Devon County Council (15 012 036)

Category : Education > Other

Decision : Not upheld

Decision date : 08 Mar 2016

The Ombudsman's final decision:

Summary: The Council acted within its powers and was not at fault when it decided to prosecute Mrs X for her son’s unauthorised absence from school.

The complaint

  1. Mrs X complains the Council did not give her enough information about when it would decide to prosecute parents for their child’s unauthorised absence from school. As a result she says when she took her child out of school for a holiday in early 2015 she was unaware the Council would initiate court action against her because she had already received a Penalty Notice for her son’s unauthorised absence within the last two years.
  2. Although Mrs X pleaded guilty in court and received a conviction and fine, she believes the Council failed to consider whether there were exceptional reasons in her case to issue a further Penalty Notice rather than to take court action.
  3. She would like the Council to review its absence from school policy and publicise it better. She would also like the Council to acknowledge it should have considered her mitigating circumstances before deciding to prosecute her.

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What I have investigated

  1. I have investigated matters that occurred before the court hearing.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))
  2. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  3. The Ombudsman cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
  4. The Ombudsman cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3)

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How I considered this complaint

  1. I spoke to Mrs X and I considered the Council’s response to her complaint. I also considered comments from the Council and the information it publishes on its website about its Code of Conduct for issuing Penalty Notices.
  2. I considered the Education Act 1996 and the School attendance parental responsibility measures - Statutory guidance for local authorities, school leaders, school staff, governing bodies and the police issued in January 2015.
  3. I gave the Council and Mrs X the opportunity to comment on my draft decision.

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What I found

  1. The Education Act 1996 says parents are under a duty to ensure their child receives a suitable full-time education, if the child is of compulsory school age. Parents who fail to ensure their children attend school regularly may be guilty of an offence and can be prosecuted by their local council. Only councils can prosecute parents.
  2. Since 2013 schools cannot normally authorise a pupil’s absence for a holiday in term time.
  3. The statutory guidance says it is for individual governing bodies and councils to decide how to use their powers to promote better school attendance.
  4. The Council’s policy is that schools are required to inform the Council when a child accrues 10 half days of unauthorised absence from school within the last six months. The Council has a number of options when dealing with a child’s unauthorised absence of over 10 half days. Relevant to this case are:
    • A Penalty Notice. These are fines of £60 issued to each parent separately. Parents will first have been warned by the school that the child’s absence from school is unauthorised. A Penalty Notice is an alternative to prosecution.
    • Court action in a Magistrates Court for a lower offence leading to a fine of up to £2,500.
    • Court action for a higher offence where there has been another absence after an earlier conviction. The Court can sentence the parent to imprisonment for up to three months.
  5. If a parent has been issued with a Penalty Notice within the last two years, unless there are ‘exceptional circumstances’, the Council’s policy is to start court proceedings. The Council says the exceptional circumstances it considers at this stage include a change in the family dynamic within that time so one parent is more responsible for the absence than the other. It says a holiday in term time would not be exceptional circumstances. The Council says its rationale for going to court for a second offence in two years is so parents are not under the mistaken impression that they can buy extra periods of absence by paying numerous Penalty Notices.

Mrs X’s circumstances

  1. Mrs X’s son has special needs and is adopted. Mrs X believes it is good for his self esteem to experience “success and affirmation”. She says the holiday she took him on would achieve this. She says she chose to take him out of school because the resort would be quieter and therefore it would more appropriately match his special educational needs.
  2. In 2014 Mrs X took her son out of school during term time. As this was an unauthorised absence of at least 10 half school days the School informed the Council. The Council decided to issue a Penalty Notice and Mrs X paid the Penalty Notice fine.
  3. In 2015 Mrs X took her son out of school again for a week’s holiday. She made the School aware. However, as his absence was not authorised, and was more than 10 half days, the School again informed the Council.
  4. As Mrs X had received a Penalty Notice in the last two years and, as the Council felt there were no exceptional circumstances, it decided to instigate court action.
  5. Mrs X pleaded guilty in Court and was fined for the offence.
  6. After the Court hearing Mrs X complained to the Council. She complained:
    • The Council had not consulted with the School about its decision to prosecute her. The Council explained it was the School who informed the Council about the unauthorised absences. It said it was for the Council, not the School, to decide whether legal action is necessary.
    • The Council had not considered if there were any exceptional circumstances to indicate legal action was not the most appropriate form of action by the Council. The Council explained a school can show discretion if a child’s absence is considered by the school to be exceptional. However once the school tells the Council of the unauthorised absences the Council will follow its flow chart of options. These are issuing a Penalty Notice or initiating court action if the parent has already had a Penalty Notice in the last two years. It told her it has the discretion to issue a second Penalty Notice within two years but would only do so in exceptional circumstances such as where family dynamics have changed. It said a holiday in term time was not an exceptional circumstance to warrant a further Penalty Notice.
  7. The Council did not uphold Mrs X’s complaint because she was aware her son’s absences were unauthorised and she had chosen to take the consequences of her actions. The Council felt she could have contacted the Council or her own legal advisor about the possible risks of removing her son from school for a holiday during term time. However, the Council accepted that its published information was not as clear as it could be. It therefore agreed:
    • To publish on its website all information about unauthorised absence policies and the flow chart for both parents and schools to access. The Council did this in November 2015.
    • To revise the ‘S2’ absence form so parents are signposted to the Council’s full process enabling them to understand the consequences of an offence before taking their child out of school during term time. The Council did this in October 2015.
    • To review its Penalty Notice leaflet to ensure parents know the consequences of a repeat offence. The Council did this in October 2015.
    • Its Education Welfare Team would contact her son’s school to ensure they are up to date with the Council’s procedures. The Council met with the School in September 2015.


  1. Mrs X has her reasons for removing her child from school so he could take part in a family holiday. However her son’s school did not authorise the absences and it had to inform the Council. The law says I cannot look at the actions of the School. The Council then considered what action to take.
  2. The Council has a policy on how it will deal with repeat offenders. It used that policy when deciding whether to start court proceedings against Mrs X. It had the discretion to decide to issue a further Penalty Notice in exceptional circumstances but felt that Mrs X’s case did not warrant it. The Council is clear that its discretion to issue a further Penalty Notice is limited to such events as a change in the dynamics in a family. It is for the School to decide whether the absence should be authorised, not the Council. However following a change in the law in 2013 the School would be limited as to what it could authorise when a parent asks to take holiday during term time.
  3. As the Council followed its procedure and considered that there were no exceptional circumstances there is no fault by the Council. The decision to prosecute Mrs X was a decision it is entitled to take and the Ombudsman cannot question it. The decision to find her guilty and fine her was the Court’s decision.
  4. Following Mrs X’s complaint to the Council, it accepted it could be clearer with the information it provided to parents. It has taken action to do this as a result of her complaint. This is what I would have recommended and therefore there is nothing more I could achieve. I do not consider this lack of information brings into question the Council’s decision to prosecute Mrs X. Mrs X was aware her son had unauthorised absence and the Council was entitled to decide to start court proceedings. Information about the possible consequences of unauthorised absences from school is widely available. Mrs X could also have sought legal advice or advice from the Council’s school attendance team before booking the holiday.

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Final decision

  1. I do not uphold Mrs X’s complaint. There was no fault by the Council and so I have completed my investigation.

Parts of the complaint that I did not investigate

  1. The law says the Ombudsman cannot investigate a complaint about the start of court action or what happened in court. Therefore I cannot consider the court hearing to prosecute Mrs X for her son’s unauthorised absence from school.

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Investigator's decision on behalf of the Ombudsman

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