAs in England and Wales with funding from the National Lottery Charities board. You can download your copy here.

Deregistration of Children from School

The Education (Pupil Registration) (England) Regulations 2006 (SI2006/1751)

Under regulation 8(1)(d), a 'school-age' pupil's name is to be deleted from the admissions register if:

"he has ceased to attend the school and the proprietor has received written notification from the parent that the pupil is receiving education otherwise than at school; "

Your address
The Date
Head teacher's Name

School name and address

Dear (Head's name)

Name of child . Date of birth

I am writing to inform you that I/we have decided to withdraw our son/daughter from school in order to take personal responsibility for her education. Please delete her name from the register in accordance with Education (Pupil Registration) Regulation 9 (1) (c) 1995, as she is now receiving education otherwise than at school.

Yours sincerely etc.

"as soon as the ground for deletion is met in relation to that pupil, and in any event no later than deleting the pupil's name from the register".

Special Needs children in Special Schools

Although regulation 9 (1) (c) effectively allows deregistration on demand, it does not apply to children who have been placed by the LEA in special schools. Regulation 9(2) provided that in this situation a child cannot be deregistered without the LEA's consent. This restriction is meant to protect the interests of more vulnerable children by ensuring that their special needs are met. But using it to make it harder to home educate such children could be interpreted as discrimination and prejudice. Section 7 of the 1996 Act makes it clear that the right to "otherwise" education extends to children with special needs.

A sample letter which could be used in this instance (as suggested by Issie Brookfield of NAS) is shown below.

Mr/Mrs
Director of Education
Anytown Borough Council
Education Department
Full Address and Post Code

Dear

Re - (Child's name - date of birth - special school attending)

We are writing as the parents of the above named child, who is a child for whom the LEA currently maintains a statement of special educational needs and who is a registered pupil at (name) Special School, (address).

After very careful consideration, and following amicable discussions with staff and teachers from the above named school, we have now decided to take full responsibility for providing for our son's education, 'otherwise than at school' in accordance with section 7 of the 1996 Education Act.

We therefore seek the consent of the Local Education Authority to allow (child's name) name to be deleted from the admission register of the school, in accordance with Regulation 9(2) of the Education (Pupil Registration) Regulations 1995. Once consent has been given we will provide our son /daughter with an efficient full-time education suitable to his age, ability, aptitude and to his special educational needs.

We look forward to consent for (child's name) name to be deleted from the admission register being given to the proprietor of (name) Special School in the very near future and request that confirmation of such action be forwarded to us within the next 14 days.

Yours etc

Truancy Powers - Crime & Disorder Act

Police and other authorities should be aware that home educated children are not truants. Education Otherwise provides to all its members a card for children to carry which indicates that they are home educated, which we find a usual resource to have to hand. The following is an extract from the Crime & Disorder Act:

Children being educated otherwise than at school

4.20 In planning for, and operating, a truancy initiative using the new power it is important to remember that not all children aged 5-16 are registered at school. Children educated outside the school system altogether (see paragraph 4.1), for example, by home tuition, might be out and about during the daytime for wholly legitimate reasons, for example visiting a library.

4.21 Local procedures should take account of possible contact with such home-educated children and it should be emphasised that they are not the target group for the new power. The power can only be exercised in relation to registered pupils of compulsory school age absent from school without authority; it does not apply to children who are lawfully educated at home. No further action should be taken where children indicate that they are home-educated - unless the constable has reason to doubt that this is the case.

The Law and the LEA

The LEA do not have a statutory powers to make anything other than informal equiries of parents and these enquiries can be of a nature to suit the family. There is case law relating to this issue:

“an education authority should not, as a matter of policy, insist on inspection in the homes as the only method of satisfying themselves that children were receiving efficient full time education”
Judge Donaldson (Phillips v Brown, Divisional Court, [20 June 1980, unreported] Judicial review by Lord Justice Donaldson

"the Act of 1944 (replaced by the 1996 Education Act) does not provide for or contemplate an intrusion of a parent’s privacy by inspectors coming into the home and that it is quite wrong for a Local Authority to insist on such inspection.”
Lord Parker of Waddington (REGINA v. SURREY QUARTER SESSIONS APPEALS COMMITTEE, ex parte TWEEDIE QUEENS BENCH DIVISION 61LGR 464 Lord Parker of Waddington C J, Widgery J, and John Stephenson J)

Government Consultations

Over the last few years EO's government policy team has been active in lobbying government over issues which affect home educators. The raised level of attention given to safeguarding children following the Climbie enquiry has led to a flurry of child "welfare" legislation and guidance, which is spawning policy initiatives many of which have intrusive effects for home educators. The team has been active in addressing the following areas.

• Draft Guidelines For LEAs on Home Education
• Safeguarding Children / s175 Education Act 2002
• Every Child Matters / Children Act 2004 / Information Sharing Index
• Pupil Registration Regulations
• Education Maintenance Allowance
• Truancy Patrol Guidance