The Schools Bill is currently heading towards the report stage in the House of Lords and includes the establishment of a register of children not in school. There is a lot of misinformation about this on social media and so here is our Education Policy Advisor, Becky Brooks' breakdown of what it actually means for you and your family:

Will it affect my family?

Which children will be included? 

What information will be included? 

Who will have access to the information? 

Who is responsible for ensuring eligible children are recorded? 

What will happen if I don’t register my child? 

What should I do now? 

The register of children not in school: will it affect my family? 

The ‘Schools Bill’ (affecting England only), currently heading towards report stage in the House of Lords, introduces sweeping new powers including the establishment of a register of children not in school.  

The proposed register has been largely spoken about in terms of elective home education, but it will also bring into scope some children who are being educated in alternative provision. We believe it is something that every parent of a school-aged child should be aware of. 

The new regulations relating to children not in school are covered in Part 3 of the Bill (available online here) and explained further in the accompanying factsheet produced by the Department for Education (DfE). 

This Bill is not yet law and is still subject to debates and amendments. All the information below relates to the contents of the Bill and associated factsheet as they stand in July 2022. 

Which children will be included on the register? 

The Bill creates a duty for local authorities to create a register of children in their area who are of compulsory school age and are deemed to not be in school – this could mean that they are not a registered pupil at any school, or they are a registered pupil but they are accessing part or all of their education otherwise than at school and are therefore absent for some of all of the time when they would normally be expected to attend the school. 

At face value, this broad description could be taken to mean that, at various times, a considerable number of children would fall into the scope of the register, including many that are not electively home educated. 

The accompanying factsheet for this section of the Bill clarifies that some children who are flexi-schooled as well as those that are not on roll in any school will be in scope of the register. Children who are registered at a school but attend unregistered alternative provision arranged by the local authority will also be included. However, if the school itself has arranged the unregistered alternative provision, the child will not be included on the register as the school is deemed to be responsible for ensuring that the educational provision is suitable. 

The factsheet states that it is not the intention for children who are educated away from school infrequently or irregularly to be included in the register. So, for example, children attending weekly swimming lessons off the school site or attending school trips and educational visits would not be included on the register. 

What information will be included on the register? 

The Bill makes provision for the register to include the child’s name, date of birth and home address, as well as the name and home address of each parent, details of the means by which the child is being educated, and “any other information that may be prescribed” or that “the local authority consider appropriate”. 

The “any other information” clause is obviously open to interpretation. The accompanying factsheet indicates that regulations will specify that ethnicity, sex, reason for home education, SEND and EHCP status, and whether the child is a Child in Need, a Looked After Child or has a Child Protection Plan must also be included, but leaves the way open for other categories of information to be added after implementation of the register in response to local authority requests. There will be no further public consultation on the types of information that can be requested. 

Who will have access to the information on the register? 

The standard format of the registers and the regulations around how the information can be shared will be decided by the Department of Education. Local authorities will have a duty to provide information contained in the registers to the Secretary of State on request – this includes aggregated information covering the whole local authority, as well as information relating to individual children. 

If an eligible child moves to another local authority area, the previous local authority must provide the new local authority with information from the register. 

The Secretary of State will also be able to make regulations about other circumstances in which the information on registers can be shared. For example, it will likely be possible to share information with other persons both within and outside the local authority (including the police, Ofsted, and the NHS) for the purposes of promoting the education, safety or welfare of the child, or another child (such as a sibling).  

The accompanying DfE factsheet states that information will only be shared with prescribed external persons, and non-prescribed persons will not be able to access the information. There will be no further public consultation on the use of this power. 

Who is responsible for ensuring eligible children are recorded on the register? 

Parents will be responsible for informing the local authority that their child is eligible for the register, for providing the specified information, for providing updated information as necessary, and for informing the local authority if the child ceases to be eligible. 

When a child becomes eligible for inclusion on the register, the parent must contact the local authority and provide the basic information (names, addresses, details of education provision) within 15 days. If the local authority requests additional information, the parent has 15 days to provide it. If any of the information changes or the child ceases to be eligible, the parent has 15 days to notify the local authority of the change. 

In some circumstances, education providers will also have duties to report information to the local authority if they are providing out-of-school education to an eligible child “for more than the prescribed amount of time without any parent of the child being present….” Providers who fail to submit the information within the required time frame (15 days) may be liable for a fine which is likely to be initially set at £2,500. 

Neither the wording of the Bill, nor the accompanying factsheet clarify what would count as “the prescribed amount of time,” but the factsheet states that the intention is that this duty would apply to providers that are used for a substantial proportion of a child’s education and will not include settings such as Sunday Schools or sports clubs. Tuition centres are likely to be included in this duty. 

There will also be provision to exempt some providers that may fall within the scope of “the prescribed amount of time”. These exemptions might apply, for example, to museums offering extensive educational programmes, or groups of home educating parents taking turns to collaboratively educate their children. In all cases, this duty to provide information will only apply to educational activities where parents are not present. 

What will happen if I don’t register my child? 

Local authorities already have the power to issue School Attendance Orders (SAO) if they deem that a child is not receiving a suitable education. This Bill will also provide for issuing a preliminary notice of a SAO if parents do not respond to local authority requests for information for the register within 15 days or if they provide incorrect information. Preliminary notices must be issued by local authorities within 3 days of the event that triggers the duty to issue. 

Once a preliminary notice has been served, a parent will have no less than 10 days to satisfy the local authority – either by demonstrating the suitability of a child’s education or providing the required information – after which a SAO can be issued.  

SAOs will include the name of the school which the child is to attend. Before the SAO is issued, a ‘school nomination notice’ will be served. The local authority will nominate one or more schools and parents will subsequently have the opportunity to state a preference (if more than one school is offered) or apply for a child to be admitted to a different school (including an independent school). If the child is admitted to a different school, that school should be named on the SAO. If the parent wishes the child to attend a fee-paying school with the fees paid by the local authority, they will be able to apply to the local authority to request this. If the local authority agrees, this school will be named on the SAO. 

If a child has an EHC plan that specifies the name of a school, then that school must be named on the SAO. If the EHC plan does not specify a school, then the EHC plan must be updated to specify a school and that school should be named on the order. If the school named on the EHC plan is subsequently changed, the SAO must be updated to reflect this. 

Once a SAO order has been issued, it will remain in force until either the local authority revokes it, or the child reaches the end of their compulsory schooling. It will be an offence for parents to remove a child from the school named on the SAO unless the SAO is amended (for example because the child is moving to secondary school) or revoked. The penalty for a breach would be a fine of not more than £2,500 or a term of imprisonment of up to 3 months, or both. 

What should I do now? 

This Bill is currently with the House of Lords and will need to go to the House of Commons for further consideration before it becomes law. It is likely that this will not happen until after the summer break so there is still time to write to your MP about any concerns you may have about the Bill’s implications. 

Adoption UK research among adoptive home educating families has consistently demonstrated that the majority of families in this position have come to home education as a last resort because their child’s needs could not be met in school. Many have children with additional needs, mental health difficulties and significant challenges arising from a legacy of trauma and disrupted attachments. Most (80%) would prefer their child to be in a school if the right school could be found. 

Since the register of children not in school was first proposed, Adoption UK’s position has been that a register will do nothing to address the fact that many care-experienced children and young people are being failed by an education system that does not fully understand their needs and which lacks expertise and resourcing to effectively meet them. The Bill as it currently stands opens the way for punitive approaches to families which are already struggling, while offering little in the way of guaranteed support for these families. Adoption UK has responded to the consultation stage of the Bill and will continue to make representations to DfE officials on behalf of our members. 

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