Summary: Mrs X complained the Council failed to arrange suitable alternative provision for her child, W, when they stopped attending school. The Council was at fault. This caused Mrs X avoidable frustration, upset and uncertainty but we cannot say, even on balance, that it meant W missed out on education they should have had. To remedy Mrs X’s injustice, the Council will apologise and pay her £500. It will also issue a staff reminder to prevent the fault happening again.

The complaint

1. Mrs X complained the Council failed to arrange suitable alternative education when her child, W, struggled to attend school. In addition, Mrs X was unhappy the Council decided it would not assess W for an Education, Health and Care (EHC) Plan and about the actions of W’s school.
2. Mrs X said this caused her stress and affected W’s development and progress.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
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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What I have and have not investigated

7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. Mrs X is unhappy about matters dating back to 2022 but she did not complain to the Ombudsman until October 2024. I have seen no good reason why Mrs X could not have complained to us sooner so I will not investigate the whole period Mrs X complained about. My investigation runs from September 2023 to October 2024.
9. The law says we cannot investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter and has used that right. (Local Government Act 1974, section 26(6)(a), as amended).
10. I cannot investigate Mrs X’s complaint that the Council decided it would not assess W for an EHC Plan because she appealed that decision to the SEND Tribunal.
11. I cannot investigate Mrs X’s complaint about the school’s actions because we do not have the power to look at how schools provide education to pupils. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Alternative provision

14. 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 alternative provision.
15. 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
16. We made six recommendations. These included that councils should:

• 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; and
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

17. 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.

Early help

18. Statutory guidance “Working together to safeguard children” explains early help is a term used to describe a wide range of support available to children which is designed to help improve their family’s ability to cope with challenges they are experiencing. It can be led by a variety of professionals including people from the child’s local council, school, police and health workers.
19. One form of early help support is team around the family (TAF) meetings. These bring together professionals involved with children whose families need additional support. They consider what is working well and what is not working well, as well as what steps the child’s parent or professionals involved with the child need to take.

What happened

20. This section sets out the key events in this case and is not intended to be a detailed chronology.
21. By September 2023, W had stopped attending their school and instead went to a pupil referral unit (PRU) for alternative provision. The PRU is subdivided into units which use different approaches and student to teacher ratios to help children with a variety of needs.
22. In early September, the PRU put a short-term attendance support plan in place. This was a document which set out what Mrs X, the PRU and the Council thought was a suitable offer of education while W was unable to attend full-time. The plan noted W would go to one of the PRU units in the mornings only. They would not attend in the afternoon. This was a temporary solution until W was able to begin attending a different unit.
23. In mid-November 2023, W began going to the unit they had been waiting to attend, which focused on helping reintegrate children back into education. They were taught with a small number of other children. Not long after, an incident occurred with another child, which caused W distress and led to them stop going into the unit.
24. In response, the PRU began doing home welfare visits, where they spoke to W and tried to encourage them to attend.
25. At the end of the month, the PRU held a meeting with Mrs X. It agreed W would attend three times a week after which it would increase their hours at school and the days they attended for.
26. In early February 2024, the Council carried out an early help assessment. It heard W was not attending the PRU. The Council noted the PRU should consider whether to arrange for W to go to another alternative provision (provider A) which is designed to help children out of education re-engage with learning.
27. W began attending another unit at the PRU not long after, for three hours each week. The Council held a TAF meeting in early March 2024. It heard W was engaging well. The next meeting was due in late April.
28. W’s attendance reduced as they struggled to engage with the education on offer. As a result, the PRU arranged for W to have tuition instead. They began receiving tuition for four hours a week in late April 2024. They also had a session once a week to develop their social skills.
29. In late May, there was another TAF meeting which heard the PRU had developed a reintegration plan which covered late May to July 2024. It set out W would continue to have four hours of education over four days and one hour of social skills on the fifth day. They would start by having their provision entirely at home and each week they would have more of their lessons in the PRU. The Council did not attend the meeting.
30. In June, at Mrs X’s request, the PRU condensed W’s hours so they had them over three days only.
31. At the end of the month, the PRU met with Mrs X. They discussed that W was finding it hard to engage in school. Mrs X and the PRU agreed W should now have their lessons entirely at home with the option of coming into the PRU for each session. W was due to receive one hour of education every day.
32. The Council attended a safeguarding meeting in mid-July, with the PRU and other agencies involved with W. At that meeting, Mrs X said she wanted online education. She also said she felt W could access more hours at school. The Council decided the PRU would take over responsibility for the TAF meetings.
33. The PRU began doing welfare visits again in September 2024. To help W move to having their lessons in the PRU, it agreed to collect W from home and bring them to school. The aim was to reduce the barriers to their attendance, for a short period. Records show that the PRU came to collect W eight times, but they only came to school twice.
34. At the end of the month the PRU spoke to Mrs X and agreed W should have three hours of home tuition per week, over three days. On the remaining two days, the PRU would come to W’s home to encourage them to attend. The PRU said if that did not work in a few weeks it would look at online schooling. The Child and Mental Health Service (CAMHS), which was supporting W agreed with that proposal.
35. A few days later, the Council told the PRU that Mrs X had said she was unhappy with W’s education and noted that CAMHS had recommended provider A at one point. It suggested the PRU apply to the Council for interim funding so it could pay for the provision for a short time. The PRU responded to say it had decided on a blend of home tuition and online learning. It felt W would not engage with provider A since it was their last year in education and the provision was designed to reintegrate children back into school.
36. W started receiving online education in early October.

Findings

37. The Council accepts it owed W the duty to arrange alternative provision. To comply with that duty, the Council was required to ensure their provision was suitable for their needs, including that it was accessible to them and full-time unless they could not cope with full-time education. The Council was at fault in how it met its duty. I say this because:
• The Council was aware, in September 2023, that W had a short-term part-time attendance plan in place to help them reintegrate back into class. It did not consider whether W was receiving a suitable education again until February 2024, when it carried out the early help assessment.
• That assessment concluded the PRU should consider whether to arrange for W to attend provider A as another form of alternative provision. The Council did not follow up with the PRU to see if it had carried out that action until Mrs X told it she was unhappy with its actions in September 2024, seven months later.
• Following the assessment, the Council began holding TAF meetings, which considered what needed to be done to ensure W received a suitable education. TAF meetings should be held every six weeks. The period between the March and May 2024 meetings was eleven weeks. This was an unreasonable delay and meant the Council failed to have appropriate oversight over W’s part-time education.
• In addition, the Council did not attend the May meeting and there is no evidence it considered the minutes of the meeting, to decide whether W’s alternative provision at the PRU was suitable.
• The Council failed to have oversight of W’s part-time alternative provision between the March 2024 TAF meeting and the July safeguarding meeting.
• It then failed to consider what Mrs X said at the meeting (that she wanted W to have online education and that she felt W could attend for more hours at the PRU).
38. The faults meant Mrs X experienced avoidable frustration, upset and uncertainty. However, I cannot say, even on balance of probabilities, that had the Council not been at fault, it would have arranged additional or different provision for W or that W would have coped with additional provision. During the period I have investigated, W had a significantly reduced timetable and even so, struggled to access the education on offer. In addition, the PRU tried a variety of approaches to teach W and help them reintegrate back into lessons. The Council may have concluded the various steps the PRU was taking had a reasonable prospect of helping them return to lessons, which would have meant they had access to a suitable education.

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Action

39. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the frustration, upset and uncertainty she felt because of its failure to properly consider whether it had met its duty to arrange alternative provision for W. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay her £500 to recognise that injustice.
3. Remind staff that when a child is receiving part-time alternative provision, they should retain oversight of the part-time timetable to ensure the child’s education remains suitable for their needs.
40. The Council will provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman