Summary: The Council was at fault for failing to properly consider whether Miss B’s daughter should receive alternative educational provision while she was not attending school. This means it is unclear whether education was, in light of her individual circumstances, available and accessible to her for a full school term. The Council has agreed to make symbolic payments to recognise the injustice caused to Miss B and her daughter. It will also take steps to improve its service.

The complaint

1. The complainant, whom I refer to as Miss B, complains that the Council failed to provide education to her daughter, C, while she was unable to attend school because of bullying and mental health issues.
2. Miss B says the Council’s failure to deliver alternative education to C caused her to miss education. Miss B also says it cost her money, as she hired a maths tutor for C while she was out of school.

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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 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)
4. 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)
5. 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

6. I considered:
• Information from Miss B and the Council.
• Relevant law and government guidance documents.
• The Ombudsman’s alternative provision and remedies guidance documents.
7. Miss 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

The Council’s responsibilities

8. Councils must arrange suitable education for children 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’ provision.
9. When a council is considering whether to provide alternative provision, the “acid test” is whether the education already on offer to the child is “available and accessible” to them. (R (on the application of DS) v Wolverhampton City Council 2017)
10. If specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP”. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
11. It is up to a council to decide whether a child’s health needs prevent them from attending school, and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
12. When a child’s non-attendance may be because of mental health difficulties, a council must not follow an inflexible policy of requiring medical evidence before making its decision about alternative education. It must look at the evidence for each individual case, even when there is no medical evidence, and make a decision. (Government guidance, ‘Summary of responsibilities where a mental health issue is affecting attendance’)
13. We have issued guidance on how we expect councils to fulfil their responsibilities to provide alternative provision. (‘Out of school, out of sight?’ published July 2022)
14. We recommend that councils:
• Consider the individual circumstances of each case and be aware that they 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:

What happened

15. In November 2023, C’s school contacted the Council. It said C had been out of school for a few weeks because Miss B had “informed us, she no longer wants her daughter to be here”. The school asked if Miss B had applied for a new school, and asked how long a move to a new school could take.
16. The Council told C’s school that it had received an application, but Miss B’s preferred school was full, so C was on the waiting list.
    
     
17. In January 2024, Miss B complained to the Council. She said:
• C had been out of education for three months because she was being bullied and the school did nothing about it. This had caused her great distress.
• She had been left with only two choices: to put C at risk by sending her back to school, or to deny her an education.
18. The Council responded, saying C was on the waiting lists for the schools Miss B had applied for, and she needed to attend her existing school until a new one became available. It did not comment on the reasons Miss B gave for C’s non-attendance.
19. Miss B was dissatisfied. She complained again, saying:
• The Council had failed to address her main concern, which was that C was receiving no alternative provision while she was out of school.
• C’s mental health was poor, and her GP was involved.
• The Council had an ‘unconditional’ section 19 duty to C, because suitable and safe education was not available to her. It had been aware of the situation for the whole period she had been out of school, but it had not arranged anything.
20. In early February, a third party – whose relationship to Miss B and C is unclear – emailed the Council and said C was not attending school because of “Extensive Bullying/Mental Health”. The Council said C’s family should talk to the school about this.
21. The third party wrote back to the Council and said that, although C remained on the roll at her school, she had not attended for 120 days. They said the school had not acknowledged that C was suicidal and had refused to send work home. They said Miss B wanted section 19 provision for C.
22. In response, the Council recommended that Miss B appealed her unsuccessful school application (or asked for a managed move).
23. Later the same month, the Council emailed C’s school and reminded it how to alert the Council to any children who could not attend school because of medical needs. However, the school said C “does not have a medical need that is preventing her from attending the Academy as we are aware of”.
24. The Council then responded to Miss B’s complaint. It said:
• If a child is unable to attend to school for medical reasons, the Council would expect to receive a referral from the school – and it hadn’t.
• The Council would only deliver alternative provision if it was satisfied that, without making the arrangement, C would not receive a suitable education.
• Although the Council became aware C was not attending school in 2023 when Miss B applied for a new school, C’s existing school said it was not aware of any medical need which prevented her from not attending.
• Consequently, the Council’s section 19 duty had not been triggered.
25. In April, C started a new school.

My findings

26. It is not for Ombudsman to decide whether a child can or cannot attend school. Equally, we cannot decide whether a Council should deliver (or should have delivered) alternative educational provision to a child.
27. Instead, we investigate whether a council has acted reasonably and in accordance with its statutory responsibilities. This includes whether it has properly considered its duties towards a child who might not be able to go to school.

Late 2023

28. The Council found out in November 2023 that C was not going to school. However, at that point, there is no evidence that either the school or Miss B told the Council that this was because she could not attend (for whatever reason). C’s school described her non-attendance as being a parental preference.
29. Although Miss B says a council’s section 19 duty is ‘unconditional’ – if a child is out of school, they should receive alternative provision, irrespective of any evidence (or lack thereof) – this is not the case. Before delivering alternative provision, a council must be satisfied that suitable education is not otherwise accessible to a child.
30. As the Council did not know that C’s absence from school in late 2023 was anything other than parental preference, I have found no fault with the fact that it did not consider delivering alternative provision to her.

Early 2024

31. Although a council should consider evidence when deciding whether it has a section 19 duty to a child, a lack of medical evidence in a case where the child has mental health issues does not prevent the council from considering any other evidence and making a decision.
32. The same is true when a child’s reason for non-attendance may not be health-related at all (and where medical evidence would not necessarily be relevant).
33. In January 2024 the Council found out that C’s non-attendance was, in Miss B’s view, linked to mental health issues and bullying. Miss B also explicitly requested section 19 provision.
34. This was the point at which the Council should have considered whether the issues Miss B raised meant it was reasonable to expect C to attend school, and, if not, whether she needed alternative provision.
35. However, it did not meet its statutory obligations in doing so.
36. Firstly, in response to Miss B’s first complaint, the Council addressed her desire for C to move to a different school, but it did not consider whether she needed alternative education in the interim.
37. Secondly, after Miss B’s second complaint, the Council told her that C’s school had provided no medical evidence to support C’s absences.
38. This is true; however, evidence to inform a council’s section 19 decision-making is not limited to that provided by a school. The Council did not consider seeking information from C’s GP, as the statutory guidance says it should have.
39. Finally, the Council was aware that, in Miss B’s view, one of the reasons for C’s absences (bullying) was not health related. And not all section 19 provision needs to be because of health needs.
40. However, the Council did not consider whether, in light of C’s non-health-related difficulties, it was reasonable to expect her to return to school. It limited its focus to whether she had medical issues.
41. Consequently, I have found fault with the Council.
42. It is likely C suffered an injustice. Although I cannot say what the outcome would have been had the Council considered its section 19 duty properly, its failure to do so means it is unclear whether C had suitable education available and accessible to her between January and April 2024.
43. The Council should provide personal remedies to Miss B and C to recognise their injustice. It should also take steps to improve its service.

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Agreed actions

44. Within a month, the Council has agreed to:
• Make a payment of £1,000 to Miss B, on behalf of C, to recognise its failure to properly consider whether C should receive alternative educational provision while she was out of school.
• Make a payment of £250 to Miss B to recognise that, because it did not properly consider whether to deliver alternative educational provision to C, she had to chase this matter up herself, and felt the need to pay for a private tutor.
45. Within two months, the Council has agreed to send us an action plan which sets out how, in future, it will avoid similar failures to consider its section 19 duties to children out of school. This will include a plan for when alternative provision requests are made to its school admissions team (or other teams not usually involved in section 19 decisions).
46. The Council will provide us with evidence it has done these things.

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Final decision

47. The Council was at fault, and this caused injustice to Miss B and C.

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Investigator's decision on behalf of the Ombudsman