| SPOTLIGHT |
The High Court has dismissed a legal challenge to the way in which Portsmouth City Council discharges its duties under the Education Act 1996 in respect of home-educated children.
In Goodred v Portsmouth City Council [2021] EWHC 3057 (Admin) (16 November 2021), the claimant, Christina Goodred, contended that her children were receiving a suitable education at home.
She complained that the defendant local authority was imposing on her and others in a similar position, the burden of proving that her children were receiving a suitable education at home, when the statutory scheme does not (at that point) impose such a burden; and that the defendant was fettering its discretion by refusing, as a matter of principle, to accept information provided by the claimant as demonstrating that her children were receiving a suitable education.
The claimant sought a declaration that an addition made in late 2020 to the council's published policy guidance entitled "Elective Home Education" was unlawful. She also sought a declaration that the defendant's stage 3 complaint determination arising from the defendant's functions in relation to her children was unlawful.
Finally, she sought quashing orders in respect of the "policy addition and stage 3 complaint determination and an order for a fresh and lawful determination of her stage 3 complaint"
The dispute began when Portsmouth wrote to the claimant, who home educates three of her children, and her husband in July 2020 to review her children's elective home education provision.
The letter said that, if the defendant received no response, it "must advise you that we have a duty to conduct further inquiries. If after making those enquiries it appears to us that no suitable education is taking place, we will act in accordance with our procedures outlined in our elective home education guidance".
The mother sent back a letter detailing the work being covered. This involved a brief description, by reference to subjects, of what she said the children had been doing.
A council officer wrote back asking for more detail on the children's education, including examples of their work.
The officer also asked about the progress or achievements the children had made, how this had been monitored and whether the parents could provide dated reports and supporting documents in regards to completed educational subjects.
In response, the mother said that she was not "required to monitor my children's work as is made clear in the Elective Home Education Departmental Guidance for Parents", which states at paragraph 2.11 that there are no legal requirements for parents educating a child at home to mark work done by a child or formally assess progress, or set development objectives.
She told the council officer the work is not dated or signed as the child in question "is fully supervised by myself and her Father". She described books used and subject areas covered, the court heard.
After many letters had been exchanged between the two parties, the officer wrote to the claimant on 29 September 2020, stating that the defendant council had "unfortunately been unable to ascertain" the educational provision of the claimant's children. The claimant was required within 15 days of the service of an attached notice to satisfy the defendant that the children were, in each case, receiving full-time education suitable to age, ability and aptitude either by regular attendance at school or otherwise.
Portsmouth informed the mother that if she failed to respond, it might serve a school attendance order upon her, requiring her to register her children at a school.
The mother made an official complaint to the council. She contended that Portsmouth had totally ignored the guidance of the Secretary of State for Education, thereby "assuming that their own opinions and demands trump Law and guidance surrounding home education".
She claimed that she had provided evidence, but the council remained unsatisfied and refused to properly explain why. She added that she had provided extremely detailed reports in respect of her children.
Further correspondence ensued until in December 2020 the defendant served a school attendance order on the claimant.
On 11 January 2021, the council wrote to the claimant and her husband to say that there had been a failure to comply with the school attendance order, in that the children had not been registered at the relevant schools named in the order. The letter said the matter would therefore be referred to the Legal Services Department for consideration of proceedings being taken for breach of the order.
On 18 January 2021 the Portsmouth Home Education Group, of which the claimant is a member, sent a letter before action. The council refused however to revoke the school attendance order.
At the High Court, the claimant advanced four grounds.
Under Ground 1, the claimant's counsel, Mr David Wolfe QC, submitted that the council's process for submitting a notice to satisfy (NTS) under section 437(1) of the 1996 Act has a policy of placing the burden of proof on parents to demonstrate that they are causing their child to receive a suitable education.
The claimant argued that this is inconsistent with the statutory framework and the Secretary of State's guidance. "There is no such obligation on parents, prior to the service of an NTS. Parliament has carefully crafted a statutory framework in which the burden only shifts to the parents if and when a NTS has been served," Mr Wolfe advanced.
Mr Wolfe drew particular attention to the second bullet point in paragraph 5.4, the Secretary of State's Elective Home Education guidance for local authorities. This bullet point says that where there were no previous concerns about the education being provided and no reason to think that it has changed, the local authority's annual contact with the parents would often be "very brief".
