The Ombudsman's final decision
Summary: Ms X complained about the Council failure to provide her child, D, with a suitable education when he was unable to attend school due to extreme anxiety. We have not found fault with how the Council responded to his non-attendance.
The complaint
Ms X complains about the Council’s failure to provide her son with a suitable education when he was unable to attend school from September 2022.
Ms X says this has caused significant frustration and distress. She says her son has been denied the support he needs to access education. This has impacted on his educational progress and general well-being.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health, and Care Plan.
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)
What I have and have not investigated I have investigated events between September 2022 and January 2024. I have not investigated what happened more recently because the Council has not had the opportunity to respond to a complaint Ms X may wish to make.
How I considered this complaint
I spoke to Ms X.
I have considered all the information provided by Ms X, made enquiries of the Council and considered its comments and the documents it provided.
I have considered the relevant law and guidance including recent government guidance, “Summary of responsibilities where a mental health issue is affecting attendance” (2023).
Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance Children out of school and alternative provision The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils can use various legal powers where it considers a child’s non-attendance to be unauthorised, including prosecution or issuing a fine. If a council decides to prosecute a parent, they will be formally cautioned and interviewed under the Police and Criminal Evidence (PACE) Act 1984.
Where a child’s attendance at school drops below a certain level, it is likely a council’s inclusion officer will become involved after a referral from the school. Inclusion officers 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.
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 (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
The courts have considered the circumstances where the section 19 duty applies. Case law 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 them to access. The applicable test is whether the educational provision the council has offered is “available and accessible to the child” (R (on the application of DS) v Wolverhampton City Council 2017).
The courts have also found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give to medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]) Where a council chooses enforcement, it has no parallel duty to make alternative out-of-school provision for the child in question. This is because the child has a place at school and there is no good reason for them not attending.
What happened I have set out below a summary of the key events. It is not meant to show everything that happened.
In September 2022, Ms X’s son, D, stopped attending secondary school (School P) due to anxiety. His GP wrote to the school suggesting a meeting should take place to explore options for D to return to school.
Ms X says the school’s records show School P informed the Council about D. Ms X asked School P to arrange alternative provision, but this request was refused.
The Council says it was not made aware of D’s situation until January 2023. Shortly afterwards, an inclusion officer (Officer J) carried out a home visit. She advised Ms X to obtain a medical opinion about D’s inability to attend school.
A meeting took place at School P in April 2023. In the absence of any evidence to say D was unable to attend school on medical grounds, a reintegration plan was devised. This expected D to attend school (but not formal lessons) on two mornings per week to help reintegrate him back slowly into school.
A further meeting was held in July 2023 as D had not been able to return, even on a part time basis. Ms X explained D’s anxiety was so extreme she was unable to get him to the school gate. Both School P and the Council said in the absence of medical evidence, the reintegration plan should be allowed time to work. School P told Ms X it did not have funding to provide some form of off-site education.
Officer J wrote to Ms X before the start of the autumn term. She said the expectation was still for D to return to School P.
In January 2024, Ms X was asked to attend a formal interview under caution at the Council. This was because the Council was considering taken legal again against her because of D's non-attendance.
Ms X explained the reasons for D’s non-attendance and what she had done to try and address this. Based on the fact D had been out of school for so long, the Council decided legal action was inappropriate.
Ms X’s complaint Ms X complained to the Council in July 2023. She said the Council has failed to meet its duty to provide D with alternative provision when he was unable to attend school due to extreme anxiety. She also said the Council was incorrectly trying to shift its responsibility onto School P to source alternative provision. School P had refused to do so because it said it did not have funding for this.
The Council’s position In response to both Ms X’s complaint and my enquiries, the Council has said: it first became aware of D’s case in January 2023; its inclusion service has been fully involved since that time. Action included home visits, a referral for counselling, meetings at the school, a school attendance agreement and contact with the GP; it was not deemed to be in the public interest to prosecute Ms X; the medical evidence did not explicitly state D was unable to attend school due to anxiety; and D needed some sort of alternative provision to support his return to school. School P was advised to look at alternative ways of offering D an education but this was not a route the school had wished to pursue.
Analysis Ms X says the Council should have provided D with alternative provision when he stopped attending school in September 2022 due to extreme anxiety. She says the Council was aware of the situation.
I agree with Ms X that that the Council knew about D’s absence before January 2023. An email from School P to Ms X dated October 2022 confirmed a discussion had taken place with the Council about D’s non-attendance. It was agreed his absences should be recorded as "unauthorised” to facilitate a future discussion about some form of alternative provision or other support being made available.
The fact a child does not attend school for 15 days does not necessarily mean a council has a duty to provide alternative provision. We expect councils to ensure they have robust procedures in place for schools to manage and report when children are absent from school. This is to enable the council to reach a view on whether: a school should do more to support a child to access their education; a child should receive alternative provision, if so, this should be arranged within 15 days of it becoming aware a child stopped attending school; or it should take action against a parent for failing to ensure their child attends school.
This early contact by School P to the Council shows this system was working as we would expect. There is no evidence that School P felt it was unable to manage the situation internally at that time. Instead, School P said it believed a plan could be worked out to manage D’s return to school.
From this, I have concluded there was no duty on the Council to arrange alternative provision between September 2022 and January 2023.
Once it was formally notified by the school about D’s prolonged absence in January 2023, the Council had a duty to investigate why and reach a view on whether D should attend his school with reasonable adjustments in place or it should provide alternative provision for him.
The case records show the Council took the following action.
It arranged several meetings with Ms X and School P to obtain their views and devise an integration plan.
It maintained regular contact with Ms X.
It considered the letters from D’s GP. While he acknowledged D suffered with anxiety, he did not say D was unable to attend school, but should be supported to return with reasonable adjustments.
It kept the situation under regular review and decided an education was reasonably available and accessible to D, once he engaged with reasonable adjustments that were made for him.
It decided it was not appropriate initially to take legal action against Ms X for failing to bring D to school, as she had continued to work with the Council and the school.
It is for the Council to decide what weight to give medical evidence and decide whether a child is unable to attend school for health or other reasons. Based on the information available at the time, including the letters from the GP, the Council concluded that D did not require alternative provision to be made on the grounds of illness or otherwise.
From the available evidence, I am satisfied the Council was entitled to have the view that School P was using its best endeavours to encourage Child Y to return to full time learning via the reintegration plan.
The acid test is whether educational provision offered by the Council was available and accessible to D. The Council considered a suitable education was available at School P and could be accessed by D with the support it had offered to put in place. The Council and School P made various attempts to re-integrate D into school over a period of several months but, as Ms X felt they were unsuitable, it ultimately decided to consider prosecution for non-attendance. This was a decision the Council was entitled to take.
Part of Ms X’s complaint is about the Council not providing D with any form of interim provision while the integration plan was in place. She says School P refused to do so because it did not receive any funding from the Council to do so.
The Council explained School P received additional funding to provide support for children with special educational needs but do not have an Education, Health and Care Plan. She was advised to complain to the school about it not using this budget to help D.
In response to my enquiries, the Council accepted D should have received some sort of alternative provision to support him to return to school because of his prolonged absence. Because the Council did not have a duty to provide alternative provision under section 19, and School P received additional funding to help reintegrate children, the Council followed the correct procedure here by referring Ms X back to the school. I am unable to investigate the actions of School P.
Overall, I have found no evidence of fault in the Council’s decision making in this case. It considered evidence from relevant professionals when making its decision. I appreciate Ms X disagrees with this, but in the absence of fault in the decision-making process, I cannot question the decision itself.
Final decision
I have not found the fault with the Council’s response to D’s non-attendance at school. I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman