The Ombudsman's final decision:
Summary: We have concluded our investigation into Mrs C’s complaint about how the Council dealt with her daughter’s attendance issues. We find that there is no evidence of fault, other than that which the Council had already identified and remedied.
- The complainant, whom I shall refer to as Mrs C, complains about how the Council dealt with her daughter’s school attendance issues. I shall refer to as Mrs C’s daughter as Ms D. Mrs C says the Council’s involvement has negatively impacted Ms D’s education and mental health. Mrs C complains:
- About the attitude of the Education Welfare Officer (EWO), who she says challenged her about Ms D’s attendance, despite Mrs C making it clear that she wanted her daughter to attend school, did not consider her views and was unprofessional during conversations.
- The EWO should have pushed for a CAMHS autism assessment sooner.
- The Council failed to provide a suitable alternative education provision, when it became clear Ms D was unable to attend school.
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)
- 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)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
- I have considered all the information provided by Mrs C about her complaint.
- I made written enquiries of the Council and took account of the information and evidence it provided in response.
- I also sent a draft version of this decision to both parties and invited their comments.
What I found
Legal and administrative background
- 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.
- 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.
- 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.
- 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.
- In September 2016, Ms D started a new school year at a mainstream secondary school.
- In May 2017, after Ms D’s attendance at school had dropped to 85% the Council wrote to Mrs C inviting her to a meeting with an Education Welfare Officer (EWO). The letter explained that further absences would not be authorised without a satisfactory reason and invited Mrs C to provide medical evidence to substantiate Ms D’s absences.
- The letter also contained a legal notice advising Mrs C of her duties under section 7 of the Education Act and the potential consequences for not complying with these duties.
- Mrs C told the Council that Ms D had been suffering from anxiety, for which she had been receiving CBT therapy. Mrs C said that Ms D had other physical medical problems, for which she had been seeking medical advice for.
- In December 2017, the Council wrote to Mrs C again. It said that Ms D’s attendance was again below the expected level, at 84.5%, and she therefore invited them both to meet with the Education Welfare Team (EWT) Manager at Ms D’s school to discuss ways the Council could support her.
- Ms D’s school attendance record showed sixteen unauthorised absences during a 4-month period. The school recorded these absences as a mixture of lateness, illness, and refusals to attend.
- After the meeting, the Council wrote to Mrs C detailing what was discussed and what actions has been agreed.
- Mrs C told the Council that the reasons for Ms D’s absences were because of anxiety and other medical reasons.
- Mrs C said her daughter had been receiving CBT for her anxiety and that she was awaiting an autism assessment from CAMHS. Mrs C said her daughter had also been seeing doctors regarding her other medical issues and was receiving treatment for these.
- The Council said it noted that Ms D had attended medical appointments and that the school had recorded these as authorised absences. The Council said that the school was able to offer Ms D Student Support services, when she found it difficult to cope in class and that there were drop-in sessions for the classes she was struggling with.
- The Council said that if Ms D’s attendance did not improve, and that Mrs C considered this was due to her anxiety, it would need confirmation from professionals that this was the case.
- In January, Mrs C wrote to the Council EWO to say that the CAMHS autism assessment had been delayed and they were unlikely to be able to progress this for some time due to staff shortages.
- Records show that Mrs C was concerned about the timescale for Ms D’s CAMHS assessment and explored other ways to obtain an assessment sooner.
- Records show that during the summer months Mrs C and Ms D stopped attending their sessions with CAMHS, after it concluded that that Ms D did not fit the criteria for an autism assessment.
- In late September 2018, the Council wrote to Mrs C again. It said that Ms D’s attendance remained a concern and it invited both Mrs C and Ms D to a review meeting to discuss this. It invited Mrs C to provide any relevant evidence.
- Mrs C attended the review meeting but said Ms D was unable to attend because she was depressed. Mrs C said she was certain Ms D had a form of autism. The Council said it was concerned that this diagnosis had not been confirmed by a professional.
- Alternative provision was also discussed and the option for Ms D to attend a Pupil Referral Unit (PRU) on medical grounds was considered. The Council said that for this option to be considered a medical diagnosis that Ms D could not attend her current school for medical reasons would been needed. It therefore told Mrs C that Ms D would need to engage with CAMHS.
- In October 2018, Ms D’s school made a referral to the Council for alternative educational provision, after Ms D’s attendance had dropped to 27.6%
- The Council contacted Mrs C about Ms D’s options for schooling. These included home tutoring and attendance at the PRU.
- Mrs C held discussions with the Head of the PRU and a visit was arranged between Mrs C, the Head and the Council.
- Ms D started at School B in mid-November 2018.
- In January 2019, CAMHS completed an assessment of Ms D and diagnosed her as having Autistic Spectrum Disorder (ASD).
- Mrs C complains about the attitude of the EWO working on her daughters case. She says he was unprofessional and confrontational.
- In responding to Mrs C’s complaint about this matter, the Council apologised for the EWO’s approach to Mrs C and for the way it made her feel.
- The Council told the Ombudsman that it had concerns about the EWO’s attitude towards Mrs C and told him he should approach parents in a more conciliatory way in the future. Since Mrs C raised her complaint, the EWO has retired from his role.
- The Council also said that, in light of Mrs C’s complaint and other complaints from parents of ‘undiagnosed children’ it planned to carry out a carry out a review of how the EWT approaches these kinds of cases. The review was delayed by the Covid-19 crisis but was now underway.
- It seems clear that both Mrs C and the Council agree that the approach that the EWO took towards her was inappropriate, and that the approach caused Mrs C some distress.
- However, the Council has apologised to Mrs C for the distress this caused and is currently reviewing the role. Furthermore, the officer involved is no longer in post. I therefore consider that the Council has taken reasonable steps to remedy the personal injustice to Mrs C and to improve its service.
- Mrs C says the Council should have pushed CAMHS to carry out Ms D’s autism assessment sooner.
- Records show Mrs C made the Council aware of CAMHS involvement in December 2017, but due to staff shortages it had been unable to complete an autism assessment.
- I do not find that the Council were at fault regarding this element of Mrs C’s complaint. The Council were aware that Ms D was due to be assessed by CAMHS and encouraged the family to engage with the process.
- There was a delay in CAMHS completing its assessment. However, the actions of CAMHS are not controlled by the Council. I therefore cannot hold the Council responsible for any failure to put the identified support into place.
- Mrs C says the Council should have arranged alternative educational provision for Ms D, after their meeting in January 2018.
- The Council has a duty to provide alternative educational provision for a child who is permanently excluded or because of illness or other reasons would not receive suitable education without such arrangements being made.
- As case law has established if a council has arranged for the provision of education which is suitable for the child and which is reasonably practicable for the child to enjoy, the Council would not be under a duty to provide alternative suitable education simply because, for one reason or another the child is not taking advantage of it.
- In this case the Council had arranged suitable educational provision for Ms D at the school she was attending. Ms D’s missed several school days during September and December.
- However, it was for the school to look at her attendance and decide if they were authorised or not. At no point did the school make a medical referral to the Council, which would have meant the Council would have had to consider alternative educational provision at this stage.
- Mrs C considered there to be a medical reason for Ms D’s absence as she believed that she had autism. However, the Council did not consider that there was evidence that Ms D could not attend school due to medical reasons and at this point CAMHS had not completed its assessment.
- The Council therefore concluded that there was insufficient evidence to show a medical reason why Ms D could not attend school. So, in effect, it was satisfied that there was a suitable educational provision for Ms D to attend.
- I am aware that Mrs C strongly disagrees with the Council’s decision. However, I do not consider that there are grounds for the Ombudsman to question the merits of the Council’s decision. This is because there is no evidence of fault in how the Council reached their conclusion.
- I have concluded my investigation on the basis that the council has already provided a suitable remedy for the fault it identified.
Investigator's decision on behalf of the Ombudsman