The investigation

The complaint

1. Mrs X complained the Council failed to provide her daughter with alternative education when she was out of school for roughly six months. This caused stress and frustration to the family, with her daughter missing out on education and support during that time.

2. She wanted the Council to accept partial responsibility for the loss of her daughter’s education.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. 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 the final report with Ofsted.

Law and policy

5. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

6. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.

7. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

8. Academy schools are not automatically covered by the local authority attendance service and can provide their own services instead. They also have the choice to buy into the Local Authority’s attendance service. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.

9. If a child is unable to attend school because of illness, the council must provide alternative education as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative. The council must consider the individual circumstances of each child and take account of any medical evidence or advice when deciding what arrangements to make.

10. We issued a focus report “Out of school, out of sight?" in July 2022. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education.

11. Academies are independent of local councils. However, councils remain accountable for ensuring pupils who cannot attend school receive suitable full-time education, regardless of the type of school they attend. Councils must work with schools and parents to identify children who need alternative education and to make suitable arrangements.

How we considered this complaint

12. We produced this report after examining relevant documents and speaking to the complainant.

13. We gave the complainant and the Council a confidential draft of this report and invited their comments. We took any comments received into account before the report was finalised.

Findings

What happened

14. We have summarised below the key events; this is not intended to be a detailed account of everything that happened.

15. Mrs X’s daughter, who we have called C, was attending a primary school (referred to as the “School”) which was an Academy. Councils have no control over academies but remain responsible for the education of children who are unable to attend school.

16. Between March and July 2021, C struggled with anxiety and her school attendance declined. After engaging with a Family Support Practitioner (FSP) via the Council’s Early Help service, C was able to access school most of the time until the summer holidays.

17. In an email to the School dated 15 September 2021, the FSP raised concerns about C’s social communication needs, sensory issues and high levels of anxiety impacting on her attendance. She suggested the School undertake a referral to the County Inclusion Support Service (CISS, the Council’s outreach service for schools seeking additional support for pupils with social, emotional and mental health difficulties and all associated behaviours) to secure a suitable plan of action.

18. At this time, a referral for possible Autistic Spectrum Disorder had been accepted by the Community Paediatric clinic, and C was on the waiting list.

19. Between September and October 2021, C’s attendance at school was sporadic following a bereavement before term started. After half term, C did not return to school.

20. In September 2021, the School made efforts to provide strategies to support a graduated approach to introduce C back to school full time and support her with learning. This was under the Council’s “Pupil Support Framework” (PSF, guidance to supporting children and young people at risk of underachievement). This was in place for two months.

21. Since October 2021, C has regularly attended “Thrive” sessions at the School to support her emotional and mental health wellbeing.

22. In November 2021, the School provided work to C to support her working from home. Mrs X said this lasted up to six weeks. After this she paid for a subscription to an educational application so she could help C with some learning remotely and appointed a home tutor. Mrs X had raised the idea of Elective Home Education for C but the School had discouraged this.

23. In an email dated 9 November 2021, an Education Welfare Officer (EWO) at the Council’s Education Attendance Service shared the email address of the Special Educational Needs and Disability (SEND) Family Services Team with the FSP. This was after the FSP made an enquiry with details of the child being kept anonymous. It said, “I feel certain they will be able to offer advice around the pupil we discussed”.

24. In an email dated 10 November 2021, the FSP emailed the SEND Family Services team for advice, sharing details of the concerns around C and highlighted she was not attending school. There was a reply from the Co-ordinator of the Council’s Inclusion Service to confirm C’s details.

25. In a letter dated 23 November 2021, the School wrote to the Council’s Attendance/Inclusion Team to state C was not attending school regularly. The strategies it had tried under the PSF stopped at the beginning of November as they were very inconsistent. The School wanted to inform the Council of what it had tried to support good attendance for C. It had decided to make a plan based on medical needs as it was clear C was experiencing anxiety. This was in accordance with the Council’s “Supporting Children with Medical Needs” Inclusion policy. The School was looking to clinical and external services to advise and direct it. We have seen a copy of the letter. The Council said it does not have a record of receiving it.

26. In December 2021, at a Family Network meeting with the Council’s Early Help team, the School agreed to make a referral to the Council’s Specialist Education Services (SES, who work to support schools and children with SEND). The form was submitted in January 2022.

27. At the end of January 2022, C was assessed by the Council’s Communication and Interaction Service (under the SES) during a Thrive session. The assessor made recommendations around strategies and sent resources for use in future sessions to help build C’s resilience.

28. In April 2022, Mrs X formally complained to the Council that it did not provide education for C when she was out of school. She says the EWO was made aware of her absences months ago.

29. The Council responded it provided the Alternative Tuition Service (ATS) for children who cannot attend due to health needs and who have 15 days or more absence from school. It described the ATS as providing experienced teachers to meet the needs of children during the period of absence and to support their reintegration back into school as soon as possible. The Council said, however in this case, it did not receive a referral from C’s School, which is the normal process. As a result of Mrs X’s complaint, it was now going to liaise with the School to progress the matter.

30. Mrs X escalated her complaint and requested a Stage Two review.

31. The Council provided an additional response by a different member of staff to Mrs X’s complaint. It stated the School, as an Academy, does not use the Council’s EWO service. This meant there was no direct or extended involvement between the School and the Council’s Attendance Service in terms of supporting C. The Council’s EWO had given advice anonymously to the FSP and the name of the pupil was not shared. As the ATS did not receive a referral, the service was not aware of a request for involvement. It said progress was now being made to support Mrs X and C moving forward.

32. In May 2022, Mrs X was still dissatisfied and complained to us.

33. In June 2022, Mrs X requested again for her complaint to move to a Stage Two review. The Council confirmed it would not escalate the complaint as the further response had already addressed her issues in more detail in a proportionate manner.

34. Mrs X has since told us that the SES team had taken action after her complaint. She said C moved to a new school at the end of April 2022. Her attendance was going well, and she has been making positive progress.

35. We have reviewed the Council’s ATS leaflet and website information. It states “we are a referral-only service. Referrals can be made by schools or by Suffolk County Council Family Services Co-ordinators”. Also “ATS is part of the Specialist Education Service”.

36. The Council’s “Supporting Children with Medical Needs” Inclusion Service policy states access to the ATS: “referrals from practitioners from across education, health and care are through the SES inbox”. It also said “the Local Authority has a duty to work with schools to be ready to make arrangements when it is clear that a child will be away from school for 15 school days or more because of health needs (including mental health needs). It is the responsibility of the school to notify the Local Authority when a child or young person is likely to be absent from school for more than 15 days”.

Analysis School

37. We cannot consider the actions of the School. The investigation is limited to considering the role of the Council. We understand Mrs X has complained separately to the School.

38. The Council’s complaint response said it was normal process for schools to make referrals for alternative provision, but the ultimate responsibility lies with the Council. It should not just rely on schools to make referrals. It needs to ensure a mechanism is in place to oversee attendance, which in this case it didn’t.

39. Evidence shows the School wrote to the Council’s Attendance Team in November 2021 about C. We have seen a copy of the letter and we are satisfied it was sent. However, the Council has no record of receiving it and so we do not find fault with the Council for not acting on it.

Contact with Council professionals

40. Mrs X said she did not have personal contact with the Council about C’s non-attendance, but the FSP was aware and had been making enquiries on the family’s behalf with departments. We note the Council’s EWO was not aware of the specifics of C’s case.

41. The FSP, a Council employee, provided significant input and support to the family and we recognise she was pursuing guidance to help secure C’s return to school. A lot of work and referrals were made to address C’s anxieties and her social and mental health needs in school. This is admirable. However, this is not education. This involved contact with many other teams within the Council who were aware C was not receiving her educational entitlement, but no professional suggested making a specific referral to consider securing alternative provision for her.

42. We have not seen a follow up from the SEND Family Services team or Co-ordinator of the Inclusion Service after the FSP’s email in November 2021. In the Council’s ATS information, it says referrals can be made by “Council Family Services Co-ordinators” (not just schools). Although this was not a formal referral, this should have alerted the Council to at least make enquiries and liaise with the School or Mrs X. There is no evidence that it considered its legal duties at this point for C’s needs or took appropriate action. It is concerning that action was not taken by the Inclusion Service here as it is a part of their role.

43. It would have been clear C was not accessing suitable education at school at the point of SES receiving the referral in January 2022 and the assessment by the Communication and Interaction Service. Although this was a steer in the right direction for educational support, it did not translate into alternative provision.

44. We have not seen any evidence that alternative provision was specifically considered for C’s needs at this point by the Council. The ATS is also part of the SES and yet it appears nothing was put in place between February and April 2022. It wasn’t until Mrs X made her initial complaint to the Council in April, that the Council took steps to consider its duty for alternative provision.

45. There were many points at which professionals at the Council over different teams were aware of C’s school situation. There were missed opportunities for Council intervention sooner. It is important for the Council to co-ordinate these services if it is to fulfil its statutory duties and meet the needs of children missing education. This lack of a joined-up approach from the Council is fault.

Our previous service improvement recommendations

46. We have identified recurrent fault by this Council in a number of our previous decisions over the last 18 months about alternative provision, covering a period of more than two years.

47. The Council agreed to make service improvements, and these included:

• to ensure it took action to arrange alternative provision as soon as it becomes aware a child is out of school due to health or other reasons. This was in response to a complaint about missed provision from June to August 2019. The final decision was May 2021, to be implemented by August 2021;

• to make sure it had a policy for providing alternative education for children, compliant with Section 19 of the Education Act 1996. It was to give training and guidance to all relevant staff on this policy. This was based on a complaint of missed provision from October 2019 to March 2020. The final decision was July 2021, to be implemented by October 2021;

• to issue written memos to staff and officers in education, to remind them of the Council’s duties to provide alternative provision for children who cannot attend school because of exclusion, medical reasons or otherwise. This was a recommendation in two complaints of missed provision. One covered a period from December 2020 to April 2022 where the final decision was April 2022, to be implemented by June 2022. Another covered September 2021 to March 2022 where the final decision was August 2022, to be implemented by September 2022; and

• to review its procedures to ensure it considers a referral to the Alternative Tuition Service as soon as a child is reported absent from school for 15 days and seek a professional opinion on the amount and type of alternative education to best meet the child’s needs. This was from a complaint of missed provision from November 2019 to March 2021. The final decision was September 2022, to be implemented by December 2022.

48. Whilst some of these recommendations were made around or after the period outlined in this specific complaint, it is our view the Council should have been aware of these continued issues, both internally through its own measures of performance and complaints handling, and through the involvement of other external bodies. We would have expected the Council to have made improvements itself, not acting only after continuous recommendations from us.

49. We acknowledge the Council says it is in the process of wide-scale reform and has indicated improvements have been made and are being actively embedded into the service, requiring ongoing work and training. We are issuing this report to draw attention to these past failings and to highlight moving forward, that alternative provision needs to be improved as a priority with meaningful improvements having a long term effect.

Conclusions

50. The Council did not provide suitable education to C between November 2021 (when the FSP emailed the SEND Family Services team) to April 2022. The Council has not provided any evidence to show it assessed C’s needs or considered alternative education, despite the involvement of many Council professionals. It has not carried out its statutory duty and this is fault.

51. The impact of the faults we have identified has caused injustice. This has affected C’s ability to make progress as she was without education for a long period. She missed out on learning opportunities and access to the curriculum.

52. There has been distress and uncertainty to Mrs X, placing strain on her as she was unable to work as she tried to manage the stress of C’s situation. Also, she had to go to avoidable time and trouble to get the matter resolved.

Recommendations

53. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

54. In addition to the requirement set out above, to remedy the injustice caused we recommend the Council carry out the following actions within three months of the date of this report.

• Apologise to Mrs X for the delay and failure to provide alternative provision for C.

• Pay Mrs X £300 for her time and trouble in pursuing her complaint to get the matter resolved.

• Pay Mrs X £1,200 (£200 a month) to recognise missed education for C between November 2021 and April 2022. This is to be used for C’s educational benefit.

55. The Council needs to now take action to improve the quality of its services as a matter of priority and demonstrate it has learned from previous findings in recent years, as well as our findings in this report.

56. To improve services, we recommend within three months of the date of this report the Council should:

• review its policies and procedures to ensure it considers making a referral to the Alternative Tuition Service or arranges alternative provision for children of compulsory school age who, because of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them;

• issue guidance and written reminders to appropriate staff members (to include those in the teams mentioned throughout this report) of the above, to ensure co-ordination across services so prompt action can be taken when children are absent from school; and

• carry out mandatory in-person training for all managers and staff members responsible for arranging alternative education provision. This training should in part focus on our findings against the Council in this area from the past two years, the impact the Council’s fault has had on vulnerable children and the steps it is now taking to prevent recurrence of the same failings.

Decision

57. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mrs X and her daughter. The Council should take the action set out in paragraphs 53-56 to remedy that injustice.

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