Introduction
This Quick Guide provides information on the law and practice of elective home education and how it may provide an alternative to permanent exclusion.
The local education authority has a duty to make education available for children within their area who would otherwise be out of school under S.19 Education Act 1996. However, it is the parents’ duty to ensure the young person actually receives that education. Those with parental responsibility for a young person can opt out of the provisions made available by the local authority through a process known as elective home education.
Families should never feel pressured by the threat of permanent exclusion to withdraw their child from the school’s register. This is unlawful, and families should never be asked or encouraged to home-educate. Electing for home education means opting out of the education system as a whole, and families may find themselves without any support from any school or local authority if they opt for home education. Families should be able to make an informed decision with knowledge of the other forms of provision available to them before electing to home educate.
Families may want to refer to the Department for Education’s guidance on elective home education to understand the implications for them. You should only follow these steps if the family has been given the relevant information and elective home education remains their choice, instead of a challenge to permanent exclusion.
If a person decides to home educate, they bring the local authority’s duty to make provision of education available for that young person to an end, and the young person’s name will be removed from their school’s admission register.
For directions on using elective home education as an alternative to permanent exclusion, see the Step-by-Step Guide: Finding an alternative to permanent exclusion
Responsibilities of the persons with parental responsibility
There is no established standard of education that families must satisfy to qualify for elective home education. This means that young people do not need to learn specific subjects or content, have a certain number or length of school days, or undertake exams. However, under s7 Education Act 1996, the parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable -
- to his age, ability and aptitude, and
- to any special educational needs or additional learning needs he may have.
'Efficient'
There is no definition of this in statute law. However, it can be interpreted as meaning education which ‘achieves what it is intended to achieve’. This is not the same as the education being ‘suitable’ - because it is possible to deliver efficiently an education which is definitely not suitable for the child. Conversely, it is possible to deliver a suitable education very inefficiently.
'Full-time'
There is no legal definition of “full-time” in terms of education at home, or at school. Children attending school normally have about five hours tuition a day for 190 days a year, spread over about 38 weeks. However, home education does not have to mirror this. In any case, in elective home education there is often almost continuous one-to-one contact and education may sometimes take place outside normal “school hours”.
'Suitable'
There is no definition of ‘suitable’ education in statute law, although as stated in s.7 as quoted above, it must be suitable to the age, ability and aptitudes of the child, and any special educational needs. This means that it must be age-appropriate, enable the child to make progress according to his or her particular level of ability, and should take account of any specific aptitudes.
Informing the local authority
In most circumstances, those with parental responsibility who elect for home education do not have a duty to report that fact to the local authority. However, it is sensible to do so, in order to avoid subsequent misunderstandings as to how the parent/guardian intends to fulfil their parental responsibility for their child’s education.
Is the consent of the school and local authority required to electively home educate?
Ordinarily, the consent of the school and local authority is not required. The exceptions are contained in Regulation 8 of the 2008 Pupil Registration Regulations, which makes clear that the consent of the local authority is required where the child attends a special school and this was arranged by the local authority or where a child is already subject to a type of order called a "school attendance order".
The powers of the local authority to end elective home education
S.436A of the Education Act 1996 directs every local education authority to have systems in place to identify all people of compulsory school age in their area who are not registered with a school and who they cannot confirm are receiving suitable education in some way other than at a school.
While the family has no duty to report their decision to the local authority, in many instances, the local authority will become aware anyway. Schools have a duty to report all permanent exclusions to the local authority. By the time parents elect home education as an alternative, it is likely that the local authority will become aware of this fact because, otherwise, they will want to know how the permanent exclusion was resolved. In addition, schools have a duty to report deletions from their register to the local authority. Where they are aware that this is due to elective home education, they will probably provide this reason with the notice.
The local authority can then contact the parents to ask them to provide information on what provision is being made for the young person. There is no duty on the parents to respond. However, in 1980, the High Court heard the claim in Phillips v Brown. In its decision, the Court found that the local authority will be reasonably able to assume that, if a parent simply ignores a request for information, it is justifiable to conclude that suitable provision of education is not being made. This is confirmed in paragraph 6.5 of the government’s guidance to local authorities.
If the local authority makes this assumption, they could then use their power under s. 437(1) Education Act 1996 to give notice to the parents and demand confirmation within 15 days that suitable provision is being made. In most cases, local authorities would have a duty to do this.
Then, the local authority will order the parents to register the young person with a school by a power given to them at s. 437(3) Education Act 1996, if two conditions are met:
- That the local authority is not satisfied that the young person is receiving a suitable education; and
- The local authority thinks that ordering the child back to school will result in them receiving a suitable education.
If a parent or guardian receives such an order, they should seek advice from a lawyer as soon as possible.
