Summary: Ms X complained the Council failed to provide suitable education for her child since September 2023. We found fault with the Council failing to provide suitable education for Ms X’s child from 22 November 2023 to 3 July 2024. The Council agreed to apologise to Ms X and pay her £3,600 for her child’s missed education. The Council also agreed to pay Ms X £150 for the avoidable distress and inconvenience the Council’s fault put her to. The Council agreed to provide guidance and training to staff about the importance of alerting the relevant department if a child’s is absent from school for more than 15 days and about timeliness in arranging Alternative Provision of education.

The complaint

1. Ms X complained the Council failed to provide suitable education for her child since September 2023 when medical advice was available to the Council that her child needed Alternative Provision of education.
2. Ms X says the Council agreed to provide Alternative Provision of education in July 2024 but delayed starting this provision.
3. Ms X also complained the Council declined a request for an Education, Health and Care Plan needs assessment.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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.
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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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)

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What I have and have not investigated

10. I have investigated Ms X’s complaint about the failure to provide Alternative Provision of education for her child since September 2023. While Ms X only brought her complaint to us in January 2025, I have exercised my discretion to September 2023. This is because complaint handling delays by the Council prevented Ms X bringing her complaint to the Ombudsman sooner.
11. I have not investigated Ms X’s complaint the Council declined to assess her child for an Education, Health and Care Plan needs assessment. This is because declining to assess a child for an Education, Health and Care Plan needs assessment has an appeal right to the SEND Tribunal. It was appropriate for Ms X to exercise this appeal right, which she did resulting in an agreement to completed an Education, Health and Care Plan Needs Assessment in October 2024.

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How I considered this complaint

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

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What I found

Rules and regulations

14. Section 436 of Education Act requires councils to identify children not receiving an education.
15. The Council has a general responsibility to ensure they have policies and procedures in place to enable it to effectively track if children are in education and enquiry systems in place to ensure school and other agencies can make referral about children missing education.
16. Regulation 12(1)(a) of the Education (Pupil Registration) (England) Regulations 2006 was applicable at the time of the matters relating to this complaint. This regulation said that a child’s school has a duty to provide to the local authority, at agreed intervals, the full name and address of any pupils of compulsory school age who are not attending school regularly (including due to their health needs). Local authorities should have efficient and effective system and process to alert them to any pupils with long term absences.

Council policy

17. The Council’s policy, active at the time of this complaint, detailed that a school should advise the Council if a child has been absent from school due to illness for a period in excess of 15 days. A school can then consider a request for support for that child from the Council. The Council said it would assess any sickness absence request for support on receipt.
18. The Council’s policy says a school is required to submit a Sickness Absence Return to the Council if a pupil is recorded as absent, or there is reasonable to believe the pupil will be absent, for 15 consecutive days. The Council says the responsibility for notification lies with the school.
19. The Council’s policy says it does not need to become involved in arrangements for a child’s education unless it believes the education provided by a school is unsuitable. The Council notes that children who cannot attend school for 15 days, whether consecutive or cumulative, should have there educational needs identified and appropriate provision put in place.

Alternative provision of education

20. 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.
21. 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)
22. 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))
23. 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)
24. 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
25. 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;
• consider (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.

26. 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.
27. 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 is absent for non-medical reasons. 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.
28. 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 complaints policy

29. The Council operates a two stage complaints policy, which it handled Ms X’s complaint under.
30. At Stage 1 of its complaints process, the Council says it aims to respond to a complaint within 10 working days of receipt. If this is not possible, it will issue a response within a further 10 working days.
31. If a person is dissatisfied with a response at Stage 1 they can request consideration of their complaint at Stage 2. At Stage 2 the Council says it will provide a response within 30 working days.
32. The Council says if the outcome of the Stage 2 response is that the council failed to properly consider a complaint at Stage 1 it may refer the complaint back to the relevant service to reconsider and respond. The Council places no timescales on this response from the relevant service.

What happened

33. In September 2023, Ms X’s child, who I shall refer to as Y, started Year 10 of school. Y experienced sporadic attendance at school until 19 October 2023 when Y stopped attending entirely.
34. On 22 November 2023, a meeting took place between Y, Y’s school and a council social worker. The meeting notes confirm Y was not attending school. Y’s school and the social worker discussed potential plans for Y if she returned to school or provision of online learning through Tute. Y confirmed they did not want to return to school but still wanted an education. At the time of this meeting, the Council social worker had available to them a referral from Y’s GP to RISE for mental health and wellbeing support for Y.
35. In December 2023, RISE said Y’s school attendance had been impacted by Y’s neurodiversity and bullying. RISE noted that Y’s school had a plan in place for Y’s education which would include provision of online learning with a view to reintegrating Y into school. RISE signposted Y for counselling who was placed on a waiting list.
36. Y’s school provided a laptop for Y on 8 January 2024 so she could access online learning.
37. On 9 January 2024, Ms X contacted the Council to complain about Y’s school and bullying towards Y at the school. Ms X detailed in this complaint that Y had not attended school since September 2023. Ms X said Y’s school have failed to send work home as promised and the online learning was heavily reduced compared to education in school.
38. The Council liaised with Ms X about the situation and formally responded to Ms X’s contact on 23 January 2024 to advise it cannot investigate complaints about schools. The Council did not make a decision about whether Y’s school was suitable and accessible or look to review the suitability of the provision on offer by the school for a child it knew was absent from school.
39. On 14 March 2024, Ms X made an EHC Needs Assessment request to the Council. Ms X reiterated that Y was out of school. Ms X included a report from a Specialist Advisory teacher within this application which detailed that it was highly likely Y would not be able to attend the current school any longer.
40. Y’s school provided input for Y’s EHC Plan Needs Assessment application in March 2024. Y’s school detailed the support it had put in place for Y since 2021. Y’s school also confirmed that Y had not attended school since 19 October 2023 because of high anxiety levels.
41. On 19 April 2024, the Council declined to carry out and EHC Plan Needs Assessment of Y. The Council said Y’s school had followed the correct process and Ms X could apply for different school placements for Y without an EHC Plan.
42. On 16 May 2024, Y’s school made a formal request for Flexible Learning Provision from the Council. Y’s school failed to provide any medical evidence as part of this application. The Council liaised with Y’s school about the information it needed.
43. Ms X contacted the Council on 5 June 2024 to advise Y remained out of school without formal education. Ms X said Y was not attending because of anxiety and had provided medical evidence to the school in 2023.
44. The Council spoke with Ms X and Y’s school in June 2024 and sent a copy of a medical referral form to Ms X on 18 June 2024. The Council apologised for the delay sending this medical referral form to Ms X.
45. Y’s GP contacted RISE on 19 June 2024 to ask them to sign the flexi-learning application forms for Y. RISE responded to advise it needed to wait for a clinician to be assigned to Y before it could sign the forms and Y was still on a waiting list. Because of this response, Y’s GP wrote a letter on 2 July 2024 confirming that Y was still waiting on home learning as recommended by RISE in December 2024 but could not get the relevant forms signs because Y was still waiting on counselling. Y’s GP said Y needed home schooling.
46. On 3 July 2024, the Council told Ms X it had received no evidence to show that Y was too unwell to attend school or that Y’s school cannot establish reasonable adjustments to meet Y's needs. The Council said it considered responsibility lay with Y’s school to provide education for Y. The Council said it would reconsider its decision if Ms X could provide more information or evidence.
47. Ms X provided further information to the Council over the following days. One piece of information the GP letter dated 2 July 2024 and the other was the recommendation from RISE for “home learning to be provided by school” for Y which was within a letter from December 2023 but not made available to the Council sooner.
48. On 11 July 2024, Ms X made a formal complaint to the Council. Ms X said:
• Y had stopped attending school since September 2023 because of anxiety.
• Y’s GP wrote to the school but it could not reintegrate her despite a meeting with a council social worker in November 2023.
• She raised her concerns with the Council in January 2024 but it advised this was a school matter.
• The online provision put in place by Y’s school could be rarely accessed because of technical issues with the laptop.
• She paid for 3 hours of tuition each week for Y because of lack of education.
• The Council needed medical information to support Y’s absence which she had now provided to the Council.
• The Council has taken no responsibility, involvement or oversight of Y’s education.
49. On 12 July 2024, the Council decided to provide Alternative Provision of education for Y through Flexible Learning because of the new information provided. The Council said this provision would start at the beginning of next term. The Council contacted Ms X on this date to discuss how it would provide Alternative Provision of education. Ms X told the Council she needed to discuss this with an advisor and asked the Council to contact her the following week to make arrangements.
50. The Council’s flexible learning team contacted Ms X before the end of term but could not accommodate a meeting until 4 September 2024 when the new term started. Ms X told the Council she was on holiday with Y until 9 September 2024. The Council arranged a meeting for 10 September 2024.
51. On 10 September 2024, Ms X attended a meeting about Y’s access to Alternative Provision. Following the meeting, Y was given access to Alternative Provision of education from 16 September 2024.
52. On 20 September 2024, the Council provided a Stage 1 complaint response to Ms X. The Council said:
• It apologised for the delay in responding to Ms X’s complaint.
• It maintained its position that Y’s school was suitable educational provision for Y and issues with accessing this education were a matter for the school to address until it received the relevant medical evidence in July 2024.
• It held a meeting in September 2024 to discuss what Alternative Provision of education it should provide for Y.
53. Ms X sought consideration of her complaint at Stage 2 on 4 October 2024. Ms X said:
• While she accepted Alternative Provision of education had been provided since September 2024, she considered the Council provided this late.
• She disputed that medical evidence was not provided sooner as the Council social worker had access to a medical letter in the meeting in November 2023.
• Y’s school accepted Y was too unwell to attend school following the meeting in November 2023 and arranged online provision. Despite this, the provision put in place by Y’s school was not suitable for Y.
• Medical evidence is not needed and the Council should review any additional evidence to help identify suitable provision for a child.
• The medical evidence provided in September 2023, November 2023 and January 2024 was the same as that provided in July 2024 so questioned the Council’s change in decision making.
54. On 18 November 2024, the Council completed a Stage 2 review report. This report detailed the social worker failed to liaise with the attendance or welfare team about Y’s absence from school following the meeting in November 2023. The Stage 2 report detailed the Stage 1 complaint response failed to address concerns about whether the Council could have done more to resolve the situation earlier.
55. The Council issued a Stage 2 complaint response to Ms X on 29 November 2024. The Council said it was continuing to investigate this matter to decide if it should make a financial remedy. The Council said it has no formal policy on paying for privately arranged tuition or fund privately arranged Alternative Provision of education.
56. On 15 January 2025, the Council said it would arrange training for its customer relations team on the SEND process. The Council also offered £150 as a time and trouble award for the delay in handling Ms X’s complaint.

Analysis

Alternative Provision of education

57. It is not the role of the Ombudsman to investigate the actions of a school. I 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.
58. Y stopped attending school entirely on 19 October 2023. However, Y had already missed 15 non-consecutive days of education before this date.
59. The first date the Council was told about Y’s absence from school was on 22 November 2023. Before this meeting, neither Ms X nor the school told the Council about Y’s absence. I have addressed the school’s failure to tell the Council sooner about Y’s absence, and failure to follow the Council’s policy, in paragraphs 75 to 78.
60. Since the Council was unaware of Y’s absence before 22 November 2023, I cannot find the Council at fault for failing to provide suitable education for Y before this date.
61. At the meeting on 22 November 2023, a council social worker was present. The Council’s Stage 2 report has already identified the council social worker failed to liaise with the relevant council departments about Y’s absence. This meant the Council could not consider Y’s absence through the relevant criteria. This was fault.
62. While Y’s school had a plan in place to provide education for Y, whether it did, or did not, follow through on this plan is outside of the Ombudsman’s jurisdiction. But, the Council’s fault was a failure to consider Y’s access to education. The Council did not assure itself that suitable provision was in place for Y from November 2023 to January 2024. The Council did not take any meaningful role in oversight of the reintegration plans for Y’s education or help the school in producing such plans. This meant the Council did not fulfil its Section 19 duty.
63. When Ms X contacted the Council in January 2024 it again failed to take ownership of the situation by contacting Y’s school or considering Y’s individual circumstances. The Council responded at this time that it could not investigate complaints about the actions of schools. While this is correct, the Council failed to recognise from Ms X’s contact that Y had been out of education since September 2023 and the role it needed to take to assess the suitability of the education on offer to Y. This meant the Council failed to suitability consider Y’s absence from school again.
64. The Council also failed to consider its Section 19 duty to provide education for Y when it declined to issue an EHC Plan for Y in April 2024. Despite Ms X making the Council aware that Y was not attending school as part of this application, the Council has shown no consideration about whether it needed to provide education for Y. The Council simply said the school had followed the correct process and that Ms X could apply for a different school for Y. The Council has shown no consideration about whether Y’s absence justified the Council’s involvement in helping to support Y’s access to education.
65. The first evidence of the Council considering its Section 19 duty is on 3 July 2024. The Council was at fault for failing to consider its Section 19 duty from 22 November 2023 until 3 July 2024.
66. On 3 July 2024. the Council declined to provide education outside of school for Y. At this time the Council made a formal decision that it considered Y’s school was suitable for Y’s needs and there was no evidence Y was too unwell to attend school. The Council has considered Y’s absence, whether medical or otherwise, and reached the conclusion that Y’s school was suitable and accessible education for Y provided the school made reasonable adjustments. This was a decision the Council was entitled to make and I cannot find fault.
67. The Council reversed its decision by 12 July 2024 following provision of further medical information from both Ms X and Y’s school. I have reviewed the medical information provided and there is a distinction between that provided to the Council before July 2024 and that provided in July 2024. The medical information provided pre-July 2024 follows the narrative that Y could be supported back into school. While the medical evidence provided from 3 July 2024 onwards confirms Y is too unwell to attend school. I cannot find fault with the Council’s decision making based on the evidence available.
68. Once the Council decided it should provide Alternative Provision of education for Y, it had six school-days to put this in place. Y’s school term ended on 19 July 2024, this meant the sixth-school day was 2 September 2024. The Council put in place Alternative Provision of education on 16 September 2024. While the Council did not put in place provision until 16 September 2024, this delay was not caused by the Council. Ms X could not attend a meeting in the first week of the 2024/2025 school year. This meant that Y’s educational provision was delayed.
69. In paragraph 67 I detailed that I did not find fault with the Council’s decision making because it did not have the relevant information available to it on 3 July 2024. While the Council did not have the relevant information available on 3 July 2024, both pieces of information provided after 3 July 2024 were available to Ms X before 3 July 2024 but she had not provide these to the Council; with one dating back to December 2023. The letter from Y’s GP dated 2 July 2024 was also only prompted following delays in Y being allocated a counsellor, recommended in December 2023, meaning there was an absence of a relevant professional to sign the Flex Learning application form. Neither pieces of evidence show a change in circumstances for Y from December 2023 to July 2024 but, rather, detailed the relevant information the Council needed to agree to provide Alternative Provision of education.
70. Had the Council acted sooner than 3 July 2024 in making its decision not to provide Alternative Provision of education, it is likely, on the balance of probabilities, it would have prompted Ms X to obtain the letter from her GP sooner and for Ms X and Y’s school to provide the relevant evidence to the Council sooner. This would have resulted in the Council deciding to provide Alternative Provision of education for Y sooner. Additionally, the Council failed to have suitable oversight of Y’s education or potential reintegration into school meaning Y’s school was not given suitable support for Y’s education. As such, the Council’s delays before 3 July 2024 in considering its Section 19 duty have caused delayed opportunity for Y to access suitable education for a period of time totalling the equivalent of just over two full terms of school.
71. 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.
72. I have considered Y’s individual circumstances and our guidance on remedies. This considers that while Y’s school provided access to online learning, because of technical difficulties with the laptop provided, Y was only able to access 5 days of education. It is also of note that Ms X has advised this education was not of a suitable level or ability appropriate for Y’s needs. This meant that Y went without any effective formal education arranged by the Council or school for about two full terms and two weeks.
73. I consider, the Council should pay Miss X £1,800 per term for Y’s missed education caused by the fault of the Council; this totals £3,600. Ms X may use this money to either reimburse herself for the education she provided for Y and/or source any extra catch-up educational provision she considers suitable for Y.
74. The circumstances of this complaint have also shown a repeat failure by the Council to ensure the relevant departments are informed about a child who is absent from education. Council social workers and members of the complaints department became aware that Y was absent from school but failed to recognise the significance of this or action this correctly. The Council should provide training and guidance to relevant staff involved in working with children of statutory educational age about flagging a child’s absence from school, when this exceeds, or is likely to exceed, 15 consecutive or cumulative days, to the relevant Council department. The Council should also remind staff who arrange Alternative Provision of education for children that this should be in place from the sixth day of absence when such absence is caused by medical reason or otherwise.

Failure to notify the Council about Y’s absence

75. Y’s school did not contact the Council’s attendance team to make it aware of Y’s failure to attend school until 16 May 2024. The Council’s policy states a school contact the Council when a child has been absent for 15 school days and places the responsibility of schools. The school failed to follow this policy.
76. As detailed in paragraph 55, the Ombudsman cannot investigate the actions of schools so I cannot make comment on the school’s actions.
77. However, as detailed in paragraph 15, a council should have effective systems in place to alert them of any pupil with a long-term absence. It is clear from this situation the Council’s system was not effective and it placed full responsibility on a school without completing any oversight of the situation. This was fault.
78. While this was fault, the regulations about monitoring and notifying about children absent from school have changed since the circumstances of Ms X’s complaint. In line with this, so have the Council’s policies. As such, service improvements in this respect would not have any purpose.

Complaint handling

79. Ms X raised her first formal complaint with the Council on 11 July 2024. The Council had until 8 August 2024 to provide a Stage 1 complaint response in line with the maximum timescale in its policy. The Council only issued its Stage 1 complaint response on 20 September 2024. This was six weeks outside its complaint timescales and was fault.
80. Ms X sought consideration of her complaint at Stage 2 on 4 October 2024. The Council had until 15 November 2024 to issues its Stage 2 complaint response. The Council issued the Stage 2 complaint response on 29 November 2024, two weeks outside its complaint timescales; this was fault.
81. Following this, the Council’s relevant service issued a further response on 15 January 2025 offering £150 as a goodwill award for the delays in providing its complaint responses. Given the delays of eight weeks in this matter, I consider this offer of £150 is suitable to reflect the frustration and inconvenience caused through the Council’s complaint delays. The Council should ensure it makes this payment to Ms X, if it has not already done so.

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Action

82. Within three months of the Ombudsman’s final decision the Council should:
• Ensure it pays Ms X the £150 award previously offered for complaint handling delays.
• Provide an apology and pay Ms X £3,600 for Y’s missed educational provision totalling two full terms caused by the fault of the Council.
• Provide training and guidance to relevant staff involved in working with children of statutory educational age about flagging a child’s absence from school, when this exceeds, or is likely to exceed, 15 consecutive or cumulative days, to the relevant Council department.
• Remind staff who arrange Alternative Provision of education for children that this should be in place from the sixth day of absence when such absence is caused by medical reason or otherwise.
83. The Council should provide us with evidence it has complied with the above actions.

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Decision

84. 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