Kent County Council (19 005 803)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 27 May 2020

The Ombudsman's final decision:

Summary: The complainant alleges that the Council has failed to provide alternative education to his child whose school attendance was poor. The Council has been at fault because it failed to consider the range of options open to it to ensure the child’s attendance. It would be speculative to say what might have happened if the Council had not acted with fault. But there was a lost opportunity to ensure the child’s attendance at school. The Council has accepted the remedy for the resulting injustice.

The complaint

  1. The complainant, Mr X, complains that the Council:
      1. failed to provide alternative education to his daughter, Child E, when the family first moved into the Council’s area in May 2018; and
      2. failed to provide alternative education between October 2018 and July 2019 when Child E was not attending her current School (School Y).
  2. Child E is currently in Year 11, her GCSE year. She is due to take her GCSE examinations in May and June 2020, but it now looks likely that she may not be able to sit these exams because she has fallen so behind with the syllabus.

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What I have investigated

  1. We have considered the actions of the Council but not that of the School Y. This is because the Ombudsman is prohibited from looking at the internal arrangements within a school.

The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  3. If we are satisfied with a council’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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How I considered this complaint

  1. I have obtained written information from the Council and from Mr X and spoken to him on the telephone. I issued a draft decision statement. The Council sought legal advice regarding its duty to provide alternative education to pupils out of school. We too have sought legal advice.
  2. I issued an amended draft decision statement and we have taken into account the additional comments from the Council and the complainant when reaching our final decision.
  3. The final statement will be sent to the Office for Standards in Education, Children Services and Skills (Ofsted) in accordance with the arrangement the Ombudsman has to share findings with this organisation.

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What I found

  1. Under section 436A of the Education Act 1996, councils have legal responsibilities to make arrangements for children missing from education. The statutory guidance of September 2016 ‘Children missing education’ sets out the legal responsibilities for councils when children are not placed at school. Parents also have responsibilities to ensure their child receives fulltime education.
  2. The Admission Code 2014 sets out the arrangements for councils and schools, with their own admission criteria, to place children at a school, giving due consideration to parents’ preferred placement, wherever possible.
  3. Councils no longer have to co-ordinate in year admissions (this is when parents are seeking school places outside the normal allocation period). It is also the case that most schools now have their own admissions criteria. Therefore, parents apply directly to their preferred schools, but they can seek assistance from their local council if they fail to find a school place.

School Attendance

  1. The Education Act 1996, Section 444(1) provides that, if a child is of compulsory school age, and fails to attend regularly, those with parental responsibility are guilty of an offence. Section 444(1A) creates the aggravated offence; if the parents know the child is not attending regularly and fails to ensure he/she does so.
  2. If a school has not been able to ensure a child’s attendance, the matter is normally referred to the local education authority, (the council). If the council prosecutes, parents/carers can be fined up to £1000 and the council can also seek its costs.
  3. The 2007 guidance-Guidance on Education Related Parenting Contracts, Parenting Orders and Penalty Notices-states councils must judge whether to prosecute on a case by case basis. There is no stated timescale suggested in the guidance for a council to take such action.

Special Educational Needs

  1. The Children and Families Act 2014 says that a council is responsible for a child or young person if he or she is in the council’s area and has been identified by the council as someone who has or may have special educational needs (SEN) or brought to the council’s attention by any person as someone who has or may have special educational needs.
  2. Councils are required, subject to certain exemptions, to send the final EHC Plan within 20 weeks of receiving a request to conduct an assessment.

Provision and Appeals

  1. Parents can appeal to the Special Educational Needs and Disability Tribunal (SENDIST) when a council refuses to carry out an EHC needs assessment, refuses to issue an EHC Plan or a parent is dissatisfied with the final Plan. Appeals must be made within two months
  2. There is a new pilot scheme which enables a SEND Tribunal to consider the health and social care provision and make recommendations. However, the Tribunal can only order a council to provide special educational need provision.
  3. The Ombudsman cannot direct a council to change the sections about education, or name a different school in an EHC Plan. Only the SEND Tribunal can do that.
  4. The Ombudsman cannot normally investigate events once a complainant has appealed an EHC Plan to the Tribunal.

Alternative education

  1. The Fair Access protocol guidance states that all schools must participate in the protocol to ensure unplaced children are allocated a school place quickly. Councils, in these cases, can direct a school to take a child missing from education. The Admission Code says that there is no duty for councils to comply with parental preference when allocating places through the Fair Access protocol.
  2. Under section 19 of the Education Act 1996, councils are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made. If medical evidence is not quickly available, the statutory guidance states councils “should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
  3. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”. It also states: “there will be a wide range of circumstances where a child had a health need but will receive suitable education that meets their needs without the intervention of the local authority”. This includes where a school has arranged to deliver suitable education outside of the school.

Case law regarding section 19 alternative educational provision

  1. In G v Westminster City Council [2004] EWCA Civ 45 (followed more recently in DS v Wolverhampton City Council [2017] EWHC 1660), the Court of Appeal stated:

“It seems to us that ‘otherwise’, where used for the second time in s19, is intended to cover any situation in which it is not reasonably possible for a child to take advantage of any existing suitable schooling. This conclusion is supported by the ‘eisudem generis’ canon of construction, which is no more than an approach which gives a word the natural meaning that it bears having regard to its context”.

  1. So, if the Council has arranged for the provision of education which is suitable for a child and which it is reasonably practicable for the child to enjoy, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.
  2. In R (R) v Kent County Council [2007] EWHC 2135 (Admin) the Court stated that, “..the question is not whether the parents or [the child] have reasonable objections to attending the school, the focus of the court’s attention is not upon the parental objections or the child’s objections, but upon the objective consideration of whether the education offered is reasonably possible or reasonably practicable to be accessed by the child in question…”.
  3. In R v Croydon Council 2015, the issue was whether a child of compulsory school age could reasonably be expected to attend the school. The Court decided that, where a child or young person had a medical reason or special educational needs, which explained the non-attendance, a council’s section 19 duty would be triggered, and alternative provision should be made pending finding a suitable school.

The Council’s procedures

  1. The Council does not co-ordinate in year admissions. However, the Council says that it instructs all schools with their own admission criteria to inform the Council of an admission application and the outcome and of the availability of places. The Council says that some schools do not do this.
  2. The Council has a Kent School Referral Pathway regarding pupil attendance. Where a pupil’s unauthorised absences give cause for concern, and the school’s efforts have not improved the pupil’s attendance, the case can either be referred to the Early Help Team or to the School Liaison Officer whereby legal action can be considered.
  3. Pupil Referral Units (PRU), Inclusion and Attendance Service is part of the Early Help and Preventative Services (Early Help). Each school has a School Liaison Officer who can process attendance cases, including Education Supervision Order, Penalty Notices and prosecution.
  4. The Council has a Health Needs Education Service to provide education support to schools for young people with physical medical conditions and it has an education outreach service for young people with mental health needs, located in six resourced bases, often referred to as medical Hubs.
  5. Kent County Council also commissions its Education Programme Service to provide off site tuition for pupils unable to attend school. It is for the Education Programme Service to decide how many hours tuition to provide, which normally takes place in a library. Schools have to pay for this provision where a child is on a school roll.

Key facts

  1. Mr and Mrs X came to live in Kent in May 2018 with their three school age children; Child E is their eldest. The family’s previous council alerted Kent County Council that the children required a school placement. Mr X also contacted the Council on 17 May regarding the need for school places.
  2. Following the move on 23 May, Mr X contacted two schools directly for Child E, School V and School Y, a grammar school. Both schools have their own admissions criteria. Mr X says that the schools did not respond to his emails and telephone calls. When they did in early June, both schools told him that they could not take Child E because they were full.
  3. On 29 May, the Council emailed Mr X and told him of four schools which it said had vacancies. One of these was School V. The Council explained that Mr X needed to apply directly to the schools because the Council no longer co‑ordinated in-year admissions.
  4. The Council says that, when it sent the above email to Mr X, it had information from School V that there were nine available places at Year 9 (Child E’s then year group). The Council says that it is not clear why School V provided incorrect information to Mr X, saying it was full.
  5. On 5 June, the Council was told that Mr X had applied to School Y although it was aware that the school was full. On 5 June, the Council’s Admission Department emailed Mr X to say that there were two other schools, with places, which he could approach, one 2.66 miles away and one 3.08 miles away from home.
  6. On 8 June, School V told the Council it had explained the admission process to Mr X. The Council says that it believed School V had invited Mr X to the school before making a formal offer of a school place for Child E. The Council says Mr X chose not to visit.
  7. The Council says that an officer was told by School V that a place was available for Child E as from 22 June. The Council says that it challenged School V about its failure to respond in a timely manner to Mr X’s admission application.
  8. Mr X contacted the Council about the lack of activity and inability to obtain a school place for his daughter.
  9. On 22 June, Child E sat the grammar school test for School Y and Mr X also visited School V to enquire as to why he had not had a response to his admission application. Mr X says he was told School V were awaiting information from Child E’s previous school in accordance with its normal procedures.
  10. The Council says that School V formally offered Mr X a school place for Child E and that the school tried to arrange a day for Child E to sit a test to determine which class she should be placed. However, Mr X explained that he would wait to see the outcome of the grammar school test because the parents’ preferred option was for Child E to go to School Y if she passed the criteria for admission.
  11. Subsequently, the Council’s Head of Fair Access contacted School V on 7 July and was told that it had offered a place to Child E, but Mr X had declined it.
  12. On 11 July Mr X was told that Child E had passed the grammar school test and he asked School Y to place her on the waiting list and that he would have to pursue an urgent school admission appeal.
  13. The Council emailed Mr X on 12 July, saying that School V would be able to offer a place in a couple of days and that Child E could come into the school to look around. But the Council said that School V had told it that it was waiting to hear from Mr X about Child E’s application to the grammar school.
  14. In its complaint response to Mr X, the Council told Mr X that he was entitled to make an application to a full school and that, where this was a grammar school, this could not be properly considered until the selection test was completed. The Council said it understood he might prefer a grammar school setting
  15. Mr X asked for an expedited admissions appeal against the refusal of a school place at School Y. This was arranged for 10 September.
  16. Mr X says that School V only made a formal offer of a place, in writing, on 16 July 2018, one week before the end of the summer term. By this stage, it was impractical for Child E to start at School V, particularly when Child E had the possibility to attend School Y, the preferred choice.
  17. The Council says it had no duty to provide alternative education to Child E during the period of 23 May and 23 July 2018 as there was a school place available to her from 22 June 2018.
  18. In effect, Child E was without education between 23 May to 23 July 2018.

Events between September 2018 and July 2019

  1. A place became available at School Y for Child E from the waiting list. She started there on 12 September 2018.
  2. On 5 October, School Y made a referral to the Pupil Referral Unit, Inclusion and Attendance Service (PIAS) because Child E had missed 11 days of schooling. School Y arranged a meeting for 2 November which Mr X, Child E, school representatives and the Area Head of Education, representing PIAS, attended. School Y offered Child E a range of options, like working in the library on a reduced timetable, access to extra curriculum activities and contact with other pupils. School Y also referred Child E to the Young Carer Support Service and Mr X agreed a referral to the Early Help and Preventative Service to assist both Child E and the family to get Child E to school.
  3. A referral had in fact been made to the Early Help Team on 1 June 2018 by the previous council because of the concerns regarding the needs of Child E’s two younger siblings and the impact on her. The Council did not pick up on this referral at the time.
  4. In November, Mr X asked whether transport could be arranged for Child E as he thought this might help her attendance at School Y. Mr X has to leave for work very early in the morning and Mrs X does not drive.
  5. An officer from the Early Help and Preventative Service was allocated the case on 29 November 2018. The Early Help Worker has had many meetings with Child E and the Youth Hub Manager has been involved. The Council says that many options and strategies have been discussed with Child E as follows:
  • acquiring the necessary codes for Child E to access her schoolwork via Google Classroom;
  • creating a colour coded schedule to help identify and establish a routine;
  • talking to Child E about her thoughts, feelings and interests;
  • encouragement for Child E to attend a Young Carers Group at the local Youth Hub;
  • a referral for a Young Lives Mentor to work with Child E;
  • completion of a Resilience Toolkit;
  • accompanying Child E to meetings with School Y and agreeing plans for Child E’s reintegration to school;
  • sharing information with Mr and Mrs X around imposing boundaries and routines and ensuring that Child E understands that these are not punishments; and
  • discussions with Mr and Mrs X around whether another school with more pastoral support could be considered.
  1. The Council says that it had not sought medical evidence, or asked the parents to provide this, which might explain Child E’s poor school attendance. However, the Council was aware that the parents had asked their local health Trust to assess Child E for a possible autistic spectrum disorder, but she did not attend the appointment.
  2. In February 2019 Mr X asked the Council to carry out a statutory assessment of Child E’s possible special educational needs and in March the Council agreed to do so.
  3. The Council says that School Y has provided Child E with schoolwork via an online platform. The Council says that it is not required to check the quality, or the amount of work provided by School Y. In any event, School Y is rated as outstanding by Ofsted. But the Council accepts that the setting of schoolwork to be completed online, or at home, is not considered suitable alternative education. But it is a way of keeping a pupil engaged as an interim measure while efforts are being made to encourage school attendance.
  4. The Council asked an Educational Psychologist in June 2019 to assess Child E. In July 2019, the Educational Psychologist described Child E as a timid child with poor eye contact, literal in approach who struggles to articulate emotional material.
  5. The Council issued an EHC Plan for Child E. Mr X appealed to the Tribunal, requesting that the Council provided individual tuition to help Child E reintegrate back into school.
  6. The Council says that, in May 2019, it considered pursuing legal action against the parents for non-school attendance and this was discussed at a multi-agency meeting. It was decided that this would be counterproductive. But, the rationale for this decision is not recorded in the notes of the meeting.
  7. It was, instead, decided to pursue the reintegration strategy that had been attempted in October 2018, but which had been unsuccessful.
  8. As part of Mr X’s appeal to the Tribunal, he has not questioned the suitability of School Y for Child E and she apparently wants to remain at this school. He says that it is her severe anxiety (not currently formally diagnosed) which is preventing her attendance.
  9. Mr X is also concerned that the Council has only commissioned an Educational Psychologist’s report because it must as part of the statutory assessment of Child E’s special educational needs. Mr X considers the Council should have arranged this as soon as it became known that Child E was struggling to attend School Y.
  10. Mr X also says that it is not just the parents, who have been unable to get Child E to school. The Early Help worker and mentor also failed.
  11. Mr X recognises that the Council and School Y have encouraged Child E to attend and have provided support to try to make this possible. Mr X considers that the Council should, however, have provided individual tuition to Child E while at the same time trying to secure her attendance at School Y. This would have meant that Child E would not have missed so much of her Year 10 GCSE syllabus which, in turn, means that she would not have fallen so far behind to feel unable to now ‘catch up’ and this has further prevented her attendance.
  12. Since making his complaint to the Ombudsman, the Council arranged, as an exception under its discretionary powers, to provide a taxi for Child E to attend school two days per week even though Child E does not meet the criteria for free school transport.
  13. The taxi service started at the beginning of the September 2019 term. However, the Council explained that it would cease if Child E refused to go to school. This happened and the taxi service was stopped.

Child E’s attendance at School Y from September 2018 to July 2019

  1. School Y says that it has authorised only ten absences. Child E’s attendance rates are as follows: September 2018, 46.2%; October 0%; November 9.1%; December, 3.8%. Between January to April 2019, Child E’s attendance was 0%. For May 2019, it was 2.9%, June 2.5% and in July 0%.

Mr X’s complaint to the Council

  1. Mr X complained to the Council in May 2019 about its actions between May and September 2018 and about the fact Child E had been out of school for so long without alternative provision being arranged. The Council considered his complaint under its two-stage corporate complaints procedure.
  2. The Council says that one of the problems in May 2018 was that Mr X was applying for two schools which he was told were full. There were two other schools, with places, which Mr X could have approached. But he chose not to.
  3. The Council says it had no duty to provide alternative education for Child E under section 19 between May and September 2018 because there were other schools available with places.
  4. The Council also says that the duty to provide alternative education between September 2018 to July 2019 was not triggered because Child E was placed at a suitable school and it was reasonably practicable for her to attend. It also considers that it was for School Y to provide education during 2018/2019.

Analysis

  1. The issue in complaint (a) concerns the Council’s duty to children moving into its area and requiring a school place.
  2. The central issue in complaint (b) is when the duty under section 19 is triggered and, if not, what a council should do. To answer this, we asked the Council if it had considered whether its section 19 duty was engaged (including under the ‘or otherwise’ category’) and/or did it properly consider whether enforcement action should be taken for non-attendance, and the reasons if it felt neither were engaged.

Complaint (a)

  1. It is difficult for the Council to ensure school places are made available for in-year applicants when it no longer co-ordinates the arrangements and many of its schools now have their own admission arrangements. This explains why the Council instructs schools to provide it with regular and accurate information about availability of school places. Such information enables it to direct parents to schools where it is known there are available places.
  2. There is a discrepancy in facts about when School V offered Child E a school place: the Council says a place was available on 22 June; Mr X says that he had to chase up School V on 22 June about whether it could offer Child E a place and he was told then that it was waiting for information from Child E’s previous school.
  3. School V then wrote to Mr X on 12 July, offering a school place, starting on 16 July, five school days before the end of the school term. I can understand why Mr X decided that attending a new school, so close to the end of term, was not appropriate for Child E. Moreover, she had passed the grammar school test and it was expedient to await the outcome of the admission appeal for School Y. Moreover, in the Council’s email of 12 July, it accepted that Mr X was entitled to apply for a school place where it was full.
  4. However, the Council considers that the problem was that Mr X was applying to schools which were full.
  5. We cannot decide the above discrepancy of facts about when School V offered a place. The Council relied on the information it received from School V about the number of places available and it relied upon information about when it offered a place. So, on that basis, we do not consider the Council has been at fault.
  6. While we do not find fault in the Council’s efforts to help Mr X find a school place for Child E, on balance, given that Mr X only received a formal offer of a school place on 12 July from School V, we are satisfied that there was no available school place until 16 July.
  7. There was a delay in placing Child E at a school and she was out of education for nearly 8 weeks at the end of Year 9. At no stage was the case considered under the Council’s Fair Access protocol.
  8. Parents can express school preferences and to seek a place at schools which are full. We also consider that parents are entitled to apply for a grammar school place and the Council has said it understood that this might be the preferred option. Moreover, the appeal process and the grammar school process can take time and therefore there may be a period when parents and the child are waiting for updates and therefore cannot make an informed decision.
  9. What should the Council do during this process? Should it offer some home tuition while children are awaiting decisions from school applications or is the Council correct to say that Mr X had the option of other schools, which were not full, and therefore the responsibility for the lack of education for Child E during May and July 2018 rests with him?
  10. The Council provided timely information about the availability of spaces in the local area, and it was the parents’ decision not to make approaches to all those schools, and instead hold out for their preferred option. This was their prerogative and was motivated by their preference for a specific school place, and issues of convenience around home to school transport arrangements. While these are clearly important considerations for parents, the option was there to approach other schools with available places and secure provision for Child E, even if it was just for half a term.
  11. We therefore do not consider the section 19 duty was triggered for this period. Rather the duty was on Mr and Mrs X to ensure that Child E received suitable full-time education following the move. It seems the Council took the necessary steps under section 436A of the Education Act to facilitate that.

Complaint (b)

  1. Child E’s attendance at School Y has been very poor since October 2018.
  2. We find no fault in the way that the Council has tried to engage Child E initially and provide her with strategies to help her attend. We accept it has worked with School Y to find solutions.
  3. The primary question in this case is in determining whether the duty under section 19 was triggered in circumstances where a child was, and still is, out of school for reasons other than illness or exclusion and whether the current arrangements make it reasonably possible (or reasonably practicable) for Child E to take advantage of existing suitable schooling.
  4. In this case both the parents and the Council considered School Y was suitable. It was also stated that Child E wanted to remain at School Y. So, we are satisfied that there was no question as to whether School Y was suitable; there was agreement that it was.
  5. So, what were the Council’s duties in these circumstances and what should it have done during the period from September 2018 to July 2019, when Child E was effectively receiving little education at a critical stage in her school career?
  6. We have taken account of the notes of multi-agency meetings. There is evidence the Council had regard to the views of clinical professionals during this period, with the Child and Adolescent Mental Health Services (CAMHS) representatives present at the multi-agency meetings regarding Child E’s non‑attendance, as well as the professional opinion of the Educational Psychologist who contributed to her statutory assessment. However, despite the concern that Child E may have special educational needs, which required assessment, we consider that the Council was not at fault in deciding there was no diagnosed medical cause to explain Child E’s non-attendance at school.
  7. In the absence of medical evidence, we have therefore considered whether Child E’s absence should have been treated as the ‘otherwise’ category under section 19.
  8. The test here is to consider the reasons for non‑attendance, whether the school was suitable and whether it was reasonably practicable for the child to attend the school.
  9. The Council says it was reasonably practicable for Child E to attend school throughout the period in question, and it reached this view having taken account of the reasons provided by Child E and her parents for her non‑attendance. But it says none of these met the threshold for section 19 provision established by the courts. The Council arrived at this judgment, having had regard to the correct legal test and the circumstances of the case. In the absence of any fault, we cannot question the Council’s judgment. Moreover, we cannot determine points of law.
  10. We also recognise the steps taken by the Council’s Early Help Team to reintegrate Child E to school and appreciate why the Council would first want to exhaust this avenue. However, it appears from the notes of multi-agency meetings that these strategies were unsuccessful, and concerns were expressed by Council officers that neither Child E nor her parents were engaging with the support offered.
  11. Therefore, in the absence of a section 19 duty being triggered, the Council had to consider whether it should pursue the other options open to it.
  12. These options could have included a referral to its Health Needs Education Team, or prosecution against the parents for non-attendance or a school attendance order or looking at individual tuition being provided by the school. However, councils and schools are not under any legal obligation to seek prosecution for non-attendance, nor are they obliged to make alternative provision available if they make a legitimate decision not to prosecute. However, in cases where councils do not pursue prosecution (or seek a school attendance order), we will look closely at the other steps councils have taken to explore the reasons for non‑attendance, and the steps taken to reintegrate the child into school.
  13. Given the prolonged nature of Child E’s non-attendance at the critical phase of Years 10 and 11, it is difficult to understand the Council’s rationale for not looking more closely at these options as a way to reintegrate Child E back into School Y. The failure to document the Council’s decision about why it decided against legal action also adds to the difficulty in analysing the Council’s decision.
  14. While we cannot say what the outcome of the other options might have been, we consider the failure to properly explore these represents a missed opportunity to reintegrate Child E back into school when the Council’s previous reintegration plan had not been successful.
  15. Moreover, early help and preventative work should begin promptly when a child is not attending school to prevent drift. The Council received a request for early help back in June 2018 from the previous council, which raised a concern about the impact on Child E by her siblings’ difficulties.
  16. Then, when School Y referred Child E’s non-school attendance to the Council in early October 2018, there was a delay of 7 weeks to 29 November in allocating an Early Help worker. That was too long, especially when Child E failed to attend school throughout October and only occasional during November 2018. Therefore, we consider that there was fault by the Council in not acting promptly when made aware of Child E’s absence from school.
  17. However, given Child E’s school attendance did not improve because of the Early Help interventions, we cannot conclude an injustice has been caused.
  18. However, significantly, it was another six months, to May 2019, that the Council formally considered prosecution and deciding this was not appropriate. But, by this stage, Child E had missed most of Year 10.
  19. In addition, once the Council decided not to prosecute the parents, there was more delay in that the Council failed to review the situation to decide what alternative steps were needed to ensure Child E attended school. Furthermore, the note of the May 2019 meeting says the Council intended to pursue a reintegration strategy that had been attempted previously in October 2018, and which had been unsuccessful (according to a Council representative at the meeting).
  20. As such, it seems the Council allowed the situation to drift, without a clear pathway for reintegration. For every day, which Child E did not attend school, this became a normalised pattern for her, and also more difficult for her to return when she had fallen behind with her academic work in relation to her peers.
  21. Therefore, we consider the Council has acted with fault in the way described and this has caused an injustice to Child E.
  22. Consideration of providing transport under the Council’s discretionary scheme could also have happened sooner but we cannot say that this would have provided a sustainable and successful solution, if it had been. So, we cannot say any delay here has resulted in an injustice.

Findings

  1. In respect of complaint (a), we recognise the difficulties for both the Council and for parents when seeking in-year admissions. We have not found fault in the Council’s actions.
  2. In respect of complaint (b), issues about individual tuition and Child E’s special educational needs were dealt with by the Tribunal in March 2020.
  3. We have looked at the Council’s past actions up to the point of when the Council issued Child E’s EHC Plan and Mr X appealed to the Tribunal. We have found fault by the Council in that it did not consider properly the range of options open to it to help Child E back into school once it decided that section 19 was not engaged.

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Agreed actions

  1. As we have found fault causing injustice on complaint (b), we have recommended, and the Council has agreed that, within one month of the date of this final statement, it will:
      1. Allocate funding of £1,000 to be used to benefit Child E’s education. This is in recognition of the injustice caused by not properly considering other options to reintegrate Child E back to School Y, including enforcement action or reviewing other engagement strategies following the multi-agency meeting in May 2019. The Council should consult Child E and her parents before deciding how the money should be spent.
      2. Provide help to Child E and to the parents about accessing post 16 education and what might be best for her.
  2. In respect of procedural improvements, the Council has agreed. within four months of the date of the final statement:
  • to develop a clear pathway for non-school attendance where there is no medical reason, which allows prompt early intervention to ensure attendance;
  • after this, a clear timetable for deciding on the success of this early intervention and whether it is necessary to prosecute the parents or not. Before making this decision, the Council should obtain medical evidence to ensure there is not a medical reason to explain the non- school attendance;
  • if prosecution is the preferred option, the Council should have an expected timescale for it, or for the school, to take such action to prevent drift; and
  • the Council should carry out a review of known pupils, in Years 10 and 11, who are not attending school for reasons other than exclusion or medical, to ensure the same errors in this case are not occurring and children, at this critical stage of their school careers, are not missing out on education.

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Final decision

  1. We are satisfied that there is no fault on complaint (a) but there is fault causing an injustice to Child E on complaint (b). The Council has agreed the actions to remedy the resulting injustice and therefore we have completed our investigation.

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Parts of the complaint that I did not investigate

  1. The Ombudsman cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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Investigator's decision on behalf of the Ombudsman

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