Summary: Ms X complains the Council failed to make alternative education provision for her daughter Y when she could not attend school. There is no evidence of fault in how the Council made its decision that it did not have a duty to provide alternative education provision for Y. The Council is at fault for not recording its decision that Y’s high school could meet her needs, for not providing an update to Ms X as to whether it would commence legal proceedings and for failing to consider Ms X’s complaint in accordance with its complaints procedure. These faults caused distress to Ms X which the Council will remedy by apologising and making a symbolic payment of £200 to her.

The complaint

1. Ms X complains the Council has failed to make alternative education provision for her daughter, Y, since September 2021 when she was unable to attend school. As a result, Y has missed a significant amount of education. Ms X has also been caused significant distress and incurred costs in sourcing provision for Y.

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The Ombudsman’s role and powers

2. 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)
3. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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. 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

6. I have:

• considered the complaint and the information provided by Ms X;
• discussed the issues with Ms X;
• made enquiries of the Council and considered the information provided;
• considered Ms X and the Council’s comments on the first draft decision.
• invited Ms X and the Council to comment on this draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

7. Section 19 of the Education Act 1996 (the Act) says each local authority will 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. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs (SEN) he or she may have.
8. There is case law regarding the duty of a council to provide education to children who cannot attend for reasons other than illness or exclusion. This provides that if a council has arranged for the provision of education which is suitable for a child and which it is reasonably practicable for the child to enjoy, a council would not be under a duty to provide alternative suitable education because the child is not taking advantage of the existing facility. (G v Westminster City Council [2004] EWCA Civ 45 and DS v Wolverhampton City Council [2017] EWHC 1660).
9. The duty to make alternative provision does not apply because parents or a child have reasonable objections to attending the school. The Council has to decide if the education offered is reasonably available and accessible to the child. (R (R) v Kent County Council [2007] EWHC 2135 (Admin)]

What happened

10. The following is a summary of the key facts relevant to my consideration of the complaint. It does not include everything that happened.
11. Ms X’s daughter, Y, attended a primary school. The school raised concerns about Y’s attendance. In response to my enquiries the Council has said that a school will implement a school action plan when a pupil’s attendance drops below 90%. If there is little or no improvement then the Council’s school attendance team will investigate the reasons for the irregular attendance.
12. In November 2021, officer A, arranged a meeting with the school and Ms X to discuss the reasons for Y’s absence. The Council’s record of the meeting show Ms X explained the absences were due to Y suffering headaches and distress about attending school. The meeting record also shows the school considered Y did not show signs of distress when she was in school.
13. The Council arranged a number of review and early help meetings between December 2021 and June 2022 to discuss the reasons for Y’s low attendance and strategies to improve this. The Council’s record of the meeting in June 2022 notes it considered Y could access the curriculum and her needs could be met in mainstream school.
14. In emails to officer A, Ms X said that she considered the Council should be providing suitable education for Y in line with the provisions set out in the Government’s guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ and sent a letter from Y’s GP. Officer A advised that the Council had criteria for when children who were medically unfit to attend school could access the Hospital, Home Individual Tuition Service. Referrals had to be made by a consultant level medical professional or Children Adolescent Mental Health Services (CAMHS). The Council considered children who attended school sporadically were best to have their educational needs met in school and supported which is what the Council was doing for Y. Officer A confirmed in further email correspondence with Ms X that Y did not meet the criteria for a referral to the tuition service.
15. A further review meeting in late June 2022 noted Y’s attendance had dropped. The notes record Ms X’s view that the school was not meeting Y’s needs and she could not attend full time due to anxiety. The record of the meeting also notes the Council considered Y could access the curriculum and her learning needs could be met in mainstream school. The Council said it would issue legal proceedings for Y’s non attendance. But it may review its decision if further information, including information from a paediatrician’s report came to light.
16. Y transferred to a high school in September 2022 but stopped attending school at this time. Records of early help meetings in September 2022 show Ms X and her advocate considered Y was not well enough to attend school and the school could not meet her needs. Ms X also shared a mental health assessment with the school which she had commissioned for Y. This report made recommendations for how Y could be reintegrated into education.
17. Ms X’s advocate contacted the Council as it had not sent a letter to Ms X following the meeting in June 2022 where officer A said it would issue legal proceedings for Y’s non attendance. Officer A said she told Ms X at the meeting that she would consider possible legal action after Y’s paediatric assessment.
18. Further early help meetings were held in October and November 2022 and note Ms X declined education provision offered by the school. The Council has said Ms X then refused further early help meetings. Ms X has said she did not refuse further early help meetings. The Council has also said Ms X declined to share the outcome of the paediatric assessment.
19. Y continues to be out of school. Since September 2023, Ms X and the school have been discussing the provision it can make for Y to enable her to receive education.
20. The Council’s position is that Y’s primary school and high school could meet her needs and the education was accessible to Y. Both schools were also willing to make reasonable adjustments to accommodate Y’s needs. The Council has said the high school has also considered Y’s mental health assessment and the report of an educational psychologist and considered it could meet Y’s needs. The Council therefore considers it does not have a duty under section 19 of the Education Act 1996 to make alternative provision for Y.
21. The Council has said it did not commence legal proceedings for Y’s non attendance as it was waiting for the outcome of the paediatric assessment. It said that it could have commenced legal proceedings when Ms X declined to share the paediatric assessment as it considered the education provision was suitable for Y. But prosecution is a last resort.
22. Ms X considers the Council has a duty to make alternative provision for Y as she could not attend her primary and high schools due to severe anxiety.

Complaint

23. Ms X made a complaint to the Council in June 2022 that Y was not receiving suitable education provision. The Council responded to the complaint in October 2022 but did not uphold the complaint. The Council did not consider the complaint at stage one of its complaints process.

Analysis

24. In the event a child cannot attend school for reasons other than exclusion or illness, a council must decide if the current education arrangements are reasonably accessible by the child. A council’s duty to make alternative education provision under section 19 of the Education Act 1996 is not triggered if it is satisfied the education is reasonably accessible. When considering complaints about councils not making alternative education provision, we look to see if the Council has considered the relevant evidence when reaching its decision. We do not come to our own view on whether the education is reasonably accessible.
25. There is no evidence of fault in how the Council made its decision not to provide alternative provision for Y in 2021/22. The record of the attendance meeting in June 2022 notes the Council’s view that Y could access the curriculum and attend school. The Council made this decision following a number of meetings with Ms X, the school and a healthcare professional. It was therefore aware of Ms X’s concerns and in a position to make a decision on whether the education was reasonably accessible to Y.
26. The Council considered Y’s high school could meet Y’s needs and the education was accessible to her. There is no evidence to show how the Council reached this decision or how it notified Ms X. But, on balance, I consider the records of the early help meetings show the school considered it could meet Y’s needs and the education was accessible to her. I say this as it offered provision targeted at pupils who experience anxiety including gradual reintegration plans. The school and Council had also seen a copy of Y’s mental health assessment. So, they would have been aware of the assessment’s recommendations when considering if the school could offer provision to meet Y’s needs. Ms X also attended the early help meetings so the school and Council were aware of her concerns.
27. But the Council’s failure to keep a record of its decision is fault. We expect a council to clearly document its decision that an education is reasonably accessible. Councils should also clearly communicate their decisions to parents/guardians. But this fault did not cause injustice to Ms X as the school considered it could meet Y’s needs and make provision for her. Ms X also attended the early help meetings so would have been aware the school considered it could meet Y’s needs.
28. Ms X has said that the Council has recently decided Y has special educational needs and it has issued an Education, Health and Care (EHC) plan for her. She considers this calls into question the Council’s decision that the education at the schools was accessible for Y. The Council could only make its decision on whether the education was accessible for Y based on the information it had at the time. The fact that the Y now has an EHC plan does not call into question the past decision of the Council that the education was accessible for her.
29. The Council did not start legal proceedings for Y’s non attendance when Ms X stopped engaging with the early help meetings. But this does not mean the Council had a duty to arrange alternative education provision for Y. Legal proceedings for non attendance are a separate legal process to the duty to make alternative education provision. But the Council should have informed Ms X of whether it would take legal proceedings and the failure to do so caused some distress to her.
30. Ms X has said the school referred Y to children’s services to see if support could be provided to enable her to attend school. Ms X has said she found the referral to be intimidating and considers it was instigated by the Council. I will not investigate this matter any further as I do not consider there is evidence of fault. The Council should consider referrals to other services to see if support can be provided in the event a child is not in school and it considers the education is accessible to them.
31. Ms X considers the Council’s criteria for hospital and home tuition is unlawful as it requires a consultant’s report. The statutory guidance ‘ensuring a good education for children who cannot attend school because of health needs’ does not prevent councils asking for evidence from a consultant. In any event, the Council’s policy provides that evidence can be submitted from a range of medical professionals. So there is no evidence of fault in how the Council made its decision that Y did not meet the criteria for the Council’s hospital and home tuition service.
32. The Council failed to consider Ms X’s complaint in accordance with its complaints procedure. The Council did not deal with Ms X’s complaint at stage one and went straight to stage two. It then delayed in responding to Ms X’s complaint. This is fault which will have caused distress to her.

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Agreed action

33. The Council should:
1. send a written apology to Ms X and makes a symbolic payment of £200 to her for the distress caused by the failure to notify her of whether it would commence legal proceedings and failure to deal with her complaint in accordance with its complaints procedure. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Review its record keeping procedures to ensure officers keep a clear record of their decisions about whether education provision is accessible to a child out of school and whether it owes a duty under Section 19 of the Education Act 1996 to make alternative education provision.
3. Ensure officers notify parents/guardians in writing regarding of its decisions on whether education is reasonably accessible and whether it has a duty under Section 19 of the Education Act 1996 to make alternative education provision
34. The Council should take the action at a) within one month and the action at b) and c) within two months of my final decision.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. Fault causing injustice.

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Investigator's decision on behalf of the Ombudsman