Summary: Ms X complained the Council failed to provide education to her child since September 2022. We found fault with the Council failing to provide education to Ms X’s child since October 2022. The Council agreed to our recommendations to provide Ms X with an apology and a payment of £4,000 to reflect the impact of the missed education on Ms X’s child.

The complaint

1. Ms X complained the Council failed to provide education for her child since September 2022 despite sporadic attendance since February 2022.
2. Ms X says the School contacted the Council twice to request support for her child but the Council refused the request for support.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended).
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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 have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Relevant Law and Guidance

11. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Alternative Provision of education for children

13. 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))
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
15. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
16. The education provided by a council must be full-time unless a 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)
17. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
18. 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 (with the exception of 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
19. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
20. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
21. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
22. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.
23. A compulsory school week in the UK is 32.5hours including breaks.

What happened

24. During year 7, 2021 to 2022, Ms X’s child, who I will refer to as Y, received Special Educational Needs (SEN) support from the School as part of a Pupil Support Plan. This included a reduced timetable for Y.
25. Y did not return to school in September 2022 following the start of the new academic year.
26. Ms X contacted the School to arrange a meeting with the Council to see what support they could provide as Y’s Pupil Support Plan had failed and Y could not return to school. Ms X says this meeting was to discuss different options of education while the Council says it believed the meeting was to discuss the potential of home educating Y.
27. The Council attended the meeting on 15 September 2022 and discussed the potential for home educating Y with Ms X. Ms X contacted the Council following the meeting and said she did not consider home educating Y was the right choice.
28. On 23 September 2022, the School made a referral to the Council for Y for its “fair access” protocol. The School advised Y had failed to attend school this academic year and was seeking support to enable Y to attend school.
29. The Council rejected the School’s application. The Council provided guidance to the School and asked it to provide more information before resubmitting the application.
30. On 12 October 2022, Ms X made a formal complaint to the Council. Ms X said Y’s mental health meant he was too unwell to attend school. Ms X said Y had been absent from school this academic year and complained about the lack of education provided by the Council.
31. The Council directed Ms X to mental health support groups on 31 October 2022.
32. Ms X reiterated her complaint to the Council on 8 November 2022 about the lack of education for Y.
33. On 20 November 2022, Ms X made an EHC Needs Assessment application to the Council. Ms X reiterated as part of this application that Y had not been in education this academic year.
34. The Council provided its Stage 1 complaint response on 29 November 2022. The Council said Y’s school should arrange for an Educational Psychologist to help Y should they consider this is needed. The Council said it has seen no evidence Y cannot attend school.
35. Ms X responded to the Council to request consideration of her complaint at Stage 2.
36. Y’s school made a second “fair access” application in December 2022. The School reiterated Y had not been at school this academic year.
37. The Council decided not to complete an EHC Needs Assessment for Y and told Ms X about its decision. The Council also decided to reject the School’s application for the “fair access” protocol because it did not consider the school had exhausted the options available to it. The Council said it would arrange for an Educational Psychologist to engage with Y in January 2023.
38. Y’s school provided the Council with Y’s attendance record at the end of the December 2022 term confirming Y had been absent for the full term unauthorised.
39. The Council provided its Stage 2 complaint response on 10 January 2023. The Council said:
• A referral had now been made for an Educational Psychologist for Y.
• It had proposed a bespoke programme of support for Y.
• Y’s school needs to put in place a graduated response for Y before it could provide specialist provision.
• The school had not authorised Y’s absence, he was still on roll at the School and the medical evidence does not state he is unfit to attend.
40. Ms X sought consideration of her complaint at Stage 3. Ms X said the Council has still not advised what it was doing to address Y’s loss of education. Ms X reiterated that Y was not receiving education and this was the Council’s responsibility to address.
41. An Educational Psychologist met with Y on 11 and 25 January 2023.
42. In February 2023, Y’s School contacted the Council to ask for mediation to address Y’s lack of education and asked who was working on the referrals for Y. The Council advised it had rejected the referrals but would arrange mediation.
43. On 3 March 2023, a mediation meeting took place. The School agreed to put in place a small steps programme to reintegrate Y into the school setting.
44. The Council provided its Stage 3 complaint response on 15 March 2023. The Council said it has a legal duty to support young people to attend school. The Council said it had performed this by providing guidance to Y’s school and meeting with the School to create a phased return plan for Y.
45. On 24 April 2023, Y attended school to access log in details to engage with work from home. The School confirmed it would start sending work home for Y as part of the small steps programme. The School started sending work home.
46. The Council decided on 25 April 2023 to nominate Y for alternative provision of education through a trial re-engagement programme.
47. The Council’s notes in May 2023 and June 2023 state the Council is wanting to get the small steps programme started but it is waiting for the School to put this in place. On 26 June 2023, the Council confirmed the alternative provision as part of the reintegration plan would start within the next two weeks.

Analysis

EHC Plan

48. The Council decided to reject Ms X’s application for an EHC Needs Assessment for Y. The Council made this decision within the statutory timescales. The Council was entitled to make this decision and the Ombudsman cannot question this decision.
49. Ms X has an appeal right to the tribunal about the Council’s decision to reject the application for an EHC Needs Assessment. The Ombudsman cannot displace the role of the tribunal.

Providing education

50. Before September 2022, the School was supporting Y. The Council was not involved in provision of this support. It is not the Ombudsman’s place to investigate the support a school puts in place.
51. In September 2022, Y’s attendance at school stopped. Ms X and Y’s School sought input from the Council. The meeting with the Council on 15 September 2022 resulted in the Council providing information about home schooling Y. I do not find fault with this meeting as the Council provided information based on what it believed meeting was arranged for.
52. When the School made a referral to the Council on 23 September 2022 it told the Council Y had not attended school this academic year. On this date, Y had only been absent from school for 14 school days. Government guidance recommends councils arrange education when it is clear a child would be away from school for 15 days or more. Y had not been absent from school for 15 days on the date of the referral. The decision about whether it was “clear” Y would be absent for more than 15 days on this date is one the Council was entitled to make. The Council decided it was not clear Y would be absent for more than 15 days and I cannot find fault with this decision.
53. When Ms X complained to the Council on 12 October 2022 she reiterated to the Council that Y had not been out of education for the entire academic year. On this date, Y had been absent from school for more than 15 days. The Council should have considered its Section 19 duty to provide education for Y on this date. The Ombudsman’s recommendations for councils say the Council should have decided whether to require Y to attend school or provide Y with suitable alternative provision. At the least, the Council should have adopted a “strategic and planned approach” to reintegrate Y into mainstream education. While the Council did provide guidance to the school this fell short of a “strategic and planned approach”. As such, the Council failed to take any of these actions in response to Ms X’s contact. This was fault.
54. Government guidance says the Council should look to put in place alternative provision from day 6 of it becoming clear a child had been absent for more than 15 days. Day 6 for Y was 20 October 2022. Y’s school half-term started the following day with the next half-term starting on 31 October 2022.
55. Both Ms X and the School continued to reiterate to the Council in November 2022 and December 2022 that Y was not attending school. The School also confirmed to the Council at the end of the term that Y’s absence from school was unauthorised.
56. The Council failed to take any action to address Y’s absence from school until January 2023. This was fault.
57. When the Council did act by allocating an Educational Psychologist to work with Y, this met the Emotionally Based School Non-Attendance approach for a “strategic and planned approach” to reintegrating Y into mainstream education. From January 2023 until 3 March 2023, the Council’s response to Y being out of education was to arrange an Educational Psychologist to work with Y. While the Council arranged this educational psychologist to work with Y, it did not provide any education to Y. This was fault.
58. The Ombudsman’s focus report highlights a council should not assume a school will shoulder the entire responsibility. This is an approach the Council took until 3 March 2023 and is highlighted from its Stage 1 and Stage 2 complaint responses by directing Ms X back to the School. This was fault.
59. The mediation meeting on 3 March 2023 is the first evidence of the Council agreeing a “strategic and planned approach” with Y’s school to reintegrate Y into mainstream education. This small steps programme was designed to promote Y’s attendance. The Council had decided Y could attend mainstream education, a decision it was entitled to make, and I do not find fault with this approach.
60. While the Council formed a “strategic and planned approach” with Y’s school, the Council failed to put its chosen approach into practice without delay. It took until 24 April 2023 to provide Y with log in details to access remote education provided by the School. It then took until end of June 2023 to set a start date for the small-steps reintegration programme alongside the alternative provision. The Council’s delays in putting in place this plan was fault causing further missed education for Y.
61. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
62. Y missed education in the first half of the academic year, but this was not through the fault of the Council.
63. Since 31 October 2022, Y has missed the equivalent of one and half terms of education without any educational provision. The only input Y received was support from an Educational Psychologist, this was not educational provision.
64. After the Easter break, Y’s School put in place some educational provision for Y by sending work home following provision of log-in details on 24 April 2023. While Y received some educational provision from the work the School sent home, this is not a suitable substitute for full-time education. The Council failed to put in place the small-steps programme or alternative provision until July 2023, at the earliest. This means Y has gone nearly another entire term without suitable provision as the term ended on 21 July 2023.
65. Overall, Y missed education for two and a half terms, with only partial provision being put in place in the final term. Y missed this education during year 8 which is not normally considered a key academic year. Given this missed education and the potential impact this had on Y, the Council should pay Ms X £4,000 for the lost education.

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Agreed action

66. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Ms X for the inconvenience, frustration and distress caused through delays in providing education to Y.
• Pay Ms X £4,000 to address the Council’s failure to provide suitable Alternative Provision for Y resulting in missed education. Ms X may use this as she sees fit for Y’s educational needs.
• Ensure Y starts to receive the alternative provision and reintegration programme.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman