Summary: Miss Y complains her son, W, has been out of school for more than one year and the Council has failed to arrange alternative provision for him. In our view, the Council acted with fault because some of the decisions it made were not in accordance with the legislation or statutory guidance. The Council has agreed to review W’s case, make a payment to him and Miss Y and implement the service improvements listed at the end of this statement.

The complaint

1. Miss Y complains the Council has failed in its statutory duty to arrange suitable educational provision for her son who is unable to attend school. As a result, Miss Y says her son has missed more than a year of education.

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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. 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

4. I discussed the complaint with Miss Y by telephone and considered any information she provided. I also made enquiries of the Council and considered its response.
5. I consulted any relevant law and statutory guidance, as well as the LGSCO’s own guidance, which I have referenced where necessary in this statement.
6. Miss Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
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.

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What I found

What should happen

Provision of suitable education

8. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
9. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if 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”.
10. The guidance also says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
11. We have issued 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. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016).
12. We made recommendations that councils should:
• consider the individual circumstances of each case and be aware that councils may need to act whatever the reason for absence (except for 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;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• 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.

Attendance

13. Section 7 of the Education Act 1996 creates a duty for parents to ensure their children receive an education at school or otherwise. A failure to meet this duty on the parent’s part is an offence. Sections 436 to 447 of the Act cover councils’ duties and powers:
• Section 436A of the Act requires councils to identify children in their area not receiving an education.
• Section 437 allows councils to serve a notice on parents in their area 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.
• 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.
• Section 447 allows councils to apply to a court for an Education Supervision Order (ESO) where the council is also acting under section 47 of the Children Act 1989.

What happened

14. Miss Y’s son, who I will call W, stopped attending secondary school in November 2021. Prior to this, Miss Y says W attended school consistently but struggled due to the anxiety he experienced because of childhood trauma. The school attended by W implemented a reduced timetable, but despite this Miss Y says W was unable to sustain his attendance.
15. The school attended by W is outside of the Council’s area and in a neighbouring local authority.
16. On 30 March 2022, W’s GP wrote a letter addressed to his school. This said, “We can confirm that [W] has presented to us with symptoms of anxiety and depression. He has been referred to CAMHS [the Children and Adolescent Mental Health Service] for further assessment. Mum reports that [W] refuses to leave home and this is affecting his school attendance, which in turn is affecting his learning. I would be grateful if the school could take note of these concerns expressed by mum and offer further support to the child and the family”.
17. Dissatisfied with a lack of support put in place by W’s school, Miss Y contacted the Council, which is W’s home education authority, on 11 May 2022. In the email she explained that W had not attended school since November due to his anxiety and depression. Miss Y told the Council that W remains on the school roll, and she maintains regular contact with teaching staff and the attendance officer. Miss Y said she is still waiting for contact from CAMHS.
18. An officer from the Council responded to explain that a referral to the Council’s ‘Medical Needs Service’ (MNS) must be made by the child’s current school with evidence of a recommendation made by a health professional. The officer advised Miss Y to continue working with W’s school.
19. On 21 July Miss Y emailed the officer again to query why a referral to MNS was valid only with a CAMHS recommendation. The officer responded the following day to confirm “… if [W’s] mental health issues are preventing him from attending his school, then clear medical evidence/request is required in order to make a referral to our appropriate alternative provision”. The officer said they could liaise with W’s GP on Miss Y’s behalf if written consent is given.
20. Following this advice, Miss Y contacted W’s GP again to obtain the evidence or request as asked for by the Council. The GP wrote another letter on 10 August, which confirmed, “We understand that [W] has not been attending school due to his anxiety and depression, he is waiting to be assessed by CAMHS. I feel that it would be appropriate for [W] to be supported and offered an alternative to attending school as he is currently finding this extremely difficult in view of his current mental health symptoms”.
21. Miss Y sent the updated GP letter to the Council. The officer responded on 16 August to confirm the letter was not suitable because it needed to contain a “clear diagnosis of a condition that would not allow the child to access education support in mainstream school at the given time”. The officer went on to explain their view that W’s GP was only supporting Miss Y’s request pending a formal diagnosis. The officer said it is the Council’s view that W’s school can give him the support he needs as it does “..for most children with symptoms of anxiety and depression”
22. The officer said, “the only time a complete alternative provision would be named is when there is an EHCP in place naming an alternative provider”.
23. There are some internal emails between the officer dealing with W’s case and colleagues in the SEN department. The officer relays that W’s school consider his refusal to attend as “an attendance issue” and that “they have possibly started formal statutory process around school attendance”.
24. In the meantime, Miss Y provided her written consent for the Council to contact W’s GP. The officer said in mid-August they would do so in ‘due course’.
25. In early September the officer contacted the school to clarify what support was in place for W. The officer also told Miss Y it was not appropriate to request another GP letter until the Council knows what the school can offer for W and whether this is suitable. The officer also reminded Miss Y that a medical referral needs to come from the school, not the Council.
26. The school emailed the Council in mid-September to confirm its view that W’s GP letter was too vague to accompany a referral for the MNS. The officer suggested the school could contact the GP to clarify what support they think W needs.
27. Miss Y contacted the Council on 6 October to confirm that a parental request she made for W to be assessed for an EHCP had been refused. The officer emailed the school and Miss Y to say there needed to be a ‘clear diagnosis’ for W and strongly encouraged Miss Y to seek support from the school regarding W’s attendance.
28. In November the Council received contact from CAMHS to confirm it was assessing W. The Council officer told CAMHS that the Council does not have any involvement regarding attendance issues at schools outside of its area.
29. CAMHS also contacted W’s school to ask whether it had noted any mental health or developmental concerns with W. The school responded to say that it had not noted any markers for Autistic Spectrum Disorder (ASD) and W had no presenting mental health concerns, other than those reported by Miss Y.
30. W had assessments undertaken by CAMHS in November and December 2022. Miss Y says the assessor was not able to provide a diagnosis but did confirm their view that W was experiencing the effects of anxiety.

Was there fault in the Council’s actions?

31. In the early stages of the period complained about, there was no fault by the Council. There was a school place available for W which may have been reasonable for him to continue accessing. However, as time progressed and W remained out of school, we found evidence of fault in the Council’s actions:
• It is acceptable for councils to see whether, in the first instance, schools can re-integrate a non-attending child. However, the statutory guidance makes clear that reintegration plans should be used when the child’s re-attendance is ‘anticipated’. It is clear from the records that W’s non-attendance was long-term and not increasing despite efforts made by the school and Miss Y.
• The Council placed unnecessary focus on W being on roll. As W’s home education authority, the Council is the body which holds the legal duty to provide a suitable education for W. This is irrespective of whether W was on roll at a school, either inside or outside of the Council’s area.
• The Council incorrectly stated that it would only offer full-time alternative provision to W if he had an EHC plan. This is not in accordance with the legislation which places a duty on councils to arrange suitable provision for those unable to attend school for reasons of exclusion, illness or ‘otherwise’.
• The Council refused to consider the request for alternative provision on the basis that Miss Y had not provided sufficient medical evidence containing a formal diagnosis. The correspondence shows the Council gave mixed messages about whether it needed medical “evidence” to support the request for alternative provision or a “diagnosis”. The statutory guidance makes clear this should not be a barrier to provision.
• The Council has maintained its strongly held view that W’s school is able to meet his needs with appropriate support and adjustments. However, when W continued not to attend school, the Council’s focus should have turned to ways in which it could ensure his attendance. We asked the Council if it had considered its powers to pursue formal action to ensure W’s attendance at school. The Council confirmed it did not because W’s school is outside of its area. However, Section 437 of the Act gives councils the power to serve notices on children in their area. This is irrespective of the school’s location.

Did the Council’s fault cause injustice?

32. The faults identified caused both Miss Y and W injustice. The Council received notification in May 2022 that W had not attended school since November 2021. The Council should have taken action to assess W’s case and decide what provision he needed within 15 school days of the notification.
33. Although there is evidence of some email correspondence with the school, the Council did not meet with any professionals involved with W’s education before deciding whether reintegration was likely or anticipated. Instead, the records show one Council officer made the decision not to refer W for alternative provision based on an incorrect understanding of the law and statutory guidance.
34. Had the Council acted without fault, we consider on the balance of probabilities that one of the following three outcomes would likely have been achieved for W:
• Reintegration back into school following collaborative working between relevant professionals;
• Placement secured at an alternative education provider following a proper assessment of W’s needs and mental health problems; or
• Attendance enforcement against Miss Y to ensure W accessed education.
35. Due to the failure by the Council to apply the correct legal tests when considering W’s case, we cannot know with certainty what decision it would have taken if it had considered the matter properly. This is because the LGSCO cannot make a professional judgement about what is suitable for W. However, we can say the lack of action and a misunderstanding of the Council’s statutory duties resulted in a lost opportunity to have W’s educational needs properly considered.

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Agreed action

36. Within four weeks of my final decision the Council has agreed to:
• Apologise to Miss Y and pay £150 for the avoidable time and trouble she endured when contacting the Council to arrange support and provision for W;
• Make a symbolic payment of £1000 in recognition of the uncertainty and loss of opportunity to have W’s request for alternative provision properly considered. This payment should be used for W’s educational benefit.
37. Within eight weeks of my final decision the Council has also agreed to:
• Pass W’s case to a senior officer not previously involved with the decision to refuse provision. The officer will review the case and decide, in accordance with the law and guidance, which steps the Council will now take to ensure W’s attendance at school or otherwise. The Council will draw up a plan, to be shared with us, showing how it will deal with this case;
• Improve the way it makes decisions about requests for alternative provision. This could be in the form of staff training or a briefing paper. As part of this, the Council will draw officers’ attention to the Section 19 duties, accompanying statutory guidance and the LGSCO’s focus report as referenced in paragraph 11 of this statement; and
• Set out a clear pathway for officers to follow when considering cases like W’s. The pathway will include how officers will take timely action to decide whether to take enforcement action for non-attendance, plan for re-integration into school, seek an alternative placement or alternative provision for medical or other reasons.

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Final decision

38. We have completed this investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions will provide an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman