Summary: Mrs X complained her child missed Year 6 of education with only limited part-time Alternative Provision of education at the end of the year. We found fault with the Council failing to suitably consider its Section 19 duty for 8 weeks in the academic year 2023/2024. We also found fault with the Council failing to meet its complaint timescales. The Council agreed to apologise to Mrs X for any avoidable frustrations its fault caused and pay Mrs X £600 in recognition of her child’s missed educational provision caused by its fault.

The complaint

1. Mrs X complained her child missed Year 6 of education with only limited part-time Alternative Provision of education in place at the end of the year.
2. Mrs also complained the Council failed to communicate with them and repeatedly ignored their contacts.

Back to top

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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. 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).
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).

Back to top

How I considered this complaint

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

Back to top

What I found

Rules and Regulations

Alternative provision of education

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. [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.
10. 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)
11. 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))
12. 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)
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;
• 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.

15. 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.
16. 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.
17. 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 procedure

18. The Council’s complaints procedures says it will provide a response within 28 calendar days of receipt of a complaint.
19. The Council says where a complaint response fails to resolve or conclude a complaint it will be reviewed by the Complaint Officer or an appropriate senior manager. The Council sets no timescale for this response in its complaints procedure.

What happened

20. In January 2024, Mrs X child, who I shall refer to as Y, stopped attending school.
21. On 28 February 2024, Y’s school made a referral to the Council’s Temporary Provision panel. Y’s school said Y had been absent from school for more than 15 days and the absence was because of school refusal with no SEND concerns. Y’s school said it wanted to encourage Y back into school full-time.
22. Y’s school put in place an offer of online learning for Y on 29 February 2024.
23. On 7 March 2024, the Council’s Temporary Provision Panel considered the school’s referral and rejected Alternative Provision of education for Y because there was no reason Y could not attend school. The panel said it needed details of the school’s graduated response and plans to reintegrate Y into school.
24. Y’s school withdrew its offer of online learning for Y on 2 May 2024.
25. Following an appeal from Mrs X, the Council reconsidered its decision at the Temporary Provision Panel for Y. The Panel said:
• Y’s school had tried to put in place interventions to bring Y back into school but these had not been successful.
• Y’s absence from school was caused by anxiety.
• It recommended face-to-face sessions for Y to gauge suitability of education for Y.
• It planned to reintegrate Y into school using a Tailor Made Programme.
26. By 18 June 2024, both Mrs X and Y’s school had signed an agreement for the Tailor Made Programme. This programme planned for sessions in the local library twice a week, music and brass lessons in school on Fridays, online learning and various opportunities within the school setting such as lunchtime clubs, nurture sessions and drop-in sessions.
27. Y accessed 4.5 hours of one-to-one sessions in the week starting 24 June 2024 and the music and brass lesson.
28. In the week starting 1 July 2024, the Council increased Y’s provision to include 1.5 hours of Real Time Online Learning. This same provision remained in place the following week. The Council dropped the Real Time Online Learning after this week because Y struggled to engage with this.
29. Y’s Tailor Made Programme ended at the end of the academic year. Y’s tutor from this programme reported that Y had engaged positively with this programme and had also accessed taster days at their proposed secondary school. The tutor confirmed Y was keen to start secondary school and Y would attend extra transition days over the summer to prepare for this.
30. On 18 July 2024, Mrs X lodged a formal complaint with the Council. Mrs X said:
• Y had ongoing chronic health conditions and was being bullied in school causing a mental health burnout.
• Y had not been able to attend school since January 2024.
• The Council had turned down an application for Alternative Provision of education in March 2024 but granted this in June 2024. Mrs X said this resulted in Y only accessing 4 weeks of education since January 2024.
31. The Council issued its first complaint response on 21 August 2024. The Council said:
• Y was first referred to the Council in February 2024 and it considered whether Y’s absence was a truancy matter or if they met the criteria for Alternative Provision of education.
• Y’s school provided limited information but it accepted Y for support to transition to secondary school in June 2024 and provided a Tailor Made Programme of support for Y.
• Y has attended an induction day for secondary school and would be starting in September 2024.
• It did not uphold Mrs X’s complaint because it put in place support once it confirmed Y was eligible.
32. Y started attending secondary school in September 2024 with only sporadic days of absence over the next academic year.
33. On 19 September 2024, Mrs X sought consideration of her complaint at the next stage of the Council’s process.
34. The Council issued its final complaint response to Mrs X on 20 October 2024. The Council said:
• It was Y’s school’s responsibility to provide suitable education for Y and to tell the Council when it could not meet Y’s needs.
• It is not the Council’s responsibility to provide a refund of any private tuition Mrs X arranged for Y while they were absent from school.

Analysis

35. 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.
36. While Y stopped attending school in January 2024, neither Y’s school nor Mrs X told the Council about Y’s absence until 28 February 2024. I cannot find the Council at fault before this date.
37. When Y’s school made a referral to the Council on 28 February 2024, it confirmed Y had been absent for more than 15 school days. Because Y had been absent for longer than this time period, the Council needed to consider its Section 19 duty and decide what, if any, support it should put in place for Y.
38. The Council considered Y’s situation at panel on 7 March 2024. The Council held this panel within a suitable timescales, six days, of the school’s referral to it. I do not find fault with the timeliness of the Council’s consideration.
39. When the Council considered Y’s absence from school on 7 March 2024 it decided that it did not need to provide education for Y because there was no evidence Y could not attend school. The Council therefore decided that Y had available and accessible education through their school. The Council’s decision that it did not need to provide education was a merits decision that it was entitled to make based on the evidence available to it in March 2024.
40. The Council asked Y’s school for evidence of its graduated response and plans to reintegrate Y into school, but the school did not provide this to the Council. I cannot investigate the actions of the school and therefore cannot explain why it did not provide this information to the Council. I also cannot find the Council at fault for the school failing to provide this information.
41. However, given the Council was aware a child was out of education and requested information from the school about its reintegration plans for this child, I would expect the Council would follow up with the school. The guidance detailed in paragraph 14 outlines what a council should do when it does not consider it needs to provide Alternative Provision of education for a child. Notably, a council should work with parents or a school to draw up plans to reintegrate a child into mainstream education or consider whether it should require a child’s attendance at school. The Council took neither of these steps; this was fault.
42. While the Council considered Y had suitable and accessible education available through Y’s school, it failed to fulfil its Section 19 to work with the school to reintegrate Y or consider whether to follow the matter through on truancy. I do not find the Council at fault for the time period 7 March 2024 to the end of term as it was waiting on information from the school. However, from the return to school after the Easter break, in April 2024, to 6 June 2024, the Council took no action to follow up with the school despite the lack of response. I consider the Council failed to meet its Section 19 duty for 7 weeks from the start of the summer term until 6 June 2024.
43. On 6 June 2024, the Council decided it should provide Alternative Provision of education for Y. Following this decision, the Council should have ensured this provision was in place from the sixth day. The Council only put the provision in place on 24 June 2024 meaning the Council delayed by one week resulting in lost educational provision for Y; this was fault.
44. When the Council put in place Alternative Provision of education for Y, it did not need to provide full-time education. The Council was clear that its plan for Y was to reintegrate Y into secondary school in September 2024 and put in place measures and support to achieve this. The Council provided the level of support it advised it would and kept this support under review, adapting this to meet Y’s individual circumstances. The Council’s actions resulted in Y reintegrating into mainstream school in September 2024. I do not find fault with the Council’s actions from 24 June 2024.
45. 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.
46. Overall, Y missed eight weeks of education caused by delay or inaction from the Council. For seven of these weeks, the Council considered Y had suitable and accessible education available, mitigating the impact on Y, but failed to take relevant considerations about how it should help Y to access this education.
47. Having taken into consideration Y’s individual circumstances, I consider the Council should pay Mrs X £600 for her child’s missed education. Mrs X may use this to go towards the cost of any education she sourced for Y while they were absent from school.

Complaint handling

48. Mrs X lodged her complaint with the Council on 15 August 2024. The Council’s policy says it will provide a response in 28 calendar days. The Council only provided its response on 21 August 2024; this meant the Council’s response was six days outside its complaint timescales.
49. Mrs X requested consideration of her complaint at the next stage on 19 September 2024. The Council’s policy has no set timescales for this response. However, it is suitable to use the same 28 day timescale for responses previously detailed in the Council’s complaints procedure in the absence of a different timescale. The Council provided its response on 20 October 2024; this was 3 days outside the complaint timescales.
50. In total, the Council delayed handling Mrs X’s contacts by 10 calendar days; this was fault. The Council should apologise to Mrs X for avoidable frustration its delays in responding to her complaints outside its complaint timescales caused her.

Back to top

Action

51. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mrs X in recognition of the avoidable frustration its complaint handling delays caused her.
• Provide a payment to Mrs X of £600 in recognition of Mrs X’s child’s lost education for eight weeks between January 2024 and the end of the school year.
52. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

53. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman