The Law relating to EHE

The government’s aim is to ensure all children and young people receive world-class education which allows them to reach their potential, and live a more fulfilled life regardless of background, in a safe environment.

Educating children at home, works well when it is a positive choice and carried out with proper regard for the needs of the child. This information is intended to help parents who choose to educate their child at home understand what their responsibilities are, and how those fit with the role of the local authority.

More information can be found in DfE Elective Home Education departmental guidance for parents April 2014.


Legal status of EHE 

Parents may legally educate their children at home. The LA recognises education is compulsory, but school is not. Parents’ legal duty is set out in section 7 of the Education Act 1996 as follows:

“The parent of every child of compulsory school age has a legal duty to ensure that he/she receives efficient full-time education suitable:

  1. to her/his age, ability and aptitude, and
  2. to any special educational needs he/she may have either by regular attendance at school or otherwise.”


The role of the Local Authority 

Cognus is commissioned on behalf of the London Borough of Sutton to carry out its statutory duties in relation to EHE.

The LA has a duty under section 436A of the Education Act 1996, to establish the identities, so far as it is possible to do so, of the children in their area who are not receiving a suitable education.

This duty applies in relation to children of compulsory school age who are not on a school roll and when the LA does not know if a child is receiving a suitable education otherwise than being at school. The parents of all children identified will be contacted by the Inclusion Coordinator.

The LA is required to enquire what education is being provided for all children of compulsory school age. Depending on the results of the enquiries the Local Authority must take action where it is required within the constraints of the law.

‘The current legal framework is not a system for regulating home education per se or forcing parents to educate their children in any particular way. Instead, it is a system for identifying and dealing with children who, for any reason and in any circumstances, are not receiving an efficient suitable full-time education. If a child is not attending school full-time, the law does not assume that child is not being suitably educated. It does require the local authority to enquire what education is being provided and local authorities have these responsibilities for all children of compulsory school age.’ [DfE Guidance for LAs 3.5]


DfE EHE Departmental Guidance for Parents  

‘5.6 If your local authority feels that it has not had sufficient information about the home education being provided, or has had no information, and it appears to the authority that your child is not receiving a suitable education at home, it must serve a notice (known as a s.437(1) notice), requiring that you as parents satisfy the authority that the child is receiving a full-time and efficient education at home suitable to your child’s needs. Again, it would be sensible to respond to such a notice if you receive one; and you will have at least 15 days to respond so that you have time to gather suitable material that you may wish to supply.

5.7 The local authority must consider the response, if any, which you make to the notice, in order to decide whether your child is receiving an education which meets your responsibilities under s.7, taking account of any evidence you have provided and any other information it has about the education your child is receiving. If parents make no response at all, then the local authority is entitled to conclude that the child is not receiving a suitable education.’

The Local Authority will expect to see learning and development taking place from the beginning of any period of home education.

Local Authorities have the same safeguarding responsibilities for children educated at home that they would for all children.


Expectations of a suitable education 

The home education provided must be age-appropriate, enable the child to make progress according to his or her level of ability, and must take account of any specific aptitudes.

There should be an appropriate minimum standard which is aimed at, and the education should aim at enabling the child, when grown-up, to function as an independent citizen in the UK

The DfE advises that children that are home educated are able to ….’…to participate fully in life in the UK by including sufficient secular education. This means that even if the home education is primarily designed to equip a child for life within a smaller community within this country it should not foreclose the child’s options in later life to adopt some other mode of living, and to be capable of living on an autonomous basis so far as he or she chooses to do so’. [DfE Departmental Guidance for LAs 9.4.]

Parents should be able to demonstrate the amount of time for which a child is being educated and education which is not occupying a significant proportion of a child’s life will probably not meet the s.7 (Education Act 1996) requirement.

Parents should be able to demonstrate progress and development and the Local Authority may use minimum expectations for literacy and numeracy in assessing suitability, whilst bearing in mind the age, ability and aptitude of the child and any special educational needs he or she may have.


Definition of ‘full-time education’ 

DfE Guidance states: ‘Full time’ is not defined in the Education Act and it does not mean home educators are bound by school hours and terms. For information, however, full time education for children in school is considered to be between 23 and 25 hours of school time per week. Also ‘education which is clearly not occupying a significant proportion of a child’s life (making due allowance for holiday periods) will probably not meet the S.7 [Education Act] requirements.’

‘Suitable’ and ‘efficient’ are not defined either but the courts have given some legal guidance. They have said that education is efficient if it is “achieving that which it sets out to achieve” and it is suitable if it “prepares the child for life in a modern civilised society and enables the child to achieve his full potential”.


SEN Code of Practice

‘When a child has an EHC plan, it is the local authority’s duty to ensure that the educational provision specified in the plan is made available to the child but only if the child’s parents have not arranged for the child to receive a suitable education in some other way. Therefore, if the home education is suitable, the local authority has no duty to arrange any special educational provision for the child; the plan should simply set out the type of special educational provision that the authority thinks the child requires but it should state in a suitable place that parents have made their own arrangements under s.7 of the Education Act 1996.’ [Referring to DfE guide for LA s8.4]

The DfE Guidance states ‘As with other children educated at home, local authorities do not have a right of entry to the family home to check that the provision being made by the parents for a child with special educational needs is appropriate and may only enter the home at the invitation of the parents. However, parents should be encouraged to see a process of engagement with the child as part of the authority’s overall approach to home education of pupils with SEN, including the provision of appropriate support, rather than an attempt to undermine the parents’ right to home educate. Local authorities should not assume that because the provision being made by parents is different from that which was being made or would have been made in school, the provision is necessarily unsuitable. [DfE guidance for LA s.8.7]

This information is explained in more detail in the Department for Education Guidance for Local Authorities and the SEN Code of Practice.


The United Nations Convention on the Rights of the Child

Article 29 of the United Nations Convention on the Rights of the Child states that Education must develop ‘…the child’s personality, talents and mental and physical abilities to their fullest potential.’ In addition, it states that education must develop the child’s respect for human rights, as well as respect for their parents, their own cultural identity and that of other cultures or civilisations and the natural environment.


The Human Rights Act protocol

It is important to note that parents have a right to educate their children from their own philosophical, spiritual or religious standpoint. The Human Rights Act 1998, Article 2 of the First Protocol states that:

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”.

Justice Woolf’s finding about suitable education (1985) states an education is suitable if it ‘primarily equips the child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child’s options in later years to adopt some other form of life if he wishes to do so’.