Summary: Ms X complained the Council failed to provide alternative provision of education for her child while they could not attend school since October 2023. We found fault with the Council failing to provide education for Ms X’s child from 24 November 2023 until 18 December 2023. We did not find fault with the Council’s actions after this point. The Council agreed to apologise to Ms X and pay her £400 for her child’s missed education.

The complaint

1. Ms X complained the Council failed to provide alternative provision of education for her child while they have been unable to attend school because of their mental health since October 2023.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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 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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What I have and have not investigated

7. I have investigated all matters up to 17 June 2024. I have not investigated any issues since this point since the Council must be given reasonable opportunity to investigate a complaint before the Ombudsman investigates. The Ombudsman made enquiries of the Council on 13 June 2024. The latest action the Council took detailed in its enquiry response was on 17 June 2024. The Council has not had opportunity to address this matter since this point.

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How I considered this complaint

8. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Both Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and regulations

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. [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.
11. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
12. 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)
13. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
14. 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
15. 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

16. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled
17. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
18. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

19. Ms X’s child, who I shall call Y, started attending primary school in 2020 and maintained attendance rates above 87% until October 2023. On 12 October 2023, Y stopped attending school.
20. On 16 November 2023, Y’s school contacted the Council to advise Y had not been attending school since 12 October 2023. The school advised it did not have medical evidence to support Y’s absence from school. The Council provided advice about how to record Y’s absence from school.
21. Ms X made a formal complaint to the Council on 4 December 2023. Ms X complained Y had been absent from school since October 2023.
22. From 12 December 2023 to 22 December 2023, the Council liaised with Ms X and Y’s school about Y’s access to education. During this time:
• Y’s school created a reintegration plan for Y which it agreed with Ms X on 18 December 2023 with the view to reviewing this plan on 26 January 2024.
• The Council reviewed Y’s reintegration plan.
• The Council recommended resources to Y’s school to support Y’s reintegration to school.
• The Council provided advice to Y’s school about how to note Y’s absence from school.
• The Council recommended Y’s school provided remote learning for Y through both lesson work and homework. The school confirmed this was in place through various platforms it already uses.
• The Council agreed with Y’s school that it could meet Y’s educational needs when Y is in school.
• The Council arranged for the school to allocate a key person to Y for their reintegration plan.
23. On 22 December 2023, the Council provided a complaint response to Ms X. The Council said it considered Y’s school was suitable educational provision for Y and, as such, did not consider alternative provision of education was suitable for Y. The Council said it understood Y’s school had put a graduated timetable in place and would provide other support to the school including referral to an Educational Psychologist.
24. The Council provided contact details for the school for an Educational Psychologist on 22 December 2023.
25. The Council held a meeting with the school on 12 January 2024 and reiterated the support options it could contact for Y and provided advice on safeguarding visits. The Council spoke with both Ms X and the School throughout January 2024 until the review meeting on 26 January 2024.
26. On 26 January 2024, Ms X expressed her concerns the reintegration plan was not working for Y. The school requested further support from the Council and advised the reintegration plan needed re-evaluating. The Council agreed to arrange for an Educational Psychologist consultation.
27. A Trainee Educational Psychologist completed their report of Y on 6 February 2024. The Trainee Educational Psychologist confirmed the reintegration plan had not been successful and a new plan had been created to start after the February 2024 half-term. The Trainee Educational Psychologist recommended the school follows up on the reintegration plan with changes in roles by staff at the school. The Trainee Educational Psychologist did not recommend Education Otherwise Than At School for Y.
28. Ms X sought consideration of her complaint at Stage 2 on 6 February 2024. Ms X said the reintegration plan had not worked for Y and considered Y needed specialist education. Ms X said she considered Y needed alternative provision of education because of Y’s absence from school since October 2023.
29. On 19 February 2024, the Council provided its Stage 2 complaint response. It said it still considered Y’s school was suitable educational provision for Y. It offered various support services for Y and invited Ms X to contact it to discuss putting these support services in place.
30. The school continued to try to engage reintegration plans with Y from February 2024 to June 2024.
31. In April 2024, an Independent Health Practitioner completed an assessment of Y, as arranged by the Council. This report noted that Y had a block about going to school or doing anything to do with school. The report confirmed that Y could not access any structured learning in his day and found engagement with people outside the immediate family difficult. The report recommended a review of the reintegration plan and discussions about the next steps for Y’s education.
32. Ms X reported some engagement with Y’s reintegration plan on 3 May 2024, 10 May 2024 and 13 May 2024 including being able to send some work back to school.
33. In June 2024, the school created a new reintegration following review. This reintegration plan confirmed that Y is not currently able to access educational work and is struggling with emotional regulation. The reintegration plan focused on working on self-image, recognising emotions and building resilience.
34. On 14 June 2024, an Educational Psychologist completed a report of Y which stated Y “currently has a high level of anxiety around attending school and appropriate strategies have been attempted and a graduated approach followed.” The Educational Psychologist made suggestions about how the Council might look to provide access to education and support for Y moving forwards.
35. The Council arranged for Y’s access to education to be discussed at a multi-disciplinary panel process and to decide on the next steps at the end of July 2024.

Analysis

36. We cannot consider the role of the school as schools are not within our jurisdiction. This investigation is limited to consideration of the role of the Council.
37. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively. It is not the role of the Ombudsman to investigate Y’s school and what educational provision it put in place before the Council became responsible.
38. The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days, from the sixth day of Y’s absence.
39. While Y was absent from school from 12 October 2023, neither Ms X nor the school contacted the Council about Y’s absence until 16 November 2023. Since the Council was not aware of Y’s absence, I cannot find fault for it failing to act in response to their absence from school. As above, I cannot consider the role of the school or why it did not tell the Council sooner.
40. Government guidance says the Council should look to put in place education from day 6 of it becoming clear a child had been absent for more than 15 days. Since the Council became aware of Y’s absence on 16 November 2023, it was responsible for providing education for Y from 24 November 2023.
41. The Council failed to provide education for Y, or put any plans in place for Y’s education, until 18 December 2023. This delay was fault.
42. When a child is out of education, the Council must consider the individual circumstances of each particular child. The Council must decide based on the evidence and circumstances whether a child can access education at school and put suitable steps in place for a child to access this education. Or, provide education outside school for a child. Having considered the relevant factors, the Council decided by 18 December 2023 that Y could access education at the school.
43. The Council decided that Y’s educational setting was accessible and suitable for Y and took steps for Y to attend school. This included working with the school to create a reintegration plan for Y and putting this in place on 18 December 2023. The Council also provided recommendations for support for Y to the school and ensured Y had access to online learning provided by the school while the reintegration plan progressed.
44. The Council took steps to fulfil its Section 19 duty and decided alternative provision of education was not suitable for Y. This was a decision the Council was entitled to make, and I cannot find fault with the Council for this.
45. The Council has shown it continued to monitor Y’s situation and reintegration plans through contact with both Ms X and the school in January 2024 and February 2024. The Council also sought input from a medical professionals through an Educational Psychologist and an Independent Health Practitioner. Both recommended a review of the reintegration plans, in February 2024 and April 2024 respectively, with these reviews being completed accordingly.
46. Reintegration plans remained in place and were regularly reviewed until the most recent review of the plan on 17 June 2024. The 17 June 2024 plan reiterates that Y cannot access educational work at present with the reintegration plan focusing on promoting Y’s access to education. Given Y could not access formal educational provision, at school or at home, the Council has taken a suitable approach to try to promote Y’s reintegration into educational learning and school.
47. The Council continued to meet its Section 19 duty by keeping Y’s reintegration plans under review and seeking input from professionals in February 2024, April 2024 and June 2024. I do not find fault with the Council’s actions following production of the first reintegration plan as it has acted in line with the guidance. There is no fundamental duty on a council to provide alternative provision of education for a child if it considers a child can access education in a school provided the Council takes suitable steps to try to achieve this.
48. The Council has advised it has arranged a multidisciplinary panel meeting for Y for the end of July 2024 to discuss its approach to Y’s education. This meeting will enable to the Council to decide the best approach for Y moving forwards into the next academic year and consider all professional input to date. I am satisfied the Council has in place suitable steps to continue to review and plan for Y’s education. The Ombudsman cannot look to pre-judge the actions of a council and must allow it opportunity to put plans in place and consider the latest input from the Educational Psychologist on 14 June 2024 before we investigate.

Recommendation for lost provision

49. In paragraphs 40 to 41 I outlined the Council was at fault for delays in considering provision of education for Y from 24 November 2023 to 18 December 2023. This meant Y went three weeks without any education or reintegration plans in place.
50. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision, if any, put in place, a child’s individual needs and whether they are in a key academic year.
51. We recommend the Council apologises to Ms X and pays her £400 for Y’s missed education for these three weeks. Ms X may used this as she sees fit to source educational provision for Y.

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Agreed action

52. Within one month of the Ombudsman’s final decision the Council should:
• Apologise to Ms X and pay her £400 for Y’s missed education from 24 November 2023 to 18 December 2023 due to inaction from the Council.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. There was fault by the Council as the Council has agreed to my recommendation, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman