Summary: Miss X complained the Council failed to provide education to her daughter while out of school for the past seven years, resulting in missed education and distress. We did not investigate matters prior to September 2021 as they are out of time. We found the Council at fault because it did not promptly consider whether to enforce attendance or arrange provision and it handled Miss X’s complaint poorly. We recommended the Council apologise to Miss X, pay £150 for distress, pay £150 for time and trouble and act to prevent recurrence.

The complaint

1. Miss X complains the Council has failed to make alternative provision for her daughter, Y, for the past seven years, resulting in missed education and stress.

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What I have and have not investigated

2. Miss X contacted the Ombudsman in November 2022 so any complaint about matters arising prior to November 2021 is out of time.
3. I have not investigated Miss X’s complaint prior to September 2021 as this is out of time and there is no good reason to exercise discretion. This is because Miss X could have taken third party advice as to how to escalate matters and contacted to us sooner.
4. I will however exercise discretion to investigate Miss X’s complaint from September 2021 as any fault and injustice may have been ongoing from then to November 2021.
5. I will investigate the complaint and any ongoing injustice up to January 2023 when the Council issued a final Education Health and Care Plan (“EHCP”) and provided a right to appeal.

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The Ombudsman’s role and powers

6. 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)
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
10. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
11. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
12. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
14. 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.
15. 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)

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How I considered this complaint

16. I spoke to Miss X and I reviewed documents provided by Miss X and the Council.
17. I gave Miss X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Council’s duty to provide education to children out of school

18. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
19. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.

Council’s power to ensure school attendance

20. Section 7 of the Education Act 1996 says parents must ensure their children receive suitable full time education at school or otherwise. A failure to meet this duty on the parent’s part is an offence under Section 444.
21. Sections 436 to 447 cover councils’ duties and powers under the Act.
22. Section 436 of the Act says councils must identify children not receiving an education. Section 437 allows councils to serve a notice on parents requiring them to satisfy the council that their child is receiving suitable education if it comes to the council’s attention that this might not be case. It also allows councils to issue a School Attendance Order (“SAO”) where parents fail to satisfy them.
23. Sections 443 and 444 allow councils to prosecute parents who do not comply with an SAO, or who fail to ensure the attendance of their school-registered child.

Ombudsman’s approach

24. The Ombudsman 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. The report made six recommendations based on examples of good practice seen. It said 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;
• 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;
• 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

25. Miss X says her daughter Y suffers from anxiety around school attendance and had been in and out of school for years.
26. In September 2021 Y started at secondary School A.
27. I asked the Council for a chronology and supporting documents dating from September 2021. I have outlined relevant information below.
28. There are no records of contact between the Council, School A and Miss X from September 2021 to December 2021.
29. In December 2021 the Council sought an update from School A regarding Y’s attendance.
30. Records provided by School A show from September 2021 to the end of October 2021 Y’s attendance was good. Y’s attendance then dropped. School A told the Council it sent work home though this was not returned and it offered live lessons, though these were not attended.
31. In December 2021 and January 2022 the Council liaised with School A. Emails show the Council wanted to see medical evidence that Y could not attend school and it was otherwise considering action to enforce attendance.
32. There are no records of contact between the Council, School A and Miss X from the end of January 2022 to May 2022.
33. School A records show that from January 2022 to summer 2022 it continued to make efforts to engage Y. The school carried out home visits and it offered external forest school, live lessons and emotional literacy sessions which were all declined.
34. On 15 May 2022 Miss X emailed the Council to say Y had been out of school for six months due to anxiety. She had asked School A to consider Education Other than At School (“EOTAS”) and was considering starting the EHCP process. She wanted advice from the Council.
35. The Council told Miss X where to access advice on the EHCP process and said it had contacted its welfare team regarding low attendance. It said it was for School A to consider and fund EOTAS but this would only be for up to six weeks. It offered to meet to arrange a school reintegration plan for Y.
36. Miss X said Y would not attend school and had not accessed learning at home to date but would try online learning next term.
37. There are no records to show the Council progressed either to enforce attendance or to consider whether Y was unable to access school for health reasons and so it should arrange alternative provision.
38. On 29 June Miss X complained to the Council. She said Y could not access school for health reasons and had not attended since November 2021. She said the Council had a duty to arrange provision while Y was out of school but had not done so.
39. On 6 July the Council responded. It said Y remained on roll at School A. It was the duty of all schools to provide education for children on their roll and it gave advice to schools regarding its own duty to provide education for children with medical needs. The Council met this duty through provision within its EOTAS facilities. School A could refer to the EOTAS provision for support if it felt this an appropriate way forward.
40. On 7 July the Council closed Miss X’s complaint. It recorded internally the outcome: no outcome available due to it having to do with the school and EOTAS.
41. On 13 July Miss X asked the Council to escalate her complaint. She said the Council had recently refused her request to assess Y for an EHCP and Y remained out of school.
42. The Council said Miss X could appeal its refusal to assess. It maintained School A was responsible for Y’s education as Y was on roll. It suggested she continue to work with the school and consider the alternative provisions suggested in an earlier email.
43. Miss X maintained she was unhappy with the Council. She said School A could not provide the EOTAS she sought unless specified in an EHCP.
44. The Council said Y did not need an EHCP to access EOTAS. Miss X should ask the Council if it wanted it to consider this. It would also progress the complaint.
45. Miss X clarified she wanted EOTAS, not education in a similar school setting as offered by School A.
46. Miss X chased the Council for a response to her complaint.
47. On 1 September the Council told Miss X it had closed her complaint on 5 July. EOTAS could be accessed through the Council or the school. Miss X should first check with School A to see if it had followed correct route for this.
48. Miss X replied that School A could not meet Y’s needs and nor could the alternative provision it offered. She maintained the Council should have provided Y with education once she was out of school for more than 15 days but it had failed to do so.
49. The Council told Miss X the attendance meeting due shortly could address the issues raised.
50. Minutes of the attendance meeting held on 6 September 2022 show School A continued efforts to engage Y. This included home visits fortnightly and leaving work for Y. Records say it previously offered EOTAS but Miss X refused as she considered it too similar to the demands of school. Miss X felt Y needed a more bespoke, personalised EOTAS package to cater for her high levels of anxiety and mental health.
51. Miss X continued to chase a complaint response from the Council. There are no records to show this was provided.
52. Miss X complained to the Ombudsman in November 2022.
53. An email of 18 November 2022 from the Council to School A shows the Council was unsure pursuing a legal route regarding Y’s attendance was appropriate given the medical grounds for not attending.
54. In January 2023 the Council issued an EHCP for Y naming School A. Miss X has appealed this.
55. In response to enquiries the Council said it did not need to take action to enforce school attendance as Y remained registered at school. In September it considered whether to take action to enforce attendance. It did not feel that prosecution under s444 was appropriate at that time because an application was in progress for an EHCP. In addition, a supporting letter from the GP was provided by Miss X stating that Y was experiencing anxiety and recommended that absences were authorised to support the family. It considered Miss X would have a statutory defence and reasonable justification for failing to ensure Y attended school regularly on that basis. It therefore agreed to support School A to provide a bespoke package for Y which supported her mental health needs and await the outcome of the statutory assessment. Y’s Education Health Care Plan states that School A can meet need and no other education provision is required.
56. In comments on a draft decision Miss X expressed unhappiness with the amount recommended to remedy distress. She said the Council received eight years’ worth of funding for Y’s education yet had not provided any education; it should pay compensation for the missed provision. The £300 recommended did not adequately compensate for the time Y had been out of education and she remains out of education.
57. The Council accepted the findings and recommended actions outlined in a draft decision and said it would progress these as a priority. It added it was currently carrying out a review of its strategic approach, policies and procedures in relation to Alternative Provision which included its approach to meeting the legal requirements under s19 of the Education Act 1996. It expected this work to be completed by July 2023 ready for full implementation in September 2023.

Findings

58. I have not seen evidence either School A or Miss X contacted the Council regarding attendance issues from September 2021 to December 2021. We do not expect the Council to act if it is unaware of any issue, therefore I find no fault.
59. Documents show the Council knew of Y’s attendance issues from December 2021 and that Y was not attending school from January 2022. The Council should have either considered action to enforce attendance or arranged alternative provision. The Council did neither. This is fault. Given Miss X said Y could not attend school enforcing attendance may not have helped matters. And I note School A offered alternative provision though this was refused. Bearing this in mind, I consider it likely Miss X and Y would have refused alternative provision if offered by the Council. I therefore cannot say the Council’s fault caused significant injustice to Miss X or Y, but it may cause injustice to others.
60. From May to September 2022 the Council told Miss X it had no duty to ensure Y received education as she remained on roll. That is incorrect and amounts to fault. It did not matter that Y was on roll. Where a Council is aware a child is out of school it should either enforce attendance or provide alternative provision. This is the duty of the Council rather than the school. I am satisfied the Council’s communications with Miss X to the contrary caused her distress. This is injustice. The Council’s continued failure to act is also fault. However, as above, records show Miss X and Y refused offers of alternative provision from the school. Therefore, I cannot say the Council’s failure to make offers itself caused Y to miss any education.
61. From September 2022 to January 2023 the Council considered School A was suitable for Y and she should be in school, however it had reasons not to enforce attendance. It is up to the Council to decide whether a child should be in school and whether to enforce attendance. The Council has given reasons for its decision and I cannot question its judgement. I find no fault.
62. The Council did not give Miss X the opportunity to escalate her complaint or signpost to the Ombudsman at stage 1. It then said it would progress her complaint but failed to do so and did not respond to her emails chasing this. This is fault. Miss X was put to avoidable time and trouble in the complaints process. This is injustice.
63. We do not give compensation like the courts may do, but we can consider payments to account for missed education and we can consider relatively small symbolic payments in recognition of distress. In deciding on a remedy the starting point is to try to return Miss X and Y to the position they would have been in, but for the Council’s fault. However, I cannot hold the Council responsible for injustice that could have been avoided.
64. I found the Council at fault for not ensuring education over the period December 2021 to September 2022. But I also found Y could have avoided injustice by accepting offers of alternative provision. I have therefore not recommended any remedy for missed education. The remedy I have recommended for distress is solely for the injustice arising due to the Council’s poor communication, as identified at paragraph 60. I am satisfied the amount is in line with our Guidance on Remedies.
65. I have explained at paragraphs 2 to 5 what I have and have not investigated. It is not within my remit to investigate any complaint of missed provision after the final EHCP was issued in January 2023. This is because Miss X had a right of appeal and did appeal.

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Agreed action

66. To remedy the injustice identified above the Council should carry out the following actions:
67. Within one month:
• Provide Miss X with an apology for giving incorrect information about its duties under section 9 of the Education Act 1996 and for its poor complaint handling;
• Pay Miss X £150 for distress and uncertainty;
• Pay Miss X £150 for time and trouble; and
68. Within three months:
• Amend its complaint response letter templates to ensure it signposts complainants to the next stage in the complaints process and to the Ombudsman upon its final response; and
• Provide training or guidance to Council staff responsible for school attendance to ensure they are aware of:
1. the Council’s duty under section 9 of the Education Act 1996 to arrange education for children out of school and;
2. the Ombudsman’s expectation that a council should act even if a child remains on roll at school.
69. The Council should provide us with evidence it has complied with the above actions.
70. The Council has accepted my recommendations.

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Final decision

71. I find the Council at fault in its approach to a child out of school and in its complaint handling. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman