Summary: The Council was at fault for failing to deliver alternative provision to Miss X’s daughter. This caused Miss X and her daughter a significant injustice. The Council agreed to apologise and make a symbolic payment to Miss X to remedy the injustice.

The complaint

1. Miss X said the Council did not make alternative provision when her daughter, Y was not in education for over a year. She said this affected Y’s mental health and her ability to socialise. Miss X said she needed to give up work in order to support her daughter.

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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 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)
3. 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

4. I have considered Miss X’s complaint and have spoken to her about it.
5. I have also considered the Council’s response to Miss X and to my enquiries.
6. Miss X 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

Legislation

7. The Council has a duty, outlined below, to arrange suitable education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
8. The Education Act 1996 says every council shall “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))
9. The Government has issued statutory guidance which Councils must follow unless they have good reason. (Ensuring a good education for children who cannot attend school because of health needs, issued by the Department for Education in January 2013)
10. The Local Government Ombudsman has also issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of sight? Ensuring children out of school a good education, published in August 2023)
11. Government guidance says Councils must work closely with schools to identify children who need the Council to make alternative arrangements for their education. Councils must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions.
12. In reaching a decision on whether a child is medically or otherwise unable to attend school, we expect councils to act quickly and (where necessary) consult the relevant professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of their evidence. If – having considered all relevant evidence – a council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.

What happened

13. Miss X’s daughter, Y has Social, Emotional and Mental Health Difficulties (SEMH) and an Education, Health and Social Care Plan (EHC Plan).

School incidents and exclusions

14. Y started Year 7 at a specialist school in September 2020. During the summer term of Year 8 (May 2022), the school excluded Y several times due to her violent behaviour towards staff. Miss X contacted the Council to raise concerns about the missed education and the impact it was having on Y.
15. In June 2022, the Council arranged an emergency annual review for Y. The school said it wanted to give notice as Y had been involved in over 70 ‘incidents’ since September 2021. The Council asked the school for evidence of graduated responses, incident reports and a timetable of Y’s current provision.
16. Following a further emergency annual review in July, the school agreed to reintegrate Y rather than give notice. The school arranged a 4 week integration plan for September.
17. Y returned to school in Year 9 (September 2022) on a part-time timetable, 2 days a week. Y was excluded again and her time in school was reduced to one day a week until October 2022.

Stopped attending school

18. In November, Miss X removed Y from school. The Council advised Miss X that there are not many places available for children with SEMH in the area, and that outcomes are better for children on roll at a school.
19. In early December, the Council held an Annual Review of Y’s EHC Plan to consider the change in circumstances. The Council decided to amend Y’s EHC Plan. In January, following a conversation with Miss X, the Council began consulting schools. Miss X’s preference was for mainstream schools although the Council advised against this.
20. In January 2023, the Council contacted Miss X. Miss X confirmed that she wanted Y removed from the roll of her specialist school as she felt it could not meet Y’s needs. The Council informed Miss X that the school said it could meet Y’s needs but that relations with the family have broken down. The Council informed Miss X that it would be unlikely to find a space at an independent school before September 2024.
21. Between February and May, the Council consulted Miss X’s preferred schools.

Complaint about missed provision

22. In May, Miss X complained to the Council. She said that Y has an EHC Plan and should attend a specialist provision school but that she has been out of education for almost a year. She asked the Council to make alternative provision for Y.
23. The Council responded to Miss X informing her that none of the schools in the area could meet Y’s needs, but it was looking in the wider area at independent schools. It also confirmed that it would investigate what was being done to provide Y with alternative provision while she was waiting for a school place.
24. In June, the Council asked Child and Adolescent Mental Health Services (CAMHS) to refer Y to a local organisation that provides alternative learning provision (ALP) for children who are outside mainstream education on ill health grounds.
25. At the end of June, the Council sent its complaint response to Miss X.
26. The Council explored the ALP placements available. Miss X was concerned about transporting Y to the placements as she worked and had other children to consider. The Council explored home to school transport options.
27. In July, Y tried to take her own life. Miss X gave up work so Y would not be left alone. Miss X arranged and paid for a private councillor to work with Y. She told the Council that she preferred education options relating to mentoring and mental-well-being initially in September.
28. The Council issued an Amendment Notice to Y’s EHC Plan and advised Miss X that Y’s next annual review was due in November.
29. The Council continued to consult independent schools in the wider area and provided them with up to date EHC Plan documentation. The Council also looked at creating a bespoke package for Y.

Alternative provision secured

30. At the end of August 2023, the Council confirmed it had secured 3 days a week placement starting in September. This was with an alternative learning provider with the aim of reintegrating into mainstream education.
31. In early September, the Council issued an Amended Final EHC Plan for Y. This included the Education Other Than at School package (EOTAS). The Council continued the search for an independent specialist school placement.

My analysis

32. Y was out of education between November 2022 and September 2023. Before this, she received a part-time table between May and November 2022.
33. During this time, the Council was in regular contact with Miss X and was working on Y’s EHC Plan and considering other school placements. It did not however consider alternative provision until Miss X raised a complaint in May 2023. It then took until August for the Council to confirm a suitable placement that Y began in September.
34. The Council was at fault for not properly considering its Section 19 duty as soon as Miss X removed Y from school in November 2022.
35. This fault led to Y missing out on education and the SEN provision previously delivered in school for two and a half terms.
36. The Council has agreed to pay Miss X £2400 per term of missed provision. This equates to £6000 in total. As the Council already paid Miss X £2800 in September 2023, it will pay her a further £3200.
37. I have based this figure on the higher end of the recommended scale due to the impact that the missed provision has had on Y and her family. This also reflects the fact that she had only been receiving a part-time timetable between May and November 2022.

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Agreed action

38. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Miss X for not providing alternative provision for Y.
2. Pay Miss X £3200 to reflect the injustice that Miss and Y have suffered as a result of the Council’s fault.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation. I have found the Council at fault for failing to consider its Section 19 duty and to deliver alternative provision to Miss X’s daughter.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman