By Melinda Nettleton, Director and Founder of SEN Legal
Following COVID-19, and the temporary necessity of home schooling for many children and young people, we are increasingly being approached by parents who have decided that education within the home is the way forwards. For a variety of reasons, they and their children, simply do not want for their children to return to school post COVID-19, and wish for them to continue their education within the home. This arises the question, "Do we have to go back to school?"
The short answer is no, parents do not have to send their child back to school. Whilst education is compulsory, school is not. However, there are some considerations you will have to take into account, if you are going to home educate.
Firstly, if you are going to home educate then the education you provide must be suited to the age, ability, and aptitude of your child, and any Special Educational Needs they may have (Section 7 Education Act 1996).
There is also no obligation to comply with the National Curriculum, but you will have to pay all the costs, including examination costs.
If you want to remove your child from the roll of their maintain mainstream school or Academy, all you need to do is give written notification to the setting that you will be providing home education (quote Regulation 8(1)(d) Education (Pupil Registration Regulations) (England) 2006).
It is important to note that whilst you do have the right to home educate your child, the Local Authority do have safeguarding powers they can use if they are concerned that the education you are providing your child is not suitable (see Elective Home Education Departmental Guidance for Local Authorities April 2019).
If your child is a pupil at a special school, the situation is slightly different. Rather than simply providing notice to the school to remove your child from the roll, you have to first apply under Regulation 8(2) for the Local Authority’s consent for your child to be removed from the roll. If the Local Authority refuse, there is a Right of Appeal against this refusal to the Secretary of State for Education.
It is really important to emphasise the point made above, that if you choose to electively home educate your child, you will be responsible for bearing the cost of that education. If a "suitable" education for your child includes therapies, then you will be responsible for paying for them, even if they are set out in Section F of an EHC Plan.
This is because Section 42(5) of the Children and Families Act 2014 states that where a parent has made suitable alternative arrangements for educating their child, the Local Authority is no longer under a duty to provide the provision contained in Section F.
If what you would like is for your child to be educated at home, funded by the Local Authority, then the legal basis for this is "Education Otherwise than at School" (EOTAS), which is found in Section 61 of the Children and Families Act 2014.
If you are having difficulty removing your child from the roll of their school, are facing safeguarding concerns by your Local Authority, or are considering EOTAS, we are able to help you achieve your desired outcome.
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