Summary: Ms X complained the Council failed to provide a suitable education for her daughter, Y, between November 2023 and July 2024 when she was unable to attend school due to anxiety. The Council was at fault. It will apologise to Ms X and pay her £2,400 to recognise the period of suitable alternative provision Y missed, and the distress this caused Ms X.

The complaint

1. Ms X complained the Council failed to provide a suitable education for her daughter, Y, between November 2023 and July 2024 when she was unable to attend school due to anxiety. Ms X said this caused Y to miss out on education and social opportunities, affected her wellbeing and impacted on the whole family. Ms X wants the Council to improve its service for children who are unable to attend school.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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).

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How I considered this complaint

6. I read the documents Ms X provided and discussed the complaint with her on the phone.
7. I considered the documents the Council sent in response to my enquiries.
8. Ms 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

Relevant legislation and guidance

9. 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.
10. As soon as it is clear the child will be away from school for 15 days or more because of their health needs the council should arrange suitable alternative 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 education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
13. 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
14. We made recommendations 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 (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

15. 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.

What happened

16. Y is a child of secondary school age. She lives at home with her parents and sibling. When Y was at primary school the Council offered her family support through its Early Help services due to concerns around Y’s anxiety and mental health. Y started secondary school (the School) in September 2023. Ms X said additional transition support was put in place for Y’s move to secondary school.
17. Ms X asked the Council for support from its Early Help team in early October as Y was struggling to attend the School due to her anxiety and the large numbers of people. The Council began working with the family and the School.
18. The Council contacted the School and said Y was ‘missing out on a huge number of educational hours’ and asked it to provide work for her to do at home until it could arrange a team around the family (TAF) meeting to discuss Y’s case. The School said it would not send work home. It said Y was on a reduced timetable and was offered wellbeing support and regular contact with her tutor in school.
19. A TAF meeting with Y’s parents, the School and Council officers was held in mid-November. The minutes of the meeting said Y had been on a part-time timetable which had not worked and an educational psychologist had suggested reducing it even further. Y should attend for one period a day, with access to the wellbeing team. The School said it could offer Y animal therapy as a reward for increased attendance. There is no record of the decisions or actions from the meeting. In later correspondence the Council said the TAF was to formalise the part-time timetable.
20. A week later the Council asked the School to reconsider sending work home, as Y was now not in school at all. They said, ‘it is clear that the anxiety issue needs to be addressed in order for [Y] to re-engage physically in school’. They said they were not considering enforcement action for Y not attending school as her absence may be linked to social, emotional or mental health issues. The School again said it would not send work home but Ms X could look on its website at the work it was doing and do something similar with Y at home.
21. At the beginning of December Ms X provided a copy of a GP’s letter which said Y was waiting for an assessment for ADHD and Autism and was experiencing significant symptoms of stress and anxiety related to the School.
22. Another TAF meeting at the beginning of December recorded the reduced part-time timetable was not working. It discussed potential options of support for Y. The actions were for the School to complete a referral to the Council for alternative provision. The School commented the animal therapy was not a good option for Y as she would travel with other students she did not know. The School completed the form for alternative provision on medical grounds.
23. In mid-December the Council considered Y’s case at a panel meeting. The Council did not provide any record of that meeting. On the 28 December it told Ms X it would offer Y a place at a learning centre (Centre 1) for short term support. The Council told Ms X it could approach other alternative providers but the panel wanted Ms X to consider Centre 1 first. The Council told Ms X to contact Centre 1 and visit in the new year.
24. Ms X and Y visited Centre 1 in January 2024. After the visit Ms X told the Council that due to centre staff telling Y other pupils swore and sometimes threw tables Y would not attend and that Y needed a therapeutic setting. Ms X asked if Y could attend Centre 2, or another alternative provider. The Council said Centre 2 did not have any places at the previous panel but it would ask again. The Council said it would send out requests for provision to its approved providers and try to get responses quickly.
25. The Council put out a request to its approved providers for alternative provision for 15 hours a week for 10 weeks. It specified the provider would support to improve Y’s confidence and mental health, build relationships with adults and identify triggers for anxiety, and to improve her attendance with the aim of re-engaging with education at the School.
26. The Council received two responses. One offered ten hours a week of alternative provision including a bespoke curriculum, and the other offered two hours a week of equine assisted learning, with potential to increase to five hours a week. There is no record of how the Council considered the options available however it said it considered the first to be too far away.
27. The Council told Ms X it agreed to fund the equine assisted learning (EAL) placement for 38 hours to the end of the academic year, starting at one hour a week and increasing when Y was able.
28. The Council said it held another TAF in January, however it did not provide a record of the meeting or what was discussed.
29. Ms X told the Council at the end of February that Y had started EAL and asked if she could have some tutoring in academic subjects alongside. The Council asked the School to ‘explore’ this. The School offered Y three hours of tuition at the beginning of March, however due to tutor availability this was never put in place.
30. Ms X told the Council in mid-April that a private assessment had identified Y had Autism which was the cause of anxiety about attending school.
31. The Council said the School offered Y online tuition in April 2024 and Ms X declined it. It provided no evidence to support this.
32. Ms X complained to the Council in April. She said Y had not been able to attend school since November, no work had been provided for her and the three hours tuition it offered had not started. Ms X asked for tuition for Y.
33. The Council responded a month later. It said Y was engaged with EAL which could not be increased as the provider did not have any space. It offered to look at alternative providers if Ms X wanted. It said the School would consider tuition after May half term and would reoffer the animal therapy.
34. Dissatisfied with the Council’s response Ms X complained to us.
35. A panel meeting in June considered if the Council would provide an extra two hours EAL a week for Y. There is no record of the outcome of that panel.
36. The Council said it held another TAF in June and agreed to arrange tuition for Y. There is no record of the TAF meeting or evidence tuition was provided. Ms X stated Y receive three sessions of tuition in July.
37. At the end of July the Council contacted Centre 2 and requested a place for Y. Centre 2 responded the next day and offered Y a place from September 2024. Y began attending Centre 2 in September 2024.

My findings

38. The Council’s record keeping was poor:
• It did not provide contemporaneous records of how it considered Y’s education and the decisions it made about the duty it owed and the suitability of the provision it offered her.
• It referred to TAF meetings which it provided no records of, save for the first two in November and December 2023.
• It did not provide the agendas, minutes or recorded outcomes of its panel meetings.

The lack of clear, complete and contemporaneous records was fault and leaves uncertainty about the Council’s actions, whether it properly considered its Section 19 duty and the suitability of the alternative provision it offered Y.

39. The Council was aware at the beginning of November that Y was not attending school and the School was not providing any education. The Council should have decided if it owed Y a section 19 duty within 15 days, so, by the end of November. On the balance of probabilities the Council considered its section 19 duty to Y at the beginning of December and decided it owed her a duty, and 15 hours of alternative provision would be suitable in line with Y’s needs at the time. This is based on:
• the Council’s actions to consult with providers and arrange alternative provision following the meeting;
• its communication with Ms X following the panel meeting; and
• its request to providers for 15 hours of provision over 10 weeks.
40. The Council offered Y provision at Centre 1 in December 2023. There is no record of how it considered the Centre was suitable. On balance the Centre was not suitable for Y’s needs based on Ms X and Y’s experience and because the Council went on to arrange different provision. The Council arranged two hours of provision from the end of February 2024 onwards. Two hours was well short of the 15 hours it decided Y needed and so was not suitable. That was fault.
41. Taking in to account the school holiday in December, the faults identified above caused Y to miss 15 hours of suitable provision per week between January and the end of February 2024, and 13 hours of suitable alternative provision per week between March and July 2024. The faults also caused Ms X distress and frustration and impacted on her ability to work as she had to stay at home for Y. Although we cannot make findings on loss of earnings, I have recommended a symbolic payment to Ms X for the injustice caused to her.
42. In a recent decision in a separate investigation we recommended the Council ensured it had robust processes in place to review provision delivered for children unable to attend school on a regular basis, including academic teaching and therapies unless there was clear professional advice this would not be in the interests of the child. I have therefore not made a similar service improvement recommendation in this case. We will continue to monitor this through our casework.

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Agreed action

43. Within one month of this decision the Council will:
1. Write to Ms X and apologise for the injustice caused to Y and her by the Council’s faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
2. Pay Ms X £2,100 for the alternative provision Y missed from January until July 2024. This takes into account that Y was in her first year of secondary education and the alternative provision the Council did provide. It is in line with our guidance on remedies. Ms X should use this money for Y’s benefit as she sees fit.
3. Pay Ms X a symbolic amount of £300 to recognise the uncertainty, frustration and distress the Council’s faults caused her.
4. Remind relevant officers of the importance of keeping clear, complete and contemporaneous records of its decision making when deciding if it has a duty to provide alternative provision to meet its duties under section 19 of the Education Act.
5. Remind relevant officers to ensure Team Around the Family (TAF) meetings are documented and recorded on the child’s case file. Officers will be reminded to keep minutes to accurately reflect the attendees, matters discussed, actions taken and to be taken, and any decisions made.
44. The Council will provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation. I found fault causing injustice and the council agreed to my recommendations to remedy that injustice and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman