Summary: The Council was not at fault for initially refusing to deliver alternative educational provision to Ms B’s daughter while she was out of school. It followed correct procedure and considered evidence properly before reaching its decision. When new evidence became available, it re-evaluated its position and began delivering alternative education; however, this education was not full-time, for which the Council was at fault. It has agreed to provide remedies for Ms B’s daughter’s injustice.

The complaint

1. The complainant, whom I refer to as Ms B, complains that her daughter, C, has been out of school since October 2023. She says C’s school was not meeting her needs, which led to C developing school-based anxiety.
2. Ms B says the Council refused to deliver education to C while she was out of school, claiming there was not enough medical evidence to explain her absence.
3. However, Ms B says C’s anxiety is diagnosed and referred to in several professional reports, all of which were provided to the Council.
4. Ms B says she has had to pay for C’s education herself. She also says this matter has caused both her and C distress.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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

8. I considered information from Ms B and the Council. I also considered relevant law and government guidance.
9. Ms 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

10. Parents must ensure their children of compulsory school age receive a suitable full-time education. Councils have the power to prosecute parents who fail to ensure their child’s attendance at school. (Education Act 1996, sections 7 and 444)
11. 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 ‘alternative provision’.
12. 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)
13. 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’)
14. 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])
15. When a council arranges alternative education, this should begin as soon as possible, and no later than the sixth day of the child’s absence. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
16. Alternative education must be full-time unless the council decides this would not be in the child’s best interests for reasons of their physical or mental health. (Education Act 1996, sections 3A and 3AA)
17. The law does not define full-time education, but alternative provision should be equivalent to the education a child would receive in school. If they receive one-to-one tuition, for example, fewer hours may be needed as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
18. 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)
19. We recommend that councils:
• Consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions.
• Work with parents and schools to draw up plans to reintegrate children into 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.

What happened

20. In late October 2023, C stopped attending school. This was because – according to Ms B – she was suffering with her mental health. This situation continued for a week, at which point C’s school told the Council.
21. C’s school then asked Ms B for medical evidence to justify C’s absences. It also suggested a reintegration plan to Ms B. As part of the plan, the school would send work home for Ms B to complete with C while she was not at school.
22. Over the following fortnight, Ms B provided health reports to the school and the Council. These were from C’s GP, a psychiatrist, an educational psychologist and two therapists. None appear to say that C was unable to attend school.
23. C’s school – having consulted the Council – decided C was able to come into school. It refused to send work home to C until it saw medical evidence which confirmed otherwise.
24. However, the Council then visited Ms B with C’s school. It discussed work being provided to C alongside a reintegration plan. This was something Ms B wanted at the time (she made a formal request to the Council after the meeting).
25. C’s school suggested a reintegration plan for C (starting with a chat in the car park with a teaching assistant, moving up to an hour a day and increasing slowly). It sent this plan to C’s GP and asked for comments. It also provided some home learning to C alongside the reintegration plan.
26. The plan started soon after. However, it did not go well. The school recorded concerns about Ms B’s attitude towards the members of staff, and about C’s appearance and welfare. Ms B, for her part, felt the staff overstepped the agreement in the reintegration plan.
27. The school asked Ms B for a mediation meeting, but she did not want one. The reintegration plan did not proceed after the first few days (all of which, in the school’s view, had been unproductive).
28. In early December, C’s school says it asked her GP about her fitness for school, but he said he had not seen her, so could not express a view either way.
29. C’s school did, however, contact the Council and asked it to explore alternative provision for C. But the Council refused, because there was no medical evidence to justify the provision. The school continued to mark C’s absences as ‘unauthorised’. But it also continued to send learning home for C.
30. In late February 2024, the Council held a school attendance meeting with Ms B and C’s school. By that point, it had been provided with two more health reports.
• The first, from C’s GP, said she suffered from anxiety. It did not say she could not attend school, but it recommended a psychiatric assessment.
• The second, from a clinical psychologist, said there needed to be a clear plan within C’s school to deal with her autism and anxiety. Without such a plan, it was difficult to see how she could attend school.
31. The Council decided neither report justified the provision of alternative education. However, it did agree for C to have a ‘managed move’ to another school. C’s school started this process, and it continued sending work home.
32. The managed move was unsuccessful, as no other school was available.
33. In mid-March, Ms B’s advocate asked the Council for a full explanation why it had not delivered alternative provision to C. The Council responded, saying:
• C had a school available to her which was suitable for her special educational needs. She was expected to attend regularly.
• The school had not authorised C’s absences because it had received no medical proof saying she was unfit to attend.
• Without such evidence, and when a parent is preventing a child from attending school, the Council has no duty to deliver alternative provision to the child.
• The Council had tried to avoid prosecuting Ms B by suggesting alternative strategies, including a managed move (as it appeared Ms B had no intention of returning C to her school and had stopped all contact with them).
• Despite not authorising the absence, C’s school had continued to send work home for her, even though it did not have to.
34. Later in March, Ms B provided C’s school and the Council with a psychiatric assessment of C, as had been recommended by her GP the previous month. She said, “The psychiatrist is certain that it would be detrimental for [C] to return to school until a placement at a suitable specialist school is granted”.
35. The Council’s immediate reaction to receiving the assessment was that it likely justified the delivery of alternative provision to C. However, it sought professional advice on the assessment, and, in mid-April, held a meeting to discuss the matter with C’s school (which continued to have concerns about her welfare).
36. The Council then arranged provision from its online learning service, starting at the end of April. This was four hours a week (from April) and seven hours a week (from September), in classes no larger than 12. C also started attending a farm-based learning programme in September, for a full day each week. Ms B says this was funded by a lottery grant.

My findings

37. It is not for Ombudsman to decide whether a child can or cannot attend school. Equally, we cannot decide whether a Council must deliver alternative educational provision to a child.
38. 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.
39. In C’s case, I am satisfied that the Council, upon receiving information about her absences in November 2023:
• Considered the medical evidence about her anxiety (and its relationship with her school attendance), including new evidence as it became available (such as letters from her GP and other professionals).
• Provided advice to her school about their obligations.
• Discussed a plan with Ms B to try and get C back into school.
• Made a decision – that C’s absences were not supported by medical evidence – which was not obviously out of step with the evidence available at the time.
• Considered prosecuting Ms B for C’s non-attendance, but instead chose to explore alternatives, such as a managed move (something which Ms B had initially favoured).
40. With this in mind – and as it is the Council’s professional judgment, not mine, which decides whether a child’s absence from school is justified – I have found no fault with the Council’s initial response to C’s absences.
41. Consequently, there is no reason to ask the Council to refund Ms B for what she spent on home education, or to provide any other kind of remedy for distress or loss of service. Although I accept that there was a significant difference of opinion between Ms B, the Council and C’s school, it was ultimately Ms B’s decision to keep C away from school for the first two terms of the 2023-24 academic year.
42. In March 2024, things changed. Ms B provided the Council with a psychiatric assessment which, in the Council’s immediate opinion, appeared to justify the delivery of alternative provision.
43. The Council then took some time to make a proper decision about whether this was the case. It sought professional advice and discussed the matter with C’s school. This meant it was around a month before the alternative provision began.
44. However, two weeks of that period were school holidays, so the delay was very short. And the decision to consult other professionals was reasonable (given the complexities around C’s case, including professional concerns about her welfare) and in line with the Ombudsman’s guidance.
45. As a result, I have found that this short delay did not amount to fault.
46. However, the Council’s offer of home tuition – initially four hours a week, rising to seven hours – is less than the full-time education to which C is entitled. The Council has provided no explanation which suggests C would not be able to handle any more. This was fault by the Council.
47. C’s injustice from receiving part-time education was likely mitigated by:
• The tuition that she did receive.
• The fact that the tuition was in smaller classes than she would have had if she were in school.
• The full extra day of alternative provision she has attended since September.
48. Nonetheless, the Council should now provide a symbolic financial remedy to Ms B which recognises C’s injustice. It should also make plans to deliver education to C in line with the requirements of the Education Act.

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Agreed action

49. Within a month, the Council has agreed to:
• Apologise to Ms B for failing to offer full-time education to C since April 2024.
• Make a symbolic payment to Ms B of £1,000 to recognise C’s likely injustice from not having access to full-time education.
• Form a plan for C’s education which ensures it meets the standards required by the Education Act.

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Final decision

50. The Council was at fault, and this caused C an injustice.

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Investigator's decision on behalf of the Ombudsman