The Ombudsman's final decision:
Summary: Miss X complained the Council failed to properly consider information about her daughter’s mental health before it decided to prosecute her for her daughter’s non-attendance at school. We find the Council was not at fault.
- Miss X complained about the Council’s decision to prosecute her for her daughter’s non-attendance at school. She said its decision was premature and failed to properly consider information about her daughter’s mental health. She said the Council failed to consider an Education Supervision Order instead of prosecution.
- Miss X said the Council’s actions have caused her significant stress.
What I have investigated
- I have investigated Miss X’s complaint that the Council’s decision to prosecute her for Y’s non-attendance was premature. The final section of this statement contains my reason for not investigating the rest of the complaint.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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)
How I considered this complaint
- I discussed the complaint with Miss X.
- I made enquiries of the Council and considered its response and evidence provided.
- I considered the relevant law and statutory guidance including the Education Act 1996 and ‘School behaviour and attendance: parental responsibility measures’ Department for Education January 2015.
- Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. 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 the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
- The legislations states, that before prosecuting parents, the local authority must consider whether they should apply to the court for an Education Supervision Order. An ESO is placed on the child and the local authority is appointed by the court to supervise that child’s education, either at school, or at home for a specified period.
- Where a child or young person is identified as having emerging needs, a lead professional completes an Early Help Assessment and support plan. Depending on the young person’s needs, they may also refer into the Council for additional support. The lead professional remains responsible for reviewing the plan.
The Education Welfare Service
- The Council’s Education Welfare Service is responsible for providing advice and support to schools, parents and children about school attendance. It is also responsible for prosecuting parents when they have failed to secure their child’s attendance at school.
Education Health and Care plans
- A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
- Y attends secondary school. At the end of year seven, her attendance began to deteriorate. The school completed an Early Help Assessment. That said despite home visits and meetings Y was refusing to attend school. Miss X reported she was struggling with Y’s behaviour and she believed Y may have an undiagnosed behavioural need.
- Following that assessment, the Council allocated a Family Support Worker to provide Miss X with support and allocated Y a Youth Engagement Worker. The school agreed to refer Y to ‘Healthy Minds’ to provide Y with mental health support.
- The school reviewed the Early Help Plan on a regular basis. Despite Miss X’s engagement, Y’s attendance at school did not improve. She struggled to engage with the Youth Worker. The school referred Y to the Pupil Support Service to assess her social communication and interaction ability. That was completed in June 2018. That assessment did not identify Y as having social or communication needs.
- At the start of the September school term, Y attended one day. She then stopped going to school. The school held an Early Help review. It gave Y a part-time timetable and removed a specific subject she reported as not enjoying.
- Y’s attendance did not improve. The school wrote to Miss X on 20 September to arrange an attendance meeting for the start of October. At that meeting Miss X and the school made an ‘Attendance Agreement’. That include further support for Y at school including counselling. Miss X took Y to see her doctor, who referred her to Children and Adolescent Mental Health Services (CAMHS).
- The school reviewed the attendance agreement mid-October. That meeting was attended by an Education Welfare Officer. That review indicated there had been some progress, with Y attending three days out of a possible seven. A further review in November indicated that progress did not continue despite the school providing incentives to encourage Y’s attendance.
- At the start of November, Miss X asked the Council to assess Y for an Education, Health and Care Plan. The Council agreed to the assessment.
- Y saw CAMHS in December. It discharged her in January 2019. It said there was no evidence of a significant mental health issue, however recommended a referral for a further autism assessment. That assessment was agreed by a multi-agency panel in February 2020.
- In January 2020 the school asked the Council to prosecute Miss X for Y’s non-attendance between September 2019 and mid-November 2019. The Council subsequently sent Miss X the court documents which included details of the prosecution. In these the Council stated “An Education Supervision Order was considered but deemed inappropriate due to parent’s poor co-operation”.
- Miss X contacted the Council about the wording of the statement of facts stating she had engaged with the school and support provided. The Council sent Miss X a revised statement of facts at the start of March. It apologised for the inaccuracy in the original document.
- The Council issued Y an Education Health and Care plan in May 2020. That included advice from an educational psychologist. The plan recognised Y’s difficulties in attending school and recognised she needed support with it. It recorded her autism assessment as on-going.
- Miss X complained to the Council in July 2020. She said she had had been in continual contact with the school about Y’s non-attendance. In addition, she said since the Council’s decision to prosecute, Y had been assessed by an educational psychologist and the Council had issued Y an EHC plan. She said she thought the Council’s decision to prosecute was premature.
- The case records show the Council considered the information provided by Ms X, and the content of the EHC plan but decided to continue with the prosecution as it had no medical evidence stating Y was unfit to attend school.
- The Council wrote to Miss X and said it had decided to continue to take legal action as Y had 15% attendance for the offence period and had continued to not attend school. It said the EHC plan offered no justification for the level of absence. It said the school had offered support during the offence period.
- Miss X asked the Council to reconsider its decision. She also asked it to consider an ESO. In its final response the Council said it would not ask for an ESO, because it considered them ineffective and expensive. It said it would not withdraw the prosecution because of Y’s on-going non-attendance. Miss X remained unhappy and complained to the Ombudsman.
- It is for the Court to decide whether Miss X has committed an offence. However, we can consider whether there was any fault in the Council’s actions before its decision to prosecute.
- The case records show that before the Council’s decision to prosecute the school arranged support for Miss X and Y through Early Help meetings. The Council allocated a Family Support Worker to Miss X and a Youth Engagement Worker for Y. In addition, the school arranged an autism assessment for Y, offered Y counselling and a reduced timetable. The Council offered Miss X sufficient support to secure Y’s attendance at school before deciding to prosecute. The Council was not at fault.
- The Council reviewed its decision to prosecute Miss X after it issued Y an EHC plan. It decided not to withdraw its prosecution of Miss X despite having additional information about Y’s needs and mental health. Therefore, the Council’s decision to prosecute was not premature. That is because the additional information has not persuaded the Council to change its view. The Council was not at fault.
- I have completed my investigation and found the Council was not at fault in the actions it took before it made the decision to prosecute Miss X for Y’s non-attendance.
Parts of the complaint that I did not investigate
- Education Supervision Orders are made by the court. Therefore, it is for the court to decide whether it is needed in addition to, or instead of prosecution. Matters for the court are outside of the Ombudsman’s jurisdiction, therefore, I cannot investigate this part of the complaint.
Investigator's decision on behalf of the Ombudsman