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David against Goliath: Portsmouth home educators launch judicial review against the council.

A small group of courageous home educating parents is challenging the might of Portsmouth City Council (PCC) in the High Court. The group’s complaints about the way that the Council treats them, were dismissed out of hand by officials, who seemed to believe that they were above the law. The judicial review challenges both PCC’s home education policy and practice, centring around its officers making demands of families that are unlawful.

 

PCC has repeatedly served criminal process on decent and law abiding families in the city, simply because they make a legal choice to home educate their children. Further, following the issuance of the families’ letter before action, PCC failed to follow the required legal protocol, leaving those families with no choice but to file an application in Judicial Review. We had hoped that this action would not be necessary, but sadly, it seems that PCC failed to take either the families’ grievances or their notice of legal action seriously.

 

The amazing home education community came together to raise funds to enable the group to bring this action. The cost is dauntingly high and yet our wonderful community achieved £20,000 in the first day and £30,000 within a few days. This was incredible generosity from mums, dads, grannies, granddads and even children. We could not be prouder. Never before has our community been asked to do this and PCC’s actions appear to indicate that it thought the group to be posturing and incapable of going ahead. Never should anyone underestimate home educators.

 

What the action is about

 

In a nutshell, home educating families in PCC want PCC to treat them fairly and in a manner consistent with legislation and guidance, but it does not. The case is brought on four grounds:

  • PCC demands that parents ‘prove’ education to be suitable when there is no legal basis for them to do so: in fact, PCC sent numerous letters in response to complaints which effectively stated that 50% of home educating parents are deceitful.
  • PCC does not treat parents on a case by case basis. This is called ‘unlawful fettering of discretion’, as any public body is required to look at every case individually.
  • PCC breached its own policy, which at the time was lawful. That policy states clearly that if PCC has concerns about provision it will provide details of those concerns to families and provide them with opportunity to address them. In practice, PCC simply sends out standard letters in an unstoppable steam roller toward prosecution.
  • PCC’s current policy is not compliant with legislation and guidance.

 

In fact, after having responded to parent’s complaints without answering their questions, or providing details of any concerns PCC might have, the council reacted to those complaints in a wholly reprehensible manner by adding two paragraphs to their local policy to seek to justify the unlawful policy it was operating.

 

The outcome

 

Home educating families would by far prefer PCC to acknowledge its mistakes and withdraw its unlawful policy, whilst revoking all s437 notices and SAOs served to date. If PCC chooses to respond to this court action by doing so, it will take the first step toward improving its relationships with those families it has cynically sought to criminalise. This would involve conceding the case at this early stage which would be advantageous to PCC. This is because it is not only the right thing to do and the most sensible thing to do, but also because PCC would by doing that minimise the costs to itself. PCC should reflect upon whether members of the public in its area would consider defending the case to be a good use of their money, as their taxes will pay the cost.

 

If PCC does not concede the case, it is required to make a full case in defence within 14 days (the court has ordered the matter to be expedited). They may even follow the required legal action, despite their failure to do so to date. We hope that PCC consider its position with a mind to the amount of public funds they are wasting.

Following this, the High Court decides whether, or not the group has permission to proceed to a full hearing. It is hard to see how it could refuse, given the conduct of PCC officers to date.

 

What is particularly galling for home educating families is that PCC repeatedly accused them of being deceitful and yet Alison Jeffery, the head of PCC children’s services demonstrated the utmost contempt for the truth in response to Education Otherwise’ comments on the action. Ms Jeffery stated:

 

We are aware of 269 families in the city who are home educating their children on a long-term basis (not just during the pandemic). Of these, 49 received a formal notice from us in 2020 that we needed information from them to demonstrate that they are providing suitable education for their children. This is 18%, not the 83% cited by Education Otherwise.” (Local Government Lawyer)

 

 

Well, we all know the old adage about a picture painting a thousand words and these images are from FOI request responses:

 


FOI response for the single term from September to January, which raises the question of how 179 children can have the 269 families claimed by Ms Jeffery. This also raises the question of how the 49 notices claimed to have been issued by Ms Jeffery in the whole of 2020 can possibly include the 59 in the final term of that same year. In fact, there were 162 home educated children at the start of that term, so we make that 36% receiving notices.

 

 


FOI response indicating that the above was for that one term and stating that 72 notices were served in 2020.

 

 


FOI response showing the number of notices served from 1st September 2019 to October 2020. 137 notices for 234 children. We make that 58%.

 

It does seem to Education Otherwise that it is not our assertions that are deceitful, nor those of PCC’s data control team, but those of PCC’s representative Ms Jeffery.

 

Add to this the fact that FOI responses nationally indicate PCC to have served the highest percentage of s437 notices per population in any local authority by several multiples. Furthermore, a majority of local authorities have served none at all. Education Otherwise does not believe that such a high number of these notices is justified.

 

All that these families ask for asking for is to be treated fairly and without bias, according to the law.

 

PCC needs to take heed of this demonstration that the little people will not stand back and cowed by the weight of its threats and pressure. ‘They said we could not do it, so we did’.