Summary: There was no fault by the Council, in the way it sought to make arrangements for alternative provision for a child who was not attending school. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Ms G.
2. Ms G complains the Council:
1. refused to place her daughter, J, at a learning centre because she did not have an education, health and care (EHC) plan at the time;
2. failed to carry out a needs assessment which it agreed to do in October 2021;
3. placed J at a learning centre on a short-term placement, despite the learning centre not being suitable for her and being rated inadequate by OFSTED;
4. failed to provide suitable education from March 2021 to 31 May 2023; and
5. has refused to pay compensation for this.

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The Ombudsman’s role and powers

3. 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)
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)

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What I have and have not investigated

5. I have investigated points (d) and (e) listed in paragraph 2.
6. I have not investigated points (a), (b) or (c). This is because they refer to events which took place more than 12 months before Ms G approached us with her complaint in June 2023. As explained at paragraph 5, the law says we should generally not investigate such matters.
7. The law does permit us to disapply this rule, where we consider it appropriate; in order to do so, we must first be satisfied there is a good reason for the complainant’s delay in making their complaint. But I have seen nothing here to suggest Ms G was prevented from approaching us within the permitted period, and indeed I note the Council signposted her to us in December 2022, some six months before her complaint.
8. I have therefore decided not to disapply this rule and will therefore not accept Ms G’s late complaints for investigation. However, I will refer to events from before June 2022 where necessary for context.

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How I considered this complaint

9. I reviewed Ms G’s correspondence with the Council and J’s EHC plan, and sought the Council’s comments.
10. I also shared a draft copy of this decision with each party for their comments.

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What I found

11. J has a diagnosed learning and development disability. She has not attended school full-time since 2018, and stopped attending entirely in 2021, although she remained on roll at her school.
12. In April 2022, the Council arranged a placement at a pupil referral unit for J, but she refused to return after attending for two days. In June, the Council began seeking a new package of alternative provision for J.
13. In July, the Council issued an EHC plan for J, and arranged two agencies to make alternative educational provision for her to begin in September, which was when J was due to start Year 11. The Council followed up with the agencies in September, but established that J had refused to work with either.
14. In October and November the Council sought further information from the agencies, which confirmed they had still been unable to engage J. The Council contacted Ms G to discuss possible home education, but Ms G did not respond.
15. The Council arranged to conduct an annual review of J’s EHC plan in January. Before this took place it agreed it was unlikely J would engage with academic study, and so it decided to focus on possible post-16 educational options, including a local college. Ms G expressed doubt this would work.
16. In January 2023 the Council held J’s annual review. Ms G said J was not ready to think about the future yet, and that they should return to this after the May half-term. In the meantime the Council said it would try to arrange a mentor for J.
17. In February the Council continued searching for an appropriate alternative provision for J. In March, it identified a provider and wrote to Ms G to discuss this. It also suggested it could arrange outreach work from the local college, to help re-engage J. Ms G replied to say she believed J was not interested in education.
18. In April, the Council told Ms G the provider had identified a tutor and a mentor to work with J, and it agreed to fund this provision.
19. In May the Council issued a new final EHC plan for J. It sought an update from the provider, which explained J had attended some sessions but had missed others.
20. In June J’s school took her off role, as Year 11 had now ended. The provider informed the Council it had been struggling to engage J. In July there was meeting between Ms G and the provider, where they discussed ways of encouraging J, including the arrangement of outreach work to begin in September.
21. In August the Council arranged a meeting with Ms G for early October. This was postponed twice at Ms G’s request and eventually took place in November, where it was again raised that J was not interested in education.

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Legislative background

Alternative provision

22. 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.
23. 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.” We refer to this as the ‘s19 duty’. (Education Act 1996, section 19(1))
24. 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)
25. 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 1:1 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’)

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Analysis

26. I will reiterate at this point that my investigation only covers points (d) and (e) of Ms G’s complaint.
27. In her complaint to us, Ms G said the Council has failed to provide an education for J from March 2021 until May 2023. For the reasons I have given, I have not investigated events from before June 2022.
28. Separately, I cannot see the significance of May 2023 to this complaint, as J remains disengaged from education to the date of writing, and I have been unable to contact Ms G to clarify this.
29. Under its s19 duty, the Council must make suitable arrangements for education for any child who cannot attend school for reasons of illness, exclusion or ‘otherwise’. Although I do not know when exactly it made this decision, it is evident the Council has accepted a s19 duty for J.
30. I acknowledge J has received virtually no education for the period under investigation. However, this does not mean the Council is at fault. It is clear the Council has made consistent efforts to find some way to engage J in education, and has provided a range of options for her, but she has declined to take up these offers; in fact, the Council’s notes record that J has said she has no interest in education.
31. This being so, I do not consider any blame can reasonably be attached to the Council for the fact its efforts to arrange alternative provision for J have led nowhere.
32. I should stress that this is not intended to be read as a criticism of either Ms G or of J herself. I understand J’s circumstances make it difficult for her to engage in education. However, the Council’s duty is to make suitable arrangements, and I cannot say it has failed to discharge this duty.
33. This being so, there is no reason for me to find fault by the Council here. It follows, therefore, that I do not consider it should offer any remedy, as requested by Ms G.
34. Havid said this, I do note that, in its response to Ms G’s complaint, the Council said “[the] Complaints Process is in place for organisational learnings, and we do not consider financial compensation as an outcome through this process”.
35. We avoid the using the term ‘compensation’ to refer to financial remedies, because compensation is something a court awards. In a strict sense the Council is correct about this, therefore. However, I consider it clear Ms G was requesting a financial remedy, and this is absolutely something which the Council can, and where appropriate, should offer as part of the complaints process.
36. We have completed investigations into several similar previous complaints about the Council, where as a result of our investigation the Council has paid a financial remedy to the complainant. I am satisfied, therefore, that the Council is aware it may do this, and that its comment to Ms G was not due to any fundamental misunderstanding. I still consider it to be misleading though.
37. On balance, I do not consider this to be a significant enough issue to make a finding of fault; but I would still ask the Council to note my criticism here.

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Final decision

38. I have completed my investigation with a finding of no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman