Summary: There was no fault the Council did not make alternative education provision available when Mrs X’s daughter first stopped going to school. The evidence shows the school were initially successful in returning her to school gradually. However, when this arrangement broke down and Mrs X’s daughter stopped attending, there was fault the Council did not consider and decide whether it owed a duty to make alternative education provision available. That fault caused Mrs X an injustice because she now has uncertainty about whether her daughter missed out on education.

The complaint

1. Mrs X said the Council did not do enough to ensure her daughter had adequate learning provision or alternative education provision while she was out of school between January to July 2023 and was a year five pupil.
2. Mrs X said this caused her avoidable inconvenience and has had a significant impact on her daughter’s wellbeing and education.
3. I will refer to Mrs X’s daughter as G.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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)
8. 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

9. I spoke to Mrs X and considered the information she provided.
10. I considered the Council’s comments and the documents it provided.
11. I considered the relevant legislation in this case.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

General section 19 duty

13. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

Educational provision – available and accessible

14. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
15. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
16. 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))
17. 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)

Part-time timetables

18. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

What happened

19. G started a new school in September 2022 and after the October break in the first term, her attendance began to decline. Because G’s school sent a referral to the Council, it’s Early Help Team initially spoke to Mrs X in late December 2022 about G’s attendance.

Second school term (January to April)

20. At the start of the school term in January 2023, Mrs X sent G’s school an email saying she was concerned about her daughter’s attendance because of school-based anxiety. Mrs X also asked the school for additional support. Following this, the Council’s emotionally based school avoidance (EBSA) officer and Mrs X discussed her concerns and arranged a meeting at G’s school.
21. In mid-January, the Council went to the meeting at G’s school. The notes of the meeting have a record that Mrs X said G no longer wanted to come to school.
22. The notes show there was a discussion about alternative education provision, but the intention of those present was to try and reintegrate G back into a normal pattern of school attendance, starting this as a reduced timetable. The Council also provided information they agreed to fund additional therapy sessions, which Mrs X had previously funded and had already put in place. There was then a further meeting in late January to discuss G’s progress.
23. In February, Mrs X and the school agreed to moderate increases in G’s timetable coinciding around half term. From the information I have seen, G’s school attendance had increased to a point in early March, where she was nearly at full-time attendance. Around this time, the Council attended a ‘team around the family’ (TAF) meeting, which the EBSA officer attended.

TAF meeting (late March)

24. In mid-March, after the half term beak, Mrs X raised concerns with G’s school, about increased difficulty she had in getting G to school. The case notes of the TAF meeting have a record that toward the end of March, G had said she no longer wanted to go to school. This was supported by the information provided by school that her attendance had dropped, and this was now impacting on her academic scores.
25. Also at this point, G had recently been given a diagnosis of autism spectrum condition (ASC), and Mrs X was intending to make an application for the Council to assess G for an Education, Health and Care (EHC) Plan.
26. The Council recorded several actions to be followed up after the meeting:
• ASC outreach support.
• Reduced / staggered timetable.
• G to continue with coaching sessions.

Third school term (April to July)

27. In late April, Mrs X told the Council that G had become increasingly anxious over the full break after term two and she asked the Council for additional support helping G reintegrate to school. In response, the EBSA officer asked for a further meeting with G’s school and said ‘(G) is still not managing to access school successfully’.
28. The attendance notes for G show she was not at school at all for the first week in April after the term break.

TAF meeting (April)

29. The notes of the meeting held in late April, reflect the Council were planning to carry out a home visit with G, with the intention of trying to get her back to school, by completing some direct work with her.
30. The Council provided me with information, which shows G’s school attendance after this point as follows:
• May – attended three sessions (34 possible).
• June – attended three sessions (40 possible).
31. In late June, Mrs X applied for another school for G and she moved across to her new school around two weeks later. According to the information I have seen, her attendance improved at this point.
32. I asked the Council how it considered its general section 19 duty when it was apparent G was not reliably going to school in January. It said in reply, it first needed to develop an understanding of the reasons for G’s absence, to best support her access to education.

My findings

Second school term (January to April)

33. The evidence shows the Council responded to Mrs X’s initial request for help and were then supporting G and G’s school with a view to re-integrating her back to school. The evidence suggests this plan was working to a point up until the full-term break. The Council concluded that G had education that was available and accessible. The guidance I have highlighted at paragraph 16 indicates a part-time timetable can be appropriate in the short term. As I have found no fault in the way the Council made this decision, I cannot intervene in the conclusion it reached (Local Government Act 1974, section 34(3), as amended).

Third school term (April to July)

34. The Council were aware from late March there may be an issue with G returning after the term break in April. At this point it was then aware G had a diagnosis of ASC and Mrs X was applying for an EHC Plan. In late April, the EBSA officer made a note that G had still not returned to school successfully, despite the earlier moderate increase in attendance during the previous term. The evidence after this point shows the Council had decided to pursue a plan to reintegrate G back to school, in a similar manner as it had done beforehand.
35. I find it was fault the Council did not consider and formally record its decision about whether it needed to provide alternative education provision under its section 19 duty here. This is especially so because of the new information it had, alongside the fact G had not returned to school this term and she had by then already had missed some education provision from the previous term. If the Council had formally recorded its decision, it could have communicated this to Mrs X.
36. On balance however, I cannot say whether this fault meant G missed education between May and mid-July, because I cannot say what the Council’s decision would have been and whether G would have taken up education had it been offered.
37. However, this fault has caused Mrs X an injustice because she now has the avoidable uncertainty about the Council’s decision here and whether her daughter has now missed out on an education offer for this period. The Council have agreed to my recommendation on steps to take to remedy Mrs X’s injustice.

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Agreed action

38. Within one month of the date of my decision, the Council have agreed to pay Mrs X £300 as a symbolic payment, to recognise her distress through avoidable uncertainty about her daughter’s education provision.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation, with a finding of fault causing injustice. The Council have agreed to take steps to remedy that injustice in line with my recommendation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman