Summary: Mrs B complains the Council failed to make alternative educational provision for her daughter. There was fault in how the Council recorded its decision that the education was available and accessible, but this did not cause injustice as it had no section 19 duty to make alternative provision.

The complaint

1. Mrs B complains the Council failed to make alternative educational provision for her daughter, J, who has been unable to attend school since December 2022. This severely affected her ability to prepare for her GCSEs and caused distress to her and all the family.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. When considering complaints, 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.
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 Mrs B about her complaint and considered the Council’s response to my enquiries.
7. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Alternative provision

8. 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))
9. The "otherwise" category provides for a wide range of scenarios where the Council may have a legal duty under section 19. It would include, for example, when a child was refusing to attend school due to anxiety or phobia. (Statutory guidance ‘Alternative Provision’ January 2013)
10. The law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
11. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
12. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
13. When reintegration into school is anticipated, councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.

The acid test

14. 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)
15. The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. A judicial decision (R (on the application of G) v Westminster Council [2004] EWCA Civ 45) says that the education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child.
16. If a council is not satisfied that parents are providing a suitable education, they can serve a notice on the parent and issue a school attendance order. 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.

Medical evidence

17. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’, says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
18. The Courts have found that it is a judgment for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Services in North Somerset

19. The Council has a pupil referral unit, which includes a medical tuition service, to provide education for pupils who cannot attend school due to illness and exclusion. Access to medical tuition requires support from either a senior clinician from CAMHS or a senior consultant. The Council says it considers pupils on a case-by-case basis, will contact health professionals where appropriate and decide whether to make an exception if the pupil does not meet the criteria.
20. The Council says any other alternative provision is arranged on an individual basis by schools. Its SEND Team may also commission places for individuals with education, health and care plans using the Council’s Alternative Provision Framework.

What happened

21. Mrs B’s daughter, J, was attending a secondary school (“the School”). Mrs B says J had been bullied for several years and had been assaulted by another student in 2021. Mrs B met with the School in 2021 and early 2022 to discuss how the bullying could be dealt with, but a lack of evidence made it difficult to take action. J started to refuse to attend during 2022.
22. In November 2022 there was an incident of bullying against J. The School offered to ensure an adult was always observing J. Mrs B and J declined this and J stopped attending on 6 December 2022. The School authorised this absence for one week. It wrote to Mrs B offering J a placement at a different site, but Mrs B did not consider this to be suitable.
23. Mrs B wrote to the Council in January 2023 asking for home tutoring as alternative provision. She enclosed a GP letter which said J’s health had been affected by the bullying and she was suffering anxiety.
24. The Council says it then had numerous telephone conversations with the School. During January, the School offered J:
• the option to be escorted to reception at the beginning and the end of the school day and for her to be able to access a quiet place.
• a reintegration plan to attend for a certain number of lessons per day.
• a 1:1 in person tutoring package for an hour a day at school.
25. These were all declined by J and Mrs B.
26. The Council responded to Mrs B’s complaint on 20 February 2023. It said J did not meet the criteria for medical tuition as it could not accept a GP letter as evidence. It therefore expected the School to be responsible for providing the most appropriate education and noted that the School believed it could meet J’s needs at the alternative site.
27. In March 2023 the School offered virtual one-to-one tutoring which Mrs B and J accepted. J then took her GCSEs.
28. The Council’s final complaint response on 30 March 2023 said it could not offer private tutoring to J unless she was ill. Mrs B came to the Ombudsman.
29. In response to my enquiries, the Council said it felt that the provision being offered by the School was appropriate to meet J’s needs and as such she did not fall under its Section 19 duty. It had considered serving a formal notice to require J’s attendance at school but it was felt not to be in J’s best interest to pursue this as the School were endeavouring to provide an agreed suitable education package.

My findings

30. The law is clear that councils must intervene and provide education under their section 19 Education Act duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness or otherwise. The duty arises after a child has missed 15 days of education either consecutively or cumulatively. This means that once the Council was alerted to J's absence it needed to consider its legal duties and take action where appropriate.
31. The Council needed to consider whether J was receiving a suitable education, and whether this education was “reasonably available and accessible” to her. The Council says it decided this, but it has not sent any evidence of how it reached this view. Our principles of good administrative practice say councils should give reasons for their decisions and keep proper records. There was therefore fault in the way the Council has determined that the education was available and accessible to J as it has not recorded how or why it decided this.
32. However, I do not consider this fault caused injustice to J. This is because, on balance, I consider it likely that – even if it had been properly recorded – the Council’s decision would have been the same. That is, that the education was available and accessible to J and it therefore did not have a Section 19 duty to make alternative provision.
33. I say this because although Mrs B had provided a GP letter saying J needed home tutoring, there is evidence the School offered various strategies to make the education accessible. The Council could therefore only say the education was not accessible if all of those had been tried and failed. But they were not tried as J and Mrs B declined them. Whilst I appreciate J’s and Mrs B’s concerns, the section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. The Council was entitled to decide J could access the education and, whilst I find fault in the way this decision was recorded, I cannot challenge its professional judgment.
34. The Council says it did not consider it was in J’s best interest to enforce attendance at the School. However, councils must choose whether to require attendance at school or provide the child with suitable alternative provision. I would therefore expect its decision to show why it considered the education was accessible and why it had decided not to enforce.
35. There was fault in the Council’s complaint response letters because they imply that medical tuition is only available if the child has a consultant letter. Since 2013 the Guidance has said that where evidence from a medical consultant is not available, councils should consider other evidence, including from the child's GP. The Council’s responses should have made clear that it considered each case on its own merits. But I do not consider this caused injustice to Mrs B.

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Final decision

36. There was fault by the Council but this did not cause injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman