Summary: Ms X complained that the Council failed to act when her son was not attending school. We found some fault causing an injustice. The Council has agreed the recommended ways to remedy this. Therefore, we have completed our investigation and are closing the case.

The complaint

1. Ms X complained that the Council failed to provide alternative education to her son, Y, who has been out of education since October 2023, and had had very poor attendance before this.
2. Ms X says the impact of the Council’s delays and failure to provide alternative education has been devasting on Y and herself. She has had serious mental health difficulties and Y is isolated and spends all his time on his own and on his computer.

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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.
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
5. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b)).
8. 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).
9. 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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What I have and have not investigated

10. I have investigated the complaint from January 2023, this is twelve months from when Ms X made her complaint to us, to June 2024 when the Council issued an Education, Health and Care (EHC) Plan. Ms X now has a right of appeal to the SEND Tribunal if dissatisfied with the content of the EHC Plan or named school placement.

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How I considered this complaint

11. I have spoken to Ms X on the telephone and made enquiries of the Council.
12. I have taken into account the findings made in a previous complaint (23 014 079) concerning a similar complaint.
13. I issued a draft decision statement to the Council and to Ms X and have taken into account their further comments before reaching a final decision.

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What I found

Inability to attend education due to health needs

14. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
15. 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))
16. The Courts have found that it is a judgement for the 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])
17. 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
18. 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 (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;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

19. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

Attendance

20. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence, they can receive a fine or imprisonment of up to three months.

The Council’s policy on alternative education

21. The Council told us, in a previous investigation, that it uses an online system to monitor children that do not access education in the usual way. The Council encourages schools to use this system to report any pupils that are missing out on education so that it can support it and provide alternative provision when necessary.
22. The Council’s policy on alternative education is dated January 2022. But it may be there is a revised policy since this date.
23. The 2022 policy states that most unwell pupils can continue to have their education met at their allocated school. The policy states that the Council requires confirmation from a doctor from the Children and Adolescent Mental Health Services (CAMHS) or from a General Practitioner (GP) that a pupil cannot attend school.
24. The Council’s Inclusion Service monitors pupils that are missing full-time education. The policy states that schools retain responsibility to provide education. The Inclusion Service can advise on the development of individual healthcare plans and signpost to services that might provide support for pupils whose ill-health is impacting on their education.
25. The policy states that alternative education is only provided if there is sufficient evidence that every reasonable adjustment has been made by the school to accommodate the pupils’ needs. It appears that the Council will not provide alternative education unless a school requests this.

Key facts

26. In February 2023, Ms X arranged for a neurodevelopmental assessment of Y. This stated Y has attention deficit hyperactivity disorder (ADHD), anxiety and slow processing speed. The Council says that it had not been provided with a copy of this medical report. Ms X says that Y’s General Practitioner wrote a letter about Y’s difficulties.
27. Y attended a mainstream secondary school, School B. School B’s records show that, between January to June 2023, Y was failing to attend, and he had some detentions due to his poor behaviour.
28. In June 2023, School B made a referral to the Council’s Inclusion Team. School B stated that Y was at risk of permanent exclusion. There is reference in School B’s records that Ms X had obtained a private assessment and that Y may have ADHD. In School B’s risk assessment, it also refers to Y being diagnosed with ADHD.
29. The Council advised School B to apply to the Education Entitlement Board to seek advice. This provides support to schools to help keep pupils in school.
30. Ms X says that, by October 2023, Y was refusing to attend School B. She contacted the Council asking for alternative education and made a complaint to the Council about the fact that Y was out of school with no alternative education. The Council says that this is when it first became aware of Y’s non-school attendance.
31. In late November 2023, the Council provided its stage one complaint response. The Council explained that the Council would not provide alternative education unless the school requested this. The Council explained that School B had made no such request, but it had requested support from the Mental Health in Schools Team. The Council advised Ms X to send any medical information to School B to support the view that Y was unable to attend school due to his medical news. It also stated that one of the Council’s attendance officers would be in touch and that School B had requested an EHC needs assessment.
32. Ms X says that she sent a GP letter to School B stating that Y was unable to attend school.
33. In December 2023, School B told the Council that, although it had offered support to Y, he was still not attending school. But School B stated it remained committed to providing support for Y and, if that failed, enforcement proceedings might be required.
34. In January 2024, there was a targeted support meeting. School B stated that it was not looking at alternative provision because it was able to provide a bespoke package at school.
35. In early January 2024, Ms X, dissatisfied with the stage one complaint response, asked for escalation to stage two of the complaints’ procedure. Ms X provided detailed information about all the past efforts made to secure Y’s attendance at School B, but that all had failed. She referred to Y’s diagnosis of ADHD and that School B changed the goalposts. She made it very clear that in her view School B was unable to meet Y’s needs.
36. At the end of January 2024, the Council completed a stage two investigation. The Council told Ms X that it still had not received any medical evidence which supported the view that Y was unable to attend school because of medical needs. The stage two letter stated that School B and the Inclusion Service believed School B remained the best option. It listed the support provided by School B: one to one support, mentoring from a member of staff with ADHD experience, a curriculum tailored to Y’s needs, Educational Psychologist’s (EP’s) support in school and help from the Children Services.
37. Ms X’s complaint was not upheld.
38. In March 2024, it was noted that Y had been out of school since March and his attendance for the spring term (January to March 2024) was 12.4%. Ms X says that Y did not attend School B at all in 2024.
39. In April 2024, the Council agreed to carry out an EHC needs assessment (after Ms X had appealed the Council’s refusal). In late May 2024, School B stated that it could not meet Y’s needs after the Council had consulted it at the draft EHC planning stage.
40. In June 2024 the Council issued a final EHC Plan. Ms X says that the Council is suggesting a specialist school placement.

Findings

41. I cannot comment on the Council’s initial refusal to carry out an EHC needs assessment because Ms X had the right of appeal to the SEND Tribunal, which she exercised. I also cannot investigate events after the Council issued the final EHC Plan in June 2024. We also cannot look at School B’s actions.
42. In the previous Ombudsman investigation, we found that the Council’s alternative education duty should be considered as soon as it is aware a child is not attending school. We decided that there is no requirement for it to receive a formal request for alternative provision from a school before acting. Indeed, the statutory guidance notes that it applies equally for children who are not on the roll of a school.
43. The Council accepted this finding and reminded relevant officers of it.
44. In this case, the Council was aware that Y had stopped attending School B when Ms X contacted it in October 2023. School B told the Council that it had made many efforts to support Y and the parents, but Y was still not attending. However, School B stated it remained committed to supporting Y to remain at school. The Council accepted School B’s assessment and I consider that there is no fault at this point. The Council was reassured by School B’s comments, and it is appropriate for schools to initially resolve non-attendance and provide reasonable adjustments.
45. In early January 2024, Ms X escalated her formal complaint to the Council to stage two and wrote a detailed account of the efforts made to secure Y’s school attendance and the fact that School B’s efforts were not working. The stage two response primarily repeated the response made at stage one and reiterated that the Council required School B to request alternative provision.
46. As in the previous investigation, I find that the Council was at fault because there was no need for the Council to receive a request from School B for alternative education for it to consider whether this was required. The fact School B did not ask for alternative provision is not relevant.
47. Moreover, in January 2024, Ms X provided information to the Council which should have alerted the Council that School B’s efforts, for whatever reason, were not providing Y with fulltime education. And he was missing out on education.
48. At this point, the Council should have stepped in and looked more carefully at School B’s efforts and why they were failing to reintegrate Y. And it also had to consider whether it had a duty to provide alternative education and whether School B was available and accessible to Y.
49. I am therefore satisfied that there was a missed opportunity between January to June 2024 to respond to Ms X’s concerns about Y not attending School B and to resolve this situation so that Y received education. Moreover, the fact that there is now an EHC Plan for Y, recommending a specialist placement and School B is saying it cannot meet Y’s needs, means that the Council might have, on the balance of probability, known this sooner had it investigated Ms X’s concerns in January 2024.
50. Therefore, on the balance of probability, I consider that Y has missed out on suitable alternative education between January and June 2024 (one and half terms).

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Agreed action

51. My view is that the Council’s faults have caused an injustice to Y in that there has been a delay in ensuring he had appropriate education, and an injustice to Ms X in that she has been caused avoidable distress and time and trouble.
52. When someone has suffered injustice, we try to put them back in the position they would have been but for the error. Our focus is on restoring services that have been denied. Where that is not possible, we will try to think of remedies that acknowledge the impact of the faults.
53. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
54. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
55. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
56. Within one month of the final statement, the Council will:
1. apologise to Ms X for the faults identified and make a symbolic payment to her of £500 for her avoidable distress;
2. make a symbolic payment to Ms X, to use on Y’s behalf, of £3,500 for the missed opportunity between January to June 2024 to provide alternative education to Y;
3. the Council will review its policy on children with health needs missing school to remove the requirement for schools to ask for alternative education before the Council will consider this (if it has not already done so);
4. the Council might want to consider adding to its policy a timescale for actions so that, when pupils are missing from education, the situation is not allowed to drift before the Council decides whether it should provide alternative education; and
5. when reviewing its policy, the Council should take account of our recommendations in our Focus Report.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. There has been fault causing injustice. The Council has agreed to remedy this in the way recommended. Therefore, I have completed my investigation and am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman