Summary: Mrs X complained about the Council’s actions in respect of the elective home education which she is providing to her son. We are discontinuing our investigation because a group of parents have leave to pursue a judicial review of the Council’s policy and procedures. Mrs X’s complaint is inextricably linked to this legal action.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council has not been following due process, in accordance with the law and guidance, when making assessments of the suitability of the home education she and her husband are providing to their son.

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The Ombudsman’s role and powers

2. We investigate complaints about injustice caused by ‘maladministration’ and ‘service failure’, which we refer to as ‘fault’. We have discretion to decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

3. I have considered the written information provided by Mrs X and I have spoken to her on the telephone. I issued a draft decision statement to the complainant and to the Council and I have taken into account any further comments before reaching my final view.

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What I found

Legal and administrative

4. 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.
5. 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.
6. 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).
7. The Department for Education (DfE) issued new guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm.
8. 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.
9. The information needed to satisfy the test of whether suitable education is being provided depends on the facts of the case and judgement of the council. But, if a parent refuses to provide a substantive response to a council’s enquiries about the education being provided, that refusal is likely to satisfy the test.
10. Where parents do not provide sufficient evidence, councils can serve a school attendance order, naming a school which the child should attend. Parents can, if unhappy with the serving of such an order, refer the matter to the Secretary of State.

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What happened

11. Mrs X says that the Council has served school attendance orders on her naming a school which her son should attend. Mrs X does not agree with the Council’s decisions and has complained to the Council. The Council has considered Mrs X’s complaints. But it has not upheld the substantive aspects.
12. A group of parents, who are electively educating their children at home, now have leave to pursue a judicial review of the Council’s policies and the information the Council is seeking to determine whether the education, which the parents are providing, is suitable.

Analysis

13. Mrs X has been closely involved in this legal action although is not a named applicant in the judicial review application. However, whatever decision the Court reaches, will have a bearing on her complaint.
14. Accordingly, my view is that Mrs X’s complaint to the Ombudsman is closely related to the proposed legal proceedings and therefore it is appropriate to discontinue our investigation.

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Final decision

15. In view of the impending legal proceedings, it is appropriate to discontinue our involvement.

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Investigator's decision on behalf of the Ombudsman