The Ombudsman's final decision:
Summary: There was no fault in the way the Council managed this issue, of a child who was failing to attend school. There was minor fault relating to an inappropriate comment in the Council’s records, for which it should apologise.
- The complainant, to whom I will refer as Mrs J, has a son who began missing school because of problems he had experienced there. I will refer to Mrs J’s son as D.
- Mrs J complains that the Council failed to provide adequate support to D in ensuring his attendance at school. She says that the Council did not provide an Adolescent Support Worker (‘youth worker’) when it promised to, and that it was only interested in threatening her with prosecution.
- Mrs J also complains about comments made in the Council’s internal records, which she found inaccurate and offensive.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. We 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, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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
- Mrs J made a request under the Data Protection Act (DPA) for the Council to delete all of its records relating to this matter. The Council complied with this request, and so it has been unable to provide me with any original records itself.
- Mrs J has provided me with a copy of the Council’s records she had obtained through a Subject Access Request (SAR), prior to their deletion. The records are partial and I cannot rely them on as conclusive evidence; but in the absence of verifiable original records, I have used Mrs J’s records to provide background information.
- I also reviewed the Council’s correspondence with Mrs J, and the local Managed Move protocol and Fast Track to Attendance procedure.
- I sent a draft copy of this decision to both parties for their comments.
What I found
- In Autumn Term 2016, the Council was made aware that D’s attendance at School A had dropped to an unacceptable level. The Council appointed a School Attendance Worker, Ms H, to D’s case.
- Ms H invited Mrs J to a meeting on 2 November, but Mrs J did not attend.
- On 6 January 2017, Ms H had a telephone conversation with Mrs J. Mrs J explained that D had suffered from bullying at School A, and that this had caused his poor attendance. Mrs J said she had asked the school to help resolve the problem but was not satisfied with what it had done.
- On 9 January, Ms H visited Mrs J and D. Ms H recorded that she had encouraged Mrs J to be pro-active, but Mrs J insisted that D needed to change schools. Ms H explained how to do this and asked Mrs J to submit an application as soon as possible.
- Mrs J applied for D to have a Managed Move to School B, but this application was rejected. According to the case notes provided by Mrs J, an appeal was made to the local admissions panel. Ms H recorded that she had contacted the panel, offering to support D’s proposed move. This was accepted and arrangements for the move made.
- Mrs J has since told me that a Managed Move was in fact only arranged for a different school, School C. She said that she and D visited School B and did not like it.
- In either case, D subsequently began to attend School C under a Managed Move.
- In May, School C said it was considering terminating the Managed Move due to D’s continued poor attendance. The school had established that D was absent for medical reasons, and that Mrs J had been unable to get paperwork to confirm this from their GP. Ms H recorded that she was concerned that the GP was being un-cooperative and that this was a risk to D’s Managed Move.
- In June, Ms H recorded that D’s attendance had improved, but was still a problem. She initiated the Fast Track to Attendance process to support D in bringing his attendance to a satisfactory level.
- On 14 July, Ms H attended a meeting at School C, with Mrs J and D. This was the 12-week review meeting for his Managed Move, but was combined with the initial meeting for the Fast Track to Attendance process. Ms H recorded that School C had wanted to fail the Managed Move, but had agreed to hold D’s place open for the Fast Track to Attendance process.
- On 1 September, D’s father spoke to Ms H and explained that he was concerned about returning to school due to the prospect of a detention. Ms H recorded that she reiterated the Council’s expectations about D’s attendance, but would investigate the detention issue. She also arranged a home visit on 5 September.
- On 4 September, D’s father called to cancel the appointment, but confirmed that he would be attending school.
- On 6 September, Mrs J called Ms H and advised that she now intended to Electively Home Educate D.
- On 17 December, Mrs J contacted the Council. She had obtained copies of the Council’s records under a Subject Access Request, and highlighted several comments which she found inaccurate and offensive. Mrs J made a request under the DPA for the deletion of its records relating to this matter. The Council complied with this request.
Legal and administrative background
- The Education Act 1996 imposes a duty on parents to ensure their child gets a full-time education that meets their needs. Failure to meet this duty is an offence. Local authorities have the power to prosecute parents who fail to ensure their child’s regular attendance at school.
- If parents are having difficulty in getting their child to go to school, the school and local authority can help.
- The Managed Move process is used to give pupils a ‘fresh start’ after a poor experience in a previous school. Its intention is to prevent a pupil from being excluded, which can have serious negative consequences for them. A Managed Move is agreed and managed between the two schools in question; the Council has only a supervisory role.
- In D’s case, he had two Managed Moves, to Schools B and C. The ultimate aim of the process is for the child to be accepted permanently on the target school’s roll, but both of D’s moves failed.
Fast Track to Attendance
- The Fast Track to Attendance process involves the agreement of a ‘parenting contract’ between the Council and the child’s parent(s) or guardian(s). It is a 12-week procedure, with a review at week 6, and is intended to identify obstacles to the child’s attendance at school, and the support the Council can provide.
- Ms H initiated the Fast Track process in D’s case when his Managed Move to School C began to falter, towards the end of the 2016/17 academic year.
- There are two broad elements to Mrs J’s complaint: (1) the alleged lack of support the Council gave to D, and that this ultimately led to her decision to home educate him; and (2) the comments in its records which she had found inaccurate and offensive. I will address each element in turn.
Lack of support
- The law says that the onus is on a child’s parent(s) or legal guardian(s) to ensure that they receive a suitable education. Where the child is enrolled at a school, this means the parent(s) or guardian(s) are legally responsible for the child’s attendance there; but councils also have a role in providing support and assistance.
- D’s attendance at School A had become unacceptable. When Ms H became involved, Mrs J told her that she wished for D to change schools. Ms H gave her advice on how to do this.
- Due to the deletion of records, it is difficult for me to say exactly how the Council was involved in the D’s applications to Schools B and C.
- And some of Mrs J’s complaints related to matters which fell to the school(s) to arrange – for example, pastoral support. The Council was not responsible for this and could not answer Mrs J’s complaints. Similarly, schools are outside of the Ombudsman’s jurisdiction and so I also cannot comment on these points.
- But I do note that there is evidence, in the records provided by Mrs J, that Ms H was involved in supporting his proposed moves to these schools. She attended meetings, and discussed with the school the difficulty Mrs J had been experiencing with the GP. Ms H was critical of the GP’s attitude and expressed concern about how this could affect D’s move.
- The Managed Move procedure itself is essentially a matter for the schools involved, in which the Council takes only a supervisory role. I cannot comment on the schools’ involvement in the process, but I can say that the evidence does not suggest that Ms H was disinterested in providing D with support through the process.
- Mrs J’s particular point of complaint is that Ms H said she would appoint a youth worker to assist D in January 2017, but then did not do anything more about this until July. Mrs J considers that this directly led to D’s eventual withdrawal from school.
- But the Council has explained that the appointment of a youth worker to support D was part of the Fast Track to Attendance process. Unfortunately, due to the deletion of records, it cannot provide me with a copy of Mrs J’s signed agreement, and so I cannot verify this independently.
- However, in the copy of the case notes provided by Mrs J, I cannot see any reference to a youth worker until 1 September. It may be that Ms H discussed a referral to a youth worker at the earlier discussions about the Fast Track process (for example, in July), but on the balance of probabilities I accept that this was not proposed before that. There is certainly no evidence that Ms H said she would make this referral in January, nor any evidence that Mrs J was chasing it earlier in 2017.
- Even if the evidence supported Mrs J’s claim that a youth worker was discussed earlier, I cannot accept her assertion that this was directly responsible for her decision to home educate D. It is clear that D experienced considerable problems with attending school, and I cannot say that that the earlier appointment of a youth worker would, alone, have resolved these.
- The evidence does not, therefore, support Mrs J’s claim that Ms H promised assistance she did not provide. Nor can I accept that Ms H did not discharge her duties towards D. It must be reiterated that the onus was on D’s parents to ensure his attendance at school, not the Council.
- Mrs J also complains generally about Ms H’s attitude. She says that she found her rude, that D did not like her, and that she appeared interested only in threatening Mrs J with prosecution.
- I cannot comment on Mrs J’s allegation about Ms H being rude, or that her son did not like her. I was not present during their conversations, and in any case, this is subjective and essentially a matter of individual opinion.
- I also cannot draw any conclusions on the comment about prosecution. I have seen nothing in the limited records available to suggest that Ms H’s aim was for Mrs J to be prosecuted. While there is reference to it in an email of 18 May (part of the SAR records disclosed to Mrs J), Ms H explains clearly that this would only become an option if D’s attendance did not improve after the Fast Track process.
- As explained at paragraph 22, it is within the Council’s power to prosecute parents or guardians for failure to ensure their child’s attendance at school. It is, therefore, important that the Council made this clear to Mrs J at the beginning of its involvement, and in fact I would consider it fault if the Council had not explained this to her.
- In the records provided by the Council to Mrs J through her SAR, there were a number of comments about which she complained. She says that they were inaccurate and offensive.
- In its response to Mrs J’s complaint, the Council explained each comment. In some cases, it said that its records simply reflected information provided by the school(s), and so could not take responsibility for the comments. In other cases, it explained that Mrs J had misunderstood the context.
- In one instance, Mrs J complained that Ms H had described her as “verbally aggressive”. She confirms that she had raised her voice on the phone to Ms H (and had later called to apologise, which Ms H also recorded), but says that, as she did not swear, this did not constitute verbal aggression.
- While it is, to some extent, a matter of opinion what counts as verbal aggression, I do not accept Mrs J’s assertion that a person must use recognised swear words to be considered aggressive.
- I am therefore, for the most part, satisfied with the Council’s explanation for the comments. However, there is one to which it does not appear to have provided an explanation. This was in an email sent by Ms H to a number of people (but not Mrs J) on 18 May, in which she referred to the Fast Track process and that it would “also keep parent in line, no messing about [sic]”.
- I discussed this comment with the Council. It said that it could not explain the context due to the deletion of records, but accepted that it was not appropriate and said that it had apologised to Mrs J for it.
- My interpretation of Ms H’s comment was that she considered Mrs J to have been un-cooperative. This, again, was a matter of opinion, which Ms H was entitled to hold if she wished. However, it is important for staff members to remain professional in their dealings with members of the public.
- While this was an internal email, which Ms H presumably did not intend for Mrs J to see, there is always a possibility that records will be disclosed through an SAR. And so I accept that it was inappropriate for Ms H to have written this in an email.
- This is fault, and as Mrs J was evidently angered by the comment, I consider it to have caused her an injustice. An apology is the appropriate remedy.
- The Council says it has already apologised to Mrs J, but it is not clear to me what it means by this. I have not seen any correspondence with her where the Council apologises for this comment. The Council should therefore either send her a letter of apology, or provide the Ombudsman with a copy of its apology if this has already been made.
- Within one month of the date of my final decision, the Council should write a letter of apology to Mrs J for the inappropriate comment in Ms H’s email, or provide the Ombudsman with evidence that this has already been done.
- I have completed my investigation. I have found fault causing injustice, but only in respect to the email comment.
Investigator's decision on behalf of the Ombudsman