This section applies to England
and Wales only, the law in Scotland varies slightly. See http://www.schoolhouse.org.uk/
for the legal position in Scotland.
Elective Home Education - Legal Guidelines
Act numbers refer to The Education Act 1996
unless otherwise stated.
Education is compulsory
- school attendance is not
The freedom to educate children at home forms
an intrinsic and essential element of educational provision in
our society, a right which has been protected by a succession
of Education Acts. The law is clear that while education is
compulsory, school attendance is not.
The fundamental piece of legislation regarding
education in England and Wales is the Education Act 1996
(a consolidating act which
incorporates the 1944 Education Act and later legislation).
The only relevant sections are: (emphasis added)
Parental Duties: Section 7
"The parent of every
child of compulsory school age shall cause him to receive efficient
full-time education suitable ;
a) to his age, ability, and aptitude, and
b) to any special educational needs he may have,
either by regular attendance at school or otherwise."
The LEA's duties and powers in relation to
home-educated children are contained in the Education Acts, 1944
to 1996. These are fully set out in sections 437 to 443 of the
1996 Act and (except in relation to special educational needs)
are limited to the provisions of those sections.
"437. - (1) If
it appears to a local education authority that a child of
compulsory school age in their area is not receiving suitable
education, either by regular attendance at school or otherwise,
they shall serve a notice in writing on the parent requiring him
to satisfy them within the period specified in the notice that
the child is receiving such education."
Under section 576 of the Education Act 1996,
a parent is defined in relation to a child or young person as
also including any individual:
(a) who is not a parent of his but who has parental responsibility
for him, or
(b) who has care of him.
As parents are responsible for ensuring that
their children are properly educated, it is their decision
whether to use schools or provide education at home.
It is important to note that the duty to secure
education is stated entirely in section 7 and nowhere else.
Provided the child is not a registered pupil
at a school, the parent is bound by no other constraints. In particular,
there is no obligation:
- to seek permission to educate 'otherwise';
- to take the initiative in informing
- to have regular contact with the LEA;
- to have premises equipped to any particular
- to have any specific qualifications;
- to cover the same syllabus as any school;
- to adopt the National Curriculum;
- to make detailed plans in advance;
- to observe school hours, days or terms;
- to have a fixed timetable;
- to give formal lessons;
- to reproduce school type peer group
- to match school, age-specific standards.
The grounds on which a pupil's name must be
deleted from the admission register are listed in Education (Pupil
Registration) Regulations 9, 1995 [SI 1995/2089]. Under regulation
9(1)(c), a 'school-age' pupil's name is to be deleted from the
admission register if:
"he has ceased to
attend the school and the proprietor has received written notification
from the parent that the pupil is receiving education otherwise
than at school."
If the parent writes to the proprietor explaining
that the child is being educated at home, the school is obliged
to take the child's name off the register, and the duty to secure
regular attendance thus comes to an end. Since 1995 this has been
an absolute legal requirement: no discretion is involved. (Under
regulation 13(3) the proprietor of the school must also report
the deletion of the pupil's name from the admission register to
the LEA within ten school days.) In this way the legal
position of a parent embarking on home-based education is the
same regardless of whether or not the child has been withdrawn
from a school for this purpose. i.e., the LEA is entitled to make
informal enquiries of the parent(s).
The only circumstances under which parents
are under an obligation to inform the LEA of the intention to
home educate a child concern pupils registered at a special school
where parents must seek the consent of the LEA (Regulation 9(2)
Education (Pupil Registration) Regulations, 1995 [SI 1995/2089]).
This extra requirement is intended to allow LEAs to ensure that
a child's special educational needs will continue to be provided
for when the child is withdrawn from school, and not to discriminate
against the choice to home educate a child with SEN. Parents should
be given reasonable opportunity to show that a 'suitable' education,
taking account of the child's special educational needs, can be
provided at home, and should be given sufficient time and information
to rectify any perceived shortcomings in their provision. If an
LEA refuses its consent, a parent may appeal to the Secretary
The wording of the Education Act 1996 requires
the LEA to act only if something comes to its attention
which gives it reason to suppose a breach of a parent's section
7 duty. It does not need to investigate any instances of home
education which come to its attention unaccompanied by any grounds
for suspicion that an adequate education is not taking place.
However, case law (Phillips v Brown, Divisional Court [20 June 1980, unreported] Judicial
review by Lord Justice Donaldson, as he then was)
has established that an LEA may make informal enquiries
Lord Donaldson said:
"Of course such a
request is not the same as a notice under s 37 (1) of the Education
Act 1944 (now s 437 (1) of the 1996 Education Act) and the parents
will be under no duty to comply. However it would be sensible
for them to do so. If parents give no information or adopt the
course .......... of merely stating that they are discharging
their duty without giving any details of how they are doing so,
the LEA will have to consider and decide whether it appears
to it that the parents are in breach of s 36. (now s7 of the 1996
Determining Suitable Education
LEAs should bear in mind when considering
the replies to such informal enquiries (and other more formal
ones, should the matter go that far) that parents taken to court
for failing to comply with a School Attendance Order only have
to show the court that they are providing a suitable education
on a balance of probabilities. That is the test that LEAs
must also apply. Also a court will receive any evidence a parent
produces, it will not have to be in any specified form and it
will be sufficient so long as it shows that a suitable education
is being given. Similarly an LEA has no power to require that
information be given to it in a specified form or way.
The DfEE acknowledges this in their information
"ENGLAND AND WALES EDUCATING CHILDREN
"3. LEAs, however,
have no automatic right of access to the parent's home. Parents
may refuse a meeting in the home, if they can offer an alternative
way of demonstrating that they are providing a suitable education,
for example, through showing examples of work and agreeing
to a meeting at another venue."
Another "example" might be information
provided in written form, sufficiently comprehensive to establish
competence and intention, and beyond the mere assertion that education
is taking place which Lord Donaldson determined was inadequate.
Many parents are quite concerned not to have
their childs privacy invaded out of respect for the childs
autonomy, and any hint of testing or examination by strangers
with a different agenda can be experienced as undermining. Therefore
for reasons of educational approach, some parents may not wish
to provide information to their LEA through home visits.
It would be helpful if LEAs carry out their
duty to accept information provided in any reasonable and adequate
form, by not making a prior assumption of the normalcy of any
particular form this might take, but on first approach to
present the parents with the free choice the law supports.
In the case of R v Surrey Quarter Sessions
Appeals Committee, ex parte Tweedie (1963), Lord Parker held that:
'.....an education authority
should not, as a matter of policy, insist on inspection in the
home as the only method of satisfying themselves that the children
were receiving full time education.'
There is no legal requirement for the LEA
to make continual enquiries. Once in receipt of a reasonable account
of the educational provision, their legal obligation is fulfilled
and no further contact is necessary. However, some parents may
appreciate continuous help, support and contact and under these
circumstances further contact can be arranged. Some LEAs arrange
'drop-in' centres where families can maintain contact.
School Attendance Orders
Education Act 1996 s 437-443, (previously s 192-198 1993 Act)
"If it appears to
a local education authority that a child of compulsory school
age in their area is not receiving suitable education, either
by regular attendance at school or otherwise, they shall serve
a notice in writing on the parent...."
The formal steps provided for in these sections
should not be needed unless something has gone seriously wrong.
Nevertheless they are summarised here for reference:
If the LEA has evidence that the educational
provision appears to be inadequate, the LEA must serve the
parents with a notice giving them at least 15 days to satisfy
them that they are educating properly.
If the parents fail to do this, the LEA
then have to consider whether it is expedient for the child
to go to school. If they think it is they must serve a 'school
attendance order', but before doing so they must serve a notice
stating which school they intend to name in the order, and
giving the parents a chance to choose an alternative.
The LEA serve a school attendance order
requiring the parents to register the child as a pupil at
the school named in it.
The parents can ask the LEA to revoke
the order because they are educating 'otherwise'.
The LEA can prosecute the parents for
not complying with the order, but the action will fail if
the parents can show the court that they are educating 'otherwise'.
The evidence a court requires to satisfy it
that adequate education is taking place, is such as would convince
a reasonable person, on the balance of
probabilities. (Under section 447, whether they prosecute
or not, the LEA must also consider applying for an education supervision
to home education
The principle of parental choice is paramount.
Families are entitled to choose what they feel to be the most
suitable educational approach.
One system cannot be expected to cater for
the needs and interests of all individuals, (many fail to thrive
or reach their full potential whilst receiving formal instruction
in a school environment). A variety of alternatives in education
is therefore important and the law allows for this diversity.
A clearer interpretation of some terminology
used in the 1944 Education Act (replaced by the 1996 Act), was gained
in the case of Harrison & Harrison v Stephenson (appeal to
Worcester Crown Court 1981). The term 'suitable education'
was defined as one which enabled the children to achieve
their full potential, and was such as to prepare the
children for life in modern civilised society. The term
'efficient' was defined as achieving that which it sets
out to achieve.
Clearly this definition covers a great
variety of educational approaches.
There is no one 'correct' educational system.
All children learn in different ways and at varying rates, and
chronological age has little bearing on the process. It would
be wholly inappropriate for example to seek to impose reading
and numeracy age scales on home educated children, not subject
to the specific educational methods in state schools. Individual
children come to literacy and numeracy over a huge age range,
which has no subsequent bearing on their competence in these areas
as adults. It is vital that parents and children choose a type
of education which is right for them, and it is important that
any LEA officers understand and are supportive of many differing
approaches or "ways of educating" which are all feasible
and legally valid.
Education Act 1996, Part
V (incorporating Education Reform Act 1988)
This deals with the National Curriculum, stating
in ss 351 to 353 (replacing
ss 1 & 2) that it only applies to
children who are registered pupils of maintained (i.e. State or
Home educators may choose whether to base
their studies around these guidelines fully, partially, or not
Irregular or Non-attendance
Education Act 1996 s 444, (previously s 199 of 1993 Act derived from s 39 1944 Act)
This deals with the non-attendance, or irregular
attendance at school, of registered pupils. If poor/non attendance
is due to severe school anxieties, usually the Educational Welfare
department becomes involved and the family should be informed
of all their duties, rights and available options including education
Many LEAs, when confronted with the problems
of School Phobia/Anxieties, School Refusal/Truanting, encourage
families to contact one of the home education support groups for
help and advice. This provides a useful alternative course
of action for officials, because if endeavours are made to pressure
children with the above problems back into schools under duress,
the whole family (as well as the child) suffers the ensuing stress
and the truanting and nervous illnesses inevitably continue. Education
at home may prevent further distress and the possibility of the
child returning to school at a later date remains an option.
Flexi-time or Part-time schooling
There may be families who would prefer a flexi-time
Under s444(3)(a) of the 1996 Education Act
Any school age child who goes
to school at all must attend regularly, but absence with
leave does not count as irregular attendance. During such
absences the child is officially at school, but is effectively
being educated off site. (S)he is therefore covered for insurance
and attracts full funding. Such arrangements are at the discretion
of the school. (s 444 (9))
Home Educating Children
with Special Educational Needs.
Children with special educational needs (SEN),
are defined in section 312 (1) of the 1996 Education Act as having:
"a learning difficulty
which calls for special educational provision to be made for him."
A learning difficulty is further
defined with regard to children over 5 in section 312 (2):
"(a) he has a significantly
greater difficulty in learning than the majority of children of
(b) he has a disability which either prevents or hinders him from
making use of educational facilities of a kind generally provided
for children of his age in schools within the area of the local
The right to home educate children with SEN
is upheld by section 7 (b) :
"The parent of every
child of compulsory school age shall cause him to receive efficient
full-time education suitable ;
a) to his age, ability, and aptitude, and to any special educational
needs he may have, either by regular attendance at school
No particular qualifications or special needs
training are required of parents fulfilling their Section 7 duty
by educating otherwise.
Section 313 (2) of the Act gives LEAs a duty
to have regard to the provision of The Code of Practice on the
Identification and Assessment of Special Educational Needs, issued
by the secretary of State.
Identification and assessment
of children with SEN
Section 321 (3) (d) states that, in the area
of SEN only, LEAs are responsible for a child :
"if he is in their
area and....he is not a registered pupil at a school but is not
under the age of two or over compulsory school age and has been
brought to their attention as having (or probably having) SEN"
Under section 321 (2) LEAs have a duty to
formally identify a child for whom they are responsible
"he has special educational
needs, and it is necessary for the authority to determine
the special educational provision which any learning difficulty
he may have calls for."
Although the LEA have a responsibility toward
home educated children with special educational needs, in their
area, they would only need to formally identify and assess
those children if the authority themselves needed to make provision
for those special educational needs. Where the parents and the
LEA are satisfied that the needs can be catered for by the parents
in a home based education, embarking on the formal assessment
and statementing procedure should not be necessary.
Statements of SEN
The statementing procedure is primarily designed
to facilitate the LEA in deciding what special educational provision
it may need to make beyond that being provided by a school or
Section 324 (1) states that:
"If, in the light
of an assessment under section 323
it is necessary for
the local educational authority to determine the special educational
provision which any learning difficulty he may have calls for,
the authority shall make and maintain a statement of his special
If an LEA carry out a statutory assessment
of a child educated otherwise and conclude that the childs
special educational needs cannot be met without extra funding
by the LEA or that it would be beneficial for the LEA to monitor
the childs progress, a statement must be made. The LEA must
first serve the parent with a proposed statement (Schedule 27
(2) (a)). A parent may, within certain time restraints, appeal
against any part of the proposed statement. The LEA may also decide
that a statement will not be necessary. In such cases they must
give notice in writing of the decision and of the parents
right to appeal (section 325 (1) ) .
The SEN Code of Practice section 4.18 states
that the LEA should also consider issuing a note in lieu
of a statement, against which a parent wanting a statement
may also appeal.
The LEA has a duty to honour the rights of
parents to make representations, to request reassessment and to
appeal to the Special Educational Needs Tribunal as detailed in
sections 326 and 328 and Schedule 27 of the 1996 Act, and to fully
inform the parent of those rights.
Where issue of a statement is necessary and
an LEA is to make provision for the childs special educational
needs, section 319 of the Act allows for the provision to be made
by the LEA otherwise than in a school.
Maintenance of a statement
When a statement is issued, for as long as
it is in place, the LEA have a duty to maintain it and to review
the statement and provision for the childs special educational
needs, annually. The Code of Practice 1994 section 6:1 also allows
for the LEA to review the statement at any other time.
At review, the statement of a child who is
deregistered from school, for the purposes of education otherwise
may need amendment, particularly:
- Where section 4 of the statement names
a particular school or type of facility it will need to be altered
to education otherwise than at school.
- It may be clear to the parent and the LEA
that some of the special provision can now readily be provided
by the parent.
At review, it may be possible to cease the
statement of a child educated otherwise.
- The child may no longer need extra provision
once out of the school environment
- It may be clear to the parent and the LEA
that all of the special provision can readily be provided by
the parent without LEA oversight.
A detailed account of the law and home education
further qualifying the points made throughout this document, can
be found in 'Home Education and the Law (1991) by Dr. David
Deutsch & Kolya Wolf, which has been subject to careful checking
by a solicitor and by Counsel's Opinion, to ensure that "all
statements of law, regulations and proper legal and administrative
practice that it contains are correct". (Preface to 2nd Edition).
(3rd edition due for publication autumn 1999)
Deutsch & Wolf observe that :
"It was never the
intention of Parliament to compel all children to attend school.
Nor was it ever the intention to specify, or to empower LEAs to
specify, the form and content of every child's education. Parents
who wish to provide a 'proper education' for their children otherwise
than at school cannot legally be prevented from doing so......,
and parents do not need to obtain permission or approval from
anyone....... " (Pg.3)
"...There exist many contending
educational philosophies, giving rise to many different styles
of education which are reasonable even though they differ radically
amongst themselves .... The issue is not whether the education
is approved of or disapproved of by the LEA or by anyone else."
"Both among experts and among
laymen there is no unanimous agreement as to what constitutes
a proper education......" (Pg.6)
This document is the work of a large number
of home educators including, but not exclusively, members of Education
Otherwise and Choice in Education. It was edited
by Neil Taylor, and checked for legal accuracy by a team of home
Free copying and distribution of
this document, unaltered and in its entirety is encouraged.