Summary: Miss X complained the Council wrongly sought to prosecute her for her son’s non-attendance at school. The Council’s failure to properly document how it considered all of the factors and reached the decision to prosecute Miss X for Mr Y’s non-attendance at school, amounts to fault. This fault has caused Miss X an injustice.

The complaint

1. The complainant, whom I shall refer to as Miss X, complained the Council wrongly sought to prosecute her for her son’s non-attendance at school.

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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. 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)
4. 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.

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss X;
• Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

School attendance

6. Parents have a duty to ensure their children of compulsory school age are receiving suitable full time education. (Education Act 1996 s7)
7. A council may take action against parents where it is not satisfied their child is receiving suitable education and it considers the child should be attending school. This can include:
• a parenting order;
• an Education Supervision Order;
• a School Attendance Order; or
• a Penalty notice.
8. If a parent does not comply with a School Attendance Order or Penalty Notice, they may be prosecuted. Prosecution could lead to a fine of up to £2,500, a community order or a jail sentence of up to three months.
9. Before prosecuting parents, councils must consider whether to apply to the courts for an Education Supervision Order instead, of or in addition to prosecution. It is a defence to a prosecution that the child’s absence is due to sickness or ‘unavoidable cause’. (Education Act 1996 s 437-447)

What happened here

10. When Miss X’s son, Mr Y was excluded from school in 2017 the Council identified a placement at School 1. Mr Y’s attendance was sporadic and in November 2017 the Council gave Miss X notice of its intention to serve a School Attendance Order.
11. Miss X instructed solicitors who wrote to the Council under the judicial review pre-action protocol. They asserted the Council had failed to provide Mr Y with a suitable education and had failed to make a referral to the National Referral Mechanism contrary to the Modern Slavery Act 2015. Mr Y had gone missing from his home for a month and been found during a police raid on a property over 100 miles away. The solicitors asserted the Council should have reasonable grounds to believe Mr Y, who was 14 at the time, may be a victim of slavery or human trafficking.
12. The solicitors stated that while there was education provision available for Mr Y at School 1, it was not practical for him to attend. Mr Y refused to attend School 1 as it was full of gang members and that a former pupil was involved in the exploitation of children and recruited students from School 1. They asserted the Council should provide an alternative option for Mr Y’s education as nothing would be achieved by the Council insisting he attend School 1. They noted that other than threatening to prosecute Miss X the Council had not taken any positive steps to assist or encourage Mr Y to attend School 1.
13. The Council’s response stated there were no barriers to Mr Y’s attendance at School, and that there appeared to be a lack of parental control in failing to secure his attendance.
14. However, the Council then identified alternative provision and enrolled Mr Y at School 2 in February 2018. Miss X was concerned that School 2 was out of the borough and asked for transport support for Mr Y to attend, the Council declined. Mr Y attended School 2 infrequently and by the summer of 2018 was not attending at all. He also failed to attend at the start of the new school year in September 2018.
15. Mr Y was made subject to a Child Protection Order in August 2018 and in September 2018 the Nation Referral Mechanism notified the Council it had awarded Mr Y a positive decision, considering him a victim of modern slavery (human trafficking).
16. Miss X was concerned Mr Y may be involved in County Lines activities again. She asked to explore the option of home education as Mr Y refused to go to school. In September 2018 Mr Y’s social worker and the Youth Offending Service (YOS) asked for a change of placement so that Mr Y could pursue a vocational course. They suggested pursuing legal action for Mr Y’s non-attendance was futile as it was clear Mr Y would not attend School 2.
17. The education inclusion service confirmed it could not place Mr Y at the suggested college as it was post 16 provision and although it had a class for Mr Y’s age group, it would not accept excluded or offender cases. The education inclusion service stated there were no further options for placement and no barriers to Mr Y attending School 2. It also refused to fund a vocational course suggested by YOS. The education inclusion service stated it was already paying for a full time placement and had paid for a school uniform and free school meals to ensure there were no barriers to attendance.
18. An Education Welfare Officer (EWO) visited Miss X in early October 2018 and explained that home education was not possible, and that Mr Y’s options were limited. The notes of the meeting state Mr X told the EWO that he did not have any issues with the area the school was in but on the few times he had attended he had crossed paths with someone he did not want to. And that if he crossed paths with this person again he may be at risk, however he had not reported this to the police. The EWO advised it was likely Miss X would be prosecuted for Mr Y’s continued non-attendance at school.
