Summary: Mrs X complained the Council failed to provide sufficient support for her daughter especially when her school attendance began to drop. We find the Council at fault for failing to provide alternative provision. The Council will make a financial payment for the loss of education, review the provision currently in place and remind staff of the policy.

The complaint

1. Mrs X complained the Council failed to provide sufficient support for her daughter, C, especially when her school attendance began to drop.
2. She says C has missed essential school provision at a key point in her education.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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)
6. 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

7. I have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
8. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

9. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
10. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.
11. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
12. 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)
13. 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)
14. 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? published July 2022
15. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that 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;
16. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties and properly fulfilled.

What happened

17. In late mid-April 2022 C was referred to the Council under an interagency referral. The Council carried out an assessment in late April and determined that she was a child in need.
18. During the assessment the Council became aware that C’s school attendance currently stood at 80%. She had not been attending for the past month but was hoping to return part-time the following week. It noted that extra support had been put in place by her school to help her return, including counselling, reduced timetable and a timeout card.
19. The Council issued a child in need plan in June 2022. The plan included providing C with intervention and support services but there was no specific school support identified.
20. The school emailed the Council in July to apologise for missing the child in need meeting. It also provided its comments for the Council to consider. It asked the Council to provide it with support to help C return to school.
21. During the September child in need meeting the school informed the Council that C had not accessed school between March and September. It explained it did not feel it had C’s engagement and that it could not safeguard her in the current circumstances. It was agreed the plan should include education-based targets with the aims of supporting C’s reintegration into school and helping her catch up on missed learning. The school stated C could benefit from extra tuition. The Council informed it she would not be entitled to the virtual school because this was for looked after children and tutoring was not something it could fund.
22. To help engagement C’s school placed her on a life skills course as she was deemed to be unable to manage GCSEs with her reduced attendance. Following the meeting in September it switched C to a GCSE music course in the hope this would encourage attendance.
23. In late October 2022 the school contacted the Council several times due to C’s absences. It informed the Council C's attendance had dropped to 50%. It explained it would be completing a home visit and arranged a meeting. It stated that C was at risk of being a child missing in education. Following the home visit it noted C had missed ten days in a row and it raised concerns about the level of support C was receiving.
24. At the child in need meeting in November 2022 the school reported that C’s attendance remained an issue. The school said it wanted to put firm boundaries in place and encourage her to come in. In terms of schoolwork, it noted the GCSE music had been too much for her. The Council suggested family therapy to assist with this. The school raised concerns that home schooling would make her more vulnerable but that she needed extra schooling or help.
25. In early January 2023 a child in need meeting was held. During the meeting it was agreed that the school would hold a meeting to explore how to support C and that a school mentor had been appointed.
26. The Council closed the child in need plan in early February 2023. At this time there were still issues with C’s attendance at school.

Findings

27. In the early stages of the period complained about – between April and June –there was no fault by the Council. There was a school place available for C and a reintegration plan to help her reasonably access school. It is acceptable for councils to see whether a school can reintegrate a non-attending child.
28. The statutory guidance makes it clear that this should be a short-term plan, which is reviewed regularly. As time progressed, and C remained out of school, there is evidence of fault in the Council’s actions. It is clear from the records that the school was concerned the reintegration plan had not been successful and that C’s attendance levels continued to decline. It asked for support with reintegration in July and raised clear concerns about the reintegration plan having failed in September 2022. There is no evidence that the Council took steps to consider the reintegration plan, its duties to ensure attendance or provide alternative provision.
29. The Council recognised that C was absent from school and these absences amounted to more than 15 days. It was informed in September that C had not attended school for several months. It did not consider its duties under section 19 of the Education Act 1990 to provide suitable alternative education when these issues were raised.
30. If it considered C had a suitable school place available and was able to attend, it could have taken action to require her to attend. It’s clear from the child in need plan and correspondence with the school that it viewed this as an authorised absence. Therefore, it had a duty to consider alternative provision when the reintegration plan failed.
31. The child in need plan outlined C’s needs in September. This included needs in returning to education and catching up on missed provision. I have seen no evidence the Council considered its responsibilities to ensure C was receiving a suitable education.
32. The Council incorrectly stated that it could only offer virtual support if C was a looked after child. It also declined to offer tuition due to funding requirements. This is not in accordance with the legislation which places a duty on councils to arrange suitable provision for those unable to attend school for reasons of exclusion, illness or ‘otherwise’.
33. In response to our enquiries the Council says the issue of school attendance and section 19 duties was the responsibility of a neighbouring council where C’s school is located. The statutory guidance is clear, the responsibility for providing section 19 provision applies to all children of compulsory school age living in the council area. It had also accepted a duty to ensure educational provision for C in the child in need plan.
34. In conclusion the Council was aware from September 2022 that C had significant periods of absence from school and was not receiving a suitable full-time education. The Council had a duty to step in to ensure that she did but it did not do so. I find the Council was at fault.
35. This fault has caused an injustice. C has still not reintegrated into school full time and has not been provided any alternative provision. C has been without suitable education for nine months. This is during a crucial period of her education while she is studying for GCSE’s.
36. Mrs X has felt anxiety and distress at seeing her daughter unsupported during this time. She has, and continues to, worry about the impact this loss of education will have on her daughter’s success going forward.

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Agreed action

37. The Council will within one month of the final decision:
• Apologise to Mrs X and C for the lack of suitable education provided when C attendance declined and the anxiety and distress this caused.
• Pay Mrs X, £200, for the injustice caused to her.
• Review the level of provision C is receiving and its suitability for her needs. Following the review, the Council should put in place sufficient alternative provision to ensure C is receiving a full timetable, equivalent to that of her peers.
• Pay Mrs X, for the benefit of C, £3,000 in recognition of missed provision.
• Remind all staff within children services of the duties under section 19 of the Education Act 1996.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. I have found fault causing an injustice. The Council should take action to remedy the injustice and prevent reoccurrence.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman