Summary: The Council failed to keep under review whether its duties to provide alternative education to a child out of school applied. This likely caused the child to miss around a term of alternative education. The Council has agreed to our recommendations for a personal remedy.

The complaint

1. The complainant (Ms X) complains the Council has failed to provide alternative educational provision for her son (D), who is unable to attend school due to anxiety. As a result, his education and welfare have suffered.

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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(1), 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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How I considered this complaint

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

Children out of school and alternative provision

7. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise.
8. Where a child’s attendance at school drops below a certain level, it is likely a council’s inclusion officer will become involved after a referral from the school. Inclusion officers have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance including using various legal powers where it considers a child’s non-attendance to be unauthorised.
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 (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
10. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them to access. The applicable test is whether the educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
11. The courts have also found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give to medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
12. One court case found that, since a council’s efforts to get a child to school had failed, and it did not have a further plan, it was not reasonably practicable for the child to attend the school where he was enrolled. That meant the council was in breach of its duty under section 19. That duty applied to both long-term arrangements and to the council’s duty in the short term to ensure the child received suitable education. (R (on the application of Y) v Croydon LBC [2015] EWHC 3033 (Admin); [2016] E.L.R. 138)
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.

What happened

15. I have set out below a summary of the key events. It is not meant to show everything that happened.

Background

16. In September 2022, Ms X’s son, D, stopped attending secondary school (School P) due to anxiety.
17. An earlier Ombudsman decision looked at events to the start of the Autumn term in 2023. We found no evidence of fault in the Council’s response to D’s non-attendance at school. We found:
• the Council was in contact with School P;
• School P advised the Council it could put in place a reintegration plan to manage D’s return to school;
• the Council kept the situation under review and decided an education was reasonably available and accessible to D;
• the Council was entitled to find that School P was using its best endeavours to encourage D to return to full time learning via the reintegration plan;
• this meant the Council did not have any duty under section 19 to provide alternative education.
18. We noted the Council accepted D should have received some sort of alternative provision to support him to return to school because of his prolonged absence. But our view was this was the responsibility of School P, which received additional funding to help reintegrate children. So we decided the Council followed the correct procedure by referring Ms X back to the School.
19. In January 2024 the Council interviewed Ms X under caution regarding D’s non-attendance at school. It decided legal action was inappropriate.

Events I have investigated

20. The Council says its Inclusion Service’s involvement with D was impacted by officer absence in the early part of 2024, until April.
21. At the beginning of April the Council’s officer wrote to School P, seeking an update. School P’s response advised it had set D up for online learning, which he had not accessed. It also advised it had made a referral to an out of school alternative education provider.
22. The Council kept in touch with School P in May. And in June it had a meeting at the School.
23. Later in June School P contacted the Council to advise it had received an update from the Child and Adolescent Mental Health Service (CAMHS – an NHS funded team that provides assessment, support, and treatment for children with mental health difficulties). CAMHS said it did not feel D could return to School P. The School asked if the Council agreed with that view and if so, how it should record D’s absences.
24. The Council’s response gave some advice about the sort of provision to put in place. And it was for the School to decide whether to authorise the absences based on the medical information it had received.
25. The Council’s case notes show it discussed D’s case at a meeting in July. In August its Inclusion Team closed its case and emailed School P advising it to put alternative provision in place.
26. In October the Council contacted School P asking for an update. School P advised that D had not engaged with any of the provision it had put in place as, for D, School P was the barrier. Shortly after, School P asked Ms X to approach D’s GP to provide medical evidence.
27. At the beginning of November, D’s GP provided a letter advising of “significant problems with school anxiety, which unfortunately has resulted in his inability to attend [School P]”.
28. In November Ms X complained. The Council did not uphold the complaint as its view was it had followed its duties to ensure education was made available to D.
29. On receipt of the GP letter, the Council sought further medical advice. It also made a referral for alternative education.
30. Ms X says she was contacted by the Council’s alternative education provider in mid-January 2025. Shortly after the Council provided its response to her complaint at the second stage of its complaints procedure. It advised its view was the School, up to October / November 2024, had made its best endeavours to make appropriate education available for D.

Analysis

31. Our previous decision was (as School P had a reintegration plan in place), it was reasonably practicable for D to access the School. In those circumstances, it was the School and not the Council that had the duty to ensure D was receiving alternative education.
32. However, as our advice to councils says (see paragraphs 13 and 14) they need to keep the situation under review. Here, in June 2024, School P advised the Council of an opinion from CAMHS that D could no longer attend School P. It asked the Council for some advice. I would have expected this to have prompted the Council to review if that affected its view about whether D had education it was reasonably practicable for him to attend.
33. And, on the balance of probabilities, given what the Council found later in the year, if it had carried out the review in June it would have concluded earlier that School P was no longer reasonably practicable for D to attend. It follows it would have earlier taken the steps it did in November.
34. So, the Council delayed providing D with some alternative education for around a term (that is, either side of the summer 2024 vacation).

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Recommended action

35. I recommended that, within a month of my final decision, the Council take the following action.
• apologise. 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.
• pay Ms X £1500 as a symbolic remedy for D’s missed education for around a term;
• pay Ms X £250 as a symbolic remedy for the distress the faults caused her.
36. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.
37. I have not made any service improvement recommendations. This is because it agreed in response to another Ombudsman decision, to review how it could make improvements to its in the identification, decision-making, implementation, and monitoring of its Section 19 duties.

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Decision

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

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Investigator's decision on behalf of the Ombudsman