Summary: Mrs X complained that the Council failed to provide alternative education when her child was unable to attend school for medical reasons. We find fault causing a loss of education and avoidable distress and frustration. The Council had already made a symbolic payment to Mrs X for the injustice and had introduced some service improvements. We recommended further improvements to the Council’s school attendance policy which it has accepted. We have therefore completed our investigation and are closing the complaint.

The complaint

1. The complainant, Mrs X, complained that:
1. the Attendance Team at her daughter’s (Y’s) secondary school (School B) failed to deal properly with her non-school attendance between February and November 2022;
2. the Council failed to provide alternative education since September 2022;
3. the Council wrongly advised Mrs X in February 2023 that she could not request an Education, Health and Care (EHC) plan assessment without expert input;
4. the Council failed to assess Y as a possible child in need and carry out appropriate assessments to help Y and the family; and
5. the Council’s complaint handling was poor and it misadvised Mrs X, therefore requiring her to employ a solicitor to help her obtain appropriate provision for her daughter, resulting in unnecessary legal costs.
2. Mrs X says that the Council’s faults meant that Y did not receive suitable education, she fell behind on her academic work and became socially isolated. Mrs X suffered avoidable distress and frustration and was left to care for Y without support. Therefore, she approached solicitors for assistance. Mrs X wants the Council to reimburse her legal costs.
3. Since first complaining to us, Mrs X requested a remedy for lost educational provision from February 2022. We have considered this request.
4. Mrs X’s solicitor, Ms G, submitted the complaint to us on behalf of Mrs X.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
6. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
7. We cannot investigate late complaints unless we decide that there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has or has not done. (Local Government Act 1974, Sections 26B and 34D, as amended).
8. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).
9. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
10. 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).
11. 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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What I have and have not investigated

The Ombudsman’s jurisdiction

12. School B is an Academy and is not a school maintained by the Council. We can look at the actions of organisations providing services on behalf of the council (see paragraph 8).
13. We decided that we could investigate the actions of the Attendance Team while it was working with School B. It was fulfilling a statutory function on behalf of the Council under section 436A of the Education Act 1996 (to identify pupils not receiving education) and section 437 (the power to take enforcement action and serve attendance orders for non-school attendance).
14. The Educational Psychology Service (EPS) and Targeted Education Support Service (TESS), who were also involved, are not within our jurisdiction to investigate. School B had its own powers to arrange support to improve Y’s attendance and these services were not acting on behalf of the Council. They were commissioned by School B.

Time factors

15. The Ombudsman will not normally investigate complaints unless they were made to us within twelve months of when the complainant realised something has gone wrong unless we consider there are good reasons for the complainant not to have done so.
16. I exercised the Ombudsman’s discretion on time grounds to look at the actions of the Council since February 2022, even though Mrs X did not complain to us within the required twelve months from when she first realised something had gone wrong. This is because Mrs X was struggling with her own ill- health at the time.

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How I considered this complaint

17. In addition to the evidence available from the previous investigation, I made further enquiries of the Council, considered its response and the written evidence provided by Mrs X. I issued a draft decision statement to Mrs X and to the Council. I have considered their further comments before reaching a final decision.

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What I found

Legal and administrative background

18. 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.
19. Section 436 of the Act requires councils to identify children not receiving an education.

Children out of school because of medical needs

20. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
21. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
22. The statutory guidance at the time of these events (January 2013) ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
23. The guidance also says that “there will be a range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the local authority [council], for example where the child can still attend school with some support”.
24. The guidance, and its 2023 successor, envisages that in the first instance schools are responsible for managing attendance issues relating to ill-health and special educational needs and the council’s duty only applies where the provision offered by the school is not available and accessible to the pupil.

Case law regarding section 19 alternative educational provision

25. 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 the educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
26. So, if the Council has arranged for the provision of education which is suitable for a child and which he/she is reasonably able to attend, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.
27. In R v Croydon Council [2015], the issue was whether a child of compulsory school age could reasonably be expected to attend the school. The Court decided that, where a child or young person had a medical reason or special educational needs, which explained the non-attendance, a council’s duty to arrange alternative education would be triggered, and alternative provision should be made pending finding a suitable school.

The Ombudsman’s Focus Report: Out of School, out of mind?

28. In July 2022, the Ombudsman issued a Focus Report about children out of school. It was updated in August 2023.
29. We made several recommendations. The most relevant to Mrs X’s complaint are that 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. Also, to put the chosen action into practice without delay and keep all cases of part-time education under review.
30. And, where a council arranges for a school or other body to carry out its functions, the council retains responsibility. Therefore, it must retain oversight and control.
31. In practice, we would expect to see councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. 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.

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Special educational needs

32. The SEND Code of Practice states that parents (among others) have a specific right to ask a council to carry out an EHC needs assessment (EHCNA). When considering a request, councils must gather advice from all relevant professionals. They have six weeks to provide this.

Children in need

Section 17 duties

33. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need. A child is in need if they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support, or they are disabled.

Duty to provide services

34. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare.
35. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.
36. Section 17ZD to s17ZF says councils must assess carers if they think there is:

• an appearance the parent needs one; or
• if a parent asks for one.

Key facts

Complaint (a): The Attendance Team at School B failed to deal properly with Y’s non-school attendance between February and November 2022

37. During 2021 and 2022 Y’s attendance at School B became poor. Mrs X says that Y was badly bullied and could not face going into school. School B arranged for Y to be on a reduced timetable. In January 2022, School B arranged a referral to an Occupational Therapist (OT), time within a sensory room and sessions with the school counsellor. School B made a referral to the Child and Adolescent Mental Health Services (CAMHS).
38. In February 2022, the Council’s lead Attendance Officer (AO) attended a meeting with the School’s Inclusion Officer and Mrs X. There are handwritten notes of this meeting. The reduced timetable was discussed, and it was agreed that Y could move classes to be with a peer. It is recorded that the AO would “continue with family”. School B offered a mentor. But the Council says this was refused, although Mrs X disputes this.
39. In March 2022, there was a further meeting at School B, and it was acknowledged that Y’s attendance had improved. The plan then was to increase Y’s attendance through a variety of strategies. There was a Speech and Language Therapy (SALT) assessment, arranged by School B.
40. Following the Easter holidays, the Council says that Y’s attendance improved. But the attendance deteriorated after May.
41. In early June, a profile of Y’s difficulties with recommendations was sent to staff at School B to help them manage her difficulties. In August, School B sent information to the Autism Pathway Service.
42. Y attended on the first day of the 2022/2023 academic year in September 2022 but then stopped attending. By this stage, Y was in Year 10, the start of her General Certificates of Secondary Education (GCSEs). There was a transition meeting and Mrs X and Y prepared a profile setting out arrangements which would help Y. School B put Y on a reduced timetable.
43. However, Y did not return to School B. School staff visited the home in mid-September 2022 and gave Y a ‘time-out’ pass. But Y still did not attend school. Some of those times, Mrs X gave reasons why Y could not attend due to illness.
44. Mrs X says she asked the Council for alternative educational provision although the Council says it was unaware of Y’s non-school attendance at this stage. In October 2022 Y’s General Practitioner (GP) confirmed that Y’s attendance at school was affected by her mental health difficulties and she was waiting a possible autism assessment.
45. In November 2022, there was a meeting at School B. Mrs X says that the Council’s AO attended, stating that they did not understand Y’s complex needs. The AO stated Y required medical interventions, and enforcement action was not appropriate. There appears to be no notes of this meeting made by the AO or any earlier contact the AO had with the family.
46. The Council has explained that the AO was asked to step in at the last moment. The AO knew that Y’s needs were complex and that because of this, and the ongoing assessments, along with parental engagement, the AO considered enforcement action was inappropriate.
47. Mrs X says that the AO took no further action and did not ask School B to submit a request for an EHC needs assessment. The Council has explained that the AO would not normally advise an EHC needs assessment. Moreover, School B were the case holders, and the AO was reasonably confident that School B was exploring avenues of support and assessment for Y.
48. In her stage one complaint to the Council, Mrs X said: “the involvement of the AO, and the focus on possible enforcement action was inappropriate and unhelpful as it only sought to delay the support for [Y] further”.

Findings

49. Between February to July 2022, the Attendance Team, along with professionals commissioned by School B, were taking actions to try to improve Y’s attendance. The AO was not working in isolation, rather working alongside the other professionals. These efforts to secure Y’s attendance were in keeping with the 2013 statutory guidance whereby schools should try to keep pupils in school with appropriate support without the involvement of the Council.
50. By September 2022, Y was not attending school, even after a transition meeting, a home visit by school staff and a ‘time out’ pass.
51. In early October 2022, Y’s GP confirmed that Y’s attendance was affected by her mental health difficulties, and she was under investigation for possible autism and sensory issues. By November 2022, School B and the AO concluded that enforcement action was not appropriate, and that Y required medical intervention.
52. In the Council’s final complaint response to Mrs X of October 2023, it accepted that in November 2022 the Attendance Team should have alerted the Council to Y’s difficulties in attending school, explaining also that enforcement action was inappropriate.
53. I consider that the Council’s finding on this complaint is appropriate, and, in November 2022, the Council’s Attendance Team should have referred Y for consideration of whether the Council had a duty to provide alternative education. The failure to do so amounts to fault.
54. Prior to this, School B had made reasonable adjustments to secure Y’s attendance and considered the additional information received in October 2022 from Y’s GP. School B remained ‘available and accessible’ to Y. Therefore, I consider that there was no fault by the Council in this earlier period (February to November 2022).

Complaint (b): failure to provide alternative education

55. In December 2022, in response to Mrs X’s request, the Council sent her the EHC plan paperwork. Mrs X returned the request in February 2023 and School B asked for an Educational Psychologist’s (EP’s) assessment.
56. In February 2023, Ms G (Mrs X’s solicitor) sent a pre-action protocol letter to the Council (a letter which is required to give councils notice that a complainant may take legal proceedings by way of a judicial review to Court).
57. The Council says that this is the first time (February 2023) that it became aware of Y’s non-school attendance. Mrs X disputes this, and questions why the Attendance Team did not communicate with the Council about this before then. But I have already found no fault at this earlier stage while School B was managing Y’s absences.
58. Mrs X also says that the Council was aware of Y’s non-school attendance given the TESS and EPS’s involvement. But both these services had been commissioned by School B to help improve Y’s attendance. And Y was still attending even if her rates of attendance were low. School B had asked these organisations to help Y feel safe coming, and remaining, in school.
59. However, because these the actions of these organisations are outside our jurisdiction, I have not specifically investigated them.
60. In February 2023, after the Council had received the pre-action protocol letter from Ms G, School B offered Y tutoring or accessing lessons remotely or a combination of both.
61. Mrs X says that this was only offered on a six-week trial basis. She says that this was inappropriate because it gave insufficient time for Y to build up any rapport with the tutor. The Council says that that the plan at this stage was to reintegrate Y back to School B although Mrs X says it was clear that this was not feasible.
62. In early March 2023, the Council responded to Ms G’s pre-action protocol letter, stating that the duty to provide alternative education under section 19 had not arisen. The Council considered that, while it was acknowledged that Y was experiencing difficulties, School B was offering a breadth of adjustments to support her.
63. In April 2023, School B requested an EHC needs assessment. The Council agreed to this in May 2023.
64. In June 2023, the Council says that it agreed with Mrs X to provide English and Mathematics tutoring while the needs assessment took place. The Council says that this tuition was guided by the EP who had been asked to provide advice. The tutoring started in July 2023.
65. Mrs X says that the Council did not engage with her properly, or begin to try to understand Y’s difficulties, until July 2023. In September 2023, one to one tuition began with Y also attending a therapeutic centre, providing education, twice weekly. This provision worked well.
66. Ms G, on behalf of Mrs X, made a formal complaint to the Council in July 2023. In October 2023, at stage two of the Council’s complaint procedure, it accepted that it had delayed in providing alternative education, contrary to what it had said in its earlier response to Ms G’s pre action protocol letter. The Council offered a payment of £2,700 for this, and £500 for the avoidable distress caused. The Council subsequently told us that this equated to £900 per term between September 2022 to July 2023.
67. Mrs X considered that the lost education should be remedied in accordance with our guidance of £2,400 per term for missed education. That would amount to £7,200 for three missed terms between September 2022 to July 2023.
68. Mrs X now considers that Y missed out on suitable education since February 2022 to July 2023 and should receive, in addition to the above, £12,000 for the lost education during that period, based on £2,400 per term in accordance with our guidance on remedies.

Findings

69. Between February and November 2022, the Attendance Team on behalf of the Council was trying to improve Y’s non-school attendance and was considering whether enforcement action was appropriate. I do not find fault for this earlier period or consider the Council should have been providing alternative education.
70. But the Council should have been alerted to Y’s non-school attendance in November 2022, as the Council found and, as part of its consideration of Mrs X’s formal complaint, it accepted it had delayed in providing alternative education. The Council offered a symbolic payment of £2,700 at the lower end of our tariff because various alternative teaching was offered to Y during this period (September 2022 to July 2023).
71. I had considered the Council had not fully recognised the detrimental impact this loss of education had had on Y, given this was the start of her GCSEs. Therefore, I recommended a higher symbolic payment of £3,700 as an appropriate remedy, which the Council accepted.
72. I consider that this finding of fault and the remedy remains appropriate.

Complaint (c): the Council wrongly advised Mrs X that she required expert input for her to request an EHC assessment

73. Mrs X says the Council told her in a letter dated March 2023 that she required expert input to make a request for an EHC needs assessment. The next month, School B submitted such a request.
74. The Council’s letter stated: “Any referral for an Education, Health and Care Needs Assessment (EHCNA) requires parental and expert input”. The Council considered that this was not misleading because it requires evidence that, despite a school’s efforts to meet needs, the pupil is not making progress.
75. When the Council received the pre-action protocol letter in February 2023, the Council said its comments were not inaccurate and further explained that: “As per the SEND Code of Practice, in considering whether an EHCNA is necessary, the Local Authority should consider whether that, despite the school having taken relevant action to identify, assess and meet the special educational needs of the young person, they have not made the expected progress. The EHCNA is a co-ordinated assessment taking into consideration the view of the professionals and parents”.

Findings

76. The SEND Code of Practice does not state that any request for an EHCNA requires expert evidence. Rather it states the council must take into account a wide range of evidence when considering whether to undertake an EHCNA.
77. Although parents/carers can request an EHCNA, and do not need expert input, on the balance of probabilities, a request is more likely to be successful if there is supporting evidence for the request. It would have been preferable if the Council had qualified its statements to Mrs X.
78. But any alleged injustice caused is not enough to warrant further investigation because a month later School B submitted a successful request. So, I do not consider it is appropriate to pursue this aspect of the complaint.

Complaint (d): failure to consider Y as a child in need and failure to carry out assessments

79. The Council said that there was an expectation that School B would request such an assessment, if it considered this was necessary. The Council, in its complaint responses, acknowledged that the Attendance Team could have requested such an assessment when it ceased its involvement in November 2022.
80. Had it done so, the child in need team would have assessed Y and assessed Mrs X sooner.
81. The children services’ records show that, in June 2023, an email from the Neurodevelopment Health Team set out the difficulties Y experienced and the strain placed on Mrs X in caring for her.
82. In August 2023, the Council started a children and family assessment. Y had recently had a diagnosis of Autism Spectrum Condition (ASC) and was being supported by CAMHS. Mrs X said that she was open to exploring direct payments and that an older sibling, who lived close by, would be a suitable personal assistant (PA). The main problem identified was that Y had become socially isolated, and she was in need of specialist education.
83. The assessment noted that support was available at the family home for Y and Mrs X worked parttime and was able to work from home. There were no identified problems in respect of the family providing support to Y. The assessment was positive about how the family was managing Y’s needs.
84. The assessment resulted in Y being awarded four hours of direct payments per week for a personal assistant. This was seen as providing respite for Mrs X and helping Y with her social communication and skills. The case was closed by children services in November 2023.

Findings

85. When the Attendance Team decided in November 2022 that Y suffered from medical difficulties, the Council should have made a referral to its children services team for a child in need assessment then.
86. I consider that the failure to do so was fault. There was therefore a lost opportunity to provide help to Y and Mrs X from children services earlier. But it would be speculative to say that, what was provided in mid-2023, would have been provided sooner. Hence, I consider the injustice here amounts to a ‘lost’ opportunity to receive earlier help.

Complaint (e): the Council’s complaints handling was poor, and it misadvised Mrs X requiring her to employ a solicitor

87. Mrs X requested the necessary EHC paperwork in December 2022.
88. Ms G was not satisfied with the Council’s response of March 2023 to her pre-action protocol letter. Rather than proceed with legal action, Ms G made a formal complaint on behalf of Mrs X, to the Council in July 2023. The main concerns were about the failure to provide alternative education sooner, misinformation provided in the pre-action protocol letter (Y being seen in the community, failure to attend counselling or accept a mentor), indirect discrimination, a failure to carry out a child in need assessment and failure to acknowledge additional queries.
89. The Council responded promptly at stage one of its complaint process. It explained that, in its response to the pre-action protocol letter, it had liaised directly with School B. The Council stated that sometimes correspondence between solicitors can be more direct and legal in tone.
90. The Council accepted that there was some dispute between School B and Mrs X about its actions, that there was no intention to imply that Mrs X had falsified Y’s inability to attend school by referring to her being seen in the community (and apologised if that is how it was read), it accepted a delay in making a child in need assessment referral and that there was failure to provide alternative education.
91. The Council partially upheld the complaint, it offered a payment for the loss of education, it said it would be continuing with the EHCNA and would be providing alternative education.
92. Ms G/Mrs X were not satisfied, stating the Council had not recognised the detrimental impact of the loss of education on Y, remaining concerned about the ‘misinformation’ and indirect discrimination.
93. In October 2023, as part of its stage two complaint response, the Council provided a detailed account of School B’s attempts to secure Y’s attendance and accepting fault that alternative education should have been provided sooner. It stated that any ‘misinformation’ arose because the Council had had to speak to School B when responding to Ms G’s pre-action protocol letter. It apologised for any misunderstandings.
94. The Council stated that training had been provided to the Attendance Team and the Council was renewing its procedures for dealing with school absences. It also stated that autism training was provided but the Council did not accept there had been any direct or indirect discrimination.
95. Ms G considered that the Council should meet the legal costs incurred by Mrs X in ensuring the Council provided Y with appropriate education and support. The Council explained that it would not reimburse such costs because the Council had a complaints process, but Mrs X chose to approach solicitors to serve a pre-action protocol letter, rather than making a formal complaint to the Council.

Findings

96. Ms G/Mrs X’s complaints covered a number of issues, some of which had been raised in the pre-action protocol letter. Because it is necessary to respond to pre-action protocol letters in a short time period, I can see why the Council relied upon School B’s account of events. It subsequently apologised for any misunderstandings which might have arisen. I consider these may have arisen because the Council did not have sufficient time to check facts with Mrs X.
97. The Council dealt with the complaint promptly and properly. It acknowledged where it had not provided a good service, it tried to answer all the points raised and it apologised for any misunderstandings, also setting out the service improvements it was implementing.
98. The Council explained why it would not reimburse the legal costs. It signposted Ms G/Mrs X to the Ombudsman as required.
99. I consider that there was no fault by the Council in how it responded to Mrs X’s complaint. It responded promptly and tried to answer all concerns in its stage two complaint response.

Complaint (f): that the Council indirectly discriminated against Y

100. In May 2023, Ms G says that the Council wrote to Mrs X refuting that Y’s complex special educational needs left her unable to attend school and it cited evidence of Y seeing a friend outside. Ms G said that it was unreasonable for the Council to assert that, because Y had been seen out with a friend occasionally, this meant she could attend School B. Ms G said the two were not compatible.
101. The stage one complaint response explained that the Council had received information from School B and the EP. The Council said “the purpose of the information provided was to evidence that subject to appropriate support, [Y’s] ability to maintain social interactions albeit to a limited extent indicate that there was potential for [Y] to transition back into school”.
102. At stage two, the Council confirmed that there was no intention to suggest that the family were “falsifying [Y’s] inability to attend school”.
103. I have not investigated whether there was a breach of the Equality Act 2010 as that is a matter for the courts. Nevertheless, I have looked at whether the Council’s letter amounted to fault, rather than a breach of the Act.
104. The Council clarified its comments at stage one and accepted at stage two of its complaint response that its comments were brief and could have been made clearer. The Council has provided explanations for its comments, and it is not appropriate to investigate this part of the complaint further because there is no significant unremedied injustice to justify our further involvement. And I do not consider I could add more to what the Council has said.

Legal costs

105. Ms G says that legal costs were incurred because the Council misapplied the law, and the Council was failing to provide alternative education. I can see that, given the level of Y’s complex needs, and that Mrs X says that she was told Y’s absences were an enforcement issue, Mrs X would have been concerned and anxious to ensure appropriate education for Y.
106. We will consider remedy costs that flow “directly and necessarily” from the fault identified which does not normally include solicitors’ fees. I have found some fault, but I have not said the Council misunderstood or misapplied the law.
107. In addition, Mrs X could have complained to the Council, and later to us, without engaging legal representation. As it was, Ms G served a pre-action protocol letter in February 2023 and did not submit a formal complaint until July 2023.
108. The Council’s complaints procedure along with information about how to complain were available on the Council’s website. It is also the case that the Council was receptive to Mrs X’s concerns, and upheld aspects of her complaint, also offering a remedy.
109. In addition, Mrs X would have been informed of the costs of using legal assistance. She and her advisors would have been able to view our Guidance Remedies on our website which is clear that we are unlikely to recommend reimbursement of legal fees. It was Mrs X’s decision to employ a solicitor, and she would have been forewarned of the costs.
110. It is also the case that there are a number of voluntary agencies who deal with special educational needs and can advise parents/carers how to manage the EHC planning process. Mrs X says that there was a waiting list to obtain advice from these organisations. Hence, Mrs X sought legal advice and instructed solicitors to pursue her concerns. But I do not consider the unavailability of voluntary agencies is sufficient reason to depart from our normal approach.
111. My view remains that it is not appropriate for the Council to meet Mrs X’s legal costs in making complaints to both the Council and to us. This is for the reasons above (paragraphs 106-110).

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Action

112. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
113. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
114. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
115. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

116. Y was at a significant point in her school career undertaking GCSEs. I remain satisfied that any loss of education at this time would have had a detrimental impact and that this merited a higher offer for the lost education than the Council had originally offered. The Council agreed to make a payment of £3,700 to be used by Mrs X for Y’s benefit. The Council also introduced service improvements to ensure that Attendance Teams knew when to escalate cases.
117. I consider that the missed education runs from November 2022 to July 2023 and that the remedy payment for this of £3,700 remains appropriate.
118. I consider that the Council’s offer of £500 for the avoidable distress for Mrs X and for the lost opportunity for an earlier child in need assessment also remains appropriate and in keeping with our guidance on remedies.
119. However, because we have decided that the Attendance Team, working with School B, was acting on behalf of the Council, I recommended further service improvements.
120. The Council has said that it has already provided training in relation to section 19 to all staff engaged in direct work with schools and families. In addition, within three months of the final statement, the Council will:
1. inform its Attendance Teams working within non-maintained schools that they are carrying out an administrative function on behalf of the Council and that its actions may fall within our jurisdiction to investigate; and
2. in view of this, it would be appropriate for Attendance Teams to keep a note of its actions in relation to the pupils where they are considering how to manage a pupil’s absence and whether enforcement action is required.

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Decision

I find fault on complaints (b) and (d) causing injustice. The Council has already taken actions to remedy the personal injustice, so I do not intend to pursue these further. But I have recommended service improvements to prevent recurrence of the faults in this case which the Council has accepted. I find no fault or no unremedied injustice on complaints (a), (c), (e) and (f). I have completed our investigation and am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman