Threat of prosecution under Education Act for child's sickness absence - who can I talk to?

[14Elephants]

Hi everyone, I can't get free legal advice from any of the charities working in family law as we are not on benefits, but I need advice. Don't want to ask CAB or just any solicitor - the neighbouring local authority where my child goes to school want to prosecute us - she's had 25 days off sick this academic year and I am not 100% sure I can get a GP to back it up with medical evidence because some days were just with a bad cold for example. Now they are saying that we should have a doctors letter to cover every day she was/is off.

We know its their statutory right but added to that the Educational Welfare Officer is gunning for us - she's a bit of a loon and was saying how she's so successful in taking parents to court that she takes up court time in other counties as well ...!! How proud she is! We're just the sort that these people go after - middle class professionals and I made a safeguarding complaint against the school at christmas, after which DD's absences were unauthorised (but they didn't tell us till after Easter)

I need to find a statutory defence or could I try to appeal to the director of education to have the case reviewed before they put the court papers in; we definitely need this EWO removed from the case, but where to begin?

I have some knowledge I work in child protection, so I know with these cases there is very little you can do - basically once the decision is made to go to court the local authority have already made sure the case is water-tight - where can I get advice - any ideas?

[MoreElephants]

PS have name changed but is very elephant based ...!

[VelmaD]

25 days sick since September? That's basically five full weeks of school, tbh I'm not surprised you have to now produce a doctors note for every medical absence, and doesn't seem unusual to have EWO involvement at this point. Has she an underlying health condition meaning she has to have this much time off that the school are unaware of? How old is she?

[14Elephants]

Velma thanks but I am just after getting advice and you seem to want to discuss the case itself? I'm asking where I can get legal advice on the Act.

Its not the EWO involvement I am particularly objecting to, its a legal issue e.g., school authorised all her absences due to sickness, then rescinded that last month when they wanted to support the EWO's insistence on court action. There are many ways that absence can be resolved, the schools I work with use an agency and meet with parents to discuss etc. This school doesn't do anything, they refer straight to local authority for prosecution and the EWO thinks prosecution is what success looks like. Its the prosecution they want, not the resolution. Hope that makes it a bit clearer.

[14Elephants]

I take it you are aware that its not absence that allows them to instigate proceedings, its unauthorised absence - they deliberately "unauthorised it" to support action. As I say, I do work in this area but this level of cynical manipulation is even beyond me!

[titchy]

How about paying a solicitor for some advice? Not quite sure why you'd have expected it free tbh if you're not benefit dependent.

I don't think you're going to find much sympathy though - missing almost half a term with run of the mill coughs and colds is barmy and massively detrimental to your child's education. Sorry.

[VelmaD]

Once absence gets to a certain level though, the EWO becomes involved, and anything further tends to be unauthorised. It's then only authorised with medical evidence. That's quite a common thing, they take parental notes as authorised absence until attendance drops to below a certain amount (around 95% in some cases, 90 in others) and then that triggers the system of EWO etc. had you had any information from the school when her attendance dropped to a certain level and the EWO became involved? Usually it is in that correspondence that they state any further absence would be marked unauthorised unless there is a medical certificate. When were you first aware of EWO involvement?

[FuzzyWizard]

Your child has missed roughly half a term of school but you think they're going after you because you're a middle class professional.
I would only expect that sort of attendance from a child with chronic health problems.

[ThumbWitchesAbroad]

Do you have a useful local Councillor? This is the sort of thing my Dad would have got involved in, I'm sure. You could always try them anyway.

After that, is there any sort of ombudsman that has any input into the behaviour of the EWOs? I don't know, maybe you do, that would be another option, especially if you feel that you are being unfairly victimised.

[SouthWestmom]

There is a statutory defence if they prosecute you - there are two offences from memory, have a look at the actual act itself I think the defences are listed there.

[lougle]

So at the end of the year, if she has no further absence, her attendance rate would be 87%.

Do you want advice on how to fight the prosecution itself? Or how to defend yourself in the prosecution?

[SouthWestmom]

www.gov.uk/government/uploads/system/uploads/attachment_data/file/401467/parental_responsibility_measures_for_school_attendance_and_behaviour.pdf.pdf
Page six

[MarchLikeAnAnt]

Can't you just pay for some legal advice?

[14Elephants]

Fuzzy this is a very specific case, if I'd wanted people to come on and be outraged as my child had 25 days sick I'd be on AIBU. I notice you picked up on the "middle class" bit and not the safeguarding complaint! Do you agree that the best thing if a child is off is to draw up papers for a prosecution? do you not think the school might want to pick up the phone, write a letter, ask what was happening? I am lucky I am am fairly knowledgeable and resourceful, I am usually on the other side advocating for families and vulnerable people, its chilling to think this could happen to other people who don't have a clue what to do next.

Velma the first we knew one of the EWO's staff turned up on the doorstep towards the end of April, we'd not been notified of any problems before then. After that we noticed that every time she received a school report, more previous absences were being marked as unauthorised where previously they had been authorised, and now they are saying that every absence she has had is unauthorised, so all 25 days going back to last September - so this is the sort of advice I am trying to get, can they do that in retrospect etc.

Guys I do appreciate you coming on to comment but I actually wanted to know where I go for help? E.g., If a solicitor how would I find one that had some knowledge in this area?

[lougle]

I presume you've been to the doctors to ask that they investigate an underlying immune deficiency as she seems to be getting ill so frequently? That will help you as evidence.

[14Elephants]

Yes she does have an underlying condition, but not all the absences are specifically for that condition. I take it you know that such a condition is a statutory defence?

[14Elephants]

lougle we are at the beginning of this process but the GP thinks that the stress she is under at school is causing the condition. We are a long way off a diagnosis and I don't know how candid the GP will be - this is why (sorry to keep banging on) we need legal advice as the GP's evidence could be used against us as well as for us - its not that simple.

[14Elephants]

Apologies upthread people, did not refresh, I can see that people are offering advice.

[14Elephants]

lougle I need advice to try to prevent it from getting to court if possible. As I understand it they can still prosecute if her attendance improves, they can take a "snapshot" of any period even if she has no absences from now till the end of 2015/16 academic year, and if it adds up to the trigger point they can go to court.

[14Elephants]

Noeuf did you mean there are two offences or two defences? Was checking it this morning will look again, I thought only medical evidence was allowed will look for the other thanks

[MarchLikeAnAnt]

Do you have a law centre local to you? I bet they could point you in the direction of a solicitor who deals with this sort of thing.

[VelmaD]

Have you sent in medical notes since the EWO became involved in April? I haven't heard of previously authorised becoming unauthorised, but it isn't unusual for any since involvement to be raised as unauthorised. If she has a medical condition, which is preventing her from attending school, they (and you) have a duty of care around work sent home etc (We have some students with long term illnesses we are expected to email home/provide work for in cases of illness preventing attendance)

Legally, you need someone who works within educational law, which shouldn't be hard to find in your area with a Google or ring round various solicitors.

What outcome do you want though? What outcome are they aiming for? A fine?

25 days is a lot of absence, so it entirely depends what outcome you want from it as to what help a solicitor would be able to give you at this point. How old is your DD? Does she have much longer left in this particular school? Which year is she in?

[Alanna1]

This is a good starting point for solicitors - these are London centric firms but you can widen or broaden the list: www.legal500.com/c/london/public-sector/education-individuals

[14Elephants]

Velma she's had 2 days since the EWO became involved - I have the meds she was prescribed for those instances, they are both severe hayfever. But what is a medical note? Can you describe it? They wouldn't tell me what evidence they required but they did use the phrase "letter from the doctor". If I can get that in writing to show our GP I think the penny will drop with her what the school/EWO are trying to do.

Outcome I want is for case to be dropped, that's why I need legal advice. I believe they just want a successful prosecution, as I say in that borough that's what they count as a success (regardless of fine).

DD is only in year 7.

Others who have asked why don't I just pay - are you only allowed to post on Legal if your income is below benefits threshold?! I can't afford to pay, just because we both work doesn't mean we have £150 an hour for a solicitor!

[14Elephants]

Alanna1 very helpful this is the sort of thing I needed thank you.

[lougle]

OK. I understand. I am not legally qualified in any way and only comment as a parent whose child had significant absence (physical symptoms that had an underlying emotional cause).

Firstly I'd be looking at whether her underlying condition satisfies the criteria for being classed as a disability. Then consider if she should have had reasonable adjustments.

Secondly you might like to explore whether the EWO would be satisfied with an attendance agreement. But of course you'd need to be careful not to agree to something you couldn't comply with.