4. Contact between home educating families and local authorities
4.1 Legal duty on local authorities
It is worth repeating here the relevant legislation which relates to ongoing contact between home educating families and local authorities.
Education (Scotland) Act 1980 - Section 37(1)
(1) Where a child of school age has not attended a public school in the area in which his parent is residing, or has attended such a school and has been withdrawn therefrom with the consent of, or excluded by, the education authority, then, if the authority are not satisfied that the parent is providing efficient education for him suitable to his age, ability and aptitude, it shall be the duty of the authority to serve a notice on the parent requiring him within such time as may be specified in the notice (not being less than seven or more than fourteen days from the service thereof) either -
(a) to appear (with or without the child) before the authority and give such information as the authority may require regarding the means, if any, he has adopted for providing education, or
(b) in the option of the parent, to give such information to the authority in writing.
Education (Scotland) Act 1980 - Section 37(2)
If a parent on whom a notice has been served in pursuance of subsection (1) above fails to satisfy the authority that he is providing efficient education for the child suitable to his age, ability and aptitude or that there is a reasonable excuse for his failure to do so, the authority shall make an attendance order in respect of the child in accordance with the provisions of section 38 of this Act.
There is no statutory duty upon local authorities to 'monitor' ongoing home education provision. However, in law they have a duty to serve a notice on any parent who they are not satisfied is providing efficient education suitable to their child's age, ability and aptitude. The law does not specify how, and to what extent, local authorities should actively seek the information that will inform them on whether home educating parents' educational provision is suitable and efficient. Section 4.2 overleaf sets out recommendations on this.
If the local authority has reason to believe that an efficient education is not being provided for a home educated child, they have a duty to intervene. This duty applies equally in relation to all children, regardless of whether or not they have previously attended a local authority school in the area.
We recommend that authorities should ordinarily make contact on an annual basis with those families they know to be home educating in their area. This annual contact is not a statutory requirement. However, it is a suggestion as to how authorities may reasonably inform themselves in order to fulfil their duty to serve a notice on any parent who is not providing efficient and suitable education.
We recommend that contact is made in writing initially to the family, seeking a meeting or requesting an updated report. The primary purpose of the contact should be for the authority to satisfy themselves that suitable and efficient education is being provided. This can be done either through a meeting, at a mutually agreed location, or through other means, e.g. the submission by the family of written, recorded or electronic material. Authorities should not be prescriptive about the format in which information can be submitted. The important factor is whether the information can demonstrate that suitable and efficient education is being provided.
Following this contact, the local authority should write to the family letting them know the outcome, i.e. whether or not the educational provision was seen to be suitable and efficient. If there was no problem with the educational provision, there will be no need for further contact until the following year. Where there are concerns about the efficiency or suitability of the education being provided, the local authority should make the exact nature of these concerns clear to the parent.
If, from whatever source, an authority becomes aware of concerns about the home education of any child, outwith the normal contact time, they will need to gather the necessary information in order to form a view on whether those concerns are justified or whether the parents are providing an efficient education suitable to the age, ability and aptitude of the child.
4.3 Access to the child and home
It is important to acknowledge that learning takes place in a wide variety of environments and not simply in the home. Where the education is taking place in the home, it may be thought desirable for a local authority to have the opportunity to see the child in that learning environment, to enable them to see the provision at first hand, and thus determine whether suitable and efficient education is being provided. The authority does not, however, have a right of access to the home and the child. Trusting relationships may need time to develop before a parent is willing to invite an officer to visit. Where a parent elects not to allow access to their home or their child, this does not of itself constitute a ground for concern about the education provision. Depending upon the circumstances, there may be occasions when a denial of access raises child protection concerns, in which case the general principal set out in section 4.6 should apply.
Although it is recognised that the learning environment can have a bearing on the effectiveness of learning, local authorities should, in the vast majority of cases, be able to discuss and evaluate the parents' educational provision by alternative means. Parents might prefer, for example, to write a report, provide samples of work, either in hard copy or electronically, or provide evidence in some other appropriate form.
4.4 Exceptional circumstances
Where the authority has concerns about the education provision which are not allayed by the presentation of written or alternative forms of evidence, and ongoing dialogue, and the only way the authority can clarify whether suitable and efficient education is being provided is to seek access to the home environment, then they may request to do so. However, the authority must have demonstrable grounds for concern and must outline those grounds to the parent when requesting access to the home. If, in these circumstances, the parent refuses to allow access to the home, the authority might reasonably conclude that they have insufficient information to satisfy themselves as to the efficiency and suitability of education provision, and serve a notice on the parent under Section 37 of the 1980 Act.
4.5 Making an attendance order
A parent's wish to educate a child at home should be respected and, where possible, effort should be made to resolve issues about provision by a process of ongoing dialogue before Section 37 is invoked. Only in extreme cases should notice be served, i.e. where
- The education is clearly not efficient and suited to the age, ability and aptitude of the child, and this situation is unlikely to be resolved by further ongoing dialogue, or
- The authority has made every effort to secure the information required to enable it to satisfy itself that the education is efficient and suited to the age, ability and aptitude of the child, and that information has not been provided by the parent.
Under Section 37, notice will allow between 7 and 14 days for the parent to provide the education authority with whatever information they require to satisfy themselves about the suitability of the education. The parent may choose to do this by meeting with the authority in person, or by supplying the information in writing. The authority should make an attendance order where the parent, on whom notice has been served, fails to satisfy the authority that efficient education is being provided, suitable to the age, ability and aptitude of the child, or that there is reasonable excuse for his or her failure to do so.
4.6 Child protection concerns by local authority officers
The welfare and protection of all children, both those who attend school and those who are educated by other means, is of paramount concern and is the responsibility of the whole community. As with school educated children, child protection issues may arise in relation to home educated children. It should not be assumed that child protection issues are more likely to arise for children who are home educated. If any child protection concerns come to light in the course of engagement with children and families, these concerns should immediately be referred to the appropriate authorities using established protocols.
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