Moved by Lord Lucas
112A: Clause 48, page 42, line 2, at end insert—“(4) Regulations must, in relation to a register under section 436B, make provision about the right of appeal to an independent body against any interpretation or discretion applied by a local authority in compiling the register or in taking action based on information contained in or requested for the register.”Member’s explanatory statementThis amendment is intended to ensure that parents have the ability to argue effectively with a local authority who refuses to accept good reasons for not complying with their requests.
My Lords, in moving Amendment 112A, I shall speak to my other amendments in this group. The focus of the group is the relationship between local authorities and home educators, which is well illustrated—we shall come to it later—by the text of Amendment 128A, which reads:
“Local authorities must … recognise that the first responsibility for educating a child lies with its parents … be supportive of those who elect to educate their children at home … recognise that home education is of itself not a safeguarding issue, and … acknowledge that in many instance the decision to home educate reflects failures by other institutions of the state.”
I would add that they also must recognise that home education can be very different from school education. You inherently have much more flexibility in the structure. You do not need to follow all the systems and rules which make a school practical. You may choose to do things very differently.
There are local authorities where relationships are very good. One email sent to me, from someone under Gloucestershire County Council, said that the EHE team are a “genuine delight” and that, “Talking to our caseworker just feels like boasting about how well our daughter is doing and being reassured about any concerns I have by a person with a great deal of knowledge and experience of elective home education.” I have also talked to home educators in Coventry who described the team there as “very well liked, at ease with the children and respectful of parents” and said that 85% of home educators ask for a visit because it is an open conversation and a totally supportive experience. As a result, Coventry has a higher than average rate of school attendance orders, because the team in Coventry knows what is going on and home educators, when they know of a problem elsewhere, pass it on to the team because they know that things will be fairly dealt with by the team.
There are other local authorities—I will not name them in public, but if anyone would like to see the documentation I have on them I would be happy, if I have permission, to share it—where the team appears not to have any relevant experience either of home education or of teaching. There is a totally oppositional attitude to home educators and no understanding that the structures of schools do not necessarily apply to home education. There have been extraordinary exchanges between people who do not appear to have sufficient qualifications to be a teaching assistant and a home educator who has been a teacher for 20 years, asking the most ridiculous questions. Under those circumstances, it does not surprise me that the relationship between the local authority and the home education community breaks down; a lot of difficulties arise because of that.
I do not stick to any particular formula in my amendments in this group, but their overall objective is to suggest to my noble friend that there are ways in which the Bill can incentivise local authorities to act well, so that it is easy to be a good local authority. Being a bad local authority is a path that is not conducive to the efficient exercising of its functions, and therefore it gradually becomes one which is not followed.
I note the breadth of powers given to local authorities in the Bill, in particular the ability to make any demand of a home educator under a totally open new subsection that allows them to ask whatever they want and, if the parent does not provide it, to dump them into school attendance order proceedings without any appeal. That is a system in which it would be tremendously easy to be a bad local authority. Local authorities will have total power over home educators, with no one controlling how those powers are used. There will be no incentive for local authorities to improve. I do not think that is a reflection of the long relationships and discussions that the Department for Education has had with home educators. It was immensely surprising to the home education community that the Bill should be written in this way. I very much hope that we will be able to persuade the Government to make some changes.
Amendment 112A and other amendments suggest that there should be a right of appeal—a space in which a home-educating parent can argue in front of an independent tribunal with a local authority. As we are giving local authorities such huge powers, in fairness, there surely must be some form of appeal—some outside oversight over whether they are being reasonable.
Amendment 130A asks that data held by the local authority should be made routinely available to home educators. If we want a good, open, conversational relationship between good home educators and their local authority, sharing information plays a very important part.
We should have available to us, as legislators—indeed, as the Government—data on the penalties imposed by local authorities. That is a very good indicator of the state of relationships between the home education community and local authorities. We need early indicators in the system so that we can see when things are going right or, maybe, not so right.
Amendment 136ZA brings in the phrase “light touch”. This is one much used in conversation between the Department for Education and home educators. I should really like to know what the department means by it. It startles me to think that some local authorities whose work I have looked at could be defined as light touch, but perhaps it can. I need to understand where the department stands on this. I should like an arrangement where the people in local authorities charged with looking after home education had some relevant qualifications and experience.
If you have in a team someone who knows what home education looks like and someone with strong teaching experience, that seems to be the combination, looking nationwide, that works really well in local authorities. The main thing is that the people in the local authority should have enough experience and qualification to feel confident in the judgments they are making. If not, they have to rely on getting out the baseball bat and beating home educators around the head, because they do not understand the arguments being made. Getting qualifications and a level of performance into local authorities is an important aim.
On Amendments 137B and 137C, I say that being able to tip parents into punitive action after just one fault does not seem the right way: there should be a pattern of behaviour that then requires the whips and scorpions to be got out. Amendment 137B states:
“Except in circumstances of deliberate rule breaking, the school attendance order process must be preceded by a process of communication where the education being provided can be adjusted and services under section 436G offered.”
In other words, this should be a supportive dialogue between the local authority and the home educator. Where the home educator is failing, there are conversations about how things could be made better; where the local authority can help with that process, it does; and only if that process breaks down do we get into the punitive provisions. That is the nature of the relationship between home educators and local authorities in a lot of areas. That would be a better template for the legislation: to take the pattern of behaviour which is current in local authorities where there is a very good relationship between home educators and the local authority, rather than the pattern of behaviour exemplified by the more punitive local authorities.
Amendment 137C is another right of appeal. Amendment 138ZA looks at dealing with a child who is in mid-assessment. If a school recommends a child for assessment for special needs, and then the parent withdraws that child because there is clearly a problem in school and they think home education will be better, that process of assessment ought to be completed before the local authority can tip the parent into a punitive process. The process of assessment is entirely in the hands of the local authority; it can make it fast if it wants to. I know a lot of them have long backlogs on this, but that is up to them—they can prioritise a child if they are worried about them—but they should not be able to tip parents into a school attendance order process where they have failed to provide the assessment that the school has said is necessary.
Similarly, if it is clear to a medical practitioner that a mental health assessment is needed—this would be common in the case of people suffering from school refusal or trauma as a result of events at school, when a proper assessment needs to be made—it seems entirely appropriate that the local authority should wait until that process is complete, and until there is not an independent medical professional standing in the way saying, “No, don’t do this now. We don’t know what the right thing to do for this child is.”
Amendment 138A looks at things in a more general sense. It says that this is a really disruptive process for the family and the child. Local authorities really need a proper justification for what they do and need to ascertain where the child stands in this process.
Amendment 143B asks that a refusal of the revocation of a school attendance order must be reasonable. That may be implicit in the law as it stands, but I would be grateful if my noble friend could confirm it.
Amendment 143F argues that if a parent re-offends, the circumstances should be reinvestigated as they may have changed and things may be different. Just having the ability to reimpose an endless series of penalties does not seem in accordance with the general practice of English law.
Amendment 143I gives the Government an opportunity to justify why stronger penalties are needed. We seem to be entering a level of penalties that I find excessive in the context of not sending your child to school, but I would be interested to listen to what my noble friend said.
Although it is not in this group, Amendment 143IA asks that Ofsted should have oversight of the local authorities’ performance on elective home education, which would be a very constructive way of making sure that local authorities were aware that if they fell down seriously, in looking after home educators, somebody would be on their tail. I beg to move.
My Lords, I thank the noble Lord, Lord Lucas, for his introduction to Amendment 112A and the many others in this group. Amendment 112A is important, as it gives parents the right of appeal to a local authority that refuses to accept their reasons for why their child is not being taught in school.
I am particularly supportive of the approach taken by the noble Lord, Lord Lucas: to be seen as being open and positive with parents who want to home educate their children. Some years ago, I saw an excellent example while on a study tour of Education Otherwise in California. I visited the American River Charter School, an independent home school based at Sierra community college, north of Sacramento. It was a parent-driven, teacher-supported, not in the mainstream school, the equivalent of an FE college. Many of the students participate in educational field trips and come together to do lab work with supervising teachers, but only if the parents want it.
The result is that, through links with the local authorities, the pupils participate much more widely in sports programmes and other elements that are not available in the UK—at least, I have not encountered them. Services and resources are provided to students through a dedicated budget of instructional funds allocated to enrolled students by the school’s board.
Amendment 130 discusses the issue that I raised two groups ago: there must be guaranteed local places to sit national exams for “educated otherwise” students. I am glad to see that here and hope the Minister takes on board the importance of that happening.
Amendments 130A and 134A, in the name of the noble Lord, Lord Lucas, provide for the transparency of data—the former on an annual copy of data related to fines and penalty notices. I agree with that.
I will briefly comment on the last group on Monday, when the Minister said that she would consider whether the register should be published and that she would come back to your Lordships. I cannot rise from my seat before the Minister sits down to say that this matter really concerns me. The publication of this sort of data should not be available to anyone and, if it is not the Government’s intention that it should not be published at all, it should not be brought into law on the say-so of the current Government. The problem we always have is that a future Government may choose to publish that data.
Amendment 138ZA, in the name of the noble Lord, Lord Lucas, echoes my concerns about school attendance orders, as drafted in the Bill, not making it explicit that special educational needs assessments may not have been carried out, that a child is awaiting a mental health assessment, or that—in the case that I have raised in other groups—medical practitioners have recommended that a child should not attend school. This is vital.
Amendment 143I says that the current fines system should be retained and proposes to remove lines 18 to 20 from Clause 50. The current system is set out well on the government website; it is like a ladder of clearly escalating issues: first, a parenting order, then it moves on to an education supervision order, then a school attendance order, and then a fine. It says that each parent can be fined up to £60, which might rise to £120 each if not paid within a certain amount of time. If not paid at all, you may be prosecuted. In the section on prosecution, it says you could get a fine of up to £2,500, a community order or a jail sentence of up to three months, and that the court could also give you a parenting order.
However, Clause 50 of the Bill goes way further than that. It says a person may be liable
“to a fine not exceeding level 3 on the standard scale, or to a term of imprisonment not exceeding 51 weeks, or to both.”
The jump from three months—12 weeks—to 51 weeks is extraordinary and very worrying. As an indicator, at the moment the Sentencing Council guidelines advise six months for threatening with a weapon and six months for a second offence of possessing a weapon. As I know from my experience and that of my colleagues, the person who stalked and harassed me and them for over two years, at over 100 events, was given a 12-month suspended sentence. I am looking forward to hearing the Minister explain why this enormous leap from 12 weeks to 51 weeks is deemed appropriate. Even if it is intended to be used only rarely, it seems very strong indeed. I hope the Minister will reconsider.
In the meantime, I support this amendment. If it were divided on at a later stage, I would certainly hope that these lines are removed from the Bill.
I shall speak to Amendments 130 and 139 in my name. I can be pretty brief, given the comprehensive outline that the noble Lord, Lord Lucas, has given, and indeed the words from my noble friend Lady Brinton.
Amendment 130 addresses the difficulty and expense of home-educated children sitting public examinations. They need to find a school or examination centre that will accept them, since not all will if they do not know the children and do not wish to see their results reduced by young people who may not have been taught for their exams and whose results may bring down their overall ratings. That is quite a hurdle for many home-educating parents.
Having found somewhere for their children to sit the exams, home schoolers then have to pay for them. That can easily run to hundreds of pounds. Home schoolers are not necessarily wealthy people and may find the cost of exam fees prohibitive. However, home-educated children are entitled to get credit for their knowledge and skills, just like school-educated children. This amendment probes the possibility of financial assistance for children who could otherwise not afford to be awarded GCSEs or A-levels. Could there, for example, be a system for those on universal credit or of limited means to be helped with exam fees?
Amendment 139 suggests that the opinion of the authorities should be supplemented by a suitably qualified independent assessor to ensure that home educators are given a fair hearing if their child is subject to a school attendance order and the parent or guardian feels that it is inappropriate. The noble Lord, Lord Lucas, has already touched on the reasons for that. It is an extra check and balance for those who do not want their child to attend school and feel that the order is not in the best interests of the child, and fear too an overbearing authority. This is surely a measure that the Minister could acknowledge and accept.
My Lords, this is an important group of amendments, very well introduced by the noble Lord, Lord Lucas; like the noble Baroness, Lady Garden, I do not propose to spend much time going over the points that he has made. I read the somewhat testy exchanges—when everyone was a bit tired, I think—at the end of the day on Monday, so it is nice to be having a debate about how we can better support parents rather than causing them any anxiety, if that is the concern.
In that context, having some means of appeal is really important. That might be through the ombudsman that the noble Lord, Lord Wei, is proposing in Amendment 171X or by some other means. I have been sat here wondering whether the Office of the Schools Adjudicator might be another possibility of a pre-existing office that could perform the function of refereeing and providing some kind of safeguard against the possibility that some rogue local authorities might overuse some of the powers being talked about; that is a worry, given the variety among local authorities that the noble Lord, Lord Lucas, talked about.
Amendment 130 from the noble Baroness, Lady Garden, about exams, which I put my name to, is important. It is really important that parents have a positive reason to register and are not just doing it because the law tells them to and that if they do not then they will be subject to penalty. This would be one of those positive reasons that we could offer. I am not sure whether the local authority having to find the funds itself is the answer because, as we know, local authorities struggle to find the funds to do much these days. If the Minister were to agree with this, perhaps she could reflect on the national funding formula or some other means whereby the money could find its way to elective home educators so that their children can have a link with a school and an examination centre. That all seems very positive in the wider scheme of things.
I share the concerns of the noble Baroness, Lady Brinton, about the scale of change regarding the penalties being proposed for parents who fail to abide by this. There is a further amendment on school attendance orders and there having to be some kind of judgment about what is suitable education from someone who at least knows something about education; that is also an important safeguard that we could put in to protect parents.
My Lords, I shall speak to my Amendment 171X on the proposal for an ombudsman to provide protection for home educators. I support many other amendments in the group. I pay tribute to my noble friend Lord Lucas for putting this focus on the need to provide protection from overzealous local authorities.
I also need to apologise for not speaking at Second Reading due to a variety of home and personal health matters. I also need to declare an interest, in that I am part of a family that home educates. I cannot disclose all the details, which are private, but I have two sons whom primarily my wife home educates. She is incredibly well qualified for that work. They are teenagers and their education is going incredibly well. I fear I might be the only Peer in that situation, but if there are any others we might be able to form a little club.
I want primarily to speak from this perspective, as somebody from a home education family, on the Bill and the relevant clauses. First, as many others have done, I honour the many parents and caregivers, including my wife, who work tirelessly to raise their children, often at no cost to the state, for their outstanding outcomes and work in a variety of different contexts and for a variety of different reasons. If noble Lords want to find out more about how amazing home education can be, an exhibition has just been announced in Parliament in the Upper Waiting Hall, commencing the week of
I need to start by saying that I cannot support the Bill. I believe much of it was designed after consultation merely to make the lives of officials in the department and at large in local authorities easier. Not enough is in it to help parents and families, or indeed society. It feels like it was a bit of a one-sided consultation.
We shall see how colleagues in the other place view the Bill. Arguably, the way it is currently drafted in many parts is an affront to freedom and makes a mockery of our claims to be about rolling back the state and enabling ordinary citizens to take back control. If it transpires, as has been reported in the press, that the Bill was launched without proper political vetting and that it will be radically altered by the other place when the politicians have time to look at it, then we all have to ask why our time is being wasted with what appears to be an incredibly lazy piece of legislation, designed to make officials’ lives easier, not those of citizens.
Frankly, I would rather that this part of the Bill, on registration of children who are not at school, which includes many in home education, did not exist, especially in its current form. It has not been thought through; more consultation is needed. Registration is a hammer to crack a nut, the nut being bad actors—I commend the noble Lord, Lord Soley, on raising this very real issue; it is not one that we want to sweep under the carpet—such as those in informal schools who, frankly, would raise children to oppose the existence of this country, or commit future generations to violence against citizens of this country, or inflict neglect and abuse. Many of these situations have been talked about.
Largely, I feel that this has been designed to fix an IT problem. As much was confirmed to me by a government representative, who I will not mention, who I discussed this with. I said that the Government could get this data anyway: we have birth certificates, local authorities ask who is in households and we have pupil registration in formal schools. We could triangulate that data—I come from an IT background; that is the kind of thing we can do with IT—to find out who was not in school. But of course, that is too difficult for the Government to do right now; IT is a very difficult area. So, to make us do all the work for local authorities and government, a registration programme is to be brought in when we could have fixed it with good IT and good use of the powers that already exist to safeguard children who are suspected of being abused or neglected. This is on top of a risk that the data, once collected, could be used intentionally or unintentionally to harm, or get hacked, which has happened.
I will not say much more on this point because I want to get to my amendment, but I suggest that registration could be voluntary to begin with but highly incentivised, perhaps using the Oak National Academy, the online school set up by the Government, as a resource and a referrer, which could provide amazing data if parents consented to it being provided and analysed.
What incentives might there be for signing up voluntarily to such a scheme? We talked about the cost of exams and paying for them. It costs £150 to £200 per GCSE; I am feeling the pain of that right now. Many families have to fork out a huge amount of money for those exams.
Another incentive might be the provision of forecast grades in the event of situations such as Covid. This was brought home for many home-educating families, whose children basically had to resit because no resource was available; children in school could get forecast grades from their teachers. The Oak National Academy might be a place that could provide such forecasts, based on its data.
We should require publicly funded providers of education, such as museums, to support home education. Many do so generously, and London is probably one of the best places in the world for home education. From a very young age, my children went to science lectures at the Royal Institution to get science teaching from some of the world’s best scientists.
Many home educators understand the need to catch bad actors and to design mechanisms to do this, but I do not believe that compulsory registration as a first resort is the way to achieve this; it is certainly not the way to carry them with you. I push back against the notion that this legislation will improve the lives of children by collecting lots of data and doing lots of monitoring, when there are already many other ways to achieve the ultimate goal of catching those bad actors.
I acknowledge that there are bad actors out there; there is off-rolling and abuse. If we have to do something, I suggest that we limit it to very defined situations and collect the least data possible, and only when specific criteria have been met—not, as I have been told, to catch home educators who perhaps are not teaching their children some of the things in PSHE at primary age that they would rather their children did not learn until later—or to catch those who are using illegal schools and faking it, and many of the other scenarios that have been talked about. I believe that in those situations, officials should be granted some powers to query home education as the excuse for practices we have already talked about—essentially like a warrant—but only in those special cases and not as a blanket power.
This brings me to the main issue I want to raise through my amendment. Even if the other place passes this Bill, despite the clear issues around data privacy and freedom and the way it has been written without much proper consultation with the home education community, I do not believe it will be implemented for many years, because some in the home education community are incredibly well resourced. They will take the Government to court, put injunctions on this legislation and do everything to block it. It will make the migration controversy we have had in the last few weeks look like a walk in the park, because some of these home-educating families past and present are incredibly well networked in the legal world and so on. Why go through all this trouble and cost to make an enemy of the home education community by doing this, when you could work with it and still achieve the same end goal?
Why push many of the bad actors, who, even when you have the legislation, will just go into the black market and disappear? They will go to a farm where you cannot find them or to another country. The very people you are trying to protect from radicalisation or other issues of concern might not even be on the system once you have built it, and lost all this good will.
Despite the assurances given, and given the determination to rush through this mandatory registration, the vague and wide-ranging reasons for requesting data and the risk of mistaken situations or intentions, I feel we need an ombudsman, ideally independent from government. I have been told that there are ways for parents to appeal to a local authority, the department or the Minister if they suspect there is a problem, but I am not sure that those representatives would truly understand home education, which is culturally so different from public education and schooling—in fact, that is its strength. It would be like asking the cat to listen to the mouse’s appeal.
The fact that Part 3 of the Bill is called “Children not in school” evidences a total lack of understanding of how home education works. They are learning. They are in a school of sorts, just not a school run or paid for by the Government.
Such an ombudsman would listen to parents if they felt persecuted but also be a sounding board for local authorities and prevent court cases through mediation. It should ideally be voluntary, in that the role should be filled by somebody who is doing it voluntarily, as many home educators are, and not paid for by the Government or any other party. They could even work with the Oak National Academy to improve the resources, skill levels and data sharing made available to home educators, with consent, which would then enable local authorities to focus on going after the bad guys and not the vast majority of home educators, who need help, not hindrance or overzealous monitoring.
I would like to come in on Amendment 112A, in the name of the noble Lord, Lord Lucas, and say I agree with a great deal of what he said. Indeed, we have discussed it in the past; there is an issue here. I am not convinced by the idea of the noble Lord, Lord Wei, that we can do it all by current IT methods—I think there are problems there. Although I have some sympathy with some of the things he is saying, actually this is a very difficult area.
Amendment 112A is, to my mind, incredibly important, because one of the things we have to do is work out the best type of appeal system. My starting point is really where I ended up when I spoke on Monday, which is to say that this legislation on home education needs to be seen as supportive, not punitive. That is very important. If we can develop a supportive method of local authorities and home educators co-operating together, there will not be many problems in the future, and ideally, practices and strategies could be developed, both by local authorities and by home educators, for dealing with the problems that will inevitably emerge.
The appeal system must deal with many of the issues that the noble Lord, Lord Lucas, raised. When I was consulting widely on my Bill, I had such a wide range of claims as to why local authorities were doing it badly. I cannot go through them all now, but some suggested that a local authority was blind to the individual needs of the child. It might have been about educational achievement, but it might also have been about behaviour, because at times it was clear that the school was pushing the child out of the school because their behaviour was so challenging. So you actually have a problem that is, in a way, the reverse of what we expect—the school saying, “This kid is a problem: let’s get them out of the school.” That has to be dealt with, too. The rights of the parents to appeal to an independent person or organisation is, to my mind, incredibly important. As I say, I could give many other examples that came to me when I was consulting on the Bill.
But I also have to say that this is two-sided, and it is the classic problem we deal with in Parliament, time and time again, of the balance between individual rights and the rights of society, to protect the vulnerable. At times, some of those home-educated children are vulnerable, and that is something we have to face—and it is difficult to face. As I said on Monday, my knowledge of education generally is not particularly good, but as a former probation officer and senior probation officer of 40-odd years before I became an MP, and having taken children into care on occasion when I had to when social services could not do so for legal reasons, I can tell noble Lords that it is not just a difficult decision: some parents are incredibly cunning, incredibly devious and incredibly cruel. That comes out if you talk to someone like the noble Lord, Lord Laming, who has chaired committees dealing with abuse. You realise how clever some cruel people can be in fooling anyone—doctors, probation officers, social workers, the general public, neighbours, all sorts of people—into thinking everything is all right.
One thing in my mind, and I want to make this clear, is that when I put that Bill forward, I put it forward as an education measure, not a social or psychological measure. But in doing so, I recognised that if a child was not being given a proper education—and by proper education I do not mean some set educational system but growing up able to read, write and be numerate—we had to be able to be sure that that was being done. The interesting thing for me is that, of all the people I talked to about home education, when I dealing with the Bill, it was actually a small but significant minority who said that the education authority must never be allowed to see the child or should not see the child with them. I remember one parent saying to me, when I said, “Well, why should they not see the child?”, that the child does not like being seen by a stranger. That immediately made me raise my eyebrows, because if a child of school age is nervous about being seen by a stranger, you wonder how the education is being done—unless they have got special needs, because there may be circumstances in which they will be nervous about being seen by a stranger. But by and large, children are far more resilient than we give them credit for. Indeed, one of the problems in society, I often think, is that parents are overprotective, and we do not recognise that children are actually very resilient and can cope with situations like this.
But what I want to make clear here is that the problem is two-way, exactly as the noble Lord, Lord Lucas, described. It is also that, at times, the education authority will have a concern that the child is not being properly educated. If you say that the education authority cannot see the child, how will it ever know? One person said to me that the authority could ask to see written work. But you will not even know whether that child did the written work. So it is not just a measure about behaviour here, or about abuse or radicalisation; it is also about whether the child is being properly educated. As I have said, I do not mean some particular system of education, because I know that troubles quite a few home educators; it is about being able to cope in society as you grow up, and I gave an example on Monday of someone who was left very vulnerable because of the way that home education was done.
My argument here, and this is something I ask the Minister to really take on board—it is a difficult one—is about how to get an appeal system that can work in both directions. It is absolutely right that the parent can appeal against the local authority that does not understand the problems that they or the child are facing, but it has also got to be one where the education authority can say, “We are not absolutely sure that this child is being educated. We are not absolutely sure that there is not some more nefarious process.” Indeed, one of the cases I took up before as a result of my Bill that got some publicity in the press involved three children, if I remember right, in one of the London local authorities who were being trafficked. Two of them just disappeared and, to my knowledge, though I have not checked up recently, have never been seen since. Now, the local authority—or to be more precise, the school—was worried about what was happening, because it knew what had happened to one of the children but did not know what had happened to the other two.
So I say: if you do not have a system where the local authority can say, “We need to be able to see the child, and see that the child is receiving an education”, then you have got a system that is almost designed to blow up in your face. Sooner or later, at some abuse inquiry or other inquiry into a case, you will find it being said, “Well, we the education authority were not allowed to see the child, so we could not know.” I ask those Members who are taking a very clear view on the rights of the parent here to recognise that the rights of the child are absolutely important: in key situations, they override the rights of the parent. I think all of us accept that in other circumstances—if you did not, it would be very bizarre; you would be arguing that whatever the parent did to the child was acceptable.
I have not got a model for the Minister, I am sorry to say. I wish I could say, “This is the way to do it”—I have not got that. I would be very willing to engage with her in further discussions, if that would be helpful, and I think people like the noble Lord, Lord Laming, might be very useful on this too. What you need is a system designed to be supportive, not punitive. That is the key to this. Then you start by saying, “We know what a lot of these parents want,” because the examples are already there—the noble Lord, Lord Lucas, gave them. Those are the ones who appeal, but we also need the ability of the local authority or education authority to appeal against not being able to see the child, where it is worried about the child and might need to visit more often than it would do otherwise. I think that is profoundly important. As I say, I would be happy to offer whatever help I can in getting that bit right.
As I said on Monday, I commend the Government for taking my Bill on board and delivering on it in the way that they have. It is very commendable, but this is the most difficult area. The education authority must have the right to see the child and must have some rights over how often and in what circumstances. However, that needs to be appealable in both directions: by parents and by the education authority.
My Lords, I will speak to Amendment 140 but before that I note that the debate has raised a number of fundamental issues. Listening to it tells me that we have another set of issues that the Government need to take away and think carefully about. I understand that Report is due to start in little over a fortnight. The noble Lord, Lord Soley, is absolutely correct about the need to have these discussions; fundamental issues are being debated around whether there should be an appeals system and what kind of system it should be, and what the exact role of a local authority is. The noble Lord made a very important point: the Bill should be about supporting home educators and not about a punitive system.
I want to give another example of how I see the problem in this group. My Amendment 140
“aims to clarify the provisions on school attendance orders to ensure that school attendance orders should only be issued when in the opinion of the local authority this course of action is in the best interest of the child.”
At the moment, the Bill reads:
“A local authority in England must serve an order under this section 10 on a person”,
and gives reasons in paragraphs (a) and (b). Paragraph (c) gives the reason that
“in the opinion of the authority it is expedient that the child should attend school.”
What is the meaning of the word “expedient”? Sometimes these words have meanings that maybe the Government do not intend. My interpretation of the word “expedient” is that it is about attaining an end. It is a convenience to attain the end, but it may not be right to attain that end.
That has led me to consider who in a local authority is responsible for making a decision. Ministers may reply that this will all be shown to us in guidance. I am quite bothered about that, because a huge number of issues have been raised, in all parts of the Chamber, about how this system will actually work.
Does the noble Lord agree that the word “expediency” seems to display a state of mind and a prejudice against home learning? It will, as he rightly points out, put undue power in the hands of officials.
I agree with the noble Lord that it could well do that. I noted the words of the noble Lord, Lord Lucas—I hope I quote him correctly. He said that it will be tremendously easy to be a bad local authority. Given the way that this has all been written, that may prove to be true. He also said that there needs to be oversight as to whether a local authority is being reasonable. There has to be a system to assess this. I spent many years in a local authority environment. Officers and councillors will change, and case histories may not be fully understood, and yet decisions are being made. I do not know what protections are in place against poor-quality decisions being made.
My amendment says that the absolute requirement is the best interest of the child, not that a decision is deemed by a local authority to be expedient. I should be grateful if the Minister could respond as to why the Bill has been written in this way. It may be convenient to be expedient but it may not be proper. For that reason, we need to have a further discussion. I do not see how Report can happen in a fortnight to three weeks’ time. The Bill needs its Report deferred until the autumn.
My Lords, I will speak briefly in support of Amendment 112A, which relates to a point that I raised at Second Reading. As the noble Lord, Lord Soley, said, there has to be a check on parents to avoid those who might abuse the freedoms. The local authority may be the right place to do that but the merits or otherwise of home education versus school education, and the structure of the curriculum, can end up as matters of educational doctrine. If a local education authority takes a view that starts as biased against home education and the freedoms within, it may well take a view that is prejudicial to the parents, in the way in which my noble friend Lord Lucas said.
There has to be a right for parents to go to some appeal process, whether in the form of the amendment or the ombudsman proposed by my noble friend Lord Wei. It may well be that the objections to the way in which the local authority runs its schools is the primary reason why somebody wants to educate their children separately. To have that education authority then be judge and jury over whether the child is being given an adequate alternative education just allows one set of educational doctrines to run roughshod over other people’s rights.
I completely accept the need for checks on parents but, as others have said, my noble friend the Minister needs to think about how, when the Bill comes back, there can be proper provision to deal with this matter—whether in the form of the amendment or something similar.
My Lords, I may have omitted to declare an interest as chair of the Department for Education stakeholders’ group and other similar interests listed in the register. If so, my apologies.
I have added my name to Amendment 143I in the name of the noble Lord, Lord Lucas. I should make it clear that it is the increase in fines and custody that I have difficulty with. It might be better to do away with fines altogether.
I am heartened by the statement in the department’s factsheet that
“The government does not intend to criminalise parents” in respect of school attendance orders. But Clause 50 does not achieve this aim.
When I was a magistrate, I recall cases of parents who, with the best will in the world, simply could not control their children. They were rarely parents who could manage the fines prescribed. As for the custodial option, the Farmer review emphasised how
“disruptive and costly short sentences are to family life” and ties. What does the imprisonment of a parent do for a child’s attitude to school?
There are deep reasons for school refusal that should be investigated, as I also recall from my time as a teacher. Different means to ensure the essential participation in education that children must have must be developed, and indeed in some schools are adopted, but in this time of a cost of living crisis, at least we should not increase the penalties, which can be justified in very few cases.
In conclusion, may I gently take issue with the “hammers and nuts” of the noble Lord, Lord Wei. The nut of not being in school is a very large nut indeed. Of course there are parents who educate their children well and who are going to have no trouble with a register, although I quite understand that there needs to be some clarity, but children who are badly educated or not educated account for a much larger number. It may be that noble Lords do not come into contact with these children very often. In other debates in this Committee, we have spoken about where these children are and why they are not educated. It would take a lot of time to go through this, but it is a much larger number than the number of children who are well educated. We really must do something about this. That is why the register is a good idea.
My Lords, I will clarify my position. A number of noble Lords have mentioned—and perhaps implied—that what I was trying to say was that we do not go after these bad actors and do not pursue those using home education as an excuse to provide a poor, non-existent or abusive context for learning or non-learning. That is not what I am saying. I am actually in favour of strengthening the use of other means for the identification and pursuing of families, parents or caregivers who are not home educating and are instead using it as a cover for their practices. Personally, I think we should be as hard as we can on that and strengthen our response as much as possible, whether through data, local authorities or other action.
Right now, some people are using home education as an excuse to say, “Stay away; don’t look here; go away”. However, if the ombudsman, or any other mechanism, were to agree with the local authority that there are good grounds to pursue families such as these and ask for any kind of information it wants—and if, on the evidence, if it looks as though home education is not happening—then, yes, let us go after those many families who are thought not really to be home educating. In addition, let us support those families who are struggling. I did not want to be misunderstood on that front.
However, my main concern is about where there are miscarriages of justice and we get into matters of educational philosophy. I ask noble Lords to consider Finland, where education is not really monitored until the very end. Nevertheless, Finland has pretty much the best education in the world because it does not spend 30% of time in education—as we do—monitoring, testing and checking the learning; the Finns just let the learning happen and train the teachers. I believe teachers there are given the equivalent of bankers’ salaries to make them some of the best education and learning facilitators—if you like—in the world. I would therefore just caution against this monitoring and the need to know what people are doing—I do not think we need to do this. If we have suspicions that what is going on is bad, we need to pursue this and use every power we can to sort that out. However, I am not sure that it is the right approach to ask about everyone in the country who is doing home education—whether good or bad—just because they might be doing something wrong. The ombudsman would make sense of this; it would also make sense not to put families under such an investigatory lens for too long. I have friends who have waited two years for national insurance numbers for their teenagers. Imagine a home-educating family having to wait two years, just to be told that they are not abusing the system but are instead teaching well.
My Lords, I rise briefly to support the tenor of many of the amendments in this group, as explained by the noble Lord, Lord Lucas: they strengthen parents’ hands against any overbearing local authorities. That is not to suggest that all local authorities will be overbearing, but it ensures that they are not necessarily interpreting their role always as one of policing. This is all about balancing powers and having a sense of proportionality. I like the idea of the home school ombudsman suggested by the noble Lord, Lord Wei, although I would rather it were not needed because I do not like lots of this part of the Schools Bill.
I listened carefully, in particular, to what the noble Lord, Lord Soley, said, including his last point on this being supportive, not punitive. Those points are very important, but I want to raise my qualms about this. Of course, those noble Lords who raised the point about bad actors are correct: some parents are cruel and some represent a threat to their children. However, in a free society, do we not assume that the vast majority of parents are not a threat to their children? At the moment, as far as I know, we have not nationalised parenting. We are not saying that we are better at doing it than parents; we assume that parents are good at it.
I am nervous that, according to this conversation, bad home schooling is being used as a means of abuse and presented as the tip of an iceberg, as though we do not know what is going on behind closed doors. This implies that there is a relationship between those who choose to home school and abusive practices. I want to kick back against that.
The emphasis has been on the rights of children, as though their rights are in contradistinction to those of their parents. It is as though parents are going round snatching all the rights of children and we should let the state and the local authority be the arbiters of protecting children. I hate to mention it, but the state as parent has a bit of a mixed record: ask the young women of Oldham who were sexually abused in plain sight of state authorities—the report on this is out now—whether it is likely that parents or other people would be the abusers in that instance. I am concerned by the tenor of the discussion because, in Committee on Monday, the Minister warned us against the tone of our language. She is right; nobody wants to hype up matters or scaremonger. But in our discussions about home schooling, I did not raise all the issues of abuse; the issues of abuse have come up in the course of a discussion about home schooling. It is understandable that many people involved in home schooling feel anxious that there is slippage between those sorts of things.
I like these amendments because we need to say to local authorities, if there is to be an intervention, that they should not have an implicit presumption that there is something dodgy about children not being in school and being educated outside a school setting. There is no law against that at the moment. The reality is that nobody has a right to schooling. The law does not say that you have to be schooled; it says that you have to be educated. The majority do so through schools, but not everybody does and, as far as I know, the law is not trying to change that. We assume that this is part and parcel of a free society; it is a choice that people have. However, if we keep talking about bad actors and abuse whenever we discuss it, it is not surprising that those who choose to educate their children outside school are anxious about what the Bill is trying to do.
My Lords, I shall come in briefly on this because I did not put my name to my noble friend’s amendment on examinations. I am sorry to go back to a smaller point, but one thing that happens in education is that you usually need a certificate to carry on. It is your pathway to the next step. I have not been deaf to what has been said about the rights of home education but, to go back to one of the building blocks of our system, to gain access to the next stage of education, training or employment, you generally need the examination that proves you have done it. It does not prove much else; it just proves you have been through the process and reached a certain point. I hope the state will allow and support people to get the proof that says they have done the work to get through. If you do not have it, everything shuts down suddenly. You cannot do much else; it does not matter if you can quote Shakespeare fluently, you have still failed English if you do not have the qualification.
Think also about the home-schooling groups who have special educational needs, such as some of the groups I have met. They will sometimes need help and structure to be able to take that exam. It will be important to have some form of interaction around that; it is an important point in their process. The Government have been very keen on testing whether education is successful, usually using examination results, so if home education is to do anything, it needs that to go through.
I cannot resist making a comment about my noble friend Lord Shipley’s statement about having “expedient” in a Bill and not defining how it is used. If you wanted to cause trouble—I suspect somebody in the department was having a bad day when they drafted this—that was an excellent way of doing it; I congratulate them. Unless we get some clarification, and realise that we are trying to make sure that those who are doing things well are supported and those who are doing things badly are identified and stopped if necessary, we are going to have carnage when we come to Report.
My Lords, I support the principle of the amendment in the name of the noble Lord, Lord Lucas, that there should be a right of appeal, but some of the language was not helpful. He constantly used the word “punitive” if any local authority intervenes in any way. As my noble friend Lord Soley said, this is a difficult balancing act to get right, and we have to be careful of the language that we use.
I know—to reassure the noble Lord, Lord Wei—of plenty of people, friends of mine, who are really good home educators. They have a different approach, and I do not think anyone would be opposed to that. They are not the people who worry me. As my noble friend Lady Whitaker said, we have a lot of experience in this area; there are unfortunately others who do not.
This House has a duty to do two things: to ensure that the legislation is fair and capable of not penalising people who understandably prefer their children to be home educated; but we also have a responsibility to protect those children, as children do have rights. I profoundly disagree with the noble Baroness, Lady Fox—of course children have rights. We cannot absolve ourselves of that responsibility.
It is a difficult one for the Government—they cannot duck it. I started to look up whether “expedient” was the right word, but that is not what concerns me. I am concerned that while there is a right for people to home educate their children, provided they act responsibly, there is nothing wrong with local authorities having a list and being able to assure themselves that it is taking place in an appropriate manner. It should not be seen as punitive—I agree with that—but it does not absolve them from asking some questions. I agree with my noble friend Lord Soley that a child has to be seen. I have had personal experience of cases where parents have deliberately tried to ensure that the children were not seen. These are real threats to children. We have a responsibility to protect them and to ensure that the way Government monitor home education is fair. On balance, I support the right of appeal. I look forward to the Minister’s response.
My Lords, I have listened to this debate carefully, and it has been extremely sensitively presented, but it has raised a lot of questions. I shall certainly not talk about home schooling, on which I have no expertise whatever, but I am going to make a comment about procedure, of which I have a learnt a little over the years.
This is not the first group of amendments where I have sensed there is serious need for proper discussion between Committee and Report. It has alarmed me, as the noble Lord, Lord Shipley, mentioned, that the date being pencilled in for Report is the week beginning
I do not want to inflame the conversation, but this badly prepared Bill is crying out to have a longer period between Committee and Report. The only excuse that the Government can make—it is not an excuse but a genuine problem that Governments face—is that towards the end of a parliamentary Session there is urgent time pressure to apply the minimum gaps between Committee and Report. However, that is not the case here, right at the beginning of a Session. When the Commons have tons of Bills to consider and we have a very small number, there is no pressing requirement for the Government to apply the minimum gap.
I hope that it does not sound like a threat when I give notice that I think that there are many people in this House, on all sides, who feel that it is important for there to be a proper gap. There are mechanisms with any Chamber for majorities, if a majority exists, to ensure that this happens. I hope that it does not come to anything like that, but I urge the Government to think carefully about doing as the noble Lord, Lord Shipley, said, and allowing Report to take place in the autumn.
My Lords, I declare an interest as a vice-president of the Local Government Association.
I echo the two phrases that the noble Lord, Lord Soley, used: we want to protect the vulnerable and protect the rights of children. There are some amazing home educators who do an amazing job, but there are also some amazing local authorities which do a very good job as well. The noble Lord, Lord Lucas, praised local authorities, and I pay tribute to my former local authority. We had a boy with a phobia of being in school who had to be home educated. It was not because his single-parent mum, a nurse, wanted that, but because we just could not physically get him into school, so we home educated him. And guess what? Knowsley LA—I will name-check them—supported my school in doing that, in financial terms as well.
There are lots of examples of good local authorities, just as there are hundreds of thousands of examples of good home educators, but it should not be “us and them”. Disagreeing with whoever said it, I like the language used by the noble Lord, Lord Lucas. This is an opportunity to reset the dial in terms of home education, to do the things that protect the vulnerable and protect the child, but to ensure that local authorities work with home educators. There are all sorts of ways in which we can do that.
Hopefully, if we do it that way, in a few years’ time, home educators will realise the value and importance of local authorities and how much they can bring to the table. Perhaps there are ways of doing it. I like the suggestion by the noble Lord, Lord Wei, of an ombudsperson. That might be a mechanism for ensuring that home educators do not feel threatened, because they would know that there is a way of dealing with it. As long as that does not lead to a massive increase in bureaucracy, maybe we should consider it.
Let us also remind ourselves of an important point which has not yet been made. Through formula funding, every child who goes to school is worth a sum of money; is it £6,400? Home educators do not get that money, so every child who is not taught at school but taught at home saves the Government money and those home educators have to pay for it. They give up not only their time but considerable money to home educate. Therefore, it seems sensible that we should show willing and give something back to home educators. Maybe one way would be by taking Amendment 130, tabled by my noble friend Lady Garden, and looking at supporting them when they want to take examinations.
For example, when we have established this new relationship, we could ensure that local authorities give learning resources and materials to home educators, if they want them.
I want to talk about attendance, which is a very important matter. The noble Lord, Lord Knight, and the noble Baroness, Lady Morris, will recall that the Blair Government put great store on attendance and rightly so. They put great store on children not being permanently suspended from school. When I had a welcome meeting for parents, I would say, “Look, the most important thing you can do for your child is to make sure they are in school every single day”—they cannot be if they are really ill, but the more school they miss the more learning they miss. You can do this in two ways: you can either use a stick and beat up or threaten parents, or you can use a carrot and encourage them. Most schools try to celebrate and reward good attendance, and this must be the way to do it, because language is important. Of course, there are cases of parents not sending their children into school and they do them a total disservice, but I am sure there are ways we can get around this. There are charities that have all sorts of good ideas about how to encourage good attendance, and we should be listening to them and considering or adopting some of their ideas.
The noble Lord, Lord Wei, mentioned Finland and many do—I remember Michael Gove always going on about Finland—but people always mention Finland in regard to their own particular issue; they never mention Finland as a whole. I agree with the noble Lord, but we should therefore adopt all the other things that Finland does: every teacher must have a master’s degree; every teacher must be paid a Rolls-Royce of a salary; every pupil has to—et cetera. Let us not just dip into the little bits of Finland that we like.
It is hugely important that we get this right. I quite agree with the noble Lord, Lord Grocott, and would rather go the extra mile, even if it means another week or whatever it is, so that we do what is best for our children. This is not a race to get to the finishing tape; it is about making sure that we end up with legislation with which we all agree.
I am sorry to interrupt again, but the point about Finland is important, because many of us in education policy—I helped to set up Teach First—have studied this material and I do not believe Finland is as exceptional as people make it out to be. I brought Professor Hattie over 10 years ago, who is a researcher who studied 15,000 randomised control studies on education—the noble Lord, Lord Knight, knows what I am talking about. He looked at 30 million children across thousands of studies and found three things that affected their education the most by a standard deviation. They were simple: how well does the teacher, or the parent in home education, know the child? How difficult is the work? If it is too hard or too easy, it makes a big difference. And when they mark their work or give feedback, how good is that feedback? Those three things can work in any system or country, whether private or public. All the things we argue about in politics—private/public, the size of the class and teacher pay—were shown to make a limited difference in the randomised studies. Incidentally, televisions and screens were very bad, and keeping kids back a year took things back by a standard deviation.
We could debate Finland for a long time, but I would argue that home education has many of the hallmarks that the Finnish enjoy. They are: an incredibly great relationship between the well-paid teacher and the child; and the time, because they are not being monitored all the time, to set work at an appropriate level; and to give great feedback.
I thank the noble Lord for that and would, at some point, like to talk to him about Finland. One of the other things we forget is that, just as a teacher in the classroom—I still miss teaching and miss my time in the classroom, because I got a great deal from that—home educators get a great deal from being with their children, learning with them and teaching them. We forget the importance that can have for the family home and for parents, whether they are a family or a single parent.
I end by going back to the point I was making: it is really important that we get this right. This is an opportunity to reset the dial, so that we achieve what we are all trying to get.
My Lords, I missed the opportunity to speak before the Front-Bench spokesperson got up. The point I want to make on home schooling is that it is as much about the rights of the child as it is about the rights of the parent. In the debates on Monday and today, I think that we have heard too much about the rights of the parents, but the rights of the child not to be abused and to get a decent education are important. They are not important; they are crucial. Those rights might be a counterpoint to those of the parents.
The noble Baroness, Lady Fox, asked a rhetorical question: is the state going to adjudicate? The answer is yes. Who else will adjudicate between the rights of the parent and the rights of the child? The education authority and the social services authority clearly have crucial roles there. Noble Lords need only cast their minds back to all the dreadful cases that have occurred where the school or social services have failed. This is not about home education. What is notable about many cases of child abuse is that those children were at school, although their absence from school too frequently was a hallmark that should have been picked up. The local education authority and the local authority more generally have an important role. They should not be demonised, in the way some speakers have suggested, as if the hallmarks were bureaucracy and interfering with parental rights.
I have two more points, the first of which is on the point of the noble Lord, Lord Wei, on data. I am afraid he made two conflicting points: first, that the data was available anyway and, secondly, that it would be hacked. If the data is available anyway, it can be hacked.
The other point is a genuine, not a rhetorical, question for the Minister. Noble Lords have referred to decisions made by the local authority. Do they not come under the aegis of the Local Government Ombudsman in any event? Why do we need a special ombudsman service? If the Government are trying to cut back on bureaucracy, they can use the tried and tested system we already have.
Before the noble Lord sits down, I just want to clarify or ask a question. At the moment, we have a system in which social services or child protection agencies, quite rightly, are the part of the state that intervenes in those terrible cases where we suspect that a child is being abused. Is he not concerned if, through its education role, the local authority now has to do that job? That is almost the implication. In schooling, we have the phrase “in loco parentis”: the idea is that parents entrust their child to teachers and the education authority, because they say that “You educate them, but we parent them.” Is there not a danger of posing a conflict between parents and children in this competition of rights? For the majority of the time, that is not a problem. Even when it is, the appropriate body would be social services. I am worried about education being dragged into what is effectively social services. Keeping an eye on kids is one thing; it is not the same as being social workers with their expertise.
Sorry, I was just waiting, because every time I have tried to stand up someone has spoken. I am glad that the noble Lord, Lord Storey, reminded me that I should declare my interest as a vice-president of the Local Government Association—hard won and well deserved, I think.
We have heard a fascinating debate with a wide range of views. It is the first time that I have had the pleasure of listening to the noble Lord, Lord Wei. We could have so many discussions about Finland and Teach First, but he was really quite amazing at contextualising the Bill at the beginning of his remarks. It is very interesting that he comes from his Government’s perspective, but he put us firmly in the context of what he saw that is wrong about it. That is what we have been talking about over the past five days. I appreciate those comments.
Most home-schooling parents are, of course, wonderfully motivated and they deserve our full support, but we need to safeguard children. To pick up the right of appeal issue from the noble Lord, Lord Lucas, as mentioned by my noble friend Lord Knight, we have an excellent local authority model in the form of school admission appeal panels, comprising independent individuals with no links to the local authority. They give impartial judgments on children’s admission to schools. So, there are good models out there.
We know that, under the Education Act 1996, parents are responsible for ensuring that the education provided is sufficient, full-time and suitable to age and ability. They can choose to employ private tutors to assist them—there is no requirement, of course. Learning can take place in different locations and is not limited to the child’s home.
We have not mentioned Covid during this debate, which caused a huge increase in home schooling. The Association of Directors of Children’s Services estimated that the number of children being home educated at some point during 2020-21 was 115,542. That is a 34% increase on the 2019-20 total. It further remarked that in many cases, home schooling
“does not seem the most appropriate route for the children concerned.”
So, concerns have been raised. This has been a long debate, so I will draw my comments to a close. We are therefore keen to follow this register’s impact as it is developed and implemented across England.
My Lords, I thank you all for your thoughtful contributions. I start by saying that I could not agree more with my noble friend Lord Lucas. I had the pleasure of talking to a number of home educators from Gloucestershire yesterday and to the local authority, thanks to an introduction from my honourable friend Siobhan Baillie. Clearly, the relationships between the two were extremely strong and good, as my noble friend pointed out.
I will start my remarks with Amendments 112A and 137C, tabled by my noble friend Lord Lucas, and Amendment 171X from my noble friend Lord Wei. The issues of appeal are extremely important. I will summarise the current routes for your Lordships, but also make some commitments to the Committee about how we can make sure that the concerns that have been aired this afternoon, and by home educators I have spoken to, can be addressed.
As your Lordships are aware, several existing routes are already available to parents, such as a local authority’s internal complaints procedure, the Local Government and Social Care Ombudsman, which the noble Lord, Lord Davies, referred to, and the Secretary of State’s powers under the Education Act 1996, as well as the Information Commissioner’s Office where concerns relate to the handling of data. The law already enables a parent to apply to the Secretary of State to intervene and make a determination if a local authority has refused a parent’s request to revoke a school attendance order.
A number of your Lordships, led by the noble Lord, Lord Soley, and my noble friend Lord Lucas, made the critical point that this needs to feel like a supportive system. I would go further and say that it is really important that we have a system that feels fair to parents and which builds trust and confidence. Therefore, we propose to create, in close collaboration with local authorities and home-educating parents, new statutory guidance for local authorities which will cover all the powers and duties of local authorities regarding the register and support. This will include advice on how to promote positive engagement with the home education community.
We will also continue to consider what more we can do to support parents and strengthen independent oversight. I thank the noble Baroness opposite for the suggestion she put forward and that other noble Lords have mentioned. I of course welcome the offer from the noble Lord, Lord Soley, to support us in that work and for his very generous offer on behalf the noble Lord, Lord Laming, in his absence, which I am sure he will be delighted about.
I again thank my noble friend Lord Lucas for his helpful suggestion in Amendment 137C. The preliminary notice stage already provides parents with the opportunity to evidence that their child is in receipt of a suitable education. They would still need to demonstrate this if they were to appeal to the First-tier Tribunal, so we are not clear that my noble friend’s amendment makes any practical difference to parents.
Turning to Amendment 130 in the name of the noble Baroness, Lady Garden, the Bill includes a range of examples of the types of support that local authorities can provide. As I mentioned, we plan to publish statutory guidance to support local authorities to discharge this duty. This will include more detailed examples, which could include support for exams. As I said, we will work with stakeholders, including parents who have chosen to educate their children at home, on this prior to publication.
However, there is a principle that underpins this: by electing to home educate, parents accept full responsibility for their child’s education and the costs associated with this, including exam fees. There will not be a legal requirement for local authorities to provide specific funding to home-educated pupils for examination fees as part of the support duty, but it would be one way they could choose to discharge the duty.
Before the noble Baroness finishes that point, if somebody has special educational needs—we had an example from my noble friend Lord Storey—and they are still interacting with the education system to an extent, would they still get that support despite the fact they are home educated? I appreciate that it is a difficult interchange—I probably did not declare my interests properly before—but could we get an example? The primary problem with this is the fact that home educators are a very broad church.
So, as the noble Lord knows extremely well, is the spectrum of educational needs. I know that one is not allowed to have props in the Chamber, but I commend to the noble Lord the flowchart at the back of the policy notes on this part of the Bill. It sets out the process, including where a child has special educational needs. I think it is easier to follow than me trying to explain at the Dispatch Box.
Turning to Amendment 130A from my noble friend Lord Lucas, individuals already have the right to ask local authorities for copies of their personal information and inquire how they are using it by submitting a subject access request. A parent can demand that inaccurate information is corrected, and if the local authority fails to do so, the parent can complain to the Information Commissioner, who has significant enforcement powers.
Turning to Amendment 134A, I repeat that it is not possible for fines or penalty notices to be given to parents for failing to provide information for the registers and the Bill does not provide for that, but if parents fail to demonstrate that their child is receiving a suitable education, it is right that the local authority begin the process of issuing a school attendance order. If the parent is unable to evidence that the education they are providing is suitable, the process will lead to an order being issued. If the parent then breaches the order, they may be fined by the magistrates’ court. On collecting and publishing data on this, the Bill already provides flexibility to require this through regulations.
I now turn to Amendments 136ZA, 136B, 136C, 137B, 138ZA, 138A, 139 and 140, from my noble friend Lord Lucas, the noble Baroness, Lady Garden, and the noble Lord, Lord Shipley. My department’s guidance for local authorities highlights that the authority should initially attempt to resolve doubts through informal inquiries.
The noble Lord raised the point of expediency, and I am grateful, because I absolutely understand why, and why it sounds anything other than what one might expect. The current test for issuing a school attendance order is that the child is not receiving a suitable education, in the opinion of the local authority and, as the noble Lord said, that it would be expedient for the child to attend school. That is the test contained in the existing Section 437 of the Education Act 1996, and new Section 436J mirrors that test, so this will keep the test for issuing a school attendance order the same in both England and Wales. I again point the noble Lord to my favourite flowchart, from which he will see that, prior to issuing a school attendance order, there needs to be a preliminary notice, which is covered at new Section 436I(3)(c), where it says that one of the conditions for issuing a preliminary notice is:
“the child is not receiving suitable education, either by regular attendance at school or otherwise”.
I absolutely understand his question, but I hope I have reassured him and the House that, while it may appear to be one thing, it is covered absolutely properly in the legislation dating from the 1996 Act. The current law, supported by guidance, requires that local authorities take all relevant factors into account when considering whether it is expedient for a child to attend school, and that includes where the child has expressed an opinion about attending school—the voice of the child was something that a number of your Lordships raised.
Local authorities should have the in-house expertise to make these decisions, but if they do not, they can and should consult a suitably qualified external expert. We will make this clear in our guidance. It is crucial that the time a child is in receipt of unsuitable education is minimised, and therefore it is right that local authorities move to initiate formal school attendance order procedures as soon as possible where home education appears unsuitable. The noble Lord, Lord Storey, rightly mentioned the work of many charities; we may be thinking about the same ones. If he goes back to the schools White Paper, he will see that our approach on attendance is: support first, support second, support third, with enforcement very much down the line. We are working with a number of charities which are leaders in this field.
Amendment 143B from my noble friend Lord Lucas is unnecessary, because if local authorities were to refuse to revoke a school attendance order on an unreasonable basis, that refusal would in itself be unlawful.
My noble friend’s Amendment 143F would mean that if a parent was found guilty of breaching a school attendance order and continued to breach it, the local authority could take no further action to enforce it: it would have to restart the process and make a new order. That would obviously be a waste of public resources, but, more significantly, would add to an already lengthy timeframe in which a child may be in receipt of an unsuitable education. I should be very happy to follow up with my noble friend on the specific example he gave, where that home education may have changed, to check that we have that very reasonable point covered.
Finally, I speak to Amendment 143I, also tabled by my noble friend and the noble Baroness, Lady Whitaker. A breach of a school attendance order is currently punishable by a fine of up to £1,000, compared to a maximum fine of £2,500, or up to three months’ imprisonment, for the offence of knowingly failing to cause a child to attend the school at which they are registered. This means that there is currently an incentive for some parents to remove their child from school under the guise of home education rather than incur the greater penalty associated with non-attendance. By aligning the penalties, we can increase the deterrent and help ensure that as many children as possible are in receipt of a suitable education.
The noble Baronesses, Lady Whitaker and Lady Brinton, asked about the change in custodial sentence. Wider criminal justice legislation, which has not yet come into force, will raise sentences in magistrates’ courts from three months to 51 weeks. New Section 436Q is simply in line with that wider change, and until it comes into force, the maximum sentence under new Section 436Q will remain at three months, as set out in subsection (9). The noble Baroness, Lady Brinton, also raised the issue of publication of individual data, and I am happy to repeat that we are taking that away to consider it.
I hope that I have answered the bulk of the points raised in this group and I ask my noble friend to withdraw his Amendment 112A—
I apologise. I referred to my noble friend’s amendment right at the beginning of my remarks and reflected that we will consider what options there are to make sure that there is a system that feels fair to parents and in which parents have trust and confidence. With that, I ask my noble friend Lord Lucas to withdraw his Amendment 112A and hope that other noble Lords will not move theirs.
My Lords, I am very grateful to my noble friend for those replies. I shall read them in Hansard and return to her if I have any points of detail to make. I very much agree with my noble friend Lord Wei that we need an appeal system that feels fair and builds trust. There are different ways of doing it. It clearly should not be by internal local authority appeals, the Local Government Ombudsmen have not proved helpful in elective home education cases to date and the Secretary of State system is a bit on the impenetrable side, so I very much hope this is an area where we will make improvements.
My noble friend’s remarks put a lot of weight on the forthcoming guidance. If at any stage a draft of that can be shared, I would be most grateful to have a look at it. It would shortcut a lot of debate if we had a clear feeling of where the Government are heading.
I hope my noble friend picked up the point, but if not, I will repeat it: we plan to develop the guidance in co-operation with home-educating parents and local authorities. I am sure that, when a draft is ready, we would be happy to share it with other Members of the House.
My Lords, I was not trying to hurry my noble friend; I was just saying this is clearly quite important.
Picking up on other points made in the debate, I am absolutely delighted that the noble Lord, Lord Soley, and I are so much in agreement on this. We approach it from different angles, but we both agree on the need for the system to be supportive and for children who are not being properly educated to be rescued with speed. The question is: how do we do this fairly and leave home education as a supported system?
My general experience of this—and I hope that talking to Gloucestershire will mean that my noble friend shares it—is that where there is a supportive system, money is much better directed. Money goes to supporting the education of children, rather than being used to try to control their parents, and there is a much better flow of information about what is happening. Providing facilities for parents, including maths and English catch-up and even swimming lessons, means we get to see these children and get the information without having to be punitive about it. There is a flow of information because we are working with the home education community. The numbers that remain outside the easy orbit gets small, and they can be focused on. Building something that is supportive and works with home education is a double benefit—using the money well and allowing us to catch up with children who are being failed swiftly. I very much hope that that is the direction the Bill will take.
I beg leave to withdraw the amendment.
Amendment 112A withdrawn.
Amendments 113 and 114 not moved.
Before calling Amendment 114A, I inform the Committee that the noble Baroness, Lady Brinton, will be taking part remotely and that if Amendment 114A is agreed, I cannot call Amendments 115 or 116 due to pre-emption.