Summary: Miss X complained about how the Council handled alternative provision for her daughter after she stopped attending school in September 2022. The Council was at fault for not providing alternative provision. The Council agreed to remedy the injustice its actions have caused to Miss X and S.

The complaint

1. Miss X complains the Council failed to:
• monitor the part-time timetable her daughter, S, was on since January 2022 with no clear plan of reintegration into full-time education;
• provide S with suitable alternative education until March 2023 after she stopped attending school for medical reasons in September 2022; and
• follow its corporate complaints procedure when she complained about the lack of alternative provision.
2. Miss X says this negatively affected S’s mental wellbeing and she became reclusive. Because of the delay in the Council securing her alternative provision she found it difficult to engage in education when the Council made it available. Miss X says the lack of educational provision for S also resulted in avoidable distress for the entire family. Furthermore, Miss X says that she could not work because she had to stay at home with S, which negatively impacted the family’s finances.
3. Miss X would like the Council to apologise for the delay in securing the alternative provision for S and compensate her for the money she lost as she was unable to work. She would also like the Council to review its procedure to ensure this does not happen to another family.

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The Ombudsman’s role and powers

4. 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)
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)

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How I considered this complaint

6. I considered the information Miss X sent me, and I have spoken to her about her complaint.
7. I considered the Council’s response to my enquiries.
8. Miss X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Part-time timetables

9. The Department for Education’s non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.
10. Schools should notify councils of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, ‘Out of school…out of mind?’, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
11. The Council told us that it uses an online system to monitor children that do not access education in the usual way. The Council encourages schools to use this system to report any pupils that are missing out on education so that it can support it and provide alternative provision when necessary.

Alternative Provision of education for children

12. 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))
13. 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))
14. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
15. 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)
16. 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)
17. 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.
18. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
19. 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.

Council’s corporate complaints

20. The Council’s complaint procedure has two stages. The Council says it will acknowledge complaints at both stages in three working days. It will respond to stage one complaints in 15 days and stage two complaints in 20 working days. Where the complaint is of a complex nature, the Council might extend the timescale for response, but it will update the complainant about the time scales.

What happened

21. S was on roll and was attending a mainstream secondary school. She has a diagnosis of autism and sensory processing disorder. She was also under the care of The Child and Adolescent Mental Health Services (CAMHS) for emotional regulation support due to her anxieties and mental health and was also a Child in Need. 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.

22. During the time Miss X complained about she was undergoing the statutory assessment process for an EHC plan.
23. In January 2022 S was placed on a part-time timetable because of her difficulty in dealing with a full-time school. This continued until the end of the school year in July 2022.
24. In early June S’s school told the Council that she was getting 20 hours of education on site together with online provision to complete the full timetable. The school also told the Council that S became a pupil missing education in early February 2022. The school and Miss X expected her to go back to school by Easter 2022 but this did not happen and S continued on the part time timetable.
25. In July 2022 the school asked the Council to assess S’s needs for an Education, Health and Care plan.
26. Within an hour of her return to school in September 2022 Miss X had to collect S following a safeguarding incident that happened at school. S did not attend her school after that.
27. At the end of the month Miss X emailed the Council and told it that S was not accessing full time education and she felt was not being appropriately supported.
28. The Council replied to Miss X’s email and said that an inclusion officer would work with her and S’s school to fully understand S’s case. An officer contacted Miss X in early October. After this, the officer contacted S’s school and asked for a meeting, but the school did not respond to this request. The Council said it has no details about when it made this request to the school because it did not record this in S’s file. It said that all dates of contact with parents or professionals are now recorded on file so that managers can review this.
29. At the end of the month Miss X complained to the Council and said that it did not provide S with any alternative provision since September 2022. She also told it that S had been on a part-time timetable since January 2022 and there was no clear reintegration plan in place. The Council acknowledged her complaint on the same day.
30. The Council told us that in early December 2022 S’s school sent over the information it requested about S.
31. The Council responded to Miss X’s complaint two months later in early January 2023. It said that:
• it expected the school would make reasonable adjustments to make sure S could attend;
• it expected that when the school could not make reasonable adjustments, it would contact the Council’s inclusion team once it was aware a child would not be able to attend school for over 15 days;
• in June 2022 S’s school told the Council that S would attend on a part-time timetable, but did not say that she was not accessing education at all;
• S’s school contacted the Council’s inclusion team in December 2022;
• it apologised for the delay in gathering information about S’s situation and in deciding how to best support her;
• the Council has asked the inclusion team to review its procedures to ensure that requests for alternative provision are processed without a delay, especially when other professionals do not respond to information requests;
• since S’s school told the Council she was not accessing education the Council asked CAMHS for information on what provision would be most suitable for S; and
• it asked Miss X on information about S’s condition and how that prevented her attending a school setting.
32. Two weeks after this Miss X asked the Council to consider her complaint at stage two of the corporate complaints procedure. She said that she appreciated the apology for the delay, however S was still not accessing education or any alternative provision. She also said that to her knowledge the Council did not contact CAMHS and this directly contradicted the Council’s complaint response. The Council acknowledged Miss X’s request on the same day.
33. In late January 2023 Miss X forwarded an Educational Psychologist’s report to help the inclusion team find a suitable education provider for S.
34. In early February 2023 the Council contacted Miss X and said that it needed more time to consider her complaint at stage two of the corporate process. It said that it would get back to her by the end of the month.
35. In early March the Council wrote to Miss X and told her there would be a further delay to the stage two response. The Council apologised for not meeting the extended deadline and said a senior manager was reviewing the case and then another senior manager would have to sign it off.
36. Miss X contacted the Council at the end of the month and asked it for an update. She said she had not had an update since the beginning of the month and she wondered if the Council was still progressing her complaint response. The Council responded on the same day and apologised for the delay in her complaint response. The officer told her they would pass her message on to the relevant manager. They also said they hoped to update her soon.
37. The Council secured 15 hours per week of tutoring and 10 hours per week of mentoring. This provision started in late March 2023.
38. At the end of April 2023 Miss X chased the Council again. The Council responded on the same day and apologised for the delayed responses to her complaint. Once again, the officer told her that they would forward her message to the relevant manager for their consideration.
39. Seven days after this the Council issued its response under stage two of its corporate complaints procedure. It said that:
• the Council was at fault for the delay in providing alternative provision for S and apologised for this; and
• the Council was reviewing the alternative provision service.
40. Miss X was unhappy about the Council’s response and she asked us to consider her complaint.
41. The Council told us that as a result of the alternative provision audit it has:
• established an Education Entitlement Board (EEB) that schools refer to when children are not receiving full-time education. The board provides advice and guidance to schools and agrees the use of alternative provision if necessary;
• created a new process that gives officers clear guidance on the steps to take when a pupil is missing out on education; and
• agreed that all notifications of pupils missing education are reviewed by managers to minimise the risk of delay in pupils accessing suitable education.

Analysis

Part-time timetable

42. In January 2022 S’s school put her on part-time timetable. Miss X agreed to this in hope that it would allow S the space she needed to get back into full time education.
43. The school had a clear plan of reintegrating S back into full-time education and was reviewing S’s needs and adapting and attuning its response to them.
44. The Council was aware of S being on a part-time timetable as an attempt to manage her anxiety about attending a school setting. It relied on the information S’s school was uploading to its online system and monitored how successful the part-time timetable was. The Council was not at fault for how it monitored S’s part-time timetable.

Alternative education until March 2023 after she stopped attending school for medical reasons in September 2022

45. Between September 2022 and March 2023 S did not access any education.
46. The Council knew that S was on a part-time timetable and in June 2022 the school told the Council that S was accessing a mixture of onsite and online provision and that she became a pupil missing education in February 2022. The Council did not act promptly to ensure that S had access to suitable full-time education following the information it already had from school and from Miss X. This is fault.
47. The Council did put alternative provision in place for S in March 2023 and we consider this would have been in place sooner, had the Council acted without fault and taken action sooner.
48. Miss X says this negatively affected S’s mental wellbeing and she became reclusive. Because of the delay in the Council securing her alternative provision she says S found it difficult to engage in education when the Council made it available in March 2023.
49. Miss X says the lack of educational provision for S also resulted in avoidable distress for the entire family. We have found fault with the Council’s actions, and we agree that it caused Miss X and her family avoidable distress. We recommend how the Councils should remedy this injustice at the end of this decision statement.
50. Furthermore, Miss X says that she could not work because she had to stay at home with S, which negatively impacted the family’s finances.
51. We do not normally recommend remedies that reimburse loss of earnings. This is because we are unlikely to be able to reach conclusive findings (on the balance of probabilities) on such matters through our investigations.
52. In this case we cannot, on balance, establish a clear and causal link between the fault and the claimed injustice of lost earnings. There are other factors, personal circumstances and choices involved. Such payments are therefore best resolved by the courts.

Corporate complaints procedure

53. The Council accepted that its responses to Miss X’s complaints were late. Despite the Council attempting to keep her updated on occasion this had the opposite effect and confused Miss X.
54. We consider this caused Miss X avoidable time and trouble when she had to chase the Council for updates and responses to her corporate complaint.

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Agreed action

55. Within one month of the date of the final decision statement, the Council will:
• apologise to Miss X and S for its failure to secure a suitable alternative provision promptly after September 2022 and the distress and frustration this has caused them;
• pay Miss X £400 to recognise the distress the delay in securing alternative provision had on her and S. When we recommend a payment for distress we only take account of avoidable distress that is the result of fault by the Council. A remedy payment for distress is often a moderate sum of up to £500;
• pay Miss X £200 to recognise the unnecessary time and trouble she experienced in having to chase her corporate complaint;
• pay Miss X, on behalf of S, £1,400 to recognise the loss of suitable education provision between September 2022 and March 2023. Miss X should use this money as she feels best to support S’s education. In deciding this figure we have taken into consideration the vulnerable state S was in as a child in need with anxiety about attending school; and
• share this decision with the inclusion officers and emphasise the importance of the Council acting promptly when it suspects or is told that a child may be missing education.
56. In November 2022 we recommended the Council should review its alternative provision policy. The Council has done this, and we consider that another review is not necessary at this moment. This is because Miss X complained about the Council’s actions when it was undergoing the review and it is likely the Council has now addressed gaps that resulted in fault in this case.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. The Council was at fault for not providing alternative provision. The Council agreed to remedy the injustice its actions have caused to Miss X and S and my investigation is now complete.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman