When Home Educators Might Be "Operating as a School"

I've been fielding questions lately about options around groups of parents bringing their children together to be taught by a teacher or teachers, or similar. If you are considering such an arrangement, the following is information that should be taken into consideration. 

Secretary may require application for registration as a private school

The key piece of legislation is from the Education and Training Act 2020, Section 213, which says:
"The Secretary may require the managers of a private entity that is not registered under section 214 to apply for its registration as a private school under that section if the Secretary considers that the entity is operating as a school, whether or not any exemption certificates issued under section 38 are held in respect of any or all of the students being taught there." 

This means that if the Ministry believes that a private group is operating in a way that fits the legal description of a private school, even though the students involved hold homeschooling exemptions, they can require that group or organisation to apply for registration as a private school. 

The definition of a private school

The description of what constitutes a private school is taken to be the criteria for registration of a private school as set out in Schedule 7 of the Act:
The criteria for registration as a private school are that the school--
(a) has premises that are suitable, as described in clause 3; and
(b) usually provides tuition for 9 or more students aged 5 years or over but under 16 years; and
(c) has staffing that is suitable to the age range and level of its students, the curriculum taught at the school, and the size of the school; and
(d) has equipment that is suitable for the curriculum being delivered or to be delivered at the school; and
(e) has a curriculum for teaching, learning, and assessment and makes details of the curriculum and its programme for delivery available for parents; and
(f) has suitable tuition standards, as described in clause 5; and
(g) has managers who are fit and proper persons (as described in clause 6) to be managers of a private school; and
(h) is a physically and emotionally safe place for students.

Further Ministry notes about homeschoolers/private schools

The Ministry has an internal document called the Home Education Policies and Procedures Manual, published in 2018. This document guides regional staff on processes related to home education. I obtained a copy under the Official Information Act shortly after it was published. While it has not yet been updated (to my knowledge) to reflect the new 2020 Act, the principles remain the same. In respect to home educators operating as private schools it notes the following key points:

• "It is illegal for home educators to form a school. However, many home educators meet together on a regular or semi-regular basis. A parent has not necessarily relinquished responsibility for their child's learning if they are being home educated in these groups.
• These home educators could be an extended whanau or large family who are not trying to form a school. However, large families or extended whanau should be advised that if they were to teach children from other families they could be in breach of (Section 213).
• The larger and more organised a group is (especially if they teach nine or more children) and the less responsibility parents have for their children's education, then the more likely it is that a group would need to register as a school. 
• Whether there are nine or more "students"  is not the only factor to consider when determining if a group is  operating informally or as a registered school. For example, if a group of six children from five different families are being taught together several days a week at a specified location by a single adult using planned lesson material this can be regarded as a school. 
• In contrast, an indeterminate group of home educating parents meeting for three mornings a week delivering educational programmes to their children does not necessarily constitute a school. 
• Similarly, a Sunday school run by home educating parents is probably not a school either under Section 213 even if it had more than 100 children or young people attending. This is because it is restricted in scope and, though regular, is in session for only a small period once per week. 
• Other factors that may contribute to an assessment that a home educator group is in fact a "school" included whether they are or there is:

1. Advertising
2. Taking on a formal structure or name
3. Hiring a site or establishing a substantial "school" building rather than simply meeting in a convenient location
4. A lack of involvement or control on the part of parents
5. A timetable that resembles a typical school day - ie Monday to Friday for periods of six hours or more"

They go on to quote the criteria for a private school from the Act, then note that if a regional office becomes aware of home educator groups that may be operating in breach of Section 213, they should refer the matter to the national office who will seek legal advice on further action, and that:
"in the past the Ministry have asked large home educator groupings to cease operations immediately or seek provisional registration as a school. In the case of small groups, the Ministry should advise that the emphasis in these groupings should be on individual, rather than group, instruction." 

An example from the past

Quite a number of years ago, there was a small group of parents in one area who all decided to homeschool their children, using the same curriculum. They decided to have the children together 3 days a week, with a teacher (parent) overseeing them, and the children work at home with their own parents the other 2 days. When the number of children reached 9, the Ministry said they needed to register as a private school. To actually make this registration work (since they had to then meet ALL the criteria of a private school registration) was not entirely easy, but with the support of an MP it happened, and the small private school came into being. Over the years that followed, they first continued with the 3:2 model, then 4:1, until the school was eventually disbanded some years later. 

Of note: there was a planned curriculum, the parents were handing over supervision of their children for several days a week, and the numbers exceeded 9 before the Ministry saw it as a problem. Because they were using the same curriculum at "school" and at home, there was also consistency in what they were doing. You'll see why that is important below.

On the other hand....

I have had contact more recently with two separate people who WANTED to register and set up a small private school, but the Ministry told them they could not, because they didn't/wouldn't meet the criteria. 

In one case, an experienced teacher of a certain style curriculum wanted to make this available to a small group of children. When she attempted to register as a private school, the main two reasons the Ministry refused were:

• She did not have 9 or more students aged 6 and over (yet - a couple were only 5)
• The premises she wanted to use had a bathroom in a separate building that would also be accessible to other users of the greater site (ie not exclusive to the use of the "school")

The alternative for her was for the children to get exemptions, and still be taught by her as intended. 

In the other case, a parent wanted to set up a programme where the children would come together 3 days a week to be taught by teachers, and the other 2 days a week would have the freedom to be at home with their parents, working on alternative projects or learning according to what the parents wanted to do. This came out the family's personal experience and wanting to offer families the best of both worlds. The Ministry said they would not be able to meet the criteria  of a private school (as currently proposed) because:

• "A school that is only instructing 3 days out of 5 is likely to be assessed negatively as to whether it meets the registration criteria as the regularity of instruction would only be 60% of that of a comparable state school meaning it may not have suitable tuition standards. So the key question around this proposal is what is proposed to take place on the 2 days the students wouldn’t physically attend. If the school was still instructing (e.g. by remote means) then this might meet registration criteria for e.g. It would depend on what is proposed."

This second example contrasts with the group that WERE registered as a school in the section above, who were using the same programme in school and at home.

So, it seems that sometimes even if you want to be private school or the Ministry thinks you should be a private school, you may not meet the criteria and so not be able to register as a private school. While what I set out above is the initial criteria of what constitutes a private school, to actually register as a private school, one has to meet more detailed criteria set out in Schedule 7 of the Act. 

Funding and other considerations

Private schools are not fully funded by the Ministry - they are funded (usually) by the fees charged to parents. There is partial funding - the exact amount varies a bit by year and by age of students, but it's in the vicinity of $1100-$2300 per student per year. See HERE. If home educated students are part of a group which becomes registered as a private school, their exemptions would cease, just as they do with any school enrolment. 

​A registered private school has to meet a number of requirements, including reporting, ERO reviews, and now, vaccine mandates. 

NOT operating as a private school

Any parents considering forming a group and hiring someone to teach their children or leaving their children to the care and teaching of another person should carefully consider the criteria of a private school laid out in the above information and in the Act. 

Note that in the following circumstances, you should not be considered to be operating as a private school:

• Getting together as a group to do activities with the children, including, for example a specific class such as art class or a history class once a week. These are limited in scope and duration. 
• Getting together with one or two other families to teach and learn together part of the time - because all the parents remain involved and responsible for their children's teaching/learning. For example, one year our family and another (9 kids between us) met up one day a week to do science and some other activities together. The other mother and I took turns planning and delivering the lessons for the week, but we were both there and involved. Even if you did this for more days per week, you should not be considered a private school if the parents of each family unit remain directly involved in what is happening. 
• Getting the kids together to play or do some fun or sports activities, even if some of the parents do not remain present for the time. This is again, limited in scope and duration and is not handing over key teaching to someone else. 
• Hiring a tutor to deliver certain subjects to a small group one day a week or for several short sessions over the course of the week. Eg to hold a math class 3x week. Again, limited scope and duration. 
• Using an online platform for the children to be taught remotely for some classes - they remain in their own home under the supervision of their parents. 
• And, according to one of the examples above, possibly even having the kids taught as a group by one or two people 2-3 days a week, while doing other learning at home the rest of the days. 

Generally though, the key (but not only) things that the Ministry initially considers to determine whether home educators may be operating as a private school are:

• How many students there are (9 or more, though this number is not an exact requirement)
• Whether the parent is handing over teaching responsbility to someone else (and how much they're handing over)

Conclusion

Before setting up a group learning kind of situation for home educated children, consider the above information and whether your group might be considered to meet the criteria of a private school, and what that would mean for you and your group.