Summary: Mrs B complains the Council did not deal with her daughter D’s education properly. The Council did not properly consider the provision of alternative education and did not deal with Mrs B’s complaints properly. D missed education provision and Mrs B had to go to time and trouble complaining three times. The Council has agreed to apologise, pay Mrs B £1,800 for D’s lost education provision, pay Mrs B £100 for avoidable time and trouble and provide guidance to staff.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complains the Council has not provided alternative education provision for her daughter D since being advised she was unable to attend school for health reasons in September 2021.
2. Mrs B says D has missed 7 months of education provision and she has had to pay for therapeutic activities.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

6. I spoke to Mrs B about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
7. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Alternative Education

8. 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.] We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
9. 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)

The Council’s complaints policy

10. The Council operates a two stage complaints policy.
• At stage one the Council says it will investigate the complaint and provide a full response within 20 working days.
• At stage two the Council says a senior officer will review the matter, make sure the initial investigation was carried out properly and provide a full response within 20 working days.
• After stage two complainants can contact the Ombudsman.

What happened?

11. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
12. D attended School A. She had experienced problems with her wellbeing from the beginning of 2021.
13. School A provided some support for D during the first half of 2021, both during periods of remote learning due to COVID-19 lockdowns and on return to face to face teaching.
14. D stopped attending School A in June 2021.
15. At the end of September Mrs B asked the Council to provide alternative education for D.
16. Mrs B complained to the Council in October and November about D being at home and not receiving any education.
17. The Council made enquiries with School A in December 2021. As a result, School A referred D to School B. D began attending School B in February 2022.

Analysis

Alternative education provision

18. The Council says that Mrs B explored Elective Home Education (EHE) in mid September 2021, but declined the pre-EHE meeting as it was agreed that School A jointly with parents would come up with solutions to enable D to attend.
19. I have seen emails which show:
• Mrs B first asked the Council to provide alternative education for D on the 27 September. She said D had been out of school since June apart from one week in September. Mrs B provided substantial details about D and her problems, including professional reports.
• Mrs B also told the Council that School A was not helping.
• On 4 October, the Council told Mrs B that School A would be best placed to explore alternative provision and that it would liaise with School A about D’s circumstances.
• The Council then separately told Mrs B that alternative education provision could only be provided for pupils who had been excluded from school or had an Education Health and Care Plan (EHCP).
• The Council also told Mrs B it would pass D’s case on to another team regarding medical alternative provision who would be in touch with her.
• The SEND team manager contacted Mrs B on 6 October
• School A told Mrs B that it was the Council’s responsibility to provide alternative education for pupils who were sick.
20. The Council and School A each told Mrs B it was the others responsibility to commission alternative education.
21. The Council’s enquiry response shows that it did not contact School A until 6 December 2021, two months after it told Mrs B it would do this.
22. When Mrs B told the Council that D was not attending school and the support provided by School A was not working, the Council should have considered whether D needed alternative education provision. It did not do this. It only took action after her third complaint. This is fault by the Council. D received no education provision between 27 September and 17 January, a period of three months taking into account school holidays.
23. I have considered the Ombudsman’s Guidance on Remedies, which says, “Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as the child’s SEN, any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period, whether additional provision now can remedy some or all of the loss and whether the period affected was a significant one in a child’s school career.
24. Where a child without SEN received part-time education in supportive home circumstances, the remedy payment will usually be at the lower end of the range. Where a child with moderate learning difficulties received no education at all, the remedy payment will usually be at the higher end of the range.”

Complaint Handling

25. Mrs B complained to the Council on 5 October 2021 and 14 October 2021. She chased up her complaints on 26 October as they had not been acknowledged.
26. Mrs B made a further complaint on 5th November 2021 and chased this up on 5 December 2021.
27. There is no evidence the Council recorded, acknowledged or responded to Mrs B’s first two complaints. This is fault by the Council. Mrs B had to complain a third time before the Council dealt with her concerns.
28. When it responded to Mrs B’s complaint, the Council took 25 days to do so. This is five days in excess of the 20 working day deadline in its complaints policy. The complaint response also did not contain any information about what Mrs B could do to escalate her complaint. This is fault by the Council.

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Agreed action

29. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks, or as specified, of this decision:
• Apologise to Mrs B and D for the loss of educational provision;
• Pay Mrs B £1,800 in respect on D’s lost educational and SEN provision. I have calculated this over three months between late September 2021 and early January 2022 at the higher end of the scale;
• Pay Mrs B £100 for avoidable time and trouble;
• Provide guidance to staff about the Council’s duties in relation to s19 alternative education provision and their responsibilities in respect of this; and
• Provide guidance to staff regarding following the Council’s complaints policy.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have found fault by the Council, which caused injustice to Mrs B and D. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman