Summary: Ms X complains the Council did not provide alternative education provision for her children. We have not found the Council at fault for this. We have found the Council at fault for not taking any steps to satisfy itself Ms X’s children were receiving a suitable education. This caused an injustice. We have made recommendations to remedy this injustice.

The complaint

1. Ms X complains about how the Council managed educational arrangements for her children. She says the Council did not engage with her about education provision when she felt she had to withdraw her children from school. She also says the Council later did not arrange new provision when she requested this. Ms X says this has had a detrimental impact on her family’s wellbeing and educational opportunities.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

Back to top

How I considered this complaint

3. I considered information Ms X provided and discussed the complaint with her.
4. I considered the Council’s responses to my enquiries.
5. Both Ms X and the Council had an opportunity to comment on a draft version of this decision. I considered their comments before making a final decision.

Back to top

Relevant legislation, guidance and policies

Elective home education (EHE)

6. Parents have a right to educate their children at home (Section 7, Education Act 1996).
7. 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 (EOTAS), 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.
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. 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.
10. Guidance issued by the Department for Education (DfE) in 2019 says the primary responsibility for EHE remains with the parent, but councils have a social and moral duty to ensure that a child is safe and being suitably educated. Where there is clear evidence the child is receiving suitable education, the need for contact should be minimal.
11. The guidance says there is no detailed legal requirements as to how a system of oversight should work. It is a matter for each authority to decide what steps are necessary and proportionate to assure itself every child is receiving a suitable education. The guidance recommends local authorities:
• provide parents with a named contact, familiar with home education policy and practice; and
• make contact with home educated parents on at least an annual basis, so the authority can reasonably inform itself of the current suitability of the education being provided
12. The Council’s approach to elective home education at the time of the complaint was based on the government’s guidance. The Council said it would:
• allocate an advisor to all new home educators;
• offer an appointment to discuss proposed education arrangements;
• offer support thereafter through home visits, telephone or email; and
• contact families on at least an annual basis for an update on the home education provision, to give advice, and to arrange to view examples of the child’s work if needed.
13. The Council also said it wished to be informed of the new address if a parent decided to move, so it could forward relevant information to the new local authority. This was to prevent a child being potentially listed as missing education.
14. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.

Alternative education provision (AP)

15. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19).
16. We refer to this as section 19 or alternative education provision.

Back to top

What I found

17. I have set out below the key events leading to this complaint. This is not intended to serve as an exhaustive chronology of every interaction between the parties involved.

Background

18. In early 2022, the Ombudsman investigated a complaint brought by Ms X about the Council’s decision not to fund transport to school for her children in late 2020. Ms X said the Council’s decision meant she had to walk the children to school over a long distance, which negatively impacted her existing health conditions. She said when it was no longer possible to walk her children to school, the children were unable to attend their school altogether.
19. The Ombudsman investigated Ms X’s complaint and found there was fault in how the Council considered the transport appeal. The Council also carried out an internal review, identifying faults in the way it had considered the information Ms X submitted in support of her request for transport assistance. When the Council had offered a limited form of transport assistance in early 2021, for one term only, Ms X told the Council she no longer wanted the assistance, as she had withdrawn her children from the school roll.
20. The Ombudsman’s investigation found fault with the Council’s actions, causing Ms X an injustice. We found there was uncertainty about what would have happened had Ms X received the award of transport sooner. We recommended the Council pay a sum in recognition of the uncertainty caused.
21. Ms X said after she had withdrawn her children from school, she later asked the Council to provide education provision for them. Ms X said the Council had not provided the children with this education. We decided this should be the subject of a separate investigation.

What happened

22. At the time of the events in this complaint, the Council had commissioned a third-party organisation to carry out its duties relating to elective home education arrangements. This organisation has since transferred directly into the Council’s structure. For simplicity, I have opted to refer only to ‘the Council’ in this statement when describing the actions taken, even if those actions were taken by the third-party organisation. This is because the organisation was carrying out functions on the Council’s behalf at the time, meaning the Council remained responsible.
23. Records I have seen suggest Ms X’s children were on the roll for School Z for the 2020-21 academic year. In October 2020, Ms X withdrew one of her children, Child A, from the school roll. The information recorded by School Z for Child A’s exit interview stated Ms X and Child A believed Child A needed an education that suited their upbringing and Ms X’s vision. School Z notified the Council that Child A had been withdrawn from the school roll.
24. The Council contacted Ms X by phone. According to the Council’s records of this conversation, Ms X told the Council the family intended to move away from the area in approximately six weeks.
25. The Council’s records show it contacted Ms X again by email in November 2020. Ms X told the Council the planned move was on hold. In January 2021, the Council’s records show it contacted Ms X again to follow up on the planned move. The records state the family still intended to move and it was expected the children would return to school when this happened.
26. In late January 2021, Ms X withdrew her other children, Child B and Child C, from School Z. In an email to School Z, Ms X said the family would be moving from the area and the children would be home educated until that happened. School Z responded, advising the children would be welcome back at the school if the family returned to the area.
27. In February 2021, the Council’s records show it contacted Ms X by telephone to check if the family had now moved. According to these records, Ms X told the Council the family would not need the Council’s services again. She said the family had not moved and the children were being privately educated. Ms X said she did not want the Council to contact them again.
28. The following day, Ms X wrote to the Council. Ms X said she did not have to provide any information to the Council and if the Council tried to contact her, she would resort to legal action.
29. In June 2021, Ms X wrote to the Council. She told the Council of ongoing harm to her and her children and said she was seeking a financial remedy of £10m. This was for a loss of education, a loss of work and a loss of a safe home environment while protecting and educating her children for 18 years. Ms X expressed concern for the safety of her family and asked the Council to help them move from the area by the end of the following week.
30. Shortly after this, the Council wrote to Ms X with the outcome of its investigation into how it had considered her school transport appeal. It said it had not properly considered relevant aspects of Ms X’s application. It apologised and offered her children unconditional bus passes, so they could travel safely to School Z. It also said it could put Ms X in touch with its Early Help team, pending Ms X providing consent. Ms X declined the bus passes offered, saying it was now too late, and did not give consent for the Council to pass the family’s details onto its Early Help team.
31. Over the course of the next year, Ms X sent further emails to the Council, alleging it was responsible for her deteriorating health and had caused a loss of education for her children. In late 2021, the Council responded through its solicitors. It told Ms X it rejected her claims and advised her to seek independent advice. When responding to these emails, Ms X sometimes wrote to specific officers and the Council’s solicitors, while on other occasions Ms X raised concerns with the Council’s Complaints team. Ms X alluded to her children losing education in some of these emails, while in others she focused on the impact to her health.
32. In December 2021, internal correspondence shows officers at the Council seeking clarity on the education arrangements in place. The Council concluded Ms X’s children were being electively home educated, based on the information it had. Shortly after, the Council’s Complaints team sent Ms X an email, saying it had reviewed her correspondence and understood all matters had been dealt with as part of the school transport appeal process. It said it would not therefore accept the matter as a complaint. It noted its previous suggestion for Ms X to seek legal advice and advised Ms X may also want to approach the Ombudsman.
33. Ms X contacted the Ombudsman in November 2021, leading to our initial investigation. During this investigation, throughout early 2022, Ms X continued to write to the Council. Some of Ms X’s emails during this time referenced her children’s loss of education.
34. In June 2022, the Council wrote to Ms X, seeking details of the education the children were receiving.

Analysis

35. The records show Ms X withdrew her children from School Z between October 2020 and January 2021, advising the Council of an intent to provide elective home education for a short time until the family moved away. There is evidence the Council engaged with Ms X between October 2020 and February 2021 about this decision, as it sought details about the planned move and regularly checked how the matter was progressing. It did this until February 2021, when the Council’s records reflect Ms X told it not to contact her again. In her email to the Council at the time, Ms X said the Council could not question the educational choices she made for her children.
36. These matters overlapped with Ms X seeking transport assistance for her children to School Z, highlighting the impact a lack of transport was having on her health and the wellbeing of her children. I cannot consider again the matter of the transport appeal and the impact this had. This has already been considered by the Ombudsman and a remedy recommended for the injustice caused.
37. Because Ms X had told the Council and School Z she was educating her children at home, I consider the Council’s duty to provide alternative education provision was not triggered. Parents who choose to provide a home education for their children assume responsibility for the costs associated with doing so, as outlined in paragraph 7.
38. Ms X says she later told the Council she wanted it to provide alternative education provision for her children. I have not found that Ms X specifically asked the Council for alternative education provision. Ms X did though reference the children’s loss of education in the email she sent to the Council in June 2021. In this email, Ms X alleged the Council was responsible for her worsening ill health and expressed concern for her children’s safety and wellbeing. Ms X sought substantial compensation for her situation, which included a reference to a loss of education for her children.
39. Over time, Ms X alleged she had been paying for private education because the Council had not provided education to her children. She sought a substantial reimbursement of the fees she said she had no choice but to pay. She also asked the Council to purchase a private residence where she could arrange education for her children.
40. The above email from Ms X was followed by the Council providing Ms X with the findings of its investigation of the school transport appeal. In response to my enquiries, the Council said it never received a request for alternative education provision from Ms X. It said Ms X mentioned education as part of a wider claim for compensation, emanating from her concerns about the school transport appeal. The Council was therefore of the view that claims concerning a loss of education were not separable from Ms X’s wider claim.
41. When Ms X continued to write to the Council, making allegations about officer conduct and its impact on her family, and referring to possible legal proceedings, the Council responded primarily through its solicitors. Ms X was told to seek independent legal advice. Later, when Ms X sought to make a complaint, the Council told her it would not consider as a complaint any matters already heard at the transport appeal. It reminded her of its suggestion to seek independent legal advice.
42. The Council does not appear to have considered whether it should take any action concerning Ms X’s repeated references to her children’s education, which may have included considering alternative provision or use of other powers to ensure the children were receiving suitable education. In all, the Council appears not to have known whether Ms X’s children were receiving a suitable education, or taken steps to find out, for more than one year. This lack of action is contrary to the guidance and the Council’s own stated approach. I have found the Council at fault for this.
43. Parents are under no obligation to respond to local authority enquiries about the home education they provide. I cannot say whether Ms X would have engaged with the Council, had it made enquiries of this kind. However, the Council had a duty to satisfy itself that Ms X’s children were receiving suitable education. If a parent does not respond or fully engage with this process, the guidance confirms local authorities are entitled to conclude a child is not receiving a suitable education. Ultimately, the local authority may resort to issuing a school attendance order.
44. If the Council had taken steps to satisfy itself that Ms X’s children were receiving a suitable education, I cannot say what it would have found, or what action it would have felt necessary to take. The uncertainty of not knowing whether Ms X’s children have received a suitable education since February 2021, or whether the Council would have needed to arrange some form of alternative education provision in this time, is an injustice.
45. When responding to my enquiries, the Council said it had asked Ms X in June 2022 for details of the education she had arranged for her children. This is an appropriate step. In view of the uncertainty present in this case, I would recommend it conducts this process without further delay.

Back to top

Agreed action

46. Within four weeks of the final decision being issued, the Council has agreed to:
1. remind officers of the need to review the suitability of home education where there is evidence of a change in a child’s circumstances.
47. Within eight weeks, the Council has agreed to:
1. establish whether it is of the view the education provided is suitable; and
2. if not, create a plan, in accordance with the published guidance, to outline what the next steps will be to ensure the children receive suitable education.
48. The Ombudsman will seek evidence the Council has complied with our recommendations.

Back to top

Final decision

49. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman