Summary: We will not investigate the Council’s requests to Mrs X for information about home educated children. It is unlikely we would find fault or any significant injustice. The Information Commissioner’s Office is better placed to consider her data protection complaint.

The complaint

1. The complainant, whom I shall call Mrs X, says the Council has asked her unnecessary questions and provided personal information to third parties.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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 fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
5. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered information provided by Mrs X.
7. I considered the Ombudsman’s Assessment Code.
8. I considered Mrs X’s comments on a draft version of this decision.

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My assessment

9. Mrs X started to home educate her two primary school aged children in October 2020. She submitted her first report on their home education in January 2021.
10. The Council contacted her again in December 2021 for her annual report. She says in January 2022 she submitted a more comprehensive report than she had in January 2021. The Council asked for more information, primarily evidence of the work the children had carried out. Mrs X says these further requests for more evidence and information are unnecessary.
11. Mrs X says the Council has refused to provide her with a drat elective home education policy which she says it has referred to.
12. Mrs X says she believes that other parents received the same emails requesting information as she did. She says the emails to other parents had her children’s names and details on them.

Background law and guidance

13. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
14. 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. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
15. 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.
16. 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).
17. 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.
18. 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.
19. 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.
20. The guidance says that councils should gather and record as much information as possible from other agencies.
21. 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.
22. 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 able to demonstrate all the characteristics of an efficient and suitable education.
23. 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

24. Mrs X’s January 2021 report, was her first one, and in the early stages of home education. It is therefore to be expected the second report, a year later, may be required to have more detail.
25. We are unlikely to find fault in the Council’s professional decision to request more information for the reasons set out in paragraph three. It has made it clear in its replies to Mrs X’s complaint that it has not demanded the information.
26. Our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the organisation. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures. We will not normally investigate a complaint where the alleged loss or injustice is not a serious or significant matter.
27. The Council has clearly stated Mrs X is not under an obligation to provide the requested information. Part of the role of home educating is to provide information proving it is being provided. It is therefore unlikely we would find Mrs X has been caused significant injustice.
28. The Information Commissioner’s Office (ICO) is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes disclosing information in error to third parties. Mrs X has confirmed she has applied to the ICO. We will not look at the same issues referred to it.
29. Mrs X can make a freedom of information request for any policies she wants to see. The ICO considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the ICO.
30. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints. I consider that to be the case here and Mrs X should therefore approach the ICO about her concerns.

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Final decision

31. We will not investigate this complaint. This is because it is unlikely we would find fault or significant injustice. And the ICO is better placed to consider her data protection complaint.

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Investigator's decision on behalf of the Ombudsman