What the law says about home education

SEN116 - Law

In this issue, Douglas Silas looks at what the law says about home education.

I read an article recently saying that there has been a 34% rise in elective home education in the academic year 2020/21, which seems linked to the Covid-19 pandemic. In this issue, I therefore want to look at what the law says about home education.

Why is home education a topical issue at the moment?

Although the number of families choosing to home educate a child has been increasing over recent years, the Covid-19 pandemic appears to have accelerated the trend, either as a result of health reasons related to Covid-19 or, as is the most common reason given by parents after this, due to their child’s anxiety or mental health problems. Many parents were also concerned to find during ‘lockdown’ when educating their children at home, that their child was not doing as well as the school had previously made out.

The difficulty is ensuring that suitable education is being made for children who are taken off the roll from schools, or for those in ‘unlawful’ schools. There is also concern that elective home education may not be the most appropriate route for all children concerned. Local Authorities (LAs) already have a duty to ensure that children being educated at home are safe and receiving a suitable education, but they may not have all the relevant powers to do so currently.

What does the law say?

Unfortunately, there is no specific legislation that deals with home education and parents are often referred to Section 7 of the Education Act 1996 which says: “The parent of every child of compulsory school age shall cause him [or her] to receive efficient, full-time education suitable –

1. (a) To his [or her] age, ability and aptitude, and

2. (b) To any special educational needs he [or she] may have either by regular attendance at school or otherwise.”

This is why elective home education is usually referred to as ‘Education Otherwise Than At School’ or ‘EOTAS’.

A child becomes of compulsory school age from the first of the following dates when he or she becomes 5 years old after it – 31 August/31 December/31 March – and will remain of compulsory school age until the last Friday of June in the academic year in which he or she becomes 16 (although young people are expected to receive education or training until the age of 18, including when they are home educated).

Lessons at home

A ‘suitable education’ should be age-appropriate, allow for the child or young person to make progress according to their particular level of ability and aptitude as a minimum, so that when they do grow up, they will be able to function as an independent citizen and beyond the community in which they were brought up in (LAs may also have minimum expectations for literacy and numeracy).

Unfortunately, there is no definition of what an ‘efficient’ education is and it is often said that what is ‘suitable’ can be best defined as to what is not suitable! There is also no legal definition of what ‘full-time’ education means, but it is generally considered that it should cover about 5 hours of tuition a day for 38 weeks of the year, as though the child or young person was in school, although for those in home education circumstances, education can also take place outside of regular ‘school-hours’.

If a child has SEN and attends a special school, a parent needs the LA’s permission to educate them at home (although you do not need the LA’s permission if your child attends a mainstream school, even if they have an Education, Health and Care Plan (EHCP)). If a LA refuses to give consent for his or her name to be removed from the admissions register, a parent can ask the Secretary of State for Education to settle the dispute.

(Please note that if you want to educate your child some of the time at home and some of the time at school, the school can refuse this; and if your child is attending school because of a school Attendance Order, you must get permission from the LA before you can educate them at home).

If the LA finds that you are not providing what it deems to be a suitable education, it can serve you with a school Attendance Order for your child to attend a school of their choice. Failure to comply with the Attendance Order can result in criminal proceedings being brought against you and, if so, it is very hard to argue against this because it is what is known as a ‘strict liability offence’, so the Court has no other option but to convict you usually, no matter the circumstances.

What does guidance say?

There is a specific section in the SEND Code of Practice 2015 which you should read if you are considering home education and other guidance available which you may also find helpful to look at. Government guidance from April 2019 is entitled: ‘Elective home education: Guidance for LAs’ and ‘Elective home education: Guidance for parents’. The latter says:

“…Educating children at home works well when it is a positive choice and carried out with a proper regard for the needs of the child…However, if parents are in a position where they are educating a child at home but would prefer not to be doing so – or feel pressure to start educating a child at home, but know this will present difficulties – the Guidance aims to set out what they need to consider or when they should seek help.”

The Guidance importantly adds: “As parents, you – not the State – are responsible for ensuring that your child, if he or she is of compulsory school age, is properly educated. Despite the terms ‘compulsory school age’, education does not have to be undertaken through attendance at school, even though the parents of any child living in England can request a state-funded school place and the local authority is obliged to find one – or more alternative arrangements for education of your child.”

What does this mean practically?

Aside from concerns about the Covid-19 pandemic, there are also other reasons why a parent may consider educating a child at home, such as:

1. Religious or cultural beliefs

2. Ideological or philosophical views

3. Dissatisfaction with the school system

4. SEN not being met within the school system

5. Health reasons, particularly mental health

6. A child’s unwillingness or inability to go to school

7. Distance to a local school

8. Bullying

9. As a short-term intervention for a particular reason.

Some of these reasons may provide a stronger basis than others and you should always consider other steps you could take before you commit to home education, so try to speak with the current school (or the LA if the school is not accommodating), to see if there are other ways around your concerns, or alternative schools that you can consider. You should also consider whether you have the time, resources and ability to teach your child properly at home and also look long term.

Contrary to popular belief, home education does not require a timetable, set hours, days or terms and will always depend on the facts of each case – although parents should at least be able to quantify and demonstrate the amount of time for which a child or young person has been educated. It is also a common myth that you require specific qualifications, must teach the National Curriculum through formal lessons, or provide a ‘broad and balanced’ curriculum and try to reproduce school-type peer group socialisation.

Education must be delivered in circumstances which do not make it difficult to work (a common view is that you cannot work in very noisy premises) and should not lead to excessive isolation from peers and therefore impede social development.

If you can show that you are doing these things, you are more likely to be able to show that you are providing a suitable education otherwise than at school.

What does the future hold?

It has been argued that there should now be a mandatory register of electively home educated children, with a fully funded duty on the LA to visit the child or young person on a minimal annual basis to not only see if the education is suitable for them, but to also ensure that safeguarding issues are being considered properly.

Although this idea is welcomed by Ofsted, there are concerns from the home education community that have chosen to educate their children at home, who object to state interference in family matters. However, it is hoped that this will lead to a process whereby parents who are home educating their children will receive additional support, not only teaching resources, but financial support too from LAs.

Douglas Silas
Author: Douglas Silas

Douglas Silas
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Specialist SEN solicitor Douglas Silas is the Managing Director of Douglas Silas Solicitors.
W: SpecialEducationalNeeds.co.uk
T: @douglassilas
F: @douglassilas


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