Summary: Miss B complains the Council did not make appropriate educational provision for her daughter between January and October 2018. She considers the Council did not provide sufficient support to her daughter and her daughter’s education suffered as a result. There was fault by the Council but it did not cause significant injustice to Miss B or her daughter.

The complaint

1. Miss B complains the Council did not make appropriate educational provision for her daughter between January and October 2018. She considers the Council did not provide sufficient support to her daughter and her daughter’s education suffered as a result.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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)

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How I considered this complaint

6. I considered the complaint and documents provided by Miss B and spoke to her. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Miss B and the Council and considered their comments.
7. 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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What I found

The law, guidance and good practice

8. Section 19 of the Education Act 1996 says each local education authority shall make arrangements to provide suitable education at school or otherwise than at school for those children who, due to illness may not for any period receive suitable education unless such arrangements are made for them. It goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
9. The Government issued statutory guidance to local authorities in January 2015. ‘Ensuring a good education for children who cannot attend school because of health needs’ says local authorities (LAs) must:
• Arrange suitable, full-time education (or as much education as the child’s health condition allows) for children of compulsory school age who, because of illness, would otherwise not receive suitable education.
• Where full-time education would not be in the best interests of a particular child because of reasons relating to their physical or mental health, LAs should provide part-time education on a basis they consider to be in the child's best interests.’
10. The Local Government Ombudsman has issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
11. The Ombudsman made a number of recommendations. Councils should:
• consider the individual circumstances of each case and be aware that it may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
12. Parents have a duty to ensure that their children of compulsory school age are receiving full-time education.

Overview of what happened

13. Miss B’s daughter, X, moved to secondary school in 2015. By early 2016 problems were reported about her attendance and behaviour at school and other issues with her behaviour out of school. Children’s social care was involved. By early 2017 the situation was so serious there was a planned trial move to another school. The problems of non-attendance and other behavioural issues continued at the second school. In July 2017 X started at a pupil referral unit (PRU). Miss B has commented that many of the problems stem from persistent bullying which had never been resolved.
14. The issues continued at the PRU and X moved to another provision, provision 3 in June 2018. That was a small provision for pupils with behavioural issues. It had a high teacher to pupil ratio aimed at addressing behaviours to work towards integration to a mainstream provision. That placement only lasted about six weeks before X went abroad to live with her father.
15. She returned to the country in October 2018 and the Council made provision at an independent school.
16. In late October Miss B complained to us. We referred Miss B back to the Council. The Council responded to the complaint but also started legal action against Miss B because of her daughter’s non-attendance at school. The legal action was adjourned several times but in September 2019 the Council withdrew the action because of Miss B’s mental health. We then reopened our consideration of the complaint.

Analysis

17. The key period for Miss B was over early 2018. There were problems for X at the PRU and in November 2017 she was put on an altered timetable so she could arrive and leave at different times to the other pupils. There was a further incident in the PRU involving a possible physical assault of X in early 2018. After this X hardly attended school and the PRU put in place six hours a week of tuition.
18. There was contact over the end of January and into early February between the social worker, education welfare, and the inclusion section. It was clear at this point that X was not in school. The inclusion section was strongly of the view that Miss B should be prosecuted for not ensuring X’s attendance at school. They did not consider that a mainstream place would be possible because of X’s non-attendance.
19. At the end of February the PRU wrote to Miss B saying that they could not guarantee X’s safety and that alternative provision needed to be made for her. Miss B is clear that she immediately gave the letter to Council officers. The Council says it did not receive it until April. This prompted some contact with the school which asked that X was referred to the vulnerable pupil monitoring group (VPMG). The VPMG met at the end of April. The meeting concluded there was insufficient information to assess X’s risk and educational status. It requested information from various professionals involved with X.
20. There was a risk assessment of X at the PRU in the middle of May. This said X was not attending school and that the six hours a week tuition she was receiving was not sufficient to meet her educational needs. The VPMG met again towards the end of May and agreed a placement at provision 3. There was no delay in the Council making and implementing this recommendation.
21. Throughout this time X remained on roll at the PRU. I can only consider the actions of the Council: the actions of the PRU do not come within our jurisdiction.
22. It was relevant to the Council’s position that there was a history of non-attendance and other problems with X and that it may need to consider prosecution of Miss B for not ensuring attendance. But I have seen nothing to suggest that the Council properly addressed itself to the situation in February. As well as the letter from the school which I refer to above there was also an email from the school to Miss B saying that officers knew of the position. So, on the balance of probabilities, I consider the Council did know in February that X was not in school and that there was no adequate alternate provision in place. At this point the Council should have actively considered what it needed to do and explained its position to Miss B. It did not do that. Instead matters drifted until April when action was taken.
23. Where there has been fault I have to consider what would be an appropriate remedy. Miss B considers that if X had been receiving adequate educational provision at this point then it would prevented further problems developing. But I do not consider it is possible to say this period was critical or that the outcome would have been different. It could be that the Council would have decided sooner to start prosecution proceedings against Miss B. Or it might have been able to make the placement at provision 3 sooner but problems with X’s behaviour quickly developed there. So although I consider there was fault here I do not consider that it made any significant difference to X. I do not, therefore, consider that any remedy is appropriate.
24. When X returned in October the Council made provision for her to attend another specialist placement. There is no evidence of fault in that decision.

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Final decision

25. There was fault by the Council but that it did not cause significant injustice to Miss B or her daughter.

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Investigator's decision on behalf of the Ombudsman