Summary: Mrs X complains the Council has failed to deal with her son Y’s education properly. The Council is at fault because it did not communicate effectively with Mrs X and Y only access part of his school provision. Mrs X suffered avoidable distress and Y missed educational provision. The Council should pay Mrs X £3,400.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has failed to deal with her son Y’s education properly because it:
• Did not respond to emails or provide updates to her.
• Did not provide Y with a suitable education since he stopped attending school in September 2023.
2. Mrs X says she has suffered avoidable distress and uncertainty and Y has missed educational provision.

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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 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

6. I spoke to Mrs X about her complaint and considered documents she provided. I considered the Council’s response and the supporting documents it provided.
7. Mrs X 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

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)
10. While there is no legal requirement as to when full-time education should begin for children placed in alternative provision (AP) for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school. (Statutory guidance ‘Alternative Provision’ January 2013)
11. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made seven recommendations including that councils:
• Consider the individual circumstances of each case and be aware that the Council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis)- and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare and take 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 education.
• 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.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the Council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.

Absences from school

12. A school may authorise a pupil’s absence if, for example, the child is too ill to attend, the school has given advance permission for the absence, or the child is being educated off-site. Schools must regularly inform the council of any pupils who are regularly absent from school, have irregular attendance, or have missed ten school days or more without the school’s permission.
13. When a child refuses to attend school, or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. Where specific medical evidence, such as that provided by a medical consultant, is not quickly available, 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.
14. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
15. When reintegration into school is anticipated, councils should work with the school (and hospital school, PRU/home tuition services if appropriate) to plan for consistent provision during and after the period of education outside school. As far as possible, the child should be able to access the curriculum and materials that he or she would have used in school. The Council should work with schools to ensure that children can successfully remain in touch with their school while they are away. This could be through school newsletters, emails, invitations to school events or internet links to lessons from their school.
16. Councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.

What happened?

17. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
18. Y had an EHC Plan which named School A. Y stopped attending School A in September 2023. Mrs X said this was due to anxiety.
19. An Annual Review of Y’s EHC Plan was started in November 2023 at Mrs X’s request.
20. The Annual Review was completed in mid-January 2024.
21. School A arranged limited alternative provision for Y.
22. Mrs X complained to the Council in April 2024.

Analysis

23. The Council upheld Mrs X’s complaint in June 2024. It agreed that there had been limited communication with Mrs X, that she had not received a response she had been promised and that Y had only accessed part of his school provision.
24. This is fault by the Council. Mrs X suffered avoidable distress and Y missed some education provision.
25. 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 £900 to £2,400 per term 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 severity of the child’s SEN as set out in their EHC plan.
• 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 can now remedy some or all of the loss.”
26. Y did receive partial provision for part of the year. Mrs X has stated to me this was beneficial for Y. I have taken this into account when considering an appropriate remedy.

Action by the Council

27. In its stage two complaint response the Council apologised to Mrs X and said it was increasing the number of staff.

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Agreed action

28. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Pay Mrs X £3,400 in respect of Y’s missed education/SEN provision. This represents a higher element of £1,400 in respect of the single term September 2023 to January 2024 and a lower element of £1,000 in respect of each of the two terms January 2024 onwards.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I have found fault by the Council, which caused injustice to Mrs X. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman