Summary: Mrs X complained the Council failed to arrange alternative provision for her son, Y, leaving her to arrange this and causing distress. We found the Council at fault because it did not act in line with its statutory duty to provide education to a child out of school. We recommended the Council apologise, pay £300 for distress and take action to remedy any injustice to others.

The complaint

1. Mrs X complains the Council failed to arrange alternative provision for her son, Y, from September 2021 to July 2022, placing a huge burden and causing distress to Y and her family.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. 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.
8. 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)

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How I considered this complaint

9. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
10. I gave Mrs X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Council’s power to ensure school attendance

11. Section 7 of the Education Act 1996 says parents must ensure their children receive suitable full time education at school or otherwise. A failure to meet this duty on the parent’s part is an offence under Section 444.
12. Sections 436 to 447 cover councils’ duties and powers under the Act. Section 436 of the Act says councils must identify children not receiving an education.
13. Section 437 allows councils to serve a notice on parents requiring them to satisfy the council that their child is receiving suitable education if it comes to the council’s attention that this might not be case. It also allows councils to issue a School Attendance Order (“SAO”) where parents fail to satisfy them.
14. Sections 443 and 444 allow councils to prosecute parents who do not comply with an SAO, or who fail to ensure the attendance of their school-registered child.

Council’s duty to provide education for children out of school

15. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
16. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
17. The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives 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. The report made six recommendations based on examples of good practice seen. It said councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of 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 in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance 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;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Jurisdiction

18. Parents have the right to appeal a council’s refusal to assess their child for an Education Health and Care Plan (“EHCP”). Parents also have the right to appeal an EHCP if they are unhappy with the content or the setting named.
19. We will not usually investigate a complaint where there is a right to appeal and we cannot investigate when someone has already appealed.
20. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate the matters appealed or any matter which is ‘inextricably linked’ to the matters under appeal. This means we cannot look at any missed education or provision pending an appeal outcome where those matters are linked to the appeal.

What happened

21. Y started year 11 in September 2021. Mrs X says Y could not attend school for medical reasons.
22. On 16 September Mrs X told the Council Y was out of school and asked it to arrange alternative provision.
23. On 22 September the Council told Mrs X it was the school’s duty to provide alternative provision because Y remained on roll. However, it could offer a few hours per week tuition in Maths and English.
24. Mrs X says she did not accept the Council’s offer as it was inadequate.
25. On 27 September the Council wrote to Mrs X again. It explained the steps Y’s school should take to address attendance issues. Further that his school could commission alternative provision itself if it considered this appropriate. It had asked the school to contact her to discuss what steps it could take.
26. An internal Council email of 29 September says the Council had spoken to Y’s school. The officer reported the school had offered various support. Y was completing work online and handing in completed work to tutors. Y had no difficulties in motivating himself at home. Y’s school had supplied books and texts for learning. It had also asked the school to consider a couple of sessions a week of one to one online learning with school tutors.
27. On 4 October the Council contacted the school to arrange a meeting between the Council, school and Mrs X to ensure support was in place to allow Y to access education. The Council has not detailed any follow up or provided any minutes/record of this meeting.
28. Mrs X told the Ombudsman the Council took no action, rather she liaised with Y’s school herself and it agreed to send PowerPoints to Y for each lesson. Y then used these to teach himself but found it very difficult to do so.
29. In June 2022 Mrs X complained to the Council that Y had been out of full time education for the year 2021/22 and she sought a remedy.
30. The Council responded in July. In summary it said:
• Y’s school says it supplied work and resources for him to complete at home.
• The Council also considered a couple of sessions of 1:1 tuition each week.
• The school informed it on several occasions it had put in place a package of online education which Y was engaging well with and that he was working hard.
• If Mrs X was unhappy with the school’s provision she should complain to them
31. Mrs X escalated her complaint. She said:
• The Council should have provided alternative provision, not the school.
• The Council only offered one or two hours’ tuition per week which was inadequate.
• She had to arrange a solution with the school herself but Y struggled with this.
32. In response, the Council maintained the school provided an alternative package of education during the time Y was not attending and Y engaged with this.
33. When I spoke to Mrs X she explained she did not complain to the Council about the school’s provision as she felt the school was trying its best. However, Y only managed to take some GCSEs due to their own efforts; the Council was no help. She had asked the Council to carry out an EHCP assessment for Y and it refused. She appealed its refusal and it then agreed to assess Y. She has since appealed the EHCP issued by the Council in July 2022.
34. In response to enquiries the Council provided copies of correspondence. It added:

“It saw no evidence to suggest Y was unfit to attend school. The school remained responsible for making provision for him, which they did through an online package of support. This support should have been regularly reviewed between parent and school as a means for his return back into school.”

35. In comments on a draft decision Mrs X said:
36. Her son remains out of education due to the Council not finding a suitable placement or alternative provision and simply stating "to be confirmed" in the placement section of his EHCP. She has appealed the EHCP but the Tribunal hearing is not until September 2023. The impact on her family cannot be overstated.

Findings

37. Councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
38. Mrs X told the Council Y was out of school and not receiving an education. The Council said it was the school’s duty to support Y to attend school or arrange alternative provision if needed. However, this is not in line with the law. The Council gave incorrect advice to Mrs X and this is fault. As a result Mrs X felt burdened with arranging provision with the school herself. This is injustice.
39. The Council did liaise with the school and it understood a package of online learning was in place. However, there is a lack of evidence to show the Council satisfied itself this was suitable full time education provision for Y, as it should have done. This is fault. I cannot say what the Council would have decided at the time; it may have found the provision offered by the school suitable. However, this was a missed opportunity to address any shortfall in Y’s education. This is injustice.
40. In response to Mrs X’s complaints the Council maintained Y’s school was responsible for his education. It also repeated this in response to enquiries. It is therefore clear there is a training need for staff to prevent injustice to others.
41. We recently found the Council at fault (case 22006202) as it did not arrange alternative provision or take any action to ensure a school had otherwise arranged suitable provision. In this case the Council had similarly shifted responsibility to the school. We recommended the Council provide training or guidance to staff on the Council’s section 19 duties. I will therefore not make this recommendation again. However, I would urge the Council to ensure all relevant staff have undertaken this training. I also consider the Council should revisit any similar complaints closed in the last 12 months to ensure it remedies any similar fault.
42. I cannot investigate any complaint about the EHCP issued in July 2022 as Mrs X appealed to the Tribunal. I also cannot investigate any matters linked to the appeal, including any injustice arising due to the Council not naming a placement.

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Agreed action

43. To remedy the injustice outlined above I recommend the Council take the following actions:
44. Within one month:
• Provide an apology to Mrs X for the faults identified above;
• Pay Mrs X £300 for distress and uncertainty; and
45. Within six months:
• Review all complaints made to the Council in the last 12 months concerning children out of school; consider if the Council has applied its section 19 duties correctly in light of this decision and; if the Council finds it has erred, take action to remedy any injustice.
46. The Council should provide us with evidence it has complied with the above actions.
47. The Council has accepted my recommendations.

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Final decision

48. I find the Council at fault because it did not act in line with its statutory duty to provide education to a child out of school. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman