Summary: the Council delayed putting in place education for Mrs B’s daughter when she could not attend school due to anxiety. An apology, payment to Mrs B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Mrs B, complained the Council failed to put in place full-time education for her daughter when she stopped attending school due to anxiety.
2. Mrs B says as a result her daughter has missed out on education and she has suffered frustration at having to chase the Council put in place provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
5. 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)
6. 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

7. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs B and the organisation 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

What should have happened

9. The Education Act 1996 (Section 19) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs.
10. The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education. The only exception is where the physical or mental health of the child means full-time education would not be in their best interests.
11. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
12. We issued a focus report in July 2022: "Out of school, out of sight?" (focus report). This gives guidance for local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for local authorities, including they:
• consider the individual circumstances of each case and be aware the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day to day basis) – and even when a child is on a school roll;
• consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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.
13. The focus report says where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible.
14. A child or young person with special educational needs (SEN) may have an education, health and care plan (EHC Plan). This document sets out the child's needs and what arrangements should be made to meet them.

What happened

15. Mrs B’s daughter has SEN and an EHC Plan. In 2021 the Ombudsman upheld a previous complaint from Mrs B about the Council’s failure to provide her daughter with alternative education between October 2019 and March 2020.
16. In 2023 Mrs B’s daughter was attending a unit within a mainstream school. Mrs B’s daughter’s attendance at school had begun to deteriorate in September 2023. By December 2023 Mrs B’s daughter had missed 15 days of school.
17. On 11 December Mrs B copied the Council into an email she sent to the school where she identified her daughter had missed 15 days of education since September 2023. The Council initially liaised with the transport team as it appeared the issues were related to anxiety accessing transport. However, the Council could not identify any additional support it could put into place.
18. In January 2024 the Council told Mrs B it would hold an interim annual review. The Council also contacted the allocated school to arrange a meeting to review the support in place and any adaptations required.
19. An annual review of Mrs B’s daughter’s EHC Plan took place on 29 February 2024. That meeting noted Mrs B’s daughter’s attendance at school had dropped due to anxiety. The school said noise therapy would begin for half a day a week. The plan was for a part-time timetable and for the school to approach the inclusion facilitators. Despite that, Mrs B’s daughter only attended school for four days in March, half a day in April and half a day at the beginning of May. After that she stopped attending school altogether.
20. On 2 June Mrs B asked the Council to make a referral for alternative provision.
21. The school put some alternative provision in place in June 2024. On 10 July the school told the Council Mrs B’s daughter was not attending the alternative provision.
22. On 24 July the Council’s panel considered the case and agreed some alternative provision. That amounts to 10 hours per week. That is available for Mrs B’s daughter but Mrs B says due to her anxiety she has not yet accessed those hours.

Analysis

23. Mrs B says the Council failed to put in place full-time education for her daughter when she began having difficulties attending school. The documentary evidence I have seen satisfies me Mrs B’s daughter began missing days of school due to anxiety in September 2023. I am satisfied at first the school tried to work with Mrs B and put in place measures to enable her daughter to attend school. That is what I would expect to happen. I would not expect the Council to become involved at that stage.
24. However, it is clear by the beginning of December 2023 Mrs B’s daughter had missed 15 days of school since September 2023. I appreciate the school were continuing to try to work with Mrs B to address the attendance issues, including trialling a part-time timetable. I also recognise Mrs B’s daughter did attend school on an ad hoc basis in the early part of 2024. However the Council retains the responsibility under section 19 to ensure Mrs B’s daughter had access to full-time education. As the Council knew Mrs B’s daughter had been out of school for 15 days in December 2023 I would have expected it to put in place alternative provision to ensure Mrs B’s daughter did not miss out on education. Failure to do that is fault. I am particularly concerned about the failure to do that given Mrs B experienced similar problems in 2019 and 2020 and the Council had agreed a remedy to address those concerns following an Ombudsman investigation.
25. I have seen no evidence the Council put in place alternative provision until July 2024, shortly before the end of the school year. That means Mrs B’s daughter missed out on education between December 2023 and July 2024. As Mrs B’s daughter also had an EHC Plan it means she also missed out on special educational needs provision.
26. Mrs B says her daughter is now struggling to access the alternative provision the Council has set up due to her anxiety. Mrs B says if the Council had put in alternative provision promptly that would likely have meant her daughter would have been able to access the alternative provision. I understand why Mrs B would take that view. However, the documentary records show the reason Mrs B’s daughter struggled to attend school from September 2023 was due to her anxiety. It is therefore clear her anxiety predated the Council setting up alternative provision. It is also clear Mrs B’s daughter struggled to engage with some alternative provision the school had put into place in 2024. In those circumstances I could not say, on the balance of probability, if the Council had put in place alternative provision earlier Mrs B’s daughter would have engaged. I consider though Mrs B is left with some uncertainty about whether the situation would have been different had the Council put in place alternative provision earlier and has experienced frustration.
27. In those circumstances I recommended a financial remedy for Mrs B to reflect the missing education for her daughter between December 2023 and July 2024. I consider an appropriate remedy to reflect that missing education and special educational needs provision would be for the Council to pay Mrs B £3,000. That amount takes into account the limited provision available to Mrs B’s daughter before July 2024 and my view that it is unlikely she would have been able to access full-time education, on the balance of probability.
28. I also recommended the Council pay Mrs B an amount to reflect any costs she incurred purchasing educational books for her daughter during that period should Mrs B be able to provide evidence of that. I further recommended the Council pay Mrs B an additional £400 to reflect her frustration and her uncertainty about whether her daughter would have been able to access alternative provision if the Council had put it in place promptly. That makes a total financial remedy of £3,400. I also recommended the Council remind officers in education of the Council’s section 19 duty and the need to put in place alternative provision when a child has missed more than 15 days of school in a school year, irrespective of whether they remain on the roll of a school. The Council has agreed to my recommendations.

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Agreed action

29. Within one month of my decision the Council should:
• apologise to Mrs B for the uncertainty and frustration she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B £3,400;
• liaise with Mrs B to establish whether she bought educational books for her daughter between December 2023 and July 2024 and reimburse her for those costs if so;
• send a reminder to officers in education to remind them of the Council’s section 19 duty and the need to consider putting in place alternative provision when a child has been absent from school for more than 15 days in a school year.

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Final decision

30. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman