(1 day, 10 hours ago)
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Lord Lucas
Member's explanatory statement
This amendment seeks to probe whether the wording of this paragraph is compatible with ECHR rulings regarding requirements to disclose religion.
Lord Lucas (Con)
My Lords, it is my intention not to speak to the amendments in this group but to await what the Minister will say about them in order to shorten the debate.
In view of the conversation before we had Questions, I want to reconfirm to noble Lords that, according to paragraph 4.31 of the Companion:
“When the House is in committee there is no restriction on the number of times a member may speak”.
Therefore, a Member may speak after the Minister, and the Minister may speak during the mover of the group’s response to the Minister. The back and forwards may involve as many sessions of conversation and ministerial intervention as possible; it is completely unnecessary to use the phrase “before the Minister sits down” in Committee. Committee is a free-for-all and a conversation. It is an opportunity to focus on the real issues of the group and to have the time to talk them out and get to the nub of them, even if that takes a certain amount of backwards and forwards.
The great advantage of this is that noble Lords do not need to speak until they are sure that the point they want to talk about has not been covered already by other people and satisfactorily answered by the Minister. They can wait to see who speaks and what the Minister says, and only then, if they feel that what they wanted to say has not been said, need they say anything. It is a great technique for focusing debate and shortening groups, which is something which I hope the Government will find helpful. On this group, I beg to move Amendment 255 and look forward to the Minister’s response.
The Earl of Effingham (Con)
My Lords, I shall speak to this group of amendments on the children not in school register, which seek to probe issues surrounding privacy. The children not in school consultation aimed to collate thoughts and views around local authority registers of children not attending school to ensure that all children receive a positive and beneficial education regardless of where that education might be taking place. There were close to 5,000 responses, predominantly from parents, but also from both local authorities and charities, and the findings will help to weave a gold standard of policy and guidance, which I am sure all noble Lords wish to be entirely fit for purpose.
On these specific amendments, it is of course acknowledged that the priority should be to find the right balance between privacy on the one hand and the safety of children who are not well looked after on the other. I am most grateful to my noble friend Lady Barran, who has already set out so well His Majesty’s loyal Opposition’s view on these issues in the previous groups, so I will not detain your Lordships’ House by repeating those same arguments.
The Minister of State, Department for Education (Baroness Smith of Malvern) (Lab)
Amendments in group 4, which we have now got to, concern the inclusion of certain information in the registers and the delegated power for changes to be made to the operation of the registers. I turn to speak to Amendments 255, 256, 257, 258 and 259, tabled by the noble Lord, Lord Lucas. Each amendment addresses an element of the information which the Secretary of State may prescribe for inclusion in the registers.
Just to reiterate, as I did on the last group, parents need to provide only certain limited information about their child: their name, date of birth, address and how they are educated. All further information which the Secretary of State may prescribe for inclusion in the registers is voluntary for parents to provide. This includes information on the child’s protected characteristics, which Amendment 255 would remove, current and historic child protection inquiries, which Amendment 256 would remove, current or previous child-in-need status, which Amendment 257 would remove, the reasons for the child having looked-after status on the registers, which Amendment 258 would remove, and reasons why the child is eligible for inclusion in the register, which Amendment 259 would delete.
As mentioned in the previous group, the Secretary of State may prescribe in regulations the information which the local authority shall be required to include in the “children not in school” registers, if they hold it or can reasonably obtain it. The intention is for this additional information to help local authorities better understand and support children who are not in school. My department will consult on the content of regulations following Royal Assent. I suggest to the noble Lord that the consultation process is the right approach to determine whether there is a case for omitting certain information or including details such as the reasons for a child’s looked-after status in the registers. On Amendment 255, I am happy to reassure the noble Lord, Lord Lucas, that the relevant provision is indeed compatible with European Court of Human Rights rulings. The ECHR memorandum makes this clear.
Amendment 262, also tabled by the noble Lord, Lord Lucas, removes the delegated power for the Secretary of State and Welsh Ministers to prescribe how registers must be maintained. This power is intended to enable the Secretary of State and Welsh Ministers to provide for consistency among local authorities as to how their registers are maintained. This could include factors such as how and how often registers are checked for accuracy, how amendments are to be made, their format, and whether and how registers should be published. Most local authorities already voluntarily maintain a register of children not in school, developed based on their local needs. However, to ensure the accuracy of data and encourage consistency of practices across all areas, the Secretary of State and Welsh Ministers must be able to prescribe processes relating to maintenance and upkeep in the future.
As mentioned, we will consult on all regulations used to implement the “children not in school” measures, all but one of which will then be laid via the affirmative procedure. I hope that, for the reasons I have outlined, the noble Lord feels able to withdraw his amendment.
Lord Lucas (Con)
I thank the Minister for that explanation and beg leave to withdraw the amendment.
“(6) Each local authority must establish a parental advisory board, composed primarily of home-educating parents, to advise on and scrutinise the authority’s home education policies and procedures.(7) Where a local authority acts in a way that is contrary to the formal advice of the parental advisory board, it must publish a written statement setting out its reasons for doing so and make that statement available to the public within 28 days.”Member's explanatory statement
This amendment introduces a statutory requirement for each local authority to create a home education parental advisory board. It also requires authorities to provide public justification if they act against the advice of the board, ensuring greater accountability and transparency in decisions affecting home-educating families.
Lord Lucas (Con)
My Lords, on behalf of my noble friend, Lord Wei, I will move Amendment 270 and address other amendments in this group.
Amendment 270 would require a local authority to establish a parental advisory board. This is a useful structure for ensuring that parents and local authorities work together. Amendment 278 would allow parents to provide information in their own words. That may seem a small detail, but it is fundamental. The High Court in Goodred v Portsmouth City Council affirmed that the parents’ own statement is valid evidence of provision, but many councils insist on rigid forms that erase the richness of home education. When looking at the variety of home education, it is important that it can be expressed as it is and is not squashed into a mode of expression it is not suited to.
Amendment 280 would require that the information request be proportionate and relevant to education. Some councils issue broad, ill-defined demands, daily lesson plans and samples of child-generated independent work. Part of this is being able to demonstrate to local authorities what good practice is. As we will discuss in later groups, we need to work towards that.
Amendment 281 would introduce the word “substantial” to describe the information parents must provide. Without it, councils may request irrelevant minutiae under the guise of safeguarding; we all know which council I would use to illustrate that.
Amendment 282 would ensure that families are not bombarded with repeat demands. It is important that we look at the burden of the information provision on parents and indeed on local authorities. My understanding is that this will be addressed in the guidance, and I look forward to that confirmation.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am very sorry I was not here earlier today when Clause 33 was debated. The Green Party has had a very exciting morning electing a new leader, and that is where I was. I very much hope I am not going to make a Second Reading speech, but with so many amendments in the Bill, it is at times hard to see the way forward and to follow through a clear line. So I am going to make a speech, and I hope not to make too many more during the course of the Bill, however many amendments I have tabled.
I declare an interest as a grandmother of three home-educated children, all with special educational needs; two are now studying at colleges in Cambridge and the other is making short films about autism. So my experience tells me that school is not suitable for all children. Not all children can find a suitable school and you do not need to be wealthy to create a very rich educational learning environment out of school.
I, like many noble Lords, have had quite a lot of emails on this topic and I sympathise strongly with parents and grandparents of children with neurodiversities. Home education can take on myriad forms that are far removed from the classroom but are, none the less, educational, informative and far better suited to neurodiverse minds. Neurodivergent children are often repeatedly failed by the state school system, but the truth is that every child deserves a tailored education. Parents with the time and inclination to provide their children’s education know that no teacher can possibly have their child’s interest as much at heart as they do.
The Bill reads as if school is the safest, best place for all children to be. For many, that is simply not true. In fact, for many children school is a hostile environment. By making home education harder for parents, we are discouraging them from doing what is best for their child and for many others. Home educators give up their working lives to improve the lives of their children; to ask them now to continuously justify that choice and to make it even harder by adding bureaucratic hoops and hurdles is not in the best interests of all these children. You do not have to specifically disallow home education to make it unworkable, and home educators believe that this register will place an unworkable administrative burden on families.
I also believe that there is an inaccurate conflation of home education with a safeguarding risk. Evidence shows that children at risk are usually already known to social services, so home education is not the source of that risk. Subjecting home educators to intrusive monitoring is neither justifiable nor helpful. We need to improve children’s social care and to support action, not just documentation, for those children who are at risk, but we do not need another diversion targeting huge swathes of decent people and ignoring those in real need.
Setting up a register for children whose parents are not doing anything illegal or dangerous, requiring the collection of a significant volume of personal, sensitive and often impractical information from home-education families, is discriminatory. We should be supporting people to home-educate their children, not criminalising them.
Lord Storey (LD)
My Lords, I will speak briefly on a few of the amendments. First, Amendment 270 in the name of the noble Lord, Lord Wei, should be considered. It actually happens with one local authority, which gets together home educators to share good practice and their experiences, but it should not be statutory, because it requires a considerable amount of organisation in terms of local authorities. However, if home educators in a particular area are working with a local authority that wants to do this, I would not be opposed to that. It might happen formally or informally, but it certainly should not be statutory.
I also think that the voice of the student is important. One of the concerns that I have always had with home education is that it is not just about education, it is about socialising. You have to work very hard to ensure that children and young people who are home educated have the important socialising that they need, but, again, this could happen organically or informally. It is not something that we should just ignore, but it cannot be a statutory provision.
Again, on Amendment 280, I think most local authorities would want to have the information from parents just once a year. I do not see a situation where they would not want that, unless there was “cause”, as the amendment states. Local authorities would want very much to get that information on one particular occasion and that is it, done and dusted, for that period of time.
The Earl of Effingham (Con)
My Lords, my noble friend Lord Lucas has raised concerns about parental and child involvement at both a national and local level. It is of course important that local authorities consult with home-educating parents. But His Majesty’s Loyal Opposition are of the view that the establishment of a “parental advisory board”, as suggested in Amendment 270, or a “children’s advisory board”, as suggested in Amendment 388, is potentially unnecessary in the Bill.
On Amendment 380, we want local authorities to be targeted in their investigations and to focus on those children who are not receiving an appropriate best-in-class education. They may be at risk, and we therefore find it challenging to support this amendment. On the other hand, an appeals process, as suggested in Amendment 382, might work well. We look forward to hearing the Minister’s response to that amendment.
It is frequently said that constructive challenge and laser-focused scrutiny are the hallmarks of your Lordships’ House. But, when presented with eminently sensible amendments whose benefits have already been so eloquently put by the noble Baroness, Lady Jones of Moulsecoomb, there is no requirement to go over them again.
The other amendments in this group, which seek clarity on the frequency of responding to local authority requests for information, are understandable. Home-educating parents may have concerns on this and are also likely to be spinning many plates already. The amendments are self-explanatory and we look forward to the response from the Minister.
Lord Hacking (Lab)
My Lords, I am somewhat disappointed that there has not been support so far for the amendment from the noble Baroness, Lady Jones of Moulsecoomb, which I co-signed. This is a very important amendment and I will explain why.
The amendment is basically to remove from the Bill the provisions in proposed new Section 436D. The purpose therefore is to ask the Government and my noble friend the Minister to think again about it. The provisions place a requirement to provide information within 15 days on all parents, who must provide initial basic information under proposed new Section 436C, such as the name and home address of each parent and, under paragraph (e), a lot of very detailed information about the home educators who will be educating their children.
If a parent is in breach of providing either the initial information or any changes to it, they are then guilty of breaching proposed new Section 436D. The further consequence, if they are in breach, is that they will suffer monetary penalty. This is unfair and far too harsh on ordinary parents who are trying to do an ordinary job of home schooling, and I ask my noble friend the Minister to think again about those provisions. They put the home-schooling parent into an almost criminal capacity, and that is just wrong. So I would be very grateful if my noble friend would think again about all those penalties.
Let us remember that under new Section 436C(1)(e) there is a lot of detailed information provided, for Sunday schools that a child may be going to or evening classes for physical exercise, and so forth. Things can easily change: perhaps there is a new gym mistress for the evening physical education class, or there are new preachers at the Sunday school. These are very detailed matters, but it does not matter about the detail. The obligation is for the parent to provide the details of the change and provide that detail of change within 15 days. This is far too onerous.
Baroness Butler-Sloss (CB)
My Lords, I have not spoken much at this stage of the Bill but, having heard the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Hacking, I have to say very respectfully that I am concerned.
It seems to me enormously important that the local authority has the opportunity to understand what is happening with children who are home-schooled, and it has the responsibility to check. I have no doubt at all that the family of the noble Baroness, Lady Jones of Moulsecoomb, teach their children extremely well at home but my understanding from what I have been told is that this is not true in every family. I think the Government are entirely right to be taking the steps that they are taking, just to check that our children who are not at school are properly cared for.
Baroness Smith of Malvern (Lab)
My Lords, as I have said previously, the duty on parents to give information for children not in school registers is key to their operation. Information on where the child is being educated, and by whom, is vital in enabling local authorities to identify cases of potentially unsuitable or unsafe education.
The amendments in this group concern this requirement for parents to give information, and how local authorities must act in a transparent and accountable manner towards the home-educating families in their area. Amendment 277, in the name of the noble Baroness, Lady Jones of Moulsecoomb, seeks, in effect, to remove the requirement.
I want to respond to the broader points that the noble Baroness made about home-schooling. I completely understand—actually, I am not sure that I do understand—why she might have wanted to celebrate the election of her new leader. In any event, I recognise that she has a new leader, which was decided this morning. Had she been here this morning, she would have heard what were, I hope, important comments from me and others on the support that exists within the English and Welsh education system, precisely for parents to home-educate, and the reiteration by this Government that there is no intention in this legislation to remove that right. In fact, there is an intention to provide additional recognition and support while also ensuring that local authorities are able to carry out their functions, by knowing where children are being educated otherwise than in school. I hope that the noble Baroness will read the comments that I made this morning about that.
Without a requirement on home-educating parents to register with their local authority, authorities cannot be assured that they have fulfilled their education duties towards children not in school living in their areas. Parents having to provide required information is an absolutely crucial component for the success of the registers.
I bring my noble friend Lord Hacking back to the point that I made this morning. I was completely clear that it is not the case that failing to provide information to the register would lead directly to parents having to face fines and penalties. I hope that my noble friend will reread that contribution and find that it provides some assurance around the point that he made.
I recognise that there are home educators who are already known to local authorities and are captured on voluntary registers. However, that is not the case for all because there is currently no legal requirement for parents to tell local authorities that they are home-educating. Without placing this proactive duty on parents, local authorities will have no assurance that they have identified all children not in school in their areas. As I have mentioned previously, the duty on parents to give information for registers is separate from but complementary to the annual reports that some parents submit to local authorities for the purposes of providing in-depth information about their child’s education.
In terms of parents giving detailed information on the child’s learning objectives and progress towards them, we want parents to continue to have flexibility to submit information in a way that works best both for them and for the elective home education officer. However, for the basic information, such as where the child is being educated and by whom, it is essential that there is a level of consistency in how this is submitted, collected and maintained. Parents of home-educated children in almost all other western countries must, as a minimum, provide details for a register. Children in England and Wales deserve the same level of assurance.
Amendment 278, tabled by the noble Lord, Lord Lucas, seeks to allow parents to provide the required information in their own words. I appreciate how that approach would afford some flexibility to parents, but there needs to be consistency. That is why we are seeking a delegated power for the Secretary of State to prescribe how local authorities maintain and keep their registers, including the use of a prescribed registration form. We will ensure that the form is accessible and simple for families to use.
Amendments 280, 282 and 285, tabled by the noble Lord, Lord Wei, seek to restrict the duty on parents to provide information for registers, and the ability of local authorities to request information, by imposing time limits. Amendment 280 would restrict local authorities from requesting required information to once a year and impose a “reasonable cause to suspect harm” threshold for further engagement. Amendment 282 would provide a similar threshold so that parents did not have to provide information more than once every 12 months, and Amendment 285 would go further by introducing a civil penalty of up to £5,000 for local authorities for asking for information too frequently.
Twelve months would be too long a period for a local authority to be unaware of a change to a registered child’s education provision or personal circumstances. Education concerns can arise at any time, and local authorities must retain the ability to act proportionately without needing to meet a safeguarding threshold. The threshold risks conflating safeguarding with the separate duty to ensure that a child is receiving a suitable education.
Amendments 283 and 284, tabled by the noble Lord, Lord Lucas, seek to extend parental response times from 15 to 30 days, as well as alternative deadlines that would potentially extend the timeframe to 12 months. We are keen that the length of time to respond to a request is proportionate and balances the needs of the family with the risk of a child being out of education for too long. That is why the Bill already allows a local authority the discretion to extend the timeframe for response to requests for information. That discretion could be used by local authorities if they make the request at a time when, for example, it is likely that a family may be on holiday.
Amendment 281, tabled by the noble Lord, Lord Lucas, seeks to require parents of registered children to provide updates to their local authority only when there has been a substantial change to their information in the register. We share the noble Lord’s ambition that the burden on parents to provide information is kept to a minimum, but we have to ask: what would count as a substantial change? For example, a child attending a setting for an extra half an hour a week could mean that the child was then attending that setting for 18 hours or more, potentially indicating that the setting was operating illegally. Even though it was just 30 minutes more, it would be right that the local authority knew about it as the child might be attending an illegal school.
I know that the noble Lord is also concerned that families may overcomply with their duty to update information. I thank him and other noble Lords for detailing these concerns to my officials in the July meeting. We are committed to ensuring that the registers work for everyone and will continue to take into consideration the feedback that we have heard from your Lordships, home educators and local authorities.
I turn to Amendment 287, tabled by the noble Lord, Lord Wei. In a situation where parents have not fulfilled their duty to give information for registers, the amendment would require a local authority to seek approval from a magistrate or independent tribunal before taking further steps to gather the required information. Requiring local authorities to seek approval from magistrates or a tribunal before making reasonable inquiries about a child’s education is disproportionate at best. At worst, it risks children being in unsuitable education for long periods.
If a parent of an eligible child does not provide required information for a register, local authorities may continue informal inquiries. They also have the discretion to issue a preliminary notice for a school attendance order. This notice would require the parent to provide information on the suitability of the child’s education. These are proportionate responses to ensure a child is in receipt of suitable education.
Amendments 270, 380 and 382 in the name of the noble Lord, Lord Wei, seek to establish new review processes, including in situations where it is believed that a local authority is acting outside guidance or law. Local authorities are required to act in accordance with the law and should follow statutory guidance. If parents feel that a local authority has acted unreasonably or has not followed the law, there are several existing complaints processes in place, such as the Local Government and Social Care Ombudsman and the judicial review process; in some cases the Secretary of State has powers to intervene.
The guidance updated as part of the children not in school measures will build on existing non-statutory guidance to ensure greater consistency around complaint processing. The new statutory guidance will also be consulted on prior to implementation. Data gathered by the department as a result of the children not in school registers will also allow us to draw comparisons between local authorities, identify any outliers and offer further support to these local authorities where appropriate. For these reasons, while we fully support engagement and transparency between local authorities and home-educating families, we do not believe that these amendments are the right way to achieve that aim.
Amendment 388 tabled by the noble Lord, Lord Wei, seeks to set up an annual review panel made up of home-educated children to advise on legislation impacting home education. The voice of the child is an important consideration when developing and implementing education and safeguarding policies. There have been previous consultations on changes to home education and young people were able to feed in their views, including a call for evidence in 2018, a consultation on the children not in school registers in 2019 and updates to the elective home education guidance in 2023. We would also welcome input from children as part of the future consultation on the children not in school statutory guidance as part of the implementation of the measures in this Bill.
For the reasons I have outlined, I hope that noble Lords will feel able not to press their amendments.
Lord Lucas (Con)
My Lords, I am very grateful to the Minister for that comprehensive set of answers, most of which amount to “wait and see”, which I shall be delighted to do. I would be very grateful if she would send me some information on what she thinks the scope of the Local Government Ombudsman is in this area. I had previously thought that they would not have jurisdiction, so I would be very grateful for the Department for Education’s understanding of what sort of questions they will feel able to resolve. Given that, I beg leave to withdraw.
Lord Lucas
“(6) The register of children not in school created under section 436B must be maintained solely by the local authority and must not be compiled into or made accessible through a national database.”Member’s explanatory statement
This amendment prohibits the creation of a centralised national database of home-educated children. It ensures that all data collected under section 436B remains under local control, in line with principles of data minimisation, family privacy, and proportionality.
Lord Lucas (Con)
My Lords, on this I think it would be best if I listened to the Minister’s responses. I beg to move.
Lord Addington (LD)
My Lords, we are doing things in a slightly unconventional way today, but I agree that it is probably in order. These amendments come down to the use of information. I would hope that education policy follows information and knowledge. I am talking here about the groups of home educators who are doing it not because they like the idea but because they feel they have to because needs are not being met.
Earlier the noble Baroness, Lady Whitaker, spoke to an amendment specifying that you should find out certain things. Effectively, it is a reaction to the amendment from the noble Lord, Lord Wei. The noble Lord, Lord Lucas, has tabled rather subtler amendments about the use and storage of information. I hope the Government can give us at least an assurance that they will be collating information to make sure that those who are home-educating because they feel they have no choice have an answer going forward. This will be very important in the Government’s long-awaited—and, I hope, not just aspirational—changes to special educational needs. We are a large group. I would hope that they are collecting this information, making sure they do something positive with it, then telling us how they manage and distribute it afterwards. That is an equally valid point.
The Earl of Effingham (Con)
My Lords, the noble Lords, Lord Lucas and Lord Wei, are seeking further clarification on His Majesty’s Government’s intentions about the use of data from the children not in school registers at a national level. These are indeed valid points to probe, although we might suggest caution around creating a transparency register as set out in Amendment 307, with the additional workload burden it may have on currently overstretched resources.
It is worth noting that there is already a register of information processing, often referred to as a record of processing activities: a document that outlines how an organisation handles personal data. It is a key requirement of data protection laws such as GDPR, and serves as an inventory of all processing activities to ensure transparency and accountability within data handling practices.
Amendment 308 in the name of the noble Lord, Lord Lucas, sets out some of the purposes for which national data should be kept, including monitoring the overall number of children receiving elective home education or children missing education. We will listen with interest to the Government’s feedback on this amendment.
Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)
My Lords, I thank the noble Lord, Lord Lucas, for stepping in and moving the amendment tabled by the noble Lord, Lord Wei. I thank all noble Lords for their contributions to this short but thoughtful debate. I will not take it personally.
Fundamentally, the Government believe that the department’s understanding of children not in school can be improved through the measures in this Bill. Although we currently have collected and published aggregate data on home education and children missing education from local authorities since 2022, our understanding of this cohort of children can be enhanced further through improved quality of data collected by the department. This data will help identify trends among the cohort of children and help determine future policy needs. I assure noble Lords that any data handled by the department will be dealt with in accordance with data protection law and GDPR principles.
I turn to the substance. Amendment 271 tabled by the noble Lord, Lord Wei, would disallow data held on a local authority register from being stored on or shared with any other database that is held and managed by an organisation such as the Department for Education. We believe there is considerable value in the Secretary of State being able to receive data from local authority registers to improve oversight and understanding of this cohort on national and local levels. It will make it easier to identify when children have fallen through the gaps.
The information collected will be used for straightforward reasons, as outlined by the noble Lord, Lord Addington. Analysis to identify trends to feed into policy development, maintaining the integrity of the register and supporting safeguarding, education and welfare will allow us to identify why some children are moving out of mainstream education. The adoption of this amendment would therefore undermine our efforts, as outlined in the Bill.
Amendment 307 tabled by the noble Lord, Lord Lucas, would require certain public bodies that process data to create a transparency register. As we have heard, this would require those bodies to produce and maintain detailed records of all data processing including the form and publication of the record, retention period and disclosure circumstances. Transparency is an important principle, but current statutory accountability mechanisms and audit provisions already provide appropriate oversight. For example, as part of the department’s commitment to transparency, details of all organisations with which we have shared personal data are published quarterly on GOV.UK, alongside a short description of the project, which I hope the noble Lord considers to be an appropriate safeguard.
Amendment 308, also tabled by the noble Lord, Lord Lucas, would, as written, make local authorities unable to share individual-level data with the Secretary of State unless it related to making a direction about a school attendance order. Other information concerning home-educated children or children missing education would be shared only at an aggregate level.
The data processed through children not in school registers is envisaged to have wider uses than just determining whether to issue a direction regarding a school attendance order. Allowing the Secretary of State access to individual-level data will provide for more robust data analysis and research and the join-up of functions aimed at promoting a child’s education or safeguarding. For example, the sharing of individual-level data will enable cross-referencing with departmental databases to locate children who have slipped under the radar due to relocation or changing educational provision.
The provision in the Bill for local authorities to share information from registers with Welsh Ministers could be used in a similar way to enable the location of children who have disappeared from registers due to moving from England to Wales or vice versa. This amendment would therefore undermine the purpose of the registration system, limiting the use of the data it could contain to statistics and exceptional cases concerning school attendance orders. For the reasons I have outlined, I kindly request that the noble Lord, Lord Lucas, withdraw his amendment.
Lord Lucas (Con)
My Lords, that was a full and helpful answer, for which I am grateful to the Minister. I beg leave to withdraw the amendment.
Lord Lucas
“(6) The register established under section 436B shall expire two years after its creation unless the Secretary of State publishes evidence that it has demonstrably improved safeguarding outcomes.”Member's explanatory statement
This amendment introduces a sunset clause to ensure the register remains under review and is retained only if shown to be effective in improving safeguarding outcomes.
Lord Lucas (Con)
My Lords, this group seeks to ensure that the most intrusive elements of the Bill, particularly the new register of children not in school and associated powers, are subjected to robust rolling checks and ultimately remain only if they demonstrably work. Amendment 274 from my noble friend Lord Wei would introduce a simple safeguard whereby the register will expire two years after its creation. This would make sure that the system does grow beyond its original purpose without a clear review.
The troubled families programme is an example of a programme that was sold as an early intervention, but which had very little effect and continued long after people knew it was not doing anything useful. Similarly, Prevent, introduced as a targeted strategy to counter radicalisation, was quietly broadened over time into schools, nurseries and local authorities. The UN special rapporteur described it as the systematic surveillance of Muslim families and their children under the guise of safeguarding. These systems do tend to drift, so having the ability to curtail the register, or at least a requirement to review it, would seem a sensible safeguard.
Amendment 330 calls for a two-year pilot scheme before the register is rolled out. We know from experience that local authorities are highly variable in their understanding, and we receive reports of wildly inconsistent demands. If we run this as a pilot, we will get a clear understanding of how the system is going to work before we have to try it nationally on a whole series of overstretched local authorities, some of which will be mid-reorganisation and not in a position to take on something new.
Amendment 320 proposes that every two years the Secretary of State must review the operation of Sections 436B to 436G and lay their findings before Parliament. If we are not going to actively renew these, as previously proposed, we should at least be sure that we review them.
Amendment 329 proposes an independent review board made up of home educators and education law experts. One reason why SEND tribunals overturn 95% of local authority decisions is that independent panels exist to scrutinise flawed local reasoning. If we do not have independent review, we will allow this new system, which we all wish to succeed, to decay unnoticed. The volume of complaints we have heard from families who say that their council simply does not understand autonomous learning, or that they keep applying a rigid “home at school” template and deem everything else unsuitable, demands some expert oversight. The document from Bristol shared with the Government would be an example of that. This board would ensure that decisions are not made solely by people who may have little real grasp of the varied pedagogies embraced by the home education community. Amendment 388, in another group, would give home-educated children a direct annual panel to advise the Secretary of State, as we have discussed.
These amendments are also about preserving the proper balance between state oversight and family privacy. We have heard families voice profound fears about how soft safeguarding powers have become heavy handed. In one county, a local authority insisted on seeing the family’s daughter alone to discuss why she was not in school, despite clear evidence of school-related trauma. The family reported that it felt more like an interrogation than support. Another council threated a school attendance order within weeks of deregistration, purely because it had no familiarity with unschooling approaches. My noble friend feels that these proposals would not harm the Bill but would strengthen it. I beg to move.
Lord Crisp (CB)
Rather foolishly in retrospect, I have added my name to several amendments proposed by Front-Bench Members of the parties opposite, and I therefore have to speak first on them, rather than just say that I agree. On this occasion, the noble Lord, Lord Storey, has proposed a new clause reviewing the impact on home-educators and the reduction of unnecessary reporting after the event. It also includes an assessment of the administrative and reporting requirements placed on local authorities as part of its proposed terms of reference.
Particularly in the light of this morning’s discussions, when we looked a great deal at the impact on home-educators but also on unprepared local authorities, and the expectation that local authorities should up their game considerably as a result of a number of measures in the Bill, it will be even more important to undertake a review such as this. The Minister has suggested that regulation will provide considerable flexibility. Some of us, including me, have been arguing that some of that flexibility needs to be put in the Bill and that there needs to be parameters around it. But even if there is flexibility, it will be interesting to see whether that actually works in practice. I am very much a supporter of the amendment proposed by the noble Lord, Lord Storey.
Baroness Longfield (Lab)
I will make a quick intervention, if I may, just to counter the claim that the troubled families programme achieved nothing. The evidence does not tell us that, so it is important not to allow us to think that.
Lord Nash (Con)
I support the point that has just been made, which is perfectly valid. Some of the elements of the troubled families programme could be used for school home support for children persistently absent from school. I invite the Minister to look at that, because some of the issues with children who are persistently absent are wider family issues. They need a relationship with one partner of government rather than many, which they do not trust. The noble Baroness makes a very good point.
Lord Storey (LD)
I shall speak to my Amendment 331. This is quite simple, really. It is good practice from time to time to review how things have gone so you are able to adjust it slightly, leave it alone or trumpet the fact that it has worked well. Given this is an issue which has caused such a degree of concern among home educators, this is one small way to say that, whatever is finally agreed, we are going to review it in 12 months, two years or whenever. I think that would make them feel a lot more satisfied with the way we have dealt with this Bill.
Lord Lucas (Con)
My Lords, I entirely agree with the noble Lord, Lord Storey, on that. I think it is an excellent amendment. To have the certainty of that review would be a great comfort. Home education legislation appears so rarely that it might be 10 years before some malfunctioning system was put right. To make it appear after two years would be a great comfort.
The Earl of Effingham (Con)
My Lords, as we have heard, Amendments 274, 276 and 425 in the name of the noble Lord, Lord Wei, seek to introduce different iterations of sunset clauses for the use of children not in school registers. I hope the noble Lord, Lord Wei, when he reads Hansard, will understand it would be relatively challenging for His Majesty’s loyal Opposition to support such an approach, as our long-standing policy has been to introduce these registers.
We do, however, see merit in Amendment 331 in the name of the noble Lord, Lord Storey, which seeks a review of reporting requirements and the impact on home educators. It is vital that we achieve workable and realistic reporting requirements as this Bill passes through your Lordships’ House in line with Amendment 260 in the names of the noble Baroness, Lady Barran, and the noble Lord, Lord Hampton, debated earlier, which we very much hope will be accepted by His Majesty’s Government and which aims to avoid adding additional information requirements for the children not in school register. We look forward to the feedback from the Minister.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, this has been a useful and considered debate. I thank noble Lords for their participation. Local authorities have existing duties under the Education Act 1996 to identify children in their area who are not registered at school and not receiving a suitable education and to intervene in such cases. The ability of local authorities to fulfil these duties has been undermined by there not being an obligation on parents to inform the local authority that they are home-educating. Statutory children not in school registers, along with duties on parents and out-of-school education providers to provide information, will support local authorities to identify those children not receiving a suitable education and take action to address this.
On Amendments 274, 276 and 320, tabled by the noble Lord, Lord Wei, and moved by the noble Lord, Lord Lucas, these amendments would require the Secretary of State to publish evidence on the impact and operation of children not in school registers within two years of their creation in order for them to remain in place. In relation to Amendment 320, of course we will periodically evaluate the impact of the registers on local authorities and parents, following their implementation, and bring forward any necessary adjustments to your Lordships’ House as appropriate. In response to Amendments 274 and 276, the central objective of the registers is to support local authorities to identify children not in school in their area who are not receiving a suitable education. This is not just a tool for safeguarding. We therefore do not agree with Amendments 274 and 276, which suggest that solely looking at safeguarding outcomes would be an accurate measure of the register’s success.
On Amendment 329, also tabled by the noble Lord, Lord Wei, which would require the Secretary of State to establish a board of home educators and educational experts to evaluate the impact of the registers, this amendment is unnecessary as we already intend to evaluate the impact of the registers. We have established a forum of home educators and other key stakeholders and are engaging with them on the registers. We will continue engagement post-implementation to evaluate the impact of the registers.
Amendment 330, tabled by the noble Lord, Lord Wei, would require that the Secretary of State delay the national implementation of children not in school registers until a two-year pilot scheme has been completed. A pilot scheme before implementation is unnecessary. The Bill already provides for adjustments to be made to the operation of registers where needed, including via regulations.
Amendment 331, tabled by the noble Lord, Lord Storey, would require the Secretary of State to review the impact of children not in school registers on parents and local authorities within six months of the Bill becoming law, and report the findings to Parliament. While we agree on the need for regular and transparent monitoring of the registers, six months is too soon to gather meaningful insights. We will begin analysing data from local authorities one year after the registers come into force and engage with parents and out-of-school education providers at appropriate intervals. This monitoring will demonstrate whether adjustments need to be made. Where this is the case, we will bring it to your Lordships’ House in the usual way.
Finally, Amendment 425, tabled by the noble Lord, Lord Wei, seeks to ensure that all laws concerning home education are reviewed and will automatically expire after five years unless reapproved by Parliament following a public consultation. We believe this would not be the most efficient use of parliamentary time and would only create uncertainty. Of course the impact of any legislation should be monitored and reviewed regularly. However, the timelines for evaluation should be tailored for each Act, statutory instrument and part of the Bill.
Therefore, for the reasons I have outlined, I kindly ask noble Lords not to press their amendments.
Lord Lucas (Con)
My Lords, I am very grateful for those responses. I am delighted to hear that the forum of home educators is to continue. Will the Government consider producing an occasional communiqué from that forum? I would not expect complete openness but something so that we can all know what is going on. The noble Baroness said she will start reviewing one year after. That seems a sensible timeline to me, but will she also commit to a baseline so that we know where they have started from and not just where they are in a year’s time? Might she also make a slightly firmer commitment to report to Parliament on how it is going?
Baroness Anderson of Stoke-on-Trent (Lab)
I am happy to commit to write to the noble Lord and reflect on what he has said.
Lord Lucas
Member's explanatory statement
This amendment would enable discussion about new inserted section 436E.
Lord Lucas (Con)
My Lords, this is an area where we have had substantial conversations with the Government so, again, I would prefer to start by listening to the Minister. I beg to move.
Lord Crisp (CB)
My Lords, Amendment 288A is in my name. In a way, it is the counterpart to the amendment we debated this morning under which parents would have to provide information about providers. This is about the information that the providers need to provide. There are two points in it. I have used the same format as the earlier amendment to say
“a person or organisation is providing regular out-of-school education to a child not registered in school, for more than 10 hours in a week”
and used the words
“is not primarily social or recreational”
and
“takes place without any parent of the child being”
there. I will dwell for a moment on those two points: “regular” and “not primarily social or recreational”.
The point about “regular”, as we have touched on but not fully discussed, is that this should not apply to one-off or occasional items, some of which will come up at short notice and cannot therefore be included in the register because the parents did not know about them in time to give notice. It would be extremely useful to have this in the Bill and not just in guidance. As I argued earlier, we need some parameters around what will come out in regulation. The word “regular” is not a particularly difficult one for the Government to include and would clarify that this refers only to people who are providing regular activities—maybe a definition of regular would be needed.
The other point on which I want to dwell a little more is saying that these activities are “not primarily social or recreational”. The Minister will correct me, but I think that at some point she said that it was not expected that activities that are not educational should be included in the register. The trouble is that a lot of activities—such as rugby training or swimming lessons, where they are carried out by a school—are educational, or could be, and, for example, the Girl Guides is an educational charity. It would be easy enough to label these organisations and activities as educational, which is why I am trying to turn it the other way up and say that activities that should not be registered are those which are primarily social or recreational. That is a fairly simple judgment to make and it would allay quite a lot of fears, including, perhaps, the example I used this morning—although it may be regarded as more educational than social and recreational—of the Wildlife Trusts. It has already stood down its activities because of concerns about the data that it will have to provide on all the children that use its services as part of its home education programme, which has been going on for some time.
In looking at this, I ask the Minister to reflect a bit more on those two descriptions: “regular” and “not primarily social or recreational”, as opposed to the “not educational” aspect.
Lord Addington (LD)
My Lords, in following the noble Lord, Lord Crisp, this is probably not an interest that I have to declare under the rules of the House, but it is relevant. I am a trustee of the Atlas Foundation, which helps a couple of groups to do with rugby, and which regards itself as benefitting children through rugby. Rugby is a nice sport, with lots of structure and authority figures, and such groups reliably reach young people who are in danger of offending and so on. Will these groups be taken down by this?
This will not be the cuddly end of home education. It will concern people not in school because they do not like school and have rejected it, who might technically be regarded as home-educated. What is their status? Are they affected? Is this going to put an administrative burden on groups which are run by amateurs—by people who do their own tax returns, such as the secretaries of organisations? Will we put this burden on them? A little clarification and common sense might help. If some of your client base comes from this area, what is your status?
Placing another administrative burden on organisations which, if they are run on a charitable basis, do not want to spend their money on admin but rather on the help they provide, might put more pressure on them. I do not think it was the Government’s intention, but making sure this does not catch those organisations is very important.
Baroness Barran (Con)
My Lords, this is a large group of very detailed amendments which seek to clarify the responsibilities that the Bill will place on providers and how they are expected to fulfil those responsibilities in practice.
The amendments, which are mainly in the names of my noble friends Lord Lucas and Lord Wei, highlight the variety that exists in the range of approaches that are used to educate children at home. I know that the Minister’s earlier commitment that officials would work through these points with my noble friends and other noble Lords over the summer was very much appreciated by them, and I hope that any outstanding uncertainty can be clarified when the Minister makes her closing remarks.
Amendments 291 and 293, in my name and that of the noble Lord, Lord Hampton, are probing amendments and have, at least in part, been addressed by the Minister earlier today. The noble Lord, Lord Hampton, and I accept her point that the concept of weekends and holidays might not apply to some home-educated children, so I do not think there is any need for the Minister to cover that point again when she responds.
Baroness Smith of Malvern (Lab)
Let me organise my notes—you are keen for things to move quickly and then they move just that bit too quickly.
The importance of out-of-school education providers to home-educating families has been raised several times already. I recognise again the important part these settings play, providing enriching activities and education to a vast array of children. I hope that these providers will recognise that the measures included in the Bill give no reason to cease this valuable work—notwithstanding that I recognise the point made by the noble Lord, Lord Crisp, about the concerns of organisations as we clarify the intentions here. We will continue, therefore, to engage with the sector on the implementation of children not in school registers, so it is confident in what the registers mean for it.
The amendments in this group concern the duty on certain out-of-school education providers to give information for children not in school registers. Amendment 288, tabled by the noble Lord, Lord Lucas, seeks to remove the duty. This is a vital element of the measures that will aid the identification of children who should be on registers but are not. It is essential for enabling local authorities to cross-reference information on their registers to ensure accuracy. We know that many out-of-school education providers share our ambition to secure the best possible outcomes for these children and will gladly support the registers on that basis.
Amendment 290, tabled by the noble Lord, Lord Lucas, seeks to remove the word “structured” from the definition of out-of-school education. Actually, the impact of this amendment would be to potentially bring many more providers into scope of the duty, such as informal or ad hoc educational arrangements. It is important that the duty remains proportionate. I know that proportionality is an ambition shared by many noble Lords in this House and has been an important theme of the debates today.
This is not to say that informal or ad hoc educational arrangements are invalid. We know that some home-educators follow child-led approaches to learning, in which, under the direction of their parent, children learn from a wide range of people they encounter in their daily lives. Parents can record this as time spent in education for the purposes of the registers, but local authorities will not have the power to seek information from those individuals.
It is also important to note that the provider duty applies only where education is provided without any parent of the child being actively involved in their tuition or supervision. This means that groups of home-educating parents who meet up with their children are unlikely to be captured by the duty. The duty also applies only when an individual is providing the education; therefore, creators of platforms for e-learning, for example, would not be required to give information on children who access their websites.
Amendments 288A, 291, 292 and 293, tabled by the noble Lords, Lord Crisp and Lord Lucas, and the noble Baroness, Lady Barran, would limit the Secretary of State’s power to set a threshold at which local-level authorities can request information from out-of-school education providers, or otherwise exempt providers from the duty to give information; for example, by removing the requirement in respect of education they provide on weekends or during school holidays to home-educated children—I will not return to that again; I have taken out the relevant paragraph.
I agree with the sentiment behind these amendments. The Bill allows for regulations to set a threshold, and we are committed to setting it at a suitable level. I recognise the probing element of the amendments in this case; however, noble Lords’ varying suggestions on where the threshold should be set—for example, at six or 10 hours—exemplify why it should not be set in primary legislation. We will consult further to ensure the threshold balances the need for local authorities to collect necessary information without placing unreasonable burdens on providers. Noble Lords will also have the opportunity to debate the threshold when it is set in regulations through the affirmative procedure.
To reiterate, the intention behind the provider duty is to capture the providers involved in providing a home-educated child’s education, rather than organised activities that the child may be involved in for primarily recreational or social reasons—even if they are important for their development, such as the example of rugby raised by the noble Lord, Lord Addington.
As I previously highlighted, the ability to prescribe a threshold, as well as the ability to make regulations to exempt types of providers from the duty, will help ensure that only those that are relevant are captured. It is our intention to exempt those organisations that have a drop-in, drop-out nature or happen irregularly. Examples of that include museums that offer workshops for children, as my noble friend Lady Morris stated this morning; public lectures that are open to any family or individual to book; and periods of work experience, as the noble Lord, Lord Crisp has suggested. It is our intention to exempt those organisations and types of activities.
I know that some noble Lords are concerned that the provider duty introduces a disparity between school children and home-educated children, but we must remember that there is a huge level of oversight for where and what children are learning at school, which is bolstered by inspection frameworks, curriculum requirements and attendance data. What we are asking of out-of-school education providers in comparison is minimal. As part of the implementation, we will keep engaging with the sector to ensure continuity of provision for home-educated children; I recognise how important that is.
Amendments 294 and 299, tabled by the noble Lord, Lord Lucas, seek to remove the requirement for providers to confirm to local authorities whether they are providing out-of-school education to a child for more than the prescribed amount of time, and to remove the requirement to provide information on the amount of time they are doing so. Amendment 294 would require providers to give information on any child. This would not be proportionate. The legislation limits this to children to whom they are providing education above a prescribed threshold without their parents’ involvement.
In reference to Amendment 299, on understanding the number of hours children are attending such provision without their parents, we will support local authorities to identify children who are attending unregistered independent schools. Some children not in school are attending those illegal settings for long hours and are not receiving a safe or suitable education. It is crucial that the local authority has the information required to intervene in those circumstances.
Turning to Amendment 298, tabled by the noble Lord, Lord Lucas, which seeks to further clarify the information that providers are required to give local authorities on the total amount of time for which they provide education to children, we believe this amendment is unnecessary. The drafting is already clear that the total amount of time that the provider provides education to the child refers to the time when the child is receiving education from the provider. However, statutory guidance can be used to give further detail if necessary.
On Amendment 296, tabled by the noble Lord, Lord Lucas, which would require providers in scope of the duty to provide only information that they already know to local authorities, providers should already hold the required information for health and safety and safeguarding purposes, and they will have to provide it only on request. Enabling providers to provide only the information that they know makes it too easy for unsuitable settings to just say “I don’t know” and to keep children hidden away from the services that are there to support them.
On Amendment 300, tabled by the noble Lord, Lord Lucas, which would remove the provision in new Section 436E that the local authority must request information from a provider by sending or leaving a notice at the place where the education is provided, providers in scope of the duty need clarity on how information will be requested. I acknowledge that the noble Lord has tabled this amendment due to his concerns as to how the provision will work for virtual providers. The legislation already provides for a notice to be served electronically, and we can make this clear in statutory guidance.
On Amendments 301 and 302, tabled by the noble Lord, Lord Lucas, which seek to extend the period by when a provider must respond to a local authority’s request for information, it is essential that local authorities have the requested information as soon as possible so that they can ensure that their registers are accurate and identify children who should be registered but are not. The timeframe for providers to give the required information is at least 15 days, and a local authority has discretion to extend that—for example, to account for closures over holiday periods.
Amendments 303 and 304, tabled by the noble Lord, Lord Lucas, and Amendment 295, tabled by the noble Baroness, Lady Jones of Moulsecoomb, set out reasons to exempt some out-of-school education providers from monetary penalties should they not provide requested information for a local authority’s register. A local authority does not have to impose a monetary penalty on providers should they fail to provide information or provide incorrect information. It would be unlikely that a local authority would issue a monetary penalty if a provider had made a minor mistake for the first time, for instance. We will look to make it clear in the statutory guidance that authorities can engage with providers to correct minor mistakes without having to resort to penalty notices. The process for providers to make representations against and appeal a monetary penalty is set out in the Bill. I think this is sufficient recourse for providers who disagree with their monetary penalty.
I hope that, for the reasons I have outlined and because of the explanations I have provided, noble Lords will feel able not to press their amendments.
Lord Crisp (CB)
My Lords, the Minister made some excellent and very clear statements in response to my amendment, which are extremely useful. Will she consider putting any part of that in the Bill? It seemed to me that she was very clear and definitive, and that it was not beyond the wit of the department to come up with some clever form of words that would indicate what she stated without making it very difficult to introduce regulations later. Perhaps that is something the Minister would consider.
Baroness Smith of Malvern (Lab)
I have stated it on the record here. I have also identified one of the problems with putting it in the Bill—I used the example of time limits, where, so far, we have had two different suggestions as to whether that should be six hours or 10 hours. The noble Lord knows this, but there are real difficulties and inflexibilities in placing that sort of detail in legislation. I would be more than happy to write to noble Lords, going over again the intention with respect to those regulations. I think I am right in saying that the regulations will also be subject to consideration by this House. I hope that that will reassure the noble Lord. As much as I know that people love things to be in Bills, in this case I genuinely think that we can be clear about the intention and provide assurances without creating the inflexibility that placing something in the Bill would do.
Lord Hacking (Lab)
If my noble friend could imagine that she has not sat down, I would like to ask one question. Maybe I have missed it out, but the noble Baroness, Lady Jones of Moulsecoomb, tabled Amendment 295 but did not speak to it in the debate, and I am not sure that I heard any reply to it from my noble friend. This amendment is important because, once again, detailed information is being sought from parents and, if they are in breach of providing that information, it is stipulated 15 times that they are exposed to monetary penalty. Has my noble friend dealt with this? Perhaps the noble Baroness, Lady Jones, can help here.
Baroness Smith of Malvern (Lab)
Well, I can reassure my noble friend that I did cover Amendment 295 from the noble Baroness, Lady Jones of Moulsecoomb. What we are talking about in these provisions relates to penalties on providers. We have moved on from the discussions that we were having about the requirements for parents to provide information. I hope that my noble friend will look back on what I said. I did provide quite considerable reassurance about both the process and the range of circumstances in which monetary penalties would most certainly not be the first thing that would be looked to in relation to a failure by providers to provide information.
Lord Hacking (Lab)
I thank my noble friend for her tolerance and undertake to properly read the Hansard of today’s debate.
Baroness Jones of Moulsecoomb (GP)
May I say something? I was late to the debate, so I have no right to speak.
Baroness Jones of Moulsecoomb (GP)
The Government say no. I just wanted to apologise.
Baroness Jones of Moulsecoomb (GP)
I was listening. I would just like to thank the noble Lord, Lord Hacking, for speaking on my behalf so eloquently. I hope that he supports the rest of my amendments as well.
Lord Lucas (Con)
My Lords, I am very grateful to the Minister for her comprehensive reply and I beg leave to withdraw my amendment.
Baroness Barran
“(9) The Secretary of State must publish annually the GCSE results of children listed on the register.(10) The Secretary of State must ensure that the GCSE results of children on the register are included for each set of outcome data published by the Government.”Member’s explanatory statement
This amendment would require the Secretary of State to record outcome data for children on the register as a subsection of each set of performance data published by the Department for Education.
Baroness Barran (Con)
My Lords, I will speak to Amendment 306 in my name, which would require the Department for Education to publish the aggregate GCSE results of those children registered as being educated at home. I stress “aggregate”, because I think there was some confusion when this amendment was debated in the other place as to whether we were seeking to publish the individual GCSE results of individual children, which is not the aim of this amendment.
The aim is to give some relevant insight from this data, including what percentage of children who are electively home-educated end up sitting public exams, what those results are and what percentage are not sitting public exams. Our amendment would see these results being published separately from those relating to schools, so that the data would not be confused. I suppose I am puzzled as to why the Government would not want to publish this information.
I will touch briefly on the other amendments in this group. Amendment 317 is very much in the same spirit as my Amendment 306, in the names of my noble friends Lord Lucas and Lord Wei. It seeks similar data, in relation not just to electively home-educated children but to those looked after by the local authority, those in a PRU or in special education otherwise than at school. I wonder whether the Minister thinks this would be useful or whether some of the numbers involved would be so small as perhaps to be potentially misleading.
Amendment 316, in the names of the noble Lords, Lord Crisp and Lord Storey, probes the provision of financial support for electively home-educated children sitting public exams, and the Minister will know that there are real issues in practice about these children being able to sit public exams, and finance is one part of that. I appreciate the pressure on local authority budgets, but of course these are, effectively, children who have saved the state money, and I for one would be keen to see as many as possible sit public exams. I beg to move.
Lord Nash (Con)
My Lords, I rise to support Amendment 306 in the name of my noble friend Lady Barran. Given that this country has the joint lightest-touch approach in Europe in relation to the oversight of home education, I would have thought this is a no-brainer to enable us to understand more about the performance of these children. I also hope that those in the home education lobby will welcome and support the amendment, as it would give them the opportunity to show their paces.
Lord Lucas (Con)
My Lords, I have Amendment 317 in this group, which would rather expand the range of reporting to other groups of children who are under the care of the state and not in a specific school. It is really important for the governance of education in this country that we understand how all our children are performing. I would expect a local authority to take an interest in the examinations of home-educated children and these other groups of children in Amendment 317 in their local area. I would expect the Department for Education also to be interested, not for year-to-year panicking but in a determination to understand what the difficulties and differences are and how, over time, to drive the results up. The basic starting point of that is to get the data out.
Particularly if you are reporting at a national level, you are not reporting anything that has any element of personal or identifiable data to it, but you are putting a bit of data down on the table to draw people’s attention to what the state of affairs is. That is a very important part of the way in which the state should have responsibility for what it is providing to our children.
Equally, I agree with those who are saying, particularly as we are bringing home education within the scope of the state so much more, that we should take responsibility for making sure that home-educated children find it easy to take crucial examinations. At the moment, it is extraordinarily difficult. They may have to travel hundreds of miles to find an examination centre and pay thousands of pounds to have access to an exam. The Prime Minister is borrowing a flat so that his child may have a quiet environment in which to study for his examinations, so one would hope that the Government realise that making it easy to take exams within a reasonable distance from home and without undue stress on the family’s finances is an objective we should have—particularly when, as my noble friend says, home-educated children are saving us so much money.
Lord Crisp (CB)
My Lords, I support the proposal on GCSE results from the noble Baroness, Lady Barran. It is very important, for the reasons she suggests. I have seen some interesting results from home-educated children, which show them performing well in these areas. The results would be interesting to see and may improve the score, as it were, for the country as a whole.
Secondly, I entirely support the amendment from the noble Lord, Lord Storey. I will say nothing more except that this is perhaps the biggest single practical obstacle in the current regime that home-educating parents have reported to me. I will leave it to the noble Lord to press that case.
Lord Storey (LD)
My Lords, I will deal first with Amendment 306 in the name of the noble Baroness, Lady Barran, which we also support. I am interested in hearing from the Minister about why we would not want to do this.
On Amendment 316, in my name and that of the noble Lord, Lord Crisp, it is easy to say, “You chose to let your children not be part of the school system, so you can just get on with it. You chose to home-educate them, so we are not going to pay for exams or whatever”. That would be the wrong way to approach this. If we really want to make home education closer to local authorities, so that they support each other, there are a number of supportive things we can do.
Not every home educator has the financial resources to pay for examinations. We saw a huge rise in home-educated children during Covid, many of whom come from deprived areas. Families really struggle to find the costs for examinations, so supporting this amendment would be a hand of educational friendship. We know that home educators take huge pressure off the education budget as a whole and off school rolls, so I just think it is the right thing to do.
I am quite fascinated by Amendment 478 and looking forward to hearing the Minister’s reply. I thought that all high achievers—super-high achievers, if you like—whether they are educated at home or at a maintained school, academy or free school, would get that recognition. I do not quite understand this amendment, so perhaps the Minister will enlighten us.
Lord Hacking (Lab)
My Lords, the noble Lord, Lord Storey, raised this issue at Second Reading. I supported him then and I support him again now. It is quite unfair that a child who has been educated privately at home should be placed in a different position from state-educated children. All children who have been home educated should be encouraged to go through these exams and not face a financial penalty. This is a very simple measure, and I ask my noble friend the Minister to give it favourable consideration. It is a much fairer system and it encourages all home-educating parents to put their children through examination, so that the quality of their teaching can be tested.
Baroness Smith of Malvern (Lab)
Supporting children to achieve and thrive requires parents, authorities and education providers to work together. That is what much of our debate today has been about and speaks to the amendments in this group that concern the facilitation of examinations and the publication of exam results for home-educated children.
Lord Lucas (Con)
I am grateful to the noble Baroness for her response to Amendment 317. I understand her reluctance to publish information as if home educators were a school, but I urge her to think how useful it would be to have that information for understanding what is happening in home education.
It is one of the long-running criticisms of home education that there is no information as to how these children are doing—you say they are doing well, but you cannot show me any information as to that. It would be really useful in understanding, as the noble Baroness has said, whether an internationally liberal approach to home education is justified. Even if it is only for the Government’s own policy formation, I very much hope they will make sure that they can put together the sort of information I have detailed in this amendment, so that they can understand the effects of policies as they are at the moment.
Baroness Barran (Con)
My Lords, on behalf of all noble Lords who have spoken in this short debate, I thank the Minister for her response. I absolutely support the sentiment just expressed by my noble friend Lord Lucas about the importance of understanding the outcomes for children who are home-educated.
In relation to my Amendment 306, the reasons that the Minister gave for not aggregating and publishing, or even aggregating and not publishing, their GCSE results was—as I wrote down—that, first, it was hard to do and, secondly, it would not produce the results that we expect. It feels curious to me that someone could not put a box on the form—that a child could tick, to say that they were home-educated—that could be aggregated.
On the expected results, the whole point, or part of the point, was to understand how many home-educated children were taking public exams and how many were not. I think that would be a useful bit of information. So I do not accept the argument that it would not produce the results that we expect; we do not have an expectation because we do not know what they are. More widely, when there were very small numbers of children who were home-educated, it was perhaps—
Baroness Smith of Malvern (Lab)
Just to be clear, I do not know whether I said that they would not produce the results that we expect. If I did, that was not what I meant to say. What I meant to say was that in terms of the ability to have a statistical analysis of the quality of home education, the different nature of home education and the range, quite rightly, of decisions made by parents—many of whom might decide that exams are not the appropriate route for their children—would mean that we would not be able to formulate from that data the common view of performance that the noble Baroness is suggesting would be the objective.
Baroness Barran (Con)
I thank the Minister for that clarification. What I wrote down is “not producing the results we expect”. We can check in Hansard whether that is what she actually said. I suppose the point I was trying to make is that this is a kind of entry point question. It is not going to give us a sophisticated analysis but it gives us some perspective. If we tried to estimate by taking a straw poll of Members of the House what percentage of home-educated children do GCSEs, we might get very varying results, so even just knowing that might be valuable.
On the other amendments in this group, the Minister was clear that parents are fully responsible, including on the financial implications of home education, but it was good to hear her reiterate the support duty, including on access to previous exam papers. How that support duty is communicated to parents will obviously be of great importance. With that, I beg leave to withdraw the amendment.
Baroness Whitaker
Member’s explanatory statement
This amendment would require local authorities to offer appropriate support to the parent of a child on the register.
Baroness Whitaker (Lab)
My Lords, I shall speak to Amendments 309 and 310 in my name and those of the noble Lord, Lord Bourne of Aberystwyth, and the noble Baroness, Lady Bakewell of Hardington Mandeville, for whose support I am grateful. I also support Amendment 309A in the name of the noble Baroness, Lady Garden of Frognal, on language accessibility, and Amendment 426C in the name of the noble Lord, Lord Moynihan, on access to sport and recreation. I can see that the practical implications of that are a little complicated, but it would be really important for home-educated children to have the same encouragement for physical activity.
My amendments would alter the behaviour of the registering authority in that it would have to offer, not wait for the home education parent to request, support. This is, first, because parents in marginalised communities, remote from the digitalised world and in some cases low in literacy, may not know that support is available, and, secondly, because, Gypsy, Traveller and Roma parents may have learned to distrust public authorities because of the widely attested discrimination and prejudice they will have experienced.
Requiring local authorities to make the first move would enable the authority to identify more clearly what kind of support is needed and, further, find out what problems the child experienced in school so that these can be addressed. I hope my noble friend will accept these amendments.
Lord Crisp (CB)
My Lords, I will speak to Amendments 313 and 314 in my name. I originally thought I was going to speak for rather longer on this, but so much has already been covered, including the fact that I was looking here for some very positive statements from the Minister about home education generally. Such statements have been coming throughout this debate, which is extremely good.
I am also totally supportive of the fact that the Minister needs to send out some very firm messages about the people missing school. In the words of the noble Lord, Lord Storey, there are more than 100,000 home-educated children but also a missing 100,000 and we do not know where they are, so there is a balance to be drawn between both of those.
My two amendments try to pick up on the point about rebuilding trust in the system among home-education parents, and indeed perhaps among local authorities, which has been quite badly damaged by the original presentation of this Bill. As has been said already today, there is a common endeavour here to secure the education, welfare and future of children and young people, some of whom are among the most vulnerable in the country. Those are the young people we are talking about. Throughout the Bill, we need to get the balance right between safeguarding and necessary bureaucracy, between parental and state responsibility, and between necessary assessment and support. I do not think that is being achieved at the moment.
Baroness Jones of Moulsecoomb (GP)
My amendments so far have tried not to put further administrative burdens on families who home-school. It can be vast, complicated and very difficult for them to achieve. However, my Amendment 315 follows on very nicely from the contribution from the noble Lord, Lord Crisp, because, at the moment, there are huge financial pressures on local councils. We know that local authorities are struggling. I am told that the special educational needs and disabilities system is creaking at the seams—some people are using the words “breaking point”. So the premise that local authorities are best placed to judge the needs of any child, especially over and above their own families, is perhaps foolish, because local authorities vary enormously in expertise and understanding of alternative education approaches.
Officers who visit families might be very unfamiliar with the sort of experience they see. They may be unfamiliar with home education and special educational needs, and they may not know much about child development. They might make subjective and perhaps inconsistent judgments about the family they are seeing and might penalise families who are supplying excellent education simply because it does not look like “school”.
It is quite important that we understand that local authorities have to exercise extremely difficult judgment. Putting a further burden on families is really unwise.
Lord Lucas (Con)
My Lords, I very much support what has been said by the noble Lord, Lord Crisp. This is really the nub of things—how we can make support work.
I also support what the noble Baroness, Lady Jones, has just said. It is absolutely clear that some local authorities take any opportunity to tip home-educating parents into getting their children back into school. We want to be encouraging parents, at all times, to approach local authorities to say that they need some help—that is a perfectly ordinary thing to do. If you as a solicitor are sued by someone else, the first thing you would do is find another solicitor. Even if you are an expert, you go and ask for help. It should be regarded as ordinary. No one should take on something such as home education without looking all the possible sources of advice, because there will always be someone who has insights that go beyond your knowledge. Protecting against the misuse of that approach is important to making sure that we have a strong relationship between local authorities and parents.
My Amendment 311 would require local authorities to explicitly take account of the needs of the child and the educational preference of the parents. That is a very important part of the attitude; the local authority should understand the parents and work with them, not try to impose its own formula.
I will also speak to a number of amendments in this group tabled by my noble friend Lord Wei. Amendments 390, 401, 402, 407, 419 and 422 address the financial asymmetry borne by home-educating families. Every child educated at home saves the state around £7,500 a year. However, the entire burden of curriculum costs, exam fees, tutoring and lost parental income falls on the families themselves. Amendment 390 would introduce tax relief for education expenses, while Amendment 401 would grant rebates when families home-educate due to a lack of suitable school places.
Amendment 402 would adjust council tax to reflect that home-educating households are not drawing on local school budgets. Amendments 407 and 419 explore models for direct funding, whether through per-pupil allocations for individual families or co-operatives, which would bring a measure of parity to a system that otherwise risks confining high-quality home education to the affluent.
Amendment 422 recognises another imbalance: where the state compels parents to spend hours compiling reports or attending overnight meetings while simultaneously providing the labour of teaching, they should not do so entirely unpaid. Compensating that time, at least to the level of the minimum wage, is not only fair but respects the immense commitment that parents undertake on society’s behalf.
Amendment 396 presses the Government to fund independent research into home education practice. It is striking how much policy in this area proceeds on assumption and anecdote rather than robust data. What does successful autonomous learning look like across different family contexts? How do educational outcomes compare when we look beyond narrow test metrics to include well-being, creativity and lifelong resilience?
Speaking with my own voice now, that is something that I would very much support. As the Minister said, it is difficult to get a grip on how education is doing just from incomplete exam statistics. Doing some proper research would not only benefit the Government and their policies but enable the home education community to become a self-improving community and to do better by their own children, which is a huge motivation for them.
Lord Addington (LD)
My Lords, I am afraid that my noble friend Lady Garden was beaten by the rapid progress that has been made by recent standards, so I shall just draw the House’s attention to her amendment, which says that if someone does not have English as a first language, they should receive some help in understanding the requirements, and that that should be appropriate to them when they are dealing with this field. It is not a big thing, but it is important to get it and the Government’s response on the record.
Looking down this very eclectic list of amendments, I come to one from the noble Lord, Lord Moynihan, about sports education, and I wonder if there is some way of linking in there. One of our challenges is how much we should help people with sporting education. Physical fitness is an important part of that; it is a great way of asserting degrees of confidence in certain groups of people, and we could put the arts down here as well. Are the Government looking at ways in which certain aspects that cannot be provided in a small setting might be done by the education establishment? Is any thought going into this? We have sport on the list, and we could easily put something like the performing arts down too.
Baroness Barran (Con)
My Lords, three main themes run through this group of amendments. The first relates to the practical support offered to home-educating parents who request it. Amendments 309 and 310 in the name of the noble Baroness, Lady Whitaker, have merit in that they seek clarity about what support can be expected from a local authority, although in practice I imagine that the term “appropriate support” might be hard to guarantee.
As we have just heard, other amendments focus on very specific elements of support, such as Amendment 309A in the name of the noble Baroness, Lady Garden of Frognal, which would offer support in a language that parents understand, or Amendment 313 in the name of the noble Lord, Lord Crisp, regarding the provision of the same support for electively home-educated children as is available to children in schools. It would be very helpful for the Government to set out what the basic support offer from local authorities will look like and how it will be funded. I hope very much that the Minister will cover this when she responds.
The second principle that emerges from this group is about the relationship between electively home-educating families and the local authority, which I know my noble friends Lord Lucas and Lord Wei have been particularly concerned about. This is set out most comprehensively in Amendment 314 in the name of the noble Lord, Lord Crisp. It is helpful to see the spirit of engagement that electively home-educating families would like to have with local authorities. I am not quite sure—perhaps the Minister has an answer—how you legislate for relationships. Having clarity about the Government’s expectations in this area, alongside what the basic support offer will be, could create a degree of transparency, which is a good platform from which to build good relationships.
Baroness Smith of Malvern (Lab)
My Lords, this Government are introducing the first ever duty on local authorities to provide support specifically for home-educating families. While home-educating parents assume full responsibility for the education of their child, local authorities can and should be a source of information and advice for parents. At the heart of this is the importance of families and local authorities working together to support all children to achieve and thrive. The support duty establishes a baseline level of support across all English and Welsh local authorities. We will say more about the form that that should take in statutory guidance, were this legislation to pass—or when it passes, I should say, optimistically.
I shall respond to some of the points that have been raised in this group on the support duty and access to resources and facilities for home educators. First, I turn to those amendments which focus on the operation of the support duty and relationships between local authorities and home-educating families: Amendments 309, 309A, 310, 311, 313, 313A, 314 and 315. Amendments 309 and 310, tabled by my noble friend Lady Whitaker, would require local authorities to provide support to families irrespective of whether they choose to access it. I have sympathy with the points made by my noble friend about some of the very vulnerable children who may receive home education. It is probably more appropriate to think about the other forms of support that those children should receive—or even, given that level of vulnerability, whether or not home education is the appropriate and suitable education for them. The other issue is that this proposal would also remove local authority discretion as to the nature of the support provided. It would mean that many home-educating families who would prefer to have a choice as to whether they wish to access the support offered by local authorities would not have that choice, as the amendment suggests that authorities should provide support to families irrespective of whether they choose to access it.
Amendment 309A, tabled by the noble Baroness, Lady Garden, would require support to be provided in a language that the parent understands. I am happy to advise that local authorities will have to have due regard to each individual request from parents, which would include consideration of accessibility through use of languages other than English where necessary. This aligns with local authorities’ compliance with the public sector equality duty to consider the diverse needs of different individuals within their community.
I turn to Amendments 311 and 313A, tabled by the noble Lord, Lord Lucas. Amendment 311 would require the local authority to have regard to the needs of the child and educational preference of their parents when considering which forms of support to offer. This amendment is unnecessary. We would already expect local authorities to take these factors into account when offering advice and information as part of the support duty. Amendment 313A appears to seek to introduce a “best interest” consideration in relation to the exemption of certain children from the benefit of the support duty—specifically, those children who would be exempt because they have secured additional learning provision or other provision as set out in the Additional Learning Needs and Education Tribunal (Wales) Act 2018.
The children exempt from the support duty, as set out in new Section 436G(3) in Clause 31, are exempt in order to avoid the duplication of support from local authorities. For instance, a child in receipt of alternative provision arranged by the local authority would already be in receipt of support from the local authority. Including a “best interests” test in the process specifically related to children subject to Welsh additional learning needs legislation is unnecessary. We are confident that the support duty focuses on the right children, and the existing exemption prevents duplicative support having to be provided by local authorities.
I turn to Amendment 313, tabled by the noble Lord, Lord Crisp, Amendments 408 and 412, tabled by the noble Lord, Lord Wei, and Amendment 426C, tabled by the noble Lord, Lord Moynihan. These amendments would give a right of access to a range of services, facilities and other advantages to home-educated children. Advantages such as access to a school’s facilities and extra-curricular provision are specific to school attendance. If parents wish to access these, a state-funded school place remains available for the child. When a child has an education, health and care plan, most parents will have the choice to make suitable alternative arrangements to those listed in it. For example, most parents can choose to home-educate rather than take advantage of the special educational provision secured by the local authority. It is right that, when alternative arrangements have been chosen and made, the local authority is released from its duty to secure education provision for the child. Local authorities will still have a duty to check the suitability of home education and review the education, health and care plan at least annually. If, at any point, the local authority considers that home education is no longer suitable, it should intervene to support the child by taking appropriate action.
On requiring access to venues for taking public exams, I acknowledge that this is an issue of concern to noble Lords and to parents, as we have heard. Amendment 312, tabled by the noble Lord, Lord Lucas, and Amendments 383 and 426, tabled by the noble Lord, Lord Wei, focus on access to examinations for home-educated children. Amendment 312 would place a duty on local authorities to secure an examination centre within a reasonable distance for children eligible for inclusion on children not in school registers. Amendment 383 would place a duty on the Secretary of State to provide parity of exam fee support and access to past exam papers for home-educated children, as compared to children attending maintained schools. Amendment 426 would oblige private schools to let home-educated children sit exams on their premises.
Parents who choose to home-educate assume full responsibility for planning where to access examinations. The Joint Council for Qualifications website provides information on the nearest exam centres, and parents can ask centres to accommodate their child. Home-educated students can access past exam papers to support exam preparation. I recognise the noble Lord’s concerns, and I appreciated his willingness to discuss this in more detail during the meeting in July. It is certainly possible to think about how we could support parents in finding access to exam centres, in the way noble Lords have discussed, without placing the type of requirement on local authorities suggested by these amendments.
With regards to Amendment 426, as with state-funded schools, if a private school wishes to support private candidates, that is a choice for the school’s management. It is not for government to micromanage the operations of private enterprises in the way suggested.
Amendment 314, tabled by the noble Lord, Lord Crisp, would place a duty on local authorities to build and maintain positive relationships with home-educating families, including through events, and to ensure that staff have appropriate training and experience. As the noble Baroness, Lady Barran, has already identified, it is quite difficult for government to legislate for good relationships, but I can reassure the noble Lord that an expectation for local authorities to build positive and respectful relationships with home-educating families, underpinned by well-trained and knowledgeable staff, is set out in existing departmental guidance. However, I know that he and others are concerned by reports from some home educators that local authorities are not following this guidance. The department does take seriously any complaints received about the conduct of local authorities, as I suggested earlier today. If the Secretary of State is satisfied that a local authority is acting unreasonably, she can intervene using the powers available to her under Section 496 of the Education Act.
Amendment 315, tabled by the noble Baroness, Lady Jones of Moulsecoomb, would prohibit the commencement of proceedings for a school attendance order if a parent has requested support. Although we welcome local authority support, allowing a request for support to halt legal action, even when the education provided is plainly unsuitable, would create a system that is open to abuse, delaying necessary intervention and potentially allowing children to be in unsuitable education for a prolonged period.
Amendments 390, 401, 402, 407, 411, 413, 419 and 422, tabled by the noble Lord, Lord Wei, seek to provide financial incentives or reimbursements, for instance in the form of tax breaks for home-educating families. Although I recognise that home education can be a significant undertaking, the Government’s view is clear that parents who choose to educate children at home bear the financial responsibility for doing so, because a state-funded place is available for those children.
Amendment 396, tabled by the noble Lord, Lord Wei, aims to require the Government to fund independent academic research into effective home-education practices, with results published every three years. The data collected from children not in school registers will be a good and suitable vehicle for analysis and research into factors concerning home education. This is already occurring through the Department for Education’s existing data collection, which began in autumn 2022. It will be strengthened through improved data quality and by the statutory provisions for sharing data with the Secretary of State when the Bill’s measures come into force. Aggregate data will be published on an annual basis, subject to appropriate data-protection protocols. This will support the carrying out of some of the research that noble Lords have identified into the nature and success of home education.
Finally, Amendment 410, tabled by the noble Lord, Lord Wei, would require the Secretary of State to establish a public-broadcast service which provides national curriculum-aligned educational content for home-educating families. As noble Lords are aware, there are already a wide range of educational resources which home-educating families can access, both paid for and free of charge. I am not sure it would be a reasonable or legitimate use of taxpayers’ money to develop a TV station in the way in which the noble Lord has asked for.
I hope that I have been able to provide some assurances and further information and that noble Lords will feel able not to press their amendments.
Lord Lucas (Con)
My Lords, I am grateful for the Minister’s response to my amendments, but may I pick up briefly the question of exam centres for home-educated children? The noble Baroness, Lady Barran, was kind enough in early 2024 to allow me to start exploring what was required to reverse the trend that we have seen for many years of a reduction in availability of exam centres. This was rudely interrupted in July—sadly, for us—but it was clear to me that there was no lack of good will.
We have a collection of about half a dozen organisations, each of which has sets of individual requirements and ways of looking at things that do not quite mesh and that make it difficult for a school to continue the provision. This includes the Equalities and Human Rights Commission. One of the great difficulties is that, if you allow any outside candidate, you have to admit all outside candidates, and if any of them have special needs and require particular provision in separate rooms and you do not have that, you do not know where to provide it and you do not have the budget for the staffing, you just say, “We cannot do this because we cannot handle the exceptional circumstances”. It is a question of getting people together and saying, “We, the Government, have an objective: we want home-educated children to have reasonable access to exam centres. Please sit down together, sort out your differences and give us the answer”. And they would, because it is perfectly possible; it just requires a series of small compromises.
Baroness Smith of Malvern (Lab)
I am not convinced that the Equality and Human Rights Commission is the reason why there are difficulties in the way that the noble Lord outlined, but I take his point that we could make progress on this were there to be some brokering of arrangements. I would be willing to give further consideration to information about access to examinations and how to overcome some of the issues.
Baroness Whitaker (Lab)
I am grateful for the support of the noble Baroness, Lady Barran, and I appreciate my noble friend the Minister’s sympathetic response. Perhaps I could discuss with her later some aspects of the approach to marginalised parents. Meanwhile, I beg leave to withdraw Amendment 309.
Lord Hampton
“Review of safeguarding protections in private tuition settings(1) Within 12 months of the day on which this Act is passed, the Secretary of State must publish a review of—(a) the adequacy of safeguards in place to protect children who receive private tuition, either online or in-person, (b) the extent to which providers of private tuition carry out background checks on their tutors, and(c) the impact, if any, of the activities defined as “Regulated activity relating to children” in Schedule 4 of the Safeguarding Vulnerable Groups Act 2006 on safe- guarding in private tuition settings.(2) Within six months of the completion of the review, the Secretary of State must publish and lay before Parliament a report on the findings of the review and any recommendations to improve safeguarding protections in private tuition.”Member’s explanatory statement
This amendment seeks to require the Government to assess the adequacy of safeguarding protections for children with private tutors, who may not have to undergo an enhanced DBS check under current requirements.
Lord Hampton (CB)
My Lords, I will speak to the rather dramatically numbered Amendment 333ZA in my name and belatedly declare an interest as a state secondary school teacher. In the past I also worked as a private cricket coach, which is quite relevant here. I acknowledge the help of Edapt in this amendment and in bringing this issue to my attention.
I was astonished to discover that under current UK legislation, individuals barred from working with children can still legally operate as private tutors if hired directly by a parent. This is due to the private arrangement exemption in Schedule 4 to the Safeguarding Vulnerable Groups Act 2006. As a result, there is no legal requirement for such tutors to undergo an enhanced DBS check, nor a legal mechanism to prevent someone on the barred list offering or delivering tuition to children. This is also true of those who have been struck off by the Teaching Regulation Agency. This loophole presents a significant and increasingly relevant safeguarding risk, especially in the context of rising private tuition, including via online platforms.
The private arrangement exemption applies even where tuition is paid, unsupervised or delivered online. Research published by the Sutton Trust suggested that 30% of 11 to 16 year-olds in the UK had received private tuition at some point. That includes both my children; it never occurred to me to ask for a DBS. The BBC recently reported that 90 private tutors in the UK have been convicted of sexual offences involving children over the past 20 years.
While many tutoring platforms and companies require DBS checks, the current legal framework leaves a large part of the educational landscape unregulated, particularly for self-employed tutors working independently. This is not commonly known. Speaking in September last year, Children’s Commissioner Dame Rachel de Souza said:
“Anybody who is working one-on-one with a child as a tutor, should have a DBS criminal record check. It’s an absolute basic minimum”.
Her predecessor, the noble Baroness, Lady Longfield, who sadly is not in her place, said in 2021:
“The Government should look at this loophole and see how it can be closed”.
This is also supported by organisations including the Safeguarding Alliance and the Tutors’ Association.
This amendment would put private tutors on the same legal footing as freelance sports coaches and mainstream teachers, close a bizarre safety loophole and contribute to making children’s lives safer. I beg to move.
Lord Storey (LD)
I am sorry that I raised this issue in the debate on an amendment from the noble Lord, Lord Wei, spoken to by the noble Lord, Lord Lucas. I was not aware of this situation until this morning, and I was dumbfounded. We have rightly made our schools very safe places for our children, and safeguarding is one of the key things that Ofsted inspections look at. As we have heard, the Sutton Trust says that about 30% of children aged between 11 and 16 have private tutoring, either in person or online.
Imagine a situation where a teacher in a school has been dismissed from their position after being arrested for a serious child sex offence, and might even have gone to prison if found guilty. They could do private tutoring if they were employed by a parent, with no safeguarding taking place. That surely cannot be right. This is not about criminalising parents who employ them—I do not think parents would be aware—but about making sure that, on Report, perhaps after conversations have been had with the Minister, this final loophole is sorted once and for all.
Baroness Barran (Con)
My Lords, the noble Lord, Lord Hampton, has made a very clear case that providers of online and in-person tuition services should be subject to the same safeguarding checks as those providing tuition in person, particularly in relation to the gap in the current legislation that he outlined. I agree completely on the importance of safety for children who receive private tuition and that those barred from teaching should not be able legally to offer their services directly to parents.
However, I have a slight hair shirt in relation to this issue, because I think that parents are ultimately responsible for checking out the tuition services that their children receive. Having a DBS check can contribute important information, but it is by no means sufficient. We know that the vast majority of sex offenders do not get reported to the police or end up with a criminal record, and their behaviour would not appear on a DBS check. There is a balance to be struck—in no way diluting the responsibility of parents while closing the loophole as the noble Lord suggests.
Lord Storey (LD)
The noble Baroness might not be aware that not all agencies that employ tutors carry out checks.
Baroness Barran (Con)
I was aware of that, but my point on having clarity that parents need to think very carefully about who their child spends time with still stands.
Lord Storey (LD)
Parents might not have the wherewithal to know how to go about checking and would assume—wrongly, obviously—that if they employed a tutor from an agency, that tutor would have been cleared. If the tutor was not from an agency but employed directly, parents would assume that, because they were a teacher, they would have had safeguarding checks.
Baroness Anderson of Stoke-on-Trent (Lab)
I thank the noble Lord, Lord Hampton, for initiating such an important debate, which has already had an effect by ensuring that more Members of your Lordships’ House are aware of this issue. His amendment would prompt a review of current safeguarding practices in private tuition, including background checks on tutors, and of the impact of activities defined as
“Regulated activity relating to children”
on private tuition settings.
This is an important issue and the Government recognise it as such. That is why we have already acted to improve the safety of children in private tuition, along with the wider out-of-school settings sector. The Government have published safeguarding e-learning for tutors and other providers, as well as strengthened guidance to help local authorities to act where there are safeguarding concerns. We are also widening the scope of regulated activity to include those who work frequently with children in supervised roles. This change will mean that employers engaging tutors in supervised roles can check whether the person is on the children’s barred list because the DBS considers them to pose a risk of harm to children.
The Government are also taking action to ensure that all those working in regulated activity with children can access enhanced barred lists checks, whether that is a teacher in a school or a self-employed tutor offering private tuition. With these measures, we will reduce the risk of a barred person working with children. However, we recognise the need to understand what more can be done. That is why we have also published a call for evidence on safeguarding in out-of-school settings. It will gather much of the information this amendment seeks and will help inform any future action to further enhance the safety of the sector. The deadline for submissions is 21 September, and I hope that noble Lords will actively participate in this consultation.
I want to take this opportunity to reassure the noble Lord, Lord Storey, about online DBS checks. Anyone who regularly teaches, trains, instructs, supervises or cares for children unsupervised is considered to be working in a regulated activity. This includes the majority of private tutors, whether they operate in person or online. By engaging in regulated activity, these individuals are eligible for and able to access an enhanced DBS check, with a check of the barred list if working as part of a tutoring organisation or engaged through an agency. We are legislating to extend this access to those who are self-employed.
Lord Hampton (CB)
My Lords, I thank the Minister for those slightly more reassuring words, but the fact that it was news to all of us just shows how much work still has to be done. We will wait and see on this one, and I beg leave to withdraw my amendment.
Lord Hacking
Lord Hacking (Lab)
My Lords, I rise to speak with a certain amount of repentance, because this amendment is too much of an overreach and I regret drafting it in that form. At earlier stages in the Bill, relating to Clause 31—this goes to my Amendment 233A—I found it necessary to seek to have taken out of the Bill provisions going over one, two or three pages. I proposed that for Clause 31 because there was far too much information being sought of parents and far too much of an obligation on local councils, which were being compelled to meet some 13 requirements as part of the process.
This is an overreach on my part, and I apologise. It is very important that the local council has full powers to issue school attendance orders. As the noble Lord, Lord Storey, and I have mentioned, there is a great worry about the number of children—some 10,000 was the figure given—who are not having any education at all. Therefore, local authorities should be diligent about finding where these children are and issue the necessary number of school attendance orders.
I support Clause 32 until the top of page 66, where there is a requirement for the recipient of the school attendance order to provide the information within 15 days. That is a very tight timetable for ordinary citizens, who would not be at all familiar with receiving an attendance order, which, presumably, is rather a scary experience. I suggest it should be a longer period, but that is the only revision I am now seeking under this amendment. I beg to move.
Lord Crisp (CB)
My Lords, I was going to speak to Amendment 365, which is about appeals against a local authority’s decision not to revoke an attendance order. However, in light of the discussion we had about appeals in an earlier session in July, I had intended to withdraw this amendment, so I will not speak to it.
Lord Lucas (Con)
My Lords, I have several amendments in this group. My noble friend Lord Wei is concerned that we are not getting the balance right between the state and family, and I agree with him. It is the parents who have the primary responsibility for upbringing and the best interests of their child, and intervention by the state should be justified only in exceptional circumstances and must be proportionate. My noble friend feels that Clause 32, as drafted, risks tipping that balance the wrong way. Families already tell us that school attendance orders cause stress, anxiety and a sense of powerlessness. One parent said they were forced to send their child to school against her will, where her needs were not going to be met. They said, “We felt trapped, unheard, threatened and fearful for our daughter’s safety”. Another described a child with severe anxiety and seizures who has thrived only when withdrawn from school.
For many, home education is not elective but a response to systemic failures. I am sure the Government are aware of that, and what a mess the SEND system is at the moment. Many of the parents who home educate are doing so in response to a less than ideal system. I know we tried to improve the system, and that this Government are going to have another go; it is not easy. We must expect a continued flow of parents who choose to look after their own child because the state is not doing a good enough job, and be humble enough to recognise that that deserves our support and not continual harassment.
Amendment 334 would change the duty on local authorities to serve a preliminary notice from “must” to “may”. In the context of all the other discretions that local authorities have, it would be sensible to allow them to see that issuing a notice in a particular set of circumstances would do more harm than good. It would allow them to focus on the child’s welfare and not force them down a rigid path.
Amendment 335 would require that all relevant support be offered before issuing such a notice. This goes back to an earlier amendment tabled by the noble Baroness, Lady Jones of Moulsecoomb. The first reaction of the local authority ought to be to ask if support is possible—can it help make this succeed?—as well as looking at whether school is a better option. It ought to come at this with support; families should not be threatened with orders without help being tried. The Square Peg campaign, supported by over 130 organisations, has called for a “support first” duty. One parent told us, “We asked for counselling and support, but what we got was a school attendance order. It only made my child’s anxiety worse”.
Amendment 338 asks in what circumstances a “best interest” test will be applied. Amendments 339 and 340 ask why just the existence of a Section 47 investigation is the trigger, rather than a consideration of whether that investigation has any relevance. Many Section 47 investigations are entirely unconnected to the suitability of a family for home education.
Amendment 341 looks at the question of how the local authority is in a position to judge best interests. What resources has the local authority got to enable it to do this? Why should the decision as to what a child’s best interests are be so hard for a parent to challenge? If it is not to be hard to challenge, what should the routes be?
Amendments 343, 344 and 345 are all concerned with the threat of a school attendance order not being a penalty for a minor infraction. I gather that the Government intend to put that in guidance, but it is important that parents understand that they are being judged by reasonable standards and are allowed to make ordinary mistakes—that they are walking a path and not a precipice.
Baroness Jones of Moulsecoomb (GP)
There are quite a lot of tweaks in this section, which suggests that it is perhaps not quite right and that it needs to be rewritten in some ways.
We heard from the noble Lord, Lord Storey, just now that school is a very safe place, but I am sure he is well aware that school is not a safe place for everybody. Young people get bullied and it can be extremely distressing for some children, specifically if they have prior trauma, special educational needs or unmet needs, or have never attended school. There are all sorts of people for whom school is not the best and safest environment. I am trying to protect families who have already indicated that school is not meeting their child’s needs.
I hope we understand that local authorities sometimes judge in a completely erroneous way what families are doing with home education. We have discussed this, but I think Clause 32 is perhaps not fit for purpose.
Lord Storey (LD)
Truth be known, I struggle with the whole issue of attendance orders. Of course we want as many of our children as possible to be regular attenders at school or an education setting. When they are not at school, they are not learning—apparently. However, there are all sorts of reasons—I have two relevant amendments, I think in this group, which highlight particular groups of children—for this. The issue of bullying in schools has been raised. That can have a huge effect on children, making them literally petrified to go to school. It becomes a vicious circle then, with the local authority taking action and issuing attendance orders. There are also children with special educational needs. I had a pupil who had an absolute phobia of school attendance—I almost could not believe it. His mother, a hospital nurse, had to drag him to school every day. The whole thing was a constant battle. We have to think very carefully about this. There are certain groups of people for whom waving the stick of an attendance order is not the right approach. We have to look at other ways of increasing school attendance, and we have to be mindful of the situation they are in.
I always believed that parents who took their children on holiday during school time were wrong to do so. However, I reflected that the quality time they may have with their parents—often, perhaps more importantly, their dad—was hugely beneficial for them as a family, and that they learned so much as well. I hope we think this through very carefully before we enact it on Report.
Baroness Barran (Con)
My Lords, this group includes a series of amendments, including several from my noble friends Lord Lucas and Lord Wei, on the Government’s proposed approach to school attendance orders.
His Majesty’s loyal Opposition believe it is important that local authorities are able to hold parents to account who are either not ensuring that their child attends school daily or not providing a suitable education at home. I appreciate some of the concerns that this could be seen as punitive by some families. Equally, if exceptions were introduced into the legislation, I worry that it would create a different risk, with inconsistent practice which is perceived to be unfair and could well be challenged in the courts.
I think, if I may say so, that the amendments to which the noble Lord, Lord Storey, referred are actually in the next group. I appreciate that, with so many amendments today, it is hard to keep track.
Baroness Smith of Malvern (Lab)
To continue where the noble Baroness finished, a child receiving unsuitable education for as little as a day could be detrimental for their educational development. The measures in the Bill seek to make this process more efficient, minimising the time in which a child may be receiving unsuitable education.
We have heard many speeches that highlight the rights of parents to educate their children how they wish. Parental choice is important, but it is crucial to remember that with rights come responsibilities. All children have a right to a suitable education, and parents have a responsibility to secure that education for their children. Where parents fail in this responsibility, there must be a consequence for the parent and a swift route to suitable education for the child.
The amendments in this group are focused on the school attendance order process. I turn first to address the opposition from the noble Lord, Lord Lucas, to Clause 32 standing part of the Bill. We believe that Clause 32 is essential. Without it, local authorities would have no power to act when parents refuse to comply with the children not in school registration duties, or where a child is not receiving a suitable education. Clause 32 allows local authorities to require school attendance where a child is subject to child protection investigations or plans and where school is deemed to be in the child’s best interests. This is a vital safeguard for some of our most vulnerable children.
As part of school attendance order proceedings, local authorities will be empowered to request to visit the child inside their home, so that they can fully consider the environment in which home education is being provided. Parents have the right to refuse the local authority’s request. If access is not given, this will be a relevant factor for the local authority to consider when deciding whether to serve an order.
The clause strengthens the current system by introducing timelines to make enforcement more efficient and to reduce prolonged periods in unsuitable education. It allows parents convicted of breaching a school attendance order to be prosecuted again if they continue to breach it, without requiring local authorities to restart the enforcement process. Aligning school attendance order fines with attendance fines will further incentivise parents to ensure children are registered at, and continue to be registered at, the named school.
I turn to Amendment 333A, tabled by my noble friend Lord Hacking, and Amendment 334, tabled by the noble Lord, Lord Lucas. Amendment 334 seeks to make the issuing of a preliminary notice when a child is not receiving suitable education, or when home education is not in the best interests of an eligible child, a discretionary act for local authorities. I will not respond to Amendment 333A, as I had intended to, given what my noble friend said. Making the process discretionary would create inconsistency. A mandatory preliminary notice ensures that there is definitive action when a local authority has reasons to believe that home education is not suitable for, or not in the best interests of, an eligible child.
Amendment 335, tabled by the noble Lord, Lord Lucas, would require support to be offered before a preliminary notice could be issued. In cases where concerns about the suitability of education are serious or urgent, local authorities must be able to act without delay. Making support a legal precondition could inadvertently shield unsuitable provision from scrutiny. However, I appreciate that the noble Lord is concerned that a formal notice can be daunting for a parent to receive. We will consider what further guidance can be issued to parents and local authorities as part of the implementation of these measures to ensure that they can engage confidently with the process.
Amendments 338 and 341, tabled by the noble Lord, Lord Lucas, seek to prevent local authorities considering whether it would be in an eligible child’s best interests for them to receive education by regular school attendance as part of the preliminary notice for school attendance orders. It is important for me to explain the reasoning behind the best interests test in this context. Currently, local authorities have no recourse to require a child on a child protection plan or inquiry to attend school unless they can identify that the child is receiving unsuitable education. The best interests test requires local authorities to take action when they identify children subject to child protection inquiries or plans whose interests would be best served by regularly attending school, regardless of whether the education provided at home is considered suitable. Statutory guidance, Working Together to Safeguard Children, provides clarity on what making best interests decisions means and will be further updated as part of the implementation of these measures.
Amendments 339 and 340, tabled by the noble Lord, Lord Lucas, seek to remove or limit the ability of the local authority to issue a preliminary notice when a child is subject to an active Section 47 child protection inquiry. Local authorities will be able to issue a preliminary notice under the relevant subsection only if it appears to them that the child subject to the Section 47 inquiry is not regularly attending school and that it would be in that child’s best interests to do so. A preliminary notice will not automatically result in a school attendance order.
It is also important to remember that such inquiries take place because Section 47 of the Children Act 1989 puts a duty on local authorities to make inquiries where it considers that a child is suffering, or is likely to suffer, significant harm. These formal inquiries are not initiated lightly; their use signals serious concerns about a child’s welfare. Section 47 inquiries should not be initiated based purely on the fact that a parent is home-educating, as we are clear that home education is not in itself an inherent safeguarding risk. It is vital that local authorities have the means to gather information on the circumstances of at-risk children and determine whether their interests would be better served by regularly attending school.
Amendments 342 and 346, tabled by the noble Baroness, Lady Jones of Moulsecoomb, and Amendments 336, 337, 343, 344, 345 and 347, tabled by the noble Lord, Lord Lucas, seek to remove the ability of local authorities to issue a preliminary notice when a parent has not provided information, or has provided incorrect information, for a children not in school register. This power is discretionary, and local authorities should not normally issue a preliminary notice in response to a genuine error by a parent but instead continue informal inquiries. However, without a consequence on parents for not providing the required information, the duty on them to provide information would be, in effect, redundant. This duty on parents is necessary to ensure that local authorities have the required information to ensure that education is suitable and safe. Local authorities must act promptly once it appears that action should be taken so there is no delay in providing appropriate support to children who need it. The timeframes in the school attendance order process strike the right balance between urgency and operational practicality. Removing them could lead to inconsistent and slower responses across different authorities, resulting in children potentially spending more time in unsuitable education.
I recognise that the noble Lord, Lord Crisp, does not seek to press his Amendment 365. It would perhaps be best for me to deal with the set of amendments in the name of the noble Lord, Lord Wei—which concern penalties for parents in a range of circumstances—by writing to noble Lords with some assurances about each of the amendments, rather than going through them all in this debate.
Finally, I address the stand part notice from the noble Baroness, Lady Jones, which seeks to remove Clause 35 from the Bill. Clause 35 introduces Schedule 2, which makes consequential amendments to existing legislation so that the new school attendance order process for local authorities in England and Wales is reflected in the Children Act 1989, the Education Act 1996 and other relevant legislation. The clause is necessary to ensure proper functioning of the process, and I urge that it stands part of the Bill.
For the reasons I have outlined, I hope that noble Lords will feel able not to press their amendments, and I urge that Clauses 32 and 35 stand part of the Bill.
Lord Lucas (Con)
I am grateful, as ever, for the Minister’s responses, but I would be additionally grateful if she could write to me, between now and Report, to give me a much clearer idea of what the parental experience will be. For example, when faced with a best interests determination by a local authority that the parents consider to be seriously damaging to their child, how do they appeal it? What is the process for taking that through? Assuming that the local authority has it wrong, what is the full process that results in the parents being able to help the local authority understand the reality of their child’s circumstances and where their best interests really lie. With all the help that has been given, I still fail to get a grip on what that process will be and will feel like, and I would love to share that with home educators.
Baroness Smith of Malvern (Lab)
Is the noble Lord clear that the best interests requirement relates to cases where children are subject to child protection inquiries or plans?
Lord Lucas (Con)
Yes. It is only in about half of Section 47 where one would judge that that is a real problem. I understand and accept what the Government are saying about the need not to find that we are not covering children whom we need to cover, and that means that there are children going through the system for whom the dangers are not absolute, but if, for example, the child has deep school anxiety, or has really been bullied in the school, or the school has taken against them for some other reason and they have a horrid experience, and the local authority says, “Go back in”, what is the experience of the parent in appealing that? I do not have the grip on the details of the system that I would like.
Lord Hacking (Lab)
My Lords, provided that the noble Lord, Lord Lucas, does not want to make any more interventions, I will take this opportunity to close the debate.
Your Lordships heard that I was repenting; I pleaded guilty to overreach. I did not seek to press this amendment, but because an enormous number of amendments are listed after Amendment 333A, I felt it was right that all Members should have an opportunity to speak to any of the amendments in this group. Having said that, I have no hesitation in withdrawing this amendment and thanking my noble friend the Minister for her very careful and adequate replies.
Lord Lucas
Member’s explanatory statement
This amendment seeks to facilitate debate of school attendance orders
Lord Lucas (Con)
My Lords, this is another group that would be best served by my listening to what the Minister has to say: there are a lot of detailed bits and pieces in here. I would like to give the Minister comfort that, where I have put down an amendment such as Amendment 348 and the Member’s explanatory statement says
“to facilitate debate of school attendance orders”,
that is what I mean—I do not mean to wipe them out of the Bill. Sometimes her replies sound as if the civil servants regard me as Attila the Hun bearing down on them. No, it is just because of earlier comments made from the Bench opposite that they would like to have an amendment to debate and to stick to that amendment, so I have tabled amendments to enable us to debate, with no other malevolent intention towards the Bill. I beg to move.
Lord Hacking (Lab)
My Lords, since I joined the noble Lord, Lord Lucas, in Amendment 348, I feel I should stand in repentance again, because this is a bad case of overreach and I regret it.
Baroness Barran (Con)
My Lords, this is the briefest of brief debates, so I think the Committee hangs on the Minister’s every word at this point. The group contains a large number of probing amendments, and my concern about the majority of them is that, again, they would introduce too great an element of variability in the application of school attendance orders, with the concomitant risk of perceived inconsistency and unfairness that I mentioned on the earlier group. I will not repeat those arguments. Suffice it to say that the data published by the department shows considerable disparity in the use of notices and school attendance orders, even between neighbouring local authorities such as Portsmouth and Southampton or East and West Sussex. There is a genuine issue that needs to be resolved in terms of bringing clarity to the criteria and the use of school attendance orders.
I also understand why several noble Lords have sought to lessen the penalties on those parents who fail to comply with the terms of school attendance orders, but I do not agree that it is appropriate, given the negative impact on children of missing out on a suitable education. Rather, I think we should support the Government to offer the most streamlined response so that decisions are taken transparently, consistently and speedily. I look forward to the Minister’s reply.
Baroness Whitaker (Lab)
My Lords, I think I should fit in Amendment 368—I apologise; I thought the noble Lord, Lord Lucas, was going to speak again—which is in my name and those of the noble Lord, Lord Bourne of Aberystwyth, and the noble Baroness, Lady Bakewell of Hardington Mandeville, for whose support I am again grateful. It recognises that higher fines, and especially imprisonment of the often lone parent, in fact betray the interests of the child. The Government do not collect information on the protected characteristics of those who are subject to these penalties, so they cannot assess their impact.
All the cases I saw when I was a magistrate were of people in poverty, and we know that Gypsies and Travellers have the lowest rate of economic activity of any ethnic group—47%, as opposed to 63% for England and Wales overall. A Prison Advice and Care Trust survey of 2023, apart from confirming the poverty I have alluded to, points to a range of research showing increased risky behaviour among prisoners’ children, poorer mental health outcomes and the potential lifelong negative impact of parental imprisonment. When a mother goes to prison, 95% of children have to leave home. This amendment would serve the interests of the child, which should of course be paramount, and I urge my noble friend the Minister to accept it.
Lord Hacking (Lab)
I join my noble friend Lady Whitaker on removing the threat of imprisonment: it would be entirely inappropriate, and there are enough people already in prison.
Baroness Smith of Malvern (Lab)
My Lords, as we continue to debate school attendance orders, we must never lose sight of the child at the heart of this. A child gets one chance at an education, and that is why our processes must act swiftly, decisively and in the best interests of the child.
Amendments 348, 349, 350 to 352, 358, 362, 363 and 367 in the name of the noble Lord, Lord Lucas, and Amendment 357 in the name of the noble Baroness, Lady Jones of Moulsecoomb, look to remove or alter the ability for a school attendance order to be served. Amendment 348 seeks to remove the entire school attendance order section. I accept that that may not be the purpose or intention of the noble Lord, Lord Lucas, so let me move on to Amendment 349, which would mean that a local authority could serve an order on parents of children who had historically been subject to a Section 47 child protection inquiry or plan, even if this is no longer the case and the child is receiving a suitable education. It would be disproportionate for a local authority to be able to serve an order in these situations. If a Section 47 inquiry has concluded and not resulted in a child protection plan, parents will not be required to demonstrate that home education is in their child’s best interests. If the notice was also issued on the grounds that the local authority was not satisfied as to the suitability of education, the parent would still be required to demonstrate that the home education is suitable.
Amendment 350 would require local authorities to consider only the major educational settings used by a child, and Amendment 351 would prevent the consideration of where the child lives as part of the decision to serve a school attendance order. Settings where the child is educated are an important part of the local authority’s suitability assessment. Children attending unsafe or otherwise unsuitable settings are unlikely to be receiving an overall suitable education. It is essential that local authorities can identify where this is the case and take action.
Turning to Amendment 352, I hope the noble Lord is reassured to know that the wording in new Section 436I under the Bill does not require local authorities to make financial inquiries of families as part of the school attendance order process. Amendment 357 calls for local authorities to provide formal reasons whenever a school attendance order is issued. Local authorities are already subject to public law duties, and this includes providing reasons for decisions. Statutory guidance will ensure that local authorities are given clear advice and expectations on these matters.
Amendments 358, 363 and 367 would prevent a school attendance order being enforced or require it to be revoked should a child no longer live in the jurisdiction. This would be a significant loophole. A parent could remove a child from the jurisdiction temporarily, or claim to have done so, and thereby avoid compliance. Ultimately, this amendment is unnecessary because, once such an order is made, there are already mechanisms for parents to apply for it to be varied or revoked should they move school or demonstrate that suitable education is to be provided outside school.
Amendment 362 seeks to ensure that, if a parent has asked that a private school is named in a school attendance order, an order will not be issued and instead education will be deemed as suitable. The intention behind this amendment is to prevent a parent having to pay unaffordable bills if their financial circumstances change. As previously mentioned, the parent can simply apply to the local authority to have the order amended to name another school if they can no longer afford the fees of the school named in the order.
Amendments 356 and 359 seek to remove timelines on parts of the school attendance order process. I understand that the noble Lord’s intention is to probe whether sufficient time is built into the process for informing a school when it is to be named in a school attendance order. I can reassure noble Lords that it is. New Section 436L in the Bill outlines that a local authority must serve a school nomination notice on a school which it intends to name in an order. If the school disagrees with the decision, it has 10 school days to make an application to the Secretary of State or Welsh Ministers for a direction.
Amendments 349A and 362A, tabled by the noble Lord, Lord Storey, seek to prevent a school attendance order being issued to any child who has an education, health and care plan, experiences emotionally based school avoidance or is eligible for special educational needs support. All children deserve a suitable education. School attendance orders therefore need to apply to all children. It would not be practical to remove that option from local authorities for particular children. That would limit the available courses of action to secure a child’s education. A local authority should ensure that the school named in an order is right for the needs of the child in question. We recognise that some pupils will be impacted by issues such as emotionally based school avoidance. Our guidance is clear that schools should work with the child and their family to remove barriers to attendance and build strong and trusting relationships.
Amendments 364 and 391, tabled by the noble Lord, Lord Wei, and Amendment 367A, tabled by my noble friend Lord Hacking, seek to amend the process for revoking a school attendance order. Amendment 364 would require a local authority to establish and consult a panel that includes home-educating parents when considering a revocation request. This would be wholly inappropriate. To come to a decision on whether to revoke an order, it is likely that the local authority will need to consider a range of information about the child’s education and personal circumstances. I cannot imagine that many parents would want this sort of sensitive information shared with a jury of other parents.
Amendment 391 seeks to give the parent the right to have their case heard by a jury trial if their child has been required to attend school through a school attendance order. The existing process affords sufficient opportunity for parents to demonstrate that they are providing a suitable education and therefore should not be required to send their child to a named school.
Do I understand correctly that my noble friend Lord Hacking is not now pushing Amendment 367A?
Baroness Smith of Malvern (Lab)
Right. I will turn then to Amendments 368, tabled by my noble friend Lady Whitaker, and Amendment 369, tabled by the noble Lord, Lord Wei. These amendments seek to amend the maximum fine for a breach of a school attendance order. I understand that the prospect of fines is worrying for parents. However, a parent runs the risk of a fine only if they breach the order. The consequence of breaching a school attendance order must be brought in line with the offence of unauthorised school absences. This removes the perverse incentive for a parent to remove their child from school under the guise of home education to avoid higher school attendance fines.
Amendment 371, tabled by the noble Lord, Lord Lucas, would require the court to consider the best interests of the child when sentencing a parent for breaching a school attendance order. Courts in England and Wales must already consider the impact on the child when determining sentences, as per Article 8 of the European Convention on Human Rights.
There is a series of amendments tabled by the noble Lord, Lord Wei, that have not been addressed in the debate. As I did previously, I will write to noble Lords responding to those amendments. I hope that, given the assurances that I have provided, the noble Lord will withdraw his amendment, and other noble Lords will not move theirs.
Lord Lucas (Con)
My Lords, that was a thoroughly satisfactory set of answers. I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment seeks to remove the local authority’s power to request to visit a child at home, for the purpose of determining whether a school attendance order should be served.
Lord Lucas (Con)
My Lords, again, this is a group of amendments on which I would largely prefer to wait for the Minister’s reply. However, I have a particular interest in where the Government find themselves when it comes to visiting children at home, how that should be done and the circumstances in which it need not be done. A lot of what we have been discussing is about producing a system, a set of relationships between home educators and the local authority, meaning that most children get seen anyway in the course of activities in which the local authority is involved—by professionals who are qualified to make judgments on how the child is flourishing and to flag if there seems to be a problem. I am confident that, in a well-run local authority, the need to visit at home should be much reduced. None the less, there will be circumstances where this seems to be necessary, and it always produces conflict.
I am interested in the Government’s thoughts on how they will approach this. How will a well-run local authority deal with circumstances when it feels that it needs to see the child? How will a parent who feels that their child will react extremely badly to this intrusion have their voice heard? I am also interested in the potential role of third parties, such as the family doctor —for those who still have one—to mediate in that process.
For the rest of the amendments in this group that I am responsible for, I look forward to the Minister’s reply. I beg to move.
Lord Storey (LD)
My Lords, I will weigh in just on Amendment 417. Home-educating families having a flexible school term calendar will mean they benefit financially for holidays because, as we know, during school holidays, holidays shoot up in price. Would it not be nice if all schools had the luxury of cheap holidays for their children? Maybe the Government could look at the eminently sensible suggestion from the noble Lord, Lord Wei, on holidays, and see whether in some way holiday companies could be equitable with all school families and not hike up their prices during the holiday period.
Baroness Barran (Con)
My Lords, this group again covers a large number of very technical amendments. Some of them appear to me to be at the more speculative rather than the probing end of the spectrum. They highlight a number of issues in relation to home-educating families and home visits, but the majority of these suggestions, as put in these amendments, would be very challenging for any Government to justify in terms of the potential resources that would be required to implement them.
My noble friend Lord Lucas rightly raised the issues around home visits and the pressure that they put on families. I hope that the Minister can reassure us that local authorities understand that too and would use those powers when necessary, and always in the best interests of the child. I look forward to the Minister’s response.
Baroness Smith of Malvern (Lab)
My Lords, the voice of the child is key in creating a supportive, responsive and effective safeguarding and educational environment. I believe that the best way for a local authority to ensure that a child’s education is both suitable and safe is to meet with the child in the child’s home. We want to ensure that local authorities are able to capture and appropriately consider the views of children, so advice on how to conduct these visits sensitively, as the noble Baroness, Lady Barran, rightly suggested is required, will be a key focus of our statutory guidance.
In terms of the ask on parents, we have aimed for this to be proportionate and at the right intervals. The purpose is to minimise the duration any child is in receipt of unsuitable education. The compulsory information is what is required for a local authority to undertake existing responsibilities related to education suitability and safeguarding. It is not intended to be disruptive to the parents, who will still be able to focus on providing a suitable education for their child.
The amendments in this group seek to make changes to the ability of a local authority to request to visit the home and to limit the potential impact on home-educating families. They also seek to make provision concerning how home educators may engage with and would like to be treated by national and local government.
I am going to suggest that the amendments brought by the noble Lord, Lord Wei, beginning with Amendment 406, might be suitable for me to write to noble Lords about. Several of them fall within the category defined by the noble Baroness, Lady Barran, as being at the “speculative end” of the spectrum. I hope I would be able to either reassure noble Lords or identify why they would not be suitable to be carried forward.
The noble Lord, Lord Storey, makes a broader point with respect to Amendment 417 about holidays, and I am sure this is something that we cannot solve here this evening, but I recognise the concerns that parents have.
I will deal with the amendments put forward by the noble Lord, Lord Lucas. Amendment 353 seeks to remove the local authority’s power to request to visit a child at home to determine whether a school attendance order should be served. I hope I have already identified the approach that we will expect local authorities to take with respect to visits. This ability to request to visit the child at home allows the local authority to see the environment in which home education is being provided and to meet the child. Without this, local authorities may not be able to form a comprehensive view of whether the home environment is conducive to the child’s education. Parents will be able to refuse such a request, but, if they do, the local authority must consider this refusal to be a relevant factor when determining whether to issue a school attendance order.
Amendments 354 and 355 would require a local authority to obtain a court order to request to visit a child at home and to consider a child’s reaction to persons in authority when determining whether to serve a school attendance order. A court order would be unnecessary as the local authority would only be making a request, which parents have a right to refuse. On the point about sensitivity, though, I can assure noble Lords that our statutory guidance will provide further steers to help local authorities sensitively conduct visits, and we will consider whether additional support is needed, such as training for local authority staff.
I hope that I have assured noble Lords that the ability to request a visit is an important opportunity for the local authority, but that these visits will be carried out sensitively, and, if necessary, we will provide further statutory guidance on how that should happen. I will respond to the amendments from the noble Lord, Lord Wei, in writing to noble Lords.
Lord Lucas (Con)
I am grateful for the Minister’s response to my amendments. I would be grateful for a brief response to the amendments put down by my noble friend Lord Wei—just a confirmation, I suspect, when it comes to Amendment 387, of the recognition that there is a lot to say about the methodology of home education and the curriculum, and similarly, on Amendment 393, confirmation that the timing of educational progress, which should in principle be respected, can form part of a suitable education.
I have met a very capable young Oxford undergraduate who did not begin to write until they were 13. Having learned entirely through other methods and found writing extremely difficult, he was able to move on to a keyboard aged 13 and get himself eventually to Oxford. The generality, which is picked up in my noble friend’s amendment, of not beginning formal education until seven is very common on the continent. There are structures which do not impose reading, writing and arithmetic before that age and which succeed on a national level.
The understanding that the Government recognise that there are other routes to educational success, and that this is something that local authorities do not understand, is of general interest, rather more so than some of my noble friend’s more focused amendments.
Baroness Smith of Malvern (Lab)
On those points, I hope I can reassure the noble Lord that the law is already clear. We have discussed during the course of the debate that parents have the right to educate their children using the methods, approaches and content they think best, provided that the education being received is suitable and safe. The point, though, is that local authorities must be able to assess that education to establish whether or not it is. The Bill does not give local authorities any additional powers to regulate the content of home education.
On the point about the nature of education, we believe that a child must be provided with a suitable education from the age of five. Of course, the point about home education is that it would be up to parents, assuming that that education is suitable, to determine what sort of education was being provided to a child of five.
Lord Addington (LD)
My Lords, I am sorry to intervene, as we are in the closing straight. Can the Government confirm that they accept that flexibility of approach is something that will happen? If we look laterally—says the dyslexic—at special educational needs, that is often what is required there. Some of the problems come from the fact that there is a structure that one is supposed to be doing, but not everybody learns like that. Can the Government confirm that this is something which should be worked across the education system?
Baroness Smith of Malvern (Lab)
I have just confirmed that, and we have talked about it at various different times with respect to home education. I completely accept that one of the reasons why parents want to home-educate is to provide different and more flexible approaches to the way in which children learn. The most appropriate methods for learning and teaching will have to be at the heart of not just the Government’s reforms to special educational needs and disabilities but the very hard work that teachers and schools do for those children.
Lord Storey
Member's explanatory statement
This amendment is connected to another in the name of Lord Storey which seeks to prevent school attendance orders being applied to children with an education, health and care plan.
Lord Storey (LD)
I think I have already spoken on Amendments 359A and 366A, albeit in the wrong grouping, so I will leave it there, except to ask the Minister if the letters he writes to the noble Lord, Lord Wei, will be available in the Library for all of us to see.
Lord Lucas (Con)
In the spirit of previous groups, I would very much like to listen to the Minister’s replies.
Baroness Barran (Con)
My Lords, these amendments relate to children, particularly those with education, health and care plans, and the use of school attendance orders. If I understood correctly, the noble Lord, Lord Storey, argued through amendments in earlier groups and Amendments 359A and 366A in this group that these children should be excluded from the school attendance order regime. I outlined my concerns, which remain the same, about introducing inconsistency into a system where we already have incredible variability in how school attendance orders are used.
I have spoken to families who have a child with an education, health and care plan who are considering educating them at home. They have expressed concerns that the local authority can be particularly resistant to that because of the financial costs, which are sometimes related to the physical and medical therapies—health therapies—that a child might need. It would help if the Minister could comment on those fears. Equally, a child in receipt of an EHCP clearly has more complicated educational needs and it is entirely reasonable that the local authority should consider that carefully and ensure that the parents are able to deliver on their wish to support their child at home.
I confess I am unclear what material difference Amendment 360 would make to the Bill, but maybe the Minister will shed light.
Baroness Smith of Malvern (Lab)
My Lords, as I said previously, the school attendance order process is an existing process that is absolutely essential to provide children in unsuitable education a route to suitable education through regular attendance at a school.
In speaking to the amendments in group 15, I turn to Amendments 360 and 361, tabled by the noble Lord, Lord Lucas. They seek to require a local authority to review rather than amend an education, health and care plan where the authority is required to serve a school attendance order in respect of a child and the plan does not specify the name of a school. If a local authority is serving a school attendance order, it has determined that the child is not receiving a suitable education and that the situation must be resolved. In this situation, it is right that the education, health and care plan be amended to name a school and that the school attendance order reflect this. This will enable the child to be enrolled in that school without delay.
The noble Lord may be concerned that parents will not have the opportunity to influence the school named in the order and the education, health and care plan. I reassure him that local authorities will still be required to follow the processes outlined in Regulation 22 of the Special Educational Needs and Disability Regulations 2014. These regulations require that local authorities send parents a notice outlining the changes to the plan. Additionally, the child’s parents can request a review of the plan at any point if they believe that the school is not meeting their child’s needs.
Amendment 366, tabled by the noble Lord, Lord Lucas, would remove the right to refer questions on school attendance orders in Wales to Welsh Ministers and delete the clause preserving the existing education, health and care plan framework. Parents must have a right to appeal a local authority decision to refuse to revoke a school attendance order, regardless of whether that local authority is in England or Wales. The mirror provisions in the Bill reflect our commitment to making the process as consistent as possible for families in both nations.
As previously mentioned, parents of children on education, health and care plans already have recourse to have the school on a school attendance order amended. The amendment would mean that duplicate processes would run concurrently, potentially resulting in confusion for local authorities, parents and schools.
I turn now to Amendments 359A and 366A tabled by the noble Lord, Lord Storey. All children deserve a suitable education. School attendance orders therefore need to apply to all children. It would not be practical to remove that option from local authorities for particular children, limiting the available courses of action to secure a child’s education. A local authority should ensure that the school named in an order is right for the needs of the child in question.
We recognise, as I said earlier, that some pupils will be impacted by issues such as emotionally based school avoidance. Our guidance is clear that schools should work with the child and their family to remove barriers to attendance and build strong and trusting relationships. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Storey (LD)
I beg leave to withdraw the amendment standing in my name.
Lord Lucas
“Protection of home education rights during emergency or authoritarian rule(1) In the event of a national emergency or authoritarian governance, the courts shall have the final authority to safeguard the right to home educate in accordance with this Act.(2) Authoritarian governance shall be defined as any period during which emergency regulations or executive actions suspend, limit, or derogate from rights protected under the Human Rights Act 1998 or the European Convention on Human Rights.”Member's explanatory statement
This amendment seeks to protect the legal right to home educate in exceptional national circumstances by placing judicial oversight above executive restrictions.
Baroness Barran (Con)
I apologise that my final remarks will be slightly negative in tone, but I cannot support this amendment. It is not appropriate to have such a measure in primary legislation. I do not agree with my noble friend’s definition of authoritarian rule, nor with his prioritisation, if we were in a time of genuine national emergency.
Baroness Smith of Malvern (Lab)
I will speak to this amendment in group 16, which is about the right to home-educate. I reiterate—it feels right to be doing this at the end of this debate, as I did at the start—that parents have the right to educate their child in the way that best suits their needs, if that education is suitable. The Bill does not change that.
Amendment 378, tabled by the noble Lord, Lord Wei, seeks to protect a parent’s right to home-educate in the event of a national emergency or an authoritarian Government. First, this amendment would be ineffective, as Parliament is sovereign. Any law passed by a current Parliament can be changed or repealed by a future Parliament. However, existing legislation is clear that most parents have the right to educate their child otherwise than at school provided that the education their child receives is both safe and suitable. This Government support that right. I hope that, on that basis of reassurance, the noble Lord will feel able to withdraw the amendment.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, we seem to have gone awfully quickly. On that basis, may I ask that we adjourn during pleasure for five minutes in order for all participants in the next business to make their way to the Chamber? Therefore, the House will resume at 7.16 pm.