Summary: Mr X says the Council refused to examine its policy on school non-attendance when he queried whether it was compatible with equality legislation. He says he was fined under that policy for his son’s non-attendance at school unfairly. The Council has not shown it considered his complaint. Mr X was caused an injustice because he did not know if his complaint was properly considered and whether the outcome would have been different if it had. We have suggested a remedy, which the Council has accepted.

The complaint

1. Mr X complains that the Council:

• has an unfair policy on school attendance, which has penalised him for his son, D’s, non-attendance at school even though he did not have an opportunity to make an application for D to take authorised time off school, and
• has refused to take his concerns seriously by reviewing whether its policy is compatible with equality legislation.

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The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. 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)

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How I considered this complaint

5. I have spoken to the complainant, made enquiries with the Council and researched the relevant law and guidance.
6. Both the complainant and the Council were given the opportunity to comment on the draft decision in this complaint.

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What I found

Relevant law and guidance

7. Parents have a duty in law to ensure their children receive an education. A failure to meet this duty on the parent’s part is an offence under Section 444 of the Education Act 1996, (the Act).
8. The Department of Education has issued guidance, “Parental responsibility measures for school attendance and behaviour (January 2015)” (the Guidance), to aid Councils administration.
9. Penalty notices are interventions available to promote better school attendance and behaviour. They are fines imposed on parents as an alternative to prosecution for failing to ensure that their children regularly attend school.
10. It is for individual governing bodies and local authorities to decide whether to use them.
11. The Guidance says that a parent is defined as:

• All natural parents, whether they are married or not;
• Any person who has parental responsibility for a child or young person; and,
• Any person who has care of a child or young person i.e. lives with and looks after the child.

12. The local authority and school decide who comes within the definition of parent in respect of a particular pupil when using the legal measures, but generally parents include all those with day to day responsibility for a child.
13. Penalty notices can be issued to each parent liable for the attendance offence or offences.

The Council’s Penalty notices protocol

14. Every local Council is required to publish a Code of Conduct for issuing penalty notices.
15. The Council has a policy called, “Penalty Notices”, revised in 2013. In the wording of this policy, it states that the issuing of Penalty Notices must conform to all requirements of the Human Rights Act and all Equal Opportunities legislation. There is no evidence an equality impact assessment was completed on this policy.
16. It says the circumstances where a Holiday Penalty Notice may be issued are when:

• The pupil is absent for a period not agreed or authorised by the headteacher, and
• At least five consecutive school days are lost to unauthorised absence.

17. There are limited circumstances in which the Council will consider withdrawing a penalty notice. One is where a person considers the notice has been issued to the wrong person.
18. Non-payment of the penalty notice will result in pursuance of the prosecution process under the Act.
19. The Council also has a policy, revised in 2017, called the Leave in Term Time Absence Policy, (Absence Policy). This is the policy Mr X considers unfair. It says leave should not be granted by a headteacher unless:

• it is requested in advance, and
• by a parent “…with whom the pupil normally resides,”

20. The policy also says, “There should be no ‘blanket policy’ but schools should consider individual circumstances.”

The Council’s complaints procedure

21. The Councils’ complaints procedure states that it does not apply to complaints about policy decisions made by members.

Equality Considerations

22. The Equality Act 2010, which came into force in April 2011, applies to public bodies such as councils. Councils are required to publish relevant proportionate information demonstrating their compliance with the equality duty. There is no specific duty to require councils to publish equality impact assessments.

Background

23. Mr X’s son, D, attends School P. D lives with his mother, Mrs X.
24. D and Mrs X went on holiday between 17 and 21 June 2019, meaning D missed five consecutive days from school.
25. On 18 June 2019, Mr X emailed the school. He said D would not be in school during that week as he had gone away with Mrs X. He said he understood there was a form he could fill in on Mrs X’s behalf ‘to make sure the paperwork is resolved’. He asked for the website link to the form.
26. The school sent him a Leave in Term Time form. He was told that if he had any queries, he should let the school know. Mr X accepts he received this form. However, he says he did not return the form because upon looking at it, he realised he could not complete it as he was not D’s primary carer.
27. The form does not specify that a parent has to be a primary carer. There is a place for a signature from the 1st parent/carer and a second parent/carer.
28. The Council says it does not consider that only the day to day carer of the child can make an application for leave of absence. It says this is evidenced by the fact that Mr X was sent the necessary forms to make an application.
29. On 26 June 2019 the Council sent Mr X a penalty notice.
30. On 28 June 2019 Mr X complained to the Council that he should not have been fined for D’s non-attendance.
31. He said the Council’s policy says that as he is not D’s primary carer, he was unable to make an application for a leave of absence for D during school term. He said the policy says that only Mrs X could make such an application.
32. Mr X’s reading of the Absence Policy is that because it says leave in term time can only be requested by the parent with whom a child normally resides, this excluded him from making an application for D to take leave during term time.
33. He said he thought that, for equality reasons, the Council’s policy should be revisited so that a parent in his circumstances would be enabled to make an application for leave in term time.
34. On 4 July 2019, the Council responded. It said its complaints procedure excluded certain matters relating to legal, statutory or regulatory services. It said it was therefore not in a position to progress Mr X’s concern about the fixed penalty notice he had received. It added that the relevant legislation does not allow for appeals against this issue.
35. Mr X said the Council had not properly understood his complaint. He said he agreed the legislation allows both parents to be fined. But he said the Council’s policy does not grant both parents the right to make an application for a child to take time out of school. Mr X suggests that, therefore, as he was not the primary carer and could not make an application for D to take time out from school, he had been unfairly penalised. Mr X said the Council should review his complaint.
36. On 12 July 2019 the Council responded that it was unable to change its policies as a result of a complaint. It said that, “…policies are something that are considered and decided by our elected Cabinet Members”. It said that, with this in mind, if he was concerned about the Council’s policy, he could contact a local Cabinet Member.
37. Mr X did not believe this was a fair response. He said he does not live in the Council’s area and it would therefore be difficult for him to approach a cabinet member. He also felt the Council should have addressed his concerns about whether the policy was in line with equality legislation.

Analysis

38. When Mr X emailed School P, asking for the forms to make an application for his son to take leave from school, the evidence shows he was sent the forms. Therefore, he was not excluded from making an application. He says he did not fill the forms out because he could not do so as he is not D’s primary carer. But there is nothing in the forms to indicate Mr X was excluded from making an application because he was not D’s primary carer. If Mr X had any doubts about this, he could have answered the invite for questions. Therefore, even if Mr X feels the wording of the Council’s Absence Policy is exclusionary, it did not cause him an injustice.
39. Nevertheless, when Mr X complained to the Council about being fined, the Council should have considered his complaint. The complaints team may not ordinarily look at complaints about policy, but Mr X had made the argument that a policy had so affected the process that it had caused him an injustice. It cannot be correct that, if someone makes a complaint about a policy that allegedly unfairly affects a service-user, the Council’s response is to say that the complaint cannot be looked at. Equally, if a complaint investigation revealed a flaw in a particular Council policy, a sensible outcome would be for such a policy to be changed. Mr X’s complaint was that the application of a Council policy had caused him an injustice, and this should have been considered. This did not need to involve a change in policy but a consideration of the facts of his case. I make no comment on the strength of his case. But the Council did not address it, and this is fault.

Agreed action

40. Within a month of my final decision, the Council should:
1. Apologise to Mr X for failing to properly consider his complaint about his penalty fine.
2. Reconsider Mr X’s complaint about whether it was appropriate or not to issue a fine to Mr X, taking into account the circumstances.

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Investigator's decision on behalf of the Ombudsman