Local councils have a duty to provide alternative educational arrangements for young people who are unable to attend school, reminds the Local Government and Social Care Ombudsman.

A flexible approach should be adopted by Councils, acknowledging individual circumstances in which a young person's non-attendence may be due to reasons other than illness or exclusion. 

This is in light of their investigation into a complaint against West Sussex County Council. 

"The report makes one thing very clear - the needs of an individual should be prioritised over strict adherence to policy".

School attendance legislation

The Education Act 1996 says that parents have a duty to ensure that children of compulsory school age are receiving suitable full-time education. If a child's absence is due to sickness or an ‘unavoidable cause’, the Local Education Authority can apply for an Education Supervision Order (ESO). An ESO gives the Local Authority permission to give directions to the parents on how to support the child in receiving a proper education. The Order can last for up to 12 months and can be extended for a further 12 months (but only in the final 3 months of the Order). The maximum duration of an Order is 3 years.

When an Order is made, the parents of the child are legally required to comply with any directions the Court makes under the ESO. If the parents persistently fail to comply with any directions, they can be prosecuted.

The complaint

Mrs X complained that the West Sussex County Council failed to provide appropriate support for her daughter, Y, when she refused to attend school due to anxiety. The Council did not take the medical evidence she provided into account, meaning that her daughter was denied an education. 

Events that led to the investigation


Y began to refuse to attend school; by September, her attendance had dropped below 60%. She was assessed by the School’s Welfare Officer under the Council’s Early Help procedures and it was concluded that she had denied having specific concerns about school and was refusing help.

Whilst Mrs and Mr X were cooperative, their daughter refused to engage with the support she was being offered. 

January 2017

After Y saw her GP, her mother reported that a physical medical problem had been found. Despite this, no medical evidence - which is necessary to authorise absence on medical grounds - was provided to the School. Y's school attendance continued to drop and she stopped attending altogether in February 2017. 

February 2017

The case was presented to the Legal Panel because Y's non-attendance was not supported by the required medical evidence. 

Mid-March 2017

A support worker from the Family Support Network noted that Y's GP had referred her to the Child and Adolescent Mental Health Service (CAMHS) due to her low moods and anxiety. In light of this, the Support Worker asked the Council to suspend the prosecution until Y had been offered the appropriate mental health support. This request was refused - the Council would suspend action if they received medical evidence or if Y's attendance improved. 

The Council received a letter from Y's GP stating that she had been "struggling with anxiety relating to attending school". However, this letter also highlighted that Y had not, in fact, attended any of the appointments in which anxiety was discussed; it was only her mother. 

Mid-May 2017

A Youth Worker observed that Y had “very high anxiety as well as additional health issues that may affect her mood and ability to function”, and proposed a 'blended learning package' to get Y back into education. Because Y did not have a formal diagnosis and the corresponding medical evidence, this 'blended learning package' could not be put into place. 

Mrs X told the Council that Y finally saw her GP who confirmed that “there is a high level of anxiety in respect of social and school phobia”.

June 2017

Both a psychologist and Y's GP wrote to the court, yet the Council did not believe this to be sufficient evidence that Y was medically unfit to attend school. After taking legal advice, the Council withdrew the prosecution, making a referral for a programme of ‘blended learning’ on medical grounds. They agreed to provide alternative education for 25 hours each week through its home schooling unit both in person and online.

Local Government and Social Care Ombudsman: findings and recommendations

The Council was recommended to apologise to Mr and Mrs X for not fully considering alternative approaches to ensuring an education for their daughter, and to pay them £400 to recognise the loss of educational opportunity during this period. This money should be used for the benefit of Y's education. 

The Ombudsman also reminded relevant staff that the duty to provide alternative education may arise for reasons other than exclusion and illness.

Local Government and Social Care Ombudsman: conclusions

Because, initially, neither a reason nor medical evidence was submitted as to why X was unable to attend school, it was her parents' responsibility to liaise with the School - rather than the Council - to ensure that she received education. 

When anxiety was highlighted as Y's reason for non-attendence, West Sussex County Council were at fault for failing to halt the proceedings whilst she received help from CAMHS. 

The Council's refusal to put serious consideration into an alternative education package early on in the case was criticised. This was refuted by the Council, who believes that they had no reason to do this unless sufficient medical evidence had been submitted to them, yet the Ombudsman deemed this as a "restrictive approach". The Ombudsman highlighted the importance of treating cases on a case by case basis instead of adopting "inflexible" policies. West Sussex County Council were also accused of losing sight of the primary interest: the child's education.

Implications of the investigation

The report makes one thing very clear - the needs of an individual should be prioritised over strict adherence to policy. In the realm of mental health, the gap between policy and practice can be vast. 

Whilst Y's parents did not cite anxiety as a reason for her non-attendance early on in the investigation, it seems apparent that there was extreme anxiety surrounding school, even bordering on phobic.

Despite the Council deeming reports of Y's extreme anxiety from her parents, GP, and a Support Worker as insufficient evidence not to attend school, they refused to give the family time to pursue a formal diagnosis. Y's referral to CAMHS would have yielded the "formal medical evidence" that the Council demanded, yet the Council refused to stop proceedings for this to be done. The report details how "Mrs X told the School how frustrating she found it dealing with a child who was obviously suffering from high levels of anxiety but who would not recognise this herself and refused all help". 

Although the Ombudsman ruled that the Council caused injustice, the conclusion highlights the responsibilities of all the parties involved; Y's parents should have submitted medical evidence earlier and explicitly cited anxiety as the reason for non-attendence, yet West Sussex County Council's approach failed to consider the individual circumstances of Y.

Ultimately, the case draws attention to the importance of cooperation between people and services. It puts forward the view that policy can be inflexible, and that a formal diagnosis is not always needed when an individual's suffering is evident from their behaviour alone. 

Michael King, Local Government and Social Care Ombudsman, said: “In this case, while I appreciate the parents could have explained sooner their daughter’s non-attendance, officers should have considered offering the family a learning package at an earlier stage, rather than continuing to focus on prosecuting the parents.

“I hope the recommendations I have made to make staff aware of their duties to children out of school, will ensure children in similar circumstances receive the education they are entitled to.”



Read the full report here.