Yesterday we had the bad news that the home educators in Portsmouth had lost the Judicial Review.
A lot of people are now panicking about what this means, especially for unschoolers, but at the moment we need to be patient, let Portsmouth HErs regroup and talk to their solicitor in order to determine whether there are any next steps and what they mean.
In the meantime, I thought I'd do a readthrough of the report in case it is helpful to anyone.
(Note: I am not a lawyer. I have not studied law. This is not legal advice or assertions, but my own thoughts and feelings, which may be wrong if I haven't understood the nuances.)
THIS is the link to the full 105 paragraphs of the report. It is split into
- A Introduction;
- B Permission and Hearing;
- C Statutory Framework;
- D Secretary of State's Guidance
- (1) Children Missing Education 2016;
- (2) Elective Home Education Guidance to Local Authorities 2019;
- (3) Elective Home Education Parents 2019;
- E Defendant's Policy Guidance;
- F Case Law;
- G The Facts of the Present Case;
- H Discussion;
- Conclusion.
What is interesting about the definition I've linked to, is that the Intervener shouldn't have a direct interest in the lawsuit (though they may have interest in the outcome). I don't think the Secretary of State is neutral nor the best person for this role, but back to the text.
Then there's a section thanking the Secretary of State for getting involved.
Worth reading through them, if you haven't before, but there's no need for me to comment on it.
Response to EHE Guidance (LAs) 2019
Comparing HE Guidance for LAs and Parents
"Furthermore, it is likely to be much easier for a parent to show that the education provided is suitable if attention has been paid to the breadth of the curriculum and its content, and the concepts of progress and assessment in relation to your child's ability."So, the law and the guidance say you don't have to do this, but tough shit, we're going to make you do it anyway. As a reminder, this is the list that HErs are not required to do:
There are no legal requirements for you as parents educating a child at home to do any of the following:
- acquire specific qualifications for the task
- have premises equipped to any particular standard
- aim for the child to acquire any specific qualifications
- teach the National Curriculum
- provide a 'broad and balanced' curriculum
- make detailed lesson plans in advance
- give formal lessons
- mark work done by the child
- formally assess progress, or set development objectives
- reproduce school type peer group socialisation
- match school-based, age-specific standards
Paragraph 36: Then in 2020, the LA added a section into its policy document, stating that the education should be "Broad", "Balanced", "Relevant" and "Differentiated". That there should be a "curriculum" of some description being used. All of which are unlawful and go against the guidance.
There is also a list of reasons given as examples of why an education may be deemed unsuitable, including "There is no or very limited examples of work submitted.", "There is no or very limited detail of how the child's progress is being monitored or examples of work to demonstrate relevant progression", and "There is no clear academic or time structure." Again, all of which are unlawful and go against the guidance.
Paragraph 37: The LA has then 'clarified' by stating " a written report alone, however detailed it may be, should not be relied on in order to satisfy the council that suitable education is taking place." i.e. parents cannot be trusted to tell the truth. We will not accept a written, signed document.
Paragraph 38:
"The defendant subsequently removed the "clarification", on the basis that it considered the passage was causing unnecessary confusion."
F Case Law
This paragraph goes through a previous example of case law: Phillips vs Brown 1980.
This is the case where it says that if you don't give any evidence to the LA, they are in their right to assume that education is not taking place.
G The Facts of the Present Case
(Paragraphs 42-64)
- 17 July 2020 the LA wrote to the HEr
- 26 July2020 the HEr gave a report.
"There followed a description, by reference to subjects, of what she said the children had been doing." - 7 Aug 2020 LA asked for more detail.
"1. What progress/achievements has your child made this academic year? How has this been monitored and recorded? Can you provide supporting evidence of this?
2. Can you provide any supporting documents of completed educational subjects covering this academic year? Is this marked and dated?
3. Can you provide dated reports, assessments or feedback from the online resources which are being used?" - 8 Aug 2020 HEr replied that education was suitable, and LA shouldn't be monitoring. She gave more detail, but said work was not marked nor dated.
- 3 Sept 2020 LA says that a report alone isn't suffient.
"This was because "for every example of a parent whose child is receiving education and performing exactly as described in the report, there will be another example of where this is not the case"." - 6 Sept 2020 HEr asks specifically for the LA's concerns.
- 10 Sept 2020 LA emailed stating "concerns centred "around evidence of ability to read and write to a level suitable to age, aptitude and ability for example and indeed evidence of the programme being described, taking place"."
- 15 Sept 2020 HEr gives yet more info, stating the children are working above their school-peers-ages in various subjects and have progressed over the year.
- 29 Sept 2020 LA says that isn't good enoughand issues Notice to satisfy (NTS).
- 9 Oct 2020 HEr makes official complaint about their treatment (Stage 1).
- 2 Nov 2020 LA says due to rise in numbers HEing there have been more unsuitable education.
"Cases where the parents concerned meet the defendant, demonstrating suitability of education and sharing examples "usually provide a much more comprehensive picture, which in turn enables the view to be reached more swiftly and easily". " - 4 Nov 2020 HEr wrote "To whom to it may concern" letter again setting out "a list of some of the examples of completed subjects [the children] have done as per your request" with even more detail. Complaint rises to Stage 2.
- 25 Nov 2020 LA served notice to issue School Attendance Order (SAO).
- 1 Dec 2020 HEr provides yet more information and an affidavit signed by herself and her husband.
- 14 Dec 2020 LA serves SAO.
- 16 Dec 2020 LA responds to Stage 2 Complaint
" it could confirm it had no evidence of any safeguarding concerns regarding the claimant's family."
"The defendant's officers had been "clear that a written report alone, however detailed it may be, is unlikely to be sufficient to enable the council to determine that suitable education is taking place"." - 17 Dec 2020 Complaint rises to Stage 3.
- 11 Jan 2021 LA tells HEr there has been failure to comply with SAO and they will start legal proceedings.
- 18 Jan 2021 Letter of action from Portsmouth Home Education Group.
- 20 Jan 2021 LA responds to Stage 3 complaint reiterating that a written report alone is not sufficent because too many parents lie [Musings' paraphrase].
- 25 Jan 2021 LA refusd to revoke SAO.
- 22 Feb 2021 Present claim issued.
