Summary: Ms Y complained the Council failed to arrange alternative provision for her children when they could not attend school and failed to properly communicate with her and respond to her complaint. We have found fault by the Council in failing to put alternative provision in place and in its communication and response to Ms Y’s complaint, causing injustice. The Council has agreed to remedy this by making payments to acknowledge the impact on Ms Y’s children of the missed education, and to reflect her worry, distress and time and trouble.

The complaint

1. Ms Y complains the Council failed to provide her children, X and Z, with alternative provision and support when they were unable to attend school.
2. She also complains about the Council’s communication failures and the way it handled her complaint.
3. Ms Y says, because of these failures and delays, X and Z missed out on the education and support they should have received. This has affected their well-being and caused Ms Y distress and anxiety.
4. Ms Y wants the Council to:

• apologise for the harm and distress caused;
• ensure X and Z are provided with suitable alternative provision and support;
• pay financial redress for the missed education, harm and distress and any direct costs she’s incurred; and
• make service improvements so other families don’t suffer the same experience.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
6. 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. 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)
8. 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 decision with Ofsted.

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How I considered this complaint

9. I spoke to Ms Y, read her complaint and the Council’s response to our enquiries, together with all the other information Ms Y and the Council provided about the complaint.
10. I invited Ms Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Alternative provision

11. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)) We refer to this as section 19 or alternative education provision.
12. A child is no longer of compulsory school age on the last Friday in June in the academic year in which he reaches the age of 16 or if he reaches 16 after the last Friday in June but before the start of the new school year. ((Education Act 1996, section 8)
13. 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))
14. The education provided by the council must be full-time unless the council determines that 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)

What happened

15. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

X’s educational provision: school years September 2019 to July 2020 and September 2020 to July 2021

16. X was 15 in the school year 2019/2020.
17. In January and February 2020 Ms Y contacted the Council about X’s difficulties attending school. I understand the Council had been in contact with Ms Y about X’s attendance issues some time before this. Ms Y explained X’s difficulties with anxiety and the classroom environment.
18. Ms Y told the Council X had not been able to attend school since before Christmas 2019 due to anxiety. She was trying to arrange an autism assessment for him. Ms Y asked the Council to assess X’s education, health and care needs and to provide him with alternative educational provision in the meantime.
19. The Council arranged for its Community and Hospital Education Service (CHES) to provide X with alternative provision from 3 March 2020. I understand this continued until June 2021, when X completed his GCSEs. X turned 16 in the school year 2020/2021.

Ms Y’s complaint to the Council about X’s missed education

20. In July 2022 Ms Y complained the Council had failed to provide X with a suitable education from 2019.
21. The Council accepted:

• Ms Y had told it X was not attending school and had asked it to provide him with alternative provision; and
• X had not received a suitable education in the school year 2019/2020 and it had failed to meet its duty under S19 to arrange alternative provision for him.

22. The Council said X had attended 118/230 school sessions in the school year 2019/2020. 66 of the 112 missed sessions were unauthorised. It offered a payment of £462 for X’s missed education.
23. Ms Y did not consider this a suitable remedy and brought her complaint to us.

Z’s educational provision: school year September 2020 to July 2021

24. In July 2021, Ms Y contacted the Council about Z’s difficulties attending school. She told the Council he had not been able to attend for months. He had chronic fatigue and had been almost bed-bound since February. She asked the Council to assess Z’s education, health and care needs and arrange alternative educational provision for him in the meantime.

Z’s educational provision: school year September 2021 to July 2022 and September 2022 to July 2023

25. Ms Y contacted the Council again in September 2021. She said Z’s attendance had been sporadic since March 2020 and he had been on a reduced timetable. There was a discussion about different types of alternative provision, but nothing was arranged for Z.
26. In December 2021 Ms Y asked the Council again to arrange alternative provision for Z. A case worker was allocated in 2022 but alternative provision for Z was not put in place.
27. The Council accepted in September 2022, after Ms Y’s complaint in July 2022, it should arrange alternative provision for Z.
28. The chronic fatigue team working with Z advised the Council, in October 2022, he could not manage more than 2/3 hours a week of educational provision.
29. The Council arranged this level of weekly online tutoring for Z at home from November 2022.
30. The Council also agreed 1 hour a week of emotional support for Z with an online provider. This was later changed to 2 hours a week from June 2023 once a space became available with Ms Y’s preferred provider.

Ms Y’s complaint to the Council about Z’s missed education

31. In July 2022 Ms Y complained the Council had failed to provide Z with a suitable education from 2020.
32. The Council accepted:

• Ms Y had told it Z was not attending school and had asked it to provide him with alternative provision; and
• Z had not received a suitable education in the school year 2020/2021 and it had failed to meet its duty under S19 to make alternative provision for him.

33. The Council said Z had 210 unauthorised absences in the school year 2021/2022. It offered a payment of £360 for Z’s missed education.
34. Ms Y did not consider this a suitable remedy and brought her complaint to us.

My analysis – was there fault by the Council causing injustice?

35. The Council has accepted that for certain periods of time it failed to provide X and Z with a suitable education and failed to meet its duty under S19 to arrange alternative provision for them. These failures were fault by the Council.
36. I also consider:

• there were delays and communication failures by the Council in responding to Ms Y’s requests for alternative provision for Z;
• the Council failed to give proper consideration to a suitable remedy for X and Z’s missed education in response to Ms Y’s complaints; and
• these failures were fault.

37. Because of the Council’s faults, X and Z missed education, Ms Y was caused worry and distress by the delay by the Council in arranging alternative provision, and time and trouble bringing her complaint to us.

Our published guidance on remedies

38. This says:

• where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £900 to £2,400 a term to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person; and
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault.

The Council’s proposed remedy payment

39. I do not consider the Council’s offers of payments of £462 for X and £360 for Z meet the expectations set out in our guidance.
40. I understand the Council’s offers reflect a daily rate based on our recommended termly amount. However, I am not sure how the Council has calculated the amounts offered for X and Z’s missed education or the periods of time this was intended to reflect.
41. I have set out my views about an appropriate remedy for X and Z’s missed education below.

Remedy for X’s missed education

42. Ms Y told the Council in January 2020 X had not been able to attend school since before Christmas 2019. The Council arranged alternative provision for X through CHES from 3 March 2020 to June 2021.
43. The Council’s duty to provide X with a suitable education ended in June 2021, the end of the academic year he turned 16.
44. I have assessed the Council failed to provide X with any suitable educational provision for a period of one school term from November/December 2019 to the start of March 2020.
45. I note this was an important time for X as he was studying for GCSEs and he did not receive any suitable education during this period. Taking this into account, I consider a payment, at the top of our range, of £2,400 for the missed school term, is appropriate.

Remedy for Z’s missed education

46. Ms Y told the Council in July 2021 Z had not been able to attend for months and had been almost bed-bound since February 2021.
47. I have assessed the Council failed to provide Z with any suitable educational provision for a period of one school year (3 terms) and a further 2.5 terms, from January 2021 until November 2022, when it arranged suitable alternative provision for Z based on medical advice.
48. I understand Z’s attendance at school had been sporadic since March 2020, and the school had made adjustments to his education provision including a reduced timetable. I also note the medical advice Z could only manage 2/3 hours a week of online home tutoring.
49. I have taken into account the reduced amount of educational provision Z was able to manage during this period. I consider a payment of £1,200 a school term (towards the lower end of our range) is appropriate. This is a total of £6,600 (5.5 terms x £1,200).

Service improvements

50. We issued a final decision recently about the Council’s failure to make suitable alternative provision for children in another case (22009488). The improvements the Council agreed to carry out in that case included:

• Amending its policy on children unable to attend school so that it is made clear the Council is responsible for ensuring or overseeing assessments as to why a child is out of school, and is also responsible for overseeing or arranging alternative provision if the child remains unable to attend the allocated school; and
• While it is appropriate to have a graduated response, the Council’s policy will have a clearer timescale for deciding whether and when its s19 duty is triggered. This is to prevent drift and the child remaining out of education for prolonged periods.

51. I consider these improvements would also address the issues with the Council’s service in this case. I am not proposing any additional action at this stage.

Agreed action

52. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Ms Y, X and Z for its failures to provide X and Z with a suitable education;
2. apologise to Ms Y for its delay in responding to her requests for support for Z. These apologies should reflect the principles about making an effective apology set out here Guidance on remedies - Local Government and Social Care Ombudsman in in our published Guidance on Remedies;
3. pay Ms Y £500 to reflect the distress and worry its failures caused her and her time and trouble in bringing this complaint to us. This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies; and
4. make a payment of £2,400 to X as a remedy for the injustice caused by his missed education; and
5. make a payment of £6,600 to Ms Y for Z’s benefit, as a remedy for the injustice caused by his missed education.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation and found fault by the Council, as set out above, causing injustice. The Council will take the agreed actions as a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman