Page 65 - SEN116 January-February 2022

SEN law
About the author
Specialist SEN solicitor Douglas Silas is the Managing Director of Douglas Silas Solicitors.
SpecialEducationalNeeds.co.uk @douglassilas @douglassilas
“There is no definition of what an ‘efficient’ education is”
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).
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.”
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