NEELB confirm that all contact constitutes the start of legal proceedings

NEELB confirm that all contact constitutes the start of legal proceedings

We have always advised that parents should seek legal advice the moment legal proceedings are started by their Board, otherwise we have advised that peer support and their own considered opinion is sufficient.  We have always advised that home educators respond promptly and constructively to any queries from their Board. 

The NEELB has stated today that the Board treats first contact as the start of legal action.  We are therefore in the sad and rather farcical position of having to advise that legal advice should be sought before responding to any request for information at all from the NEELB (we are seeking the positions of the other Boards, and are pleased to report that the SEELB has informed us that they operate under the DCSF guidelines, which require informal contact first).  

The Boards should seek to build a relationship of trust and open communication with Home Educators.  This position destroys what little trust already exists. 
The NEELB who led the drive to implement the recent Draft Policy, and appear now to be seeking back-door ways of getting its provisions into practice.

We have been in a long and frustrating correspondence with the Board since December 2014, attempting to confirm that first informal contact is just that - informal and not the start of legal proceedings(!). We were first concerned because recently a family we are in contact with found the Boards attempting to use an obscure Regulation (Statutory Regulations no.78 1974 (#14)) to enforce monitoring.  Having had an apparently informal, friendly and successful visit when they began home education, they were told that they must now continue to 'satisfy' the Board on a yearly basis.

In a nutshell, although the Education Order does not require nor permit monitoring, the NEELB believe they can create that power simply by asking a parent for information. Then the parent is in a "Catch 22" situation- if they don't respond the Board assumes no education is being provided, if they do then they have 'satisfied the Board' and are subject to yearly monitoring.  There is no initial informal stage, no investigation or contact before formal proceedings. 

This is not the intention or meaning of the Regulation, which was intended to protect parents from harassment by limiting monitoring to yearly contact even where there had been legal proceedings.  It is clear that the Regulation applies only to situations where a School Attendance Notice has been issued and defeated by the family, we include our Solicitor's opinion at the end of this article.

However, in an apparent attempt to implement part of the much criticised Draft Policy, the Chief Executive of the NEELB confirmed to us today that any information provided by parents would be considered to trigger the Regulation and (in their view) make yearly monitoring compulsory.  This amounts to the Board starting automatic legal proceedings against all parents who home educate, reversing the presumption of innocence.

We have received the following comment from Mr McCurdy, the Chief Executive of the NEELB:

"On the basis that sufficient information is given by a parent who is educating their child otherwise than at school demonstrating that their child is receiving efficient full time education, suitable to his or her age, ability and aptitude and to any SEN he or she may have, the Board would consider itself ‘satisfied’ for the purposes of Regulation 14 of the Education Registration and Attendance of Pupils Regulations 1974 No.78.  Such a situation would arise regardless of whether or not this information was provided in the context of formal enforcement by the Board of the duty imposed on parents by Article 45 of the Education and Libraries (NI) Order 1986."

This means that in responding to an informal request for information, meeting with the Board or otherwise providing ANY evidence regarding the education being provided, parents open themselves to being treated as if there had been evidence that they were not providing an education. In fact all parents are to be assumed to be failing their children unless they can prove otherwise.

This is a reversal of the presumption of innocence, not to mention an unsupportable interpretation of the law. The Boards should seek to foster a relationship based on trust and good communication with parents. This assertion does the precise opposite of that.  

As we have always stated, parents should seek legal advice the moment legal proceedings begin.  It appears now that this is at point of first contact. We hope that the NEELB will reconsider their position and seek to build a relationship based on trust and open communication.
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Our solicitor comments:

"...this provision only in fact applies to those parents who have previously been served with a school attendance notice, and have, on foot of such a notice, then satisfied the Board that their child is receiving suitable education otherwise than at school. Regulation 14 is not generic, nor free-standing, in the sense that it does not apply to all parents who are educating their children at home; it applies only to those parents who have previously been served with a school attendance notice, and then satisfied the Board that their child is receiving suitable education otherwise than at school. The reasons why we assert this to be so are as follows:

(a) The 1974 Regulations were enacted by the Department of Education for Northern Ireland in pursuance of powers vested in them by (the 1972 Order equivalent of) articles 46, 48 and schedule 13 to/of the Education (Northern Ireland) Order 1986. The 1974 Regulations were therefore enacted under powers given to the Department by only certain aspects of the 1986 Order. The 1974 Regulations were not therefore intended to be general in application and, in any event, the Department was not given the power to make regulations with such application and ultimately it did not do so;

(b) Therefore, when regulation 14 speaks of “in every case where a parent satisfies a board that his child is receiving efficient full-time education...”, it is only talking about, as we have said, those parents who have been served with a school attendance notice pursuant to schedule 13, and answered it to the satisfaction of the board. This makes sense because the only time, in law, when a parent is required to satisfy a board that their child is receiving suitable education, by regular attendance at school or otherwise, is when a school attendance notice is served by a board;

(c) This point is amplified when considering the preceding and subsequent regulations to regulation 14:

13. The Notice required to be served by a board under the provisions of paragraph 1(1) of Schedule 9 to the Order shall be as in Form S.A.3. in the Schedule.

14. In every case where a parent satisfies a board that his child is receiving efficient full-time education suitable to his age, ability and aptitude otherwise than by attendance at school, the parent shall continue so to satisfy the board at intervals of not less than twelve calendar months, during the period in which the child is receiving his education otherwise than by attendance at school.

15. The School Attendance Order required to be served by a board under the provisions of paragraph 1(2) of Schedule 9 to the Order shall be as in Form S.A.4. in the Schedule.

This clearly shows that regulation 14 is directed to cases where parents have previously satisfied a board that their child is receiving suitable education otherwise than at school, following the service of a previous school attendance notice."