Summary: We found fault with the Council for failing to provide child C with alternative provision when they were out of school for nearly 12 months. We also found fault with the Council’s complaint handling. The Council agreed actions to remedy the injustice.

The complaint

1. Ms B complained about the way the Council responded when her child, C, could not attend school.
2. She complained the Council:
• Failed to provide any education for C from May 2019 to September 2020.
• Told C’s school not to send home any resources.
• Delayed responding to her complaint.
3. She said C missed out on education and this impacted his progress and development. It also had a significant effect on Ms B and the family. Ms B experienced avoidable distress, time and trouble.

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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. 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.
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)
8. 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

9. I spoke to Ms B and considered the information she provided with her complaint. I made enquiries with the Council and considered its response along with relevant law and guidance.
10. Ms B and the Council had the opportunity to comment on my draft decision. I carefully considered any comments I received before making my final decision.

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What I found

Law and guidance

Alternative Education

11. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them. (Education Act 1996, section 19)
12. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 16(6))
13. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should:
• provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more;
• where full-time education would not be in the best interests of a particular child for reasons relating to their physical or mental health, councils should provide part-time education on a basis they consider to be in the child's best interests; and
• arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education.
14. We issued a Focus Report in September 2011 amended in June 2016, ‘Out of school…out of mind?’. This gives guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
15. In the Focus Report, we made recommendations based on examples of good practice seen. We said councils should:
• consider the individual circumstances of each case and be aware that, potentially, a council 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;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• adopt a strategic and planned approach to reintegrating children back 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.

Powers to improve a child’s attendance

16. Councils and schools can use various legal powers if a child is missing school to improve the child’s attendance.
17. A council may take action against parents where it is not satisfied their child is receiving suitable education and the council considers it is appropriate the child should be attending school.

The Education Act 1996

18. Section 436 of the Act requires councils to identify children not receiving an education.
19. Section 437 (1) of the Act says that councils shall intervene if it appears that parents are not providing a suitable education. They can serve a notice in writing on the parent asking the parent to demonstrate that the child is not receiving a suitable education.
20. Section 437(3) of the Act relates to whether the council considers that it is expedient for a child to attend school. A council might take the view that a child has physical, medical or educational needs which lead to extreme vulnerability in a school setting. Guidance says that in such cases, a council should consider alternatives such as tuition provided by the council itself. (para 6.14, Elective Home Education, Departmental guidance for local authorities, April 2019)

Special Educational Needs

21. A child with special educational needs may have an education health and care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. (Special Educational Needs and Disability Regulations 2014)
22. The EHC plan is set out in sections which include.
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and type of school.
23. The SEND tribunal hears appeals against decisions made by councils in England in relation to children's and young people’s EHC needs assessments and EHCPs. (Special Educational Needs and Disability Regulations 2014)

SENDIASS

24. SENDIASS is the special education needs and disability information, advice and support service.
25. The service supports children, young people and their parents. It provides support and advice about all aspects of special educational needs or disabilities (SEND).
26. SENDIASS is provided by the council but works ‘at arm’s length’ on behalf of parents, children and young people including helping with disagreements and appeals.

Background

27. In 2018, C was seven years old and attended a mainstream primary school, school A.
28. C has autistic spectrum disorder (ASD) and other needs and difficulties that affected their attendance at school.
29. During the period I investigated, Ms B requested the Council assessed C for an education, health and care plan (EHCP). The Council refused to assess C. Ms B successfully appealed to the SEND tribunal. The Council assessed C but decided not to issue an EHCP. Ms B also successfully challenged this decision at the SEND tribunal. The Council issued a final EHCP in June 2020. It named school A in section I. Ms B appealed this and in December 2020 the Council agreed to name a specialist provision, school D, in section I of the EHCP.
30. C started at school D in January 2021.

What happened

31. What follows is a chronology of key events it does not include everything I reviewed during my investigation.
32. C attended school A. From December 2018 C found it increasingly difficult to attend school and it caused him significant anxiety. By March 2019 C’s attendance had significantly decreased and by May 2019 C had stopped attending school.
33. In June 2019, there was a multi-agency meeting about C’s education and difficulty attending school. A SENDIASS representative attended the meeting. It was recorded in the minutes that C had not attended school since May 2019.
34. In July 2019, the school referred C to Forward Thinking Birmingham. It said C had not attended school since May and the plan devised during the meeting in June was not successful. It said C was also suffering irritable bowel syndrome (IBS) triggered by their anxiety. It said the education psychologist was unable to see C because they were not in school. The report included information about the impact of this on Ms B.
35. There was another multi agency meeting in September 2019. C was still not in school.
36. In October 2019, the school contacted the Council for advice about:
• Sending work home for C.
• Whether to record C’s absence as unauthorised.
• What medical evidence Ms B needed to provide.
37. The Council told the school not to send any work or resources home for C. It also said the absences should be recorded as unauthorised unless Ms B provided evidence there was a medical reason C could not attend.
38. In January 2020, the school made a referral to a specialist educational provision, school B.
39. In February 2020, there was another multi agency meeting. The attendees were asked to complete a special educational needs (SEN) support plan. The meeting minutes said the group agreed it was difficult to complete the form because C had not been in school for nine months. The group discussed the referral to school B and home tuition. School A agreed to send some resources home for C.
40. Ms B complained to the Council in September 2020. She said C had been out of school for an unacceptable amount of time with no provision. She asked for home tuition.
41. A week later the Council arranged home tuition for C.
42. The Council provided its first complaint response in January 2021. Ms B was unhappy with its response and asked for it to be escalated.
43. The Council provided its final response in April 2021. Ms B remained unhappy with the Council’s response and complained to the Ombudsman.

My findings

Alternative provision for C while he was not attending school

44. I found fault with the Council for failing to put alternative provision in place for C between June 2019 and September 2020.
45. The Council became aware C was not in school in June 2019. It took no action to ensure it met its statutory duty to provide alternative education until September 2020, when it provided a home tutor. This left C without any suitable provision for nearly 12 months.
46. During this time there were several meetings when the impact on C and Ms B was discussed. The Council failed to address the ongoing issue that C was not attending school and did not have any alternative provision in place. Instead, it only focused on finding an alternative school for C to attend. These were missed opportunities to address the lack of provision.
47. Not only did the Council fail to put suitable provision in place for C it also actively discouraged school A from sending any resources home for C. In its email to school A in October 2019 it said:

“in terms of sending work home I agree that this would give out the wrong signal particularly as mum isn’t cooperating and there is no evidence he is too unwell to attend school. He shouldn’t be sent work home, mum should be looking for a new school place”.

48. This response completely ignored C’s best interests. Whether or not the Council felt Ms B was not cooperating it should not have taken, or suggested, any action that was detrimental to C.
49. In another email the Council said:

“I’m not sure why mum hasn’t just applied to other schools? She can do this and must do this if she wants her son to move to a new school. It is her responsibility to do this not anyone else’s”.

50. I found this view to be both uniformed and unhelpful to the individual circumstances of this case. If the Council provides an opinion or advice about parental involvement in relation to non-attendance it should ensure it fully understands the details of the case first. In this case the Council did not establish the full facts and gave advice to the school based on assumptions that were incorrect. This meant C’s absences were recorded as unauthorised and he was not provided with educational resources.
51. In its final response to Ms B’s complaint the Council said:
• It was sorry for the delays securing appropriate provision for C.
• Whilst C remained on roll at school A, the school was responsible for ensuring alternative provision was being delivered.
• When it became aware C was not attending and there was no provision it should have intervened after 15 days and arranged for C to receive suitable education provision.
52. It is concerning that the Council does not appear to understand its duties to provide alternative provision under the Education Act 1996. In its response it said it was school A’s responsibility and this was not correct.
53. It also does not appear to understand when it needs to act. It said it should have intervened 15 days after it became aware C was not attending school. This is not correct. The statutory guidance says the Council should:

“provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more.”

54. When the Council became aware C was not attending school A it was already known that this would be for more than 15 days so it should have acted straight away.
55. The Council’s failure to provide C with suitable alternative provision while they were not attending school A caused C a significant injustice. C missed out on nearly 12 months of education and this affected their progress and development.
56. The impact of this on Ms B and the wider family was also significant. For the period C was not in education Ms B was unable to work and was managing the stress of C’s situation. The Council added to Ms B’s distress by treating her unfairly and failing to listen to her requests for provision. It was only because of her tenacity that C was given the tutor in September 2020.
57. We are concerned that although the Council accepted the suggested remedies it maintained its position in relation to the period it should have put provision in place. It agreed to accept our findings and recommendations but pointed out it maintains it should have put provision in place from February 2020 not June 2019. We are concerned this may lead to a repeat of the fault identified in this statement.

Complaint handling

58. Ms B complained to the Council in September 2020. It acknowledged her complaint and said it would respond within 15 days. It failed to respond and did not keep Ms B updated about the delay.
59. It took four months to respond. It did not provide any explanation for the delay. Its response failed to address the points Ms B raised in her complaint. It was a poor complaint response.
60. When Ms B escalated her complaint to the next stage of the Council’s complaint process in January 2021 it told her it would respond by 8 February 2021. It failed to respond by this date. It also failed to update Ms B about the delay and did not respond to her emails. It responded in April 2021.
61. The Council’s complaint handling was poor and added to Ms B’s distress and frustration at an already difficult time. It also caused her additional time and trouble both chasing the Council’s response and bringing her complaint to us.

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Agreed action

62. Within one month of my final decision the Council agrees to:
• Apologise to C and Ms B for the faults identified in this statement.
• Pay Ms B £5600 in recognition of C’s lost provision.
• Pay Ms B £750 in recognition of the distress, time and trouble it caused her.
63. Within two months of my final decision the Council agrees to:
• Remind relevant staff of their duties under the Children Act 1996 to provide alternative provision when a child is out of school. The Council should consider sharing a copy of our focus report ‘Out of school…. Out of mind?’ and our final decision with the reminder. Staff should include, but not be limited to:
• SENDIASS.
• The Council education legal intervention team.
• The resolution team within the education and skills directorate.
64. Within two months of my final decision the Council should review its information sharing agreement for SENDIASS representatives attending meetings where a child is not attending school. It should ensure mechanisms are in place so relevant information is shared correctly to ensure the Council meets its statutory duties when a child is not attending school.
65. It should also remind relevant staff of the importance of meeting timescales set out in its complaint procedure and updating complainants where there are unavoidable delays.
66. The Council should provide the Ombudsman with evidence it has completed the agreed actions.

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Final decision

67. I found fault with the Council causing injustice.

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Parts of the complaint that I did not investigate

68. I did not investigate the Council’s decisions about C’s education, health and social care plan (EHCP). Ms B used her right to challenge this through the SEND tribunal.

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Investigator's decision on behalf of the Ombudsman