The Ombudsman's final decision:
Summary: Ms X complains the Council’s Education Welfare Service failed to provide enough support when her son was increasingly absent from school and only tried to prosecute her. However, the Ombudsman has not identified fault with the Council’s approach. By the time it received a referral from her son’s school several typical measures had already been attempted to improve his attendance. Although these were reviewed by the Council at later meetings, its decision to quickly send the case to its court panel for review was something it was entitled to do.
- Ms X complains there was administrative fault by the Council’s Education Welfare Service (EWS) in the period April 2016 to July 2017 causing her injustice. She says EWS failed to take into account relevant information about her son, who I will refer to as Y, and the family’s circumstances and inappropriately pursued enforcement action against her.
What I have investigated
- I am only able to investigate the actions of the Council in this case. I am not aware of any complaints made by Ms X to another council who had some involvement in this case, so I have not investigated their role.
- There are several other organisations involved in this case who are outside of the Ombudsman’s jurisdiction. Two in particular were significantly involved – Y’s school and the Youth Offending Service. However, I cannot investigate their actions or assign fault to them, as they were acting in their own right rather than on behalf of the Council.
- This complaint is centred on the impact of the Council’s actions on Ms X. As a result, I have not investigated how the Council’s approach may have impacted on Y. He is now old enough to make his own complaint about that if he wants.
The Ombudsman’s role and powers
- 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)
- If we are satisfied with a council’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)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
How I considered this complaint
- I spoke with Ms X and considered what she had to say. I read the material she sent me in support of her complaint. We asked the Council for documents about the complaint and I have carefully reviewed them. We also asked a neighbouring council for some documents relating to its assessments of Y.
- Although it was not subject of my investigation, I wrote to Y’s school to ask it to comment on some points made by the Council.
- The government has issued statutory guidance for local authorities called ‘School attendance parental responsibility measures’. This can be found online at https://www.gov.uk/government/publications/parental-responsibility-measures-for-behaviour-and-attendance.
- I shared my draft decision with Ms X and the Council and I invited them to comment on it. I considered comments made by both parties.
What I found
- The Education Act 1996 puts a clear duty on parents to ensure their child attends school unless their absence is approved by their headteacher. Local authorities have a responsibility to ensure every child of compulsory school age in their area has access to education. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school.
- EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance. EWOs also conduct occasional audits of the register in each school to identify children at risk of increasing absence.
- Ms X says Y had good levels of attendance throughout most of his years in secondary school but, in Year 10, started to become the target of bullying. She says this was from other children and teachers at the school. Y’s attendance levels started to drop and, in May 2016, he was excluded for fighting. Ms X says the Council’s EWO was aware of Y from this point but she was not contacted and was offered no support. Y went back to the same school for Year 11 in September 2016 but his attendance issues only worsened.
- The Council provided an email its EWO received from Y’s school in May 2016. It mentioned three children and, in relation to Y, said he had been referred to social services in the neighbouring council’s area where he lives with Ms X. Although his attendance at that point was 89% he was ‘refusing to cooperate and is deciding not to attend school’. As a result of a discussion between the school and the EWO, the Council says the school agreed to continue managing the situation. The school told the Ombudsman it was taking steps to manage Y’s attendance but did not have a formal agreement with the Council to do this.
- There was no further contact from the school specifically about Y until September 2016. The school again emailed the EWO asking for advice about what to do as it said Ms X had stopped telling it the reasons for his continued absence. The Council says the school was intending to arrange a multi-agency meeting about Y. There is no evidence of more action on this case until 15 November, when the school emailed the EWO to invite her to the multi-agency meeting and to formally refer Y’s case to the Council. This is the point at which the Council accepts it became involved.
- Two days later, the EWO met Ms X at a child in need meeting. The EWO says she ‘outlined the parental duty in regards to unauthorised absence’ and pointed out the steps already taken by the school to try to encourage Y to attend. Ms X says she only spoke to the EWO on the fringe of this meeting. An attendance meeting between the EWO, school and Ms X was scheduled for 24 November but Ms X did not attend. The following day the school issued a ‘court warning’ letter to Ms X, on behalf of it and the Council. This told her that, unless Y’s attendance improved, she could be prosecuted.
- Ms X complained to the Council about the court warning letter. She says she was open to accepting any help that was offered and felt unable to get Y to attend school, despite her best efforts to do so. She was unhappy with the tone of the letter and felt it did not reflect the true situation. The attendance meeting took place on 1 December at the school. The minutes of the meeting record an intention to carry on customising Y’s timetable, alongside the existing measures to encourage him to attend more.
- Y’s absence from school continued and Ms X carried on updating the school and the EWO on a regular basis about it. She asked if home schooling could be organised for the new year.
- There is evidence the EWO contacted Y’s social worker to discuss his case and whether a parenting order had been considered. The social worker, who works for the neighbouring council, advised it was not an option at that time. Meanwhile, the EWO continued to ask the school to provide evidence of the actions it had taken, as the case was going to be referred to the Council’s ‘court panel’ to consider what action to take against Ms X. The EWO had not told Ms X of her intent at this point as she wanted to get the evidence together first.
- On 4 January 2017, after the Christmas break, Ms X again emailed the school and EWO to say Y would not be attending. She said he wanted to be schooled at home and asked for work to sent home. Shortly after this, Y was given an Education Requirement Order by the youth court as part of a sentence in criminal proceedings. This saw the Youth Offending Service (YOS) from the council area Y lives take a greater role in the issue of his education.
- The EWO attended another child in need meeting on 12 January. The Council says Ms X again expressed a wish to home school Y but the EWO wanted to discuss with YOS whether that was possible given the court order. While this was happening, the EWO told Ms X the expectation was Y would attend school. The prospect of home schooling was eventually refused on 30 January at a panel meeting in the neighbouring council’s area.
- There was another court hearing in early February and the Education Requirement Order was removed. Ms X believes this was so her request for home schooling could happen. The Council invited Ms X to its court panel on 21 February. As is typical at such meetings, Ms X was placed under criminal caution. The meeting ended with an agreement to meet again on 9 March. However, events intervened before then. Y was hospitalised and then arrested by the police.
- Eventually, on 5 April 2017, the Council took the decision to abandon the court panel process against Ms X, due to a change in Y’s personal circumstances meaning he would not be attending the school again.
- This case involves several authorities and organisations outside of the Ombudsman’s jurisdiction, as well as a council which Ms Y has not complained to or about. My investigation has therefore been limited to the actions of the Council named at the top of this statement. I have decided the period I should investigate runs from 15 November 2016 to 5 April 2017. Those are the dates between the formal referral to the EWO and the Council’s decision to stop considering legal proceedings against Ms X.
- There is no evidence to suggest the Council knew or should have known the EWO needed to intervene before 15 November. Nor is there any specific national guidance or local policy which says it should have. The school did not make the formal referral until November and, until that point, there were only a few emails about Y sent to the EWO. In May 2016, the evidence shows Y’s school attendance was at 89% for the year. This resulted in the school continuing its work to improving his attendance, particularly as it wanted to keep a good relationship with Ms X. A later email said the school was going to arrange a multi-agency meeting about Y, but that was not actually done until the November referral was made nearly two months later.
- The Council told me it would have expected the school to have made the formal referral sooner, in September when the problems continued rather than waiting until November. I cannot hold the Council responsible for the actions of the school.
- Once the EWO became involved, it seems she believed the school had already taken all reasonable steps to encourage Y to return to school. These were discussed at the 1 December attendance meeting with Ms X present. Ms X had the opportunity to bring up the bullying she says Y suffered from. A number of actions for all parties are recorded on the minutes. However, there were several instances where Y still did not attend school after this point and so, on 16 December, the EWO told the school the case would now go to the court panel.
- Ultimately, this was a matter of professional judgement for the EWO, who is a trained officer of the Council. Without any specific law or policy saying otherwise, it is not for the Ombudsman to reach a different conclusion solely on the facts of the case. I appreciate Ms X believes the EWO should have done more to support her. However, the law does not say the Council had to offer any specific support to Ms X or Y before taking the case to its court panel. As the court panel is itself an opportunity to hear both sides of the argument and ask questions of both parties, it is open to it to agree other action should take place before a prosecution is pursued. There is evidence that happened in this case.
- There is no evidence to support Ms X’s complaint the EWO or the Council failed to consider relevant information about Y in the period I have investigated. For example, a YOS worker suggested to Ms X and the EWO in January 2017 that Y might be an ‘emotionally based school refuser’. However, this was based on a telephone conversation with Ms X and the EWO did not agree with that assessment as she felt there was no evidence for it. It was given further consideration when the court panel met the following month and minutes of the meeting say the Council asked Ms X to provide a report from Y’s psychologist, who he was due to see shortly afterwards.
- I have concluded the EWO met with and emailed Ms X on several occasions and was consistent in her approach. Ms X did not like that approach, and believes not enough was done to help her, but that is not a reason for me to say it was fault by the Council.
- There is no evidence of fault in how the Council investigated Y’s absence from school and decided more formal action was needed against Ms X.
Investigator's decision on behalf of the Ombudsman