Summary: Ms X complains about the Council’s failure to provide adequate education to her child, Y, since they were admitted to hospital and unable to attend school fulltime. The Council failed to ensure Y received suitable alternative education provision since the end of June 2022. The Council has agreed to apologise, make payments to Ms X for distress and Y for missed education, and assess whether it still owes an alternative provision duty to Y. The Council will also review its procedures and provide further guidance or training to relevant staff.

The complaint

1. Ms X complains about the Council’s failure to provide adequate education to her child, Y, since they were admitted to hospital in July/August 2021 and unable to attend school fulltime. Ms X says the Council has ignored her requests for help and has failed to provide appropriate alternative education to Y since then. Ms X is concerned about Y’s wellbeing and education prospects due to missing so much time in school. She feels the Council should be doing more to support her and her child with getting back to school.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
4. 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

5. I have spoken with Ms X and considered the information she has provided in support of her concerns.
6. I have considered the information the Council has provided in response to my enquiries.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. Ms X 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

Alternative Provision of education for children

9. 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))
10. “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))
11. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
12. 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)
13. 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)
14. 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.
15. Our focus report states councils should not assume that schools shoulder the entire responsibility for a child’s education.
16. 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.
17. 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.
18. 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

19. In July or August 2021, Y was admitted to hospital. Following this, Y was absent from school and struggled to attend due to high levels of anxiety and distress. Ms X worked with Y’s school to arrange a reduced timetable to help encourage Y back to school.
20. In September 2022, a representative supporting Ms X emailed the Council to advise it Y was struggling significantly with attending school and had not been receiving a fulltime education since August 2021. The representative said Y was now no longer able to attend school but was receiving no support with this. The representative asked the Council to arrange suitable alternative education provision for Y in line with its duties under section 19 of the Education Act.
21. The Council responded to Ms X’s representative in early October 2022 to say it had asked an Education Welfare Officer (EWO) to arrange a meeting between them, the representative, Ms X and Y’s school to support them back to school.
22. At the end of October 2022, Ms X’s representative emailed the Council again as they had not heard back from the EWO. The representative reported Y had been continuously absent from school on this occasion for five weeks so far.
23. The EWO responded the same day and explained they had met with the Head of Special Educational Needs (SEN) at Y’s school and agreed to make a referral for Y to the Access to Education Panel. The EWO explained they would be bringing consent forms for Ms X to sign to authorise the referral soon.
24. Ms X’s representative responded to the EWO’s email and asked why they had not attended the meeting with Ms X and Y’s school as expected. The EWO explained they had not been invited and believed the school was making a referral to a Pupil Health Referral Unit (PHRU) for Y.
25. From the end of October to early November 2022, there was correspondence back and forth between the Council and Ms X about completing the consent forms for Access to Education.
26. At the end of November 2022, Ms X made a stage one complaint to the Council about the lack of alternative provision for her child. The Council responded to Ms X’s complaint on 5 December 2022 and explained it could not proceed with deciding whether it owed Y a section 19 duty without consent from Ms X. Ms X returned the completed consent form to the Council the same day.
27. Ms X escalated her complaint to stage two on 3 January 2023. She questioned the Council’s approach of insisting on consent and alleged it was gatekeeping its alternative provision process contrary to the legislation.
28. The Council’s Access to Education Panel met on 9 January 2023 and decided the Council did not owe Y a section 19 alternative provision duty as it had been informed by Y’s school they were receiving a reduced timetable and two days a week attending an alternative provision. Y school had also informed the Council that Ms X was happy with this arrangement for Y.
29. The Council responded to Ms X’s stage two complaint on 19 January 2023. It apologised the EWO had not been in contact with Ms X directly sooner when notified of Y’s absence. The Council also confirmed the decision reached by the Access to Education Panel that an alternative provision duty was not owed to Y.
30. Ms X brought her complaint to us on 14 February 2023 as she remained dissatisfied with the Council’s handling.
31. Ms X continued to correspond with the Council about Y. In late March 2023, Ms X advised the EWO that Y was struggling significantly with attending even the reduced timetable at school and their attendance had dropped to 44%.

Analysis

32. We cannot consider the role of Y’s school as schools are not within our jurisdiction. This investigation is limited to the consideration of the Council’s role.
33. The law is clear that where a school does not make appropriate arrangements for a child who is not receiving a suitable education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child as missed 15 days of education either consecutively or cumulatively.
34. In response to my enquiries, the Council has said it was first alerted to Y’s low school attendance at the end of June 2022, meaning it was unaware it needed to support Y prior to this. I cannot comment on whether there was any fault by Y’s school in not telling the Council about Y’s absence sooner as I cannot investigate the actions of the school.
35. By the time Ms X’s representative contacted the Council again in mid-September 2022, it had already known about Y’s absence and low school attendance for over two months. Had the Council taken any meaningful action at the end of June 2022, it would have been clear Y had already been absent or had very low attendance at school for more than 15 days and the Council’s section 19 duties were likely to be engaged. The Council’s should have started to plan for alternative provision when it became clear Y would be absent for more than 15 school days. Its failure to do so was fault.
36. The Council’s failure to communicate directly with Ms X and her representative to ask whether the reduced timetable and other measures by the school were working for Y also appears to be fault. It should have been clear to the Council from Ms X’s continued correspondence and complaints that she remained concerned about Y not receiving a suitable education and the lack of support they were receiving.
37. In response to my draft decision, the Council explained it was never its intention to gatekeep access to section 19 alternative provision by insisting on Ms X’s explicit consent before proceeding. While I accept the benefit of the Council receiving specific comments from parents/carers about a child’s needs, consent is not a statutory requirement to the Council completing its duties under section 19 of the Education Act.
38. In this case, I consider the Council’s insistence for consent added unnecessary delay to the process of determining whether an alternative education provision duty was owed to Y. I welcome the Council’s confirmation that its guidance for alternative provision no longer includes this requirement.
39. When the Council’s Access to Education Panel considered Y’s circumstances, it does not appear to have sought sufficient information about the barriers to Y accessing education or their overall attendance. It also does not appear to have considered whether the support being offered to Y is effective or suitable for their age, ability, aptitude or special educational needs. I understand Ms X has recently sought an assessment of Y from an Educational Psychologist, which may highlight additional support needs.
40. The Council’s failure to act sooner in Y’s case means that they have not received a suitable education for a considerable period of time, which I understand from Ms X continues to be the case. As a result, I consider the Council should provide a remedy for missed education. This remedy should cover the period from when the Council first became aware of Y’s absence and low attendance in June 2022 to the point when Ms X brought her complaint to us in mid-February 2023.
41. Our guidance for fault resulting in a loss of educations provision recommends a payment of between £900 and £2,400 per school term depending on the impact and any special educational provision the child might require.
42. As Y appears to have had access to some forms of education, albeit unsuitable for their needs, I consider a remedy payment at the lower end of the scale of £1,000 per school term is appropriate. Since the end of June 2022 to mid-February 2023, Y has missed out on approximately one and a half school terms of education. I have recommended further action the Council should take to address the ongoing issues with Y receiving a suitable education.
43. Since June 2022, Ms X (or her representative) has been in contact with the Council trying to arrange suitable education for Y. Ms X has told me she has had to give up work to look after and support Y while they have not been attending school. The Council’s failure to act has caused Ms X distress, frustration and inconvenience through needing to follow up with the Council on repeated occasions.
44. A symbolic payment for distress, inconvenience and frustration is often a moderate sum and is not intended to compensate or reimburse losses in the same way as a court might. Given the circumstances in Ms X and Y’s case, I consider a symbolic payment of £300 to Ms X is appropriate to reflect the injustice caused to her by the Council’s fault.
45. I have also recommended some service improvements to help address some of the wider procedural issues I have identified during this investigation.

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Agreed action

46. Within one month of my final decision, the Council agrees to:

• make a written apology to Ms X and Y for the injustice caused by the faults identified in this decision statement. The apology to Y should only be provided if Ms X feels this is appropriate and in a format that best suits Y’s needs;
• pay £300 to Ms X for the avoidable distress, inconvenience and frustration caused by the Council’s fault;
• pay £1,500 to Ms X for the benefit of Y to remedy the Council’s failure to provide suitable alternative provision from the end of June 2022 to mid-February 2023;
• undertake the appropriate assessments to establish whether a section 19 duty is still owed to Y based on their school attendance levels from 15 February 2023 to date. If the Council continues to owe an alternative provision duty to Y, it should then make a further assessment to determine the amount and type of education provision is suitable for Y. This should include consideration of whether additional support is required to help Y catch up with a view to attaining their GCSEs/completing secondary education; and,
• following and subject to the above assessment, the Council should then consider making a further remedy payment to Ms X for the benefit of Y to reflect the missed alternative provision from 15 February 2023 to the date of the Council’s assessment, taking account of the rate we have used for the period from the end of June 2022 to 14 February 2023.

47. Within three months of my final decision, the Council will review and if needed amend:

• 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;
• its staff guidance to include clear advice about the need to promptly decide whether it has a duty to secure alternative provision (the section 19 duty) or consider taking enforcement action (pursuant to its section 426A duty) under the Education Act 1996. This covers situations when it comes to the Council’s attention that a child may not be receiving suitable education. The Council should consider including the expectations set out in the statutory guidance and the Ombudsman’s focus report “Out of sight…. out of mind?” (see above);
• its Access to Education policy to ensure the need for parental consent does not place an unnecessary barrier in the way of making decisions on whether a section 19 duty and alternative education provision is owed to a child absent from education.
• The Council should then provide training or notices/bulletins to relevant staff to highlight any changes to guidance and/or procedure.

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

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Final decision

49. I have completed my investigation and uphold Ms X’s complaint. Ms X and Y have been caused injustice by the actions of the Council. The Council has agreed to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman