But once the exemption is granted, then what?
Note: The wording on the letter that comes with a certificate of exemption talks about ERO contacting parents and conducting reviews. This is there only because they might be called upon to do a review, as outlined below. They do not routinely do them.
Let's explore the ins and out, parental obligations, Ministry responsibility, and where ERO comes in. The relevant sections of the law are near the end of this post, for reference.
Ministry responsibility, and law vs policy
The law gives ERO the ability to review home educators, and it give the Ministry the ability to ask ERO to carry out a review. It also states that the Ministry cannot revoke an exemption without first considering the outcome of an ERO review.
What the law does NOT do is require the Ministry to regularly review home educators or in any other way follow up on their exemption & home education programme, nor specifically empower them to ask questions about the education programme of the exempt child after an exemption has been granted, except where they are gathering information when considering whether an exemption should be revoked.
Anything that a government department does in terms of its processes and procedures that is not explicitly set out in law is rather based on policy. Policies are the ways in which the law is interpreted and applied as decided within a department. Policies can be changed relatively easily. Laws required parliamentary process to be changed. Policies should always, always be within the boundaries and scope set by the law, but sometimes they drift beyond this (if so they can be subject to challenge and amendment). Laws are generally quite broadly worded, leaving room for policy to be developed around how they are applied.
The Ministry, at the directive of the then-government, ceased routine ERO reviews of home educators on the 30th June 2009. (For more detailed history and review statistics see HERE). Since then, they have provided funding for up to 35 reviews per year. That's review of up to 35 students, not 35 families, as they pay per-student that is reviewed. And how do they decide who will be reviewed in any given year? Their policy is that reviews are initiated only when/if the Ministry has some reason to believe they may need to check up on a family. In rare cases, this could be initiated by information from a government department, but for the most part this only happens as a result of what is known as the "complaints process." More on that shortly.
This kind of mindset has led to a number of ideas over the years. The most persistent one is some variation on this: "If we grant an exemption for little Johnny when he's 6 and he turns out to be an uneducated societal misfit when he's 16 it will be ALL OUR FAULT. Therefore we need assurance that Johnny will be ok."
And this, in the absence of routine ERO reviews, is what led to the policy of sending out 6 monthly declarations for parents to sign and return, on which parents affirm that their child has been "taught at least as regularly and well as.." for the last 6 months, and will be for the next 6 months (or insert start/stop dates). And because there is no legal basis for these declarations, they can't force parents to sign and return them. Thus the other policy - of linking the supervision allowance to the return of these declarations - it's the "carrot" to get most folk to do so. "You send us this piece of paper, duly signed, and we'll give you the allowance." We've been assured, you've been paid, everyone's happy. Or something like that.
But what if you don't care about the allowance and don't sign and return the form? Well, that's when they might act upon another policy. That is, since they haven't been assured via the declaration that little Johnny is still being taught as regularly and well, then they must have an "obligation" to investigate further, to ensure he is. This makes them "concerned" about Johnny's learning programme, and this is where the complaints process can also come in.
Investigating "Complaints" & "Concerns" = ERO (maybe)
Under current policy, since routine ERO reviews ended, they do this on a "complaints basis"- that is, if someone expresses a "concern" or makes a "complaint" to the Ministry suggesting that an exempt child is not being satisfactorily educated, then they investigate to determine whether or not that is the case.
Legally, they can immediately request an ERO review to make this determination, but as this process is sadly open to abuse by people just wanting to make trouble for the homeschooling family, the Ministry agreed to a NCHENZ request that they first talk to the family about the complaint and give them an opportunity to address what might be going on before deciding whether to initiate an ERO review, and this has become part of the process.
However, the way this is being interpreted and applied is not really what was originally agreed to. The NCHENZ request was both to ask the Ministry to investigate the source of the complaint to determine legitimacy, and so that if a family knew that there was someone with a personal axe to grind who might be making a nefarious complaint to the Ministry, this could be identified and an ERO review not pursued unfairly. This has mostly morphed instead into the Ministry asking families for an update on their learning programme so that they can decide whether there is likely to be an issue that warrants further investigation via ERO.
So, if the Ministry receives a complaint or an expression of concern about your children's home education programme, they will contact you to let you know, and ask you for an update on their programme. If the complaint expressed specific issues, they may ask you just to speak to those, or they could ask for a more general update. Either way, you have the right to see the original complaint before you respond, though any identifying information about the person complaining will be redacted. You can ask for this under the Privacy Act.
You then have the opportunity to put together such information as you feel is appropriate and submit it to the Ministry, who will then review it and decide if what you have provided satisfies them that your children are continuing to be taught "as regularly and well" - in which case they advise you of this and close the file - or not - in which case they request an ERO review, and advise you they have done so.
However, if a previous complaint did not result in an ERO review, and another one has been received, Ministry policy is generally to skip asking for an update and just refer to ERO.
The regional office that deals with exemptions for your area is the same one that would deal with the above process. However, they cannot on their own authority ask ERO to conduct a review - they must put in a request to the national Ministry office, who need to check everything is in order and confirm the request, and then order the review.
If this happens, then ERO would contact your family in due course, arrange a time to meet with you and conduct the review, advise you of the expected outcome, write a report on their findings, send you a draft copy to review and request amendment to if appropriate, before sending the final report to the Ministry. ERO reviews can take several hours, but result in reports that are typically less than 2 pages long. They always conclude with a statement that the child IS being or is NOT being "taught at least as regularly and well as in a registered school."
If the finding is that the child "is being taught as regularly and well as" then the Ministry will be satisfied and close the file, and the family's home education programme carries on. If the finding is that they are not, then what happens next depends on certain factors, including whether ERO suggested the family could meet the requirements with a few changes or some additional support, and/or whether the Ministry (and the family) are open to discussing how the family might improve their programme to meet the requirements and so give them another chance. Otherwise, they will enact the law to revoke the exemption/s.
I will write more detailed posts separately about responding to a complaint-based info request, and preparing for an ERO review.
Once the exemption is granted, the parent continues to assume full legal and moral responsibility to ensure their child is educated at least as well (and regularly) as they would be in a school. Many parent's personal bar is a lot higher than "as in a school." Yes, this is a responsibility, but it's also a privilege and a right - the right to decide how and where your child will be educated, the privilege of being right there with them to see the learning happening and to be a part of it all alongside your child.
Part of being responsible for your child's education is, in some appropriate way, self-reviewing how things are going from time to time - considering what the next steps in your child's learning are, how you will facilitate those things, whether additional resources are needed, whether your child is progressing appropriately etc. Alongside of this is a need to record progress somehow. Now, there are no rules or laws about how you do any of this - it's up to you. Whatever you decide about the details, the purpose of this is primarily to serve you and your child by supporting their learning journey and helping you to manage things more easily. There are many great ideas to be gleaned from other experienced home educators about how they do this; what you choose to put in place should not be so burdensome that it unnecessarily detracts from the time you need to actually engage with and teach your children.
One of the big pluses of maintaining some kind of on-going record is that in the event you are asked for information by the Ministry or have an ERO review, it will be so much easier for you to pull things together in response or preparation. Another plus is that when they're grown and gone you'll enjoy looking back at those reminders and memories, plus when some other parent (or maybe your own children when they want to homeschool their children) asks you how you did things, or what you used etc, the answers will be at your fingertips! (Believe me, those things you think you will remember in vivid detail often are not so easy to recall!)
NCHENZ has some helpful info on planning and record keeping, as well as examples from two families.
So, the most significant responsibility of a home educating parent is the daily and on-going teaching, guiding and supporting of your learner, with all that that implies including resourcing, reviewing progress, maintaining appropriate records that serve you etc. Your other responsibilities include:
- Signing and returning the 6 monthly declarations
- Being able to give the Ministry an update if requested
- Being able to provide ERO with evidence of your child's learning programme and progress if requested. ERO ask questions, but also look for evidence to support your answers. Which is where records of some kind and/or samples of work come in.
The Legal Stuff
I've written a more detailed post regarding all sections of the Act that may be relevant to home educators HERE; for the purposes of this post, I'll quote two ,main parts:
Section 38 Long-term exemptions from enrolment
(1) An employee of the Ministry designated by the Secretary for the purpose (a designated officer) may, on application by a parent of the student, grant the parent a certificate that exempts the student from the requirements of section 35 if the designated officer is satisfied that the student--
(a) is to be taught at least as regularly and well as in a registered school; or
(b) is to be taught at least as regularly and well as in a specialist school or a special service (if the student would otherwise be likely to need special education).
(2) If a designated officer refuses to grant a certificate under subsection (1), the applicant may appeal to the Secretary, who, after considering a report on the matter from the Chief Review Officer, must confirm the refusal or grant a certificate.
(3) The Secretary’s decision is final.
(4) An exemption certificate granted under this section must state why it was granted.
(5) The Secretary may revoke an exemption certificate, but only if the Secretary--
(a) has made reasonable efforts to get all of the relevant information; and
(b) has considered a report on the matter from the Chief Review Officer; and
(c) is not satisfied under subsection (1).
(6) If the Secretary thinks any student to whom an exemption certificate applies would be better off if receiving special education, the Secretary may revoke the certificate and issue a direction under section 37.
(7) An exemption certificate expires when the person to whom it applies turns 16 years or enrols at a registered school, whichever occurs first.
(8) A certificate continues in force until it is revoked or expires.
Subsection 1 is the basis on which the application is made and the exemption granted - that the child will be "taught at least as regularly and well as" they would be in a school.
Subsection 2 gives parents the right to appeal a decision made under Section 1
Subsection 5 gives the grounds on which an exemption may be revoked, requiring 3 things: that they've made a reasonable effort to collect information, considered an ERO report, and based on these things, are not satisfied that the obligations of Section 1 are being met.
Subsection 6 gives the only other grounds for revoking an exemption.
Subsection 7 states the only grounds on which an exemption expires.
Subsection 8 shows that an exemption, once granted, remains in force until or unless something from Sections 5-7 occurs.
Section 462-473 sets out the powers of the Education Review Office (ERO) in respect of home educators. It's quite lengthy, so I'll just include the most relevant snippets here - for more detail see the Act or my longer legal article HERE.
Provisions concerning students with enrolment exemption
466 Functions of Chief Review Officer/ The Chief Review Officer--
(a) may carry out reviews (which may be general or in relation to particular matters) of the education services provided to persons exempted from the requirements of section 35, and must carry out the reviews when directed by the Minister to do so; and
(b) must administer the preparation of reports to the Minister on the undertaking and results of the reviews; and
(c) must give the Minister any other assistance and advice that the Minister requires on the education services provided to persons exempted from the requirements of section 35.Compare: 1989 No 80 s 328A
468 Powers of review officers for purposes of section 466
(1) For the purposes of enabling any functions of the Chief Review Officer to be performed for the purposes of section 466, any review officer may, at any reasonable time and having given reasonable notice,--
(a) conduct inspections or inquiries:
(b) require a parent or other person to produce, and permit the review officer to make copies or extracts of, documents or information relating to--
(i) the education service the parent or other person provides; or
(ii) people to whom the education service is (or has been) provided:
(c) require a parent or other person to make or provide statements, in the form and manner that is reasonable in the circumstances, about any matters relating to provision of the education service provided by that parent or person:
(d) inspect the work of any person to whom the education service concerned is (or has been) provided:
(e) meet and talk with any person to whom the education service concerned is being provided.
(2) Nothing in this section confers on a review officer the power to enter any dwelling house without the consent of the owner or occupier.
Compare: 1989 No 80 s 328C
Section 466: while under this section ERO "may" review homeschoolers, they "must" do so when the Ministry asks them to, and currently that is the only time they do so.
Clause (c) is applied with the Ministry asks ERO for a report on an exemption application that was declined and is being appealed.
Section 468 sets out the powers of ERO officers when conducting a review, and is fairly self-explanatory. It's this section that requires them to "give reasonable notice" and gives them the right to: