Summary: Mrs F complained the Council failed to provide her son with alternative provision when the school he was attending said it could not meet his needs. We find the Council was at fault as it failed to consider its duties under Section 19 of the Education Act 1996 when Mrs F’s son stopped attending school. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs F complained the Council failed to provide her son, G, with alternative provision when the school he was attending said it could not meet his needs. She says because of the Council’s failures G’s anxiety has worsened, and she has had to pay privately to fund his education.

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The Ombudsman’s role and powers

2. 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)
3. 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.
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)

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How I considered this complaint

5. I considered information from Mrs F. I made written enquiries of the Council and considered information it sent in response.
6. Mrs F and the Council 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

Children missing education

7. Under section 436A of the Education Act 1996, councils have legal responsibilities to make arrangements for children missing from education. The statutory guidance of September 2016 ‘Children missing education’ sets out the legal responsibilities for councils when children are not placed at school. Parents also have responsibilities to ensure their child receives fulltime education.

Alternative provision

8. 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.
9. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.

Education, Health and Care needs assessment

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. An EHC plan describes the child’s special educational needs and the provision required to meet them.
11. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person. At the end of the assessment, a council may decide to issue the child or young personal with an EHC plan.

What happened

12. This chronology provides an overview of key events in this case and does not detail everything that happened.
13. G has special educational needs. He was attending an independent specialist school.
14. G was struggling to attend school due to his anxiety. Mrs F met with the school in October 2022. The school said it could meet G’s academic needs, but it could not meet his needs for the attendance issues he was experiencing, which carried greater complexity. It said it had put measures in place to encourage G into the classroom, but they had not worked.
15. Mrs F removed G from the school roll at the end of October. She contacted the Council and let it know. The Council told her to follow the admissions process to find a school place for G.
16. Mrs F contacted the Council at the beginning of November. She said she had contacted several schools without success. The Council responded and wished her success in finding the right education for G.
17. Mrs F applied for an EHC needs assessment for G. The Council eventually agreed to assess G after initially rejecting it.
18. Mrs F emailed the Council in January 2023 about the EHC needs assessment process. She mentioned in the email G was not attending school. The Council contacted the school to seek confirmation. The school replied and confirmed G had left at the beginning of November.
19. Mrs F complained to the Council in February 2023 about its failure to provide G with any alternative provision. She said she had been self-funding G’s education.
20. The Council responded to Mrs F’s complaint. It said she had a duty to ensure G was registered at a school. It urged her to apply to schools. It also told her to gather medical evidence which she could provide to a school once G was registered.
21. Mrs F referred her complaint to stage two of the Council’s complaints procedure. She said she had sufficient medical evidence to support G not being at school. She said it should have marked G as a child missing education from 31 October 2022. She said she told the headmaster of the school she was not enrolling G anywhere else, and she was not choosing to electively home educate him. She also said she would not put G on a school roll as he was too unwell.
22. The Council issued its stage two response to Mrs F’s complaint. It re-iterated she had a duty to ensure G could access education. It said she could share the medical evidence, she could apply for an educational setting for G to attend or she could electively home educate G until she found a school place.
23. The Council issued G with an EHC plan at the end of June.

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Analysis

24. Mrs F says the school G was attending was unsuitable for him and therefore he could not reasonably attend. When the Council responded to my enquiries, it said it had no evidence to suggest the school was unsuitable for G.
25. As soon as the Council was aware Mrs F was removing G from the school roll, she was not electively home educating him and she had not found an alternative setting, it should have made enquiries with the school to find out more about G. It should have then considered the information from the school and decided whether to take prosecution action against Mrs F or accept the school was unsuitable and provide alternative provision in line with section 19 of the Education Act 1996. Councils have legal responsibilities to make arrangements for children who are missing education. The Council failed to properly consider its legal duties in this case, and it simply wished Mrs F success in finding a suitable school place for G. This is fault.
26. When the Council responded to Mrs F’s complaint, it encouraged her to apply to schools and it also reminded her of her legal duty to ensure G had access to a fulltime education. However, the Council failed to understand its legal duties. I do not consider simply encouraging Mrs F to apply for schools was a satisfactory response. It knew G had been out of education for several months and therefore it should have taken more robust action.
27. Mrs F says the Council should have provided G with alternative provision from November 2022. If the Council had acted without fault, I consider it is more likely than not it would have put in place alternative provision for G or it would have taken steps to find him an alternative school. The school said it could not resolve the anxiety issues and so it is unlikely the Council would have decided it was a suitable setting for him. It is therefore likely it would have put alternative measures in place.
28. The Council’s faults have caused G a significant injustice as has been without an adequate education that he is legally entitled to. Although Mrs F has funded some educational activities for G, it was very limited and not full time-education. The Council’s faults have also caused Mrs F distress and frustration.
29. The Council should reimburse Mrs F the money she has paid funding other educational activities for G from November 2022 until mid-May 2023 (when she received a stage two response to her complaint and contacted the Ombudsman). It should also make a payment to cover the loss of educational provision for G. I have not recommended a payment from mid-March 2023 onwards as we made recommendations to cover a loss of provision for G from then in a separate complaint Mrs F bought to the Ombudsman. Finally, I recommend the Council apologises to Mrs F and makes a further payment to cover her distress and frustration.
30. We have recently highlighted issues with the Council’s failure to fully consider its duties for children missing education in other cases and we have recommended service improvements. The Council has been asked to provide training and guidance to staff for children who are out of school. Therefore, I have not made any further service improvements in this case.

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Agreed action

31. To address the injustice caused by fault, by 17 November 2023 the Council has agreed to:

• Apologise to Mrs F for her distress and frustration.
• Pay Mrs F £250.
• Reimburse Mrs F the money she has paid educating G from November 2022 to mid-May 2023 (on receipt of copy invoices from Mrs F).
• Pay Mrs F £2,400 to reflect the loss of educational provision for G from November 2022 to mid-March 2023. We recommend Mrs F uses this payment for G’s educational benefit.

32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. There was fault by the Council, which caused Mrs F and G an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman