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Home-educated children with special educational needs (SEN)

Following the Badman review of Home Education, DCSF published a guidance letter for LAs on their duties in meeting the special educational needs of home-educated children.

On 12 March 2010, DCSF issued this further guidance to clarify the local authority's (LA) responsibilities in relation to the issuing of school attendance orders (paragraph 12 of the guidance letter) and funding (paragraphs 19-20).

Further guidance: Issuing school attendance orders

Can you confirm that DCSF is by means of this letter issuing guidance to LAs stating that where a child with special needs is not seen by the authority and where the family will not permit access to the family home, that a school attendance order should be issued? Is this DCSF policy?  Could you point me to the primary or secondary legislation which currently permits this?

The SEN Code of Practice is, and remains, the statutory guidance on matters relating to provision for children with SEN, including those educated at home (paragraphs 8:95, 8:96, 9:8 and 9:36 are particularly relevant here). This letter is additional guidance to LAs in order to help them meet their SEN duties to home-educated children, particularly in light of the Lamb Inquiry and the need for LAs to work constructively with parents. However, paragraph 12 does not represent a change in the Department's policy. As the letter states in paragraph 3, there will be further guidance on the way the annual review and the proposed annual assessment of home education can be combined following Royal Assent of the Children, Schools and Families Bill.

We believe that paragraph 12 of the letter is consistent with the law, as follows. Under section 7 of the Education Act 1996, parents must cause their children to receive efficient full-time education which is suitable to a child's age, ability and aptitude and to any special educational needs the child may have. For children with SEN statements, section 324 (5) of the 1996 Act says that:

"Where a local education authority maintain a statement under this section, then — (a) unless the child's parent has made suitable arrangements, the authority (i) shall arrange that the special educational provision specified in the statement is made for the child ... ".  

The LA is obliged to name a particular school or type of school on the statement. But, in cases where the parents are making suitable arrangements at home, the LA is not obliged to name a particular school or type of school in the statement. The fact that the parents are making suitable arrangements can be recorded on the statement. If the parents are not making suitable arrangements then the LA still has the duty to arrange that the child receives the special educational provision set out on the statement at the school or type of school named on the statement. Section 437(1) of the 1996 Act says that an LA is required to intervene through the school attendance order framework "if it appears ... that a child of compulsory school age is not receiving suitable education, either by regular attendance at school or otherwise".

However, the suggestion in paragraph 12 that an LA should seek a school attendance order only applies in cases where an LA considers it is unable to assess suitability because it has been denied access to a child and is unable to see the child, and there are no other means of establishing suitability. There is a range of ways in which an authority can make an assessment of suitability which do not involve being able to see the child or having access to the home.

We apologise for any concern that paragraph 12 has caused the parents of home-educated children.

Further guidance: Funding

Can an LA claim Dedicated Schools Grant (DSG) funding for pupils with SEN who are currently receiving services from the LA?
The short answer is yes, where a pupil is currently receiving services from the LA.
The Department has sought to make clear to LAs the circumstances in which they can count home-educated pupils for the purposes of funding through the DSG. Revised guidance for the Alternative Provision Census on 21 January 2010 was sent to LAs on 26 November 2009.

Changes to guidance from the previous year were highlighted for LAs. The key changes, as noted here in italics, are in paragraph 2.2.1 — "there are pupils who are unattached (either temporarily or permanently) to any maintained school in its area, but for whom the local authority has responsibility. These include ... Home-educated pupils e.g. those requiring SEN support or undertaking FE courses". Paragraph 1.2 also confirms that "Pupils taught at home (i.e. those who are to be included) only includes those pupils who are receiving local authority funding". And in the definitions of pupils to be counted is, "Pupil receiving home tuition for whom the local authority is financially responsible, including those receiving SEN support".

The principle behind these definitions is that when an authority is providing significant financial support for a pupil educated outside school, the authority can and should enter the pupil on the Alternative Provision Census for DSG purposes. When the LA is not providing financial support, it cannot enter the pupil. This is exactly the same principle as for the pupils in independent schools, whom the authority can enter only when it pays the fees. It would not be right to provide the LA with public funds for children in respect of whom they incur no costs.

It is the LA's decision whether to provide financial support, for SEN or in an FE college, and the entry of the pupil on the Alternative Provision Census follows from that decision. It is not a matter of the LA somehow applying to the Department for permission to enter the pupil.

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