Summary: Ms X complained the Council failed to provide Alternative Provision of education for her child, who was out of education from October 2023 to June 2024. We found fault with the Council failing to provide Alternative Provision of education for Ms X’s child from February 2024 to June 2024, totalling one term. We also found fault with the Council’s handling of Ms X’s contacts and complaints through delays outside the complaint timescales and failure to respond to contacts. The Council agreed to apologise to Ms X, pay her £100 for the avoidable inconvenience and frustration caused and £1,800 for her child's lost education.

The complaint

1. Ms X complained the Council failed to provide Alternative Provision of education for her child, who was out of education because of medical need, from October 2023 to June 2024.
2. Ms X also complained the Council failed to handle her complaint in a suitable manner or in line with its policies.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 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.
8. 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

Alternative provision of education

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. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
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. 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 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.

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.
16. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child has been excluded. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges alternative education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence. In other absences, there is no set guidance but the Council should arrange education without undue delay.
17. 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.

Council’s complaints process

18. The Council operates a two stage complaints process.
19. At Stage 1, the Council says its aims to provide a response within 15 working days of receipt.
20. If a person is dissatisfied with the Stage 1 complaint response, they can request consideration of their complaint at Stage 2. The Council says it aims to provide a response at Stage 2 within 20 working days of request.

What happened

21. Ms X’s child, who I shall refer to as Y, stopped attending school in October 2023.
22. In February 2024, Y’s school made a referral to the Council for medical tuition for Y because of Y’s absence from school. Y’s school confirmed Y had been absent from school for over six weeks by the date of the referral because of high levels of anxiety and emotional distress.
23. A Clinical Psychologist from the CAMHS service provided information to support the school’s referral. The Clinical Psychologist said they did not consider Y could attend school either part or full-time and recommended medical needs tuition for Y.
24. The medical needs tuition service contacted Ms X to confirm it had received a referral for Y four weeks later. The medical needs tuition service confirmed it was processing the referral and it would be in contact soon.
25. In March 2024, Ms X liaised with the medical needs tuition service. Ms X confirmed with the medical needs tuition service on she had accepted a place for Y at a new school setting. Ms X said Y needed tuition in place before this placement to help with the transition. The medical needs tuition advised there was a waiting list for tuition but they would be in contact soon.
26. At the end of March 2024, the medical needs tuition service confirmed it would be offering tuition for Y. The medical needs tuition service confirmed Y was third on the waiting list and could not provide an approximate timescale for tuition to start. The medical needs tuition service said that Y could attend some short courses and provided details of these to Ms X. Ms X said she would look over the courses and respond after the Easter break.
27. In April 2024, Ms X followed up with the medical needs tuition service to enquire about the situation with Y starting tuition. The medical needs tuition service responded to advise that Y was still third on the waiting list. The medical needs tuition service asked if Ms X had looked at the courses they are running this half-term. Ms X did not accept or decline the offer of the short courses.
28. In May 2024, Ms X asked the medical needs tuition service when tuition might start. The medical needs tuition service responded the same date to advise it would likely be the end of June 2024. Ms X told the medical needs tuition service that Y would be starting their new school placement in June 2024 on a reduced timetable and asked how tuition would fit in around this timetable.
29. Y started to attend the new school placement in June 2024.
30. Throughout June 2024, Ms X made several enquiries of the medical needs tuition service about provision for Y. Ms X spoke with the medical needs tuition service later on in June 2024 who said that its plan was to see how Y settled into their new school rather than providing tuition. The medical needs tuition service said Y’s new school would need to make a referral to it for tuition for Y if they wanted tuition for Y.
31. In July 2024, the medical needs tuition service spoke with Y’s new school and confirmed that Y was accessing school. Y’s school agreed with the medical needs tuition service that Y did not need input from the service.
32. Ms X made a formal complaint to the Council on 4 July 2024. Ms X said:
• Y was referred to the medical needs tuition service which accepted Y in March 2024;
• The medical needs tuition service confirmed to her that Y was third on a waiting list for tuition;
• Despite chasing up the medical needs tuition service, Y had received no education.
33. In July 2024, the Medical Needs Tuition Service told Ms X it would not be providing tuition for Y because Y had started receiving education at school in June 2024.
34. On 13 August 2024, the Council provided a Stage 1 complaint response to Ms X. The Council said:
• There is “no absolute legal deadline by which Local Authorities should arrange education for children with health needs”;
• It offered some short courses for Y for children who could not attend school but received no response about these;
• It told Ms X on three occasions one-to-one tuition would be available for Y in June 2024;
• Ms X told the medical needs tuition service that Y was starting at a new school placement in June 2024. It was agreed by the CAMHS clinician to see how Y settled into this provision before taking further action;
• Since Y settled into the new school placement, the CAMHS clinician recommended no input from medical needs tuition;
• It offered provision to Ms X for Y’s education but this was not taken up and, following Y starting their placement at school, medical advice determined the one-to-one tuition was no longer needed.
35. On 15 August 2024, Ms X sought consideration of her complaint at Stage 2 of the Council’s complaints procedure. Ms X queried how tuition was offered given the short courses were not a solid educational offer that covered educational material as part of a school curriculum. Ms X said Y went without education from October 2023 until June 2024 and the medical needs tuition service failed to provide any provision despite promises to do so.
36. Ms X chased the Council for a response to her complaint on 14 September 2024.
37. On 16 October 2024, the Council issued a Stage 2 complaint response to Ms X. The Council said:
• It provided a response to Ms X’s Stage 1 complaint two weeks outside its complaint timescales and apologised for this delay.
• It failed to send a response to Ms X following her request for a Stage 2 complaint response and apologised for this.
• It did not find fault with the way in which the Medical Needs Tuition service handled Y’s referral for Medical Needs tuition.
• It did not provide Y with tuition because Y started at a new school and Y’s clinical team confirmed Y no longer needed tuition.

Analysis

Provision of education

38. It is not the role of the Ombudsman to investigate the actions of a school. I also could not find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school.
39. Y stopped attending school in October 2023 but neither the school nor Ms X told the Council about Y’s stop in attendance until February 2024. I cannot find the Council at fault for failing provide education to Y before this date.
40. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness, the Council must intervene and make such arrangements itself. When a child is absent because of a medical issue, government guidance recommends the Council intervenes to provide education when it is clear a child will be absent for more than 15 school days.
41. When Y’s school made the referral to the Council’s medical tuition service, Y had already been absent from school for 15 school days. This meant the Council should look to arrange Alternative Provision of education as soon as possible for Y. While there was no legal deadline for this, the guidance is that this education should be provided from the latest of the sixth day following the referral on in February 2024.
42. The Council accepted it owed a Section 19 duty to Y to provide Alternative Provision of education but failed to provide any tuition for Y for their entire time out of education. This was fault.
43. The Council should have provided education for Y from the sixth day of absence following the referral. This was in the school half term so the Council could only have realistically started to provide education from 19 February 2024.
44. Y started at a new school in June 2024, immediately following the summer term half-term. Once Y started at the new educational placement, the Council decided it did not need to provide Alternative Provision of education for Y. The Council made this decision after speaking with Y’s new school and understanding the reintegration plans in place for Y. The Council was entitled to make this decision and it is not one I would find fault with.
45. 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 consider factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
46. The Council failed to provide Alternative Provision of education for Y from 19 February 2024 until June 2024. This amounts to one full term of missed education.
47. I have considered Y’s individual circumstances and our guidance on remedies. This includes consideration of the failure by the Council to provide any formal education to Y. However, it is notable the Council’s medical tuition service did offer some short courses for Y which Ms X chose not to take up. While this is not a replacement for formal Alternative Provision of education, this does mitigate the full fault by the Council as it made some offer of education available. I consider, the Council should pay Miss X £1,800 for Y’s missed education.

Complaint handling

48. Ms X regularly contacted the Council’s medical tuition service from February 2024 to July 2024. I have not detailed the full contacts from Ms X in this decision statement. From the evidence of contacts, it was clear the Council’s medical tuition service did not respond to all Ms X’s contacts which required Ms X to chase for a response. This was poor service from the Council and was fault.
49. When Ms X raised a complaint with the Council on 4 July 2024, it had until 25 July 2024 to provide its Stage 1 complaint response in line with its complaint timescales. The Council only provided its response on 13 August 2024 which was 13 working days outside the complaint timescales. This was fault.
50. Similarly, the Council failed to meet the deadline for provision of a Stage 2 complaint response. Ms X raised a request for a Stage 2 complaint on 15 August 2024 meaning the Council had until 12 September 2024 to provide a response in line with its complaint timescales. The Council provided its response 23 working days outside the complaint timescales on 16 October 2024. This was fault.
51. Overall, the Council delayed by 36 working days, just over 7 weeks, outside its complaint timescales in handling Ms X’s complaints.
52. The Council’s delays and poor customer service will have caused Ms X inconvenience and frustration. We recommend the Council apologises to Ms X and provides her with a payment of £100 for the avoidable inconvenience and frustration caused.

Free school meals

53. Prior to Y’s stop in attendance at school in October 2023, Y received free school meals. The responsibility to provide free school meals to children at school lies with the school itself.
54. However, when a child is not attending school because of medical reasons or otherwise, and the Council accepts the child is accessing Education Otherwise Than At School, the Council should consider if a child should receive free school meals. There is no specific provision in the Education Act 1996, but government guidance issued in March 2024 details that council should consider providing free school meals to certain pupils in receipt of Education Otherwise Than At School.
55. It is up to a council to make a case by case decision based on the circumstances involved for a particular child. The Council did not consider the provision of free school meals for Y in this matter meaning Ms X has covered the cost of these meals during Y’s absence from school. I recommend the Council considers the circumstances of Y’s absence from school and prior entitlement to free school meals and decide whether to provide a backdated payment or food voucher for Y’s time out of education.

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Action

56. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology and a payment of £100 to Ms X for the avoidable inconvenience and frustration it caused her through complaint handling delays and poor customer service.
• Provide a payment of £1,800 to Ms X for the Council’s failure to provide suitable Alternative Provision of education for Y for one full term.
• Considers the circumstances of Y’s absence from school and prior entitlement to free school meals, and decide whether to provide a backdated payment or food voucher for Y’s time out of education to cover the missed free school meals.
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. There was fault leading to injustice. As the Council has agreed to my recommendations, 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