By Joanna Merrett BA (hons), EYPS, MA, [PhD student and researcher at University of Exeter, Centre for Social Mobility], Joanna is also the Founder and Executive Director Centre for Elective Home Education Research UK.

I believe the  proposed schools bill is based on false assumptions and takes away the rights and the freedom of educational choices of parents and the issues of full time education for their children with SEND (Special Educational Needs and Disabilities).

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Further information

On May 11th 2022 the government published a proposal for new legislation that lays out their desired changes to various education acts. This proposal is titled the ‘Schools Bill’. It lays out unprecedented changes to the Education Act, plans to turn all schools into academies, and lays out plans to tighten rules on attendance at school including increased punishments for parents in the form of even more large fines than are in place currently, and potential imprisonment. 

Unrealistic and unchallengeable in the future 

Part 3 of the Schools Bill contains proposals for increased regulation of home education including a mandatory register of all children not in school – which the government calls the CNIS Register (Children Not In School). It lays out plans to change the reasons permissible for the issuing of School Attendance Orders (SAOs) and increases punishments for parents of children who do not attend school.  It reinforces the Government’s unrealistic expectation that children should attend school 100% of the time, no excuses or reasons allowed. 

This Bill has reframed The Department of Education’s original aim of creating a register for home education registration and monitoring and instead made the Bill about establishing a register of children not in school. There is a great deal that doesn’t appear on the face of the Bill, as much of the detail is left for after the Bill has become law. Such refinements and definitions as are missing in the Bill are proposed to be made in secondary legislation (Statutory Instruments) and Statutory Guidance, both of which do not require the detailed scrutiny and challenge that a bill requires and allows.  It should be noted that fixing poorly written Acts of Parliament is not the purpose of secondary legislation and guidance. These exist merely to help with the interpretation of Acts of Parliament.

Part 3 of the Schools Bill sets out various consequences if parents fail to register or to respond to enquiries about registration from the Local Authority (LA). It also proposes revisions to the process for School Attendance Orders in England.

False assumptions or claims

There are any number of reasons to oppose the proposed changes to legislation, but chief among them is the false assumption they are based upon: 

That the proposals can/will improve children’s lives

This is a blatantly false assumption. 

Firstly it assumes that Local Authority intervention is benign. It encourages a level of scrutiny that is currently not allowed, leading to interruption and intrusion into family life. This includes the recording on the child’s file of anything the Authority deems appropriate.

Secondly it places great emphasis on bureaucratic and clerical procedures, punishing children for clerical errors or late returns of paperwork by issuing school attendance orders regardless of whether a suitable education is taking place.

The result, of course, of all the pointless school attendance orders will cause misery to parents and children whilst putting additional pressure on a schools system which is already underfunded and over subscribed. Many home educated children have been deregistered precisely because they have experienced significant unmet needs in school. There is no mention of the billions that will be required to meet those needs should such children return to school. Unmentioned are the millions that the Treasury will have to find if all children not in school and alternatively educated end up forced back into school, especially considering many of whom will need costly Special Educational Needs and Disabilities (SEND) provision.

There is a cohort of invisible children

This assumption, that there is a cohort of invisible children unknown to local authorities, is not based on any evidence and is an assumption by Local Authorities and the Government.  In supporting documents there is also an assumption that these missing children are not receiving a suitable education. In fact, the Local Authority already knows where the vast majority of children not attending school are. Most parents who Electively Home Educate (EHE) have deregistered their children from school – so the children are already in the system and on the Local Authority’s register or list of EHE children. Of those who are not at school for other reasons – they are all registered either at school (and not attending due to medical reasons or anxiety for example,) or are receiving education not at school, but provided by the Local Authority and are therefore known.  

The Education Act 1996 refers to the legal requirement for Parents to ensure attendance or school or ‘education otherwise than at school’ this ‘otherwise than at school’ wording is what makes home education and lots of alternative and part time settings in the UK legal. 

So who are these ‘invisible children’? Are they the so-called CME children (Children Missing Education)? This label is, sadly, interpreted differently across England but in general terms is used to describe children who are not receiving education at a school or directly from the Local Authority or being Home Educated. Many such CME children are in fact simply in limbo as they have not been assigned a school place, however the Local Authority knows who all of these children are. If your child is rising 5, for example, and you have not yet registered at a school, the Local Authority will often contact you to ask about provision. 

That there are suitably qualified staff in local authorities (LA)

There is an assumption that there are suitably qualified staff in local authorities (LA) that can effectively judge the suitability of education.  A glance at the job advertisements for such officers shows that qualifications required to get the job  vary, with very few being qualified to SENCO (Special Educational Needs Coordinator) level, and in too many cases not even being a qualified teacher. Certainly it is rare for experience of Elective Home Education and diverse Pedagogies to be required. With the level of neurodiversity in home education, families are concerned that under-qualified staff will be judging how suitable the education provision is for children with complex learning needs and difficulties, and  that such children may have very different learning styles and methods to school. The appropriate qualification should arguably be the same as or equivalent to a school SENCO as Local authority officers are required to make similar decisions and judgements as a SENCO in school due to the large number of neurodiverse and SEND children who are home educated. 

It is a significant concern among families, given the inability of schools to support many of such children (research suggests at least 50% of home educated children may be neurodiverse – autistic, dyslexic, dyscalculic, ADHD, Tourette’s, dyspraxia, etc, etc.) that unqualified LA staff are going to be responsible for making decisions that have serious and detrimental consequences for children and young people. In many cases this will lead to forcing them back into the very system they sought to escape from.

That parents do not act in the best interest of their child

The bill is negatively framed and seems to assume that parents are not acting in the best interest of their child. We know there are increasing numbers of children with anxiety, school refusal, bullying and unmet additional needs. The Bill, instead of focussing on solutions and support for families, seems to be suggesting increased fines and prison sentences, which will negatively impact parents and children alike. A parent that is struggling with their child’s attendance because they feel suicidal or anxious or are being bullied needs support, not the threat of hefty fines and prison sentences.

All children are fine and better off in any school

The changes to school attendance orders and the emphasis on schools for attendance are based on the assumption that all children are fine and better off in school, any school. The gaps in the knowledge of home education and alternative education and the reasons for absenteeism from school go unacknowledged. Worse, they go unsupported and under funded giving additional powers to fine and imprison parents for non compliance. 

Schools meet children’s needs

Schools cannot currently meet all children’s needs now, especially children with SEND needs. The assumption that all children are better in state schooling is damaging and misleading. 

Fines will help struggling families 

The proposed changes mean parents could have an SAO procedure initiated if, for example; you don’t provide the correct information, or if you or the LA make a mistake on the data input or feel uncomfortable about what information they are asking, especially if it doesn’t relate to suitability of education. Simply put, under the Bill’s proposals a parent is responsible for providing what the LA asks, and  non compliance could mean an SAO. In addition the LA can request an unlimited amount of information or data (which could of course be discriminatory in its nature e.g. questions relating to religion, ethnicity, income, sexuality etc. not relevant to suitability of education). This has nothing to do with whether the child is receiving a suitable education.

Effectively the proposals change the very foundation of the SAO procedure by expanding the grounds for such an order from lack of a suitable education to clerical and administrative issues, whilst they are also dramatically increasing the penalties for non-compliance.

The Schools Bill and supporting documents state “The penalty for breach of a School Attendance Order (SAO) will be a fine not exceeding £2,500 or a term of imprisonment of up to 3 months (which will become a maximum of 51 weeks after wider changes to criminal sentencing law come into force) or both. This will be an increase from the current maximum sentence of a fine of £1,000 and will bring the sanction for breach of an SAO in line with the sanction for the offence of knowingly allowing a registered pupil’s non-attendance. This will remove the incentive of a lower punishment that may encourage a parent to withdraw their child from school under the guise of home education to avoid a higher fine for non-attendance.“

If your child is being bullied or unhappy at school, has Emotionally Based School Avoidance, if the school is not meeting their needs or they are failing to thrive this bill moves towards removing a parents current right to opt out of state education if they feel that would protect their child. And parents could face extreme prison sentences and fines.

No child’s voice has been heard

The wellbeing of Children and Families is NOT  at the heart of this Schools Bill. It’s essentially all about control. Nowhere in this Bill is the “voice of the child” mentioned yet this has been banded about relentlessly as a reason for increased oversight of home education and stricter regulation around attendance. 

Does forced school attendance actually benefit a child in the long run? 

Losing Privacy and Rights

Important parts of the draft legislation are intentionally very vague and open to over interpretation. The LA can demand any personal data they deem is appropriate. ANY. DATA. There is no limit stated of e.g. relevance to the education being provided. They can also share it as they see fit. Section 436C (1), (d) and subsection (2) This is the bit which says that what will be on the register is ‘any other information that may be prescribed’.  The notion that a local authority can put anything they like on the register has to be foolish – and there will be wide variations across the country as to what is recorded. It will allow for personal bias and discriminatory views of individual officers to be played out through ‘data requests’.  

The rhetoric “it’s just a list” is a lie. A senior government representative, in August 2020, Ms Kate Dixon, the Director of Schools, Department of Education told the Independent Inquiry into Child Sex Abuse that this is the first “more palatable” step towards monitoring and dictating the content of home education “at a later time”. And if parents don’t comply? They are issued with School Attendance Order procedures.

There is no process of appeals, protection, an ombudsman or a safety net for parents to challenge decisions made by LA’s where they now are being given free rein to request any data of their choosing. The proposal aims to keep this data for 66 years meaning childrens data will be held until they are in retirement.

It is unethical and morally wrong to expect families to complain to the very people they have been wronged by and may need to ask for support from in the future. 

Lack of recognition of school attendance difficulties

It is believed that neurotypical children perform better in GCSEs with better attendance so they think a blanket approach is helpful for all children. They are not considering all children with different needs.

There is a generalised assumption that school attendance difficulties are due to a lack of motivation rather than recognising the young person’s unmet needs. Schools and the DfE therefore think that methods to improve motivation will help attendance. They assume that punishment improves motivation whereas punishment makes things worse, further alienating and adding further trauma to children and families.

Many children find attending school very challenging. This is often due to anxiety or SEND. Schools generally have a poor understanding of masking – children using their above average intelligence to mask their learning difficulties and therefore never achieving on their own academic level nor being diagnosed with a learning difficulty – and the detrimental impact on mental health which has been escalated due to Covid. trying to squeeze all children down this narrow path of learning. Is a harmful thing to do.

How to take make a stand against The Schools Bill

Get more information

• You can listen to a podcast on Rethinking Education about the problems with the bill; they also mention some of Joanna Merrett’s research.
• There is a ‘Stop The Schools Bill’ facebook group people can join to find out more and where you can download the main paper so called ‘wet ink’ petition that is going into parliament requesting the removal of Part 3 and 4 of the schools bill.

Contact your MP

• Most importantly write to or contact your MP (Find you MP and contact details) or, request an appointment at their MP’s surgery to explain any issues you have currently with managing your child’s education, be that home education, school or flexi schooling. MPs need to know the complexity of trying to get support for children with neurodiversity or SEND and the lack of funding and support and the problems currently experienced, and how these problems will actually be made worse by the Bill’s proposals of increasing punishment in the forms of fines and threats of prison. Tips how to talk about home-education with your MP.

Online Petitions

• You can sign one Petition here focused on not wanting fines for parents: Stop the Schools Bill – don’t prosecute when children can’t, not won’t go to school!
• You can sign a different petition here that asks the Government not to pursue compulsory registration of all home-schooled children. Do not require parents to register home educated children with local authorities.

Key sections and documents

Kate Dixon – all references and links are here: Department for Education Seeks to Oversee what You Teach Your Children! – The HE Byte https://wp.me/p9AZZd-D0 

Page 129, line 18:

     “We first consulted on the three things, but, given the responses that we got back and the contentious history that stepping into this space has, we decided to take it in parts and go with the creation of the register, which was the most palatable and we thought would take us at least on the journey, and not look at the monitoring and the content of the education through proposals to legislate.”

1. Schools Bill Fact Sheet, p.5 –  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1077818/Children_not_in_School_-_Schools_Bill_Factsheet.pdf
2. ADCS Elective Home Education Survey 2020 – https://adcs.org.uk/assets/documentation/ADCS_EHE_Survey_2020_FINALweb.pdf
3. Parliamentary Research Briefing on Home Education in England – https://researchbriefings.files.parliament.uk/documents/SN05108/SN05108.pdf
   Education Otherwise, Home Education Trends Post Lockdown – https://www.educationotherwise.org/home-education-trends-post-lockdown/ 
4. Schools Bill [HL] Second Reading – https://hansard.parliament.uk/lords/2022-05-23/debates/59D55295-1DAD-4401-938C-B28BDA85F01A/SchoolsBill(HL) 
5. ADCS Elective Home Education Survey 2021 – https://adcs.org.uk/assets/documentation/ADCS_EHE_Survey_2021_Report_FINAL.pdf
6. Schools Bill Fact Sheet, p.6 –  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1077818/Children_not_in_School_-_Schools_Bill_Factsheet.pdf
7. Education Act 1996, Section 437 – https://www.legislation.gov.uk/ukpga/1996/56/section/437 

Shortlist of problems with the Schools’ Bill

1. There is no evidence or proven need for a register

2. The child’s best interests have been completely ignored in this bill

3. The Bill has been poorly drafted and is heavily dependent on secondary legislation (Regulations) and guidance to introduce parameters and specifics

5. It allows the LA to ask for any information from parents, regardless of its relevance and the parents’ right to privacy. This data about individuals is then also allowed to be shared – there is no regard to GDPR

6. No allowance has been made for those for whom data disclosure poses a significant risk

7. It demands that Out of School Settings, including private tutors, share detailed information (which they may not have nor need to collect themselves) about families and imposes penalties if they do not do so, again without regard to GDPR

8. There are no safety measures in the bill e.g. it allows unqualified individuals to make life changing decisions about families based on their own prejudices and beliefs

9. It creates a dual registration system for a large number of children for no apparent purpose e.g. code C Flexischooled children and sick children

10. The register does not include details of children educated under The Education Act 1996 s 19, who often receive only 3-5 hours of education a week, whereas Code C Flexischooled children who already receive a full-time education are required to be on the register.

11. It criminalises parents for not providing trivial things or for making a clerical error rather than deliberate wrongdoing

12. It allows LAs to prosecute families repeatedly for the same offence and it allows for repeat enforcement of a SAO without any re-examination of the facts

13. There are unrealistic and pointless time restrictions placed on parents for statutory actions e.g. 10 days to prove that a suitable education is being provided. There is no parity with the timescales allowed by Ofsted for schools that are failing or any opportunity for the families to improve their provision

14. Neither children nor families derive any benefit from being on the register

15. There is no support or funding for assessment for SEND/EHCP

16. There is no proper route of appeal or complaint for either SAOs or the behaviour of LAs

17. If an EHCP with a named school is in place, a parent is not allowed to apply for an SAO to be revoked even if a suitable education at home is taking place.

18. A lifetime SAO simply does not work – needs change, people move and children age out of schools.

19. It places burden of proof on parents to demonstrate that they are following the law rather than assuming that they are and intervening only if there is evidence to the contrary

20. No pilot has been proposed or attempted

21. No appropriate impact assessment has been undertaken

22. Ofstead to have right of entry to people’s homes 

© 2022 Joanna Merrett

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