19. On the same day Miss X received an official warning letter from the Council advising that unless Mr Y’s attendance improved it may issue legal proceedings against her. Miss X also received a second letter that day notifying her of a court panel meeting the following week and advising that if she failed to attend the Council would begin court proceedings.
20. Miss X believes the EWO was aware the Council had already issued these letters, and that this is what prompted the unannounced visit. She states the EWO had agreed only days earlier not to visit their home without warning, but to meet Mr Y in the community. She asserts the EWO carried out a rushed home visit as a box ticking exercise as the Council had already referred Mr Y to the court team.
21. Miss X attended the court panel meeting and stated she was unable to get Mr Y to school. She stated he had been groomed by gangs and went missing. Miss X also provided letters which stated she was the victim of domestic violence from her son. The Council decided to proceed with the prosecution and a court hearing was listed for February 2019.
22. As Mr Y had asserted he did not feel safe at School 2, in November 2018 School 2 carried out a risk assessment. This identified high and medium risks which could be reduced to low level risks once School 2 had put precautions in place to safeguard Mr Y.
23. The court hearing was adjourned until April 2019 to allow Miss X to provide evidence that Mr Y was a victim of child slavery. The Council then withdrew the case at the hearing in April 2019 as YOS had arranged alternative provision for Mr Y.
24. Miss X made a formal complaint about the Council’s actions and the decision to prosecute her for Mr Y’s non-attendance at school. Miss X stated School 2 had told her in October 2018 that Mr Y was no longer on School 2’s roll. She questioned how the Council could take the decision to prosecute her if Mr Y was no longer registered at School 2. In addition Miss X questioned why School 2 and the Council had not shared the risk assessment with her.
25. Miss X also complained that an officer, Officer 1 arrived late for conferences and failed to attend a meeting with Mr Y. And that Officer 1 failed to acknowledge that parents of teens who have been criminally groomed or exploited have very little influence over them. Miss X asserted the court panel meeting was not conducted in accordance with the Council’s policy and that Officer 1 told her solicitor she did not need to attend. Miss X questioned why none of the mitigating circumstances she had presented were considered reasonable justification.
26. The Council’s response confirmed that Mr Y was only removed from the roll at School 2 after the court hearing in April 2019. The prosecution period was between September 2018 and January 2019, during which time Mr Y was on the roll. It acknowledged the risk assessment was not in the court bundle and advised that had the case gone to trial it would have produced the assessment as further evidence Mr Y could attend school.
27. The Council noted Officer 1 was not the EWO for Mr Y’s case and only attended a conference when the EWO was on leave. Officer 1 attended the court panel meeting and, having spoken to the YOS officer and social worker, was fully aware of the case. The Council was aware there had been difficulties but considered that during the prosecution period, there was no reason why Mr Y could not have attended school.
28. In addition it confirmed Miss X was prosecuted under section 444(1) of the Education Act 1996, and that this is a strict liability offence. The Council stated the only defence to this offence is that the family live more than three miles from school, the child was too sick to attend, or a religious observance. It also noted it could not have considered a fixed penalty notice as Mr Y’s attendance was 0%.
29. Miss X was not satisfied by the Council’s response and asked for her complaint to be considered at stage two of the Council’s complaint process. Miss X asserted the education service was unsupportive and inflexible. She questioned why a School Attendance Order was considered the best and only course of action in 2017 when Mr Y had recently been trafficked and the alleged trafficker had been seen outside Mr Y’s school. Miss X stated the Council had not tried to work with her to resolve Mr Y’s attendance issues.
30. Miss X also questioned whether the Council recognised Mr Y’s specific needs as a victim of human trafficking and modern day slavery. In order to attend School 2 Mr Y had to travel across three boroughs on public transport and had expressed feeling unsafe, yet the Council had refused Miss X’s request for transport support.
31. In addition, Miss X reiterated she had been advised by School 2 in October 2018 that Mr Y was no longer on the roll and questioned why the Council had proceeded with the prosecution. Miss X also questioned what benefit could be derived from prosecuting her when Mr Y was almost at the end of year 11, and his compulsory education. She disputed it was in either the public interest or Mr Y’s interest to impose a heavy fine or criminal record on her.
32. In its response the Council reiterated Mr Y was of statutory school age and Miss X was required to ensure he attended school. It noted that transportation to education provisions would not be an option for a mainstream pupil and that only pupils with Education Health and Care plans would be considered for transport support.

As Miss X remains dissatisfied with the Council’s response, she has asked the Ombudsman to investigate her complaint.

Analysis

33. It is clear from the documentation that the Education Inclusion team considered the only barrier to Mr Y attending either School 1 or School 2 was the family blocking his education. Officers asserted there was a lack of parental control and prosecution was necessary to ensure Mr Y returned to school.
34. However, it is not clear from the documentation how the Council reached this decision. There is no evidence of how it considered Miss X and Mr Y’s personal circumstances when deciding Miss X was blocking Mr Y’s education and should be prosecuted. Miss X had informed the Council she was a victim of domestic violence from her son and had provided letters from support agencies in this regard. The Council was also aware that Mr Y was a victim of Human Trafficking and had a conclusive grounds decision from the National Referral Mechanism.
35. The Council states the education department had numerous discussions with Children’s social care and YOS who felt that Mr Y could attend School 2 during the prosecution period. There are no records of these conversations.
36. Rather, the Council’s case notes record in October 2018 that Mr Y’s social worker had advocated heavily for him to be given the opportunity to go to more appropriate education provision but this was declined by the education department. The social worker also told the education department that Mr Y was scared of returning to School 2, the area, and the people there.
37. The documentation also suggests YOS were not supportive of the placement at School 2 or the decision to prosecute Miss X. In September 2018 YOS also asked for a change in placement and suggested pursuing legal action was futile as Mr Y would not attend School 2. YOS appear to have retained this view throughout the prosecution period as it arranged alternative provision for Mr Y in April 2019
38. Nor is there any evidence the Council considered obtaining an Education Supervision Order or of any practical assistance or support for Miss X in getting Mr Y back to school. Although the Council provided a school uniform and free school meals, it refused to provide transport support to School 2.
39. We are investigating a separate complaint about the Council’s failure to provide home school transport.
40. The Council has not provided any evidence of how it considered Mr Y would travel to School 2 or whether, as Miss X suggests this would present a risk. The risk assessment carried out by School 2 only identifies measures to reduce the risks during the school day, while Mr Y was on the school premises. It notes that Mr Y feels he is unsafe attending as he has to travel from another area but does not identify any measures for reducing this risk.
41. School 2 was over five miles from Miss X’s home. The Council’s response to Miss X’s complaint acknowledges that living more than three miles from school is a defence to prosecution for non-attendance. But there is no evidence the Council considered this when deciding to prosecute Miss X. In response to my enquiries the Council suggests School 2 was Miss X’s school of choice, and that she accepted a place there, knowing how far it was from her home. It does not therefore consider distance from the school would be a defence. I am not persuaded Miss X chose School 2. It is clear from the Council’s records that this was the only option and Miss X was expressly told there were no alternatives.
42. There is also a lack of clarity regarding whether Mr Y was a pupil at School 2 when the Council began prosecution proceedings. The Council maintains that Mr Y was on the roll at School 2 until April 2019. It states it repeatedly told Miss X he was on roll at the school throughout the prosecution period. However, there are no records of any discussion about this. And Miss X has provided copy correspondence from the Director of School 2 in early October 2018 which states that Mr Y was not on the roll at School 2. Miss X asked for clarification from both School 2 and the Council, but there is no evidence she received any further details. Miss X has also provided a copy of an email from her advocate who contacted School 2 on her behalf in February 2019. This states School 2 told the advocate Mr Y was not on the school roll, but he was on a ‘list’.
43. I consider the lack of evidence regarding how the Council reached its decision to prosecute Miss X, in terms of the factors it considered, and the weight given to each, is fault. And consequently that the decision to commence proceedings for non-attendance was flawed. This fault has caused Miss X distress, anxiety, and uncertainty; and put her to unnecessary time and trouble and financial expense.
44. It is possible that had the Council properly considered and evidenced its assessment of all the factors, it would still have decided to prosecute Miss X. But in such circumstances Miss X would have had a clear understanding of how the Council had reached the decision to prosecute her and why it considered this would encourage and improve Mr Y’s attendance at school.

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Agreed action

45. The Council has agreed to apologise to Miss X and pay her £250 in recognition of the distress and anxiety she experienced and the time and trouble she was put to as a result of the lack of clarity regarding how and why the Council decided to prosecute her for Mr Y’s non-attendance at school.
46. The Council has also agreed to provide training/ reminders to ensure that staff understand the need to properly record how they have considered the individual circumstances and the reasons for their decisions to prosecute parents.
47. The Council should take this action within one month of the final decision on this complaint.

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Final decision

48. The Council’s failure to properly document how it considered all of the factors and reached the decision to prosecute Miss X for Mr Y’s non-attendance at school, amounts to fault. This fault has caused Miss X an injustice.

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Investigator's decision on behalf of the Ombudsman