Summary: Miss Y complained the Council failed to help her arrange a new school place for her daughter or make any alternative provision while she has been unable to attend school. We have found fault by the Council in failing to respond to Miss Y’s requests for support and take appropriate action to ensure her daughter was provided with a suitable education. This fault has caused injustice. The Council has agreed to remedy this by apologising to Miss Y, making payments to reflect the impact on her daughter of the loss of education and Miss Y’s distress, time and trouble, and several service improvements.

The complaint

1. The complainant, who I am calling Miss Y complains:

• the Council’s Children’s Services and Education Service failed to help with her issues about a school place for her daughter (who I am calling Z); and
• Z has been unable to attend school since February 2022. The Council has failed to provide her with any educational support since then.

2. Miss Y says the Council’s failure to help has caused her and Z a great deal of worry and distress. Z has missed out on her education and socialising with friends at school. She has had to spend money on activities for Z and educational materials.
3. Miss Y wants the Council to help find Z another school place and provide her with alternative education otherwise than at school until then.

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The Ombudsman’s role and powers

4. 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)
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)

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How I considered this complaint

6. I spoke to Miss Y, made enquiries of the Council, and read the information Miss Y and the Council provided about the complaint.
7. I invited Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.
8. Under our information sharing agreement, we will share this decision with OFSTED.

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What I found

What should have happened

Attending school – the law

9. Parents have a duty to ensure their children receive a suitable full-time education. Most do this by sending their children to school (Education Act 1996, section 7).
10. Councils have powers and duties under the Act where there is a failure by parents to meet this duty. (Education Act 1996 sections 436 to 447).
11. Section 437(1) of the Act says councils shall intervene if it appears parents are not providing a suitable education.
12. Statutory Guidance issued in 2016 covers these powers and duties. The Guidance confirms:

• All children, regardless of their circumstances, are entitled to an efficient, full-time education.
• Children identified as not receiving a suitable education should be returned to full-time education either at a school or in alternative provision.
• Councils should ensure they have robust policies and procedures in place to enable them to meet their duty to these children.
• Councils have powers to take action to enforce a parent’s duty under section 7, including issuing school attendance orders and prosecuting for failure to comply with an attendance order.

Alternative provision- the law

13. 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))
14. “Otherwise” is a broad category which covers circumstances other than illness or exclusion in which it is not reasonably possible for a child to take advantage of any existing suitable schooling.
15. In all cases councils must consider the individual circumstances of each individual child and be able to demonstrate how they made their decisions. They must take account of all available evidence and record the reasons for their decisions.

The role of Educational Welfare Officers

16. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.

The Human Rights Act

17. The Human Rights Act 1998 sets out the fundamental rights and freedoms to which everyone in the UK is entitled, including education.
18. The Act requires all councils - and other bodies carrying out public functions - to respect and protect individuals’ rights.
19. Our remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a council has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

What happened

20. I have set out a summary of the key events below. It is not meant to show everything that happened.
21. Miss Y first contacted us about her complaint in February 2022. Her complaint concerned the Council’s Education and Children’s Services. We referred her concerns to the Council as it appeared she had not yet raised these with it as a formal complaint.
22. The Council’s Education Service sent its complaint response to Miss Y on 15 March, and a further response on 1 April in reply to her comments of 16 March. Children’s Services sent its complaint response on 1 April.
23. Miss Y was not satisfied with their responses and referred her complaint back to us in May 2022.

Background

24. Miss Y’s daughter, Z, and son attended a local primary school (School A).
25. Towards the end of 2021 Miss Y became very concerned about issues relating to Z and School A, and her relationship with it began to break down. She raised her concerns with the school through its formal complaints process.
26. The Council’s Children’s Services Early Help team were in contact with Miss Y at this stage. They offered her support, including help to improve her relationship with School A but told Miss Y they were unable to provide support for her complaint against the school.

Miss Y’s contact with Educational Welfare and School Admissions - February 2022

27. By early February Miss Y’s relationship with School A, regarding Z, had completely broken down.
28. Miss Y stopped sending Z to school from 7 February. She contacted School Admissions and Educational Welfare (EW) the same day to tell them Z was no longer attending School A. Miss Y said she could not home educate Z and had applied for a place for Z at another local school (School B).
29. Also on 7 February, a local councillor, on Miss Y’s behalf, contacted a senior manager in the Education Service. The councillor explained Miss Y’s situation, she had applied for a place at School B, and it was in the best interests of all concerned the move should take place as soon as possible.
30. School A also asked the Council to prioritise Miss Y’s application for another school place to ensure Z was not further deprived of her education.
31. The senior manager contacted School Admissions. They advised, on 7 February, School B was full and the only other schools in the local area with places were Schools D and E. (The Council passed this information on to the Councillor on 16 March).
32. Miss Y sent an email to EW on 8 February. She had already contacted them in January about her issues with the school. Miss Y told EW Z stopped attending School A on 7 February, she had applied for a new school place, and asked School A to remove Z’s name from its roll.
33. Miss Y also applied for a place for Z at School C.
34. On 17 February School Admissions told Miss Y Schools B and C were full and her application for a place for Z at these schools had been refused.
35. Miss Y appealed immediately.

Miss Y’s contact with the Educational Welfare and School Admissions - March to April 2022

36. Miss Y continued to contact School Admissions and EW asking for help with her situation. She has told us calls and emails were not returned.
37. On 18 March EW received an email from the Government’s School Complaints Unit. This said:

• It had been told a child in the Council’s area had been removed from school.
• In line with its duties under the Education Act, the Council should support the child back into education.

38. The Council has told us about action its Children Missing Education officer took to establish the facts about Z’s removal from school. But I have not seen records of any positive action by the Council to return Z to school or provide her with alternative provision in response to this email.
39. The Council has told us a School Admissions officer spoke to Miss Y on 8 April and informed her there were other local schools with places:

• It said Miss Y refused offers of places at other schools because of personal circumstance. Its officer advised Miss Y she would have to wait for the appeal outcomes.
• I asked the Council for a record of this conversation and the names of the other schools offered. The Council says a note of the conversation, or the schools offered, was not made.
• I have not seen any reference in the Council’s emails with Miss X to the names of other local schools with places available (until after the email of 27 June referred to the below).
• Miss Y has told us she was not offered any alternative school places at this time.

40. Miss Y contacted School Admissions for help on 11 and 12 April. She said Z had been out of education since February and asked for information about alternatives. In reply, School Admissions told her, as Schools B and C for which she had applied were full, she would have to make a new application for a place at other schools. They could not offer her a place at an alternative school because Z was still on School A’s roll.
41. On 29 April, School Admissions noted they were closing Miss Y’s application. She had not made any new applications and was waiting for the hearing of her appeals for places at Schools B and C.

Miss Y’s contact with the Educational Welfare and School Admissions – May 2022

42. Miss Y’s appeal hearing for a place at School B took place on 16 May. Her appeal was refused. Miss Y sent an email to School Admissions the same day telling them of the outcome. She said she needed help because Z needed to be at school.
43. Miss Y contacted EW on 20 and 24 May. She said, again, Z had been out of school since February, she had contacted them a number of times, but EW had not provided her or Z with any help or educational support. She asked how she could get help for Z, who had now been without any support from EW for three months. I have not seen any record of a response by the Council to these emails.

Miss Y’s contact with the Educational Welfare and School Admissions - June 2022

44. On 9 June, in response to our enquiries to the Council about the complaint, a senior manager in the Education Service contacted the Education Inclusion and Virtual School (EIVS) team about evidence provided by Z’s GP. The EIVS team said it didn’t think this supported the provision of alternative education under section 19. I have not seen records of any other consideration of alterative provision for Z or any decision made by the Council about whether this should be put in place for Z.
45. Miss Y’s appeal hearing for a place for Z at School C took place on 13 June. The appeal was refused.
46. Miss Y contacted School Admissions on 21 June. She complained the panel had been wrongly told she was home educating Z and had refused two offers of places at alternative schools. She asked for a private tutor for Z until she had a school place.
47. Also on 21 June, EW told Children’s Services Early Help it could not provide Z with a tutor because she still had a place at School A, and Miss Y had refused places at other schools due to personal circumstances. EW asked Early Help for its thoughts on alternative provision, but said, going forward, enforcement was the only option.
48. On 27 June School Admissions offered Miss Y, by email, places for Z (and Miss Y’s son) at School D. Miss Y replied the same day. She said the children would not be safe at School D because of their father’s connections with that school. (the Council knew about previous incidents involving the children’s father).

Children’s Services’ involvement with Miss Y

49. My understanding, based on the records I have seen, is Early Help continued to have contact with Miss Y from February 2022. Children’s Services considered whether there were any safeguarding concerns and decided the threshold for referral had not been reached. Its records say it felt it could not do anything further at this stage. Miss Y had not engaged with Early Help, and EW were now involved as Miss Y had asked it for guidance about changing schools.
50. In March, Children’s Services received a referral about the family. It assessed the situation again and decided the threshold for further intervention had not been reached. Miss Y could engage with Early Help if she wanted to do so.
51. Early Help contacted Miss Y in April and explained the support they could offer, Miss Y’s options regarding Z’s school place and who she should contact about this.
52. In May Miss Y asked Children’s Services for support with her situation. A senior manager contacted Miss Y, provided a plan of Early Help support and arranged for a family support charity to provide help with the appeal hearing.
53. Early Help began working with Miss Y in June. They arranged a meeting with a service manager who oversees Educational Welfare and attended this meeting, with Miss Y in August.

My findings – was there fault by the Council causing injustice?

54. I consider it is clear, based on the evidence I have seen, the Council knew from the outset, in February 2022:

• Z was no longer attending School A and Miss Y was not able to provide her with home education;
• both School A and Miss Y considered their relationship had broken down irretrievably and it was in Z’s best interests to move to another school;
• Miss Y wanted to find Z another school place;
• Schools B and C, for which Miss A had applied, were full and could not offer Z a place; and
• Schools D and E had places available.

School Admissions

55. While there were some emails and telephone conversations in response to Miss Y’s requests for help, I do not consider the Council properly explained the options to Miss Y. In my view, the Council failed to provide Miss Y with appropriate advice or assistance regarding the availability of other school places and the application process.
56. Having weighed up the evidence provided about the telephone conversation on 8 April, my view is it is more likely Miss Y was not made an offer of any alternative school places at this time. She was desperately trying to get her daughter back to school and I consider she would have responded to any offer made at that stage. My finding is Miss Y was not offered any alternative school places, until School D was offered on 27 June.
57. My view is it was fault by the Council not to discuss the options of alternative school places with Miss Y in February, or at any point from then until June, when it knew places were available at Schools D and E. Because of this, Miss Y lost the opportunity to consider these options.
58. I understand, in the recent meeting with Miss Y, she was told about a place available for Z at School E, for which she has now successfully applied.

Educational Welfare

59. In my view the Council failed to:

• consider whether it had a duty under section 19 to make alternative provision for Z, knowing she had been out of school since February and was not being provided with any education.
• take any action to intervene, as required under section 437, and return Z to school or provide her with alternative provision, despite knowing she had been out of school and without any education since February.

60. I consider this was fault.

Communication with Miss Y

61. I consider it was clear from what Miss Y said in her emails from the outset, and her efforts to contact School Admissions and EW, how worried and upset she was about Z missing education and wanted to find Z another school as quickly as possible.
62. But, in my view, the Council repeatedly failed to respond to Miss Y’s requests for help.
63. And, as the weeks, and then months, went on, with Z still out of school, I consider it was clear from Miss Y’s contact how extremely distressed she was about the situation and the effect on Z of not being at school. But there was still no positive response from the Council to Miss Y’s contact.
64. I consider the failure to communicate with Miss Y was fault.

Z’s right to an education

65. My view is the Council’s failure to respond to Miss Y’s requests for help and take action to intervene and ensure Z was provided with a suitable education indicates it did not have due regard to her right to an education. (Article 2. The First Protocol, Human Rights Act 1998).

Children’s Services

66. I have not found fault with Children’s Services’ involvement with Miss Y. In my view Children’s Services properly considered the support it could offer Miss Y, kept this under review and continued to inform the Education Service of its involvement with her and Z.
67. I also note it appears to have been Early Help which initiated the recent meeting with Miss Y and the service manager who oversees Educational Welfare.

Conclusion

68. On the basis of the information I have seen, my view is a number of officers and senior managers within the Council knew Z had not been at school, or provided with any education, since February. Nobody appears to have taken responsibility for this, by helping Miss Y find Z another school place, considering the Council’s duties to provide Z with alternative provision or intervening to ensure her return to school.
69. I consider Z’s best interests and right to an education were completely overlooked. Had the Council given this proper consideration, it could (and should) have taken appropriate action to ensure Z was provided with a suitable education as soon as it knew she was no longer attending school.
70. Instead, Miss Y was left to try to resolve the situation herself without appropriate support from the Council. I consider this was fault, which resulted in Z missing out on her education from February 2022 to the end of the summer term 2022. A place at School E has now been arranged for Z and she returned to school just after the start of this autumn term.

The impact of the Council’s faults on Miss Y and Z

71. For the reasons set out above, my view is, because of the Council’s faults, Z did not receive any suitable education for almost two school terms - from 7 February to the end of the summer term.
72. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child.
73. I have considered the impact on Z of the loss of educational provision. She is a young child of primary school age and missed two terms of school at a stage when children are developing essential literacy, numeracy and social skills. Z did not receive any educational provision during this period, either at school or otherwise. For these reasons, I consider the payment from 7 February to the end of the summer term should be at the highest end of the scale.
74. It is clear from Miss Y’s communications the extent of the distress the Council’s failure to respond to her contact or take action caused her and Z. She has told us about the money she has spent on educational materials for Z and activities to keep her occupied while not at school. It also clear how much time Miss Y has spent trying to find someone at the Council who would take responsibility and provide her with the support and help she and Z needed.

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Agreed action

75. To remedy the injustice caused by the above faults, and within four weeks from the date of our final decision, the Council has agreed to:

• apologise to Miss Y for its failure to have proper regard for Z’s right to an education, failure to provide appropriate support and help and its communication failures;
• pay Miss Y £600 for each school month of education Z missed from 7 February to the end of the summer term 2022 (21 school weeks) making a total of £2,908. I consider it appropriate for this payment to be used to reimburse Miss Y for costs she incurred in providing educational materials and activities for Z during this period, with the balance being used for the benefit of Z’s education; and
• pay Miss Y £1,200 to acknowledge the distress, and time and trouble these failures caused her. This figure is a symbolic amount based on the Ombudsman’s published Guidance on Remedies.

76. Our guidance says a remedy payment for distress, or for time and trouble, is often a moderate sum of between £100 and £300. But in cases where the distress is severe or prolonged up to £1,000 may be justified, and for time and trouble, adjusted where there is a degree of extra difficulty.
77. In recommending this figure, I considered the length of time involved, the efforts Miss Y went to in trying to get support from the Council for Z, and the level of distress the Council’s failures caused her.
78. Within three months from the date of our final decision, the Council should:

• share this decision with its Education Service;
• review its procedures for cases where a child is not attending school because of issues with a school place;
• consider what changes should be made to ensure oversight of cases involving different teams within its Education Service; and
• issue guidance to relevant officers about the circumstances in which they should consider the Council’s duties to arrange alternative provision under section 19, or intervene under section 437, and the procedure for considering these duties and recording decisions.

79. The Council should provide us with evidence it has completed these actions.

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Final decision

80. I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman