Summary: Ms Y complains about the approach taken by the Council when making enquiries about the elective home education which she provides to her two daughters. The Ombudsman finds no evidence of procedural fault. The Council was entitled to make enquiries of Ms Y following a referral it received about the suitability of the education. The Council therefore had a duty in law to establish whether the education Ms Y provides is suitable.

The complaint

1. The complainant, whom I will call Ms Y, complains about the actions of the Council’s Home Education Adviser, which she says amount to unlawful harassment.

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What I have investigated

2. I have investigated whether the Council’s approach was in line with the law, guidance and its own policy. If there is evidence of procedural fault, I will consider the impact on Ms Y. We call this injustice. I will not consider whether the Council’s actions amount to harassment or any other unlawful behaviour for the reasons explained at the end of this statement.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. During my investigation I attempted to call Ms Y to discuss her complaint. I then had email contact with Ms Y and considered any information she provided.
6. I made enquiries of the Council and considered its response.
7. I consulted the relevant law and guidance around Elective Home Education (EHE) referenced where necessary in this statement.
8. Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

9. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
10. There are no specific legal requirements for the content of home education; it does not need to include particular subjects, follow the National Curriculum or culminate in examinations. It does not need to follow a typical ‘school day’. Councils should not assume an unconventional approach constitutes unsuitable education and approaches should be judged on outcomes.
11. Councils have a duty to make arrangements to enable them to identify children in their area of compulsory school age who are not registered pupils at a school (including academies and free schools) and are not receiving suitable education otherwise (S436A, Education Act 1996).
12. The Department for Education issued new guidance in April 2019 to reflect the growing concern about children educated at home who may not be receiving a suitable education or who may be at risk of harm.
13. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time. The guidance says:

“If a local authority is aware that a child of compulsory school age is not attending a state or registered independent school full-time, and it is unclear how that child’s education is being provided, a local authority should consider the possibility that the child is being educated at home by its parents (possibly in combination with part-time attendance at another setting). In such a case, the local authority’s task is to find out how he or she is being educated and whether that education satisfies legal requirements”

14. Councils should have a policy on elective home education, setting out how it will engage and communicate with parents.

What happened

15. Ms Y has elected to educate her two daughters at home since 2014. They are 11 and 6 years old. I will refer to them as B and C.
16. In January 2019 the Council received contact from one of B and C’s family members. They expressed concern about the education provided to B and C. The Council followed this up with a letter to Ms Y seeking a time to meet and discuss the concerns. The Council said Ms Y could suggest the date, time and location.
17. When the Council did not receive a response from Ms Y, an officer made an unannounced visit to Ms Y’s home on 28 February 2019. The notes show there was no response at the address, and so the officer left a calling card asking Ms Y to make contact within five days.
18. Two weeks later Ms Y emailed the Council with a description of the education provided to B and C. She said she aimed to write again with a further report by 17 March.
19. Meanwhile, the Council received further contact from B and C’s family member again expressing concern about the education provided. The Council’s notes show it did not relay any information to the family member but noted on the records that it needed to be confident any report sent by Ms Y is reflective of the education being delivered.
20. Following this, the Council and Ms Y exchanged contact several times:
• 2 April 2019. The Council requested pictures or samples of work completed by B and C since April 2018.
• 20 April 2019. Ms Y submitted photographs to the Council.
• 30 April 2019. The Council wrote to Ms Y advising the photographs submitted do not evidence that B and C are receiving a full-time education suitable to age and aptitude, because the photographs only show pictures of books. The Council requested further images by 28 May.
• 28 May 2019. Ms Y emailed to say she had been unable to respond by the deadline given. She would respond by the end of the week with further information and a formal complaint.
• 18 June 2019. The Council wrote to Ms Y seeking the information previously requested.
• 20 June 2019. The Council referred the case to its Education Welfare Service (EWS) when it received no further response from Ms Y.
• 23 September 2019. The Council wrote to Ms Y again, relaying its view that the information submitted so far did not provide reassurance that B and C are receiving a suitable education.
• 21 November 2019. The Council wrote to Ms Y seeking images of B and C’s work and the dates of completion.
• 25 November 2019. Ms Y wrote to the Council, stating that she has complained to the Ombudsman and asks it to pause any action until the Ombudsman’s decision.
• 5 February 2020. The Council wrote to Ms Y seeking samples of B and C’s work.
• 8 February 2020. Ms Y replies to say that she will no longer correspond with the officer in question and seeks her removal from the case.
• 10 February 2020. A senior Council officer wrote to Ms Y to explain the information previously requested by the Council is still required, irrespective of any complaints made to the Ombudsman.
• 5 March 2020. Ms Y submits a report to the Council outlining the education provided to B and C.
• 9 March 2020. The Council wrote to Ms Y. It had considered the report, but felt that it provided assertion only and no evidence of actual work completed by B and C. A senior officer also noted in the records that “… we have intent but no proof of implementation”.

Was there fault causing injustice to Ms Y?

21. Until 2019 the Council had no cause for concern about the education being provided to B and C. To the contrary, its report in 2016 concluded that the education provided to B, Ms Y's eldest daughter, was suitable. However, in 2019 it received contact from a family member expressing concern about the standard of B and C’s education.
22. In her complaint, Ms Y said the Council’s approach was not supported by legislation or guidance because the onus is not on parents to prove that education is suitable. Ms Y says the legislation is clear the Council may only act if it appears the education is not suitable.
23. But the 2019 guidance, as quoted in paragraph 13 of this statement, makes clear that councils have a proactive responsibility to establish whether education being provided at home to children of compulsory school age “… satisfies legal requirements”.
24. The Council therefore had a general responsibility to ensure the education provided to B and C was suitable for their age, aptitude and ability. It also had a specific duty to seek information from Ms Y because it had received a report to say the education provided to B and C was unsuitable. The Council’s actions in this case were therefore triggered by a specific concern. This is in line with the current government guidance, which says:

“The department’s advice is that in all cases where it is not clear as to whether home education is suitable (including situations where there is no information available at all), the authority should initially attempt to resolve those doubts through informal contact and enquiries… An authority’s s.436A duty (and that under s.437, see below) forms sufficient basis for informal enquiries. Furthermore, s.436A creates a duty to adopt a system for making such enquiries”

25. S437 of the Education Act (1996) provides the basis for this duty. It says:

"If it appears to a local authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education."

26. Ms Y challenges the Council’s authority to request samples of B and C’s work. The government guidance does not provide a prescriptive list of what may constitute informal enquiries. Instead it says that any approach needs to be timely, effective and proportionate and that, “… it is for each local authority to decide what it sees as necessary and proportionate to assure itself that every child is receiving suitable education, or action is being taken to secure that outcome”.
27. The ‘Elective Home Education Departmental Guidance for Parents’ (2019) says that, “Some local authorities will ask to see the child at home or in another location, as well as seeing examples of work done”.
28. This approach is also outlined in the Council’s own EHE policy, which states, “If parents choose not to meet with the EHE Adviser, they may be asked to provide supporting information which demonstrates that they are providing full time suitable education for their child. The information could be samples of work, diaries of educational activity, books used in education, photographs from educational visits, electronic files of work/projects and so on”.
29. Ms Y is correct to point out that she is under no duty to meet with the Council or submit the samples as requested; her right to refuse is made clear in the government guidance: “Informal enquiries can include a request to see the child, either in the home or in another location. But the parent is under no legal obligation to agree to this simply in order to satisfy the local authority as to the suitability of home education, although a refusal to allow a visit can in some circumstances justify service of a notice under s.437(1).” The Council’s own policy also makes this clear: “Parents are not required to meet with the EHE Adviser although it is hoped that parents will see the benefits of such involvement in their child’s education.”
30. I therefore find no fault in the Council’s actions. This is because it was entitled to seek information from Ms Y about the education she provides to B and C.

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Final decision

31. I have completed my investigation with a finding of no fault for the reasons explained in this statement.

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Parts of the complaint that I did not investigate

32. I cannot consider whether the Council has harassed Ms Y, as she claims. This is because harassment is a criminal offence. The Ombudsman has no jurisdiction to consider allegations of criminal offences; instead, we investigate the administrative functions of councils and whether any fault in those actions has caused injustice to the person affected. I have found no evidence of fault causing injustice in this case.

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Investigator's decision on behalf of the Ombudsman