Summary: Mrs X complains the Council has not properly dealt with alternative education provision for her son Y. The Council is at fault because it delayed making a decision and did not consider Y’s health concerns. Mrs X suffered distress and uncertainty as well as financial loss in educating Y at home. The Council should apologise, repay money Mrs X has spent on Y’s education and pay £200 for distress.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council failed to make alternative educational provision for her son Y for two terms between April and December 2023 and has failed to communicate with her appropriately.
2. Mrs X says she has suffered distress, uncertainty and financial loss.

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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. I spoke to Mrs X about his complaint and considered documents he provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
8. Mrs X 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

Law, guidance and policies

Alternative Education

9. 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. [The provision generally should be full-time unless it is not in the child’s interests.] We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
10. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
11. While there is no legal requirement as to when full-time education should begin for children placed in alternative provision (AP) for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible. 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. (Statutory guidance ‘Alternative Provision’ January 2013)
12. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for councils 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 seven recommendations including that councils:
• Consider the individual circumstances of each case and be aware that 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.
• Choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative education.
• 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.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the Council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.

Absences from school

13. A school may authorise a pupil’s absence if, for example, the child is too ill to attend, the school has given advance permission for the absence, or the child is being educated off-site. Schools must regularly inform the council of any pupils who are regularly absent from school, have irregular attendance, or have missed ten school days or more without the school’s permission.
14. When a child refuses to attend school, or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. Where 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, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child.
15. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
16. When reintegration into school is anticipated, councils should work with the school (and hospital school, PRU/home tuition services if appropriate) to plan for consistent provision during and after the period of education outside school. As far as possible, the child should be able to access the curriculum and materials that he or she would have used in school. The Council should work with schools to ensure that children can successfully remain in touch with their school while they are away. This could be through school newsletters, emails, invitations to school events or internet links to lessons from their school.
17. Councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.

The Community and Hospital Education Service (CHES) alternative education provision

18. CHES is an AP academy that is commissioned by the Council to provide education for pupils unable to attend school due to medical reasons. Its main principles are:
• Ensure early identification and intervention and thus reduce anxiety for children and young people, families and schools.
• Provide education for all children and young people of statutory school age whose health enables them to access this.
• Encourage close liaison with parents and carers at every stage of the process.
• Ensure that the child’s view is taken into account at every stage.
• Provide continuity of educational provision.
• Promote successful reintegration back into mainstream school or Post 16 provision.
• Work together with other services and agencies to ensure there is a high-quality educational provision for this group of vulnerable children and young people.
• Ensure effective liaison with health professionals by schools, CHES and other AP provision.

What happened?

19. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
20. Mrs X made a previous complaint to the Ombudsman about alternative education provision in 2022. This complaint was upheld and a remedy provided.
21. As part of this complaint period in August 2022, it was arranged that Y would go to outdoor activities session one day a week and CHES for three sessions a week. The CHES sessions were to be provided at home. From September 2022 the aim was to integrate Y back into school.
22. Mrs X requested s19 alternative provision for Y in April 2023. This request was refused in June 2023.
23. Mrs X complained to the Council. The Council did not uphold her complaint about education provision but accepted it had delayed in communicating with her.

Analysis

24. In April 2023 Mrs X received an email from the Council stating, “we will continue to support [Y] in his education. I note you are going through the EHCP process, untril such time that this has been confirmed the education welfare service will work with yourself, [Y] and [the school] to ensure that appropriate provision is in place.” I went on to state it would, “..arrange provision with you and the school for the next term.”
25. I made enquiries of the Council asking it to explain this statement. It did not provide an answer. On the balance of probabilities, I consider this meant that the Council agreed that the existing arrangements for Y’s educational provision would be maintained until his EHCP had been finalised.
26. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’ the Council must intervene and make such arrangements itself. The duty arises after a child has missed 15 days of education either consecutively or accumulatively. From the evidence I have seen, the Council became aware Y was not attending school in April 2023.
27. In May 2023 Mrs X chased the Council as she had not received a further response. Mrs X said Y’s school supported the provision of s19 alternative education for Y.
28. A meeting was arranged between Mrs X, Y’s school and the Council. It was recorded that Y was not able to access school due to anxiety and had not attended school since March 2023. A range of evidence including a GP referral to mental health services and a diagnosis of autism, as well as an application for an EHCP was available.
29. Mrs X had sourced a range of provision herself and Y’s school were funding an element outside school.
30. The Council says this was agreed as part of a reintegration programme which was extended but with the ultimate goal to support Y to return to mainstream education. There is no evidence of a reintegration plan for Y showing when he was expected to transition fully back into school.
31. On the balance of probabilities, Y’s school agreed Y was not able to attend because it agreed to fund educational provision outside school.
32. When read in context, I consider the Council’s email outlined in paragraph 21 above meant the Council would support the continuation of the provision already being made in paragraph 25.
33. Emails from the Council show that it then wanted to assess if Y’s school were taking any action regarding his absence and would consult with the school to find a way forward.
34. The Council’s Head of Educational Effectiveness provided advice to staff saying:
• “it is for the [Council] to determine appropriate provision”
• “My understanding is the [school] can meet need and that Y should attend.”
• “If this is not the case then we need information from the GP/medical to inform and support appropriate alternative provision.”
35. The Council contacted Y’s school. Emails after this show the Council recorded it as believing that the provision in school is appropriate to meet Y’s needs.
36. The Department for Education statutory guidance says where 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, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child. The Council did not seek any information regarding concerns about Y’s health.
37. The senior officer guidance referred to in paragraph 31 above, shows the Council determined it would only consider GP/medical information if the school indicated it was unable to meet his needs. The Council therefore did not consider whether the provision offered by Y’s school was accessible to Y. This is fault by the Council.
38. The Council accepted in its complaint response that it delayed communicating with Mrs X. The Council took too long to reach its flawed decision in June. The Council should have reached a decision more quickly. This is fault by the Council. As a result, Mrs X’s complaint ran over into the September term. The Council provided a final response to Mrs X’s complaint until November 2023.
39. The Council later agreed to provide some alternative education provision for Y in January 2024. I asked the Council to explain why it agreed to provide this when it had refused to do so earlier in the year. The Council has provided no explanation or evidence to show why it came to a different conclusion.
40. The Council considered whether the provision offered by Y’s school was available and appropriate to meet his needs.
41. The Council did not properly consider whether that provision was accessible to Y in April 2023. This is fault by the Council. Between April 2023 and December 2023, the responsibility was left with Mrs X to fund Y’s education (apart from that element funded by Y’s school). As Mrs X made provision for Y, I do not consider that he suffered significant detriment to his education by being out of school.

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Agreed action

42. To remedy the outstanding injustice caused by the fault I have identified, the Council should take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for the faults identified in this decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Reimburse Mrs X for the money she spent on part of Y’s education between April 2023 when the Council became aware Y was not attending school and the end of December 2023. This does not include items outside of the Council’s parameter.
• Pay Mrs X £200 in respect of avoidable distress.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have found fault by the Council, which caused injustice to Mrs X and Y. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman