Summary: Mrs M complains the Council failed to arrange alternative education for her daughter, G, when she became unable to attend school. The Council relied on G’s school to make a referral even though the Council’s inclusion service was aware of problems. The Council has not considered its duty to make alternative arrangements for G’s education despite knowing she has not attended school since March 2024. The Council has agreed to consider its duty and make a symbolic payment to acknowledge the impact of the delay.

The complaint

1. Mrs M complains the Council failed to arrange alternative education for her daughter, G, when she became 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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I have considered information provided by Mrs M and the Council. I invited Mrs M and the Council to comment on my draft decision.

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What I found

6. Mrs M’s daughter, G, started secondary school in September 2022.
7. By April 2023, G was struggling to attend school.
8. The Council’s Inclusion Service was involved in April and May 2023. The Inclusion Service provides support to schools, parents and young people in connection with non-attendance.
9. On 21 May 2024, Mrs M wrote to the Council and asked the Council to arrange alternative education for G. She explained G was suffering from ‘burnout’ and while she needed education, she could not cope with full-time tuition.
10. The Council responded to Mrs M’s letter on 5 June 2024 through its complaints process. The Council said:
• G’s school had been providing support;
• the Council’s Inclusion Service had provided ‘continuous guidance and support’ since becoming aware of problems in November 2023;
• the School had made a referral to A2E on 15 April 2024, but there was insufficient medical evidence of need. A2E provides alternative education for children who are unable to attend school; and
• the Council’s view was that G should be ‘reintegrating’ back to school and the Council did not have a duty to arrange alternative provision.
11. Unhappy with the Council’s response, Mrs M asked the Council to respond at the second stage of its complaints process. She explained the difficulty of getting further medical evidence due to long waiting times for assessments.
12. The Council responded on 9 July 2024. The Council said:
• the school was making ‘best endeavours’ to support G’s return; and
• the Council’s Inclusion Service was still investigating the reasons for G’s non-attendance and was considering whether prosecution was appropriate.
13. Unhappy with the Council’s response, Mrs M complained to us.

Education for children who do not attend school

14. Parents, schools and councils all have responsibilities to ensure children receive a suitable education.
15. The Council has a duty, outlined below, to arrange suitable education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
16. The Education Act 1996 says every council shall “make arrangements for the provision of suitable education at 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 such arrangements are made for them.” (Education Act 1996, section 19(1))
17. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs she may have. (Education Act 1996, section 19(6))
18. 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)
19. The Government has issued statutory guidance which Councils must follow unless they have good reason. (Ensuring a good education for children who cannot attend school because of health needs, issued by the Department for Education in January 2013)
20. Government guidance says Councils must work closely with schools to identify children who need the Council to make alternative arrangements for their education. Councils must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions.
21. The Local Government Ombudsman has issued guidance to councils on how we expect them 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? Ensuring children out of school a good education, published in July 2022)
22. In reaching a decision on whether a child is medically or otherwise unable to attend school, we expect councils to act quickly and (where necessary) consult the relevant professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of their evidence. 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.

My investigation

23. I asked the Council to send records of its involvement to show how and when it considered G’s individual circumstances and demonstrate how it made decisions. I asked for evidence the Council communicated its decisions to G’s parents, including any decisions that the arrangements made by G’s school were suitable.
24. The Council sent me case notes from November 2023 to June 2024. There were eleven entries. The notes show:
• G was following a reduced timetable in November 2023 and her attendance was 38%.
• Mrs M telephoned the Council to ask for help. G had not attended school for two weeks. The Council’s duty inclusion officer emailed Mrs M on 21 November 2023 with links to information about various emotion-based school avoidance resources.
• G’s case was discussed at a targeted support meeting in March 2024. G was not attending school. The Council advised the school to make a referral to the Council’s Inclusion Service.
• Six weeks later, in April 2024, the Inclusion Service visited G’s parents at home.
• Following the meeting, the Council emailed the school to ask what support it was providing.
• The school explained it had been working with the family since the summer of 2023. G’s parents were unable to get her to school, so the school was unable to help. The school had suggested the introduction of structured learning for G at home, beginning with resources such as BBC bitesize, but this had not been successful. The school said it was uncertain what to do next and intended to make a referral to A2E.
• The Council told the school it would write to G’s parents to say it expected G to attend school.
• In May 2024, Mrs M emailed the Council to say she had contacted charities suggested by the Council at the meeting in April but was no further forwards.
• There was a ‘planning meeting’ at school later in May, at which the Council noted the school was going to ‘chase’ the referral to A2E it had made in April.
• The final entry, dated 25 May, notes G is not engaging with online learning.

My findings

25. The Council does not appear to have:
• acted quickly; or
• clearly documented how it considered evidence and made decisions.
26. There appear to be significant periods of delay by the Council. For example, it was six weeks from the targeted support meeting where the Council noted G was not attending school before the inclusion service visited G’s parents. Government guidance expects councils to act (and possibly arrange education) when a child has been absent from school for 15 days.
27. The Council knew about problems in November 2023, yet the Council said the Inclusion Service was “still investigating the reasons for [G]’s non-attendance” in July 2024, eight months later.
28. I find the Council failed to act quickly. This is fault.
29. The Council was aware of G’s problems through the involvement of the inclusion service, but does not appear to have had any mechanism at the time to consider its duty to make alternative arrangements for her education until the school made a referral to A2E. The Council appears to have relied entirely on G’s school to make a referral. The Council appears to have seen its role as limited to providing “guidance and support”.
30. The Council’s decision to write to G’s parents following the meeting in April 2024 to say that G should be attending school makes no sense in light of the problems reported by G’s school. The school had told the Council G’s parents were unable to get her to school, and it was ‘uncertain what to do next’. There is no record the Council offered any solutions or support to the school.
31. I find the Council failed to consider G’s circumstances following the referral to the Inclusion Service. This is fault.
32. In the absence of any records showing how the Council considered the evidence and reached a decision that G’s school place remained accessible, and given the failure of the school’s efforts to secure her reintegration, I conclude on balance that the Council should have arranged alternative education for her much sooner. The Council’s failure to do so was fault.
33. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
34. The injustice to G is difficult to calculate. There is no formula I can use, and any recommendations I make are symbolic. They are not ‘compensation’.
35. The Council should have considered alternative provision long before Mrs M requested it in May 2024, and possibly in November 2023. It is difficult to say what provision should have been made. It seems unlikely G would have been able to participate in full-time education, but that does not detract from the importance of making alternative arrangements. It appears alternative provision would still have been necessary when Mrs M complained to us in July 2024.
36. I will recommend a remedy for the injustice caused by the Council’s failure to ensure G received a suitable education when she was unable to attend school. My recommendations are at the end of this statement.

Events since Mrs M complained to us

37. The Council completed an education, health and care (EHC) needs assessment and decided not to issue an EHC Plan for G. Mrs M appealed the Council’s decision. The Council changed its mind and has decided to issue an EHC Plan.
38. G remains out of school. The Council has offered online learning and proposed a referral to A2E, the medical needs tuition service. I understand Mrs M does not consider the support offered to be suitable and ‘declined’ a referral to A2E. She wants the Council to arrange equine therapy.
39. It appears that G’s case is now ‘stuck’.
40. In response to my enquiries, the Council acknowledged Mrs M has concerns about A2E, but said the only way for it to consider whether it has a duty to make alternative arrangements for G’s education was by a referral to A2E.
41. The Council told me a panel would then consider all the evidence, including the recommendations of the Educational Psychologist who provided detailed advice for G’s EHC needs assessment, and would always make decisions in the best interests of the child.
42. It is not clear to me whether the Council explained this to Mrs M.
43. In any event, I see no reason why the Council cannot make a decision about alternative provision for G. The Council has all the information it needs. Its failure to make a decision is fault.

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Agreed action

44. 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. When this is not possible, as in the case of Mrs M and G, we may recommend the Council makes a symbolic payment.
45. The Council accepted my recommendations.
46. Within two weeks of my final decision, the Council has agreed to decide whether it needs to make alternative arrangements for G’s education. The Council will write to Mrs M to explain its decision and the details of any provision the Council decides to make.
47. Within six weeks of my final decision, I the Council will:
• apologise for the faults I have identified;
• offer a symbolic payment of £4,000 to acknowledge the impact of those faults on Mrs M and G;
48. The Council will send evidence it has completed the above actions.
49. We can also make recommendations to ensure similar faults do not happen in the future. We have investigated other similar complaints recently and made recommendations. The Council produced an ‘action plan’ to address our concerns and has recently changed its procedures. I will not, therefore, make further recommendations, but I ask the Council to note that we expect it:
• to consider the individual circumstances of each particular child and be able to demonstrate how it made its decisions;
• act quickly; and
• clearly document decisions and communicate them promptly to parents, including decisions that a child’s school remains suitable.

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Final decision

50. I have ended my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman