Summary: Ms X complained about the Council’s disproportionate enquiries into the education she provided to her child at home. We have found one area of fault because the Council took long to resolve the matter. This caused avoidable distress to Ms X. However, the Council has already apologised to her, and we consider this to be a suitable remedy. We did not find evidence that Ms X was bullied by the Council or that it should not have made the enquiries it did.

The complaint

1. Ms X complained about the Council’s disproportionate enquiries into the education she provided to her child at home. In particular, she complains about:

• the Council making repeated, unlawful and unnecessary demands to see examples of her child’s school homework and progress;
• being bullied, threatened and coerced by the Council;
• ignoring her requests for clarification about what was expected; and
• the time taken to resolve the matter.

2. Ms X says she provided the Council with sufficient evidence her daughter was being properly educated. The Council’s actions effectively questioned her honesty and integrity and caused her significant distress, time and trouble over a prolonged period of time.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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How I considered this complaint

5. I considered the evidence provided by Ms X. I wrote an enquiry letter to the Council. I considered the response that included a copy of its “Policy and Procedures for Home Education”.
6. I considered Department for Education (DFE) Guidance – “Elective Home Education: Guidance for Local Authorities” and “Elective Home Education: Guidance for Parents”.
7. I considered the High Court decision of Goodred v Portsmouth City Council (2021) EWCH 3057 Admin
8. Ms 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

Relevant law and guidance

Home education

9. Parents have a right to educate their children at home (Section 7, Education Act 1996).
10. 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.
11. 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.
12. 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.
13. Where parents do not provide sufficient evidence, and it appears the child is not receiving a suitable education at home, a council may serve a notice requiring parents to provide that evidence. I have referred to this as a section 437 Notice.

The Council’s Elective Home Education (EHE) Policy

14. This states the will take the following factors into account when assessing whether an education is suitable:

• Where the education takes place.
• When the education takes place.
• Resources/materials used.
• Educational content.
• Evidence of learning and progress.
• Appropriate for child’s ability, interests and future choices.
• Access to accreditation where appropriate.
• Access to learning that will benefit adulthood.
• Opportunities for socialization and interaction.

What happened

15. This is a summary of key events and is not intended to describe everything that happened.
16. Ms X educated her child, Y, at home when she was unable to attend school.
17. In September 2021, the Council contacted Ms X by telephone advising her that a visit would take place to check how Y was being educated and check on her work. Ms X objected to this approach, describing it as “heavy handed” and intimidating.
18. The next contact received by Ms X was in December 2021. The officer (Officer J) allocated to oversee Ms X’s case wrote a letter explaining the Council had a legal duty to ensure home education was suitable. Officer J offered to meet both Ms X and Y to discuss this and address any queries they may have. In the alternative, Ms X could also submit written information about the suitability of Y’s education.
19. Ms X declined a meeting. Instead, she submitted a report, setting out the scope of Y’s home education.
20. In response, the Council, whilst commending the description of the home education, asked for more information including evidence of progress.
21. Ms X objected to this and said she was under no obligation provide the evidence requested. She felt her integrity was being questioned. She said the Council could only ask for more evidence if it had concerns about the quality of the EHE. She asked the Council to be more specific about its concerns.
22. In response, Officer J explained that whilst she was able to provide positive feedback on report provided by Ms X, she as unable to make a judgment of suitability based on that alone. To resolve the issue, Ms X was invited to attend the Council’s EHE Panel (the Panel). This would give Ms X the opportunity to present additional evidence specifically about “evidence of learning and progress”.
23. Ms X said she did not need to provide more information and was not comfortable about attending the Panel. She set out her reasons in a formal complaint.
24. The Council maintained its position that the report alone was insufficient, and it needed to see examples of Y’s work in order to satisfy itself that Y’s education was suitable. The Council said if this was provided, Ms X would not need to attend the Panel.
25. In April 2022, Ms X provided the Council with an updated report, citing examples of work and progress made. She was told this was not enough and the Council still needed to see examples of Y’s work. Ms X did not do so.
26. In July 2022, the Council issued a section 437 Notice.
27. Ms X then provided another, more detailed report, as well as a report from an independent social worker. This satisfied the Council that Y was receiving a suitable education.

Ms X’s complaint to the Council

28. Ms X made a formal complained to the Council about the Council’s disproportionate approach to her case.
29. In response, the Council accepted:

• the process took long and apologised; and
• Officer J had made reasonable and proportionate enquires as to the suitability of education.

30. Ms X’s complaint was partially upheld. Dissatisfied with this outcome, Ms X asked for her complaint to be escalated to stage two of the Council’s complaint procedure. She said:

• she had been bullied, threated and coerced for months by Officer J;
• the Council’s position about her evidence was contradictory. The initial report had been described as “fabulous”, yet additional evidence was still demanded;
• she was not told why Y’s education was deemed unsuitable, despite asking for an explanation several times;
• the Council ignored the DFE Guidance that said, “if the child is following the national curriculum, this would indicate a child is receiving suitable education”;
• it was not up to her to prove the education was suitable; and
• Y did not consent to her work being shared with the Council.

31. In response, the Council said (insofar as is relevant to my investigation):

• it was entitled to make the enquiries it did, and it was proportionate and reasonable to request evidence of work and progress; and
• there was no evidence of bullying by the case officers.

32. The complaint was not upheld although the Council accepted there had been some delay in the process and repeated its previous apology. It also gave a commitment to review its processes to avoid delay in other cases.
33. Dissatisfied with this outcome, Ms X brought her complaint to the Ombudsman.

Analysis

34. The Council has a statutory duty to ensure children receive a suitable education. In the case of home-schooled children councils are entitled to make informal enquiries of parents to establish what education is being provided.
35. The DFE guidance to parents states, “some local authorities will ask to see the child, as well as seeing examples of work done”.
36. In this context, I will consider Ms X’s separate areas of complaint.

The Council making repeated, unlawful and unnecessary demands to see examples of her child’s school homework and progress

37. Ms X feels the Council was not entitled to demand examples of Y’s work and her report was sufficient.
38. I disagree. The DFE guidance says councils are entitled to ask parents for detailed information about the education they are providing. While I accept it may not be necessary in every case, in my view, having sight of Y’s work was sensible and reasonable approach for the Council to have taken.
39. The Council’s EHE policy makes it clear that “evidence of education and progress” is one of the factors to be considered.
40. The Council was not saying that Y’s education was unsuitable. Rather, it did not have enough evidence to demonstrate it was suitable. There is an important difference here. The Council decided more information was needed and explained examples of work would be the most appropriate way of doing so. It also offered Ms X the opportunity to discuss this face to face, either informally or at the Panel. Again, this was a reasonable approach and one I would not criticise. In the end, Ms X satisfied the Council without providing work examples that the education was suitable. This clearly shows the Council did not take an overly restrictive approach.
41. Ultimately, it was for the Council, not Ms X, to decide whether her report was enough to demonstrate “education and progress”. Nor is it the role of the Ombudsman to comment on this specifically.
42. Overall, I satisfied the Council acted in accordance with both the DFE Guidance and its own policy. There was no fault.

Ms X was bullied, threatened and coerced by the Council

43. Having reviewed all the correspondence between Mr X and the Council, I found no evidence of the Council acting inappropriately towards Ms X. On the contrary, I found its tone to be both polite and respectful and with the sole intent of finding a resolution.
44. The actions taken by the Council, such as suggesting a meeting with Ms X and Y and offering her the opportunity to attend the Panel were, in my view, entirely reasonable and were sensible ways to try and resolve the ongoing impasse. I do not interpret them as threatening or bullying. Similarly, the content of the section 437 Notice was what I would expect to see in a legal document.
45. By saying this, I do not intend any disrespect towards Ms X and how she felt. However, I must consider the evidence impartially, and from what I have seen there was no evidence of fault by the Council in how it communicated with Ms X to try and resolve this matter.

The Council ignored Ms X’s requests for clarification about what was expected

46. Having reviewed the evidence, I am satisfied the Council made it clear to Ms X why her report alone was insufficient. In several letters, different members of the EHE team explained its rationale and suggested providing examples of work would resolve the issue. In my view, it was a case of Ms X not agreeing with the Council’s position, rather than the Council not providing clarification.
47. There was no fault by the Council.

The Council took too long to resolve the matter

48. In both complaint responses the Council accepted the case was allowed to drift unnecessarily. I agree. Ms X submitted her second report in April 2022 but did not hear anything further until she was sent the section 437 Notice three months later. I consider this delay to be fault, albeit, relatively minor in the context of this complaint.
49. The Council has already apologised for this delay during its complaint handling, and I consider this to be a satisfactory resolution. This means there is no outstanding injustice and so no further action is necessary.

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Final decision

50. I have identified one area of fault and the Council has already made a suitable remedy. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman