Summary: Mrs X complains that the Council failed in its duty to ensure her son, B, was provided with a suitable education. Based on the evidence seen to date, the Council failed to demonstrate its decision- making in respect of B’s alternative education. The Council is also at fault in its complaints handling. The Council has caused injustice to Mrs X for which we recommend an apology and some service improvements.

The complaint

1. The complainant, who I refer to here as Mrs X complains that the Council:
1. failed to ensure her son, B, received alternative provision between October 2019 and February 2020, when he was unable to attend school for medical reasons;
2. made alternative provision from February 2020 onwards but it was insufficient; and
3. failed to handle one of her complaints appropriately as it was answered by the subject of the complaint.
2. Mrs X says B is now behind in his education. She would like compensation, to be spent on a private tutor.

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What I have investigated

3. I have investigated the Council’s fulfilment of its duty under the Education Act to provide B with a suitable education.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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)
7. 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

8. I spoke to Mrs X and considered information provided by Mrs X and the Council. I also considered comments made by Mrs X’s advocate before making my final decision.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Legislation

10. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils have the power to take enforcement action where it considers a child’s non-attendance to be unauthorised.
11. Where a child is permanently excluded from school, or if they are unable to attend “because of illness or other reasons”, section 19 of the Education Act places a duty on councils for arranging suitable alternative education. The only exception is when suitable provision is already being made.
12. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special educational needs (SEN). It should be full-time, unless the physical or mental health of the child means that full-time education would not be in their best interests. The education can be made up by two or more part-time provisions.
13. The Council should attempt to arrange this alternative provision as soon as it is clear that the child will be away from school for more than 15 school days, although there is no statutory timeframe.
14. When considering whether a school can meet a child’s needs, the Council must decide whether it is “reasonably practicable” for them to attend. The Council must take into account relevant information, including medical advice, when reaching this decision but is not obliged to follow medical advice.
15. We issued a focus report in September 2011, amended in January 2016, “Out of sight…. out of mind?”. This gives guidance for 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. The report made six recommendations for councils, including that they:
1. consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
2. consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
3. choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
4. adopt a strategic and planned approach to reintegrating children back into mainstream education where able; and
5. put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
16. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
17. An Education, Health and Care Plan (EHCP) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.

The Council’s policy

18. The Council has a policy on children who may need alternative provision (other than those who have an EHCP). It says that a child is medically unwell or is assessed as emotionally vulnerable they must be referred to the Area Strategic Manager who will commission a place at an education centre. The education centre will then contact the school, who will set up a meeting with the parent. The centre or school may contract an alternative provider.
19. The guidance contains advice for schools and education centres when commissioning alternative provision.

What happened

20. Mrs X’s teenage son B has diagnoses of attention deficit hyperactivity disorder and other SEN. In late October 2019, as B was turning 16, he stopped attending school.
21. In November Mrs X gave the school a GP letter stating that B was refusing to attend school due to his anxiety. The letter asked the school to support B in attending a college instead. The school did not accept the letter as justification for B’s absence as the letter did not state B was medically unfit to attend school.
22. The Council discussed the matter with Mrs X and the school. It concurred with the school that the medical evidence presented did not show B was unfit to attend school. The school offered B a reduced timetable to help him reintegrate but Mrs X refused this on the basis of B’s anxiety.
23. In early December Mrs X provided letters from the Child and Adolescent Mental Health Service (CAMHS) stating B was concerned about returning to school. One of the letters restated B’s desire to go to college instead. The school also rejected these as evidence B was medically unfit as the letters did not say B was medically unable to attend school.
24. The school warned Mrs X it would issue a penalty notice if B’s unauthorised absence continued.
25. In late December Mrs X provided the school with a second GP letter, stating that B’s anxiety had worsened and that he appeared to be unfit for school. The Council decided to accept the letter as evidence B was unable to attend school.
26. In early January, the school wrote to Mrs X saying that after consultation with the Council it had accepted the latest GP’s letter as authorisation for B’s absence.
27. The school decided to fund part-time attendance at the vocational college. The Council also provided counselling for B to support him in his return to school and education via its inclusion service.
28. From February 2020 B attended the college for two hours per week as well as receiving six hours’ education per week from the Council’s inclusion service. He did not attend the school. Mrs X has complained that eight hours alternative provision was inadequate and that he should have been offered a full-time course. She told the Council that she did not consider home tuition suitable alternative provision.
29. I asked the Council how it satisfied itself that eight hours’ alternative provision was sufficient, given this was a child who the GP had said was unable to attend school. The Council said it had an advisory role with regards to alternative provision, which it fulfilled by publishing guidance for schools. It said the school believed B could attend school and had decided eight hours alternative provision was sufficient as an interim step to full time education made up of school and college provision. The Council was unable to provide us with records showing how it decided B was able to attend school or how it decided that eight hours alternative provision was sufficient.
30. In March the COVID-19 pandemic meant face-to-face education ended nationwide for the vast majority of young people.
31. Mrs X complained to the Council and to us that from October 2019 the Council had failed to make adequate alternative provision for B due to his school-based anxiety. She also said that the eight hours’ alternative provision made from February 2020 was inadequate and that the Council should have made alternative full-time provision.
32. She also complained that the Council officer who responded to the complaint at Stage 2 was one of the key people responsible for Council decisions she had complained about.
33. The Council’s response on that point was: “If a complaint is received where the ‘usual’ responding manager is implicated in the actual complaint then an alternative senior manager is found to carry out the investigation and make the response.”

Analysis

34. Between October and December 2019, the school did not accept B was unable to attend school. The Council concurred with this decision. Mrs X contends it was wrong to do this as she had provided medical evidence. The correspondence shows the Council considered the medical evidence. It noted that the medical evidence did not specifically say B was unfit for school.
35. The Council was entitled to decide, having weighed up the medical evidence with other relevant information, that it was reasonably practicable for B to attend school. I can find no fault in the Council’s decision-making process. We cannot question whether a council’s decision is right or wrong simply because a complainant disagrees with it.
36. In January 2020 the school agreed to authorise B’s absence and fund part-time attendance at college. This was in light of a further letter from the GP written in late December that stated B was experiencing worsening symptoms and appeared unfit to attend school. The Council came under a duty to ensure suitable educational provision was being made once it became clear the absence would exceed 15 school days (that is, by the last week of January 2020).
37. Alternative provision was implemented by the middle of February. The Council explained it took from January to February to arrange this to allow for consultation between the school, Mrs X and the college. We are satisfied with its explanation and do not find fault.
38. Despite the fact the Council had accepted B was unable to attend school for reasons other than medical illness, its response to us shows it does not accept it had a duty to ensure provision for a suitable full-time education was made (unless the physical or mental health of the child meant that full-time education would not be in their best interests). While a Council may delegate the arrangement of provision to a school, it is not the case that it has only an advisory role.
39. The school decided it could still contribute to meeting B’s needs on a part-time basis. It therefore commissioned eight hours of alternative education. The Council has provided no record showing how it satisfied itself that eight hours alternative education was sufficient. The Ombudsman’s published Principles of good administrative practice explains councils should keep proper and appropriate records, state the criteria for decision making and give reasons for their decision. The Council’s failure to do this was fault.
40. The Council has also not explained why it considered it was appropriate that some of the education should continue on the school site, after deciding that it was not reasonably practicable for B to attend school. This is fault by the Council.
41. The consequential injustice is uncertainty about how the provision might have been different, if the Council made an informed decision about the suitability of the alternative education. However, COVID-19 restrictions closed down face-to-face education a few weeks after provision began, which limits the injustice. Mrs X has not asked me to investigate provision post-lockdown. Nonetheless, I have recommended the Council apologises and reminds staff about its duty to ensure suitable alternative education is arranged for pupils who are “otherwise” unable to attend school.
42. The Council’s complaints procedure states that Stage 2 investigations will be carried out by a “senior officer”. The procedure does not state that this officer must be independent of the subject of the complaint. However, the Council told me that if a manager is implicated in the subject of a complaint an alternative manager will be found. In this case it is clear that while the complaint was not about the officer specifically, he was implicated in the subject of the complaint.
43. The officer was Mrs X’s main contact person at the Council, managed communications with the school and was responsible for the negotiated outcome that saw B attending the vocational college part time. As such he was not sufficiently removed from events to conduct a fair complaint investigation. This is fault by the Council and caused injustice to Mrs X, who lost an opportunity for a more independent investigation. I recommend the Council apologises to Mrs X. I do not consider a further remedy is required as Mrs X has now received an independent review by this office.

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Recommended actions

44. Within four weeks of this decision, I recommend the Council apologises to Mrs X for the uncertainty caused by not having closer oversight of the alternative education arranged by the school, and apologises for the loss of opportunity to have her complaints better handled.
45. Within eight weeks of this decision I recommend the Council:
1. reminds relevant staff of its duty to ensure that suitable alternative educational provision is made for children who are deemed ‘otherwise’ unable to attend school, in addition to those who are medically unable to attend school;
2. reminds its relevant staff of the need to make appropriate records of its decision making, in particular recording how it has assessed the alternative provision is suitable and if it is not full-time, why it considers this suitable; and
3. amends its complaints procedure to ensure those involved in the decision making should not investigate complaints at stage 2 about the same issue.

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Final decision

46. Subject to further information from the Council and Mrs X, I intend to close my investigation with a finding that the Council is at fault and has caused injustice. I recommend an apology and service improvements.

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Parts of the complaint that I did not investigate

47. I did not investigate the school’s actions, including provision during lockdown, as these are outside of our jurisdiction.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman