Devon County Council (18 012 473)

Category : Education > Other

Decision : Not upheld

Decision date : 31 Jul 2019

The Ombudsman's final decision:

Summary: Mrs B complains about how the Council dealt with her son’s school attendance issues. She considers the Council acted inappropriately and that this caused him to miss education he was entitled to. The Ombudsman finds no fault in the actions of the Council in this matter.

The complaint

  1. The complainant, whom I shall call Mrs B, complains the Council gave her son’s school attendance unreasonable priority over his emotional well-being and education. She complains the Council’s heavy-handed approach increased his anxiety about school and led to him missing education to which he was entitled.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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How I considered this complaint

  1. I have considered all the information provided by Mrs B about her complaint. I made written enquiries of the Council and took account of the information and evidence it provided in response. I provided Mrs B and the Council with a draft of this decision and took account of all comments received in response.
  2. While I have referred to the actions of the school in this statement, for the reasons set out in paragraph 4 above I have done so only to give a fuller picture of the context of the Council’s actions.

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What I found

Legal and administrative background

  1. The Education Act 1996 provides the basis for statutory guidance. Section 7 creates a duty for parents to cause their children to receive education at school or otherwise. This may be by education at home. A failure to meet this duty on the parent’s part is an offence under Section 444. Sections 436 to 447 cover councils’ duties and powers under the Act.
  • Section 436 of the Act requires councils to identify children not receiving an education.
  • Section 437 allows councils to serve a notice on parents requiring them to satisfy the council that their child is receiving suitable education if it comes to the council’s attention that this might not be case. It also allows councils to issue a School Attendance Order (SAO) where parents fail to satisfy them.
  • Sections 443 and 444 allow councils to prosecute parents who do not comply with an SAO, or who fail to ensure the attendance of their school-registered child.
  • Section 447 allows councils to apply to a court for an Education Supervision Order (ESO) where the council is also acting under section 47 of the Children Act 1989.
  1. 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.
  2. In a focus report about education out of school in 2011, the Ombudsman made several recommendations. These included that councils should:
  • consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
  • consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions; and
  • choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education.
  1. Where a council chooses enforcement, it has no parallel duty to make alternative out-of-school provision for the child in question. This is because the child has a place at school and there is no good reason for them not attending.

What happened in this case

  1. Mrs B reports that her son, D, had significant anxiety about moving to secondary in September 2017 and that these anxieties seemed to peak at Christmas. Mrs B and her husband first had contact with the Council’s EWO in January 2018.

The Council’s actions from January 2018 onwards

  1. The Council’s records from mid-January 2018 note C was reported to be suffering high anxiety and not sleeping. A meeting took place at C’s school and a review meeting was scheduled for a month later.
  2. Mrs B has complained the EWO suggested during a telephone call that the GP be consulted for sleeping pills for C and on a later occasion recited a racist nursery rhyme during a discussion about timetabling. These conversations were not recorded and in the absence of evidence I have not reached a view on them. When the Council investigated, the EWO recalled having suggested a herbal remedy being recommended by a pharmacist, and wholly refuted the allegation about having used a racist term.
  3. The Council’s records from early March 2018 refer to a positive meeting having taken place with Mrs B and C. Records state they were both to read up on anxiety and how others managed this, and C was to have one to one mentoring in school about worrying and anxiety. The GP did not refer C to the Child and Adolescent Mental Health Service (CAMHS) and the Council noted this. Mrs B says this was because the GP felt C would not meet the criteria for that service. In mid-March the EWO spoke to Mrs B about ‘Open Minds’, an early intervention service to support emotional well-being of young people. The records state that Mrs B said she would contact the appropriate person and arrange a meeting. The EWO sent Mrs B a PowerPoint presentation for information. On 21 March the Council’s records state Mrs B asked if her son could have three weeks off school. Mrs B says this is not correct and indicates she may have asked for a week off in addition to the two-week Easter holiday period. The EWO advised this time off would need medical evidence from the GP, and Open Minds was again suggested. The records suggest that Mrs B reported that she felt her son would not like the offering from Open Minds. A review meeting was held at the school to discuss timetabling and a space for C to relax or calm down.
  4. By mid-May 2018, C’s attendance at school was noted at 75%, with 55 authorised and 16 unauthorised absences. Team around the family (TAF) meetings had been held, involving the family and professionals involved with C, but they had not led to improved attendance. The Council wrote to Mr and Mrs B on 14 May 2018 to say that medical evidence would be required for future absences as C had had missed more than 20 sessions because of sickness. The letter warned C’s parents that unauthorised absence could lead to legal action against them. Mrs B reports she did not receive this letter.
  5. The school’s head of year asked C’s parents for medical evidence for all absences. Mrs B says this was on 4 June 2018. By 6 June this had not been provided and C’s attendance was worsening. The Council invited C and his parents to attend a ‘Fast-Track’ meeting arranged for the beginning of July, to discuss attendance and to see if there was an alternative to legal proceedings. The Fast Track process promotes early intervention to improve school attendance. It involves the pupil, their parents, the local authority and the school, and sets clear expectations for attendance and gives a set period for improvement to be made. It explains the procedures should parents fail to meet their legal responsibility.
  6. In mid-June, the Council received a letter from another GP saying he had seen C and spoken to Mr B. The GP said he had made some suggestions and would review in a month. On 20 June there was a further TAF meeting and a reduced school timetable was proposed for C. A different GP attended the meeting and the EWO spoke to them about the forthcoming legal meeting: the Council’s records indicate the GP felt Mr and Mrs B should set firmer boundaries for C.
  7. The formal fast-track legal meeting took place as planned at the beginning of July. It was noted that a reduced timetable had been put in place for C for the last part of the school year, and an action plan was set out which included counselling for C, and for his parents to continue to provide medical evidence for absences and to consider additional support from Open Minds in future.

The next school year

  1. From 5 September C was back in school on a full timetable. The Council’s records note that the GP agreed to cover sickness absences from the previous term, but not the current one. At 18 September C’s attendance was 100%. On 26 September the EWO wrote to Mr and Mrs B acknowledging that C’s attendance had improved and advising this would be monitored for a further six weeks. The letter warned that if attendance deteriorated then proceedings might be still instigated.
  2. C’s attendance did deteriorate, and the Council wrote to C and his parents again in mid-October, arranging a further meeting for the beginning of November. The Council advised that it would be considering whether an application for an ESO should be made, in addition to or as an alternative to legal proceedings for failing to ensure C’s attendance at school. A court may grant an ESO where parents need support getting their child into school. The meeting was noted as a positive one and monitoring of attendance was to continue; no action was to be taken to pursue an ESO. However, C’s attendance did not improve. A reduced timetable was again discussed and agreed. Mrs B was asked to provide medical evidence to support this, but she said C had not seen the GP for five months. C failed to comply with the agreed reduced timetable.
  3. At the beginning of January 2019, the Council wrote to Mr and Mrs B again, setting out that it needed to consider whether the appropriate course of action would now be an extension or amendment to the reduced timetable, or legal action. A meeting was scheduled for 23 January. However, the meeting did not take place because on 15 January Mrs B requested removal of her son from the school roll, effective retrospectively, from 19 December 2018. On 22 January she signed the relevant forms to confirm the decision to electively home-educate.


  1. Mrs B feels the Council was heavy-handed in its approach and that the EWO was looking for evidence of neglectful parenting. The evidence in this case does not support this. It shows that the Council followed relevant procedures when it came to its attention that C was not attending school on a full-time basis as he should have been, as a child of compulsory school age.
  2. The education welfare service does not work in isolation: it works closely with schools. The evidence in this case shows that, working in conjunction with school, help for C and his parents was offered in a variety of ways. In addition to meetings and discussions there was information about anxiety; mentoring and extra support from teachers; adjustments to timetabling; the suggestion of support from Open Minds; and advice that referrals could be made for an Education Health and Care plan or to an educational psychologist if there were evidence medical or mental health needs to support that, or for alternative provision if medical evidence was provided that C could not cope with mainstream schooling.
  3. The professional view of the Council’s officers was that C could access education at school: except for occasional periods of authorised absence for sickness the Council had not seen medical evidence to support the view that he could not do so. Taking account of all the above, the consideration of an ESO and legal proceedings against C’s parents for failing to ensure his attendance at school, and the way this was dealt with, was not affected by fault.
  4. Mrs B is concerned that her son was sent letters inviting him to the meetings, including one with the professional lead for school attendance about the possibility of an ESO, and that he was asked questions at meetings about what he had been doing at home and whether he had a uniform. However, it is not inappropriate for a young person of C’s age to be involved in discussions about their education and asked questions relevant to education and school attendance. There is no evidence of fault here.

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Final decision

  1. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman

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