In England and Wales parents have the primary responsibility for ensuring that their children receive an effective education. Although this responsibility is usually delegated to schools some parents choose to exercise it directly by providing an education based at home.

The following summarises the legal responsibilities of parents and local education authorities in relation to elective home education of children of compulsory school age.

Responsibility of Parents

The responsibility of parents is clearly established in section 7 of the Education Act 1996 (previously section 36 of the Education Act 1944):

The parent of every child of compulsory school age shall cause him/her 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.

Definition of Suitable Education

An interpretation of some terminology used in the Education Act 1944 (replaced by the 1996 Act) was provided by an appeal case which was brought at Worcester Crown Court in 1981 (Harrison & Harrison v Stevenson). In this case, the judge defined a ‘suitable education’ as one which was such as;
1. to prepare the children for life in modern civilised society, and
2. to enable them to achieve their full potential.

The diversity of modern society and styles of education give parents considerable freedom of choice in enabling children to achieve their potential. In the case of R v Secretary of State for Education and Science, ex parte Talmud Torah Machzikei Hadass School Trust (1985) (Times, 12 April 1985) Mr Justice Woolf held that:
education is ‘suitable’ if it primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child's options in later years to adopt some other form of life if he wishes to do so.

Examining the meaning of the expression full-time shows the hours spent on teaching in schools are not relevant to home education, which generally takes place on a one-to-one basis, or in small groups, in very different conditions. Provided the child is not a registered pupil at a school, the parent is not required to provide any particular type of education, and is under no obligation to:

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. (s 437 (1))

The LEA’s legal duty is concerned solely with children who appear not to be receiving suitable education. Beyond this, nothing in the Act requires an LEA to carry out regular monitoring of provision where a child is receiving education otherwise than at school.

However, case law (Phillips v Brown, Divisional Court [20 June 1980, unreported]) has established that an LEA may initially ask parents who are educating their children at home for information in order to assess whether it appears to the LEA that no suitable education is being provided.

In Phillips v Brown, 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 Education Act 1996] 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 s 7 of the Education Act 1996].

If an LEA chooses to approach a family and informally ask for information, parents may establish that a child is receiving an efficient and suitable education in a number of ways. Parents might, for example, offer either
a written report,
samples of work,
a meeting at their home, with or without the child being present,
a meeting elsewhere, with or without the child,
an endorsement of the educational provision by a recognised third party, or,
information in any other appropriate form.

The DfES make it clear that parents have a choice about how they provide information about their educational provision:

LEAs have no automatic right of access to a parents' home. Parents may wish to offer an alternative way of demonstrating that they are providing suitable education, for example through showing examples of work and agreeing to a meeting at another venue.

Occasionally, after examining all the information provided by the parents, an LEA may have genuine concerns about a child's education, but the way that information is presented should not form the basis for these concerns. Parents need only present information that would, on the balance of probabilities, convince a reasonable person that a suitable education was being provided.

Disputes Between Parents and LEAs

It should be possible to resolve most disputes without recourse to formal statutory procedures. However, where children of compulsory school age are not being educated at school and the LEA has serious doubts about the parents’ educational provision, the following scenario will apply.

Initially, the LEA asks informally for information and gives the parents reasonable time to provide it. Then in the light of any response it considers whether it appears that the child is not receiving suitable education. Unless at this point the answer is 'Yes, it does appear that the child is not receiving suitable education,' no further steps should be taken.

If, after considering all the information provided by the parents, the LEA is concerned that the child may not be receiving suitable education, it should explain this to the family and give them further time and opportunity to explain or improve their arrangements.

Only after this, if it still appears to the LEA that the child is not receiving suitable education, should it take the first step towards a school attendance order. This step will be to serve a formal notice giving the parents two weeks to satisfy it about the suitability of their provision.

The LEA should bear in mind, however, that should the case proceed to court the action will fail if the parents can satisfy the court that they are providing a suitable education. The court will accept evidence in a number of forms and will be looking for evidence that would convince a reasonable person on the balance of probabilities (rather than beyond all reasonable doubt) that a suitable education is being provided.

At any stage during this process the parents may present evidence that they are now providing a suitable education and apply to have the order revoked.

Deregistration

The Education (Pupil Registration) Regulations, 1995 set out the conditions under which a pupil's name must be removed from the admission register of a school. Under Regulation 9(1)(c), the name of a school-age pupil 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.

Parents of children who have been registered at a school and who begin home education need to inform the school that they are providing education otherwise than at school so that the child's name can be removed from the register. Parents do not need to ask permission from the LEA to begin home education and, they are under no obligation to inform the LEA of their intention. Under Regulation 13(3), however, the proprietor of the school must report the deletion of the pupil's name from the admission register to the LEA within ten school days.

Parents seeking to home educate children registered at a special school, however, must obtain the consent of the LEA to withdraw their child from the school (Education (Pupil Registration) Regulation 9(2), 1995). Consent is required in these cases only to smooth the transition to home education for children with complex special needs. The regulations are not intended to be a hindrance to these children being educated at home and any such suggestion would be discriminatory.

Part-time School Attendance

An increasing number of parents are requesting a more flexible use of schools, and some schools have been happy to accommodate them. This part-time schooling, where children are given permission to receive part of their education off-site, is a matter for schools rather than the LEA to negotiate with parents.

Any ‘school age’ child who goes to school at all must attend regularly, but under s 444(3)(a) of the 1996 Education Act 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. The child is therefore in the same position as any registered pupil as regards insurance coverage and also attracts full funding. Such arrangements are at the discretion of the school. (s444(9))

Home Educating Children with Special Educational Needs

The right to home educate a child with special educational needs (SEN) is stated in section 7 of the Education Act 1996:
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 responsibilities of parents who are home educating a child with special educational needs are the same as those of any other parents, whether or not the child has a statement. The government has made it clear that parents of children with statements do not need to arrange the provision specified in the statement but need only make suitable provision under s 7 of the Act, and it encourages LEAs to recognise that provision at home will be different from provision at school.

Where a child does have a statement of special educational needs and begins home education, the LEA’s statutory duty to undertake an annual review continues. This review includes assessing whether the statement is still appropriate and it may be possible to alter or even cease to maintain the statement depending on the child's current circumstances. Should it be necessary for the statement to remain in force, the parents continue to have responsibility for the education provided and the LEA has a duty to act if it appears that the child is not receiving a suitable education under s 7.

At times there may be disagreements between parents and the LEA about how a child's special educational needs should be met. There are some situations in which parents can appeal to the independent Special Educational Needs Tribunal. However where this is the case, then the LEA would have a legal duty to inform the parent of their right of appeal.

Parents of children with special educational needs do not need to have any special qualifications or training to assume direct responsibility for their children's education. Furthermore, they do not need to inform the LEA of their intention to home-educate unless the child is registered at a special school when the consent of the LEA is necessary to withdraw the child from the school. Consent is required in these cases only to smooth the transition to home education for children with complex special needs and it would be discriminatory for an LEA to withhold consent where a parent wishes to home educate a child who is registered at a special school.