Guidance is statutory that is it is prescribed or authorized by statute. The CME (Children Missing Education) guidance is statutory because there is a clause in the original act which directs the relevant authority to take note of the contents of any guidance issued. It would appear that this is a neat way of altering the law without having to keep changing the primary legislation.
Guidelines are not statutory, and are basically just advice as to how to carry out particular duties.
GuidANCE trumps guideLINES.
As I understand it, HE cannot have statutory guidance because there is nothing in statute which refers an authority to any guidance. So to have statutory HE guidance we would need a change to the primary legislation.
It seems to me that this would not be a good thing, as each new guidance issued alters the legal situation - if I have misunderstood this PLEASE tell me, and explain to me how.
We have a situation where the 2007 HE Guidelines specifically state "The guidance issued makes it clear that the duty does not apply to children who are being educated at home." This was in relation to CME and pointed to the 2007 guidance on CME.
3.3.16. If it becomes known that a child identified as not receiving education is being home educated, this should be recorded on the local authority's database and no further action should be taken unless there is cause for concern about the child's safety and welfare. Monitoring arrangements already exist for children being educated at home. Where there are concerns about the child's safety and welfare, Local Safeguarding Children Board procedures must be followed.
However, the guidance was updated and so now it is the 2009 guidance which is the one that must be adhered to, and this is where the problems arise.
2009 CME guidance gives over a whole section to Home Education I would like to draw attention to this particular section:
92. In order to discharge their duties in relation to children not receiving an education, local authorities should make inquiries with parents about whether their home educated children are receiving a suitable education. The Elective Home Education Guidelines for Local Authorities make clear that parents who home educate may take a number of equally valid approaches to educational provision for their children.
So in one fell swoop we have gone from a case of - "record the fact that the child is home educated and that's all you need to do", to "make inquiries".
It would seem from looking at the websites of various local authorities that they have interpreted this new duty by immediately referring HEers to the CME department. North Yorkshire for instance was certainly a week or two ago advising headteachers not to deregister a child 'on demand' but to instead pass the details onto the CME team.
"2.1 Regarding the Headteacher's duty to inform the LA before deleting pupil who is to be home educated from the register. In such cases please inform: Julie Fenny, CME coordinator"
Unless I have misunderstood the law regarding deregistration, the headteacher is supposed to remove the child from the register immediately the deregistration letter has been received, and then notify the LA, not vice versa.
If we look at what is happening in Bedfordshire, it's an even worse scenario:
"When parents withdraw their child from school to EHE, the child’s name can only
be deleted from the admissions register when the parents inform the school in
writing (section 8 (d) of the Education (Pupil Registration) Regulations 2006)
giving reasons for decisions. The Head Teacher/Governor has to inform the LA of
withdrawal together with reasons before the child’s name is deleted."
Compare that with the actual law:
"It is then the duty of the proprietor of the school to inform the LA within 10 working days under Regulation 13 (3): “when the name of a pupil has been deleted from the admission register in accordance with regulation 9(1)(c) the proprietor shall make a return to the local education authority giving the full name and address of that pupil within the ten school days immediately following the date on which the pupil's name was so deleted”.
Arse about face isn't it? (You can see the full details here)
More and more cases are turning up where HEers are being *found out* having come into contact with local authority services. It would seem to be the case that everyone with a connection to children's services has a duty to inform the CME department about any HE children they come across in the course of their work. Previously, as far as I understand it, the librarian, school nurse, health visitor, hospital, gp etc etc could choose to *shop* you if they felt that way inclined, but equally could choose to do nothing and let you go on your merry way with no further hassle. It would seem that the CME guidance has changed all that, so unless you are able to avoid all public services you stand a very good chance of becoming known. If all LAs follow N Yorks lead and report straight to CME officers before deregistering a child, and it seems unlikely that N Yorks are acting as a maverick authority, then we effectively have non voluntary registration.
Whilst the 2007 EHE Guidelines are not statutory, they do stand as a clear reminder that HE was not to be conflated with CME. If we put in place new, updated guidelines, will that particular element be removed? If it is, are we left with not a leg to stand on when it comes to challenging the CME guidance, which is what I believe we need to do before we even think about putting new guidelines in place.
Thanks to Gill for laying this out on this blog piece, and to Elaine for digging out the dodgy LA practices.
ETA: thinking about it further, would it even be possible to refer to outdated guidance in new guidelines? I would imagine not, so it would seem that that particular section will have to go.
Another addition: I have had a message passed to me via a third party from Alison Sauer:
"You might, if you are brave enough, like to suggest to Tech that she revisits her blog post and quotes the correct law........which sadly means that all these policies are actually technically correct. I'd really hate her to look daft. And this is not a sarcastic comment, it's genuine otherwise I would be on there correcting her.
Tech is quoting 1995 regs not 2006 ones. And the guidance accompanying it is poisonous and confusing. It tells schools to notify LAs ASAP and if the dereg is with immediate effect to delay dereg for 2 days.
I went ballistic when they changed it but it had no effect........
Alison Sauer"
Which is interesting as the section I quoted came Derbyshire Council's website screenshot linked to above and here too.
Elaine has posted this rather clear graphic dated 01/09/08, along with some other interesting information on the forums
