A recently published and very interesting response to a Freedom of Information request has been found, showing correspondence between the Department for Education (DfE) at Westminster and several councils in England. It provides some very helpful and clarifying insights regarding legislation on EHE and local council conduct.

At present, the same primary legislation applies for England and Wales in the Education Act of 1996.

Whilst education is meant to be a devolved matter, the former Welsh government repeatedly claimed that its officials worked closely with the DfE, for example around the decision to request that Westminster continue to legislate for Wales on this devolved matter.

Summary of observations from this Freedom of Information Request:

(1) No duty to be satisfied at informal enquiries.

The DfE clarify that there should not be false conflation of informal enquiries (under s.436A of the Education Act 1996) and formal ones under s.437(1)

The DfE clarify that there is no requirement for councils to be “satisfied” that education is suitable under s.436A, but that the function of informal enquiries under s.436A is simple to see “if it appears” a child is not receiving suitable education. The DfE clarify that informal enquiries should only be to consider if there is the “appearance” of suitability, not to be satisfied of suitability of education.

For example,

“A local authority is only required to commence more formal proceedings, in the form of a preliminary notice (s.437(1) of the Education Act 1996), should a child appear not to be receiving suitable education.

 The focus of these (informal) enquiries is to establish whether the child appears to be receiving suitable education, and there is not a requirement to satisfy a local authority that education is suitable at this stage.

The need to satisfy the local authority is only required once a preliminary notice has been issued and a school attendance order would be issued if a local authority was not satisfied”

(page 42, emphasis by DfE)

With informal enquiries depicted as requiring an individualised and “light touch” (for example, page 43).

This further highlights the misleading confusion and conflation in the wording 2023 guidance on EHE produced by the former Welsh government (WG).

The guidance produced by the former Welsh government repeatedly incorrectly refers to LAs needing to “satisfy itself”, be “satisfied”, be “satisfied of the suitability”, “make decisions about suitability” at the level of informal enquires, (for example sections 4.21, 4.22, 4.23). This is in contradiction to the clarifications provided by DfE on the appropriate application of the same primary legislation produced by Westminster.

(2) The DfE also clarify that councils cannot and should not insist on samples of work as a routine requirement, nor take legal action for responding in other ways than by providing samples of work.

For example:

Education should not be deemed unsuitable purely because examples of work have not been provided (page 25).

A lack of samples of work, however, should not in and of itself necessarily be cause to commence formal enquiries or proceed to issuing a SAO. LAs and parents should be open to receiving and providing other means of evidence to demonstrate that the education is suitable, especially if the education approach being used does not necessarily lend itself to examples of work being supplied (e.g. unschooling pedagogy).(page 29)

This is at odds with the pressure that councils, according to the desires of the former Welsh government “should” routinely request not only samples/examples of work at informal enquiry states, but multiple samples of these. The use of “should” by the former Welsh Government has also been considered to be unlawful in connoting a requirement without lawful basis.

(3) Golden Rule of “innocent unless proven guilty”.

Furthermore, the DfE have emphasised the golden rule that families are innocent until proven guilty,
as seen, for example in,

“If a child is not attending school fulltime, the law does not assume that child is not being suitably educated” (page 36 of FoI response and 3.5 of the DfE’s guidance on EHE).

Whereas the former Welsh government chose to bring into doubt the integrity and innocence of home educating families by routinely questioning the authorship and ownership of such samples (4.21 WG guidance 2023)

(4) Lack of redress and accountability if and when councils are believed to be overstepping lawful remits

The FoI request also gives some degree of insight into the lack of redress and accountability if and when councils are believed to be overstepping lawful remits.
Essentially, all that the Secretary of State and DfE appear able or willing to do if presented with complaints or concerns is to ask the council if they follow DfE guidance/behave within respectful and lawful remits or not. If the council responds by stating that they do behave appropriately and lawfully, then there appears to be no mechanism for investigating beyond whatever claims or statements of appropriate conduct that that the council may make.

Councils are taken at their word, families concerns not so.

(5) Much of the information about approaches to home educating families is not available to home educating families.

A very significant proportion of the correspondence is fully redacted, not only personal details.
Much of the FoI is large black chunks obscuring underlying information.

Families and members of the public are unable to see the responses to concerns raised about council practices, and a considerable amount of other information.
Even though some of the correspondence relates to concerns that families had attempted to raise with the DfE regarding council practice.

Conclusion

Again, documentation highlights the questionable nature of information provided by the former Welsh government alongside the lack of redress and accountability for when this occurs, either by governments or councils.

Likewise, the lack of openness and transparency is illustrated. It is of note that an internal enquiry was required to produce even this limited level of disclosure in response to the FoI request.

We trust the new Welsh government will be adhering to the principles of open and transparent government that it has promoted as its guiding principle.