Summary: Mrs X complained the Council delayed putting in place alternative provision for her daughter, M after she stopped attending school in September 2023. The Council was at fault. It delayed putting alternative provision in place between September 2023 and February 2024. The Council agreed to make payments to Mrs X to acknowledge the impact this had on M’s education and for the distress and uncertainty caused.

The complaint

1. Mrs X complained the Council delayed putting alternative provision in place for her daughter, M until February 2024 after she stopped attending school in July 2023 due to anxiety.
2. Mrs X says M has missed out on education and her mental health has declined which has caused distress and uncertainty.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I spoke to Mrs X about her complaint and considered information she provided.
8. I considered the Council’s response to my enquiry letter.
9. Mrs X and the Council have an opportunity to comment on this draft decision. I will consider comments before making a final decision.

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What I found

Relevant law and guidance

10. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.
11. 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 sight? published July 2022
12. 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 (except for 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

What happened

13. Mrs X has a daughter, M who is of primary school age. Around July 2023 M stopped attending school due to anxiety. In September 2023 Mrs X contacted the Council’s home education service and told it M had not attended school since before the summer holidays. Two weeks later the home education service responded to Mrs X and left a voicemail asking her to contact it. It left a further message for Mrs X at the start of October.
14. In mid-October the Council spoke with Mrs X to obtain further information about M’s absence from school. Mrs X said the Council had recently declined to issue M with an Education, Health and care Plan. She told it M had school based anxiety and was refusing to attend. The Council followed the call up with an email and referred her to its Special Educational Needs and Disability support service (SENDIASS). It also provided her with information about home educating M.
15. In early November 2023 Mrs X complained to the Council about its failure to provide M with appropriate full-time education. Following receipt of the complaint the Council recommended M’s school make a referral to its alternative provision service. The Council received the referral in mid-November.
16. The Council responded to Mrs X’s complaint in November. It said it had no record of any contact from M’s school about alternative provision prior to the referral received at the start of November. The Council confirmed it had received and accepted the referral and would now offer support for M.
17. Mrs X remained unhappy and complained to us.
18. Alternative provision for M began towards the end of February 2024 with one hour of tuition per week. This amount of provision was agreed by Mrs X.
19. The Council told us in response to our enquiries that it accepted a delay in fulfilling its section 19 duty towards M. It said following accepting the referral in November it experienced difficulties in recruiting a tutor for M. The Council said it was regularly reviewing M’s tuition which remains at one hour per week which is in line with Mrs X’s wishes at this time.

My findings

20. The Council first became aware M was not attending school in September 2023 when Mrs X contacted its home education service. In light of this information and in line with our guidance as set out in paragraphs thirteen and fourteen, the Council should have made enquiries at that point around whether M required alternative provision. It delayed doing so until it received the referral from M’s school in November which was fault.
21. Upon receiving the referral from M’s school the Council decided to put some alternative provision in place. The Council has accepted the further delay was down to difficulties recruiting a tutor. That was service failure and fault.
22. The faults highlighted caused around a five month delay in putting alternative provision in place for M. Had the Council acted when Mrs X originally contacted it in September and but for the service failure, it is likely, on balance that M’s tuition would have started much earlier. It leaves uncertainty around whether M could now have coped with more tuition and it caused both M and Mrs X distress and uncertainty.

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Agreed action

23. Within one month of the final decision the Council agreed to take the following actions.
1. Pay Mrs X £300 to acknowledge the impact of M’s loss of alternative provision between October 2023 and February 2024.
2. Pay Mrs X £100 to acknowledge the distress and uncertainty caused to her by the delays in putting M’s alternative provision in place.
3. Explain what action it intends to take around its commissioning arrangements for alternative provision tutors for children out of school. This is to prevent similar delays in securing alternative provision for children out of school going forward.
24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

25. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman