Westminster City Council (17 017 387)

Category : Education > Alternative provision

Decision : Not upheld

Decision date : 08 Oct 2018

The Ombudsman's final decision:

Summary: Mr F objects to the Council’s enquiries about his daughter, D’s education. He believes he provided sufficient evidence she receives a suitable education. He considers the Council’s threat of prosecution was unjustified. There is no fault in the Council’s actions. The Ombudsman cannot question decisions taken without fault.

The complaint

  1. Mr F complains about his dealings with the Council in respect of his daughter, D’s education. In particular, Mr F complains about:
    • the Council’s involvement when it had no reason to believe D was not receiving suitable education;
    • the Council’s evaluation of the suitability of the education D receives at home;
    • the Council’s request to meet D or for evidence from a professional involved in her education, both of which Mr F considers unjustified;
    • his protracted dealings with the Council and its threats of legal action which Mr F believes amount to harassment;
    • the Council’s decision to take further action when it did not have sufficient evidence to make a decision about the suitability of D’s education.
  2. Mr F complains about the Council’s decision to serve a School Attendance Order.
  3. And, while he believes the Council did not have grounds to serve the Order, Mr F complains about the Council’s decision to revoke the Order. He believes the Council accepted inadequate evidence about the quality of D’s education so as not to have to proceed with prosecution.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered:
    • information provided by Mr F;
    • information provided by the Council;
    • the Council’s Elective Home Education Policy (March 2015);
    • Elective Home Education. Guidelines for Local Authorities issued by the Department for Children, Schools and Families (DCSF) in 2007 and updated in 2013;
    • Revised statutory guidance for local authorities in England to identify children not receiving a suitable education issued by the DCSF in January 2009; and
    • the Education Act 1996.
  2. I invited Mr F and the Council to comment on my draft decision.

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What I found

  1. Mr F has chosen to make his own arrangements for his daughter, D’s education rather than send her to school. The Council learnt that Mr F was educating D at home in December 2016 and began to make enquiries about the suitability of the education Mr F provided.
  2. The Council’s enquiries, and its subsequent decisions, are the subject of Mr F’s complaint. Mr F believes the Council is only entitled to make enquiries, or take action, if it has reason to believe a child is not receiving suitable education. He has provided evidence of D’s education. However, the Council has a policy that a parent’s written or verbal description of provision alone cannot satisfy the Council that a child is receiving, or benefiting from, the provision described. The Council invites parents and their children to meet with an officer so the Council can assess the provision. Alternatively, the Council will consider evidence from an educational professional who knows the child.
  3. Mr F believes he has provided evidence D receives suitable education and therefore believes the Council’s intervention to be unjustified. Further, he objects in principle to the Council’s policy that a parent’s evidence alone is never sufficient. He declined the Council’s invitation to meet with D.
  4. Unable to satisfy itself D was receiving suitable education, the Council issued a school attendance order that required Mr F to enrol D at a local secondary school. Following media coverage of the case, a former neighbour of Mr F contacted the Council and said he was willing to confirm the quality of education D received. The Council accepted the former neighbour’s statement and withdrew the school attendance order.

Elective home education: the law

  1. Parents must ensure their children receive suitable full-time education. Most do this by sending their children to school. However, while education is compulsory, going to school is not. Parents may choose to make their own arrangements for their children’s education rather than send them to school. This is known as elective home education.
  2. Councils have a duty to make arrangements to identify children not receiving education. (Education Act 1996, section 436A)
  3. In doing so, councils must have regard to guidance issued by the Secretary of State. Revised statutory guidance for local authorities in England to identify children not receiving a suitable education, issued by the (then) Department for Children, Schools and Families in January 2009, is statutory guidance issued by the Secretary of State under s436A of the Education Act 1996. Paragraph 87 says,

“Section 436A of the Education Act 1996 requires local authorities to make arrangements to establish (so far as it is possible to do so) the identities of children who are not pupils at schools and who are not otherwise receiving suitable education. In order to comply with this duty local authorities need to make arrangements which will as far as possible enable them to determine whether any children who are not pupils at schools, such as those being educated at home, are receiving suitable education. In order to do this local authorities should make enquiries with parents educating children at home about the educational provision being made for them. The procedures to be followed with respect to such investigations are set out in the EHE Guidelines, 2.7-2.11 and 3.4 -3.6.”

  1. Confusingly, the EHE Guidelines (Elective Home Education, Guidelines for Local Authorities issued by the DCSF in 2007 and 2013) say at paragraph 2.6 that the duty under s436A to identify children not receiving education does not apply to children who are being educated at home. The EHE Guidelines are not, however, statutory guidance issued by the Secretary of State.
  2. The EHE Guidelines say,

“Contact with parents and children

3.4 Local authorities should acknowledge that learning takes place in a wide variety of environments and not only in the home. However, if it appears that a suitable education is not being provided, the local authority should seek to gather any relevant information that will assist them in reaching a properly informed judgement. This should include seeking from the parents any further information that they wish to provide which explains how they are providing a suitable education. Parents should be given the opportunity to address any specific concerns that the authority has. The child should also be given the opportunity, but not required, to attend any meeting that may be arranged or invited to express his or her views in some other way. Parents are under no duty to respond to such requests for information or a meeting, but it would be sensible for them to do so.

3.5 If it appears to a local authority that a child is not receiving a suitable education it may wish to contact the parents to discuss their ongoing home education provision. Contact should normally be made in writing to the parents to request further information. A written report should be made after such contact and copied to the parents stating whether the authority has any concerns about the education provision and specifying what these are, to give the child's parents an opportunity to address them. Where concerns about the suitability of the education being provided for the child have been identified, more frequent contact may be required while those concerns are being addressed. Where concerns merit frequent contact, the authority should discuss them with the child's parents, with a view to helping them provide a suitable education that meets the best interests of the child.

3.6 Some parents may welcome the opportunity to discuss the provision that they are making for the child's education during a home visit but parents are not legally required to give the local authority access to their home. They may choose to meet a local authority representative at a mutually cconvenient and neutral location instead, with or without the child being present, or choose not to meet at all. Where a parent elects not to allow access to their home or their child, this does not of itself constitute a ground for concern about the education provision being made. Where local authorities are not able to visit homes, they should, in the vast majority of cases, be able to discuss and evaluate the parents' educational provision by alternative means. If they choose not to meet, parents may be asked to provide evidence that they are providing a suitable education. If a local authority asks parents for information they are under no duty to comply although it would be sensible for them to do so. Parents might prefer, for example, to write a report, provide samples of work, have their educational provision endorsed by a third party (such as an independent home tutor) or provide evidence in some other appropriate form.”

  1. There is a formal process councils may follow if these attempts to establish whether a child is receiving suitable education fail. This is set out in s437 of the Education Act. A council may issue a notice requiring a parent to provide evidence a child is receiving suitable education. If the parent fails to satisfy the Council, it may issue a school attendance order requiring the parent to enrol the child at a named school. Councils can prosecute parents who do not comply with a school attendance order.

Complaint 1: the Council’s enquiries

  1. Mr F has provided the Council with considerable evidence of the education D receives at home. He complains the Council has not considered the samples of D’s work and, in light of the guidance quoted above, is unreasonable in refusing to accept his evidence and insisting on meeting D. He objects in principle to the Council’s policy that a parent’s evidence alone is insufficient to satisfy the Council a child is receiving a suitable education and the Council must either meet the child or be provided with evidence from an education professional. Further, Mr F believes the Council has no basis for its intervention since it has never expressed any concern about D’s education. He believes the Council only has grounds to take action if it has reason to believe D is not receiving suitable education.
  2. The EHE Guidance makes it clear that a parent is not legally required to give the Council access to their home or their child.
  3. While a parent has no obligation to allow access to their home or child and is under no duty to comply with a council’s requests for information, the guidance says ‘it would be sensible for them to do so’. Should a council not be satisfied a child is receiving suitable education, it may serve a notice under s437 of the Education Act 1996 which could, if the Council continues not to be satisfied, lead to a school attendance order and, if the parent does not comply, prosecution.
  4. While Mr F is correct in many of his observations concerning a parent’s rights and a council’s powers, the Education Act makes it clear that:
    • the burden of proof that a child who is not registered at a school is receiving suitable education falls on the parent; and
    • the decision as to whether a child is receiving suitable education is for the Council.
  5. Westminster City Council prefers to meet with home-educated children. However, it will also accept evidence from an educational professional who knows the child. I consider this complies with the recommendation in the guidance that a council should, in the vast majority of cases, be able to evaluate the parents’ educational provision by alternative means where parents choose not to allow access to their home or child.
  6. Taking each of Mr F’s complaints in turn, my findings are as follows:
    • I do not uphold Mr F’s complaint that the Council had no reason to believe D was not receiving suitable education and therefore no justification for intervention since the decision as to whether a child is receiving suitable education is a decision for the Council alone;
    • I do not uphold Mr F’s complaint about the Council’s evaluation of the suitability of the education D receives at home for the same reason;
    • I do not uphold Mr F’s complaint about the Council’s request to meet D or for evidence from a professional involved in her education, both of which Mr F considers unjustified, because this complies with Government guidance;
    • I do not uphold Mr F’s complaint about his protracted dealings with the Council and its threats of legal action which Mr F believes amount to harassment since the Council was following the process set out in legislation and Government guidance. The protracted nature of Mr F’s dealings with the Council was the result of Mr F’s resistance to, and wish to challenge, the Council’s policy, not any fault by the Council; and
    • I do not uphold Mr F’s complaint about the Council’s decision to take further action when it did not have sufficient evidence to make a decision about the suitability of D’s education since the Council was following the procedure set out in law.

Complaint 2: the Council’s decision to serve a School Attendance Order

  1. Mr F complains about the Council’s decision to serve a School Attendance Order. He questions how the Council decided it would be in D’s best interests to enrol at a local secondary school.
  2. The Council’s decision to serve a school attendance order was the result of the stalemate that followed the disagreement between Mr F and the Council about evidence of the suitability of D’s education. The Council followed the procedure set out in law for councils when a parent fails to satisfy the Council a child is receiving suitable education. Mr F questions whether the Council had evidence D was not receiving suitable education to justify its action. The law makes it clear that the decision about the suitability of a child’s education rests with the Council.
  3. Should a Council and a parent not reach an agreement, and the Council prosecute the parent, a court would decide whether a council’s actions were justified. The parent would have an opportunity in court to prove they were providing suitable education. The Ombudsman can only consider whether the Council has followed the correct procedure. I cannot evaluate the education Mr F provides.

Complaint 3: the Council’s decision to revoke the order

  1. The Council decided to revoke the school attendance order following contact from a former neighbour who was willing to confirm the quality of education D received. The former neighbour works in further education.
  2. Mr F believes the Council was wrong to accept assurances from the former neighbour who had no recent contact with Mr F or D. He alleges a Council officer dictated a report to the former neighbour and may have breached his family’s confidentiality by discussing D’s education with him.
  3. The Council sent me a copy of its email communication with the former neighbour. The exchange is brief. There is no evidence the Council disclosed confidential information relating to Mr F or D. The former neighbour contacted the Council following media coverage of Mr F’s dispute with the Council.
  4. The former neighbour makes it clear he has no recent knowledge of D’s education. Nevertheless, the Council decided he provided the assurance it was seeking about D’s home education. The Council decided to withdraw the school attendance order. The Council, not the Ombudsman, must evaluate the evidence and decide whether D is receiving suitable education. The samples of D’s work Mr F provided, and the contact with a former neighbour, satisfied the Council she was. This is a decision the Council is entitled to take and there are no grounds for the Ombudsman to question it.

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Final decision

  1. The decision as to whether a child who is not registered at a school is receiving suitable education is for the Council. The burden of proof falls on the parent. Westminster City Council prefers to meet with home-educated children. However, it will also accept other evidence, such as endorsement by a third party, where a parent chooses not to allow the Council to meet the child. This complies with Government guidance which says that when they are unable to meet the child, councils should be able to assess a child’s education by alternative means ‘in the vast majority of cases’.
  2. Mr F believes his report and the samples of work he provided were sufficient. The Council did not. This is a decision the Council is entitled to make and there are no grounds for the Ombudsman to question it.
  3. When Mr F and the Council were unable to reach an agreement about D’s education, the Council decided to serve a School Attendance Order. The Council followed the procedure set out in law. There are no grounds for the Ombudsman to criticise the Council.
  4. The Council revoked the School Attendance Order following contact from Mr F’s former neighbour. Mr F believes the Council was wrong to accept his former neighbour’s assurances. This is a decision the Council is entitled to take and there are no grounds for the Ombudsman to question it.
  5. I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman

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