Phillips vs Brown

What did Lord Donaldson say about home educators giving information to local authorities and what are people talking about when they mention "Phillips vs Brown"?

NB in the following text, the Education Act 1944 is discussed. This section has now been replaced by the Education Act 1996. However, there are no differences between the old and new laws which affect this case

This is the relevant section:

437 School attendance orders

1. If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education.

2. That period shall not be less than 15 days beginning with the day on which the notice is served.

3. If—

   (a) a parent on whom a notice has been served under subsection (1) fails to satisfy the local education authority, within the period specified in the notice, that the child is receiving suitable education, and

   (b) in the opinion of the authority it is expedient that the child should attend school,

   the authority shall serve on the parent an order (referred to in this Act as a “school attendance order”), in such form as may be prescribed, requiring him to cause the child to become a registered pupil at a school named in the order. "

The central questions raised by this case are:

1. following Phillips vs Brown, can the local authority argue that it has a pro-active duty to investigate a family's home education provision in order to ascertain whether the parents are discharging their legal obligations under section 7 of the Education Act 1996 or;

2. does the authority ONLY have a duty (or a right) to make enquiries under section 437 of the Education Act 1996 if it has reason to believe that an education is NOT taking place and;

3. does the family have a duty to give information about the child's education in response to initial enquiries from the local authority if such enquiries do not form part of a notice served under section 437 of the Education Act 1996.

Mr Phillips was a home educating parent who appealed against the conviction and fine imposed by Leeds Magistrates for failure to comply with a school attendance order made by the local education authority under section 37(2) of the Education Act 1944 (now section 437 of the Education Act 1996).

Mr Phillips and Mrs Reah, who was also charged and convicted, were the parents of a boy of compulsory school age, Oak Reah. At the hearing before the magistrate the Senior Education Welfare Officer of the authority gave evidence that Oak was not a registered pupil at a Leeds school and that no information had been forthcoming from the parents regarding the child's curriculum, timetable, subjects to be studied and whether these were appropriate to his age, ability and aptitude. The Officer said that, from these facts, it appeared to the authority that the parents were failing to perform their duty under s 36 of the 1944 Act (now section 7 of the 1996 Education Act) and that accordingly as a s 37(1) notice (now section 437 1996) had been served upon them.

The parents gave no evidence concerning Oak's education but took the point that, before a local education authority could issue a notice under s 37(1) of the Act, something positive must have come to their notice as a result of which it could and did appear to the authority that there was a failure by the parents in their duty under s 36. The parents contended that there was no evidence of any such matter. It followed that it could not appear to the authority that the parents were failing in their duty, that the s 37(1) notice was invalid and so was the school attendance order based upon that notice.

The magistrate's conclusions were as follows:

"I was of the opinion: That at the time the letter dated 14th June 1977 was written the child was not attending school and the local authority had no information regarding his teaching,that the letter written by the local education authority dated 14th June 1977 was a perfectly proper request for information and one that they were entitled to make, that the words "if it appears to a local education authority" in s 37(1) of the Education Act 1944 make the respondents the judges on the question of whether or not there has been a failure on the part of the parents to perform their duties under the Education Act, and that the court cannot enquire into its judgement,that in any event the failure to send the child to any school and to give any, or any satisfactory, information about the child's schooling when asked by the respondents was sufficient evidence of "failure" to make it their duty to serve notice under s 37(1) of the Education Act 1944 asking for details of the child's education,being satisfied that the respondents had carried out the statutory procedure and requirements of s 37 of the Act, that the school attendance order had been served properly upon the appellants, that the appellants had failed to comply with the requirements of such order and no evidence being adduced before me by, or on behalf of, either appellant to prove that the child was receiving efficient full-time education at school or otherwise, I found the summons proved against both defendants. "

Many people who quote this case mistakenly assert that Lord Donaldson ruled that "local authorities were only allowed to make informal enquiries". This is not what Donaldson actually said.

Some people are under the impression that Donaldson said the parent only has to present such evidence to a magistrates court as would satisfy a reasonable person on the balance of probability that an education is taking place. Whereas in fact Donaldson's precise words were:

"in my judgement it is open to the defendant parent to place evidence before the court designed to show that it could not have appeared to a reasonable LEA, correctly directing itself as to what matters were relevant, that the parent was in breach of his s 36 duty or, as the case may be, that it was expedient that the child should attend school and that the making of the school attendance order was therefore unauthorised and a nullity. But courts should not readily accede to such an argument in the absence of evidence that in fact the parents are discharging their s 36 duty. "

Some local authorities appear to believe that the Phillips vs Brown case is "proof" that the local authority is required to impose some ongoing "monitoring" arrangement on the home educating family. We have also come across local authorities who seem to think that this case proves that local authorities are responsible for ensuring that home educated children receive a suitable education. If we read what Donaldson actually said, it is very difficult to see how anyone could possibly reach these conclusions. Donaldson is talking about a one-off question which he believes the authority is required to ask itself: namely in view of the authority's duty to provide sufficient school places for all those who need them, is this particular child, who has come to the authority's attention by whatever means, in need of a school place.

The following are Lord Donaldson's own words:

"Two questions are referred to this court, namely the interpretation of the words 'if it appears' in s37(1) of the Education Act 1944, and whether the respondent's judgement was a matter about which the court could enquire and if so whether there was sufficient evidence before the court, or any evidence, upon which it could be established that it did appear to the local education authority...

Mr Phillips submits that unless and until something comes to the notice of a local authority which causes it to conclude that prima facie particular parents are in breach of their duty under S 36 of the Education Act 1944 it is neither bound nor entitled to make enquiries of those parents. He claims that an LEA is in the same position as a policeman and says that policemen do not go from house to house enquiring whether a burglary has been committed. Similarly LEAs should not oppress parents by enquiring whether there has been a breach of s 36. In Mr Phillips's submission the LEA in this case is seeking to invert s 37(1) and to treat it as if it authorised and required the making of enquiries of parents before and in order that the LEA may consider whether it appears that there has been a breach of s 36.

Whilst I acknowledge the force of this argument, it seems to me that where an authority has a duty to take action in particular circumstances, it also has a duty to be alert in order to detect the possibility that those circumstances exist.

It needs to know what children of school age live in its area in order that it may perform its statutory duty to provide sufficient schools (s 8 of the Education Act 1944) and to ascertain what children require special educational treatment (s 34). It knows which of these children attend its own schools. It follows that an LEA will or should know that certain children in its area are in a different category - namely being educated at other schools, being educated otherwise than by attendance at school or not being educated properly or even at all. Unless the LEA knows into which sub-category a particular child falls, it is put on enquiry.

What should it do? I do not accept that it should do nothing. This would rightly be criticised as an attempt to behave like an ostrich - to put its head in the sand in order that it should not learn of anything which might place upon it the burden of discharging its duty to consider making and, in appropriate cases, to make school attendance orders.

The most obvious step is to ask the parents for information. Of course such a request is not the same as a notice under s 37(1) of the Education Act 1944 and the parents will be under no duty to comply. However it would be sensible for them to do so.

If parents give no information or adopt the course adopted by Mr Phillips of merely stating that they are discharging their duty without giving any details of how they are doing so, the LEA will have to consider and decide whether it "appears" to it that the parents are in breach of s 36. In this context there is no reason why it should necessarily accept the parents' view - opinions differ on what has to be done in discharge of the duty - and if the parents refuse to answer, it could very easily conclude that prima facie the parents were in breach of their duty...

Life would have been much easier for all concerned, including Mr Phillips, if he had seen fit to place evidence before the magistrate designed to prove this point, but he did not do so. Instead he sought to argue that the school attendance order itself should not have been made because it did not in fact appear to the LEA that he and Mrs Reah were in breach of their s 36 duty and accordingly the LEA had not been entitled to issue the order. Alternatively, he would like to have contended that the LEA could not have formed the opinion that it was expedient that Oak should attend school. The learned magistrate held that it was not open to him to consider such an argument. Here I think that he erred.

In Secretary of State for Employment V ASLEF (No 2) }(1972] 2 QB 455, (1972] 2 All ER 949 the Court of Appeal was concerned with a statute which authorised the making of an application to the court "if it appears to the Secretary of State...The court held that this did not put the Minister's decision beyond challenge. It was open to a respondent to the application to seek to show that the Minister had not acted bona fide or that he must have misdirected himself in law. Similarly, in the case of proceedings brought for non-compliance with a school attendance order, in my judgement it is open to the defendant parent to place evidence before the court designed to show that it could not have appeared to a reasonable LEA, correctly directing itself as to what matters were relevant, that the parent was in breach of his s 36 duty or, as the case may be, that it was expedient that the child should attend school and that the making of the school attendance order was therefore unauthorised and a nullity. But courts should not readily accede to such an argument in the absence of evidence that in fact the parents are discharging their s 36 duty and, if this is once proved, the defendant would in any event be entitled to be acquitted and the court may make an order under s 37(6) of the Education Act 1944 that the school attendance order shall cease to be in force. In the circumstances parents would be well advised to concentrate upon the defence which is available to them under s 37(5) rather than to take on the very much heavier burden of seeking to attack the school attendance order in limine."

On the facts of this case the learned magistrate should have applied his mind to the question of whether it could properly have appeared to the LEA that the parents were in breach of their s 36 duty and whether it could properly have been of opinion that it was expedient that Oak should attend school and I answer the questions set out in the case stated accordingly. The conviction will be set aside and the matter remitted to the learned magistrate for further consideration should the LEA wish him to do so."

1/ following Phillips vs Brown, can the local authority argue that it has a pro-active duty to investigate a family's home education provision in order to ascertain whether the parents are discharging their legal obligations under section 7 of the Education Act 1996.

Yes, the authority can make an argument based on the Phillips vs Brown case. It might not be a good argument, but they can still make it.

2/ does the authority ONLY have a duty (or a right) to make enquiries under section 437 of the Education Act 1996 if it has reason to believe that an education is NOT taking place?

Mr Phillips argued this and was over-ruled by the local magistrates and by Lord Donaldson when the case came to Judicial Review. It remains a valid reading of section 437 of the 1996 Education Act, but it is not clear how courts will view this.

3/ does the family have a duty to give information about the child's education in response to initial enquiries from the local authority if such enquiries do not form part of a notice served under section 437 of the Education Act 1996?

Donaldson says "The most obvious step is to ask the parents for information. Of course such a request is not the same as a notice under s 37(1) of the Education Act 1944 and the parents will be under no duty to comply. However it would be sensible for them to do so. "

We are not breaking any laws if we do not respond to requests for information which are made outside section 437 but if we might choose to rely on the first part of Donaldson's judgement where he says "the parents will be under no duty to comply", we should also be aware of the rest of what Donaldson said.

The judgement on this case is cited 3 times in the DCSF Home Education Guidelines of 2007 although it is not directly attributed to Lord Donaldson (nor does it appear in quotation marks).

"2.8 Prior to serving a notice under section 437(1), local authorities are encouraged to address the situation informally. The most obvious course of action if the local authority has information that makes it appear that parents are not providing a suitable education, would be to ask parents for further information about the education they are providing. Such a request is not the same as a notice under section 437(1), and is not necessarily a precursor for formal procedures. Parents are under no duty to respond to such enquiries, but it would be sensible for them to do so." Footnote Phillips vs Brown (1980) not attributed to Lord Donaldson, page 5

"3.4 Local authorities should acknowledge that learning takes place in a wide variety of environments and not only in the home. However, if it appears that a suitable education is not being provided, the local authority should seek to gather any relevant information that will assist them in reaching a properly informed judgement. This should include seeking from the parents any further information that they wish to provide which explains how they are providing a suitable education. Parents should be given the opportunity to address any specific concerns that the authority has. The child should also be given the opportunity, but not required, to attend any meeting that may be arranged or invited to express his or her views in some other way. Parents are under no duty to respond to such requests for information or a meeting, but it would be sensible for them to do so. " Footnote Phillips vs Brown (1980 ) not attributed to Lord Donaldson, page 8.

"3.6 If a local authority asks parents for information they are under no duty to comply although it would be sensible for them to do so. " Footnote Phillips vs Brown (1980 ) not attributed to Lord Donaldson, page 9.