Judge Lane agreed with the defendant council's argument, which stated that there are four elements to the duty conferred by s.7 of the 1996 Act on parents. These are: to (i) cause the child to receive (ii) an efficient, (iii) full-time and (iv) suitable education, having regard to age, ability, aptitude and any relevant special educational needs.
The judge concurred that if any one of the elements is absent, the section 7 duty is not being discharged.
He also agreed with counsel for the Education Secretary that the parent is not the ultimate arbiter of whether, for example, the education being received by the child is suitable. "The requirement in section 9 for the Secretary of State and the local authority to have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents has no direct impact upon the section 7 duty."
The accompanying duty imposed upon the local authority via Section 436A enable it to establish, so far as possible, the identities of children who are compulsory school age, but who are neither registered pupils at the school nor receiving suitable education otherwise than at a school, the judge said.
He added that the duties in s.7 and s.436A are important in setting the correct approach to be taken to s.437, which provides that where it "appears to a local authority" that a child of compulsory school age is not receiving suitable education, the authority has a duty to serve an NTS notice requiring the parent to satisfy the authority that the child is receiving such an education.
Judge Lane rejected the claimant's submission that Portsmouth was wrongly imposing a burden on parents, prior to service of an NTS notice. "There is nothing remotely problematic in the defendant approaching a home-schooling parent, as it did in the present case, to request evidence that, if satisfactory, would enable the defendant to discharge its duty under section 436A, without the need to serve an NTS notice."
He said that the claimant's construction of the legislation represented an "over-complication" of a process that is intended to be relatively informal.
Judge Lane pointed to the recommendation in the Secretary of State's guidance that directly advised local authorities (at paragraph 6.4) that where the position regarding the suitability of education is not clear, the authority should "initially attempt to resolve these doubts through informal contact and enquiries".
He added that the "guidance explains that the 'authority's s.436A duty (and that under s.437) forms sufficient basis for informal inquiries". In light of the provisions laid out in the guidance, Judge Lane said, "the defendant's system of initial inquiries is not only permitted by the statutory scheme; it is positively demanded".
Mr Justice Lane continued: "As the correspondence between the defendant and the claimant make plain, the defendant began its enquiries with an open mind. It was only when faced with what it regarded as insufficient material from the claimant that the informal inquiries continued, leading to the impasse which then meant it appeared to the defendant that the children were not receiving a suitable education at home. As Mr Cornwell [counsel for the Secretary of State] submits, the threshold at this point is a low one. It merely requires the defendant to take a view, as matters then stand, challengeable only on public law grounds."
The claimant's second ground of argument contended that Portsmouth's policy and approach were that unless more than a report was provided by parents, it would directly proceed to serve an NTS, even if it had no concerns, (and certainly had not explained any concerns) about the education provision or the content of the report.
Judge Lane said he did not see it as a "fair analysis" of the council's position. Contrary to the idea that the council lacked concern before serving an NTS, Judge Lane said that Portsmouth's process "makes it abundantly plain that the defendant is anxious, if at all possible, to reach the point during the 'informal enquiries' stage, at which it can be satisfied of that matter, without necessarily having to serve an NTS notice".
The "real" scope of ground 2, Judge Lane said, is that the claimant argued that the council had adopted a rigid stance, whereby it will reject reports provided by parents, leading to an "unlawful fettering" of the defendant's discretion.
Additionally, the claimant contended that the local authority had not, at any stage, told the mother what she needed to provide, over and above what she had given in her various reports concerning her children's home education. "This aspect of ground 2 merges into ground 3, which alleges that the defendant has a policy of serving an NTS notice without 'even identifying any specific concerns about the suitability of the education being provided'," Judge Lane said.
This amounted to an unlawful failure on the council's part to act in accordance with its own published policy, the claimant submitted, as well as a breach of "the requirements of basic procedural fairness (which require it to specify the basis on which it considers the education is not suitable and allow time for remedial action, before serving an NTS)".
Portsmouth's published policy states that there may be a variety of reasons why the information or evidence provided has not been deemed suitable. The guidance, amongst other examples, says that "There is no or very limited examples of work submitted" and that "there is no or very limited detail of how the child's progress is being monitored or examples of work to demonstrate relevant progression".
Judge Lane drew attention to the stress in the council's document that these are "for guidance and by way of example only and is not an exhaustive list. Each case is judged on its own individual circumstances".
"I find that this guidance is entirely in accord with that of the Secretary of State," Judge Lane said.
"At paragraph 6.12 of the Elective Home Education guidance for local authorities, it is stated that the local authority should give reasonable weight to information provided by parents, on its own merits. In particular, the local authority should not dismiss such information simply because it is not in a particular form preferred by the authority."
"As can readily be seen," Judge Lane suggested, "in the present case the defendant did not reject the claimant's reports because they were not in a particular form". The council's concerns were "substantive ones".
Judge Lane found that despite the length of the mother's reports, they were "wholly assertive in nature". Moreover, he said they contained nothing by way of actual work produced by the children.
"To take the example of work on To Kill a Mockingbird, which featured in submissions at the hearing, there was no material showing the degree of comprehension of the appellant's daughter concerning the novel; merely a series of statements from the claimant."
Judge Lane turned to the claim that the council failed to tell the mother what she should provide in order to satisfy its concerns. "On a proper reading of the correspondence and the defendant's guidance," Judge Lane said, "I find this complaint to be misconceived."
Echoing Portsmouth's argument, Judge Lane said the claimant had still not to date provided any evidence of her children's reading and writing ability or any evidence that the described educational programme was actually taking place and actually being received by her children.
The judge said that it was, in his view, "plain that the claimant is, in fact, aware of what is needed". "The truth of the matter is that she is simply unwilling to provide it," he added.
"As we have seen, the defendant's position is that a report alone is 'unlikely to be sufficient'. I see no reason not to take the defendant at its word. The fact that, in the present case, the claimant's report has not been sufficient, does not mean that the defendant will take the same view of a report submitted in another case.
"Once a local authority has satisfied itself, by reference to the Secretary of State's guidance, that suitable education is actually being received by a child who is being home-schooled, a subsequent inquiry in respect of the same parent and child might be satisfactorily answered by production of a report along the lines of that produced by the claimant."
Such a result, the judge said, would be compatible with the second bullet point in paragraph 5.4 of the Elective Home Education guidance for local authorities, where, once the local authority has been satisfied with the suitability of the education, subsequent contact might "be very brief".
"One can also envisage that a report from a parent who is a qualified teacher might be regarded as sufficient."
Finally, under the third ground, the judge addressed the mother's contention that she was under no legal duty to respond to the initial or informal inquiries of the defendant.
Judge Lane said: "That is, of course, true; but, as I have already explained in dealing with ground 1, it does not follow that the parent risks no adverse consequences, if they fail to respond meaningfully at this initial stage.
"As paragraph 6.5 of the Elective Home Education guidance for local authorities points out, 'If a parent does not respond, or responds, without providing any information about the child's education, then it will normally be justifiable for the authority to conclude that the child does not appear to be receiving suitable education and it should not hesitate to do so and take the necessary consequent step'; that is to say, serving an NTS notice".
Accordingly, Grounds 2 and 3 were dismissed by the judge.
The fourth and final ground contended that Portsmouth's policy and approach meant that it served an NTS even when it had no concerns and when it was not even actually suggesting that suitable education was not being provided. This was said to be inconsistent with the legal framework and statutory guidance.
"Much of this has already been covered in the earlier grounds," Judge Lane said. "I find that the defendant does not have a policy of issuing an NTS in circumstances where it has no concerns. The allegation of inconsistency with the legal framework and statutory guidance is unparticularised. It is in, any event, wrong for the reasons given in respect of Ground 1."
As a result, all grounds submitted by the claimant failed.
Cllr Suzy Horton, Cabinet Member for Children, Families and Education at Portsmouth City Council, said the judgment vindicated the approach the authority had taken both in terms of meeting its statutory duty to determine if suitable education was taking place and of putting the interests of children first.
"There are always things to learn from a case like this so we will be reviewing our processes in light of this outcome to see if we can make any further improvements," she added.
"We have always been supportive of families who wish to electively home educate their children and who can demonstrate that suitable education is taking place according to their age, aptitude and ability and any special educational needs. I hope we can now move forward and work closely and co-operatively with all families in Portsmouth who are choosing to educate their children at home."
The council said it had been awarded costs of £10,000.
Adam Carey
