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Portsmouth City Council (19 020 525)

Category : Education > Other

Decision : Not upheld

Decision date : 26 Apr 2021

The Ombudsman's final decision:

Summary: The complainant alleged that the Council had served school attendance orders on her unfairly in relation to her two children, who she had chosen to educate at home. She also complained about the detail the Council required to assess the suitability of the education. We do not find fault on the first part of the complaint. We will not continue to investigate the second because there are pending judicial review proceedings, brought by a group of parents, on this aspect of the complaint.

The complaint

  1. The complainant, who I refer to as Ms X, complained that the Council had wrongly taken legal action against her in court, since 2015, for the non-attendance at school of her two children, B and C. Ms X says that both children have special educational needs, she has arranged and provided suitable home education and the court has always found in her favour, or the Council has dropped the case just before it was due to be heard.
  2. Ms X also says that the education officer contacted the local Children Services without her permission.
  3. Ms X says that the Council’s actions have caused her and her children significant avoidable distress and inconvenience.

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What I have investigated

  1. I am investigating events since August 2018 in relation only to Ms X’s concerns about the Council’s legal action against her.
  2. Matters, which I am not now investigating and the reasons for this, are set out in the last paragraphs of this statement.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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. Normally the Ombudsman will not investigate complaints unless they were made to him within 12 months of when the complainant realised something had gone wrong. However, the Ombudsman has some discretion on this time limit.
  3. The Ombudsman cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
  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)
  5. 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 have made enquiries of the Council and Ms X has considered its response and provided further information. I have also spoken to her on the telephone.
  2. I do not consider there are reasons to warrant exercising the Ombudsman’s discretion to look at the earlier events prior to August 2018 because Ms X could have complained to the Ombudsman sooner. However, I have taken into account the earlier history and therefore have provided details of this.
  3. I issued two draft decision statement to the Council and Ms X. I have amended my decision in light of the comments received.

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What I found

Legal and administrative

  1. 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.
  2. 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.
  3. 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).
  4. 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.
  5. 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.
  6. The 2019 guidance says that the primary responsibility 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 that the child is receiving suitable education, the need for contact should be minimal.
  7. 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.
  8. The guidance says that councils should gather and record as much information as possible from other agencies.
  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. The guidance states:

“Whether or not the parents have sought revocation and intervention by the Secretary of State, if they do not cause the child to be registered at a school, and regularly attend it, then the authority should consider prosecution, and should proceed with this unless there is very good reason not to do so”.

  1. It will be for the court to decide on the suitability of the home education.
  2. In April 2019, the DfE also issued guidance to parents. They are advised that, in the early stages, their plans may not be detailed and they may not be in a position to demonstrate all the characteristics of an efficient and suitable education. The guidance suggests that a reasonable timescale should be agreed for the parent to demonstrate that all aspects of the provision are in place. The guidance also states that councils may want to update the information periodically.
  3. The guidance to parents says that:

“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”.

The Council’s procedures

  1. Councils should have a policy on elective home education, setting out how it will engage and communicate with parents.
  2. The Council’s policy of 2018/9 states:

“Definition of suitable education and the reasons why the local authority may deem the education not to be suitable.

Parents who are home educating their child(ren) are expected to provide evidence of a suitable education that would, on the balance of probabilities, convince a reasonable person that a suitable education is being provided for the age and ability of the child.

In considering the parent's provision of education the local authority may reasonably expect the provision to include the following characteristics:

Broad: it should introduce the pupils to a wide range of knowledge, understanding and skills

Balanced: each part should be allotted sufficient time but not such that it pushes out other essential areas of learning

Relevant: subjects should be taught so as to bring out their application to the pupil's own experience and to adult life and to give due emphasis to practical aspects

Differentiated: what is taught, and how it is taught, needs to be matched to the child's age, abilities and aptitude, taking into account any special education need.

A good curriculum also includes other aspects at an appropriate level such as personal, social and health education, outdoor and environmental education, citizenship, careers, food technology and information and communication technology. Opportunities to mix and relate with other children and adults are considered to be important to a child's personal and social development.

There may be a variety of reasons why the information / evidence provided has not been deemed suitable by the local authority. This may include:

  • The education provision described lacks detail and it is difficult to ascertain what is being taught / what subjects are being studied
  • There is no or very limited examples of work submitted
  • There is no or very limited information regarding resources used internally and externally
  • There is no or very limited detail of how the child's progress is being monitored or examples of work to demonstrate relevant progression
  • There is no clear academic or time structure

It is important to note that the above is for guidance and by way of example only and is not an exhaustive list. Each case is judged upon its own individual circumstances.

The types of information and evidence might include: a timetable; a curriculum plan; photographs; work books; progress reports; dated work over time; conversations with the child / parent; home visits; etc. The local authority needs to be satisfied that appropriate education is taking place and therefore it will be about building a full picture of the individual circumstances rather than rigid adherence to a check list”.

Historical events between 2014 and 2018

  1. In February 2014, the Council visited Ms X at home to check on the home education which she was providing to both children. A note of that visit indicated the Council was satisfied she was providing suitable education. The Council checked on this the following year. Subsequently, B and C returned to school.
  2. In 2016, the Council’s Children Services told the School Attendance Team that Ms X intended to educate her children at home. The social worker explained that the children were subject to child protection plans and the social worker said that it was important to ensure the children’s educational needs were being met. The social worker said that Ms X was using a local provider (Provider D) to help provide education.
  3. Provider D is an online teaching provider, reasonably priced to support children being educated at home. It is registered with exam boards.
  4. The school attendance officer made enquiries of Ms X and explained that she would check with the social worker that Provider D was involved. Ms X told the Council that both B and C were also receiving help from the Child and Adolescent Mental Health Services (CAMHS). The Council asked her to provide evidence of this. The Council says that she did not.
  5. In November 2016, the social worker said that the children had told her that they wanted to be at school. The school attendance officer said that it was difficult to obtain information from Provider D.
  6. In early 2017, the Council said that both B and C should be registered at a school and their names were placed on the roll of a local school (School E). The Head of School E told the Council that she required information about B from CAMHS and the Head asked for him to be assessed for possible special educational needs (SEN).
  7. Ms X told the school attendance officer that C was at school, but B’s possible special educational needs were being assessed.
  8. C started at School E. However, Ms X withdrew both children from the school roll in March 2017. She explained that B had been bullied and that he had become suicidal. Ms X explained that she would be educating both children at home. Ms X also said that C was being bullied and was also subject to an assault.
  9. In late March 2017, the Council wrote to Ms X to say that each child should receive 23 hours of education per week as recommended by the Qualifications and Curriculum Authority (QCA). The Council asked for evidence of the education being provided. Ms X provided information about the education she was providing to C at home.
  10. The Council served a School Attendance Order in respect of B. In late 2017 there was a prosecution, because of Ms X’s failure to comply with the School Attendance Order. The court found in Ms X’s favour in respect of B. The Council says that Ms X provided evidence of the education only because of the court summons.
  11. The court decision noted that B had been withdrawn from school because of anxieties, depression and suicidal ideation. The court had to decide whether a suitable education was being received on the balance of probability. The court decided it was satisfied that Ms X had proved beyond a balance of probability that a suitable education was being received.
  12. In early 2018 the School Attendance Team told Ms X that, because she had not provided evidence of C’s education, it would be serving a School Attendance Order in respect of her. Ms X explained that the Council could not do this unless it believed she was not educating C. She explained that she had provided evidence of the education being provided and had given the name of the CAMHS worker to contact.
  13. In February 2018, the School Attendance Team told Ms X that it would not contact the CAMHS worker because “if you [Ms X] are alleging that your daughter is too ill to attend school, then the burden to prove that rests with you”.
  14. The Council served a School Attendance Order for C, naming School F as the appropriate school which she should attend.

Events since August 2018: B (complaint reference 20 010 896)

  1. In August 2018, the Council wrote to Ms X to say it was satisfied that B was receiving suitable education.
  2. In August 2019, the Council asked Ms X about the education being provided over the past year. Ms X replied stating that B was receiving education, as before, but the work was more challenging according to his ‘age, aptitude and ability’.
  3. In September 2019, the Council asked Ms X to provide evidence about the education provided to B in line with its procedures. On 12 November, the Council explained that, unless Ms X provided the requested information, the Council would serve a School Attendance Order naming a particular school which B should attend.
  4. Ms X made a complaint to the Council about alleged harassment from the Council’s School Attendance Team. She also complained that it had contacted Children Services without her consent. Ms X’s complaint was dealt with under the Council’s corporate complaints procedure.
  5. In the absence of information from Ms X about B’s education, the Council served a School Attendance Order, naming a school which B should attend. By this stage, B was in Year 11, his GCSE year.
  6. In December 2019, Ms X told the Council that B was receiving an education from Provider D and it had registered him to sit his GCSEs. She explained therefore that she was not educating B herself but that she had commissioned Provider D to do so.
  7. In January 2020, the Council asked Ms X to provide a report directly from Provider D to show what education B was receiving. It appears that Ms X did not do this, or it may be that Provider D was unwilling to do this.
  8. The Council decided to pursue court action. Ms X says that this action was cancelled only because of the COVID-19 lockdown. Otherwise, she considers the Council would have again taken legal action against her.
  9. In the summer of 2020, Ms X says that B obtained the required GCSEs and Ms X says that he now attends a college of further education.
  10. At 16, B passed the age of compulsory education although he should be in some form of education or training. So, the Council’s School Attendance Team closed the case in June 2020.
  11. The Council provided its final complaint response to Ms X on 24 February 2020. The letter explained that the Council had provided guidance to her about what constituted suitable education and the types of evidence which could be used. But the Council said that “it is not prescriptive and it is up to the parent to decide what they wish to respond with”. The Council expressed concern that Ms X felt ‘harassed’ and suggested a meeting to discuss this.
  12. However, because of COVID-19, this meeting could not go ahead.

Events of August 2018: C (complaint reference 19 020 525)

  1. In September 2018, the School Attendance Team told the Council’s Children Services that Ms X only needed to demonstrate on the balance of probabilities that an education was taking place. The School Attendance Team said that “in a previous trial against this parent, similar evidence was presented to the Court and they accepted it as proof of an education”. Therefore, the School Attendance Team decided to withdraw the summons.
  2. In 2019, the Council started again to make enquiries of Ms X about the education she was providing to C. The Council indicated it was minded to issue a School Attendance Order. This prompted Ms X to make a formal complaint. She also said that a particular school attendance officer was ‘harassing’ her, and she alleged that he had accused her of being ‘lazy’.
  3. On 28 November 2019, the Council wrote to Ms X:

“We are very happy to review, at any point, examples of work or anything else that you feel assists in demonstrating education that is suitable to the child's age, aptitude and ability, taking into account any special educational need. As a team, we're keen not to proceed to school attendance orders where we can be satisfied of suitable education but equally we have a moral and social obligation to ensure that all children are safe and being suitably educated. If it is not clear that that is the case, we do have to act to remedy the position”.

  1. In December, in the absence of evidence from Ms X, the Council warned her that it would be considering issuing a School Attendance Order. Ms X replied, saying that she had been previously advised her reports were not sufficient evidence. Hence, by implication, she had not sent any information. But Ms X said that, if the Council was willing to accept her reports, she would provide them.
  2. In March 2020, the Council explained to Ms X that, in the absence of evidence of suitable education, it would start the process of serving a School Attendance Order on C.
  3. This was eventually served in September 2020 (delayed because of lockdown) and the Council looked for a school to name for C, who by now was in Year 11, her GCSE year.
  4. In response to an email from Ms X, the Council wrote to her:

“We no longer accept solitary reports. We [are] happy to look at the report in conjunction with a timetable; a curriculum plan; photographs; work books; progress reports; dated work over time; conversations with the child/parent/ home visits etc. The local authority needs to be satisfied that appropriate education is taking place and therefore it will be about building a full picture of the individual circumstances rather than rigid adherence to a report”.

  1. Ms X told the School Attendance Team that C was due to have an operation and would be in hospital. The Team replied that there were hospital schools which C could attend and it would continue with its action.
  2. Ms X provided an overview report about the education provided to C. She referred to Provider D as being involved. The Council acknowledged this but stated that the Council was yet to receive supporting evidence in relation to the educational provision to C. Therefore, the Council intended to pursue its actions.
  3. On 10 December, Ms X replied:

“I have provided you with comprehensive information in respect of [C]’s education, sufficient for a competent education officer, or indeed a reasonable person to accept that her education provision is suitable.

Nowhere in legislation does it require me to 'prove' that this is the case and nowhere in legislation does it allow you to act in anyway other than one which is proportionate.

You refer to your own local decision (policy) to decline to accept reports from parents and here you are in error. Your local policy must comply with relevant national guidance unless there is good reason in the particular case to depart from that guidance”.

  1. Ms X explained to the Council that C has a physical disability and that she required an operation to remedy this, along with emotional difficulties and is known to CAMHS.
  2. Subsequently, Ms X told the Council that C’s essential operation had been postponed because of COVID-19. Recently, she asked the Council why it intended to pursue the School Attendance Order when schools were closed, and C was too ill to attend. Ms X had also told the Council about the assault C suffered at school for which she had a crime reference number.

Analysis

  1. In April 2019, the statutory guidance on home education provided more detail as to what was expected of councils and parents in respect of assessing elective home education. As a result, the Council reviewed and updated its policy.
  2. One of the difficulties in these complaints is that the Council’s procedures changed between 2018 and 2019 and this may have caused some confusion for Ms X, with the Council having different expectations of the evidence she was required to provide for it to be satisfied that she was providing a suitable education.
  3. I cannot comment on the complaint of harassment from a particular officer. This was a matter for the Council to consider, which it did through its complaint investigation.
  4. I also find no fault in the School Attendance Team’s communications with Children Services. Children Services initiated the contact, as required to do so, given the children were subject to child protection plans.

B (our ref: 20 010 896) – is there fault by the Council?

  1. I do not consider the evidence supports Ms X’s contention that the Council unfairly decided to issue a School Attendance Order in 2019. This was a decision for the Council to make and it is not for me to reach a decision as to say whether it was the right one. My role is to consider whether the Council followed the correct process and considered the matter properly.
  2. The Council attempted to obtain information about the way in which Ms X intended providing B with a suitable education and, in early 2020, it asked her to provide a report from Provider D. I cannot say why such a report was not provided and it may well be that Provider D was reluctant to do so, rather than Ms X not wishing it to do so. But a report from Provider D would have helped to resolve the issue for all concerned.
  3. The Council did then serve a School Attendance Order, but this was not pursued. While Ms X considers serving this Order was unnecessary, I do not consider there is sufficient evidence to say the Council was at fault. It was for the Council to make this decision based on the current facts and was a judgement for the Council to make.
  4. It is also the case that the Council did not take legal action to enforce the School Attendance Order.

Analysis – C (our ref: 19 020 525)

  1. In 2018, Children Services contacted the School Attendance Team to enquire what action it intended to take. The School Attendance Team explained that it would not be pursuing the School Attendance Order, based on the court’s approach to the case of B.
  2. By 2019, the Council had changed its approach in line with the new guidance of April 2019. It started to enquire about the education being provided to C by Ms X. Ms X said that she would be happy to provide her own report, but she said that she had been told by the Council that such a report would not be accepted. Hence, it appears that Ms X did not provide any information at this stage.
  3. At the end of November 2019, the Council explained that Ms X could provide reports which demonstrated the education C was receiving. In the absence of this evidence, the Council explained it was minded to issue a School Attendance Order.
  4. There was a delay by the Council in pursuing this action because of the COVID-19 lockdown and while schools were closed.
  5. In October 2020, the Council explained more fully to Ms X the type of information she could provide to satisfy the Council that the education for C was suitable. It started to look for possible schools for C.
  6. Ms X provided an overview and also explained that C’s disability prevented her attendance at school.
  7. As with B, I do not consider I can find fault by the Council in seeking information about the education being provided to C so that it could decide whether to serve a School Attendance Order.

Final decision

  1. I do not consider the Council has been at fault in seeking information from Ms X so that it can decide whether the education provided to B and to C was suitable and whether it was necessary to issue a School Attendance Order. It gave Ms X opportunities to provide the evidence it thought was required for it to decide whether the education was suitable. It also warned Ms X of the possibility of a School Attendance Order if the information was not forthcoming.
  2. On the second aspect of the complaint concerning the scope of the Council’s enquiries of Ms X about her home education, there are potential judicial review proceedings. I am therefore not making any finding on this aspect of the complaint. While Ms X is not an applicant in the proposed judicial review proceedings, this legal action is relevant to her complaint. Ms X is also alleging that the Council’s policy is unlawful, and this is a matter for the courts.
  3. Therefore, I have completed my investigation and I now intend to close the complaint.

Parts of the complaint that I did not investigate

  1. We cannot investigate actions within schools, and we also cannot investigate the commencement and conduct of court proceedings.
  2. For the reasons explained, I am not continuing with my investigation into the scope of the evidence the Council requires to assess the suitability of Ms X’s home education.

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Investigator's decision on behalf of the Ombudsman

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