Summary: The Council was at fault for failing to deliver alternative provision to Mrs B’s son for several months while he was out of school, after accepting that it had a duty to do so. It has made improvements to its service. It has also agreed to make a symbolic payment to Mrs B to recognise her son’s injustice.

The complaint

1. The complainant, whom I refer to as Mrs B, complains that the Council failed to provide alternative education for her son, C, while he could not attend school.
2. Mrs B says this led to a loss of education for C, which caused him distress. She also says she had to go to the time and trouble of persuading the Council to meet its duties to C. She wants an apology from the Council, and compensation.

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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 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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I considered information from Mrs B and the Council.
8. I considered:
• Relevant parts of the Education Act 1996, and case law.
• The statutory guidance document, ‘Ensuring a good education for children who cannot attend school because of health needs’ (which I refer to as ‘the statutory guidance’).
• The Council’s ‘Procurement regulations’.
9. Mrs B 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

The Council’s responsibilities

10. Councils must arrange suitable education 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. (Education Act 1996, section 19)
11. I refer to this as ‘section 19’ provision.
12. 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”. (The statutory guidance)
13. 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])
14. If a council decides a child’s health needs prevent them from attending school, it should arrange provision as quickly as possible. (The statutory guidance)
15. At the time of the events described in Mrs B’s complaint, when awarding a contract for alternative provision to a third-party provider, the Council made three attempts at securing a provider through its usual procurement process. Only after all three attempts were unsuccessful could the Council award the contract to a provider directly. (The Council’s procurement regulations)

What happened

16. C was out of school in 2021, and, in July, the Council put home tuition in place on the advice of his psychologist. The Council planned that this tuition would help C return to school. He did so in December 2021, with adjustments in place to help him manage his anxiety.
17. In April 2022, after several conversations between Mrs B and C’s school, C stopped attending again. The school decided these absences were unauthorised and, in May, referred C to the Council for non-attendance.
18. The Council held a muti-agency meeting in early July. It noted that, although there was an ongoing autism assessment, C had no formal diagnosis and there was no medical evidence to show that he could not attend school. Consequently, it told Mrs B that there was no statutory defence for C’s non-attendance.
19. However, the Council decided that, as C would be starting a new school in September, it would not pursue legal action against Mrs B.
20. In September, C started his new school. However, he continued not to attend. In October, the school referred C to the Council for non-attendance.
21. Around the same time, C’s GP wrote a letter to the Council. The letter said C needed extra support for his learning. It suggested the Council speak to its autism outreach team and look into adaptations in school.
22. In mid-October, the Council decided not to pursue legal action against Mrs B, because, based on the GP letter, it appeared C needed more support to attend school. The Council decided to assess what this support might be, and whether C needed section 19 provision in the interim.
23. In early November, the autism team at the Children and Adolescent Mental Health Services (CAMHS) wrote to the Council, saying:

… it may not be realistic to expect [C] to attend [school] without a considered plan in place given his reported levels of anxiety and that he has been out of school for so long.

24. The Council held a meeting in early December to discuss C returning to school. It invited its autism outreach team, along with Mrs B and others. It agreed to arrange home tuition for C to build his confidence and, hopefully, to encourage his return to school.
25. The Council advertised for a tutor through its usual procurement process. However, by February 2023 – after three rounds of failed procurement – the Council had still not found a tutor. C continued to be without education.
26. In March, the Council awarded the tuition contract to a provider directly (outside of its usual procurement process), and the tuition began at the end of March.
27. The Council says it is changing its procurement process for alternative provision to avoid similar delays in future. It will now be able to award a contract to a provider directly after two failed attempts through its usual procurement framework (rather than the previous three attempts).

My findings

The Council’s consideration of C’s health needs

28. The Courts have given councils (not parents or other agencies) the power to decide whether a child’s health needs prevent them from attending school. And the Ombudsman can only question such a decision if there were clear procedural errors which undermined the Council’s decision-making.
29. With regard to C’s absences in the summer term of 2022:
• The Council considered the evidence provided by C’s school, and that provided the previous year by C’s psychologist.
• The Council held a multi-agency meeting to discuss Mrs B’s views about C’s health.
• The decision (that there was no medical evidence to suggest C could not attend school) was explained to Mrs B.
• The Council did not misinterpret the law or act beyond its powers.
• There was nothing obviously unreasonable – or which clearly contradicted the available medical evidence – in the Council’s conclusions.
30. Consequently, I have identified no procedural fault in the Council’s in decision-making, which means I cannot question the outcome.
31. The following school term, the Council appears to have followed correct procedure by considering new medical evidence and, this time, agreeing section 19 provision. But it took two months to do so.
32. I acknowledge that evidence from CAMHS was not immediately available to the Council. But the statutory guidance says councils should ensure ‘minimal delay’ when deciding whether a child needs section 19 provision – even when evidence from a consultant is not available straight away. They should arrange provision as quickly as possible.
33. I have seen no explanation why it was necessary for the Council to take two months to decide that C needed section 19 provision. Certainly, as the decision appears to have been primarily based on the CAMHS letter – which the Council received a month before its decision – I have seen no evidence that the decision was made ‘as quickly as possible’.
34. This was fault by the Council. And the consequence was that C missed a period of education. It should provide a remedy to C to recognise his injustice.

The Council’s tuition procurement

35. Although the Council clearly made every effort to identify a tutor for C (and acted in line with its procurement regulations), it failed to put a tutor in place for around four months.
36. The Council is not responsible for a shortage of tutors, and it cannot control who responds to its adverts. But it remains true that, although the Council agreed that it had a section 19 duty to C, it did not meet that duty for the period in question.
37. This was a service failure, for which the Council was at fault. And, consequently, C missed more education.
38. The Council has told us how it has changed its procedure to try and avoid similar delays in future. I am satisfied that it has considered this issue and taken action.
39. However, the Council should also provide a remedy to C to recognise his lost education during this period.

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Agreed actions

40. Within four weeks, the Council has agreed to:
• Apologise directly to C for its failure to deliver alternative provision quickly enough after finding out he was not going to school.
• Make a payment of £1,000 to Mrs B, on behalf of C, to recognise the education he missed because of the Council’s delays.
41. The Council has agreed to provide us with evidence it has done these things.

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Final decision

42. The Council was at fault for delays in the delivery of C’s alternative provision while he was out of school.

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Investigator's decision on behalf of the Ombudsman