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Do home educating families have a viable means of redress when their local authority conducts itself unreasonably during its enquiries?

Much has been said in the House of Lords during the passage of the schools Bill, in respect of remedies available to home educating families if their local authority does not act reasonably. This brief analysis examines the facts behind that contention.

A parent can complain to the local authority.

Freedom of information requests made in April 2021, to all local authorities in England, found that of the 123 complaints made to local authorities about the conduct of home education staff, only 31 (25.20%) were upheld. Complaints were received by 40 (26.32%) local authorities, with the highest percentage of complaints to number of home educated children being in Portsmouth (3.35%) which upheld no complaints whatsoever. Wandsworth had the second highest percentage of complaints at 2.84% of which 80% were upheld.

Parents report and evidence, that complaints made were frequently sent to the officer complained about to respond to. Parents produced evidence of standard letters being used to respond to complaints, which did not address the content of the complaint. Parents in Portsmouth received identical letters in response to different complaints.

Example: A parent provided detailed evidence to the local authority of aggressive and insulting conduct by an education officer who attended at the home without an appointment. The complaint was not upheld on the basis that the officer had denied behaving inappropriately, that she had ‘a duty to ensure that the child was receiving a suitable education’ and that she had called whilst in the area. The parent subsequently produced clear video evidence of the incident (having obtained legal advice that she could do so) which showed the officer using profanity, shouting at the parent and threatening the parent for not opening the door to her. The complaint was then upheld, but the behaviour excused on the basis of a duty described as above. (Evidence referred to held)

Although some local authorities take complaints seriously, it is evident that parents cannot rely on the internal complaints procedure in significant numbers of local authorities.

A parent can ask the DfE to revoke a School Attendance Order (SAO) if served unreasonably.

A freedom of information request made to the DfE in 2020 confirmed that no single revocation of a school attendance order had been made in respect of a home educated child by the DfE, according to its records for the previous 8 years. At that point, 8 separate requests had been submitted by the report author on behalf of parents in the previous year.

SAOs were not revoked in cases where the local authority was subsequently censured by the Court for acting in an ultra vires manner, in cases where the local authority backed down when faced with notice of judicial review and in cases where the local authority had confirmed that the education was suitable, but nonetheless served an SAO.

It is not credible that no case has been made that should have resulted in revocation in the last ten years. When this was raised with the DfE in 2020, the lead for home education replied: ‘As a government official, I cannot intervene in how the LA conducts itself in undertaking its duties’.

Example: Parent of two SEN children was served with a school attendance order for the younger child on the basis that the education officer required copies of written work for the previous 6 months. The child was aged 7 years with significant SEN. The parent had by that point produced third party reports on the education provision, together with detailed reports of her own extending to in excess of 50 pages of information. The parent obtained legal aid to bring judicial review. Immediately prior to the first court hearing the local authority withdrew the SAO. A week later the LA served an SAO for the older child.

Parents cannot rely on a system that has never been shown to work.

Parents can go to the Local Government Ombudsman (LGO).

Much has been made of the ability to go to the LGO by the Minister and the DfE in cases where the local authority policy is unreasonable, or the actions of the local authority in assessing home education provision unreasonable.

In a recent DfE meeting (25th July 2022) a senior civil servant challenged the statement made by home education representatives, that the LGO will not consider looking at complaints about local authority conduct in respect of assessment of home education. The civil servant contended that here were over 250 cases where the LGO had investigated cases relating to home education, providing a link to those cases.

There are 253 cases on the LGO results pages online which result from a search for home education. Each report was examined to analyse the relationship with home education finding that 181 cases made no mention of home education. These cases comprised complaints relating primarily to lack of provision under the Education Act 1996 s19 and failure to provide support detailed in Education Health and Care Plans (EHCPs) or delay in implementing such plans.

Of the remaining 72 cases. 52 cases were not complaints relating to home education, but home education was mentioned including:

• Child categorised as home educated in error
• No suitable school place, so forced to HE temporarily
• No EOTAS provision made or failed to meet EHCP
• Complaint about lack of support for vulnerable child
• Report states simply ‘Not electively home educated’
• Parent previously home educated
• Case about a baby, home education mentioned in passing
• Home education suggested but never undertaken
• Failure to act on previous LGO recommendation
• Father wanting information about an 18 year old former home educated child
• Abusive parent wanted children’s services to send partner home
• Absent parent complaining about lack of information sharing
• Parent wanted child classified as hard to place
• Complaint about a comment made by social worker, not HE related
• Data sharing complaint
• Failure to investigate safeguarding referral made by estranged father

Only 20 cases of the 253 categorise as home education complaints by the LGO, were in fact, complaints about actions relating to home education.

The LGO refused to investigate 10 of these cases as follows:

1. Declined to investigate complaint that the LA demanded copies of work. LGO commented: ‘Part of the role of home educating is to provide information proving it is being provided’. This directly conflicts with the Elective Home Education Departmental Guidance for Local Authorities (EHEDGLA): ‘This should not be taken as implying that it is the responsibility of parents under s.436A to ‘prove’ that education at home is suitable. A proportionate approach needs to be taken’.

2. Declined to investigate on the basis that: ‘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’.

3. Five cases in Portsmouth were declined investigation on the basis that a different parent in Portsmouth was taking action against the council, for parents unconnected to that action.

4. Complaint that an education officer looked through the window of a private home.

5. Declined to investigate a complaint concerning a child below compulsory school age and notice issued under the Education Act 1996 s437. LGO commented: ‘It is unlikely our investigation would say that even if the notice was issued with fault it has caused Mrs M any significant injustice’.

6. Declined to investigate complaint about unwarranted School Attendance Order. LGO commented: ‘We would not look at how the decision was made or whether the Order was properly issued, because if Mr J does not comply with the Order, the Council can take the matter to court. It will then be for the court to decide whether the Order should stand’.

Ten cases relating to home education were investigated by the LGO of which 4 were not related to assessment of home education provision:

1. Complaint that an education officer was rude during a meeting. Not upheld on basis of lack of corroborative evidence.

2. Council caused a 17 month delay in giving consent to remove from the roll of a special school. Upheld.
Second case of delay in agreeing home education. Upheld.
3. Complaint of failure to provide physiotherapy and hydrotherapy required by EHCP because the parent is home educating. Not upheld on the basis that home educating families must fund this themselves.

4. Complaint made by a child once adult, that he had been placed on a child protection plan as a child on the basis of neglect. The neglect being failure to teach the child science. Upheld.

Only 6 cases related to the conduct and approach taken by education staff when assessing home education were investigated:
1. Complaint that the local authority told a parent that her education provision was suitable and then asked for more information without saying why. ‘The Council was asked to apologise to Mrs P for failing to provide detail as to why there were concerns about the education she was offering to Q even when the content of that education was judged ‘at least satisfactory’. Upheld.

2. Complaint that the local authority was fettering its discretion by only accepting meetings or reports from third parties directly involved with the education provision: ‘The decision as to whether a child who is not registered at a school is receiving suitable education is for the Council. The burden of proof falls on the parent. Westminster City Council prefers to meet with home-educated children. However, it will also accept other evidence, such as endorsement by a third party, where a parent chooses not to allow the Council to meet the child. This complies with Government guidance which says that when they are unable to meet the child, councils should be able to assess a child’s education by alternative means ‘in the vast majority of cases’. Mr F believes his report and the samples of work he provided were sufficient. The Council did not. This is a decision the Council is entitled to make and there are no grounds for the Ombudsman to question it’. Not upheld.

3. Complaint that Westminster city Council failed to consider information provided by the parent and insisted on a meeting or reports from third parties directly involved with the education provision. ‘Ms X can apply to the Secretary of State to revoke the School Attendance Order under Section 442(3) Education Act 1996. I am therefore unable to investigate the Council’s issue of the School Attendance Order. Without settled law showing the Council has adopted a policy which is contrary to law it is not for me to decide whether that policy is legal I find the Council acted without fault in following its elective home education policy. Whether Ms X’s report or programme is enough to show a suitable education is a matter for the Secretary of State on referral by Ms X in response to the School Attendance Order and therefore I take no view on that issue’.

4. Complaint that the local authority insisted on samples of work and would not consider parental reports. ‘I therefore find no fault in the Council’s actions. This is because it was entitled to seek information from Ms Y about the education she provides to B and C’.

5. Complaint about the local authority manner of assessment and stressing school at home. ‘The Ombudsman cannot decide whether Miss X’s view about Y’s education, or the judgement of officers was the correct one. Not upheld.

Home educating families and representatives are right to maintain that LGO will not examine whether or not a local authority policy is lawful, as the LGO has confirmed in its reports that it will not do so.

Home educating families and representatives are right to maintain that LGO will decline to investigate complaints about the assessment of home education on the basis that the DfE can revoke a school attendance order, or the matter will go to court, as the LGO has confirmed in its reports that it will not do so.

The parent can go to judicial review

The cost of taking judicial review against a local authority is prohibitive, even with cost capping and restricted fees, this is in the region of £45,000.

Legal aid can be available for the pre action stages of judicial review, but only in extremely restricted circumstances where a parent is on means tested benefits.

On the one occasion that a parent in recent years did seek judicial review, the DfE intervened to support the local authority against the parent whilst seeking to claim that it was a neutral party. It clearly was not.

‘The department will be happy to support local authorities to test the boundaries of current case law’ (EHEDGLA)

Judicial review is neither affordable, nor viable as a means of addressing poor conduct by local authorities.

We can only conclude that home educating parents have no viable means of redress in the face of unreasonable conduct by their local authority. The current position encourages poor conduct by authorities which is supported by the DfE. There is no encouragement of good practice and no incentive for local authorities to develop positive relationships with home educating parents.

Wendy Charles-Warner

July 2022