Summary: There is evidence the Council failed to properly consider its section 19 duty to provide Mrs X’s son, Y, with suitable alternative provision when he was unable to attend school due to health needs between May 2022 to December 2022. I have made recommendations to remedy the injustice caused by the faults for the Council to consider.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains the Council failed to make appropriate alternative provision between May 2022 and December 2022 for her son, Y.

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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. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

5. I have considered Mrs X’s complaint and the information she provided.
6. I have considered the information I received from the Council in response to my enquiries.
7. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received before making my final decision.

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What I found

Relevant law and guidance

School attendance

8. Section 7 Education Act 1996 requires parents of children of compulsory school age to ensure their child receives full time education by regular attendance at school or otherwise.
9. Schools and Councils have various powers to enforce attendance at school. This may include parenting contracts, parenting orders and fixed penalty notices.
10. Councils can also prosecute parents for a criminal offence if they fail to ensure their child attends regularly at school (s.444(1)(A) Education Act 1996).
11. Statutory guidance Working Together to Improve School Attendance says schools, councils and families should work together to identify root causes of absence and remove barriers to attendance. This may include putting in place an early help plan, or assessing for an Education, Health and Care (EHC) plan.

Education when a child cannot attend school

12. 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. (Statutory guidance ‘Alternative Provision’ January 2013)
13. 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)).
14. The education provided by the council must be full-time unless the 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 sight? published July 2022. We made recommendations that Councils should:
• consider the individual circumstances of each case and be aware that a council 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
16. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.
17. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should work closely with medical professionals and the child’s family. Where specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should consider liaising with other medical professionals or look at other evidence to ensure minimal delay in arranging appropriate provision for the child. The guidance says Councils should not unnecessarily demand continuing evidence from a consultant without good reason.
18. In R (on the application of D) v A local authority [2020] EWHC 2916 (Admin) the Court said that it was not a precondition for alternative provision to be provided when parents have obtained a consultant’s report. There may be other ways in which the child’s illness and inability to attend school come to the attention of the local authority. The Judge said it was clear from section 19(1) itself that the responsibility rests with the local authority to identify when alternative provision is required for a child on health grounds, it is the local authority’s decision.
19. In new guidance, Summary of Responsibilities Where a Mental Health Issue is Affecting Attendance, and the guidance Working Together To Improve School Attendance, the Government says professionals should provide cross-agency support through a team around the family to alleviate a pupil’s concerns about barriers to attending school. Schools must record absences as authorised where pupils cannot attend due to illness that is mental health related. Schools should inform the Council where pupils are likely to miss more than fifteen days. Councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education.

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What happened

20. Y was attending School 1, a mainstream school. Due to anxiety, Y struggled with school. Mrs X was of the view Y’s needs were not being met by School 1 and in September 2021 he joined Year 5 at School 2, also a mainstream school.
21. Y began struggling to attend School 2 due to anxiety. Mrs X arranged for an Educational Psychologist (EP) to assess Y. The EP recommended Y have an assessment for Autism and that School 2 should request an Education, Health and Care (EHC) needs assessment from the Council. The EP’s report was sent to School 2 in May 2022.
22. The Head Teacher wrote to Mrs X on 22 June 2022 to advise her that the Inclusion Officers (from the Council) were concerned about Y’s attendance. On 1 July 2022, Mrs X requested support from School 2 to help reduce Y’s levels of anxiety and improve his attendance. Mrs X specifically requested alternative provision from School 2 based on the medical evidence it had from May 2022.
23. On 20 October 2022, Mrs X contacted the Council and requested alternative provision for Y under section 19 of the Education Act because he had not attended school for more than 15 days.
24. On 11 November 2022, Mrs X complained to the Council because it had been 21 days since she requested alternative provision but this request had not been formally acknowledged by the Council and provision had not been arranged.
25. In mid-November 2022, Mrs X met with the school and Council to discuss what role the Council could play in supporting Y. In this meeting Mrs X provided her consent for Y’s EP report to be shared with the Council.
26. The Council received the EP report on 15 November 2022. In the report there were concise and clear strategies for home and school to adopt to support Y to successfully engage with education.
27. On 21 November 2022 the school and Council arranged a professionals meeting. In this meeting the Council said it was evident that School 2 had made “every reasonable adjustment possible to be inclusive and support” Y both with his anxiety and through the EHC Needs Assessment process. In this meeting, School 2 agreed to fund alternative provision for Y.
28. On 16 December 2022, the Council responded under Stage 1 of its complaint process. The Council said it had provided advice to School 2 on how to support Y but it “was not involved outside an advisory capacity as [Y’s] absences were all being authorised as illness by the school”. The Council said School 2 did not have permission to share Y’s EP report and due to this the Council’s Access to Education (A2E) service were unable to engage with Y. When consent was given and the Council received the report, it found that although there were strategies to help Y, the report did not say he was medically unfit to attend school.
29. On 3 January 2023, Mrs X escalated her complaint to Stage 2 of the Council’s complaint process. Mrs X was unhappy the Council had not acknowledged that it had a duty to provide Y with alternative education. The Council’s response was that the school were taking the lead in assessing the need for any alternative provision for Y. It also said that the reason Y was not receiving an appropriate full-time education was partly due to his anxiety and medical needs. The Council recommended that the school should continue to source suitable alternative education and it apologised there was nothing further it could do in relation to alternative provision.
30. On 11 January 2023, Mrs X emailed the Council about her concerns that Y was becoming isolated due to not having contact with a peer group. Mrs X also specifically referenced her concerns that Y had not received any provision, apart from one online session. She also stated that provision at home for Y was not the answer.
31. The Council acknowledged how challenging the situation was for Y and the family. The Council also said that “it is important to clarify that [Y] does have full-time educational provision at [School 2], but that he is unable to access that provision at this time”.
32. Mrs X remained of the view the Council should arrange alternative provision because the education he was receiving from the school was insufficient.

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Analysis

33. The Council was aware from June 2022 that Y was not accessing full-time education and had prolonged absences from school. From September 2022 to December 2022, Y had only attended one full day and three afternoons at school and received one online session as alternative provision for two hours.
34. Councils are under a section 19 duty to make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise and it must put in place this provision without delay. Alternatively, if councils believe children are well enough to attend school, there are a range of measures it can take to enforce attendance.
35. There will be cases where there is doubt about whether a child is too ill to attend school or whether the issue is non-attendance. Case law has been clear that this is a matter for the Council to determine and councils cannot delegate the section 19 duty to schools. Therefore, in this case, the Council’s role was to choose whether to require attendance at school or provide Y with suitable alternative provision.
36. The Council provided advice to School 2 on how it could support Y and it attended some meetings with Mrs X and the school to discuss provision. The statutory guidance makes it clear that Councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school.
37. However, the Council was aware that School 2 had made every “reasonable adjustment possible” to support Y but he was still unable to attend school. At this point the school said it would fund alternative provision for Y and the Council continued to advise the school and attended some meetings with Mrs X and the school. We would expect the Council to provide evidence that it has objectively considered whether the education arranged by the school is suitable in situations where it has decided not to arrange alternative provision.
38. I asked the Council to explain if it considered the suitability of the education being provided by the school during this time. Although the Council attended some meetings with the school, it did not provide me with evidence that it turned its mind to the question, during this complaint period, of whether the work being provided by the school for Y to access from home was suitable for his needs, despite Mrs X raising that she was unhappy with the education being provided. This is fault.
39. Mrs X made her concerns about the lack of provision known to the Council and School 2 on several occasions. She also advised the Council of her concerns about the detrimental impact the lack of provision was having on him. In Mrs X’s email from December 2022, she referenced her concerns about Y not receiving any alternative provision apart from one online session. The Council responded by saying full-time provision was available at School 2 but that Y was unable to access it. However, access to education is a fundamental right. If a child is unable to access provision, it cannot be suitable.
40. I have seen no evidence that the Council assured itself that Y was receiving a suitable full-time education. I have also not seen any evidence the Council considered that one online session during the entire term was all the alternative educational provision that Y could manage.
41. To conclude, I do not consider the Council did enough between June 2022 and December 2022 to ensure Y was accessing suitable education despite it being under a legal duty to do so. The Council was at fault.
42. We cannot know with certainty what education would have been suitable for Y during this time, however, Y and his family have been caused a period of distress and uncertainty regarding whether the Council could have done more to improve his educational outcomes during this period, had it acted without these faults.

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Agreed action

43. To remedy the injustice caused by the faults identified above, within four weeks of this final decision, the Council has agreed to:
• Apologise to Mr and Mrs X for the faults identified in this case; and
• Pay Mrs X £1000 to recognise the period of uncertainty caused by the Council not sufficiently considering the suitability of Y’s education. I recommend this payment is used for Y’s benefit as Mrs X sees fit.
44. The Council has also agreed, that within three months of this final decision, it will remind relevant staff of its section 19 duty to make suitable full-time educational provision to children who are absent from school due to illness, exclusion or otherwise.
45. The Council will provide us with evidence it has complied with the above actions.

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Final decision

46. The Council was at fault for failing to consider its section 19 duty properly and ensuring Y was receiving suitable alternative educational provision. The Council has agreed to sufficiently remedy the injustice caused to Mrs X and Y. I have now completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman