Summary: Mrs X complained the Council failed to provide suitable alternate education for her child, Y, between March 2022 and May 2022 after Y became too unwell to attend school. The Council was at fault for failing to provide suitable alternative education to Y. The Council agreed to apologise to Mrs X and pay her £650 for the benefit of Y’s education.

The complaint

1. Mrs X complains:
• the Council failed to provide her son, Y, with suitable alternate education between March 2022 and May 2022 when he became too unwell to attend school;
• the Council provided an inadequate response to her subject access request and complained about the accuracy of the Council’s data recording; and
• Y’s school failed to respond to her complaints about it.
2. Mrs X says the matter caused her uncertainty about the educational provision Y could have received.

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What I have and have not investigated

3. I did not investigate matters relating to Mrs X’s complaints about the Council’s response to her subject access request, or her concerns about incorrectly recorded information. This is because the Information Commissioner’s Office is better suited to consider this type of complaint as explained in point 7 of this decision.
4. I did not investigate Mrs X’s complaints about the school. This is because the law says we cannot investigate complaints about what happens in schools as explained at point 8 of this decision.

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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. 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 do not start or may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
7. The Information Commissioner's Office considers complaints about subject access requests and right to rectification. So, where we receive complaints about these, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
9. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
10. 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)
11. 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

12. I spoke to Mrs X and considered information she provided.
13. I considered information provided by the Council.
14. Mrs X and the Council had the opportunity to comment the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

Alternative provision law and guidance

15. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
16. 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))
17. 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))
18. 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)
19. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
20. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
21. 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
22. We made seven 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; and
• 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 their duties are properly fulfilled.

Elective home education

23. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

Council’s complaints process

24. The Council has a complaints policy comprised of two formal stages:
• Stage one says a response will be sent within 20 working days of acknowledging a complaint. The policy says if the complaint response will take longer than 20 working days the Council will write to the complainant and inform them of the delay and when to expect a response.
• Stage two complaints are completed by a senior officer appointed by the chief executive. The policy says the Council will send a response within 28 calendar days of the stage two request.

What happened

25. Mrs X has a son, Y, who was of primary school age at a mainstream school in the 2021/22 academic year.
26. Between September 2021 and January 2022 Mrs X says Y’s mental health declined. She says this impacted his ability to attend school.
27. In early February 2022, Y attended school for the last time. Mrs X says she sought support from the school and health professionals during this time about how to support Y to reengage with education.
28. In early March 2022, Mrs X obtained a letter from Y’s GP explaining he could not attend school due to his mental health. A meeting was held between Y’s school, Mrs X and the Council to discuss how to support Y with his education. However, Mrs X says no educational provision was organised following the meeting.
29. In April 2022 a further meeting was scheduled between the Council, Mrs X and the school. However, the Council did not attend the meeting and Mrs X says no educational provision was organised.
30. In May 2022, Mrs X decided to remove Y from the school roll and instead elected to home educate him.
31. In August 2022 Mrs X wrote a letter of complaint to the Council. She told the Council it failed to provide her son, Y, with suitable alternative education when he was unable to attend school between March and May 2022.
32. Mrs X received no response and re-sent the complaint in early September 2022. The Council responded several days later and told Mrs X it would send a stage one complaint response within 20 working days.
33. In October 2022, Mrs X had received no stage one response from the Council. She wrote to the Council and requested a stage two response due to the delay.
34. In mid-December 2022 the Council responded to Mrs X’s complaint at stage two of its complaints process. The Council:
• apologised for the delay in responding to the complaint;
• upheld Mrs X’s complaint that no alternative education was provided to Y between early March 2022 and late May 2022; and
• offered to meet with Mrs X and discuss how to address her concerns.
35. Mrs X wrote to the Council in January 2023 and told it she preferred to communicate in writing. However, Mrs X says she received no further correspondence from the Council about the matter.
36. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.

My findings

Alternative education provision

37. The Council has a statutory duty to provide education in cases where children are unable to attend school because of medical conditions or otherwise. We expect councils to consider a child’s individual circumstances and decide, at the time, whether it has a statutory duty to provide alternative provision.
38. Y stopped attending school in February 2022 after Mrs X decided he was not well enough to attend due to his mental health. The Council accepted fault for failing to provide an alternative education to Y between March 2022 and late May 2022. Whilst we cannot say for certain how much education Y could have accessed due to his mental health, on balance, it is likely Y could have engaged in some education had the Council assessed and organised this. It meant Y missed educational provision he was entitled to during this period.

Complaints procedure

39. The Council failed to provide Mrs X with a stage one response. This is not in line with the Council’s policy and is fault.
40. Mrs X requested a stage two response from the Council. The Council responded 49 calendar days later. This is not in line with the Council’s policy and is fault.
41. The above faults caused Mrs X frustration and uncertainty about whether the Council was considering her complaint appropriately. The Council accepted fault and apologised for the delays. This is appropriate to remedy any injustice caused by the faults.

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Agreed action

42. Within one month of the final decision, the Council agreed to:
• write to Mrs X and apologise for the distress and uncertainty it caused when it failed to provide Y with suitable alternative education between March and May 2022;
• pay Mrs X £650 for the benefit of Y’s education. This represents a loss of 10 weeks of education between March 2022 and May 2022 considering school holidays; and
• remind relevant officers involved in education monitoring and support of the Council’s duties under law and statutory guidance to consider providing alternative provision when a child of statutory school age is out of school for health reasons or otherwise. The Council should consider sharing a copy of our focus report ‘Out of school…. Out of sight?’ and our final decision with the reminder.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the faults.

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Investigator's decision on behalf of the Ombudsman