Summary: Ms X complained the Council failed to provide suitable education to her child, Y, while she was absent from school. On the evidence seen, we found fault with the Council for failing to provide suitable Alternative Provision of education for Y. The Council agreed to apologise to Ms X and Y and pay them £1,400 for the missed education. The Council also agreed to review its policy/mechanism for how schools inform it of the details of pupils who fail to attend school regularly.

The complaint

1. Ms X complained the Council failed to provide suitable education to her child, Y, while she was absent from school because of her anxiety and emotional based school avoidance.
2. Ms X says the Council was aware that Y was struggling to attend school consistently since September 2021 and the School only introduced online learning in 21 November 2022.

Back to top

What I have and have not investigated

3. I have investigated Ms X’s complaint about the Council’s failure to provide suitable full-time education for Y from September 2021 to 21 November 2022.
4. I have not investigated Y’s absence from school, or any associated issued, from 21 November 2022 onwards. This is because the Council must be given opportunity to address a matter before the Ombudsman can investigate a complaint. As detailed in this decision statement, from 21 November 2022, the Council has put in place Alternative Provision for Y and a plan to reintegrate Y into mainstream education. Any issues about this Alternative Provision or reintegration of Y would be the subject of a new complaint.

Back to top

The Ombudsman’s role and powers

5. 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)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. If we are satisfied with a council’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)
8. 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.

Back to top

How I considered this complaint

9. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Ms X and the Council both provided comments on my original draft decision which I have considered before issuing a revised draft decision. Both Ms X and the Council had opportunity to comment on my revised draft decision before I made my final decision.

Back to top

What I found

Alternative Provision of education for children

11. 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))
12. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
13. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
14. The education provided by a council must be full-time unless a council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
15. 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)
16. We made six recommendations. 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;
• decide, 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;
• 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.
17. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
18. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
19. The Council’s Children Missing Education policy says a school does not need to let it know where a pupil has failed to attend for 10 days as it should follow through on its own attendance policies. Only after the School has made their own enquiries for the first 20 days should they refer a matter to the Council.
20. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
21. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

22. Y had sporadic, but suitable, attendance at her school in the Autumn term of 2021 until November 2021.
23. From November 2021 to January 2022, Y missed seven consecutive weeks of school. The School authorised these absences.
24. Ms X contacted the Council’s Education Welfare Service on 6 December 2021 to advise Y was out of school and needed support. The Council says it has no records of contact, but Ms X has evidenced a call took place on this date to the Council’s Education Welfare Service.
25. In January 2022, the School began a reintegration plan for Y. The School told the Council about the reintegration plan. This plan had short-term success and Y attended school as part of the reintegration plan until mid-February 2022.
26. From mid-February 2022, Y missed fifteen of the next sixteen weeks of school.
27. Ms X contacted the Council’s educational Psychologist service on 28 March 2022 to seek support for Y’s lack of attendance. Ms X said Y had been trying to engage with school since September 2021 but was not getting acceptable support and had stopped attending. Ms X asked for the Council’s input. The Council promised to pass this matter over to the relevant Educational Psychologist for Y’s school. The Council took no further action.
28. In May 2022, the School contacted the Council’s Educational Psychologist service to request input for Y. The School confirmed Y’s lack of attendance. The Council’s Educational Psychologist contacted Ms X and arranged a meeting for 25 May 2022.
29. On 25 May 2022, the Council arranged a Return to School Action Plan and put in place steps to help Y’s reintegration into school. Y’s attendance at school improved for the final three weeks of term in July 2022. This Return to School Action Plan also included the option for the school putting work on an online platform for Y to access, complete and return.
30. Y started a new reintegration plan in September 2022 formulated by the School and Council. The Council checked in with Y on 21 September 2022 as part of this reintegration plan. Y confirmed she was making progress in accessing school. Y attended school regularly, and in line with the reintegration plan, until 26 September 2022. Y stopped attending school after this date with only three further days of attendance.
31. On 9 October 2022, Ms X complained to the Council. Ms X said:
• Y had low attendance at school caused by anxiety.
• She was concerned the School was hiding absences from the Council.
• When she contacted the Council services it was more interested in Y attending school than providing an education.
• Y was not receiving suitable full-time education.
32. In October 2022, the Council updated Y’s Return to School Action Plan to include reference to educational provision being put online for Y from 31 October 2022 on the days Y was unable to attend the school.
33. The Council provided Ms X with a Stage 1 complaint response. The Council said:
• It had no direct involvement in attendance matters at Y’s school since it was an academy.
• It would not have known about Y’s lack of attendance unless the School brought this to its attention.
• Reintegration plans since September 2021 show planned access to education and that Y was medically fit to attend school.
• The reintegration plans show that Y could not access full-time education. Section 19 of the Education Act 1996 says education only needs to be full time if in the best interests of the child.
• Its main aim was to reintegrate Y into school and told Ms X to contact it is the reintegration plans fail.
34. At the start of November 2022, the School contacted the Council to advise the reintegration plan was not working and Y had not been in school since 26 September 2022. The School requested advice from the Council. Ms X also sought a Stage 2 complaint response from the Council.
35. The Council arranged a meeting with the School and Ms X in November 2022. During this meeting, the Council agreed to put in place more suitable and structured online learning for Y to enable her access an education while also updating the reintegration plans.
36. Y accessed the improved online learning in November 2022. Y had missed most of seven weeks of missed education since 26 September 2022. Y has successfully accessed the online learning since this point.
37. The Council issued a Stage 2 complaint response on 22 November 2022. The Council said:
• Online learning was now in place for Y and reintegration plans were in place meaning it needed to take no further at this time.
• The School failed to tell it about Y’s absence and, although Ms X contacted the Council directly it said the School should have done this.
• It was the responsibility of the School to monitor Y’s attendance
• It accepted that it did not put in place Alternative Provision despite the Council being aware that Y was absent from school for more than 15 days.
• It accepted that a failure in communication between the Council and school resulted in missed opportunities.

Analysis

38. We cannot consider the role of the School as schools are not within our jurisdiction. This investigation is limited to consideration of the role of the Council.
39. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
40. The Council says Y’s school failed to notify it about Y’s absence meaning it was unaware it needed to support Y sooner. I cannot comment on whether there was fault by the School in not telling the Council about Y’s absence as I cannot investigate the actions of the School.
41. The Council’s records show that Y was absent for periods of time for longer than 20 days (whether consecutive or not) in every term since the start of 2021. The Council’s policy with the School has not been followed meaning the Council has missed opportunity to recognise that Y was without a suitable full-time education. While the duty to inform lies with the School, the Council’s current mechanism to enable this was ineffective.

September 2021 to January 2022

42. Y’s extended absence from school began in November 2021.
43. While the School may not have advised the Council about Y’s absence, Ms X did contact the Council. Ms X has evidenced contacted with the Council in December 2021. Given the Council has no records of Ms X’s contact in December 2021 but Ms X has been able to evidence this, I have taken her version of events of the call as fact.
44. When Ms X contacted the Council in December 2021, Y had already been absent from school for 15 consecutive days, without previous periods of absence.
45. The Council took no action in response to Ms X’s contact. This was fault.
46. Had the Council taken any action in December 2021, it would have clear that Y had already been absent from school for 15 days and the Council’s section 19 duties would be engaged. The Council’s Section 19 duties would have started from the sixth day after Ms X’s contact in December 2021. From this date, Y missed three further weeks of education before the School put in place the reintegration plan. The Council was at fault for these three weeks of missed education without suitable provision.

January 2022 to June 2022

47. In January 2022, the School’s reintegration plan saw an improvement in Y’s attendance at school and access to education. This reintegration plan showed promise and was suitable education for Y’s needs as it was clear Y could not manage a full-time education in the School.
48. Had the Council not failed to act in December 2021, it would have been aware of Y’s circumstances and would have reviewed the reintegration plan. While this would have had no impact during the reintegration plan, following the breakdown of the reintegration plan in mid-February 2022, the Council would known about this.
49. Additionally, Ms X contacted the Council in March 2022 to seek support for Y, telling the Council Y was out of education. The Council failed to act in response to this contact; this was fault.
50. Y was absent from school for a further 14 weeks following the breakdown of the reintegration plan. If not for the Council’s inaction in December 2021, it would have known Y was absent for school and engaged its Section 19 duty. I cannot decide when it would have been “clear” that Y would be away from school for 15 days or more following the breakdown of the reintegration plan in February 2022. But, the minimum requirement from the Section 19 duty would have prevented at least 10 weeks of missed education for Y. This 10 weeks is Y’s absence from the sixth day following 15 days of absence after the breakdown of the reintegration plan.
51. The Council is at fault for Y missing a further 10 weeks of education without suitable educational provision.

May 2022 to September 2022

52. Following the School contacting the Council in May 2022, the Council arranged a meeting and worked with the School to help support Y’s attendance. The Council’s input from May 2022 had a positive impact shown by Y’s attendance improving in July 2022, providing Y with access to a suitable education.
53. Y’s attendance at school maintained these higher levels in September 2022 as part of her reintegration plan supported by the Council. The Council was also keeping a regular review of Y’s attendance and the progress of the reintegration plan. I do not find fault with the actions of the Council at the end of the Summer 2022 term and start of the Autumn 2022 term.
54. On 9 October 2022, Ms X told the Council Y was no longer attending school. By this date, Y had missed eight days of education since the breakdown of the reintegration plan. The Council had opportunity to review and recognise the breakdown of the reintegration plan and Y’s returned absence from school at this point.
55. The Council held a further review meeting for Y on 18 October 2022. This meeting resulted in the Council arranging for the School to provide online learning for Y on every day she did not attend school from 31 October 2022. I am satisfied the Council put in place a suitable interim measure to provide education for Y from 31 October 2022 until more suitable online learning started in mid-November 2022.
56. However, the first working day following Ms X’s contact on 9 October 2022 made clear Y’s absence from school would likely exceed 15 days. The Council should have arranged Alternative Provision from the sixth day following Ms X’s contact, this would have been 17 October 2022. The Council failed to arrange the interim provision until 31 October 2022 resulting in a further week of missed education through the fault of the Council.
57. The Council is at fault for Y missing a further week of education without suitable educational provision.
58. From November 2022, the Council has put in place suitable Alternative Provision which Y is accessing. The Council has confirmed this supplements the reintegration plans in place, which have remained under review. Should future concerns arise about the suitability of the Alternative Provision or attempts to reintegrate Y into school, this would be the subject of a new complaint.

Y’s missed education

59. The Council’s Section 19 duty arose because of its failure to provide suitable education for Y because of repeated periods of extended absence from school between November 2021 and November 2022. During this time, Y missed 28 weeks of suitable full-time education.
60. The Council is at fault for Y’s missed education for 14 of these 28 weeks. During this time, the Council failed to provide Y with any suitable form of education that she could access.
61. Our guidance for fault resulting in a loss of educational provision recommends a payment of between £200 and £600 a month to acknowledge the impact of that loss.
62. Y could access some forms of education through the School providing work for Y. However, the School has confirmed Y’s engagement with this work was sporadic. Y’s particular needs prevented her from attending a school setting but did not prevent her from accessing an education. This is supported by Y’s engagement with the Alternative Provision put in place since November 2022.
63. Given Y had access to some forms of education, albeit unsuitable for needs, and that Y is not in a key academic year, I consider a remedy of £400 a month reflects the Council failing to provide any suitable Alternative Provision until November 2022
64. The total of Y’s missed education at £400 a month for 14 weeks amounts to £1,400.

Ms X’s distress, inconvenience and frustration

65. Since December 2021, Ms X has been in contact with the Council trying to arrange suitable education for Y. Ms X’s contact with the Council has increased since March 2022 in an attempt to procure suitable education.
66. The Council’s actions have caused Ms X distress, inconvenience and frustration through needing to follow up with the Council on repeated occasions to secure provision. While Ms X needed to follow up with the Council, there is inevitably time and trouble involved in bringing a complaint which must be taken into consideration.
67. A remedy payment for distress, inconvenience or frustration is often a moderate sum and we would only consider a higher award when this has been prolonged or severe. In the circumstances of this matter, I cannot justify that the avoidable distress, frustration or inconvenience was either prolonged or severe. Given the circumstances, I would consider the Council should provide an award of £100 to reflect Ms X’s avoidable distress, frustration and inconvenience caused by the Council’s fault.

Back to top

Agreed action

68. Within one month of the Ombudsman’s final decision the Council should:
• apologise to both Ms X and Y for the loss of education, loss of support, delay and distress experienced;
• pay Ms X £1,400 to remedy the Council’s failure to provide Alternative Provision for Y for 14 weeks resulting in missed education. Ms X may use this as she sees fit for Y’s educational needs.
• pay Ms X £100 for the avoidable distress, frustration and inconvenience caused by the Council’s fault.
69. Within three months of the Ombudsman’s final decision the Council should:
• review the policy/mechanism it has in place for how schools inform it of the details of pupils who fail to attend school regularly, or have missed ten schools days or more, as outlined in the statutory guidance, to ensure it is receiving suitable information about children out of education from schools.
70. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

71. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman