Summary: Mrs X complained the Council failed to arrange alternative educational provision for her child (Y) when they were unable to attend school due to illness. The Council was at fault for failing to consider alternative educational provision between September and December 2023 when it became aware that Y was not attending school. The Council has agreed to make a payment to recognise the distress, frustration and uncertainty this caused.

The complaint

1. Mrs X complained the Council failed to arrange alternative educational provision for her child (Y) when they were unable to attend school due to illness. Mrs X says this means Y missed out on suitable educational provision which has caused them uncertainty and distress and impacted Y’s academic development and well-being.

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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. 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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What I have and have not investigated

5. 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). Some of Mrs X’s complaint is late as she says Y has not received alternative educational provision since December 2022 but did not complain to us until November 2024, two years later. I have exercised discretion to investigate and remedy the period from September 2023. It was reasonable for Mrs X to complain to us earlier about matters before September 2023.

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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. 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

8. 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.
9. 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)
10. There is no absolute legal deadline by which local authorities must start to arrange education for children with additional health needs. However, as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the local authority should arrange suitable alternative provision. The 15 days may be consecutive or over the course of a school year.
11. 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
12. 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.

What happened

13. Mrs X has a child Y who was on roll at a secondary school. Y has anxiety which prevented her from attending school. The records show that Y was marked as absent due to illness from December 2022 to the end of the school year. The following school year Y was marked as absent due to illness for the whole autumn school term (September-December 2023).
14. Prior to this, the records show between October 2022 and February 2023 Mrs X was open to Early Help. Early Help is when the Council provides support to potentially vulnerable children, young people and their families as soon as problems begin to emerge, or when there is a strong likelihood that problems will start in the future. There is a record from October 2022 which shows the school contacted Early Help to say it was worried about the family, Y’s anxiety had increased and they had not attended school on Monday and Tuesday for three consecutive weeks.
15. There is also a record from February 2023 where the school said Y has not attended school since Christmas despite plans being in place at the last Team Around the Family (TAF) meeting. The school said it had a meeting with the Outcomes Advisor from the Local Authority Team that week and it would raise Y’s attendance. The same month, Early Help was closed to the family as the family was struggling to engage.
16. In January 2024, Y started at a new school and her attendance rate was 95% for the rest of the school year.
17. In August 2024, Mrs X made a stage one complaint that the Council had failed to provide suitable alternative educational provision until January 2024. She said during this period she incurred significant costs in obtaining suitable support for Y.
18. In September 2024, the Council issued a response not upholding the complaint. The Council said no issues around Y’s attendance were flagged with the Council’s Education Directorate by the school or by Mrs X. Therefore, the Council said it would not have known to consider whether it needed to arrange S19 provision for Y. The Council said it expects schools and/or families to raise any absence concerns with it, so the Council can consider if support is required and whether it needs to consider arranging alternative provision for a child.
19. The same month Mrs X requested her complaint be escalated to stage two. The Council issued a stage two response in October 2024 reiterating its stance in the stage one response.
20. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.

Council’s response to our enquiries

21. The Council said it is usual for Early Help to have conversations with schools around attendance, and it will alert the Education Directorate if there are any concerns, discussions, or escalations needed. The Council said no concerns had been shared about Y during catch ups between Early Help and the school.
22. The Council said it has appropriate systems and processes in place regarding attendance information. The Council said it continues to remind schools to alert the Council when children have severe absence, 10 day unauthorised absence and part-time timetables. It also holds regular meetings with the school to discuss all pupils who are severely absent and any other pupils that schools identify as a concern who they would like further support with.
23. The Council said following Mrs X’s stage one complaint it held a meeting with the school to discuss its duties regarding absence, health needs, reasonable adjustments and section 19.

My findings

24. The Council said it did not consider its section 19 duty as no issues around Y’s attendance were raised with the Council’s Education Directorate by the school or by Mrs X. However, the Early Help records show the Council were previously involved with the family and attendance concerns had been raised. Therefore, the Council was aware Y was not attending school and it should have considered whether to put alternative provision in place between September-December 2023. Not doing so was fault. I cannot say Y would have received alternative provision had the Council considered its section 19 duty towards Y but it has caused Mrs X distress, frustration and uncertainty about the matter.
25. We have found similar fault with the Council on a separate case. We have recommended the Council creates an action plan to address how it will improve internal processes and communication when considering its Section 19 responsibility and making the necessary arrangements to put alternative provision in place in a timely manner. Therefore, a further service improvement is not required.

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Action

26. Within one month of the final decision, the Council has agreed to take the following action:
1. Apologise to Mrs X to recognise the distress, frustration and uncertainty caused by its failure consider its section 19 duty. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Pay Mrs X £200 to recognise the distress frustration and uncertainty caused by its failure to consider its section 19 duty between September and December 2023
27. The Council should provide us with evidence it has complied with the above actions.

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Decision

28. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman