Summary: Mrs X complained the Council failed to provide alternative educational provision for her child when they were out of school, and also failed to provide the provision set out in her child’s education, health and care plan. Mrs X said this caused unnecessary and avoidable distress, upset and stress, and affected her physical and mental health. She said there has been an impact on her child of the missed education and special educational provision, as well as the impact on their mental health. We do not find the Council at fault.

The complaint

1. The complainant, who I refer to here as Mrs X, complained the Council failed to provide alternative educational provision for her child when they were out of school, and failed to provide the provision set out in her child’s education, health and care plan.
2. Mrs X said this caused unnecessary and avoidable distress, upset and stress, and affected her physical and mental health. Mrs X said there has been an impact on her child of the missed education and special educational provision, as well as the impact on their mental health of being at home all day, and the lack of social interaction with peers.

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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 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)
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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

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How I considered this complaint

6. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
7. I considered the relevant legislation and statutory guidance, set out below.

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What I found

What should have happened

8. 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 educational provision.
9. 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)

What happened

10. Mrs X’s child, B, has an education, health and care (EHC) plan. In January 2023, B stopped attending school. They did not return to school after the school holidays in December.
11. In January, the Council reviewed B’s EHC plan. The Council issued B’s amended EHC plan in March, naming the same school in the plan. Mrs X complained. She said the school said it could not meet B’s needs and could not provide the provision set out in B’s EHC plan.
12. In May, the SEND Tribunal lodged Mrs X’s appeal against the amended EHC plan.
13. In the Council’s complaint response, it said it was not aware that B’s school said it could not meet B’s needs. The Council said the school said it can continue to meet B’s needs.
14. Mrs X complained to the Ombudsman.
15. The SEND Tribunal heard Mrs X’s appeal, which included that B’s school could not meet their needs. The SEND Tribunal did not agree with Mrs X. It ordered that B’s EHC plan named the same school for B, as it found that school could meet B’s needs.

Analysis

16. Mrs X complains the Council failed to provide alternative educational provision for her child when they were out of school, and failed to provide the provision set out in her child’s education, health and care (EHC) plan.
17. As I have said above, councils 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”.
18. The Courts have said it is for a council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.
19. The Council says B’s school was able to meet B’s needs and provide the provision set out in their EHC plan. The Council therefore found there was suitable, full-time education available to B at their school. For this reason, it says it did not have a duty to provide an alternative education.
20. I find that the Council was entitled to decide that the education offered to B by their school was ‘suitable education’. I find the Council’s decision was supported by the SEND Tribunal’s decision that B’s school could meet their needs and provide the provision set out in B’s EHC plan.
21. For this reason, I do not find the Council at fault.

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Final decision

22. I have completed my investigation. I do not find the Council at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman