Summary: Mrs X complained the Council failed to provide alternative provision support for her child when they stopped attending school. This caused frustration and distress, with her child missing out on education. We found the Council at fault for not properly considering its duties for alternative provision. The Council has agreed to apologise, make a symbolic payment and issue reminders to relevant staff.

The complaint

1. Mrs X complains her child has been out of school since September 2023 and has had little education since September 2021, and the Council has declined her request for Education Otherwise Than At School (“EOTAS”). She says this has caused frustration and distress, and her child has missed out on important learning and social opportunities.

Back to top

The Ombudsman’s role and powers

2. 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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

6. Mrs X says her child has had little education since September 2021. As per Paragraph 3, this is more than 12 months before complaining to us and is therefore late. I consider Mrs X could have complained specifically about this period sooner and this is not within the scope of my investigation.
7. Mrs X’s formal complaint to the Council referred to her child being out of school since September 2023. My investigation covers the period from September 2023 to May 2024 (when Mrs X received a final complaint response from the Council and when the Council issued a final Education, Health and Care Plan for her child).

Back to top

How I considered this complaint

8. I discussed the complaint with Mrs X and considered her views.
9. I made enquiries of the Council and considered its written responses and information it provided.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Law and administrative background

Education, Health and Care Plans (EHC Plans)

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Parents have a right of appeal to the SEND Tribunal. This is only engaged once a final EHC Plan has been issued.
12. We cannot direct changes to the sections about their needs, education or the name of the educational placement. Only the Tribunal or the council can do this.

Alternative provision

13. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
14. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.
15. We issued a focus report “Out of school, out of sight?" issued in July 2022, updated in August 2023. This highlighted 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.

Back to top

What I found

Background

16. Mrs X’s child (“Y”) has autism and other special educational needs (“SEN”). Y experienced challenges in attending school due to emotional and anxiety issues. The Council issued Y’s first EHC Plan at the end of 2021. Y has been on the roll of “School A” since September 2021.

What happened – summary of key relevant events

17. In November 2023, School A contacted the Council asking for support for a tutor to re-engage Y’s non-attendance at school.
18. In December 2023, School A carried out an annual review of Y’s EHC Plan. The report said Y had not attended in person or engaged with the online school in place for them. School A shared its actions and its plan with the Council’s Attendance and SEN team. School A said it could meet Y’s needs if Y allowed the School to support them with a tailored package. It planned to start reduced sessions for Y and would review progress.
19. At the end of January 2024, the Council sent a penalty warning notice to Mrs X about Y’s attendance. Unhappy with this, Mrs X emailed the Council. She outlined she had tried everything with School A to get Y to attend but with no success.
20. School A contacted the Council for guidance as Y was still not attending and about some medical evidence it received about Y. The Council said School A needed to continue to offer the support to try to get Y to access provision at school.
21. In February 2024, a creative therapy service offered a place to Y for a block of weekly sessions. School A later reported to the Council that Y was engaging well with the tutor.
22. At the end of February 2024, the Council issued a final amended EHC Plan for Y. Mrs X said she did not receive the draft plan before this. The Council offered her the opportunity to give her comments or amendments before issuing a new plan if necessary.
23. In April 2024, Mrs X formally complained to the Council.
24. In mid-May 2024, the Council responded to her complaint. It said School A had continued to work with her to support Y into school. It recognised Y’s ongoing difficulties but said the support with School A had been positive. Y had been accessing creative therapy to support their difficulties. It considered Mrs X’s request for EOTAS but said it would not name it on Y’s EHC Plan as School A said it could meet Y’s needs. It did not uphold her complaint.
25. A week later in May 2024, after considering Mrs X’s comments to Y’s EHC Plan draft, the Council issued a second final EHC Plan for Y. It continued to name School A.
26. In response to my enquiries, the Council said, on balance, it would have been helpful to support the family more with a meeting to pull professionals together after the December 2023 annual review. It offered a formal apology and a payment of £300 for Mrs X’s frustration and time and trouble with the complaint.

Analysis

Education Other Than At School (EOTAS)

27. Mrs X complained the Council declined her request for EOTAS. This is an appealable decision after the Council issued Y’s final EHC Plan in May 2024. Mrs X did not appeal this. I will not consider this part further as she reasonably could have used her appeal rights if she disagreed with this decision.

Alternative provision

28. The investigation is limited to considering the role of the Council; we cannot consider the actions of School A as they are outside our jurisdiction.
29. Councils have a section 19 duty to make suitable education arrangements, at school or otherwise, when a child who because of exclusion, illness, or otherwise may not receive a suitable education unless the council arranges it for them. We expect councils to consider a child’s individual circumstances and decide, at the time, whether it has a statutory duty to provide alternative provision.
30. During the period I am considering, School A mentioned Y’s non-attendance at school to the Council in November 2023. A month later, the Council received School A’s report from the annual review in December 2023. School A said it could meet Y’s needs if they engaged with the support.
31. It appears the Council was satisfied School A was providing support to re-integrate Y at this point. However, I cannot see the Council proactively followed this up directly with either School A or Mrs X herself to review progress on these plans. The Council then issued a penalty notice warning to Mrs X a few weeks later in January 2024. I cannot see evidence it properly gathered information or considered the situation’s progress before issuing this. This indicated a lack of co-ordination between the Council’s teams. This is fault.
32. I note School A said it could meet Y’s needs, but in my view, the Council placed too much reliance on this. Mrs X mainly communicated with School A, but it is for the Council to maintain ultimate responsibility and oversight for alternative provision if a child is not attending school.
33. We would expect the Council to show how it satisfied itself School A was reasonably practicable and accessible for Y given their issues attending, or how it reviewed any evidence (including from Mrs X) to come to its view. Also, we would expect the Council to promptly explore the reasons for non-attendance and make an informed decision itself on whether Y was medically unfit, or ‘otherwise’ unable to attend school. I have not seen records showing the Council doing these at the time of events. This is fault.
34. I note Y has received some provision through creative therapy from February 2024. I cannot see the Council making decisions about this; whether it assessed or reviewed the suitability or amount of provision (whether it constituted full time education), or considered if it could offer any additional arrangements. This is fault.
35. I am not satisfied the Council properly considered its duty to arrange alternative provision for Y while they were not attending school. The Council is at fault for a lack of robust action from a section 19 perspective between January 2024 and May 2024. This caused injustice to Y with limited provision for this period and they missed out on learning and social opportunities.
36. During my investigation, the Council accepted it could have done more and offered Mrs X £300 for distress and frustration. I welcome this. However, given my findings above, it has not properly considered the injustice to Y. I have made recommendations to remedy this below.

Back to top

Agreed action

37. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
38. Within one month of the final decision:
• Apologise to Mrs X and Y in writing (in line with our guidance on making an effective apology);
• Pay Mrs X the symbolic payment of £300 it offered to recognise her injustice of distress and frustration with the fault it and I identified above; and
• Pay Mrs X a symbolic payment of £1,000 to recognise the impact of missed education for Y between January 2024 and May 2024. This could be used for Y’s educational benefit.
39. Within three months of the final decision:
• Send written reminders to relevant staff of the Council’s responsibilities under Section 19 of the Education Act. With these reminders, it should share a copy of our “Out of school, out of sight?" focus report, highlighting key points to ensure officers are aware of the factors they should consider when it is aware a child is not attending school.
40. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

41. I have upheld the complaint. I found fault with the Council which caused injustice to Mrs X and Y. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman