Summary: Mrs X complained the Council failed to make appropriate alternative education provision when her son was not attending school which means his education and prospects have suffered. Mrs X’s son was a school refuser and for the academic year 2021/22 a suitable education was available and accessible. However, when alternative education provision was offered in the academic year 2022/23, Mrs X’s son was placed on a waiting list and no provision provided. This is fault for which a suitable remedy is agreed.

The complaint

1. Mrs X complains the Council failed to make appropriate alternative educational provision for her son while he was not attending school.
2. She says that as a result his education and prospects have suffered.

Back to top

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. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

Back to top

What I found

General section 19 duty

7. Councils must arrange suitable education at school or elsewhere 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

Attendance

8. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
9. The legislations states that before prosecuting parents, the council must consider whether they should apply to the court for an Education Supervision Order (ESO). An ESO is placed on the child and the council is appointed by the court to supervise that child’s education, either at school, or at home for a specified period.

Educational provision – available and accessible

10. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Education Welfare

11. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.

Key facts

12. Mrs X’s son, B, has an EHC plan and in October 2021 he stopped attending a fee paying school. Provision for 22 hours a week at school along with eight hours at a local college was available. However, B became involved in drug taking and anti social behaviour and he stopped attending school. He was considered to be a school refuser.
13. The school provided regular half termly attendance reports to the Council. The Council says the report provided in November 2021 showed B had been absent for 17 sessions in the first half term. Although further reports were provided, the Council failed to check them until after half term five in May 2022. This showed that B’s attendance had fallen to 17%.
14. An emergency review was held in November 2021 following which the final amended EHC plan was issued in January 2022. The final EHC plan named the fee paying school. It is noted that the Council wanted to name a mainstream school with particular specialist provision but it agreed to continue to name the fee paying school because this was Mrs X’s preference. Mrs X had a right of appeal if she was unhappy with the content of the EHC plan but she did not exercise this right.
15. It is my understanding the school provided some support including offering a reduced timetable and weekly home visits. In 2022 it offered some alternatives to B including:
• SOS – an online school
• A2E (Access to Education) a service which provides flexible short term services for children unable to attend school
• Steps – a counselling service
• Hope – a multi agency service for young people experiencing complex mental health, social, emotional and behaviour challenges
• Catch 22 – a substance misuse service
• Nudge Education – offers a variety of bespoke services for young people who are chronically disengaged, out of education or at risk.
16. Information provided shows that most of the above were either considered unsuitable or B chose not to engage. B did engage with Catch 22 in June 2022 and reports indicate he made excellent progress. By September 2022, he engaged with Nudge Education and was in receipt of some individual tutoring for approximately five hours per week.
17. Following the annual review of B’s EHC plan, the Council issued a final plan in March 2023. This named the same, fee paying school until July 2023 when B would move to a local college. Mrs X did not exercise her right of appeal in respect of this EHC plan.
18. Following meetings and discussions between the school, the family, the service and the Council, a referral to A2E was made in March 2023. B was added to the priority waiting list and information provided in April indicates he was in position 16. However, no provision was ever offered from A2E before the end of the academic year and after this B was no longer eligible for the service due to his age.
19. B started at a local college in September 2023 on a phased return.

Analysis

20. B became a school refuser in October 2021. At this time he was involved in criminality including drug use. This had a considerable impact on the whole family and both the police and children’s services were involved with the family. The Council did not involve its Education Welfare Offices due to the difficult circumstances facing the family and because children’s services were involved. This is a matter of judgement and therefore not fault.
21. The school provided regular, half-termly reports about B’s attendance to the Council. However, due to staff shortages the Council did not review these reports until May 2022 and so was not aware of B’s absence. The section 19 duty requires the Council to provide alternative education where there is no suitable education for the child which is available and accessible.
22. I am satisfied that an emergency review of B’s EHC plan was carried out once it was clear he was not attending school. The notes I have seen indicate the review meeting fully discussed B’s particular circumstances and difficulties. In line with Mrs X’s wishes, the fee paying school was named on the final amended EHC plan and she did not appeal.
23. Mrs X complains the Council did not provide alternative provision when B stopped attending school. The Council’s section 19 duty to provide alternative provision applies if there is no suitable education which is available and accessible to the child. I am satisfied that suitable education was available and, notwithstanding the very difficult situation he was in, B chose not to access it. I also note that a variety of alternative services were offered in 2022 but were not accessed. While I understand Mrs X’s frustration, I am not persuaded there was fault by the Council.
24. However, following the annual review in March 2023 the Council made a referral to A2E. B had engaged with services including drug rehabilitation and some private tutoring for a period of time. While a referral was made, the service had no capacity and so B was added to a waiting list. No services were ever made available to B and once he left school in July 2023 he was no longer eligible for this service. I consider the referral to A2E was made in order for the Council to meet its section 19 duty but as no alternative provision was actually provided due to over subscription, this is fault.
25. I take the view the Council failed to provide a full time education that was available and accessible to B for the academic year 2022/23 and consider a payment should be made for this lost provision. Our guidance on remedies recommends a symbolic payment of between £900 and £2,400 per term to acknowledge the impact of that loss. Taking into account the circumstances in this case including that some provision was in place and that it is not guaranteed that B would engage, I am recommending a payment at the lower end of the scale.

Agreed action

26. To remedy the injustice caused by the fault identified in this case, the Council will, within one month of my final decision, take the following action:
• Apologise to Mrs X and B;
• Make a symbolic payment of £3,000 to acknowledge the loss of education for the academic year 2022/23;
• Make Mrs X a symbolic payment of £300 to recognise her distress and time and trouble in bringing this complaint; and
• Carry out a review of the alternative education services it commissions to ensure there is adequate capacity to meet demand.
27. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

28. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.
29.  

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman