21 February 2007
2 Do you agree that where schools are providing fewer than 20 hours per week but the education provided constitutes the major part of that child's education, they should be required to register with the Department for Education and Skills?
No.
Nowhere is the Consultation Paper more confusing and misleading than in its use of the term "the major part of that child’s education" in this question. This phrase is so imprecise as to make it extremely difficult to respond with any confidence that the term will be understood in the same way by respondents and the DfES.
The term "the major part" could reasonably be taken to mean over 50% of the child’s educational provision. If this is the case and the upper limit offered is 20 hours per week (as anything above this is automatically deemed to be full time) then any provider offering education for over 10 hours per week is providing the major part of "that child’s education". In the absence of clear criteria which would indicate when an offence has taken place we believe that the Court will require proof of intent to act unlawfully. As our Counsel says:
22. Precision in the law is not always attainable 13; the Court is required to determine full time education; likewise Parliament would be entitled to pass primary legislation that independent schools that provide the ‘major part of that child’s education’ are required to be registered. It is unlikely that such a provision would be vague per se, but the Courts would require the component of mens rea to be satisfied; namely that an individual intended to operate a school in breach of the law: Sweet v Parsley 14.
Counsel for Tyndale Academy, ibid
The DfES ought to have made clear why it has not simply defined "major part" in terms of hours. In all other cases where the term "full-time education" is defined by the Department it is defined in terms of hours (and with a high degree of precision). In the case of Pupil Referral Units, children educated in them are entitled to a full time equivalent of 21, 23.5 or 24 hours per week depending on age. (Circular 11/99 Social Inclusion: Pupil Support). Young people in receipt of Educational Maintenance Allowance must be in full-time education which is defined as 16 hours per week (Section 518 Education Act 1996). Overseas students must be enrolled on courses of 15 hours or more per week to qualify for a student visa (Part 3 Sec 57, Immigration Act 1971). For teachers' employment purposes, full-time means 1265 hours per year. In the light of these it is inexplicable and seems arbitrary for the Department to depart from its normal practice by now calculating full-time by use of the term "the major part". At the very least some explanation as to why this departure was thought necessary ought to have been given in the Consultation Document. Such an explanation is clearly required if the DfES is asking respondents to intelligently comment on whether a particular number of hours should be considered as full-time.
Because the term "the major part of that child’s education" is not defined by any lower limit it could reasonably be taken to mean that if the child is receiving a minimal number of hours tuition at home or school they could be regarded as receiving the major part of their education from any educational project or tuition group they attend if a greater number hours are spent there. It is quite possible that a child who has been excluded from a maintained or independent school and is being reintroduced to regular attendance at school through flexi-schooling, is in the meantime receiving the major part of their education at that project even if they are actually only in attendance there for 10 hours a week. A project with five or more such children would, under these regulations, be deemed to be providing the major part of the child’s education and so would have to register as a school even if it provided less than full-time education. Indeed if the child attended school just one day per week, the major part of that child’s education could be provided elsewhere and could be even less than 10 hours. The foolishness of this position is highlighted by the fact that an Educational Project or Tuition Group would have to register as a school if just one of its children was a "Looked After Child" or had a Statement of Special Educational Need. It is to be borne in mind that there is plenty of potential for many children to be in such a position, particularly if the provision made by such a Project is immediately after normal school hours.
In the London Borough of Newham, one such after-school education provision (Eastside Young Leaders Academy) "accepts boys who have been referred by their school or parents... Boys attend the academy for 16 hours per week in the school term and for full days during the school holidays." (Newham News 03/07). It could reasonably be argued that as the children in attendance are disaffected and at risk of permanent exclusion at school, they are receiving "the major part" of their education from the project in question even if they are registered at a school. There are plans to open four other such projects in other London boroughs. Whether these are providing a major part or the major part they are certainly providing 16 hours per week of education for 5 or more pupils of compulsory school age.
In the absence of a proper definition of the term "major part" there is bound to be much uncertainty and confusion about what "the major part" of a child’s education is. By contrast, the present position (as expressed in Circular 7/90) is very clear: if five or more children of compulsory school age are receiving more than 21 hours etc. of taught time in secular instruction in an educational institution then that institution must register as a school.
24. The use of the term ‘a’ or ‘the’ ‘major’ part of a child’s education would appear to be in breach the principle of legal certainty; this could mean anything from 51% to 99% of a child’s education; the quantum of teaching hours varying with the age of the child. Furthermore, the State would have considerable problems pursuant to Article 8 of the Convention (right to privacy) in intruding into private upbringing of children.
Counsel for Tyndale Academy, ibid
The section of the Consultation headed The Proposals (3.1) is the cause of further confusion where it uses the term "a major part" rather than the term "the major part" which is used throughout the rest of the document. By introducing the term "a major part" the reader is being asked to consider that there may be more than one major element to a child's education. It may be that several tutors or projects are providing significant parts of the child's education and that the parents are also providing a significant part. This is by no means an unreasonable scenario when it is considered that many home educating parents may use such an approach to ensure that expertise which they don't possess is available to their children. They may also wish for their children's social needs to be catered for in a group setting. Each of the providers employed by the parent could be deemed to be providing "a major part" as per section 3.1 of the Consultation Document. Including this term in the proposals has the potential to create confusion when the phrase "the major part" is used in the actual questions.
Another example of provision which could fall under the term "a major part" is that made by Mosque Schools. If an older child is attending one of these schools for two hours an evening and receiving two hours of supervised tuition at home from his parents then the Mosque School will be deemed to be providing a major part of the child’s education and so be registrable as a school. It is not at all unusual for Mosques to operate their schools for 15 hours per week and there are many such schools which, while not providing a broad and balanced curriculum, are providing "a major part" of the child’s education.
When this question and the Department’s Proposals in 3.1 are considered together it is clear that several new duties are being imposed on parents who educate their children by a mix of "school-based" (less than 20 hours) and home or other provision. In the section of the Consultation Document headed Proposals 3.1 it is proposed to impose on parents and schools the duty "to have a clear understanding of their roles and responsibilities" and the additional duty "to be able to describe and evidence the part that each plays in contributing to a broad and balanced curriculum". While these are entirely reasonable propositions, which it is to be expected that parents would ordinarily work by, they must not be duties placed on the parents by the proposed Guidance. The effect of such new guidance would be that the Department was making a statement of how it interprets the law. They would in effect be instituting duties which, if the parents failed to carry out, would render the parents liable for prosecution or some other action. Such a duty imposed by the guidance (were that possible) is both unnecessary and unreasonable. For example the parent may not himself be able to describe the detailed provision a tutor employed on his behalf is making. The Department appears to have ignored the fact that the only duty imposed by the 1996 Education Act in this regard is for the parent to secure an efficient education suitable to the age, aptitude and ability etc. of the child. This may be done at school or otherwise. The Department does not have the power to define how that efficient education is delivered any more than it has the power to determine at what time of day it must be given. The law simply gives the Local Authority the duty and power to make the determination as to whether it has been achieved. If Regulations or Primary Legislation were being used to achieve this aim then the Secretary of State would have the power to impose these new duties but in the absence of these it may not be done.
The important question of what would happen if the parent or school is adjudged to be failing to provide what they have "signed up to" in any such agreement is not addressed in the Document. It is entirely possible that a Local Authority may satisfy itself that, despite any shortcomings on the part of the parent or the school, the child is nonetheless receiving an efficient education from the other or in the round. Nevertheless, if such a school is operating for less than 20 hours per week and is providing the minor part (less than 50%) of the child's education it has no power to prevent a third party namely the parent from changing their own provision and so rendering the school's provision the major part (more than 50%). So although the LA may adjudge the provision for the child overall to be satisfactory in terms of outcomes, the Department is proposing that each party's provision in terms of hours or share should be determinative of whether the school is registrable. This cannot be a reasonable course to take and is not in the best interests of the children concerned. The DfES is thus proposing that a school is to be defined by reference to whether it operates for less than 20 hours per week but provides the major part of the child’s education. But it cannot be sensible to define a school by reference to the provision made by parents in a setting outside the school. It may be that the parent is able at one time to provide the major part of their child’s education whereas a change of circumstances will at another time mean he is providing the minor part. Will the status of a school as a major provider depend upon the changing provision of the individual parents? It needs to be remembered that the small schools, with as few as five children, envisaged by the law will experience great uncertainty if this new definition is adopted.
23. Additionally, the input of parents will vary and the invoking of criminal sanction will, thus, be caused by acts of third parties over which Tyndale Academy has no control. Breaches of a law by third parties (parents failing to provide home schooling) would be questions for the determination of the adequacy of the mens rea.
Counsel for Tyndale Academy, ibid
The final point at issue in the question is that posed by the term "that child’s education". This is entirely confusing as "that child" could reasonably have several meanings. If there are five or more children receiving the major part of their education from the "school" and they are referred to as "those children's" then this statement makes some sense. But the question is here put in the singular as if any child who had the major part/a major part of their education provided by the school rendered that school registrable. To make such a judgement based on the subjective opinion of OFSTED working with these guidelines and determining what is the major part of "that child's education" cannot be a safe or sensible position.It must be reiterated at this point that the present guidance which has met with universal acceptance is far more objective and fit for HMI, the DfES and the Courts to pronounce upon than the subjective wording of the proposed guidance.
