• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Ms C complained the Council failed to make arrangements to provide suitable alternative education otherwise than at school for her son, X, who was not able to attend school. She said the school where he was on roll was not able to meet his needs. As a result X did not receive any education for a year. There was fault which caused injustice to Ms C and X. The Council will apologise, make a payment and review its procedures.

The complaint

1. I call the complainant Ms C. She complained the Council failed to make arrangements to provide suitable alternative education otherwise than at school for her son, X, who was not able to attend school. She said the school where he was on roll was not able to meet his needs. As a result X did not receive any education for a year.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. 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

5. I considered the complaint and documents provided by Ms C and spoke to her I asked the Council to comment on the complaint and provide information. I also asked the local authority where the school is located to provide information. I sent a draft of this statement to Ms C and the Council and considered their comments.
6. 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

Summary of the relevant law, guidance and good practice

7. Section 19 of the Education Act 1996 (the Act) says each local authority will make arrangements for the provision of suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Act 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.
8. Government guidance makes clear that where a council knows a child is not receiving suitable full-time education, or not receiving the number of hours they could benefit from education, it should step in to arrange provision.
9. We have 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.
10. Councils should:
    • consider the individual circumstances of each case and be aware that 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;
    • 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.

What happened

11. X had a history of some anxiety around attending school and was anxious about returning to school in September 2020. Ms C contacted the school in the summer holidays and a number of arrangements were put in place. X did return to school but his attendance was very limited because of his anxiety. He could not access any teaching when he did attend. He was signed off by the doctor for a period. Assessments were started for possible autism spectrum disorder and attention deficit hyperactivity disorder.
12. The school where X was on roll is in another authority area to where the family lives. In December 2020 the school told Ms C it had emailed this Council as the home local authority asking for provision of education for X as he was unable to attend school. The Council said it had no record of receiving any contact from the school. In responding to the draft of this statement Ms C said she left a voicemail message with the Council in December asking about how to access alternative provision for X but did not have any contact back.
13. The next significant action was in February 2021. Ms C applied to the Council for an assessment of X as she believed he should have an education, health and care plan (EHCP). Also, the school contacted the Council saying X had only been coming into school for 45 minutes a day. He had to be supported 1 to 1 and couldn’t go into a classroom. They referred to Ms C’s request for support under S19 of the Act.
14. There was then correspondence between the Council, the school and Ms C. Ms C’s view was that there was a clear duty on the Council to make educational provision for X as he was unable to attend school. The Council’s position was that it would only provide education if there was medical evidence of illness (the referrals for ASD and ADHD assessments were not illnesses). It said he was in receipt of an education provided by the school where he was on roll.
15. Ms C complained and the Council responded but she remained dissatisfied and complained to us.
16. The Council declined to assess X for an EHCP in response to Mr C’s application in February. She appealed and the Council then agreed to assess. The Council issued an EHCP in November.

Analysis

17. The school told Ms C it had contacted the Council in December. I asked for copies of email correspondence between the school and the Council but a copy of that email has not been provided. The Council has no record of receiving it. I also note Ms C left a message for the Council about alternative provision at around the same time. She was then unwell for a period so was unable to chase it up. However, without some further contact either from Ms C or the school there are insufficient grounds to conclude there was some obligation on the Council to take action at that point. But by February it was was clear to the Council there were significant issues.
18. The key point here is whether there was fault in the Council’s position that it did not have to make educational provision for X. There seem to be two strands to the Council’s view; that X was receiving education from the school and that he did not have medical needs that would trigger the requirement for it to step in to make provision.
19. The second point is flawed. It is clear from Government guidance, and our own, that whatever the reason for absence the Council should step in where it knows that a child is not receiving education. The Council’s requirement that it must be a medical reason for absence has no sound basis.
20. There is a duty on the school where a child is on roll to provide education. There seems no doubt the school took steps to enable X to attend school and to provide support. I cannot consider the actions of the school so I cannot comment on whether the actions taken were sufficient. There was contact between the Council and the school. Some of these were on the telephone. There is no record of those contacts. That is unsatisfactory, a record should be kept of significant contact. The Council has concluded from those contacts that X was starting to access school. But there is no evidence to support this view. The initial referral in February from the school showed how little he was in school and Ms C’s application for an assessment for an EHCP showed he was not now in school at all.
21. In responding to my enquiries about the complaint the Council said it had not seen any evidence to show X was unable to attend school. I cannot accept such a sweeping statement from the Council. Ms C and the school have clearly documented the difficulties that X experienced and what that meant practically for him.
22. It went on to say that absence due to anxiety does not automatically place a duty on the Council to provide alternative education as all government guidance applies in such situations. Reasonable adjustments should be made and agencies must work together with the young person and family to overcome barriers to attendance at the identified educational placement. It went on to say that it would consider an alternative provision placement, where all appropriate actions had been taken and where reviews indicated there was no positive impact. Small steps of progress were considered to be evidence of positive impact. Had the local authority where the school is felt that alternative educational provision was appropriate, it would have been expected that they make the Council aware of this so that it could consider putting this provision in place.
23. There did need to be a proper plan in place for X but the Council failed to address itself to what was actually happening for him and what its role needed to be. It was the home local authority for X, the information before it showed he was not attending school, but the Council took no responsibility for ensuring X was receiving the education he needed. Of course, there was a role for the school and that local authority but they are not the subject of this complaint. The primary responsibility rested on this Council and it failed to carry out that responsibility diligently or to put X at the centre of its consideration. If it considered that X could access the full-time education to which he was entitled at school then the Council should have taken action to ensure he was attending.
24. X was effectively out of school for a year. As I say above the Council was on notice of this until February 2021. So it is not appropriate to look to the Council to provide any remedy before then. Also, some proper enquiries by the Council would necessarily have taken some time before it could have decided what action it needed to take. But had all that happened as it should then the Council would have accepted it needed to make some educational provision for X.
25. Ms C considers that she now considers the only suitable provision for X will be a specialist school. That will be decided by the EHCP process and it is not something I can comment on. But I do accept Ms C’s view that the lack of any alternative provision for so long will have made it harder for X to engage with education. All that said, the only possible remedy is a financial payment to be used for the benefit of X’s education. The Council should also make a payment to recognise the distress and time and trouble caused to Ms C.

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Agreed action

26. The Council will;
    • apologise to Ms C and pay her £1400 which reflects seven months missed education and a payment for her;
    • urgently put in place alternative provision for X until it can provide a suitable school place in accordance with his EHCP;
    • review the approach it takes to the provision of alternative education for children who are not in school for whatever reason. It should provide training and appropriate guidance to staff. It should tell us of the action taken.
27. It should complete the first two bullet points within a month and the third within two months of this decision.

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Final decision

28. There was fault which caused injustice.

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Investigator's decision on behalf of the Ombudsman

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