Summary: Mrs Y complained the Council failed to provide her child, Z, with a suitable full-time education and about its communication failures. We have found fault, causing injustice, by the Council in: failing to properly consider its duty to, and provide Z with a suitable full-time education, and its delay making alternative provision in the period from November 2023 to May 2024; and its communication failures. The Council has agreed to remedy this injustice by: apologising, making payments to reflect the upset caused and the impact of the missed provision.

The complaint

1. Mrs Y complains the Council failed to provide her child, Z, with a suitable full-time education from November 2023 when they attended school on a part-time timetable only, and then from May 2024, when they stopped attending school altogether.
2. She says the Council delayed making alternative provision for Z, and when this was made, it was insufficient to provide Z with a suitable full-time education. There were also failures in the Council’s communication.
3. Mrs Y says, because of the Council’s failures, Z barely accessed education for over a full school year. This has had an impact on Z’s wellbeing and their family life, and the type of educational provision Z may be able to access going forward; and
4. She wants the Council to ensure suitable full-time alternative provision is in place for Z and address the harm its failures have caused Z and the family.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
6. 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)
7. 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)
8. 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

Z’s educational provision from 15 May 2024

9. I have not investigated Mrs Y’s complaint the Council failed to provide Z with a suitable full-time education and alternative provision after 15 May 2024. This is when the Council issued Z’s final Education Health and Care (EHC) Plan naming their current school as their placement and setting out Z’s special educational needs (SEN) and provision in section F, which was to be delivered through the school.
10. This is because:

• The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision;
• The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207); and
• This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

11. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
12. Mrs Y had the right to appeal against the Council’s decisions in Z’s EHC Plan from 15 May 2024. She exercised this right in July 2024 when she appealed to the Tribunal against the naming of their current school as Z’s placement in section I and their SEN and provision in sections B and F of the Plan. She asked for Education otherwise than at School (EOTAS) to be named as Z’s educational provision in place of the school.
13. In my view, Z’s non-attendance at school is linked to Mrs Y’s disagreement about the educational placement, SEN and provision set out in the final EHC Plan issued on 15 May 2024. On this basis we cannot investigate her complaint about a lack of alternative provision for Z from May 2024.
14. I have investigated Mrs Y’s complaint the Council failed to make suitable educational provision for Z from November 2023, when they stopped attending school full-time, until the final EHC Plan was issued in May 2024.

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How I considered this complaint

15. I considered evidence provided by Mrs Y and the Council, as well as relevant law, policy and guidance.
16. Mrs Y 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

What should have happened

Alternative provision – the section 19 duty

17. 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.

Our guidance

18. 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
19. We made six recommendations. These were 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;
• 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.

The Virtual School

20. The Children and Families Act 2014 requires councils to have a virtual school head who monitors looked-after children, previously looked-after children and children with a social worker as if they were in one school (the virtual school).
21. The virtual school (VS) has a duty (under the Children Act 1989) to promote the educational achievement of previously looked-after children by providing information and advice to:

• any person with parental responsibility for the child;
• providers of funded early years education, designated teachers for previously looked-after children in maintained schools and academies; and
• any other person the council considers appropriate for promoting the educational achievement of relevant children.

What happened

22. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Background

23. Z had been struggling to attend school for some time.
24. In September 2023 Mrs Y contacted the VS (Z is a previously looked-after child), to ask for support with Z’s educational arrangements and difficulties attending school.
25. The VS had a meeting with Mrs Y in early October 2023 to discuss the situation. It was agreed there should be a team around the family meeting with the school.
26. The reasons for Z’s struggles attending school were discussed at this meeting on 18 October.

November 2023: Part-time timetable

27. Mrs Y had a further meeting with the school on 8 November. Before the meeting, the VS advised Mrs Y to explore a part-time timetable for Z as support for their mental health with regular reviews. It also advised they consider whether alternative provision was required to supplement this, if Z was unable to return to a full-time timetable.
28. Mrs Y and the school agreed Z would attend school on a part-time timetable with a review in two weeks. Mrs Y reported this back to the VS.
29. The VS had discussions with the school about Z’s educational arrangements on 13 November. The records say they explored additional funding, access to outreach services and options for alternative provision if there was no progress from the part-time timetable.
30. Mrs Y had a further meeting with the school on 23 November. Mrs Y asked for alternative provision for Z. The school said there had been some improvement with Z’s engagement and the part-time timetable would continue with a further review on 4 January 2024.
31. Mrs Y says she spoke to the VS about alternative provision to support Z’s social emotional and mental health needs. She understood it would consult with the Council’s school inclusion service but heard nothing further about this.

January 2024: Mrs Y’s further request for alternative provision

32. Mrs Y contacted the VS on 9 January about her request for alternative provision on 23 November 2023 and its agreement to investigate additional support and provision. She asked it to contact her to discuss the next steps.
33. On 11 January VS recorded its advice to the school to refer Z to the Council’s Educational Entitlement Board as there was a possible need to secure alternative provision for Z. It noted progress with the part-time timetable was too slow and Z had not received a full-time education since November 2023.
34. The school asked the Council for alternative provision for Z on 11 January. The request was recorded by the school inclusion service on 25 January.

Request for an education health and care needs assessment

35. A request for an assessment of Z’s education health and care (EHC) needs was made to the Council on 5 January 2024.
36. The Council told Mrs Y on 31 January it would carry out this assessment.

Council’s response to the request for alternative provision

37. The Council took the following action in response to the request:

• 26 January 2024: A manager considered the request. They decided Z did not need alternative provision because they were attending school and interventions to support them were in place. There was no evidence Z was unable to attend school due to illness, and, with appropriate adaptations, the school could provide them with a suitable education. They recommended the school seek further advice from the Education Entitlement Board (EE Board);
• 29 January 2024: A referral, with comments from the school and VS, was submitted to the school inclusion service, for consideration at the next EE Board meeting on 22 February;
• 22 February 2024: The EE Board considered the referral. They decided the school was able to provide Z with a suitable education. But as it was currently only offering Z a part-time timetable, it should be supported to commission alternative provision in the afternoons to increase the hours of education Z was accessing. The school should identify the appropriate provision; and
• 29 February 2024: The Council informed the school about the EE Board’s decision. It says it expected the school to come back to it with a plan and costings, but it heard nothing from them about this.

March to May 2024: Further contact about alternative provision

38. The school inclusion service met with the school on 12 March to discuss Z’s attendance. The school said it planned to increase Z’s timetable. It was agreed the existing support plan should continue.
39. On 22 April Mrs Y contacted the Council again about her request for alternative provision for Z. She said she was still waiting to hear about this and had had no contact from the VS.
40. On 10 May the school contacted Mrs Y about alternative provision providers.
41. On 14 May Mrs Y told the Council Z was now refusing to attend school at all and said they would not go back. She asked the Council to expedite the alternative provision.
42. On 17 May the VS told Mrs Y Z’s alternative provision (of six hours a week) would start after the next half-term.
43. On 22 May Mrs Y asked the VS to contact her to discuss this. She said if Z could not be encouraged to return to school, additional provision would be needed as the six hours of provision a week currently arranged would not be enough.

15 May 2024: Issue of the final EHC Plan

44. The Council had decided, on 24 April 2024, to issue Z with an EHC Plan. It sent the draft plan to Mrs Y on 1 May.
45. On 15 May the Council issued Z’s final EHC Plan naming Z’s placement as their current mainstream school with the SEN provision in section F being delivered by the school.

June 2024: Alternative provision starts

46. Mr Y contacted the VS on 5 June. He asked for a call to discuss Z’s alternative provision as Z had not attended school for a month now.
47. The VS spoke to Mrs Y on 6 June. She asked for more alternative provision for Z. She said the six hours of alternative provision commissioned when Z was attending school five mornings a week was not enough now Z was not attending at all. Mrs Y says she heard nothing further from the VS about this.
48. The alternative provision of six hours a week started on 11 June.

July 2024: further contact with the VS and Tribunal appeal

49. On 2 July Mrs Y submitted an appeal against Z’s SEN and provision in sections B and F of the final EHC Plan issued on 15 May, and the placement named in section I. She asked for EOTAS to be put in place for Z instead.
50. The VS had a catch-up call with Mr Y on 4 July. It says it sent them an email on 10 July and has had no contact from the family since then.

Mrs Y’s complaint to the Council

51. Mrs Y complained to the Council on 1 July about:

• its failure to provide Z with a full-time education, their SEN provision, and alternative provision; and
• poor service and communication failures by the VS.

52. The Council said, in its complaint response:
1. regarding alternative provision:

• it accepted there had been a delay responding to Mrs Y’s request for alternative provision. There had been communication failures and delays moving Z’s case forwards and considering appropriate support. This led to a delay in making the alternative provision. Had this been arranged more quickly, it may have helped prevent a deterioration in Z’s attendance;
• it had failed to keep the initial provision of six hours a week under review. This was reasonable at the start, but could have been increased if working; but
• the duty to provide alternative provision was not apparent, and the legal duty to do so did not arise, until after 14 May 2024 when Z stopped attending school. It also said it was the school’s responsibility to support Z’s return to full-time education.
2. regarding the VS:
• its role was to respond to requests for advice and information from parents and schools. But it could not source alternative provision or oversee other council services; and
• it had generally responded promptly to the family’s contact. But the Council accepted there had been some communication failures on occasion. It apologised and said it would review the communication process.
3. as a remedy it:
• apologised for its failings;
• offered to pay Mrs Y £500 to acknowledge the upset caused; and;
• £600 for loss of provision from 14 May 2024 to 18 July 2024.

53. Mrs Y was not satisfied with the Council’s response and brought her complaint to us in November 2024.

My decision – was there fault by the Council causing injustice?

Failure to provide Z with a suitable full-time education

54. I have looked at whether the Council properly considered its duty to make suitable educational provision for Z during the period from November 2023, when they stopped attending school full time, until 15 May 2024 when it issued the final EHC Plan, giving Mrs Y appeal rights.
55. The Council has accepted, and I agree, there were delays and failings by the Council in considering Mrs Y’s request for alternative provision for Z, which she first made in November 2023. I note:

• the Council knew, in November 2023, Z was currently missing out on 50% of their education because they were on a part-time timetable;
• Mrs Y was concerned about the missed education and asked the Council in November 2023 to make alternative provision for Z; and
• it knew Z was still on a part-time timetable in January 2024.

56. But there is no evidence the Council and its school inclusion service, considered the concerns about Z’s part-time school attendance until late January 2024.
57. I don’t agree the Council’s duty to consider, and if appropriate make, alternative provision for Z did not arise until they stopped attending school altogether in May 2024.
58. Our guidance (see paragraphs 18 & 19) says councils should consider the individual circumstances of each case and that they may need to act whatever the reason for absence, keep all cases of part-time education under review, and work with parents and schools to draw up plans to reintegrate children back to education as soon as possible.
59. My view is the Council should have considered its duty to make alternative provision for Z as soon as it knew they were now on a part-time timetable and kept this under review.
60. Its failure to properly consider its duty to arrange alternative provision for Z before the end of January 2024 was fault. I have considered the impact of this below.
61. And once the Council decided alternative provision should be put in place for Z, there was a delay in arranging this. The provision did not start until June 2024, nearly four months later. By this time Z was not attending school at all and needed more than the provision of six hours a week initially agreed.
62. I appreciate the Council asked the school to arrange Z’s provision. But it did not monitor this or follow it up when it did not hear back from the school.
63. It is the Council’s duty to ensure a child has full-time suitable education. Its failure to put alternative provision in place promptly following the EE Board’s decision was fault. I have considered the impact of this below.

Impact of the failures in considering and making alternative provision

64. In my view, had the Council properly considered its duty to make alternative provision for Z from November 2023 onwards, it is more likely it would have decided in around mid-January it should make alternative provision for Z because they were still only attending school part-time.
65. And had the Council followed up this decision this up promptly, I consider the provision of six hours a week should have been in place by mid-February 2024.
66. Because of Council’s faults, Z missed out on this provision from mid-February to mid-May 2024, when the EHC Plan was issued.
67. 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 take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
68. In this case, taking into account the part-time education Z was still receiving at school during this period, I consider the payment should be at the lower end of the range.
69. This failure also caused Mrs Y and her family worry and uncertainty about the arrangements for Z’s education after they stopped attending school full-time in November 2023.

Communication failures

70. The Council has said the VS is a consistent point of contact and support but is not the decision-making body for arranging and delivering alternative provision. There is a distinction between its advisory role and the responsibilities of other teams to deliver education.
71. But it has accepted, and I agree, there were some communication failures by the VS. It failed to keep Mrs Y informed of action being taken regarding her request for alternative provision.
72. The Council’s school inclusion service also failed to keep Mrs Y updated about its process and decisions about Z’s alternative provision. It did not tell Mrs Y about the EE Board’s decision in February. Mrs Y had to chase the Council for an update on 22 April. But even then, she does not appear to have received any response until the school contacted her about provision providers in May.
73. These communication failures caused Mrs Y frustration and uncertainty about the arrangements for Z’s education.

Proposed remedies

74. The Council has already offered to pay Mrs Y £500 to acknowledge the upset caused by its delays and failures. I consider this meets the expectations in our published guidance about a remedy to reflect upset caused by a council’s fault.
75. I also note its offer to make a payment of £600 as a remedy for Z’s lost provision from May to July 2024. As I am not looking at the period from 15 May 2024 I do not propose to comment on this offer. I have made a recommendation about a payment for the impact of the missed education in the period from February to May 2024.

Service improvements

76. The Council has agreed to make the following service improvements in response to two recent decisions by us on similar complaints about alternative provision:

• share the findings of the Ombudsman's investigation and our focus report "Out of school, out of sight?" with relevant officers. This is to highlight good practice and to emphasise the Council should consider its section 19 duty however it is notified about a child's absence;
• take into account our focus report when reviewing its policy on alternative education; and
• consider adding to its policy a timescale for actions to avoid drift and delay.

77. On this basis I don’t propose recommending any additional service improvements at this stage.
78. The Council also told us that, in response to the draft decision, it has introduced a new Alternative Provision panel which meets weekly to enable more timely decisions and clearer lines of accountability. And the Virtual School has reflected on the learning from Mrs Y’s complaint and:

• strengthened internal processes to ensure that children in reduced or alternative provision are better tracked;
• improved communication protocols with families to clarify the limits of its remit and the role of other services; and
• contributed to multi-agency planning and escalation procedures to prevent similar breakdowns in future

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Action

79. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y for its failure to properly consider its duty to, and provide Z with a suitable full-time education, and its delay making alternative provision in the period from November 2023 to May 2024, and its communication failures, This apology should be in line with our guidance on Making an effective apology:
2. pay Mrs Y, on Z’s behalf, £900 (based on two half school terms between mid-February and mid-May 2024). This is a remedy for Z’s benefit to recognise the injustice the missed education has caused them:
3. pay Mrs Y £600 for Z’s lost provision from May to July 2024, as it offered to do in its complaint response and if it has not already done so: and
4. pay Mrs Y £500, as it offered to do in its complaint response and if it has not already done so, to reflect the upset, frustration and uncertainty caused by its failures. This is a symbolic amount based on our guidance on remedies
80. The Council should provide us with evidence it has complied with the above actions.

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Decision

81. I find fault causing injustice. The Council has agreed to take the above action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman