The Ombudsman's final decision
Summary: Mrs X complained the Council failed to make alternative education provision for her son while he was unable to attend school. She says the Council’s actions caused avoidable stress and meant her son missed out on his education. We found fault by the Council and the Council has agreed to provide an apology and a financial remedy to Mrs X.
The complaint
Mrs X complained the Council failed to make alternative education provision for her son while he was unable to attend school.
Mrs X also complained about the school’s actions while her son was unable to attend.
Mrs X says the Council’s actions caused avoidable stress and meant her son missed out on his education. She would like the Council to apologise, provide a financial remedy and to improve its processes for children who cannot attend school.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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) We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended) 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) 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.
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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated Mrs X complained to the Council in May 2023 about missed educational provision and brought the complaint to the Ombudsman in November 2023. I have exercised discretion to investigate the complaint referred to in paragraph one from April 2022, (approximately 12 months prior to Mrs X’s complaint to the Council) to November 2023, (when Mrs X brought her complaint to the Ombudsman). I have not investigated the period prior to April 2022 because this period is late.
I have not investigated the complaint referred to in paragraph two because we cannot investigate most complaints about what happens in schools.
How I considered this complaint
I discussed the complaint with Mrs X and considered the information she provided.
I made enquiries to the Council and considered the information it provided.
I considered our Focus Report ‘Out of school, out of sight’ updated in August 2023. Although our updated Focus Report was published after the events complained about, it is still relevant to refer to its content. The Focus Report aimed at clarifying what can be expected from councils in relation to the alternative provision for children based on the legislation which has been in place since at least 2014.
Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
What I found
Alternative provision 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.
Provision under section 19 applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school and whatever type of school they attend. (Statutory guidance, ‘Alternative Provision’) The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017) Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’) The Department for Education (DfE) non-statutory guidance states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a reintegration package. A part-time timetable must not be treated as a long-term solution. (DfE School Attendance: guidance for schools, August 2020) We have issued 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.
(‘Out of school… out of sight? Ensuring children out of school get a good education’, updated in August 2023) . We made seven recommendations. Councils should: consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll; consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to 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; where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, they should retain oversight and control to ensure their duties are properly fulfilled.
What happened This chronology includes key events in this case and does not cover everything that happened.
Mrs X said her son, Y, was unable to attend school on a full-time basis from April 2021 due to ill health. Mrs X said she was in regular contact with the school during this period and said she provided the school with medical evidence regarding Y’s health condition.
Mrs X said that due to his poor health, Y was only able to attend school part-time from April 2021. She said Y stopped attending completely in June 2021.
Mrs X said Y underwent several medical assessments during this period to determine the cause of his ill health and said Y received a diagnosis of quadriparesis and hydromyelia in late 2021. Mrs X said Y continued to undergo further medical assessments after this diagnosis to determine the full nature of his health issues.
Mrs X said during this period, she complained to the school about its handling of Y’s absence, the lack of provision Y received, and its communication with her and the Council.
In September 2022, Y moved into Year 11 but remained absent from school due to ill health.
That same month, the Council carried out a Child and Family Assessment. It acknowledged that Y’s school was in the process of arranging a meeting with the Council’s Education Access (EA) team so that some form of education could restart. The Council’s assessment recommended a Child in Need plan for Y.
In October 2022, the Council’s EA team received a request for support from Y’s school. The school said Y was unable to access his education in school due to his medical condition.
The EA team arranged a meeting in November 2022, but Mrs X and Y were unable to attend. The Council asked the school to reschedule the meeting.
Mrs X and Y attended a rescheduled EA team meeting in January 2023. The Council recorded that Y was still undergoing further medical assessments but said Y had not received a further diagnosis. The Council agreed to provide a mentor for Y and said it would review the matter to see if he was ready to re-start his education. The Council wrote to Mrs X and said the support was intended to reintegrate Y back into school.
The Council held a meeting in February 2023 to review the support offered to Y. It recorded that Y had started to attend online English lessons and was working towards also attending online Maths lessons. The Council also discussed potential arrangements for Y’s GCSE exams scheduled for later that year.
The Council held a further education review in March 2023 and recorded that Y was engaging well with his online English lessons. It said however that Y’s medical condition limited his ability to attend other lessons, and that he was unable to join online Maths lessons at that time. The Council recorded that Y wished to take as many GCSE exams as possible.
A further education review held in early May 2023 recorded that Y had a degenerative condition causing loss of motor skills but had not received a formal diagnosis. It also recorded that Y’s GCSE exams would be held at his home.
Mrs X’s complaint Mrs X made a formal complaint to the Council in late May 2023. Mrs X said Y had been reviewed by consultant paediatric neurologists since 2021 and was awaiting diagnosis. She complained that Y’s school had abandoned him since 2021 and that Y had received no teaching since then. Mrs X asked the Council to carry out a home visit and to advise her about what support was available.
In June 2023, the Council carried out a review of the support provided to Y. It recorded that Y had finished his GCSE exams and that he would continue to receive one mentoring session a week with post-16 support.
The Council responded to Mrs X’s complaint in early July 2023. It said Y’s social worker had created a plan of support in September 2022 to help Y access education and attempt his exams. It said the plan was due to end once Y had been supported to access his GCSEs. The Council did not uphold Mrs X’s complaint and said it found no evidence of service failure.
Mrs X made a further formal complaint to the Council in August 2023. She complained about the actions of the social worker and said the school and the Council had failed to provide education to Y. Mrs X said the Council’s actions had caused her significant stress.
The Council responded and said Y’s medical needs could be preventing him from accessing learning. It said it had considered a request from Mrs X for an Education, Health and Care needs assessment but had declined the request as there was no evidence of a learning difficulty. The Council said Mrs X had told it Y would not be accessing post-16 education in a formal setting but would receive education at home.
Mrs X remained dissatisfied with the Council’s response and brought the complaint to the Ombudsman in November 2023.
Analysis Mrs X complained the Council failed to make alternative education provision for Y while he was unable to attend school. As previously stated, I have investigated this complaint for the period April 2022 to November 2023.
In its response to our enquiries, the Council said its attendance specialist was liaising with Y’s school from May 2022. It said initial concerns were that there was no medical evidence to consider. The Council said its advice to Y’s school at the time was to consider its attendance process or refer the matter to the Council on medical grounds. The Council said it discussed the matter with the school at various points; it said it did not consider section 19 was appropriate at this time because the school was considering its attendance process.
The Council said its EA team received a referral from the school in October 2022. It said prior to this, the EA team was unaware Y was not attending school. It said as soon as it received the referral, it took steps to provide alternative education. The Council said this continued until Y was no longer of compulsory school age, in June 2023.
I acknowledge the Council’s comments that its EA team did not know Y was absent from school until it received a referral in October 2022. However, the Council’s records show its social care services carried out a Child and Family assessment in April 2022. As part of this assessment, the Council recorded Y had received no tutoring since he was unable to attend school.
We expect Council’s to employ a joined-up approach with its services. The Council as a body was aware Y was out of school from at least April 2022. Under section 19 of the Education Act 1996, councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
As a result, the Council should have considered its section 19 duties from April 2022. I acknowledge the Council’s comments that it did not consider this to be appropriate because the school was considering its attendance process; however, as stated in our guidance, where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.
The Council was aware Y was out of school from at least April 2022. I have seen no evidence the Council turned its mind to its section 19 duties at this time. This indicates a lack of oversight as although the school may have been considering its attendance process, the Council retained its duties under the Education Act 1996 and should have considered whether the section 19 duty arose. I have seen no evidence it did this and I have found this lack of oversight to be fault.
The Council said provision for Y was in place from January 2023 until June 2023, when Y was no longer of compulsory school age. The information provided by the Council supports this and shows the provision remained under regular review. I acknowledge Mrs X says the provision made during this period was inadequate. However, the Council’s records demonstrate it reviewed the provision and considered whether this could be increased. The evidence indicates the Council kept the issue of whether the provision was suitable for Y’s age, ability, and aptitude under review; as a result, the Council is not at fault regarding this aspect of the complaint.
However, on the balance of probabilities, had the Council considered its section 19 duty from April 2022, it would have arranged for provision to be in place much sooner than January 2023. This is because Y’s circumstances did not significantly change from April 2022 to January 2023, in that his health condition remained such that he was unable to attend school. This is an injustice to Y resulting in missed provision for the period April 2022 to January 2023.
The Council’s actions also caused an injustice to Mrs X, namely the stress referred to in her complaint to the Council in August 2023.
When someone has suffered an injustice, we try to put them back in the position they would have been had that error not occurred. Our focus is on restoring services that have been denied and taking practical steps to put things right. Where that is not possible, we will try to think of remedies that acknowledge the impact of the fault identified.
When we decide an organisation needs to learn from this fault to prevent likely injustice to others in the future from similar fault, we can recommend actions it needs to take. We call this a service improvement.
We recently published a report regarding a similar complaint against the Council. As part of that report, the Council agreed to several service improvements, including preparing an action plan to improve decision-making on education for children who are out of school. This included consideration of the timescales for making decisions on the Council’s alternative provision duty. Had our previous report not already made these recommendations for service improvements, I would have included them as part of this decision statement. As the Council has already agreed to these service improvements, I have not repeated them in this decision statement. The Council is however required to provide us with evidence it has complied with the agreed actions of the report.
Agreed action
To address the injustice identified, the Council has agreed to take the following action within one month of the final decision: Provide an apology to Mrs X and Y for the fault identified. 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; Make a symbolic payment for the benefit of Y to recognise the missed provision for the period April 2022 to January 2023. This equates to two school terms. I have considered our guidance on remedies and recommend a payment of £1,500 for the term April 2022 to July 2022, and £2,000 for the term September 2022 to December 2022. The recommended amount for the second term is higher because this was the first term of Year 11; this was a key year in Y’s education as it was the year in which Y took his GCSE exams. The total payment regarding missed provision is therefore £3,500, and Make a further symbolic payment of £500 to Mrs X to recognise the avoidable stress caused to her.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have found fault by the Council and the Council has agreed to take the above action to remedy this complaint. I have therefore concluded my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman