Summary: Mrs X complained the Council failed to deliver suitable alternative provision to her son. We have found no fault with how the Council considered its section 19 duty or the alternative provision it delivered.

The complaint

1. Mrs X complained the Council failed to deliver suitable alternative provision when her son, Y was out of school. This led to him missing out on education and caused the family to pay for private tutoring, therapy and other activities for Y.

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The Ombudsman’s role and powers

2. 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)
3. 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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

6. I have not investigated matters surrounding Y’s Education Health Care (EHC) Plan. Mrs X has appealed this to the First Tier Tribunal.

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How I considered this complaint

7. I considered Mrs X’s complaint and spoke to her about it.
8. I also considered the Council’s response to Mrs X and to my enquiries.
9. Mrs X 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

The law

General section 19 duty

10. 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.
11. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
12. 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))

Focus report- Out of school, out of sight?

13. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
14. We made several recommendations and in so far as this complaint is concerned, we said the Council should:
• Keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary, and;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

What happened

Alternative Provision (AP) request

15. Mrs X contacted the Council in February to request alternative provision. Mrs X said that Y’s level of anxiety and autism meant he would not manage full-time provision. But said that tutoring, forest school, animal/play/art therapy, access to online schooling, swimming would support Y while he is out of school and while she applied for an EHC Plan.
16. At this stage, Y was on roll at an independent school paid for by his parents. The school provided worksheets and access to other non-academic resources such as football and art.
17. The Council responded to Mrs X. It suggested it could support her to work with the school’s SENCo regarding reasonable adjustments that the school could make to encourage Y to return.

Section 19 duty

18. The Council confirmed its duty under section 19. It said the doctor’s letter provided by Mrs X did not say that Y was too ill to attend school. It also highlighted that because the Council had refused Mrs X’s request for an EHC needs assessment, it would not be in a position to deliver the type of AP Mrs X had requested.
19. The Council said that under section 19, the Council would look at a short-term AP placement. This would be with the view of integrating Y back into school and to access a sustainable school placement with support in place.
20. The Council said it would consider the information provided by Mrs X and would speak to Y’s school and look at commissioning a place at an AP school.
21. Y was taken off roll at his previous school at the end of the spring term (March 2023).

AP school

22. In March, the Council placed Y on roll at AP school which confirmed it had set up online learning for Y. Initially this would include 30 minute sessions of maths and English per day. Following IT problems and due diligence, Y began the online learning in June 2023.
23. After 2 sessions, Mrs X raised concerns about the suitability of the online learning. The Council arranged a meeting with Mrs X and the AP school at the end of July 2023 where they discussed AP options.
24. In September, the Council confirmed that a bespoke package delivered by the AP school was the right provision for Y. The package offered a slow and steady approach with the aim of getting Y back into education. Mrs X responded and stated that she could not see Y returning to any onsite provision.
25. The Council and the AP school proposed:
• 3 hourly sessions a week, with an independent education consultant who would work with Y in the family home on specific areas of the curriculum, and
• 2 hourly sessions per week with an organisation that offers emotional support, mentoring and guidance through gaming and game design. Y was placed on the waiting list in November 2023.

Request for a personal budget

26. In December, Mrs X contacted the AP school about a personal budget to fund therapy intervention for Y as his anxiety levels were high. She requested gym membership with access to a pool to help Y’s activity levels. The AP school responded, stating that she would need to speak to the Council about personal budgets and that a play therapist may be available after Christmas.
27. The Council informed that Mrs X’s requests for a personal budget for gym membership and play therapy had not been agreed at panel. This is because an Education Other Than At School (EOTAS) package had not been agreed. The reasons for the refusal were:
• the EHC Plan was very new, and it would need to be seen if, with the support of the Plan and funding, Y can make progress in a school environment.
• Some of the provisions of the EOTAS package plan did not link directly to the outcomes of the EHC Plan such as gym membership.
28. Mrs X was very disappointed with the Council’s decision. Mrs X said that she was appealing the EHC Plan as it did not meet Y’s needs. The Council explained that it would need to await the outcome of the Tribunal before making decisions that relate to the EHC Plan provisions. The Council clarified that it would continue to support Y with alternative education provision.
29. Mrs X brought her complaint to the Ombudsman.

My findings

30. Within a month of Mrs X requesting AP, the Council made a section 19 decision and enrolled Y into an AP school.
31. Despite being on roll at an AP school from the end of March 2023, IT delays and due diligence meant that Y did not access online learning until June 2023. In its response to Mrs X’s complaint, the Council recognised the transition was not smooth and offered to reimburse Mrs X for the private tutor sessions during this period. I consider this to be a satisfactory offer.
32. When Mrs X raised concerns that the remote online learning was unsuitable, the Council met with her and the AP school to plan a way forward. From the evidence I have seen, the Council and the AP school made suggestions to Mrs X with the aim of supporting Y to access education and eventually return to a school setting. However, Mrs X appeared to be very reluctant to accept provision that did not meet her expectations.

While the AP guidance allows for some parental input, it is the Council’s decision what AP should be offered. The Council was clear that it could not provide the EOTAS that Mrs X wanted as it did not align with the provision set out in Y’s EHC Plan. I have found no fault with how the Council reached its decision.

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Final decision

33. I have completed my investigation. I have found no fault with how the Council considered its section 19 duty. There was a slight delay between Y being on roll at an AP school and him receiving education. The Council has offered to remedy this.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman