Summary: Mrs X complains that the Council failed to provide her son, C, with alternative provision when he was absent from school between December 2021 and June 2022. The Council failed to provide alternative provision. The Council will take action to prevent the fault reoccurring and make payments to recognise the loss of education and financial loss incurred.

The complaint

1. Mrs X complains that the Council failed to provide her son, C, with alternative provision when he was absent between December 2021 and June 2022.
2. Mrs X believes that this has affected her son’s performance in his GCSEs as he missed out on education in the lead up to his exams.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with an organisation’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)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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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How I considered this complaint

7. I have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
8. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

9. 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.
10. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
11. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
12. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
13. The guidance also says that children regardless of circumstances should receive a good education which is tailored to their needs and enables progression. It should include a balanced curriculum and the same quality of education as they would experience at school. The use of electronic media should be used to complement face to face education rather than as sole provision.

How the Council supports children out of education

14. The Council allocates an inclusion officer to all schools to provide support to schools and parents with pupil attendance. When an inclusion officer receives a referral for support the inclusion officer contacts the school to arrange a meeting to understand why the child is not attending. The inclusion officer works with all parties to develop an action plan to encourage full time education at school or any agreed alternative provision.
15. For children who cannot attend school because of illness or permanent exclusion the Council provides education through a service called access to education. Once it receives a referral and it agrees to provide education, it completes an academic assessment and formulates a plan for education. Its policy emphasises the importance of reintegrating pupils back into school at the earliest opportunity.

What happened

16. C suffers from anxiety and depression. He was previously provided with a safety plan.
17. C moved to a new school in January 2020 outside of the normal admissions round. The school closed during the Covid-19 lockdowns and C was expected to undertake work set online. The school reported that C did not engage well with the work set during this time.
18. When the school returned to in person classes it reported that C struggled with anxiety and his attendance dropped. A part-time timetable was introduced to help reintegrate C into school but his attendance dropped further. In December 2021 C stopped attending school.
19. Mrs X, concerned about C’s absence from school, arranged for tutors to provide one hour a week in Maths, Science and History and two hours a week in English at a cost of £40 per session.
20. The school marked C’s absences as unauthorised for January and two weeks in February. It referred C’s attendance to the Council’s inclusion service in late January 2022 and shortly after this received a GP letter confirming C’s anxiety and that a referral had been made.
21. In early February the Council had a meeting with Mrs X to discuss C’s anxiety and his school attendance. From mid-February 2022 onwards C’s absences were authorised.
22. The Council’s enquiries established that work was being set for C online, for him to access and complete. It noted that staff had not contacted C and requested that contact be made. Mrs X informed the Council and the school during these enquiries that C’s anxiety would mean he would not access this type of education. The Council offered to arrange for the school to post the work to C.
23. In early March Mrs X arranged a private psychiatrist assessment for C. The psychiatrist stated that at present C would only be able to access home schooling. Further, they said he should be supported with online work which should focus on weak areas.
24. Following the report Mrs X requested the Council provide further support. The Council made no arrangements to alter the provision the school was offering.
25. Mrs X asked for a copy of the Council’s alternative provision policy in early April 2022. She also again repeated her request for Council support during C’s absence. The Council advised it could not provide a copy as a new draft was currently being considered.
26. Mrs X raised a complaint about the lack of provision in August 2022. During its investigation the Access to Education Team said had C been referred to the service it was unlikely to have provided additional provision for him. It would have recommended online learning and possibly weekly mentoring and a health care plan. It would have sought further advice from professionals if this had not worked.

Findings

27. The Council recognised that C was absent from school and that this was an authorised absence due to illness in mid-February 2022. At this point the Council had an obligation to provide alternative provision for C and a duty to satisfy itself that any provision being given was suitable.
28. The Council checked the online work covered core subjects by asking the school but there is no evidence it looked at what was sent. It did not consider whether the work sent was suitable, tailored to C’s needs, enabled progression or of a similar quality to what he would receive in school.
29. Nor did it consider the government guidance that provision should not be solely online. This is despite concerns being raised about C’s ability to access online only learning given his medical needs. The Council’s decision not to assess whether C’s educational needs were being met by the work sent by the school is fault.
30. I am not satisfied C was receiving an education equivalent to full-time or on par with that received by his peers and this is an injustice.
31. When the Council became aware C was unable to attend school it should have referred C to its access to education team and looked into arranging a new re-integration plan. The Council’s failure to do this is fault.
32. Had the Council consulted its Access to Education Team C would have received online learning, weekly mentoring and a health care plan. It is possible it would have sought further advice from professionals given the comments about C’s engagement with online learning. C has therefore not received weekly mentoring, a health care plan and possibly further discussions with professionals as a result of the Council’s actions.
33. Mrs X’s actions have mitigated the impact of the loss of provision on C. She arranged for C to receive tuition to assist him in core subjects. Alongside the online provision this would have provided C with some support and guidance but she has had to incur the costs of this. This is an injustice to Mrs X.

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Agreed action

34. Within one month the Council has agreed to:
• Apologise for the injustice caused by the faults identified above.
• Pay Mrs X, on behalf of C, of £600. This is £200 per month for the three months it failed to provide C with suitable provision.
• Reimburse the costs Mrs X incurred for C’s private tuition sessions from mid-February 2022 until the end of May 2022. This is subject to Mrs X providing the Council with copies of invoices/receipts from the tuition providers.
• Remind all inclusion officers that they have obligation to check any school provided provision is suitable when a child unable to attend for medical reasons or otherwise. And that it is the Council’s obligation to provide provision when the school’s is deemed unsuitable.
• Remind staff within the education department that government guidance does not expect provision to be solely in an online format when children are unable to attend school.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. I have found fault leading to an injustice. I have recommended remedies to address the injustice and prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman