Summary: Ms X complained her child has been out of school for a year and a half and the Council has failed to provide any education suitable for their needs. We found fault with the Council for failing to provide suitable education to Ms X’s child for two full terms and two weeks. The Council agreed to apologise to Ms X for its inaction and pay Ms X £3,250 for her child’s missed education.

The complaint

1. Ms X complained her child has been out of school for a year and a half and the Council has failed to provide any education suitable for their needs.
2. Ms X says the lack of education for her child will impact their GCSEs and has also impacted her child’s mental and emotional state.

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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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. If we are satisfied with a council’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 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.

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How I considered this complaint

7. I have considered all the information Ms X. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Ms X and the Council had opportunity to comment on my draft decision. I considered the comments and re-issued the draft decision allowing for further comments before reaching my final decision.

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What I found

Alternative Provision of education for children

9. 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))
10. 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))
11. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
12. 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)
13. 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)
14. 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;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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.
15. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
16. 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.
17. 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.
18. 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.

What happened

19. On 28 February 2022, Ms X’s child stopped attending school.
20. A social worker for the Birmingham Children’s Trust attended a Child In Need meeting for Y on 17 March 2022, I will refer to this social worker as The Social Worker. During this meeting, discussions took place about Y’s lack of attendance at school. Y’s school confirmed Y had not been attending school.
21. The Social Worker was in regular contact with Mrs X through April 2022 and the start of May 2022.
22. A further Child In Need meeting took place on 19 May 2022. During this meeting Y’s school said they had agreed to send informal work home for Y to build up their academic confidence. The school said it was not sending formal work but trying to encourage Y to attend school.
23. On 30 September 2022, Y’s school made a referral to the Council’s commissioned alternative provision of education provider for Y.
24. Y started to attend a four-week placement of education from 16 January 2023 until 13 February 2023.
25. Ms X took her children abroad from 19 February 2023 until 21 March 2023.
26. Ms X complained to the Council on 21 March 2023 about the lack of education for her child. Ms X said Y had been out of education for over a year and the Council was failing to provide suitable education.
27. The Council assessed Ms X’s complaint and contacted the school. The Council’s notes state:
• The school confirmed there is evidence of Autism, anxiety, emotional based school avoidance and a history of trauma for Y but inadequate evidence to say Y was too unwell to attend school.
• The school said it had previously engaged support for Y with the Council’s alternative provision of education provider.
• The school confirmed it was looking to reintegrate Y into school on a reduced timetable following the placement in January 2023 to February 2023 but Y is now refusing to return to school.
• There is disagreement between Ms X and the school about whether the school can meet Y’s needs. Ms X says the school cannot while the school says it can.
• The school had concerns about Ms X taking the children abroad during school time preventing attendance.
28. On 31 March 2023, following input from the Council, Y’s school sent a letter to Ms X about Y’s absence from the school. The school said it considered Y’s absence truancy and invited Ms X to attend a meeting on 19 April 2023. Ms X did not attend this meeting.
29. On 5 April 2023, the Council sent its Stage 1 complaint response. The Council said it was not involved in Y’s absence from school and the school had put in place measures to support Y. The Council said it considered Y’s needs could be met in mainstream education. The Council told Ms X to work with the school to reintegrate Y into education.
30. Ms X sought consideration of her complaint at Stage 1 on 6 April 2023. Ms X disputed that Y’s needs could be met in mainstream education and reiterated the Council was not meeting its duty to provide education for Y.
31. Y’s school and the Council discussed Y’s continued absence from school. The Council advised the school it could continue with its attempts to reintegrate Y through its truancy process. The school wrote to Ms X on 19 April 2023 to propose a new meeting for 4 May 2023 about Y’s absence from school.
32. On 4 May 2023, The Social Worker attended the meeting with the school instead of Ms X. The Social Worker told the school Y would be starting a new education placement instead of returning to school.
33. On 25 May 2023, the Council provided its Stage 2 complaint response to Ms X. The Council said:
• A school will try to resolve attendance problems first before involving the Council.
• Y’s school tried to address Y’s absence from school by arranging a managed return to school, a short-term placement at another educational setting before going down its truancy route.
• Once it received the necessary medical evidence it referred Y to a special educational needs school for assessment where a placement will start shortly.
34. On 3 July 2023, Y started to attend a new educational setting achieving good attendance at this new placement.
35. Analysis
36. We cannot consider the role of the school as schools are not within our jurisdiction. This investigation is limited to consideration of the role of the Council.
37. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively. It is not the role of the Ombudsman to investigate Y’s school and what educational provision it put in place before the Council became responsible.
38. The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days, from the sixth day of Y’s absence.
39. While Y was absent from school from 28 February 2022, neither Ms X nor the school contacted the Council about Y’s absence. Since the Council was not aware of Y’s absence, I cannot find fault for it failing to act in response to their absence from school. As above, I cannot consider the role of the school or why it did not tell the Council sooner.
40. On 17 March 2022, a Child In Need meeting took place confirming Y’s absence from school. It would have been clear from this date that Y had been absent from school for more than 15 days.
41. The Social Worker is employed by Birmingham Children’s Trust. Birmingham Children’s Trust is independent of the Council but is funded by the Council and completes some of its statutory duties. While Birmingham Children’s Trust is independent, the Council is still responsible for the actions of this organisation since it is completing delegated duties of the Council. This means, while the relevant department at the Council may not have been aware of Y’s absence from school when The Social Worker did, the Council is still responsible.
42. The Council has advised the school was responsible first for making suitable educational arrangements. The Ombudsman’s focus report highlights a council should not assume a school will shoulder the entire responsibility.
43. 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. Since the Council became aware of Y’s absence on 17 March, it was responsible for providing education for Y from 24 March 2022.
44. The Council failed to provide any education for Y for the rest of the school year amounting to a full term of education and two weeks. This was fault.
45. The Council continued to fail to provide education for Y for the entire school term from September 2022 to December 2022. This was despite the school continuing to note Y’s absence as illness and it contacting the Council’s alternative provision of education provider in September 2022. This was fault.
46. From 16 January 2023 through to the half-term, Y received education through an educational placement arranged by their school. While the Council still had limited involvement at this point, Y was receiving an education at her alternative school placement. I do not find fault with the Council for this period.
47. Following the half-term in February 2023, Y’s absence from school until 21 March 2023 was because of a family holiday. The school noted this absence as unauthorised and sought input from the Council. I cannot consider the Council at if a parent decides to take their child out of school for a holiday.
48. The school entered discussions with the Council in March 2023 and April 2023 about Y’s absence from school. The Council decided that Y’s absence from school was a truancy matter rather than one needing alternative provision of education.
49. When a child is out of education, the Council must consider the individual circumstances of each particular child. The Council must decide based on the evidence and circumstances whether to require a child’s attendance at school or provide suitable alternative education. Having considered the relevant factors, the Council decided Y should be able to access mainstream education and recommended the school considered Y’s absence as a truancy matter.
50. Following the Council’s input, the school progressed with issuing truancy letters to Ms X and tried to arrange meetings to discuss Y’s absence.
51. The Council decided that Y’s educational setting was accessible and appropriate for Y and took steps to require Y’s attendance at school. This included arranging for the school to send letters, arrange meetings and issuing of a penalty notice to Ms X for Y’s absence. Since the Council took these steps I do not find fault with it failing to provide education for Y from 14 March 2023 until 3 July 2023 when Y started their new placement.
52. Overall, Y missed two terms and two weeks of education since February 2022 because of the Council’s fault.
53. 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, if any, put in place, a child’s individual needs and whether they are in a key academic year. This award is also mitigated by long term impact, such as an impact on GCSE examinations and prospects and whether a school place was available to a child.
54. Given Y’s particular circumstances, I consider a midrange award of £1,500 per term is suitable for Y’s missed education. This is because Y received no education during their absence from school. However, I have considered this against there being a school place available for Y the Council considered was suitable and accessible, albeit this consideration coming later. While Ms X was dissatisfied with the school this place of education was still available to Y.
55. In total, the Council should pay Ms X £3,250 to reflect Y’s missed education. Ms X may then use this to fund whatever educational provision she sees fit for Y to make up for the education they missed.

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Agreed action

56. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Ms X for the inconvenience and distress caused through delays in putting in place alternative provision of education for Y.
• Pay Ms X £3,250 to address the Council’s failure to provide any education for Y for two full terms and two weeks. Ms X may use this as she sees fit for Y’s educational needs.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman