West Sussex County Council (22 003 256)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 22 Feb 2023

The Ombudsman's final decision:

Summary: Miss X complained about the Council’s actions when it made enquiries into the home education she was providing to her son, and it was trying to get him to return to school. We found fault with the Council as it incorrectly communicated some parts of the process to her and did not appropriately consider relevant medical information before deciding to proceed with a School Attendance Order. The Council has agreed to our recommendations to remedy the injustice caused and action to prevent recurrence of fault.

The complaint

  1. Miss X complained about the Council’s actions after she chose to take her son out of school to educate him at home. She said it insisted on home visits and it had not taken her son’s needs and learning difficulties into consideration. She said it was trying to force her son back into a mainstream school. This caused frustration, distress and uncertainty for Miss X and her son.

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The Ombudsman’s role and powers

  1. 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)
  2. If we are satisfied with an organisation’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)
  3. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

  1. I discussed the complaint with Miss X and considered her views.
  2. I made enquiries of the Council and considered its written responses and information it provided.
  3. I have considered the SEN Code of Practice 2015 and the Department for Education’s “Elective Home Education. Departmental guidance for local authorities” dated April 2019.
  4. Miss X 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 administrative background

Elective Home Education (EHE)

  1. Parents have a right to educate their children at home (Section 7, Education Act 1996).
  2. 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.
  3. 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.
  4. A further statutory duty exists, which requires local authorities to serve a formal s437(1) notice if it appears that a child of compulsory school age is not receiving a suitable education. The written formal notice requires the parent to satisfy the local authority with a specified period (not less than 15 days, beginning with the day on which the notice is served), that the child is in fact receiving suitable education. (Section 437(1), Education Act 1996)
  5. 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.
  6. If the local authority is not satisfied, the statutory process for issuing a School Attendance Order (SAO), requiring the parent to register the child at a named school, may be commenced:
    • “If –
          1. a parent on whom a notice has been served under subsection (1) fails to satisfy the local authority, within the period specified in the notice, that the child is receiving suitable education, and
          2. in the opinion of the authority it is expedient that the child should attend school,

the authority shall serve on the parent an order (referred to in this Act as a “school attendance order”), in such form as may be prescribed, requiring him to cause the child to become a registered pupil at a school named in the order.” (Section 437(3), Education Act 1996).

  1. In April 2019, the DfE also issued guidance to parents. It says:
    • “Local authorities can make informal enquiries of parents to establish what education is being provided. As parents, you are under no obligation to respond, but if you do not, the local authority is entitled to conclude from the absence of a response, that it appears that your child is not receiving suitable education, with all the consequences which can follow”.

Education, Health and Care Plans (EHCP)

  1. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
  2. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance. Councils must hold a review meeting of the EHCP at least once every 12 months.


  1. In September 2021, Miss X chose to educate her son, whom I refer to as “Y”, at home because of his learning difficulties.

What happened

  1. I have summarised below the key relevant events. This is not intended to be a detailed account of everything that happened.
  2. In March 2022, the allocated Advisory Teacher (“AT”) from the Council’s Elective Home Education (“EHE”) team had a telephone review with Miss X. This was to gather information about Y’s home learning and his progress.
  3. Following this meeting, the AT was concerned Y was not in receipt of a suitable, full-time education. In his view, Y was working at a very low level. He requested a home visit to see evidence of Y’s learning.
  4. Miss X cancelled the visit. She said Y was waiting to be assessed for autism at the time, and Y did not like strangers in his home. She added Y had recently been diagnosed with a rare heart condition.
  5. Between March and May, further correspondence was sent:
    • The AT contacted Miss X twice, confirming his statutory duty to be satisfied the education was suitable for Y and needed further evidence of this. He offered a home visit where Y would not need to be present or a virtual meeting. Miss X declined both times. She said the education at home was suitable for his capabilities and Y was happy, which was her main concern.
    • The AT responded a further two times. He understood Y’s best interests and wellbeing was a priority for her. But if he could not be assured, he would register him with the Children Missing Education (“CME”) Team. Miss X declined. The AT repeated his request for another meeting.
  6. In May, Miss X responded with a description of Y’s routine, what she covered with him, and his progress.
  7. The AT then issued a letter to Miss X, dated 19 May 2022. In his view, there were inconsistencies with what she previously described in the telephone review. “This letter serves as a Notice under S437(1) of the Education Act 1996 to you that the EHE of [Y] has failed. The EHE team will now pass the matter to the CME team who will start the process of [Y] returning to school”.
  8. At the end of May, an officer from the CME team sent a letter to Miss X. It explained she had the option to request a school place with a link to an application form. If she did not apply for one, it would start the School Attendance Order (“SAO”) process.
  9. Miss X responded she was against her son being “forced back into mainstream school” and referred to his heart condition.
  10. In June, Miss X formally complained to the Council.
  11. In the Council’s Stage One response, it was satisfied the AT had carried out their legal duty appropriately. It said he had explained their duty, acknowledged the circumstances, and offered ways forward for Miss X. The Council advised Miss X to contact the EHE term if she had further evidence, as it could potentially reconsider its view on the effectiveness of the provision.
  12. In July, Miss X escalated her complaint to Stage Two, adding the AT had not given any advice or guidance and he had not taken Y’s needs into consideration.
  13. The officer confirmed they had not seen medical evidence from Miss X. They noted Y had an EHCP and an annual review should have been held in April 2022.
  14. The Council arranged an annual review with Miss X four times between October and November. These were cancelled by Miss X due to illness.
  15. In September, the Council responded to Miss X’s complaint at Stage Two. It did not uphold her complaint as it did not find fault in the AT’s actions.
  16. In October, Miss X complained to us.
  17. In December, the officer wrote to Miss X with a warning letter. It had delayed the SAO process to hold an annual review but as this had not happened, the Council would proceed.

The Council’s response to my enquiries

  1. The Council said it dd not have a specific EHE policy. It provided an Information Pack for parents to give them an understanding of the expectations and responsibilities of both them and the Local Authority. It detailed how the EHE team carry their duty in this regard and is effectively the Council’s policy.
  2. I asked why this was not made publicly available on the Council website. The Council said it was to encourage parents to make contact with the team to allow proactive discussions, but it had now changed its position and the information is now on the website.
  3. The Council said it had not issued a S437(1) notice. The formal action it had taken was a warning letter in December 2022, advising Miss X to apply for a school place within 15 days. It clarified its process that a further warning letter would be sent identifying a school place but giving the parent a further 15 days to apply for one of their choice. It was after this point when it would issue a S437(1) notice confirming the school the child must be enrolled at.
  4. At my request, the Council paused the formal SAO process while I conducted my investigation.


  1. The Council’s AT requested several times for Miss X to provide further evidence so they could be satisfied Y was receiving suitable education. He was entitled to ask for a home visit. He offered reasonable alternative arrangements in response to Miss X’s concerns about Y, but she further declined. It acted appropriately when making enquiries with clear record keeping of each communication, which I commend. I do not find fault with the Council’s information gathering.
  2. It is not my role to say if the Council’s decision to take formal action was right or wrong, I can only consider if there was any fault in the way the decision was reached. When the AT took steps towards formal action, he explained his rationale in his letter and what he had considered.
  3. However, I note the wording about the next steps in this. It said in the letter served as a S437(1) notice that “EHE has failed”. This is not correct. It is not about whether EHE succeeded or not. Such a notice would have formally required Miss X to provide further information, within a specified period. I recognise the AT did do this informally through emails to Miss X and she did provide some information. The Council said to me it had not issued a S437(1) notice, even though the letter in May 2022 clearly said it had. It’s response that it would issue a S437(1) notice after a second SAO warning letter is also not the correct process. This is fault.
  4. Further to this, the letter said the CME team would now “start the process of Y returning to school”. I question the wording of this too as it had skipped a step when moving towards formal action. I acknowledge this may have been a warning of what could happen, but the language in this letter, combined with the above, did not appropriately communicate to Miss X the next steps. This is fault and caused frustration and distress to Miss X.
  5. At this point, the Council had to consider if it was satisfied it was “expedient that the child should attend school”. This is in accordance with DfE guidance. It mentions cases where it might not be expedient, including “if the child has physical, medical or educational needs leading to extreme vulnerability in a school setting – and the local authority should then consider alternatives such as tuition provided by the authority itself". Miss X had previously referred to Y having a heart condition. I have not seen evidence of the Council’s decision making to explain why it thought it was expedient in Y’s case for him to attend school and that it considered any medical information. This is fault.
  6. I recognise the Council took proactive action to try and hold an annual review of Y’s EHCP before proceeding with a SAO, but this is a separate process. The Council has a duty to act swiftly if it is not satisfied a child is receiving suitable full-time education. It should have tried to obtain specific medical information directly from Miss X sooner, to help make its decision as to whether to proceed with a SAO within a reasonable period. This delay is fault. Combined with fault above, it has caused injustice to Miss X as it did not promptly or properly consider Y’s individual circumstances in its decision making.
  7. I have reviewed the Council’s EHE information pack and I am satisfied it is now publicly available. In my view, whilst it is not overly detailed about specific processes, it is reasonable as an overview document for parents. However, the Council needs to review its own internal processes and its understanding on how it carries out its duty (including the purpose of a S437(1) notice) according to DfE guidance, as recommended below.

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Agreed action

  1. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
  2. Within one month of the final decision:
    • Apologise to Miss X in writing for the incorrect wording used in its 19 May 2022 letter about the process, and its delay in not considering Y’s medical needs when deciding whether to issue a School Attendance Order; and
    • The Council should review and reconsider its decision about proceeding with a School Attendance Order. It needs to take into account medical information about Y and clearly explain its decision about whether it is expedient for him to attend school in light of this, and if so, why.
  3. Within two months of the final decision:
    • Send written reminders to all staff within the Elective Home Education and Children Missing Education teams to ensure they remind themselves of the Department for Education’s Elective Home Education: guidance for local authorities. Section 6 in particular states what councils should do when it is not clear that home education is suitable; and
    • These reminders should highlight the need for officers to consider if it is expedient for a child to attend school and consider their individual circumstances. This learning should also be kept in mind when communicating the process to individual parents.
  4. The Council should provide us with evidence it has complied with the above actions.

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Final decision

  1. I found fault with the Council causing injustice to Miss X and her son. The Council has agreed with the recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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