Draft Elective Home Education Policy Document

This document has been put out for consultation by the NEELB, but appears to be intended to cover the whole of Northern Ireland when the Education and Skills Authority (ESA) is finally launched.

http://www.neelb.org.uk/EasysiteWeb/getresource.axd?AssetID=18774&type=full&servicetype=Attachment

The boards and the ESA are not capable of making law, so these policies cannot be legally binding.  However a policy like this may make many home educator's lives difficult, and particularly vulnerable families who do not know their legal rights and duties.

A short read but amongst other things the document 

- conflates welfare and education

- mandatory home visits

- requirement to register, in effect a licensing scheme

- appears to assume powers to dictate the content of the education provided

- appears to place burden of proof on parents, to demonstrate that the education is effective

- yearly monitoring

- access to the child

- data protection issues

More detail... the writing below is my first pass at this.  I will joyfully welcome any thoughts or input.

conflates welfare and education

[p5] - "2. Safeguarding a. The welfare of the child is paramount. Throughout all stages of the procedures outlined below, consideration will be given to any existing and/or potential safeguarding issues. The EWO for the school, if the child is on the register of a school, or, if deregistered, the designated officers for child protection in the CPSSS will be contacted on the same day that any concerns are noted. Whatever steps are deemed necessary to ensure that the safeguarding needs of the child are met at the earliest opportunity, will be taken, including onward referral to social services Gateway team. Further information may be found on the Safeguarding Board for Northern Ireland (SBNI) website at  www.safeguardingni.org/resources. Relevant information will be recorded on the EMS database. "

Here an assumption is made that home education necessarily raises welfare concerns and child protection services should automatically become involved.  Not only would this be an added stress on children and families, possibly at a difficult time if the child was unhappy in school, but it would also place an added burden on stretched agencies with important duties.

[p7]. "5. Minimum Standards 

The following minimum standards should apply for children who are home educated: 

-The child is educated in an environment which is safe; 

- The child has access to a conducive learning environment, appropriate to their age, ability and aptitude and to any special educational needs they may have; 

-The programme is suitable and meets the learning needs of the child; 

-The child’s physical, social, emotional health and wellbeing needs are being met. 

Board/ESA decisions will be made as to the suitability or otherwise of Elective Home Education based on these standards. "

Education Officials have no legal duty, training, or power to assess the safety of the environment, or the child's physical, social or emotional health. They have the same duty as all of us, and particularly those in postitions of responsibility, to report any concerns they may have to the appropriate agency. If the environment is not safe then social services should be involved, it has nothing to do with education.

Confusion between different agencies as to who holds responsibility for safeguarding has had serious and sometimes tragic outcomes in the past. Sufficient legal framework exists to protect children who need it, the problem is underfunding, understaffing and a lack of clear division of responsibility.

- mandatory home visits

[p6]"(ix) The Board/ESA named officer will assess the learning environment and the suitability of the programme to meet the educational needs of the child."

[p9] "HOME VISIT TO ASSESS LEARNING ENVIRONMENT AND SUITABILITY OF PROGRAMME TO MEET LEARNING NEEDS OF CHILD (APPROPRIATE TO AGE, ABILITY AND APTITUDE OF CHILD/YOUNG PERSON) 

                                  ↓

HOME VISIT, COMPLETE RECORD EHE2, UPDATE EMS CONTACT LOG FORWARD RECORD OF HOME VISIT (EHE2) TO CEWO "

No body, not even the police except in very tightly controlled circumstances, has the right of entry into your home. Given the enthusiasm with which they quote the United Nations Convention on the Rights of the Child

- requirement to register

As well as gathering information from children who are deregistered, the document states an 'expectation' that parents will notify the board even where they have never been registered.

[p5 3.ii] "Where a child has never been registered in a school it is the Board/ESA’s expectation that parents would notify the Board/ESA that they are home educating their children and follow the arrangements in this guidance"
This effectively requires a parent to apply for a licence to carry out their legal duty and there is clear implication that not all registrations will be accepted:

[p.7] "(i) Once an EHE programme has been considered suitable by the Board/ESA, parents will be provided with the name of the officer with responsibility for managing EHE with whom they should liaise."

(my emphasis in bold)

- assumes powers to dictate the content of the education provided

The document repeatedly refers to assessing the suitability of the programme, and suggests strongly that it must be approved. There is no suggestion that extensive expertise in the many diverse styles of Home Education will be a requirement for the job, so I think we can assume that they will be looking for school-style learning.

[p6]"(viii) Following receipt of S.A.1 parents should forward a copy of their EHE Programme to the Board/ESA named officer for EHE to enable the Board/ESA to reach a decision that the proposed programme for the child is efficient and appropriate to the age, ability and aptitude of the child, and to any special educational needs he or she may have."

"(ix) The Board/ESA named officer will assess the learning environment and the suitability of the programme to meet the educational needs of the child. The Board/ESA’s decision as to the appropriateness or otherwise of the programme, having due regard to the best interests of the child and relevant legislation, will be communicated in writing by the named officer for EHE to those with parental responsibility. "

[p.7] "(i) Once an EHE programme has been considered suitable by the Board/ESA, parents will be provided with the name of the officer with responsibility for managing EHE with whom they should liaise."

(my emphasis in bold)

Most home educating families, even those who use curricula, take a flexible approach to home educating, adapating to their children's changing needs. Many have an educational philosophy that does not consider  This is the advantage of home education!  The concept of submitting a 'programme', which you are then presumably required to stick to, is wildly inappropriate when applied to home education.

Further, no allowance is made for what is commonly known as 'deschooling'.  A period of time where the child and the family recovers from the stresses of dealing with institutional education.  In this period little that would be demonstratively educational may take place, but it is crucial for the success of home education.  The programme cannot be in place ready for the child to leave school and start it.

[p5. 3]"(ii) In cases where a parent may be considering EHE, it is the Board/ESA’s expectation that the school should advise the parent that the child or young person should continue to attend his or her registered school until such times as the programme is in place."

- appears to place burden of proof on parents, to demonstrate that the education is effective

In law the burden of proof is on the accuser. Here there appears to be a subtle but significant shift towards a parental duty to show that an education is being received in the absence of any concerns.

No school or parent can ensure that children learn, it is well established and accepted that a suitable education must be provided, but if the Boards chose to place the burden of proof on the educator then they are liable to be sued by children who have not performed acceptably in school.

[p7] "(x) In cases where a parent fails to demonstrate that the child is receiving efficient full time education, appropriate to his or her age, ability and aptitude, and to any special educational needs he or she may have, the Board/ESA may take legal action in accordance with the Education and Libraries (Northern Ireland) Order 1986, Schedule 13 or Article 55 of the Children (Northern Ireland) Order 1995. "

"5. Minimum Standards 

The following minimum standards should apply for children who are home educated: 

- The child is educated in an environment which is safe; 

- The child has access to a conducive learning environment, appropriate to their age, 

ability and aptitude and to any special educational needs they may have; 

- The programme is suitable and meets the learning needs of the child; 

- The child’s physical, social, emotional health and wellbeing needs are being met. 

Board/ESA decisions will be made as to the suitability or otherwise of Elective Home 

Education based on these standards."

[p6.3]"(viii) Following receipt of S.A.1 parents should forward a copy of their EHE Programme to the Board/ESA named officer for EHE to enable the Board/ESA to reach a decision that the proposed programme for the child is efficient and appropriate to the age, ability and aptitude of the child, and to any special educational needs he or she may have."

 

The document repeatedly uses the words of the legislation but does not make any interpretation of them, the tone and implication of the statements on page 7 and of the 'Minimum Standards', suggests a far higher standard is proposed for Home Educators than for schools. 

The duty of the authority is reactive, they must act if evidence comes to light that education is not being recived. The duty of parents with relation to the authority is also limited.  English case law (Phillips v Brown, Divisional Court [20 June 1980, unreported] Judicial review by Lord Justice Donaldson) states that they would be wise to respond to informal enquiries, made by an authority if they have concerns. In the absence of concerns there is no legal duty for a familiy to proactively demonstrate the worth of their chosen educational approach.


- Children with SEN must demonstrate 'progress'

[p6.4.i] "On occasion it may also be necessary for an Educational 

Psychology assessment to be arranged by the Board/ESA in order to ensure that reasonable 

and adequate progress is being made"...

It is far from clear that such assessments would be at the request of, or with the consent of, the parents.

 

Yearly Monitoring

[p.7] "7. Monitoring of Elective Home Education Programmes 

(i) Once an EHE programme has been considered suitable by the Board/ESA, parents will be provided with the name of the officer with responsibility for managing EHE with whom they should liaise. 

(ii) In accordance with the Data Protection Act (1998) and the Freedom of Information Act 

(2000) the Board/ESA will maintain a confidential electronic database of pupils receiving EHE. 

(iii) The Board/ESA will monitor EHE programmes on at least an annual basis to ensure the child is receiving efficient full timeeducation suitable to his or her age, ability and aptitude and to any special educational needs he or she may have. The child’s opinion will also be taken into consideration. "

 

- Access to the child

[p.7.7] "...

 The child’s opinion will also be taken into consideration. "

[p7 (appendix 1)] "IF REQUIRED INITIAL VISIT BY DESIGNATED EWO INCLUDING OPPORTUNITY TO SEEK 

OPINION OF CHILD/YOUNG PERSON"

There is no specific information given about in what circumstances the child will be intereviewed, how a refusal will be interpreted and what consequences there would be for a family that did not allow the officer to meet their child.

 

- Data protection issues

Repeated reference is made to a database for Electively Home Educated children.  More research on this is necessary but I am not convinced that the proposed database meets the requirements for processing under the Data Protection Act:

http://ico.org.uk/for_organisations/data_protection/the_guide/conditions_for_processing

"The conditions for processing are set out in Schedules 2 and 3 to the Data Protection Act. Unless a relevant exemption applies, at least one of the following conditions must be met whenever you process personal data:

·     The individual who the personal data is about has consented to the processing.

·     The processing is necessary:
- in relation to a contract which the individual has entered into; or
- because the individual has asked for something to be done so they can enter into a contract.

·     The processing is necessary because of a legal obligation that applies to you (except an obligation imposed by a contract).

·     The processing is necessary to protect the individual’s “vital interests”. This condition only applies in cases of life or death, such as where an individual’s medical history is disclosed to a hospital’s A&E department treating them after a serious road accident.

·     The processing is necessary for administering justice, or for exercising statutory, governmental, or other public functions.

·     The processing is in accordance with the “legitimate interests” condition."