Summary: Mrs B complains the Council did not deal with her daughter C’s education properly. The Council did not consider the provision of alternative education properly. C missed educational provision. The Council has agreed to apologise, pay Mrs B £2000 and provide guidance to staff.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complains the Council has not dealt properly with her daughter C’s education properly since March 2022 because it did not provide alternative education provision.
2. Mrs B says C has lost 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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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)
6. 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

7. I spoke to Mrs B about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
8. Mrs B 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

Law, guidance and policies

Alternative Education

9. 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).
10. 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)

What happened?

11. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
12. C was unable to attend school from March 2022.
13. Mrs B complained to the Council about the lack of alternative education provision.
14. The Council’s stage two complaint response agreed there had been a missed opportunity to provide alternative education.
15. C began to receive one to one tutoring in September 2022.
16. The tutoring arrangements broke down in October 2022.
17. New alternate education provision was arranged by the Council in November 2022.

Analysis

18. The Council’s stage two complaint response upheld Mrs B’s complaint and agreed there was fault between March 2022 and July 2022.
19. By providing alternate education provision the Council accepted that C was unable to attend her school placement.
20. Mrs B’s SEN advocate requested a complex case worker attend meetings from May 2022. The complex case worker started attending meetings in July.
21. In early October 2022, when it became clear that the alternative education tutoring in place was not succeeding, Mrs B had engaged an advocate who informed the Council of developments.
22. Minutes show the Council considered her case at Access to Education panel meetings on 12th September,10th October and 17th October.
• The case was discussed in September when alternative provision was first made for C.
• The second meeting considered only the possibility of enforcement action. There is no evidence that C was at this point able to re-access mainstream education. Minutes show the Council was aware that the initial alternative provision had stopped and was liaising with Mrs B’s advocate about how to proceed. The Council says, “meetings were being held regularly, which the Complex Case Worker and EWO were attending, and one of the agreed actions was that C would be supported to attend some sessions in school to attempt a slow and supported re-integration.”
• The Council has provided a note of a telephone call which indicates that it discussed with Mrs B the likelihood of C engaging with another provision.
• In-between the later Access to Education panel meetings, emails show Mrs B’s advocate argued forcefully on her behalf.
• The third meeting records show the Council then stated it was open to looking at another alternative education provider. It was decided at this meeting, crucially after Mrs B’s advocate’s intervention, that the Council would not proceed to consider prosecution any further.
23. I have seen records of involvement by the complex case worker from early September. After the breakdown of the first alternative provision at the second Access to Education panel meeting on 17th October, it was recorded that the Council should look at, “offering another provision.” The Council actually provided different alternative provision in mid-November 2022.
24. The Council says, “In the time between October 2022 and November 2022 C was beginning to tentatively engage again with school, but the Council continued to try and secure appropriate alternative provision and was proactively working with Mrs B to identify a provision which needed to meet C’s needs. Once this was established the council quickly identified a provider who then had to recruit a tutor with trauma informed training, which did cause some delay. Due to the first alternative provision being unsuccessful the council wanted to ensure that the alternative provision would meet C’s needs.”
25. There was a delay to providing appropriate alternative education when the first provider failed. However, I have seen records that show some of this delay was due to consulting with Mrs B and providers. This is fault by the Council. C missed education provision for six weeks.
26. On the balance of probabilities, the period of time without alternative education provision from March to July, followed by the unsuccessful provision from September, and the subsequent period without provision towards the end of the year has impacted negatively on C’s educational attainment.
27. Emails from 2023 show that the level of provision being offered now, while not full-time, is commensurate with C’s ability to engage. Mrs B has recently requested an increase in contact time for C, which the Council has positively responded to without delay.

Action by the Council

28. The Council has agreed to apologise to Mrs B and C. It also says its Access to Education Policy and protocol came into force in September 2022 and that all relevant staff have been briefed on their roles and responsibilities I do not consider the Council’s remedy to be sufficient, having regard for the fault found above and the loss of educational provision.

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Agreed action

29. 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:
• Apologise to Mrs B and C for the loss of education provision;
• Pay Mrs B £2000 in respect of C’s lost educational provision. This is comprised of the following two elements;
1. March 2022 to July 2022, a period of three and a half months taking into account school holidays, at a rate of £400 per month, totalling £1400; and
2. October 2022 to November 2022, period of 6 weeks, at a rate of £400 per month, totalling £600; and
• Provide guidance to staff about alternative education provision and their responsibilities for ensuring it is considered and provided where necessary.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have found fault by the Council which caused injustice to Mrs B and C. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman