Summary: We will not investigate Miss X’s complaint about the Council’s education welfare teams enquiries of her child’s education. There is not enough significant fault or injustice to justify an investigation.

The complaint

1. The complainant, whom I shall call Miss X, says the Council should not have contacted her about her child’s education, holds an inaccurate record and has not dealt with her complaint properly.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:
• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered information provided by the Miss X and the Council. I also discussed the case with Miss X in a telephone conversation.
6. I considered the Ombudsman’s Assessment Code.
7. I considered Miss X’s comments on a draft version of this decision.

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My assessment

Background events and complaint

8. Miss X says her nine year old child has never attended school. She says she opted to home educate them as she had done their elder sibling. She says she has never provided the Council with any information on the education she is providing her child. This complaint concerns the Council’s education welfare teams actions since December 2020.
9. Miss X says the Council contacted her and told her it had recorded her child as not in education. She says this is wrong and should be changed. She says the Council then contacted her on multiple occasions to seek information about her child’s education. She says the Council wanted the information in a specific format which did not suit her. She says she has offered to provide an education report. She says the Council has refused to accept it. She has not provided the Council with her report. She has provided no evidence it has said it would not accept the report.
10. Miss X told me the Council issued her a section 427 Education Act 1996 notice by email. She believes this is not proper service of it. She says it has separately told her it has entered her child on the roll of a school.
11. Miss X throughout 2021 complained to the Council. She says she made in total 30 different complaints. She says the Council appointed the wrong officer at stage one to reply. She said they used the same officer she had complained about. She says the stage two reply condensed her complaint to three issues and did not adequately reply to her.

Background law and guidance

12. Parents have a right to educate their children at home (Section 7, Education Act 1996). 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 (Section 436A, Education Act 1996).
13. The Department for Education (DfE) issued new guidance in April 2019. This was 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.
14. 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.
15. The 2019 guidance says 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 the child is receiving suitable education, the need for contact should be minimal. The guidance says that councils should gather and record as much information as possible from other agencies.
16. 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.
17. Where parents do not provide enough 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”.
18. 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”.

Analysis

19. It is unlikely we would find significant fault in the Council making enquires of the education Miss X is providing her child, to justify an investigation. Nor is there significant injustice to justify an investigation.
20. Should the Council progress the case to issuing a school attendance notice she will have the right to ask the Secretary of Stage to revoke it. If he does not, and the Council advance to prosecution, she will have the opportunity to defend the case. It will then be for the court to decide on the suitability of the home education.
21. Miss X believes the Council noting her child as not in education is wrong and needs changing. Miss X has the right to ask records are ‘rectified’. This means any factual errors are corrected. If the Council refuses to do so, she can complain to the Information Commissioner’s Office (ICO). Parliament set up the ICO to consider data protection disputes which includes ‘right to rectification’ disputes. The ICO are better placed than us to consider if the Council should change its records.
22. We will not investigate how the Council dealt with Miss X’s complaint as it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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Final decision

23. We will not investigate this complaint. This is because there is not enough evidence of fault or injustice to justify an investigation. In addition, there is another body better placed on the data protection issue.

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Investigator's decision on behalf of the Ombudsman