Summary: We will not investigate Ms X’s complaint about the Council’s refusal to offer her children alternative educational provision. This is because there is insufficient evidence of fault.

The complaint

1. Ms X complains the Council has failed to provide appropriate support or offer alternative education for her two children who have struggled to attend school since 2021. She also says it put her under pressure to home educate her children and the Education Welfare Officer has unfairly threatened her with prosecution rather than offering support.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organization.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by the complainant.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. 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 alternative provision.
6. 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.
7. Ms X’s two children are registered at a local mainstream school. They have had low school attendance since 2021. Ms X complained the Council had not supported her children to attend or offered any alternative provision. She said the support the Council had offered was inappropriate.
8. In its complaint response, the Council said that although it accepted her view that the children had significant additional needs, it held no evidence to support that the children were unable to attend school for health reasons. It listed the support it has offered Ms X and the children since 2021 to try and support them to return to school. It said Ms X has chosen not to accept this support.
9. It said the law protects a child’s right to a full-time education and the Education Welfare Officer was concerned by the children’s low attendance. It said they had attempted to work collaboratively with her, the school, children’s mental health services and the access to education service but without success. It said the team would continue to work with her to try and improve the children’s attendance but may prosecute as a last resort.
10. It said it had found no evidence that she was put under pressure to home educate the children. This was suggested as an option during a meeting where other strategies were also considered.
11. We will not investigate this complaint. The children are registered at a local school and, on the balance of probabilities, it is reasonable to expect them to attend. There is insufficient evidence to support Ms X’s view that the Council has a duty to provide alterative provision. The evidence shows the Council attempted to work with Ms X and has offered support to improve the children’s attendance, but Ms X has chosen not to accept this support. The Education Welfare Officer has a duty to ensure children receive the education they are entitled to and if efforts to achieve this are unsuccessful, the law supports councils to consider bringing legal action against parents. There is insufficient evidence of fault in the Council’s actions to justify further investigation.

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Final decision

12. We will not investigate Ms X’s complaint because there is insufficient evidence of fault to justify further investigation.

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Investigator's decision on behalf of the Ombudsman