Summary: There was no fault in the Council’s initial decision not to accept a duty to arrange alternative provision for a child not attending school; nor in the way it then sought to make arrangements once it did accept the duty. There was fault in the Council’s complaint handling, but this did not cause a significant injustice. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mrs N.
2. Mrs N complains the Council failed to make arrangements for alternative provision when her daughter, V, stopped attending school due to anxiety. She says this means V has missed out a significant period of education, with potential consequences for her long-term development.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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 reviewed the Council’s correspondence with Mrs N and the school, and comments the Council made in response to my enquiries.
6. I also shared a draft copy of this decision with each party for their records.

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What I found

7. V was attending a mainstream secondary school. Mrs N says V’s attendance at school began to deteriorate in October 2022 because she was suffering from anxiety. She says she asked the school to arrange alternative provision for V in November, but it did not, and nor did it notify the Council that V was no longer attending regularly.
8. In December, Mrs N wrote direct to the Council to ask it to intervene. The Council contacted Mrs N and confirmed that alternative provision could be arranged, but it would first need to see objective evidence that V’s deteriorating attendance was due to a medical need.
9. Mrs N says that, although V was on a waiting list for an assessment for autism, this would likely take several years, and so she could only approach her GP for a supporting letter. The GP was initially reluctant to do this, but eventually completed a form at the beginning of January 2023. Mrs N submitted this to the school, but due to a technical problem it was not until February that the Council received a copy of the form.
10. However, the form simply stated the GP could not advise on whether V was unable to attend school. The Council’s panel considered this, but decided it could not accept V had a medical reason to be absent from school on the strength of this evidence. The Council wrote to the school to explain this and offered some advice.
11. Mrs N then submitted a formal complaint to the Council. The Council responded in March, explaining the grounds under which it would accept a s19 duty and that these had not been satisfied, and that, consequently, the school remained a suitable place of education for V. The Council explained the school could provide online learning or a reintegration package for V.
12. In April a psychologist saw V and diagnosed her with autism and other learning difficulties. The psychologist also advised V was too unwell to attend school at that time. Mrs N shared this evidence with the Council, which then agreed it would offer support for V and wrote to the school to confirm this. Later in April, the Council appointed two ‘inclusion mentors’ to support V, and began to make arrangements for her to undertake online learning.
13. Mrs N also requested her complaint be escalated to stage 2. The Council responded to say the complaint was still at stage 1, because it had been unable to speak to the school yet. Mrs N disputed this, and pointed out the Council’s letter in March had been clearly labelled as the stage 1 response.
14. The Council subsequently accepted Mrs N’s stage 2 request. It commissioned an independent investigator for the complaint, who reported in May. However, the investigator explained their role was simply to consider whether the Council had properly administered the stage 1 complaint, rather than to substantively reconsider it, and found no fault.
15. In May, the Council visited V at home, to show her how to access the online learning system. The Council noted V briefly accessed the system after officers left, but then logged out again. It wrote to Mrs N to ask if it would benefit V for an officer to visit again and sit with her while she did a lesson, but Mrs N replied that V would find this too pressurising.
16. The Council continued making arrangements for officers to visit and support V through May and into June, but these visits were often cancelled when Mrs N and/or V’s father said she was unable to cope with them. In June they informed the Council that the online learning was to be discontinued, and an alternative form of provision put in place by the school.
17. The Council contacted the school to discuss this, establishing that the alternative provision was a form of animal therapy. The school explained it could not afford to fund both this and the online learning, but the Council reminded the school V still needed to receive normal curricular education.
18. The Council then wrote to Mrs N several times to arrange further visits to V, and to arrange a review of its support of her. The Council said Mrs N did not respond to its messages for several weeks, before responding to say the flexible learning approach the Council had been taking had not worked, and that V needed a “flexible blended learning package tailored to her special educational needs”.
19. In July, the Council offered a new approach for V, which was for the Council to hire a meeting room in a nearby village hall and for V to attend 1:1 sessions there with her inclusion mentor, with V being able to decide precisely what activities she would do. However, this was declined because it would not fit around the animal therapy hours V was due to undertake.

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Legislative background

Absence due to a mental health issue

20. In February 2023 the Department for Education (DfE) issued guidance for local authorities, entitled ‘Summary of responsibilities where a mental health issue is affecting attendance’.
21. At page 10, it says:

“There is no need to routinely ask for medical evidence to support recording an absence as authorised for mental health reasons. This is because, in general, primary care health professionals such as General Practitioners are unlikely to be able to offer such evidence to support one-off absences related to mental health.

“In instances of long-term or repeated absences for the same reason, however, seeking medical evidence may be appropriate to assist in assessing whether the child requires additional support to help them to attend more regularly, and whether the illness is likely to prevent the child from attending for extended periods.

“If a parent proactively seeks out a note from a GP, it does not imply a need for absence unless this is explicit in their letter.”

Alternative provision

22. 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.
23. 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.” We refer to this as the ‘s19 duty’. (Education Act 1996, section 19(1))
24. 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)
25. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive 1:1 tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

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Analysis

26. The Ombudsman’s role is to review the way councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not taken into account relevant information, or failed to properly explain a decision it has made. We call this ‘fault’ and, where we find it, we can identify any consequences of the fault and ask the council in question to address these.
27. But we do not make operational or policy decisions on councils’ behalf, and nor do we offer a right of appeal against their decisions. If a council has made a decision without fault then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We cannot uphold a complaint simply because someone disagrees with what a council has done.
28. Mrs N says V’s attendance at school began to deteriorate in October. From the information I have, I cannot see when she stopped attending entirely, although it appears clear that is what happened.
29. Either way, it is evident the Council was aware of the situation by December, after Mrs N wrote to ask it to intervene under its s19 duty. The Council then asked Mrs N to provide supporting medical evidence, which she did by providing the GP form.
30. The DfE guidance says councils may seek supporting medical evidence, where a child is likely to be absent from school for the long term, to determine whether they need additional support, and whether their condition is likely to prevent their return. This being so, the Council’s decision to seek evidence in this case was one it was entitled to make, under the guidance.
31. Unfortunately the GP form was unhelpful, because it stated only that they were not in a position to give advice about the matter. It is unsurprising the Council did not accept this as supporting evidence; and so, at that time, it had not been objectively identified that V was too unwell to attend school. The Council therefore referred the matter back to the school to address, albeit while offering its support.
32. The fact remained V was absent from school, and under s19, the Council must make arrangements to provide education for a child who is absent because of exclusion, illness or “otherwise”. It is arguable, therefore, that even without persuasive medical evidence, the Council’s duty to provide for V still applied.
33. But equally, the fact the Council was entitled to seek supporting evidence appears to imply it could decline to accept this duty when no persuasive evidence was forthcoming. The law permits the Council to decide V’s school remained a suitable place of education for her, and although it acknowledged she was not physically attending at the time, it could reasonably rely on the school to provide some form of alternative in the meantime, while seeking to reintegrate her. This is precisely what the Council did.
34. The other option for the Council under these circumstances was to treat V’s absence as an attendance matter (‘truancy’), and consider using its enforcement powers. However, these powers are discretionary and the Council has confirmed it did not consider them appropriate here.
35. This was a finely balanced situation, but taking these points together, I do not consider the Council was at fault for not accepting a s19 duty at this time. And I note that, as soon as persuasive evidence did become available, the Council reconsidered this decision and accepted s19 now applied.
36. Since then the Council has worked with the school to arrange provision for V. This began with what the Council and school term ‘flexible learning’, which I understand to be an internet-based learning system. The Council also appointed two mentors to visit and support V in engaging with flexible learning.
37. But V found it difficult to engage both with flexible learning and with her mentors. After a few months, the school withdrew V from flexible learning and instead began to fund animal therapy for her. Mrs N has told me this continues, along with several hours per week at a farm school.
38. In response to my enquiries, the Council detailed the various steps it had taken to discharge its s19 duty, and ensure provision for V. These included:

• the initial arrangements it made for flexible learning in April;
• providing advice to the school;
• the appointment of inclusion mentors (at first two, but then reduced to one at parental request);
• 11 offers of home visits by the inclusion mentor on different days and at different times, but declined by V’s parents;
• offering to trial demand avoidance strategies, to help V engage with the inclusion mentor;
• suggestions by the inclusion mentor of shorter visits, or meeting at different venues, and seeking V’s parents’ views on what would work best for her;
• an offer from the inclusion mentor to meet V’s parents to discuss this, to which they did not respond;
• an offer from the flexible learning team to V’s parents to provide support, which they did not accept;
• attendance by the inclusion mentor at Early Help and Child in Need meetings to offer support to V and her family;
• that the flexible learning team’s support remains on offer to V to ensure she has access to core education, but which has been declined by V’s parents; and
• the suggestion V meet the inclusion mentor at the local village hall, with her choice of activities and with the support of a teacher if appropriate, but this was declined.

39. It is unfortunate V has been unwilling or unable to engage with the various options and offers the Council has made, and I am conscious she is not receiving any form of core education at the current time. However, as I have explained, our role is to identify and highlight areas of fault by the Council in the way it has administered this. I do not consider it can reasonably be said that V’s situation has arisen because of any failing by the Council, given the effort the Council has made to re-engage her.
40. I will stress this is not to say the Council should discontinue its involvement in the matter; regardless of V’s present difficulties, its duty to her under s19 remains, and it should continue trying to find ways to re-engage her. But, on the current situation, I see no grounds to criticise the Council for its handling of the matter.
41. My only criticism here concerns the Council’s complaint handling.
42. Mrs N raised her stage 1 complaint in February, and the Council responded in March. However, when, in April, she then requested her complaint be escalated to stage 2 of the Council’s complaints procedure, it told her that it had not yet completed stage 1, because it had not spoken to the school.
43. This was a strange comment. The Council’s letter to Mrs N in March was headed ‘Stage 1 complaint response’. There was nothing to suggest it was intended as a form of holding response, and it made no mention of any outstanding contribution from the school. The response also invited Mrs N to escalate her complaint if she remained dissatisfied, and gave her instructions on how to do so. It is difficult to understand how the Council could then decide it had not yet finished stage 1.
44. I consider this fault. The Council is entitled to decide when it is ready to respond formally to a complaint, but I do not consider it could reasonably refuse to accept it had completed stage 1 when its previous letter to Mrs N said precisely that.
45. This said, I note the Council then did accept Mrs N’s complaint at stage 2, and assigned it to an independent investigator. This should have happened sooner, but I am conscious the delay was only a matter of a few weeks. I am not persuaded this represents a significant injustice to Mrs N.

Conclusions

46. On balance, I am satisfied the Council was entitled to make its initial decision not to accept a s19 duty for V. I also consider the Council has demonstrated it has taken proper steps to discharge its s19 duty, once it had decided to accept it. I find no fault on these points.
47. I consider the Council was at fault for its initial refusal to accept Mrs N’s stage 2 complaint, as its reason for doing so made no sense. However, I do not consider the relatively short delay this caused to represent a significant injustice to Mrs N.

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Final decision

48. I have completed my investigation with a finding of fault which did not cause injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman