Summary: We found fault by the Council on Mrs J’s complaint about it failing to ensure her son received suitable education between October 2021 and June 2022. She was unhappy with the remedy offered. The alert arrangements it had with the academy school needed improving. It failed to ensure her son received suitable alternative provision while out of school. The agreed action remedies the injustice caused.

The complaint

1. Mrs J complains about the Council failing to ensure her son received education between October 2021 and June 2022 when he was off school for health reasons: as a result, he received no education in a crucial year which means he is unable to take his GCSE exams in 2023.

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What I have and have not investigated

2. I have not investigated any action by the Academy school. This is because it operates independently of the Council which means we cannot look at any complaints about it.

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The Ombudsman’s role and powers

3. 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)
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)

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Alternative provision law and guidance

5. Councils have a duty to 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 provision. (Education Act 1996, section 19) This duty applies whether or not the child is on the roll of a school and whatever type of school they attend. It applies, therefore, to pupils at academies.
6. The Department for Education produced statutory guidance for local authorities entitled “Alternative Provision”. This says while there is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion, councils should ensure such pupils are placed as quickly as possible.
7. The guidance 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 and make every effort to minimise the disruption to a child’s education.
• Address the needs of individual children in arranging provision and not to withhold or reduce provision because of how much it will cost. Meeting the child’s needs and providing a good education must be the determining factors.
• While ‘full-time’ is not defined in law, pupils in alternative provision should receive the same range, quality, and amount of education as they would receive in a maintained school.
• If a child receives one to one provision, the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated.
8. Good alternative provision is that which appropriately meets the needs of pupils and:
• enables them to achieve good educational attainment on par with their mainstream peers particularly in English, Maths, and Science (including Information Technology).
• meets specific personal, social and academic needs, including being suited to the pupil’s capabilities; give pupils the opportunity to take appropriate qualifications; involve suitably qualified staff who can help pupils make excellent progress.
• have clearly defined objectives including the next steps such as reintegration into mainstream education.
9. The Ombudsman published a focus report ‘Out of school, out of mind’. This focuses on the responsibilities of councils to provide education when, for one reason or another, a child is not fully attending school. It says in situations where parents or carers keep their child out of school, for example, because they believe it cannot provide effective education for the child, then a council has a duty to provide alternative education if it cannot reintegrate the child or decides not to pursue legal action for non-attendance.

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How I considered this complaint

10. I considered all the information Mrs J sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mrs J and the Council. I considered their responses.

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What I found

11. Mrs J’s son, K, had ongoing issues with attendance at his academy school for several years. When he was in Year 10 in October 2021, his mental health deteriorated. He has not been in school full time since. This was an important year as it was the first year of his GSCE courses.
12. K has Autism Spectrum Condition. Mrs J complains he had no education from November 2021 to June 2022. She argues the Council failed to have robust procedures in place for the school to alert it to a child missing education. She believes the Council failed to provide education under section 19 of the Education Act 1996.
13. Mrs J is unhappy the Council was unaware of K’s non-attendance until January 2022. This was because the Council claimed the school failed to alert it to this problem. She is also concerned about procedures between the school and Council to ensure they are strong enough to identify student who are not attending school at the earliest opportunity.
14. These are key dates:

2021:

15. September: The Council introduced a new process which required schools to alert it when a pupil had 10 consecutive unauthorised absences so it is aware and can offer advice and support. Alternatively, the school could have chosen to make either a referral for the issuing of a penalty notice where a pupil missed 10 unauthorised absences, a referral to the children missing education team, or a referral that a pupil is on a part time timetable or receiving alternative provision, which would have also alerted the Council.
16. November: The Council confirmed the school should have made the referral on 24 November. It failed to do so.

2022:

17. January: The Council first became aware of K’s non-attendance through CAMHS which alerted it to him not being in school since November 2021. CAMHS was involved because the school was going to make a request for an Education, health and care plan (EHCP). I have seen a copy of the email CAMHS sent the Council.
18. The Council contacted the school the same day as it failed to tell it of K’s absence. The school said CAMHS was going to arrange an urgent meeting. It also told the Council CAMHS recommended a specialist placement for K. The Council went on to ask for details of K’s absences and what the school was doing. The school told the Council it was working with Mrs J to get a local authority’s Medical Needs Education Team (MNET) to supply a tutor for K.
19. The Council’s MNET provides training and support for children and young people of statutory school age who are on the school roll but who, due to illness, require suitable alternative arrangements for their education while unwell. It is provided to those whose education is disrupted for up to 15 days or more over time when the team decides its services are the most appropriate because of an illness keeping the pupil away from school while recovering, or due to a mental illness requiring therapeutic support. It provides high quality teaching in three core subjects (English, Maths, and Science) as a way of supporting re-integration back into school. Referrals to the team are made directly by schools. Pupils must be engaged with an appropriate healthcare package. All referrals need to include a medical referral form signed by a relevant medical practitioner.
20. CAMHS agreed to call an urgent professionals meeting to talk about K. As K was not known to the Council’s Special Educational Needs or Disability (SEND) team at this point as he had no EHCP, it says it could not attend. Miss J queries whether this is correct. The school told the Council K had struggled with attendance for some time and medical needs was refused in the last summer term. It was going to apply again but was waiting for Mrs J to return a signed medical form.
21. February: The Council contacted the school asking for it to arrange an urgent meeting of professionals to discuss his current needs and how support can help. The Council chased the school about it a few days later. The school discussed K with the Council suggesting one day a week attendance. The Council suggested one hour every day to get him back in to a routine. There was a meeting the same day with CAMHS. Mrs J says although invited, the Council did not attend.
22. The school contacted the Council after the meeting about its outcome. This included a referral to a farm once a week, home tutoring in English or Maths online once a week for one hour, and a part time timetable. The Council confirmed the tutoring was for one hour a day as advised by its Inclusion Support Officer. K did not meet the criteria for CAMHS who refused to sign him off as too unwell for school. The Inclusion Support Officer would alert the provision monitoring officer and Council school attendance officer. I have seen an email showing this was done. An EHCP application was sent a couple of weeks earlier.
23. Mrs J claims the school failed to put in the tuition it agreed. Nor had it done another medical needs referral it agreed to do either.
24. March: The provision monitoring officer at the Council noted they had not received a referral for K and assumed he was either in school full time or had an attendance referral made. The Council’s school attendance officer met with the school which said it had a letter saying K was not fit to attend school. I have not seen a copy of this letter. It also said it was going down the medical needs route with 1 day a week attendance. Mrs J spoke with the SEND team about the EHC needs assessment and told it K had not been in school since November 2021.
25. May: Mrs J made a formal complaint explaining K was too unwell to go to school and was currently undergoing an EHC Needs Assessment. The same month, the school said it would send the Council a GP’s letter saying K was too unwell to attend. The Council did not receive a copy of this letter. Nor had it received any referral for a part time timetable. This was discovered when the school attendance officer spoke to the provision monitoring officer. The school then confirmed it had confused K with another pupil about medical needs evidence and referral. The Council asked what provision it had put in place and whether it had sent out letters for school meetings, for example. The school was also intending to refer K back to CAMHS and apply for medical needs. The Council responded to her complaint.
26. June: Mrs J made a further complaint. The Council agreed to do an EHCP needs assessment and would fund tuition for English and Maths 10 hours a week until this was completed.
27. The Council sent her its response to her complaint.
28. October: The draft EHCP was issued. The home tuition was extended to allow SEND to get appropriate provision in place.
29. November: The Placement Panel agreed the education other than at school package until the end of Year 11. The section 19 provision stopped.
30. In response to Mrs J’s complaint, the Council noted:

• in February 2022, it arranged a meeting. This is the meeting it did not attend. It accepted while there was still education on offer, it failed to have arrangements in place between February and June when tuition was provided under section 19.
• it has changed the way it now worked with schools to avoid this situation happening in the future.
• it could have been more ‘robust’ with the school in terms of arrangements to ensure K’s needs were identified sooner. As a result, the Council accepted his absences from October 2021 to January 2022 should have been identified sooner and an assessment done to decide if he was eligible for support of more formal intervention.
• it offered, and paid her, £100 for the avoidable distress caused and £1,400 for missed education from October 2021 and June 2022 (7 months x £200).
• it was reviewing its policies and processes to make sure the focus is on the needs of children to access education, while it meets its statutory duty. It is doing this with an external education expert.

31. In response to our enquiries, the Council noted:

• it does not have the same powers to inspect registers of academies as it does maintained schools.
• the school did not use any of the formal mechanisms in place to alert the Council to K’s absence.
• it only discovered this when alerted by partners from another organisation.
• once told, it arranged a multi-professional meeting. When it checked on progress, it was wrongly told K had been signed off school as medically unfit to attend and was to be referred for medical needs tuition. The school had mixed up K with another child.
• all academies are now allocated a Council funded school attendance officer at no cost.
• it has increased the capacity of its school attendance officers.
• it is investing in buying an IT system which automatically alerts the Council when a pupil is absent for a certain period. This allows it to assess whether it needs to intervene or not and offer support, for example. It will have access to schools (including academies) live registration data. This means all schools no longer need to make manual referrals to the Council.

My findings

32. Case law has established that what is ‘suitable’ education is for the Council to decide. The primary question around whether a council is under a duty to provide alternative education where the reason for the child’s absence is ‘other’ is whether the current arrangements make it reasonably possible for the child to attend. Where a school does not make appropriate arrangements for a child who is missing education through illness or 'otherwise', the Council must intervene and make such arrangements itself.
33. I found fault on this complaint. In reaching this view, I took the following into account:
1. The school is an academy which means while it is state funded, it is independent from the Council. This in turn means there is no oversight by the Council. As such, we have no jurisdiction to investigate the actions of an academy school. We can only look at the Council’s actions.
2. The Council’s ‘Guidance for Schools on the use of reduced education provision (part time or reduced timetables)’ is for all schools, including academies. It points out it:

• is responsible for ensuring all children of compulsory school age who are not receiving a suitable full-time education, receive this unless they are deemed medically unfit to do so, or it is otherwise considered to be in the best interests of the child’s mental or physical health not to;
• is also responsible for collecting and monitoring data about all children of compulsory school age who are not accessing full-time education from all schools and services in the local area regardless of school governance; and
• confirmed reduced educational provision is time limited. Re-integration to full time education is to happen swiftly and be appropriate to the pupil’s personal needs, abilities, and circumstances.
3. The school was under a duty to tell the Council of K’s absence when he had not attended continuously for either ten school days when the absence was unauthorised, or 15 school days or more if the absences or either authorised or unauthorised. It failed to do so.
4. The Council only found out about K’s absence from the school in January 2022 when alerted by CAMHS. During its complaint processing, the Council accepted its arrangements with the school could have been more robust to ensure it became aware of his prolonged absence. The failure to have such arrangements with the school between October 2021 and January 2022 amounts to fault.
5. I am satisfied this caused K an avoidable injustice. This caused distress as there was a lost opportunity to act sooner than it did. There is uncertainty the eventual provision agreed in June 2022 might have been arranged sooner. There is concern about the impact this had on his education at an important time of his school career as he missed provision for 3 months at the start of his GCSE courses.
6. During its complaint process, the Council also accepted between February 2022 and June, it failed to have provision in place for K under section 19.
7. While I acknowledge the Council took steps to seek information from the school, asked it to explain what provision it was making, as well as prompting it to arrange a meeting with professionals, I consider there was a failure to satisfy itself about the provision the school claimed it was making. It was responsible for deciding whether this provision was appropriate and for considering stepping in and arranging provision itself if it was not.
8. There was a failure to communicate with the MNET, for example, to see whether the Council had received a referral from the school for a tutor.
9. In addition, the Council was aware K had a part-time timetable as the school told it about it in February 2022. There is nothing to show the provision monitoring officer being asked to check whether she had received information from the school about a part-time timetable being put in place. The Council’s website explained the role of this officer included: ensuring, where possible, all children attending its schools received the full-time education they are legally entitled to receive; monitoring the level of educational provision and checking on later review periods; recording the details of all provision; contacting the school regularly at the relevant review periods.
10. The Council’s guidance also states where a part-time timetable goes beyond six weeks, schools must not continue with it without referring the case to the Access and Inclusion team. The Council was aware K was on a reduced timetable. When it did not receive a referral to the Access and Inclusion team after six weeks, it should have asked the school about it.
11. Had there been better co-ordination, communication, and monitoring of K’s case, the Council might have identified earlier the school had failed to make a referral to this team. It might have also helped identify the mistake the school had made with the facts of K’s case and another child’s. This would have led it to realise K was not receiving appropriate education earlier than it did. This is fault.
12. I am satisfied this failure caused an injustice. K missed out on appropriate education for five months at a key stage of his school career when he started his first year studying GCSEs. It was another lost opportunity which no doubt caused the family a great deal of stress, anxiety, and frustration.
13. Mrs J complains the school failed to put any educational provision in from February until June. I have no reason to doubt what she said.

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Agreed action

34. I considered our guidance on remedies.
35. I also took account of the action the Council said it has already taken when considering her formal complaint. This includes the payment of £1,500.
36. The Council agreed to carry out the following action within four weeks of the final decision on this complaint, unless otherwise stated:
1. Send Mrs J a written apology for its failures to: have adequate arrangements with the school which would have alerted it to K’s absences; make suitable educational provision for K between February 2022 and June 2022.
2. Pay £1,800 to Mrs J for the avoidable distress caused (£400 x 8 months= £3,200 less the £1,400 already paid)
3. Pay £150 to Mrs J for distress caused by the fault found (£250 less the £100 already paid)
4. Provide details of the review it said it was doing following its investigation under its formal complaints procedure within four months.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I found fault on Mrs J’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman