Home educating families and local authorities alike often find it confusing to navigate their responsibilities for children with Special Educational Needs (SEN), but it is actually far simpler than it might appear on the surface.
Education Otherwise hears many myths about home educating SEN children and the following looks at the most common ones ( this applies to England only, Wales, Scotland and Northern Ireland have different arrangements).
Home educated children cannot be assessed for an EHCP unless they attend a school for assessment.
The law relating to SEN and EHCP assessment is no different to that for school children and a home educating parent can request an Education Health and Care Needs Assessment (EHCNA) just as any other parent can. If a local authority refuses to consider an EHCNA it is breaking the law and a parent can take legal action against it. That does not mean that the authority has to make an assessment, but it cannot refuse to consider assessment or set conditions (such as attending school) for doing one.
Local Authorities cannot have an EHCP review and a home education request for information in one meeting.
It is perfectly legal for local authorities to combine these meetings, but a parent can request that they are dealt with separately. However, local authorities do not have to agree to that request.
Of course, there is no legal requirement for parents to attend EHCP assessment or review meetings. They also need not contribute to those meetings, but if they do not do so, their views will not be included and an EHCP may not be issued due to lack of evidence of need.
If the local authority names a school on an EHCP I have to register my child.
If an EHCP names a school that is an offer to the parent of a school place, it makes no requirement on the parent to register the child. A local authority cannot register a child in a school as only a parent can do so (this is not the same as having parental responsibility as the Education Act 1996 uses a wider definition which includes those with care of the child).
Home education cannot be named on an EHCP
Home education can be named on an EHCP, but it cannot be named in section ‘I’ as legal precedent has found that only an institution or type of institution can be named in section I. However, new forms for EHCPs now have a ‘notes’ section underneath the main section ‘I’ box and it is acceptable to refer to the child being home educated in that notes section.
Home education can also be referred to in section ‘F’ of an EHCP (see below). Alternatively, the local authority can provide a separate letter stating that the child is home educated.
It is preferable for home education to be referred to on the EHCP, as many parents have struggled with obtaining Child Benefit and Universal Credit for SEN young people over 16, as the DWP demands ‘proof’ that the home education is approved by the local authority.
Parents can ask the local authority to refer to home education on a child’s EHCP. That does not mean that the local authority is confirming that the home education is suitable, that is a separate matter, but it does confirm that the child is home educated.
Local authorities cannot ask parents to make provision named in section ‘F’.
The local authority cannot demand that a parent meets provision in section ‘F’ but if a parent agrees to do so, the authority can note the fact that the parent is doing so in section ‘F’. There is no legal restriction on referring to home education in section ‘F’ as a fact, but the authority cannot of course, insist that a parent home educates a child.
EHCPs do not need to be annually reviewed for home educated children.
Home educated children’s EHCPs are required to be reviewed just as all EHCPs are. Of course, a parent can ask for a review or for an EHCP to cease and the local authority should consider that request.
Local authorities can stop an EHCP because the child is home educated.
Home education is not a legitimate reason to stop an EHCP. Any blanket policy of doing so would not be legal.
If I home educate, the local authority no longer has any duty to make provision for my child.
The local authority has no duty to make provision if a parent is making suitable provision themselves, however, the provision still has to be offered and the parent can take it up if they wish to do so. The parent can have a change of mind and the local authority would then need to make the provision.
Parents can ask for and receive a personal budget and direct payments for a home educated child.
Parents can ask for a personal budget and direct payments at annual review or during the initial EHCP process, just as parents of school children can. However, it is not common for direct payments to be made and local authorities are not legally obliged to make them.
There are tutoring and online service providers who advertise to parents or advise parents to apply for an EHCP in order to obtain direct payments to pay for their services. The likelihood of obtaining direct payments for such a purpose is very low.
If a child is in a special school by arrangement with the local authority the child has to keep attending school until the local authority gives consent for removal from the roll.
The School Attendance (Pupil Registration) (England) Regulations 2024 s9 (2) place a requirement on schools to not remove a child from the roll of a special school if the child is attending by arrangement with a local authority (the school is named on an EHCP). This is a duty on the school which protects the child from being ‘of rolled’ against the parent’s wishes.
The local authority cannot consent (or not consent) to home education and the Regulations do not stop a parent from deciding to home educate the child.
The parent can decide to home educate at any point, however, in that case, the child is potentially a child missing education. The local authority would make enquiries and consider whether or not the home education provision is suitable. If it was found to not be suitable the parent would be served with a school attendance order for failing to ensure the child’s attendance (Education act 1996 s444).
If a parent has already started to home educate the child prior to the local authority giving consent to remove the child from the school roll, it is reasonable for a local authority to wait until it has confirmed that home education is suitable before giving consent for the child’s name to be removed from the roll of a special school.
Parents can force a local authority to name a different school or offer Education Other Than At School (EOTAS) by taking a child out of school to be home educated.
If a parent removes a child from school in order to home educate the child and does not provide a suitable education, most local authorities will serve a school attendance order naming the school that the child was previously at. Of course, the parent can request a different school, but the authority is not obliged to agree that request.
This is not a sensible way in which to try to get a different school named on an EHCP. If a parent does not agree with the EHCP the proper approach is to appeal it and go to tribunal.
If a parent is taking this sort of action in order to try to obtain EOTAS provision it will almost always backfire. This is because the local authority will assess the child’s needs and only specify EOTAS provision on an EHCP if it considers EOTAS to be the only suitable option.
Being a parent of a child with SEN
Being a parent is hard work, no matter how much you love your children and when your child has SEN, it can be even harder, as the child’s needs are greater. It can also be incredibly rewarding.
If you need advice or support Education Otherwise has specialist, trained SEN advisors who you can contact.
Email: [email protected]
Telephone: 0300 124 5690 Monday to Friday 10am to 6pm, Saturday 11am to 2pm.
EHE, EHCP and disagreement about school type
Q: A parent wishes to EHE because they are not content with the mainstream placement being offered as they wish their child to go to special school, but the needs of the child are not suggesting special school. What should the LA do?
A: The LA is obliged to consider the s7 suitability of the EHE and, if unsatisfied, contemplate enforcement action.
If doing that and then LA considers that EHCNA/EHCP is not required, it simply proceeds through the ordinary enforcement process, including by offering a mainstream placement in a SAO.
If the LA considers and EHCP is required (albeit specifying/naming mainstream), it would need to produce one to underpin any enforcement action.
If (regardless of any enforcement issue) the parent wants an EHCNA and potentially EHCP then the LA must go through that process. If at the end of it the LA produces and EHCP which specifies mainstream and names a mainstream school, then the parent can appeal that to the FTT/SENDIST.
Finally:
Q: What are some of the most common legal challenges faced by parents of children with SEND who choose home education, and how can local authorities help address these challenges?
A: Recall that an EHE child/parent has exactly the same rights in terms of EHCNA/EHCP as any other child/parent including in the assessment/plan/review etc process.
Of course, as above, that does not mean that an LA must do those things for every EHE child with significant SEN. But, if the parent asks for that, it must be done.
Q: Any changes in the offing?
A: None that are specific to children with EHE as far as I am aware.
David Wolfe MATRIX December 2024
