Summary: Mrs X complained the Council failed to provide alternative education for her child when they were too ill to attend school. Mrs X said the lost education had a significant impact on her child. Mrs X said she suffered unnecessary and avoidable distress and frustration. We do not find the Council at fault. Also, most of the timeframe complained about is outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, who I refer to here as Mrs X, complained the Council failed to provide alternative education for her child when they were too ill to attend school.
2. Mrs X said the lost education had a significant impact on her child. Mrs X said she suffered unnecessary and avoidable distress and frustration as a result.

Back to top

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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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.
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. 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)

Back to top

What I have and have not investigated

10. Mrs X complained the Council failed to provide alternative education for her child between May 2019 and September 2020, and from September 2022 to July 2023. Mrs X complained to the Ombudsman in July 2023.

May 2019 to September 2020

11. As I have said above, late complaints are when someone takes more than 12 months to complain to us about something a council has done. Mrs X told the Ombudsman she was aware that complaints need to be made within 12 months.
12. We cannot investigate late complaints unless we decide there are good reasons. Mrs X gave her reasons for not bringing her complaint to us earlier. I do not find Mrs X’s reasons are good reasons not to have brought her complaint to us earlier. Because of this, I have decided there are no good reasons to exercise our discretion and investigate Mrs X’s complaint about failure to provide alternative education between May 2019 and September 2020.

September 2022 to July 2023

13. Regarding the second period Mrs X complained about (September 2022 to July 2023), as I have said above, we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal.
14. The courts have established that if someone has appealed to a tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
15. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to the reason the child has an education, health and care (EHC) plan, we cannot investigate a lack of alternative educational provision.
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parent. If the parent goes on to appeal then the period we cannot investigate ends when the Tribunal comes to its decision and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
17. Mrs X’s child, B, has an EHC plan. The reason B was out of school is inextricably linked to the reason they have an EHC plan.
18. In early October 2022, the Council told Mrs X that it would maintain B’s EHC plan. It told her she had a right to appeal the content of B’s EHC plan at the SEND Tribunal. This means Mrs X’s appeal rights were engaged in October 2022. Mrs X exercised this right and lodged an appeal in January 2023. The Tribunal hearing was in August 2023.
19. I therefore cannot consider whether the Council should have arranged alternative provision for B between October 2022 and July 2023.
20. I will consider the period from September 2022 (when B started back at school in the autumn term) to October 2022 (when Mrs X’s appeal rights were engaged).

Back to top

How I considered this complaint

21. 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 and further information received before I reached a final decision.

Back to top

What I found

What should have happened

22. 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.
23. 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

24. Mrs X’s child, B, has an education, health and care (EHC) plan for health reasons which relate to their learning.
25. B started the school term in September 2022.
26. The Council had a meeting with the school in late September to discuss all the children with EHC plans at that school. The school told the Council that B had started well at the beginning of term, but their attendance had started to decline.
27. The school told the Council it was working with B to get them reintegrated into full time education.
28. In early October, the Council told Mrs X it would maintain B’s EHC plan. It told her she had a right to appeal the EHC plan.

Analysis

29. As I have said above, I have considered the period from September 2022 (when B started back at school in the autumn term) to October 2022 (when Mrs X’s appeal rights were engaged).
30. During this month, the Council found that the education available to B at school was suitable, “reasonably practicable” for them to access, and it was “available and accessible” to B.
31. I have seen no evidence which indicates that the Council was wrong to decide this. B was attending school. Even though B’s attendance began to decline in September, we would not expect a Council to consider its section 19 duties at that point.
32. Mrs X says B was absent for most of the period I have investigated. While this may be the case, the school told the Council it was working with B to get them reintegrated into full time education. This is the school’s decision, and this decision is not within the Ombudsman’s jurisdiction. The Council was entitled to decide not to consider its section 19 duties at that point, given what the school said.
33. I therefore find the Council had no duty to consider or arrange alternative educational provision for B in September 2022. For this reason, I do not find the Council at fault.

Back to top

Final decision

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

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman