The Ombudsman's final decision:
Summary: Ms X complained about the Council’s actions in respect of the elective home education which she has been providing to her two children. We are discontinuing our investigation because a group of parents have leave to pursue a judicial review of the Council’s policy and procedures. Ms X’s complaint is inextricably linked to this legal action.
- The complainant, who I refer to as Ms X, complained that the Council was not following due process, in accordance with the statutory guidance, when making assessments of the suitability of the elective home education she has been providing to her two daughters.
- In particular, Ms X, complained that the Council:
- has, and still is, acting with prejudice, based on Ms X’s disagreement with the Council on its policies and as a parent representative of the local Home Education Group;
- misused the Council’s powers by making spurious and misleading referrals to Children’s Services about her daughters;
- lacked knowledge to assess elective home education and was resistant to learning from its mistakes;
- has a pervasive anti elective home education culture which needs to be addressed; and
- sent standard letters to home educators, and its complaint letters to Ms X failed to deal with her individual complaint points at all three stages of the Council’s complaint process.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- I have spoken on the telephone to Ms X and considered her written evidence. I sent a draft decision statement to the Council and to Ms X and have taken into account their further comments before reaching a final decision.
What I found
Legal and administrative
- 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.
- 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.
- 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).
- 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.
- 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 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.
- 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.
- Ms X says that the Council has served school attendance orders on her naming a school which her daughters should attend. Ms X does not agree with the Council’s decisions and has complained to the Council. The Council has considered Ms X’s complaints. But it has not upheld Ms X’s main concerns.
- 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 procedures and the information the Council is seeking to determine whether the education, which the parents are providing, is suitable.
- Ms 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.
- Accordingly, my view is that Ms X’s complaint is closely related to the proposed legal proceedings and the Court will be making decisions about the Council’s procedures. Therefore, it is appropriate to discontinue our involvement at this stage.
- In view of the impending judicial review proceedings, I am discontinuing this investigation.
Investigator's decision on behalf of the Ombudsman