Summary: Ms X complained the Council failed to provide full-time education or alternative provision of education for her child. We found fault with the Council for failing to provide suitable alternative provision. The Council agreed to apologise to Ms X and her child for the loss of education and support. The Council also agreed to pay Ms X £3,650 for missed education provision for her child and £2,823.50 to reimburse her for the cost of the educational provision she paid for. The Council also agreed to fund Ms X’s child functional skills examinations to address her missed GCSE examinations.

The complaint

1. Ms X complained the Council failed to provide full-time education for her child, Y, for over two years. Ms X also complained the Council failed to provide suitable alternative provision to full-time education.
2. Ms X says the lack of full-time education impacted Y significantly because this fell in the years leading to Y’s GCSE examinations.
3. Ms X also complained the Council delayed in completing and carrying out an Education Health Care Plan assessment for Y.

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What I have and have not investigated

4. I have investigated Ms X’s complaint about the lack of full-time education and alternative provision provided by the Council for Y.
5. I have not investigated Ms X’s complaint about delays in the Education Health Care Plan process. This is because Ms X brought this matter before the tribunal in September 2022. The Council is now addressing Ms X’s concerns about the delays and failure to fulfil the Education Health Care Plan through a separate complaint. Ms X may bring this matter to the Ombudsman for consideration under a separate complaint once the Council has completed its complaints process.

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The Ombudsman’s role and powers

6. 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)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. 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)
9. 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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How I considered this complaint

10. 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.
11. Both Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Alternative Provision of education for children

12. 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))
13. 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))
14. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
15. 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)
16. 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)
17. 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.
18. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
19. 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.
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.
22. A compulsory school week in the UK is 32.5hours including breaks. Y’s school provides 25 hours of education each week, excluding breaks.

What happened

23. Shortly before the end of 2020 winter term, Y, stopped attending school. Y did not return to school after the winter break and had only sporadic attendance at school during the spring term. The School sent work home for Y but could not reintegrate Y into mainstream education.
24. In April 2021, Y’s doctor asked for her to be signed off from school because of her sensory and communication difficulties.
25. The School referred Y to the Council on 4 May 2021 because of her low attendance. The School’s referral showed Y had been out of education for more than 15 days.
26. The Council contacted Ms X about Y’s lack of attendance in May 2021. Ms X told the Council the School had signed Y off while doctors completed an Autism Spectrum Disorder (ASD) assessment. Ms X told the Council the School was sending work home, but expressed concerns about the suitability of this work. Ms X said she was looking for suitable online work to supplement this. Ms X provided the Council with medical evidence to support the ASD assessment process being underway.
27. From 12 May 2021, Ms X engaged a private tutor to provide seven hours a week education for Y.
28. The Council completed a home visit to assess Y. The Council noted concerns about Y’s mental health and wellbeing and confirmed Y should remain signed off from school under the next assessment on 15 June 2021. The Council noted the School was sending work home and planned a slow reintegration for Y.
29. The Council discussed Y’s absence with the School. The School said they believed Y could attend school but agreed to keep her signed off until 15 June 2021. However, the School said it believed it was unlikely Y would return to school and said teachers cannot continue to provide bespoke work at home for Y. The School also expressed concerns about the suitability of the work sent home as Y was not always completing this.
30. In June 2021, Ms X told the Council about the private tutoring firm she had employed for Y’s education while Y remained out of school. Y’s doctor also diagnosed her with ASD and confirmed this with the Council.
31. The School and Council agreed a reintegration plan for Y to attend school 15 hours each week for just the morning sessions to slowly reintegrate her into school. The School said it would stop sending work home. Ms X expressed concerns about Y returning to the School and asked the Council to help her put home education in place for Y.
32. Y attended half-days of school from 28 June 2021 until the end of term and continued to receive home tuition from the tutor Ms X arranged.
33. Y attended the first week of the Autumn 2021 term. Y stopped attending school from 13 September 2021.
34. The School and Council arranged online learning for Y starting from 22 November 2021 at 5.25 hours each week. The Council said this package should be supplemented by 2 hours a week 1:1 mentoring visits.
35. Y started to receive one hour a week mentoring sessions from 13 January 2022.
36. Ms X complained to the Council on 25 January 2022 about the education Y was receiving. Y said the School was not providing suitable education as the 5.25 hours each week was not enough. The Council responded to advise Ms X should contact the school about Y’s education.
37. Ms X asked the Council on 30 January 2022 to provide the 2 hours of 1:1 mentoring promised in November 2021. The Council advised this was the responsibility of the school and it had only provided funding for one hour. Ms X provided evidence of the Council agreeing to two hours and chased it for a response in February 2022.
38. The Council did not put in place the extra hour mentoring sessions and Ms X cancelled the mentoring sessions from 16 March 2022.
39. Y failed to sit her GCSE examinations in the summer of 2022 and left her educational placement on 24 June 2022.
40. Ms X made a Stage 1 complaint to the Council on 31 August 2022. Ms X said:
• Both the School and Council failed to provide suitable education for Y while Y was absent from school.
• She kept the Council informed about Y’s lack of attendance but it failed to provide suitable education.
• The Council eventually put in place 5.25 hours of education for Y but this was inadequate.
• Because of the lack of education provision, Y failed to site her GCSE examinations.
41. The Council provided its Stage 1 complaint response on 16 September 2022. The Council said:
• The School referred Y to it in May 2021.
• It received medical evidence about Y’s ASD diagnosis in June 2021 but received no further follow up information and the School had authorised Y’s absence since June 2021.
• The School offered a reduced timetable for Y in September 2021 and referred Y for online learning in November 2021 requesting a full GCSE package. The Council said it put this in place from 22 November 2021 which Y attended.
• It also offered weekly mentoring sessions for Y but Ms X stopped these in March 2022.
• Both the School and itself tried to put in place suitable alternative provision for Y through the online learning and mentoring despite no clear medical evidence that Y could not attend school.
42. Ms X sought a Stage 2 complaint response on 18 October 2022. Ms X said:
• Y had sporadic attendance since September 2020.
• The Council had a legal duty to provide suitable full-time education for Y which it failed to provide.
• The part-time educational provision provided was inadequate for Y’s needs as there was no assessment completed that said Y could not cope with full-time education.
• The Council made no attempt to liaise with medical professionals about Y’s condition or needs.
43. The Council said it upheld its Stage 1 complaint response and directed Ms X to the Local Government and Social Care Ombudsman on 21 November 2022.

Analysis

September 2020 to May 2021

44. Ms X has advised Y has struggled with her attendance at School since September 2020.
45. 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.
46. 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.
47. There is no evidence that either Ms X or the School told the Council about Y’s absence before 4 May 2021. As such, the Council was unaware before 4 May 2021 that Y was out of education or needed support with her education. 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.

May 2021 to July 2021

48. The Council’s records show that Y was absent for periods of time for more than 15 days leading up to the referral on 4 May 2021. It would have been clear that Y had already been absent from school for 15 days on referral. The Council’s section 19 duties to provide suitable education for Y would be engaged from 4 May 2021.
49. The Council took suitable first steps to liaise with Ms X and the School to satisfy itself that Y’s absence was not because of truancy. At this point, the Council should have assessed Y’s individual circumstances and put in place suitable educational provided from day six since it was clear Y had already been absent from school for 15 days.
50. The Council’s Section 19 duties would have started from the sixth day following referral, being 12 May 2021. From this date, Y missed a further five weeks of education before the School put in place the reintegration plan. The Council was at fault for these five weeks of missed education without suitable provision.
51. The School had also confirmed with the Council in May 2021 that it had concerns about the suitability of the work for Y as Y was not completing all this work. This added further weight for the need of the Council to provide suitable educational provision for Y.
52. The lack of suitable education provision in place for Y meant that Ms X needed to source this. Ms X arranged for seven hours of tutoring each week for Y lasting from 12 May 2021 until the end of the school term. Ms X paid for this tutoring at a cost totalling £981.
53. From 28 June 2021, the School began a reintegration plan with Y in which Y attended half-days until the end of term. Y engaged with this reintegration plan and continued to receive support from her tutor. The combination of this half week, at 12.5 hours education and per 7 hours of a personal tutor would be suitable education for Y from 28 June 2021 to 18 July 2021. While the Council did not arrange this tutoring, Y did not miss education during this time.

September 2021 to 22 November 2021

54. Y attended the first week of school but then stopped attending from 13 September 2021.
55. The Council should have kept Y’s educational provision under review given that Y was only receiving part-time education at the end of the summer 2021 term. There is no evidence the Council completed this resulting in no educational provision for Y from 13 September 2021 until 22 November 2021.
56. The Council is at fault for Y missing two months of education from September 2021 to November 2021 without any educational provision.

22 November 2021 to 24 June 2022

57. From 22 November 2021, the Council arranged 5.25 hours of online learning for Y. While the Council put in place alternative provision for Y, there is no evidence this educational provision was suitable.
58. Both Ms X and the School have suggested that Y would benefit from a full-time education. The Council has never determined that full-time education would not be in the best interest of Y. The Council has shown no evidence why it considered 5.25 hours of online education was suitable for Y.
59. Ms X arranged for private tuition for Y for English from December 2021 through to 23 February 2022. Ms X also arranged private tuition for Maths from December 2021 to after 24 June 2022 to supplement the educational provision provided by the Council.
60. Y failed to attend school again throughout her enrolment. No further reintegration plans were enacted and Y remained out of mainstream education. Y’s online alternative provision only make up about 20% of the educational time that Y would have experienced in school. The Council failed to provide suitable alternative provision and this is fault.

Y’s missed education

61. 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 May 2021 and June 2022.
62. Y missed about 40 weeks of education with a varying degree of educational provision in place during this time. The Council has failed to engage with medical professional involved with Y or provide any contemporaneous notes to suggest what educational provision it considered suitable for Y.
63. The Council is at fault for failing to provide suitable full-time education for Y for these 40 weeks.
64. 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.
65. The Council failed to provide suitable alternative provision for Y from 4 May 2021 for five weeks. While Ms X arranged alternative provision for Y this was not suitable full-time education. With this mind an award of £500 is reflective of Y’s missed education for these five weeks as year 10 was not a key academic year.
66. The Council should also provide a refund to Ms X for the educational provision she arranged for Y totalling £981. If not for this educational provision, we would be awarding a higher amount for Y’s missed education from 4 May 2021 to the end of the academic year.
67. From 13 September 2021 to 22 November 2021, Y missed two months of education during a key academic year. Y received no alternative provision during this time and Ms X had also not arranged any private tuition. Given Y received zero provision in a key academic year, an award of £1,200 is reflective of these two months of missed provision.
68. From 22 November 2021 to 1 December 2021, Y received 5.25 hours of online learning provided by the Council. As noted, this educational provision was only about 20% of the equivalent of a full-time education. I can an award of £125 for this missed education, equivalent to £400 per month, is reflective for the time period 22 November 2021 to 1 December 2021.
69. From 1 December 2021, Ms X put in place extra tuition for Y for both English and Maths. At the start of 2022, the Council also started to provided mentoring on a 1:1 basis with Y for one hour each week.
70. The English tuition continued until 23 February 2022 and the mentoring until 16 March 2022. This increased provision for Y meant Y was receiving a more suitable education, albeit for less than half the hours Y would have received in a mainstream educational setting. For the 8 weeks from 1 December 2021 to 23 Feb 2022, the Council should award £300 per month for the missed provision amounting to £600.
71. The Council should also pay for the cost Ms X incurred in arranging English tutoring amounting to £1,100.
72. From 23 February 2022 to 24 June 2022, Y received less than seven hours each week of education between maths tutoring and online learning over 15 weeks. Y’s mentoring also stopped. However, Ms X declined the additional mentoring support during this time and this was still on offer by the Council. The Council should provide an award of £350 per month for the decreased educational provision at this time amounting to £1,225.
73. The Council should also pay for the cost Ms X incurred in arranging Maths tutoring up to 24 June 2022 amounting to £742.50.
74. From 24 June 2022, Y was no longer enrolled at her educational setting and the Council had not duty to provide alternative provision of education for Y.

Lasting impact on Y

75. Y failed to take any of her year 11 GCSE examinations and has left mainstream secondary education without qualifications. This will have a lasting impact on Y’s future.
76. Ms X has advised she wants Y to take functional skills examinations in Maths and English. The Council has agreed to fund these examinations. I consider this action suitable to reflect Y’s missed GCSE examinations.
77. Y is also due to enrol at her sixth-form college in September 2023, she will be able to take her GCSE examinations through this institution.

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Agreed action

78. 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 £3,650 to remedy the Council’s failure to provide suitable Alternative Provision for Y resulting in missed education. Ms X may use this as she sees fit for Y’s educational needs.
• pay Ms X £2,823.50 for the educational provision she needed to pay for during Y absence from mainstream education.
• confirm in writing it will fund Y’s functional skills examinations.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman