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Home Education Information

A number of parents in the UK now choose or are forced into educating their children at home.

The following link for Education Otherwise has loads of really helpful information on how the Law affects those wishing to Educate the children at Home, they also provide loads of information, help and support to parents educating at home.

Education Otherwise
"A UK-based membership organisation which provides support and information for families whose children are being educated outside school, and for those who wish to uphold the freedom of families to take proper responsibility for the education of their children."

Full details of the Act can be found at

A Summary of the Law Relating to Home Education in Scotland

School is not Compulsory

Home education and the law in Scotland

Section 14 of the Standards in Scotland’s Schools etc. Act 2000 (asp 6) provides for guidance to be issued ‘as to the circumstances in which parents may choose to educate their children at home’, and requires education authorities to ‘have regard to any such guidance’. However, as at September 2001 no such guidance has been issued. At present all the relevant provisions relating to the rights and duties of parents in Scotland are contained in the Education (Scotland) Act 1980.

The general principle of parental choice is set out in s 28(1) of the 1980 Act: In the exercise and performance of their powers and duties under this Act the Secretary of State and education authorities shall have regard to the general principle that, so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents.

The duty of the parent

The right to educate otherwise than at school is contained in s 30(1):

It shall be the duty of the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means.

This means:

• If you have a school-age child, you must see that (s)he is educated.
• You can do this either by sending the child to a state school or by other means.
• In any case, the education provided must be efficient.
• It must also be suitable to the child’s age, ability and aptitude.

The main thing to note is how little the law says about your duty. Provided your child is not at school you are bound by no other constraints.

Although s 1 of the Standards in Scotland’s Schools etc. Act 2000 affirms the right of children to be provided with school education by education authorities, this has no bearing on the right to home education. The same Act (s 60 and Schedule 2, para 3(5)) amends the 1980 Act by the addition of s 30(2). This subsection explicitly states that the right to school education is without prejudice to the choice afforded a parent by s 30(1) of the 1980 Act.

The role of the education authority

Unless you are taking your child out of a state school (see below), you don’t have to tell the education authority you are educating ‘by other means’; but once they know about you they are entitled to investigate. Usually this should just be a matter of checking up informally on your arrangements.

Many people educate their children at home with the full cooperation of the education authority. But sometimes conflicts develop. The authority have a duty to take action if they are ‘not satisfied’ that you are educating your ‘school age’ child properly. The formal steps they should take are laid down in s 37-41 of the 1980 Act, summarised here for reference:

1. They serve you with a notice giving you at least a week to provide whatever information they ask for about your arrangements. You can choose whether to do this in person (with or without the child) or in writing.
2. If you fail to satisfy them either that you are educating properly or that you have ‘reasonable excuse’ for not doing, they must make an ‘attendance order’. But before they do this they must consider any views you have expressed about the school you want your child to go to.
3. They serve you with an attendance order requiring you to send your child to the school named in it.
4. Once the order is served, you have two weeks to appeal to the sheriff, who may confirm, vary or annul it.
5. You can ask the education authority to revoke the order because you have made alternative arrangements (including arrangements for home education). (Alternatively you can ask them to amend it by substituting another school which has agreed to accept your child.)
6. If they won’t do this, or if they fail to decide within a month, you can appeal to the sheriff.
7. If you don’t comply with the order you can be taken to court, but you won’t be guilty if you can show that you have a ‘reasonable excuse’. (Under s 44(1), whether it convicts you or not, if the court finds that there was irregular attendance without reasonable excuse it can refer the case to the local authority reporter. See below.)

Withdrawing your child from school

How do you go about withdrawing your child from school? Section 35(1) of the Act provides that:

Where a child of school age who has attended a public school on one or more occasions fails without reasonable excuse to attend regularly at the said school, then, unless the education authority have consented to the withdrawal of the child from the school (which consent shall not be unreasonably withheld), his parent shall be guilty of an offence against this section.

This suggests that the safest course of action is to seek the education authority’s consent while your child is still going to school.

But experience to date shows that authorities are very reluctant to give their consent in this situation, and you could be kept waiting indefinitely. So can you begin to educate at home in the meantime?

Education Otherwise have more details about this on their site Click Here where they have spoken to a Barrister to see if there is a bit more clarity to this issue.

Even if you take your child out of school before obtaining the authority’s consent, you would be wise to write to them to explain what you are doing. Otherwise they will be more likely to embark on the formal truancy procedure (see below). But if they do start this procedure, they may still accept evidence of suitable ongoing home education as sufficient explanation of the child’s absence.

If they don’t accept your explanation they can take you to court for irregular attendance. You will then need to convince the court in turn that:

1. you were providing suitable education for your child; and
2. this constitutes reasonable excuse for irregular attendance.

Irregular attendance

If the education authority think you have failed to see that your child attends regularly, they are required by s 36 of the Act to serve you with a notice giving you at least 48 hours to explain the child’s absence in person (with or without the child). If you are unable to satisfy them that you have a reasonable excuse, they may either prosecute you straight away or warn you and wait for up to six weeks before deciding whether to prosecute or not. In the latter case they can make an attendance order. (Before they do this they must consider any views you have expressed about the school you want your child to go to. The rest of the procedure is set out in points 3-7 above, under ‘The role of the education authority’.)

Whether they prosecute you or not, the education authority may refer your child to the local authority reporter (see below). Likewise (under s 44), if you are taken to court, and if the court finds there was irregular attendance without reasonable excuse, it may refer the case to the reporter regardless of whether it convicts you as well. Alternatively the court may itself make an attendance order.

"Reasonable excuse"

This concept appears in the Act in connection with both failure to educate and irregular attendance. ‘Reasonable excuse’ can be any of the following (s 42):

• No school within ‘walking distance’ will educate the child free of charge, and the education authority have made no arrangements for travel, boarding or tutoring.
• The child is ill. (In this case the education authority have the right to insist on medical examination.)
• There are other circumstances constituting a reasonable excuse in the opinion of the education authority or the court.

If you have applied for an attendance order to be revoked or amended, this is not in itself a reasonable excuse for failing to attend the school named in it.

Children’s hearings

As a parent you can be prosecuted for two offences under the 1980 Act. One is failing to comply with an attendance order (s 41); the other is failing to secure regular attendance (s 35). But whether they prosecute you for irregular attendance or not, the education authority may refer your child to the local authority reporter. And whether or not it convicts you of either offence, if a court finds that there was irregular attendance without reasonable excuse it can also refer the case to the local authority reporter. This is not likely to happen very often, but the possibility is there, and the following brief summary is given for reference. If your child is referred to the local authority reporter you would be well advised to seek legal advice if you have not done so already.

Under s 39 of the Social Work (Scotland) Act 1968, the reporter may

1. decide that no further action is needed; or
2. refer the child and family to the local authority for advice, guidance and assistance; or
3. conclude that conditions are met whereby your child seems to need compulsory care. (One of these conditions is irregular school attendance without reasonable excuse.)

In the third of these cases the reporter must get a report from the local authority and convene a hearing before the children’s panel, which you and your child must normally both attend (s 40-41).

The procedure at children’s hearings is set out in s 42-44 of the Act. The chairman starts by explaining the grounds for referral. (If you or your child do not accept them, the reporter must apply to the sheriff for a decision on whether they exist. The chairman must tell you about this.) After considering the report and any other evidence, the panel can decide

1. that no further action is needed; or
2. to adjourn pending further investigation (- this could entail taking the child away for assessment); or
3. to make a supervision requirement (i.e. a residential or non-residential care order).

Under s 48-50 you have three weeks to appeal to the sheriff against the panel’s decision, and where a supervision requirement has been made you can apply to the panel for the requirement to be suspended pending your appeal. After that you have a further four weeks to appeal against the sheriff’s decision to the Court of Session on a point of law. Supervision requirements must be reviewed at least once a year, and may be reviewed after a shorter period if you or your child ask for it.

Special educational needs

Education authorities have a duty to identify children with ‘pronounced, specific or complex special educational needs such as require continuing review’. To do this they must first carry out an assessment. If the assessment shows that the child’s needs fit the above definition, they must then open a record of needs (1980 Act as amended, s 60-62).

In making an assessment the authority must obtain advice by means of:

• a medical examination (at which the parent has the right to be present);
• a psychological examination; and
• a report from one of the child’s teachers.

If the authority want to assess your child, they must write and ask you to present the child for examination. When they do this they must:

• give you basic information about the assessment procedure;
• allow you at least three weeks to write back with your own views on the child’s needs and how they should be met; and
• give you the name of an officer who can provide advice and further information.

(If you fail to present your child for examination without reasonable excuse, they must write again requiring you to do so. After that, you can be prosecuted if you still don’t comply, but the authority’s duty to carry out an assessment comes to an end.)

In deciding whether to open a record of needs, the education authority must consider not only the specialist advice obtained in the course of carrying out the assessment, but also any other relevant evidence, including your own views.

• They must then write and tell you straight away what they have decided and why.
• If they have decided to open a record, they must also send you a draft, giving you two weeks to comment on it.
• In drawing up the final document they must take your views into account.
• They must tell you what they decided to put into it.
• They must notify you of your right of appeal.

You can appeal against their decision to open a record as well as against its contents (s 63).

A record of needs must include:

• an assessment profile;
• a summary of the child’s impairments;
• a statement of the special educational needs arising from those impairments;
• a statement of the measures the authority proposes to take to meet these needs; and • where appropriate, details of the school the child is to attend.

After at least a year you can write and ask the education authority to review

• their previous decision to open (or continue with) a record of special educational needs; and
• the information in the record.

The authority can also carry out a review without being asked, if and when they think fit.

We fully intend to educate our child at home. Is the education authority entitled to open a record of needs?

There is no clear answer to this question. The education authority have to ‘record’ any child with ‘pronounced, specific or complex special educational needs such as require continuing review’. The child’s record of needs then defines the special provision the authority must make.

If you are providing for your child’s needs by other means, it seems pointless to go through the procedure of opening a record. You may be able to argue that the child’s needs do not require ‘continuing review’ in this situation. But if the authority are determined to go ahead with the procedure, they may not be easily convinced by this argument. And in particular you are obliged to present your child for examination if asked.

If my child has been ‘recorded’, can I still educate him or her at home?

The law is not very explicit on this point, but with respect to ‘school age’ children, s 62(3) of the amended Act says:

An education authority shall ensure that the provision made by them under this Act for a recorded child ... includes provision for his special educational needs.

This might be taken to imply that if the authority are not providing education for your child in the first place, they do not have to take the measures specified in the record of needs.

Can I withdraw my child from a special school in order to educate ‘by other means’?

If you feel you can meet your child’s needs more appropriately at home, there’s no reason why you shouldn’t consider doing so. However, to take your child out of any state school, you need the education authority’s consent.



© adders.org 2004



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