As part of an online conversation with Neil T, I asked the following question;
Did Ian Dowty or someone else say that ‘convincing a reasonable person’ is a requirement of a court, so should not be a requirement of normal informal enquiries?
Neil responded with the following and has given me permission to share;
What Ian has pointed out is that the standard of proof a court requires of ‘suitable education’ is what would ‘convince a reasonable person on a balance of probabilities only’, and that needs to be used as a complete statement, not truncated as you have doubtless inadvertently done, and LEAs almost universally deliberately do, because they don’t like the last bit.
This is a description of the lesser standard of proof a court may require, and what applies to education and carrying out their s437 duty. The higher standard which does not apply, is ‘beyond reasonable doubt’. It should be evident from this distinction that while the latter standard might justify monitoring and inspecting in order to ‘ensure’ suitable education, the lesser standard cannot support that.
He has also pointed out that no LEA can sustain demands that a court would not impose, and that since a court will accept evidence presented in any way or form by the defendant so long as it is reasonable, so also must an LEA. That is why it cannot insist on its preferred procedures, and to present them to the parent in a way which deceives the parent into believing that this is the law with which they have to comply or they commit an offence, is to misrepresent the law and their powers.
As the 2007 guidance so clearly points put there is no statutory basis for monitoring the quality of the education. They have no solid ground to stand on whatsoever in this, and it is therefore safe to refuse them, provided you do so in such a way as to make the ignorant despots realise this.
What you are probably thinking of was Ian pointing out that initial enquiries, to see if it appears…. are not the same as the formal enquiries that they may make if it does appear that there is no suitable education. Then you do have to ‘satisfy’ them in order to prevent them from going ahead with issuing an SAO, but still the lesser standard of proof applies, so if you just say more than Donaldson’s ‘mere’ assertion ‘we HE.’, and say a little about what you do, your philosophy, if you can describe what you do in such terms, then provided that this sounds reasonable their business with you is finished.
Two myths have grown up and hardened into a perception of law since Ian first spoke on this subject to us. The first is that there is something very specifically defined as ‘informal enquiries’, and Ian has distanced himself from that phrase, preferring ‘initial enquiries’, and the second is the idea that you must create an ‘education philosophy’ statement and send it to them.
Ian recommended that we do this as a way of dispelling the s437 negative ‘appearance’, and also as a way of ensuring that any judgment the LEA might make as to the efficiency of the education must be based on your philosophy, they cannot simply assume you are doing state schooling at home and apply their standards, but they are more likely to make this assumption if you don’t reorientate them.
While I think this is good robust advice, our experience of dealing with our LEA was different and we never gave them any information about what we did simply because they lost interest in us by the time I had forced an apology out of them for their disgraceful doorstepping, lies and harrassment. However, by that time what they did know about us was that we most certainly knew our rights and duties better than they, and so it could hardly have appeared on that basis that we would not be suitably educating, so without any information whatsoever about our provision I still maintain that their duty was properly discharged. It is dispelling any negative ‘appearance’, not giving some specific information about the provision which the law demands, but doing so may be one of the ways.