Summary: Miss X complained the Council failed to provide her daughter with alternative education when she was unable to attend school due to anxiety and bullying. She also complained about the Council’s complaints process. The Council upheld some parts of the complaint and Miss X has received an appropriate remedy. We do not propose anything further.

The complaint

1. The complainant, Miss X, complains the Council failed to provide her daughter with alternative education when she was unable to attend school due to anxiety and bullying. She also complained about the Council’s complaints process.
2. Miss X said this has caused her and her daughter significant distress.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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)

Back to top

How I considered this complaint

5. I considered all the information provided by Miss X and the Council.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

General section 19 duty

7. 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.
8. 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)

Educational provision- available and accessible

9. The law says that councils must also arrange alternative education for children who are ‘otherwise’ unable to attend school. The concept of being ‘otherwise’ unable to attend school is not defined in legislation or statutory guidance, but has been explored as part of several judicial reviews. The commonly used definition is that a child is ‘otherwise’ unable to attend school in any situation where it is not reasonably possible for a child to take advantage of any existing suitable schooling. This is a decision for the Council to make, taking account of all relevant evidence.
10. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that 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)

Statutory complaints procedures

11. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. We also published practitioner guidance on the procedures, setting out our expectations.
12. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
13. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
14. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
15. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
16. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.
17. Unless there is evidence of fault in the investigation process, the Ombudsman will not usually re-investigate a complaint which has been through the full procedure. This is because a properly conducted investigation is independent and robust.

Summary of the key events

18. Miss X contacted the Council to complain on the 25 October 2022. She said her daughter, B, was having issues at school and had been bullied for over a year. She said B had not accessed full time education since January 2022 due to anxiety.
19. In the following month, B’s school contacted the Council and detailed the support they had provided to B and Miss X. They stated Miss X had asked for home tuition.
20. The Council carried out a child and family assessment. It was noted that B was willing to go back to school with a gradual return. She said she would be happy with reduced hours. But said she was not ready to return to the classroom.
21. Miss X contacted the Council towards the end of December 2022 to complain. She said:
• she contacted the Council in October seeking advice;
• she asked the school to provide alternative education. But said this was refused;
• the social worker and teacher had a meeting without her input. They decided home tuition was not suitable as B needed to be in school; and
• the Council had a duty to provide alternative education.
22. In January 2023, the Council’s attendance officer wrote to Miss X and said:
• for a medical referral to its alternative provision there needed to be supporting documentation from a medical consultant. The referral needed to come from the school. But said in this case there was not sufficient medical evidence;
• the school had made reasonable adjustments with additional support and continued to be flexible;
• there are alternative provisions that school may want to consider;
• school and social care agree the level and type of support and counselling offered by school is preferrable to B attending on-line provision; and
• the on-line home tuition provider requires self-discipline. But said currently B was not in a routine and struggled to wake up.
23. The Council’s social care team responded to Miss X’s complaint in January 2023. It said:
• it received a referral from the school highlighting concerns around inconsistent attendance since January 2022;
• there were discussions about how the social worker could support B to return to education;
• the child and family assessment was completed and determined a referral to a service that provides support to be proportionate; and
• a meeting was held in January 2023 between social care and education. It accepts that Miss X should have attended, and it apologised.
24. Miss X asked for her complaint to be escalated. The Council said it was satisfied the school was working through a number of approaches to support B to return to school.
25. Miss X said the approaches tried by the school had not worked. She said B’s needs were not being considered. In response, the Council said due to the concerns raised by Miss X, it would ask the team to support the school with making a medical needs tuition referral to its alternative provision provider.
26. In February 2023, Miss X asked the Council who was responsible for the education of children with additional health needs. She also asked for a copy of the Council’s policy regarding the education of children with health needs who cannot attend school.
27. The Council’s medical panel decided B did not meet its criteria in early March 2023.
28. The school contacted Miss X shortly after. They offered the online home tuition programme to support B’s transition back into full time education. They said this would be online and in school learning.
29. The Council told Miss X it had concluded its part in investigating her complaint.
30. Miss X came to us to complain in March 2023. But we asked the Council to evidence it had considered Miss X’s complaint regarding B being out of education.
31. Miss X said the offer from school was not suitable. This was because she said the school was not addressing B’s anxiety.
32. In response the Council said:
• it had considered her complaint under its statutory complaints process;
• its alternative provision service is currently reviewing its medical needs policy and said this would be published on completion;
• the attendance officer first became involved in the case in May 2022. A warning letter was issued, and Miss X was advised to work with the school and social care;
• prior to this, the school had offered two different counsellors and a reduced timetable;
• parenting support was offered to Miss X;
• a referral was made to child and adolescent mental health services (CAMHS) who assessed B and referred her back to the GP;
• support was recommended from a service but declined by Miss X;
• the school referred B as a medical referral in February 2023. But B did not meet its criteria as she did not have a diagnosis, nor was she under CAMHS;
• the school offered online tuition which Miss X declined; and
• if B remained on roll with continued unauthorised absences, the attendance team would need to consider next steps.
33. The attendance team wrote to Miss X in March 2023. They said they had tried to visit Miss X but had no response. They said they would refer the case to the social care team where the decision was made to progress the case for a child and family assessment.
34. The case notes stated Miss X did not consent to social workers speaking with B. It was also noted B was not out of education as Miss X had been paying for private online tutoring which was five days per week.
35. Miss X told the Council she had concerns around its complaint’s response. She said it had been placed on the wrong complaint’s pathway and said the Council had not followed its policy. But the Council said it had taken the decision to continue to the stage two response which it said would allow for the opportunity for an independent review.
36. After a meeting in April 2023, Miss X said she was happy for B to start the online tuition. The school sent Miss X details of the programme.
37. The Council asked the school for an update on B’s engagement on the 23 June 2023. The school said B had been in school every day since the 12 June. They said before this, she had come to school late and left early.
38. In August 2023 the investigating officers (IO) report noted:
• the actions taken by the school;
• that rather than supporting online tuition, the focus on professionals had been trying to understand the reasons for B’s non-attendance at school. This was because there were concerns Miss X may have been enabling her non-attendance;
• B had indicated a willingness to return to school in December 2022 and did not wish to change schools. But said it was not clear what had led to B’s continued absenteeism;
• they considered the Council could have supported B with online tuition at the same time as exploring her reasons for non-attendance;
• they acknowledged that when Miss X sourced online tuition for B between January and April 2023, B engaged well with this;
• they considered that B’s experience highlighted a gap in service provision for children who present with social, emotional or mental health (SEMH) needs and do not meet the threshold for a medical referral;
• the Council has developed a school’s pilot that is providing short-term placements comprising a therapeutic element for individuals presenting with SEMH;
• therapeutic thinking training had been rolled out across schools;
• while the Council was working with the school to offer support to encourage B back into school, the type of therapeutic support that is available to some children currently within the school’s pilot, was not available to B at the time;
• whilst the complaint was being investigated it was not immediately logged as a complaint; and
• when the decision was taken to investigate the matter through the statutory process, there were delays in a response being provided;
• the IO found the Council did not respond within the statutory timescales in accordance with its duties; and
• an officer noted there had been a lot of activity by Miss X being sent to several different people about the same issues. On reflection they noted the Council should have collated all the information into one place through a single point of contact to provide a response.
39. The Council adjudication officer wrote to Miss X in September 2023. They agreed with the findings of the IO report but did not agree the Council had failed to provide alternative provision. They said:
• the Council and school acted reasonably and put in place a range of strategies to support B’s return to school;
• professionals initially felt that online tuition would not be appropriate for B;
• the Council wanted to explore the reasons for non-attendance. But recognised the Council could have supported B with online tuition at the same time;
• they offered Miss X £500 to acknowledge the delay in the complaints process; and
• they offered £500 to acknowledge the time and trouble Miss X has spent in pursuing the complaint.

Analysis- was there fault by the Council causing injustice?

40. It is not our role to reinvestigate matters which have already been subject to a properly conducted and independent investigation. To do so would not be a good use of public resources. Instead, our role is to consider the following:
• was the investigation properly conducted and are the conclusions evidence based. If not, would the Ombudsman reach a different view based on the information available to us?
• did the Council offer a proportionate remedy for the injustice caused by fault? If not, would the Ombudsman recommend any further remedial action?
• has the Council fully implemented any agreed remedy? If not, has the delay caused any further injustice to the complainant?
41. The courts have confirmed that it is the Council’s duty to form a view of what is a suitable education and whether the education is reasonably practicable for the child to access.
42. In this case, I am satisfied the Council considered whether the school was available and accessible with the measures the school and council had put in place. This included:
• regular vulnerable pupil meetings to discuss needs and interventions;
• 1:1 learning mentor;
• child and family assessment;
• flexible hours and close supervision by identified staff member;
• personalised meet and greet for B at the start of each day;
• private room in school with access to a computer and support from staff;
• referral to the medical needs alternative provision; and
• online provision offered in February 2023.
43. There is evidence the Council clearly documented and communicated to Miss X that it considered the school to be available and accessible. As stated in paragraph 31, this was a decision for the Council to take. There was a thorough investigation and if the LGO was to reinvestigate this complaint, we would not have found fault in regard to the Council’s section 19 duty. We therefore would not have expected the Council to remedy any loss of education.
44. Miss X told us her initial complaint to the Council was in October 2022. Miss X initially went through two stages of the Council’s complaints process, followed by the statutory complaints process. The IO found that whilst the complaint was being investigated it was not immediately logged as a complaint. They said when the decision was taken to investigate the matter through the statutory process there were delays in a response being provided. The IO also stated the Council did not respond within the statutory timescale in accordance with its duties. The Council has provided Miss X with a remedy of £1000 to acknowledge the time and trouble she spent pursuing the complaint and for the delay in the complaints process. I am not going to make a further recommendation.

Back to top

Final decision

45. I have completed my investigation. The actions already undertaken have provided an appropriate remedy for any injustice caused by fault and we do not propose anything further.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman