Summary: We found fault by the Council on Mrs J’s complaint about it failing to ensure her son received suitable alternative education provision. The evidence does not show if, and how, it considered and decided whether it had a duty to provide it. There were periods of delay, and opportunities to progress were lost. It failed to deal with her complaint properly. The agreed action remedies the injustice caused.

The complaint

1. Mrs J complains about the Council failing to:
1. ensure her son received suitable alternative education provision from October 2021 after becoming too ill to attend school:
2. act when alerted by the school to the situation; and
3. promptly act on her formal complaint.
2. As a result, this has caused them all great distress, especially her son who has missed more than a year of education, as well as her paying the avoidable expense of funding materials and resources for him.

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What I have and have not investigated

3. I have not investigated any action carried out by the school. This is because we do not have jurisdiction over the internal management of schools.

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The Ombudsman’s role and powers

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 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)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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Alternative provision

8. 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.
9. 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)
10. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established 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)
11. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
12. Suitable education means efficient education suitable to a child’s age, ability, and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
13. The education provided by the council must be full-time unless it decides full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
14. 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’)
15. We have issued 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. (‘Out of school, out of sight?’ July 2022)
16. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware a council may need to act whatever the reason for absence (except for 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible, therefore, retaining oversight and control to ensure duties are properly fulfilled.

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How I considered this complaint

17. I considered all the information Mrs J provided, including the notes I made of our telephone conversation. I also took account of 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

Complaint a) and b): alternative education provision/act on notification

18. Mrs J considers the Council failed to ensure her son, K, received suitable education provision from October 2021 after he became too unwell to attend school due to his mental health. She complains he received no full-time education since.

2021:

19. K was in Year 7 and stopped attending full time school in September.
20. In October, the school set up a pastoral support plan with the aim of getting him comfortable with physically being in school and to integrate him back in to lessons.
21. The school referred K to the Council’s Education Welfare Officer (the Officer) in November. This referred to the need for improved attendance, noted there had been regular school meetings, as well as an offered part-time timetable. It also said there was a CAMHS referral being completed. CAMHS is Child and Adolescent Mental Health Services which provides services to support young people experiencing poor mental health or difficult feelings or experiences.
22. The Officer suggested visiting Mrs J five days later. There is no evidence showing this meeting took place.
23. The school told the Council it tried numerous times to arrange meetings with K’s parents in December to discuss his non-attendance, but they always postponed or cancelled them. The same month it received medical evidence from Mrs J after she was warned about prosecution. This noted K was anxious about going to school.
24. The Council did not prosecute Mrs J for failing to ensure K received full time education.

2022:

25. The school said three meetings arranged with Mrs J in January were cancelled by her.
26. Although Mrs J said the school actioned section 19 provisions at the start of 2022, she claimed the Council ignored it. She complains:

• work sent home was not set for his needs;
• he did not have to submit work for marking;
• he only received a laptop at the end of March 2022 by which time the school stopped setting work; and
• there was a lack of guidance with the work with no follow up.

27. Mrs J says the school stopped setting work for K in February. She attended the school when it updated his action plan to include him getting used to entering the school building itself. This did not happen.
28. In March, the school received further medical evidence from Mrs J which talked about her describing the pressures K was under from school to return. This pressure did not help his mental health.
29. The Officer contacted Mrs J after K could not attend the meeting that day. The Officer asked her to make another appointment with the GP as she needed information about managing K’s anxiety. A few days later, the Officer wrote about the availability of the laptop.
30. Later that month, Mrs J emailed the school and the Officer cancelling the meeting because K was too worried. The GP also wrote about the significant struggles K had with mental health at the moment. The letter explained K had anxiety and CAMHS screened him out so were now waiting for an appointment with the Dreadnought Centre. This provides one-to-one support for young people aged 11+ who are experiencing mental health difficulties that are causing significant impairment to their ability to function. In addition, other criteria need meeting. This includes CAMHS saying they do not meet its criteria for help, for example.
31. In July, CAMHS accepted K for an initial assessment.
32. In October, the Council received a request from the school which asked for advice about section 19 provision. I have seen a copy of this email from the school. It told the Council K had not attended school for a full day of lessons since September 2021. The school explained Mrs J said at the time that K was too ill to physically return to school. It explained what action it took, and its referral to the Officer in November. The Officer was no longer working for the Council but a private firm.
33. The records show an officer spoke with the school which said: it was waiting for medical evidence; K was on the waiting list for CAMHS; it was looking to hold a multi-agency meeting at the GP’s surgery. The record shows the Council ‘advised next steps following s19 query’ but it does not set out what these steps were. I have seen a school email arranging this meeting. The school said K accessed lessons online and could contact teachers through the online TEAMS software program. He had 0% attendance the current academic year and about 35% the previous year. Mrs J disputes the previous year’s figures as it included marking him as being educated off-site despite him not receiving any form of education during that time.
34. The following month K attended a primary mental health initial assessment. This suggested low intensity cognitive behavioural therapy to help him develop alternative thinking.
35. ‘Action for Children’ could not accept the referral for cognitive behavioural therapy. This is a charity providing a range of targeted and specialist services to young people aged 11-19.
36. This multiagency meeting took place in December, but the Council could not attend, and nor did it receive the minutes. I have not seen the minutes of this meeting nor any evidence of the Council chasing the school for them. It advised the school to ask for further advice and support from its own officer if the outcomes from the meeting had no positive changes. The same month, CAMHS confirmed accepting K for an initial assessment and placed him on the waiting list.

2023:

37. The Council offered a school visit in January to discuss its students with the poorest attendance. The school did not raise K as a concern during this meeting or follow up meeting.
38. In February, the school wrote to Mrs J suggesting a meeting with the Officer to discuss timetabled reintegration for K. There is no evidence this took place. CAMHS wrote, after seeing K, that the referral to it sought support from a community and hospital education service referral. This is an alternative provision academy commissioned by the Council to provide education for pupils who cannot attend school due to medical reasons. A referral must come from a relevant medical professional (for example, CAMHS senior practitioner, hospital consultant, or clinical psychologist) and is an interim provision. It aims to reintegrate pupils as soon as possible.
39. CAMHS does not accept referrals solely to request support for young people needing alternative educational support or those who are not identified as having a moderate/severe level of mental health need.
40. In March, Action for Children wrote to Mrs J to say it found K would benefit from a higher level of support through the Dreadnought Centre which she would need to refer to herself.
41. The following month, K started his online provision through another organisation but then this was withdrawn.
42. In January 2022, the Council said the school provided K with work and he stayed on its roll. It said the quality of that work, the lack of assessment, and quantity of the work compared to a full-time timetable, were all issues for the school. The Council also told her the Education Welfare Officer, who worked for a private firm, was contracted by the school. Mrs J points out the officer worked for the Council until leaving to join a private firm in March. She argues this means it was wrong for the Council to claim the officer was employed by the school as it still employed her in January.
43. Mrs J complains the situation caused the whole family a great deal of stress and financial pressure trying to fund educational material and resources for him. K still does not receive full time education and missed the whole of Year 7 at school.

My findings

44. I found fault on this complaint for the following reasons:
1. I consider the Council was alerted to a potential problem with K that needed exploring in November 2021 when the Officer was contacted by the school. At this point, it could have started the process of exploring K’s situation and whether the section 19 duty applied. The failure to consider starting this process is fault.
2. The evidence does not show whether the suggested meeting took place in November. If it did not happen, there is nothing to show why it failed to happen. Nor is there evidence of any steps taken by the Council to rearrange the meeting if it did not take place. This is fault.
3. I consider these failings caused an injustice as there was a lost opportunity for the Council to decide whether it needed to arrange alternative provision when K stopped attending school. It also caused uncertainty about whether alternative provision could have been arranged at this point.
4. There is no evidence showing what the Council did for a period of four months between November 2021 and March 2022. This is fault.
5. This caused injustice as there was another lost opportunity for the Council to consider whether it needed to provide alternative provision. This too led to uncertainty about whether this might have been arranged at this point.
6. The records show a meeting was arranged between the Officer and Mrs J in early March, which she cancelled. The Officer suggested Mrs J rearrange it, but this rearranged meeting was also cancelled by her. There is no evidence showing what the Council did following this cancellation. I have seen no further contact between Mrs J and the Council. There is nothing to show the Council chased her about rearranging it, for example. Nor is there evidence of the Council contacting the school to find out what was happening. These failures amount to fault.
7. I am satisfied these failings caused an injustice. Again, this included another lost opportunity and further uncertainty.
8. In October 2022, shortly after the start of Year 8, the school contacted the Council and asked for advice about section 19. A Council officer spoke to the school which was waiting for medical evidence. The school confirmed K was on the waiting list for CAMHS and it was looking to hold a multi-agency meeting. Although the records state the Council advised the school about the next steps following its referral, there is nothing in them which shows exactly what was said and what the next steps were. I consider the failure to properly record what advice the Council gave is fault.
9. I am satisfied this caused an injustice. There is the uncertainty of not knowing what the Council’s view was, the evidence it considered, and whether the advice was correct.
10. Nobody from the Council attended the meeting held in December. Although officers asked for a copy of the minutes, none were sent to it. There is no evidence of the Council chasing the school for a copy of the minutes. This failure to at least get the minutes is fault.
11. Again, I am satisfied this caused an injustice as it was a lost opportunity for the Council to consider information about K’s situation.
12. Overall, and on balance, I am satisfied the Council failed to show it properly, and proactively, considered whether it had a duty to provide alternative education to K. The Council had to consider if this duty had arisen in K’s case. When considering this, I would expect evidence to show:

• it had made a decision that it would or would not make provision. There is no written record showing the Council had reached a decision;
• what it took into account when reaching this decision including all the circumstances of the case;
• it took account of the provision the school made at the time and whether this was suitable and reasonably practicable for K to access. This would mean asking the school for details of what it was doing, what work was being given to K, and how, so it could decide whether this provision was adequate; and
• it communicated this decision to the school and Mrs J. There is no evidence showing this happened.
13. While this failure began when the school first alerted the Officer of problems with K’s attendance, I accept this exploration and consideration would have taken time.

Complaint c): complaint handling

45. Mrs J says when she sent her complaint to the Council in September 2022, it ignored her.
46. The Council accepts Mrs J made this complaint and that she chased it for a response in November before then complaining to us.
47. In January 2023, the Council sent her its response under the first stage of its complaints procedure. It explained: the school provided work during K’s absence; he was still on the school’s roll; the quality of the work set, the lack of assessment and quantity of work compared to full time timetables, were all matters for the school to address, not the Council. It advised her what to do if she wanted to take the complaint further.
48. I have seen an email to the Council she sent in December 2022 which referred to having complained in September which it ignored.
49. The Council’s complaints procedure is as follows:

• Service resolution: This option is offered outside the official complaint procedure but does not remove the right to complain. This is a more informal approach and addresses issues raised as concerns or queries, not complaints. A complaints officer would try and resolve them as soon as possible. It usually takes ten working days to conclude.
• Stage 1: This takes about ten working days to complete but can be extended to 20 working days when needed. If a person remains dissatisfied, they can ask for it to go to the next stage.
• Stage 2: This is investigated by an independent senior manager or independent person. It usually takes 25 to 65 days to complete.

My findings

50. I found fault on this complaint. This is because the Council accepted Mrs J made a complaint in September 2022. There is no evidence the Council either offered her the service resolution first or dealt with it under stage 1 of its complaints procedure before we asked it to do so in November.
51. I am satisfied this caused her an injustice. She had the uncertainty of not knowing whether it was being dealt with and later, the frustration of finding out it had still to be dealt with as a complaint.

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Agreed action

52. I considered our guidance on remedies.
53. I took account of the following:

• K received some education by the school during this period;
• Mrs J’s rejection of the offer to provide online work and packs;
• It is likely to have taken the Council until at least January 2022 to decide whether it needed to make alternative provision;
• I have taken a period from January 2022 to April 2023 as the relevant period for K’s missed education (less summer holidays); and
• Receipts from Mrs J showing some, but not all, of the avoidable costs she said they met. This included buying K a desk, a computer monitor, speakers, and ink, for example. She lists her total expenditure as £527.18. I consider it is likely she would have had to buy some or all of these items anyway for K’s educational career at some point. I consider the Council should make a contribution towards these costs.

54. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs J a written apology for its failures to: properly consider and decide whether it owed a duty to make section 19 alternative provision; provide records showing whether meetings took place; chase to rearrange meetings; avoid a four month period of delay; properly record advice given; chase for minutes of a multiagency meeting; deal with her complaint properly.
2. Review procedures to ensure proper consideration is given to whether it needs to make alternative provision on a relevant case which includes making clear documented decisions which explain issues and evidence considered.
3. Remind relevant officers of the need to: record whether meetings took place; avoid periods of delay; chase to rearrange cancelled meetings and minutes of multiagency meetings.
4. Remind relevant officers of the need to properly consider, decide, and document decisions about whether it needs to make section 19 alternative provision.
5. Review why the complaint procedure was not followed and act to ensure the delay in responding does not happen on future cases.
6. Contact all parties and review all the circumstances and evidence about the education provision currently provided and whether it now needs to step in and make alternative education provision.
7. Pay £300 to Mrs J for the avoidable distress caused.
8. Pay £4,200 to Mrs J (14 months x £300 a month) to acknowledge the loss of educational provision.
9. Pay £450 to Mrs J as a contribution towards the equipment bought.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I found the following on Mrs J’s complaint against the Council:

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Investigator's decision on behalf of the Ombudsman