The Ombudsman's final decision:
Summary: When managing a student’s attendance at school and in deciding to resume prosecution for non attendance the Council acted without fault.
- In brief the complaint is when managing attendance at school the Council failed to:
- Properly support a parent struggling with her child’s attendance at school leading to the child being out of school from October 2015;
- Properly consider all factors when deciding to prosecute for non-attendance.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
- 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)
- The Ombudsman cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
- The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal (Local Government Act 1974, section 26(6)(a))
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
How I considered this complaint
- In considering this complaint I have:
- Spoken with Ms X;
- Put enquiries to the Council and studied its response;
- Reflected on settled law and regulations;
- Shared with Ms X and the Council my draft decision and reflected on comments received.
What I found
- Under the Education Act 1996 (section 7) parents are responsible for ensuring their children receive full time education. If a child who is registered on a school roll fails to attend regularly at school then the child’s parents are guilty of an offence.
- Schools are responsible for handling day to day contact with parents and pupils and carrying out action to tackle non- attendance. Schools are outside the Ombudsman’s powers.
- The Council is responsible for prosecutions for non-attendance at school. Before absences reach the level to trigger a prosecution the Council’s Education Welfare Service engages with the school, parents, pupils and any other agency that may help encourage attendance. If interventions do not work then it will consider if it should start a prosecution.
- Under a pan London agreement the council in which the school is situated has responsibility for managing school attendance and prosecuting for non-attendance. However, where Children’s Social Care raises concerns it will be the council in whose area the pupil resides that will have responsibility for social care and education. So it becomes responsible for social care, special educational needs and under single point of access arrangements managing school attendance.
- AB attends a school in a neighbouring borough so during 2013 to 2014 any attendance issues fell to the neighbouring authority and so the Council could not accept any referrals. Once children’s social care raised concerns the Council became responsible for managing attendance.
- The Council may issue a school attendance order and prosecute parents for failing to ensure regular attendance at school. This may lead to a fine or in severe cases imprisonment.
- The Council’s website says its Education Welfare Services works alongside schools and various agencies to support families to overcome difficulties in attending school. It provides advice, contact and support to parents and pupils on education matters.
- The special educational needs service will on receiving a referral from a parent or school assess whether a pupil has special educational needs that need a service. The Council will issue an Education Health and Care Plan (EHCP) and if a parent disagrees with the provision in that plan they may appeal that to a Tribunal.
- In October 2015 the Council received a referral from a neighbouring authority saying AB had been absent from school without authorisation. The Council tried to meet with Ms C in October but could not arrange a meeting until November 2015. At the meeting officers considered her complaints about the services offered. The Tribunal had recommended the school assess how well AB progressed. This, the Council said, was a matter for the school because it saw everyday progress. AB did not have an EHCP at the time and did not meet the criteria for school transport. This meant Ms X had to take her to school by public transport which she found difficult. Ms X complained to the Ombudsman about the handling of the school transport issue and the Ombudsman issued a decision on 27 June 2016 about school transport.
- The Council wrote to Ms X on 24 November 2015 telling her it had received a referral for non-attendance by AB from 16 October 2015. It says:
“...Attempts at welfare visits during the absence from school have been unsuccessful as Education Welfare staff have not had a response when they have called at your home...”
- The letter continues with an invitation to attend an Attendance Improvement Meeting to identify any barriers preventing AB from attending school and to assess what support can be offered to improve attendance. The letter enclosed a leaflet outlining the parents’ duties and the Council’s services.
- The Council arranged two Attendance Improvement Meetings in December 2015. These meetings provide an opportunity for the Council and the parent to discuss the parent’s duty to ensure attendance and any need for support from the Council to help ensure the pupil attends. When Ms X did not attend the meetings the Council issued a warning letter explaining that she may face prosecution if she does not ensure AB’s attendance at school.
- In January 2016 the Council issued a further court warning letter. The Council says Ms X refused to allow officers access to her home on an unannounced visit but agreed to a visit on 18 January 2016. The Council says officers explained AB did not meet the criteria for school transport. Ms X explained the 30 hours per week journey on public transport to get AB to school had become unmanageable. Officers offered an Oyster card to help Ms X with the costs of the journey accompanying AB to school. Officers discussed transferring AB to another school in Richmond but say Ms X told them she would not consider a school in Richmond. She feared they lacked the diversity needed by AB.
- Social Care became involved and because of its concerns called a child protection conference. At this meeting both AB and her sibling were placed on Child Protection Plans. From this point social care and the family’s social worker became the lead on support for the family. Education Welfare would provide support if asked to by child care services.
- At the same time the Council drew up a new EHCP. The Council shared this with Ms X, and in July 2016 it issued the final EHCP which included 19.5 hours added support for AB. The Council believed this met any barriers to AB attending school and expected Ms X to ensure AB returned to school. Ms X disputed the provision in the EHCP and appealed to tribunal. That hearing will take place in December 2016. Meanwhile the Council arranged for the extra support and says by September 2016 it had put in place the placement and support named in the EHCP.
- Having threatened to prosecute for non-attendance in its letters of December 2015 and January 2016 the Council decided not to continue with the prosecution. It says the new EHCP and extra support for AB would help her attend school and it wanted to give Ms X the opportunity to take up the placement.
- However, in August 2016 at a Child Protection Core Group meeting Ms X said she and AB’s father did not accept the need for the Child Protection Plan. The Council says they told the meeting they would not engage with the plan or accept any support from the Parent Advocate or Solicitor recommended by the Council. They also said they would not accept any further visits from social workers.
- The Council says officers invited Ms X to apply for school transport to help AB get to school because she now she had an EHCP plan and met the criteria for support. The Council says it invited applications on three occasions. However, officers say in response Ms X said she would not apply until the Council agreed to place AB at a specialist school of her choice.
- Ms X and AB’s father did not attend the next Child Protection Core Group Meeting in September 2016. The social worker said she had not seen the children for over two months. A further EHCP assessment had been refused for AB’s younger sibling and the school confirmed both children had not attended.
- In October 2016 the Council reviewed progress and decided to re-start the prosecution process. It wrote to Ms X with the first warning letter that court action would follow, if AB did not attend school.
- The Council says it has no duty to provide alternative education provision even though it knows AB has not attended school since October 2015. It says AB’s school can meet her needs with the extra support provided under the EHCP. To fulfil its duty the Council has:
- Assessed AB and issued an EHCP;
- Provided the support required under the EHCP;
- Provided a school place at the named school;
- Offered a transfer to other schools in Richmond.
Appeal to SEN Tribunal
- From the date of Ms X’s appeal to Tribunal in July 2016 any issue about provision of education or AB’s placement falls outside the Ombudsman’s remit.
Analysis- was there fault leading to an injustice.
- My role is to consider whether the Council managed AB’s absence from school without fault. It is not to judge the reasons for non-attendance or professional views on what may best help AB attend the school offered.
- The responsibility for ensuring attendance at school lies with parents. That is the law. Councils may offer support and help in dealing with problems getting children to school but are not responsible for attendance.
- When meeting with Ms X the Council says Ms X refused to engage with it. Until she referred AB for assessment for an EHCP she did not meet the criteria for school transport. Once she did the Council says Ms X refused to apply for it.
- Ms X is unhappy with the school provision and has appealed against it. That lies outside my remit. Meanwhile the Council expected AB to attend the provision available to her but she did not. The Council says it could not offer any further services that would help Ms X get AB to school. Her reasons for not ensuring AB attended the school the Council believes are met by the support offered under the EHCP.
- The Education Welfare Service became involved in October 2015 when it advised that a neighbouring borough had responsibility for managing school attendance under the Pan London agreement. However, the family now had need of other children’s services so the Council decided it would manage non-attendance. It contacted the school and Ms X in October 2015, trying to meet her at home. It did meet with her in November 2015, but not at home until January 2016. Meanwhile it had checked with the School the School had examined the complaints Ms X made about the school and it said it had. It looked into whether help could be given with transport but discovered AB did not meet the criteria. It offered an Oyster card.
- From February 2016 the family’s social worker became the lead officer. Education Welfare Services therefore took a step back and would act if the social worker referred any issues to it. So the Education Welfare Service involvement lasted from October 2015 to February 2016 during which period it offered the support outlined in the previous paragraph. From then until September 2016 it did not have a role because other services had taken over support for the family. Then in September 2016 it decided AB was still not attending school and action should be taken so it started the prosecution procedure again.
- I cannot see that Education Welfare Services failed to engage with Ms X’s concerns or offer support. It may not have been the support expected or desired.
- The Council suspended the prosecution for non-attendance to give it and Ms X time to see if any concerns could be addressed and the barriers to attendance removed. Once it had in place the support required under the EHCP the Council expected AB to attend. When she did not the Council began the prosecution process afresh. It did so having before it all relevant information about AB’s attendance and the reasons for not attending. Therefore it acted without fault.
- The Council’s Education Welfare Service acted without fault in engaging with Ms X on the reasons for AB’s non attendance at school and in offering support and in deciding to resume the prosecution procedure. Therefore I cannot uphold the complaint.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman