Summary: Mrs G complained the Council failed to provide her son (X) with alternative provision since Spring 2023 when he was unable to attend his school. She said it caused delays and communicated poorly with her. We found no fault in the process the Council followed to reach its view that X should attend his school with the reasonable adjustments that had been put in place. Nor, was there fault in its complaints handling or how it communicated.

The complaint

1. The complainant, whom I shall refer to as Mrs G, complained the Council failed to provide her son (X) with alternative provision when it was aware he could not attend his school. She said it caused delays in the process and communicated poorly with her.
2. Mrs G said, as a result, she experienced distress and uncertainty and had costs to arrange educational provision for X. She said X also experienced distress and had a loss of education.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health, and Care Plan.
7. 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)
8. 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

9. I have considered information provided by Mrs G and discussed her complaint with her. I also made enquiries with the Council and considered its response and evidence provided.
10. Mrs G 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

Relevant administrative law

Right to Education and Alternative Provision

11. Parents have a duty to ensure their children receive a suitable, full-time education. Most do this by sending their children to school. (Education Act 1996, section 7)
12. Local authorities have a duty under section 436A of the Education Act 1996 to make arrangements to establish the identities of children in their area who are not registered pupils at a school and are not receiving suitable education otherwise. This duty only relates to children of compulsory school age.
13. The local authority should consult the parents of the child when establishing whether the child is receiving suitable education. Those children identified as not receiving suitable education should be returned to full time education either at a school or in alternative provision. Prompt action and early intervention are crucial to discharging this duty effectively and in ensuring that children are safe and receiving suitable education.
14. 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.” The only exception to this is where the physical or mental health of the child is such that full-time education would not be their best interest. (Education Act 1996, section 19(1))
15. If a child is unable to attend school because of illness, the council must make alternative arrangements once the child has been absent for 15 days, either consecutively or cumulatively. The council must consider the individual circumstances of each child and take account of any medical evidence or advice when deciding what arrangements to make.
16. The education provided by the council must be full-time unless the council decides 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)
17. Our July 2022 focus report on children out of school, “Out of school, out of sight” highlights the duty of councils to arrange alternative provision when a child of compulsory school age cannot go to a school. In such cases, councils should keep all plans for the young person under review and not allow them to drift. The report made seven recommendations based on examples of good practice seen. It said councils should:
• Consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) and 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 when making decisions.
• Choose (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.
• Work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary.
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.

Council Policy

18. The Council’s ‘Children Missing Education Policy’ is based on the statutory guidance for ‘Children Missing Education’, which says:
• schools have a duty to maintain an admissions register;
• if a child or young person fails to attend on the agreed or notified date, the school should undertake reasonable enquiries to establish the child’s whereabouts and consider notifying the Local Authority at the earliest opportunity; and
• where a child or young person has not returned to school for 10 days after an authorised absence or is absent from school without authorisation for 20 school days, the pupil can be removed from the admission register when the school and Local Authority have failed after jointly making reasonable enquiries to establish the whereabouts of the child.
19. The Council’s Corporate Complaints Policy says it will acknowledge complaints it receives within three working days, and a service manager for the relevant area will provide its response within 20 working days. If a complainant remains dissatisfied with its response, it will provide its final response within 20 working days.

What happened

20. Mrs G has a son X who is of compulsory school age. He was on roll with a school, School Y, in the 2022-2023 academic year. He had a diagnosis of a sensory disorder and support with this was available in his school. X did not have an EHC Plan.
21. Mrs G said X started struggling with anxiety in school from September 2022, and School Y put in place support which included interventions and flexibility around when he started and finished school.
22. By early 2023 X’s attendance at School Y had not improved and a part time timetable was agreed. Mrs G arranged for an Occupational Therapist (OT) to assess X in school. The OT made recommendations to the school around the support it could provide X to manage his sensory overload in while in school.
23. X stopped attending School Y in March 2023. Mrs G arranged for X to be diagnosed for autism privately, and shared his diagnosis report of autism with School Y. The report made recommendations for X when he was home and in school. Some of the recommendations made were already in place in School Y.
24. School Y said it made further adjustments to support X as recommended in the OT and Autism report.
25. In late April 2023 Mrs G told the Council X had been unable to attend School Y due to anxiety and asked for it to arrange alternative provision for him. She also requested for X to be assessed for an EHC Plan which School Y supported.
26. Shortly after the Council discussed X attendance issues with School Y and reviewed X’s attendance. School Y’s register showed it had marked X’s absence as unauthorised since he stopped attending.
27. School Y held a meeting with Mrs G to discuss what support or provision it could put in place to support X to receive his education. It was the School’s view it could meet X’s needs. Mrs G disagreed School Y could provide any more support which would enable X to attend school.

Mrs G’s complaint

28. Mrs G complained to the Council in May 2023. She said it had failed to provide X with suitable alternative provision since March 2023 when he was unable to attend School Y.
29. The Council met with Mrs G to discuss her concerns around X’s education and obtained her consent to contact professionals involved. It also arranged a further meeting between Mrs G, the Council and School Y.
30. In response to Mrs G’s complaint, the Council said:
• School Y had deemed X’s absence unauthorised, it therefore had no duty to inform the Council it had a child who was not attending due to illness;
• the Council had no responsibility to provide alternative provision as X’s absence was unauthorised;
• it acknowledged statutory guidance did not require evidence for recording absence as unauthorised for mental health reasons. It had therefore discussed this with School Y and X’s absence had since been authorised;
• it had asked School Y to seek medical information to assist in assessing what support X needed to access his education; and
• its scheduled meeting with School Y and Mrs G was an opportunity to discuss a plan for X to access an education suitable for his age, ability and aptitude, including any special educational needs he may have.
31. The Council, Mrs G and School Y met to discuss X’s education and needs. Mrs G shared her views that X’s needs could not be met by School Y. School Y said it believed it could meet X’s needs through its reasonable adjustments and support.
32. Shortly after, the Council asked School Y to make a medical referral to the Council for X. The Council chased School Y for the referral, but it took the school four weeks to provide its referral.
33. In its final complaint response, the Council did not uphold Mrs G’s complaint. It explained School Y had confirmed it could meet X’s needs through reasonable adjustments in the meeting in May 2023, based on the information available at the time it was therefore not appropriate to offer alternative provision. However, it had since received School Y’s medical referral which it would consider.
34. In late June 2023 Mrs G shared a GP letter with the Council which explained X was unable to attend school due to anxiety. A month later, she also provided an assessment completed by the Child and Adolescent Mental Health Service (CAMHS).
35. In response to my enquiries the Council said it has since agreed X should have alternative provision put in place. It had discussed this with Mrs G, offered a package of educational provision and started putting this in place for the start of the 2023/2024 academic year. However, as an EHC Plan had since been drafted for X, the arrangement of education support had passed to its SEN team.

Analysis and findings

36. Mrs G’s complaint relates to matters which occurred since March 2023. Her complaint is therefore in time.
37. Although the Council provided its final complaint response in late June 2023, I have considered Mrs G’s concern up to the end of the 2022/2023 academic year. This is because it subsequently agreed to put in place and educational package for X.

Did the Council fail or cause delays to provide X with alternative provision?

38. Mrs G said the Council should have provided X with alternative provision when he stopped attending School Y in March 2023.
39. The Council should ensure it has robust procedures in place for schools to manage and report when children or young people are absent from school. This is to enable the Council to reach a view on whether:
• a school should do more to support a child to access their education;
• a child should receive alternative provision, if so, this should be arranged within 15 days of it becoming aware a child stopped attending school; or
• it should take action against a parent for failing to ensure their child attends school.
40. School Y did not tell the Council X was not attending as it marked his attendance as unauthorised. It did so as Mrs G had not provided medical evidence that X could not attend school. I cannot consider the actions of schools.
41. However, I have considered the process and policies the Council has in place for when schools should report a child’s absence to it. I have found no fault in the process or policies the Council has in place. I cannot therefore fault the Council for School Y’s misunderstanding around whether medical evidence is needed to record absence as authorised. When the Council became aware, it told School Y the absence should be authorised.
42. Mrs G told the Council X had been unable to attend School Y in late April 2023. The Council subsequently had a duty to investigate why and reach a view on whether X should attend his school with reasonable adjustments in place or it should provide alternative provision for him.
43. The evidence shows the Council:
• arranged meetings with Mrs G and School Y to obtain their views and sought the views of professionals who were known to X;
• agreed with the School Y and found X’s needs, as set out in his Autism and Sensory reports, could be met by School Y;
• did not find it appropriate to consider formal action against Mrs G for failing to bring X to school, as she had continued to work with the Council, and it sought to help put enough adjustments in place and work with Mrs G to enable X to attend School Y.
44. While I acknowledge Mrs G has since obtained medical evidence which supports X cannot attend School Y due to his anxiety, this information was not available at the time the Council reached its view. I found no fault in the process the Council followed to reach its view. It therefore reached a decision it was entitled to make.
45. The Council subsequently asked School Y to make a medical referral to the Council, but it took four weeks before this was received. The evidence shows the Council chased School Y on at least two occasions for the referral, I am therefore satisfied the Council was not at fault for this delay.
46. The Council reconsidered its view when Mrs G provided X’s GP letter, which explained he could not attend school due to anxiety, and School Y’s medical referral. It changed its view and agreed X should receive alternative provision to help him access his education. However, as this was near the end of the academic year, it was not possible to put this provision in place before the school year ended.
47. I have not considered any concerns Mrs G may have about X’s educational provision from September 2023, either as part of the Council’s proposed educational package for X or his EHC Plan. This is because she should bring her concerns to the Council’s attention first before we can consider this, and any concerns she may have about his EHC Plan can be appealed to the SEND Tribunal.

Was there fault in how the Council communicated with Mrs G?

48. Mrs G said the Council communicated with her poorly.
49. I have reviewed the Council’s communication with Mrs G since April 2023 when it became aware X was not attending School Y. I found the Council continued to communicate with her and shared its views. I understand Mrs G did not agree with its decisions, however, I have not seen fault in how it communicated with her.
50. Also, I found no fault in how the Council handled Mrs G’s complaint as the evidence shows it responded to her complaint within the timescales set out in its Complaints Policy.

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Final decision

51. I have completed my investigation with a finding of no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman