Summary: The Ombudsman will not investigate Ms X’s complaint the Council issued her with penalty charge notices for her children’s non-attendance at school. This is because we cannot achieve the outcome she wants, and the court is the appropriate body to consider the Council’s decision.

The complaint

1. The complainant, whom I shall call Ms X, complains the Council issued her with penalty charge notices for her children’s non-attendance at school. Ms X says there were good reasons she took her children out of school. Ms X is also unhappy that headteachers can decide not to approve absence during term-time, and then ask the Council to issue a penalty charge notice.

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The Ombudsman’s role and powers

2. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), 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

4. I considered Ms X’s complaint to the Ombudsman and the information she provided. I also gave Ms X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

5. The procedure for a Council to enforce against non-attendance at school is for it to issue a penalty notice. If a parent accepts the penalty and pays it, the Council need take no further action. If the parent disputes the penalty by not paying it, the Council must prosecute the offence in the magistrates’ court. Only the court can consider any evidence put forward in defence and then decide whether the parent committed the offence. The Ombudsman can do neither. (Education Act 1996, sections 444 and 444A)
6. If Ms X believes the penalty charges are not justified, or have not been correctly issued, and the Council pursues a prosecution, she can put forward an argument in court. There is no dispute over whether Ms X took her children out of school. But there is a dispute about the merits of the decision to issue a penalty charge. The court is in the best place to decide the merits of the opposing arguments, as the law provides.
7. Also, the Ombudsman has no powers to consider whether a Headteacher was right to refuse to authorise a child’s absence. This is because we have no powers to consider complaints about the internal management of schools. An investigation by the Ombudsman is not therefore appropriate.
8. Ms X is unhappy with the Council’s process for administering penalty charges and would like it reviewed. The process on the Council’s website explains that only headteachers can decide to authorise absence during term-time. Schools have powers to issue penalty charges, but the Council issues them on their behalf.
9. Ms X believes Headteachers will not always make decisions in a child’s best interests, and that the Council should make an “independent judgment” about whether to issue a fine. In her complaint to the Ombudsman, Ms X referred to the different systems other councils operate. But the role of the Ombudsman is to look for fault causing injustice. It is not our role to say how councils should operate. These are decisions for council officers and elected members. We cannot therefore achieve the outcome Ms X wants.
10. Ms X has complained to the Council but is not happy with how it has dealt with her complaint. The Ombudsman will not normally investigate a council’s complaint handling if we are not going to look at the substantive issue complained about. This applies here.

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Final decision

11. The Ombudsman will not investigate Ms X’s complaint. This is because we cannot achieve the outcome she wants, and Ms X can challenge the Council’s decision in court.

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Investigator's decision on behalf of the Ombudsman