Summary: Mrs Y complains the Council failed to ensure her daughter, D, received suitable alternative provision when she was unable to attend school. In our view, the Council made provision available at a level which was appropriate for D. However, there was some delay in putting the agreed level of provision in place which caused injustice. The Council has agreed to implement the remedial actions listed at the end of this statement.

The complaint

1. Mrs Y says the Council failed in its duties under S19 of the Education Act 1996 to make suitable provision available for her daughter, D, after she was unable to attend school due to bullying.
2. Mrs Y says the Council’s intervention was significantly delayed and as a result D missed a substantial period of education. When the Council eventually arranged alternative provision, it was on a part-time basis only.
3. As a result of the Council’s actions, Mrs Y says she had to fund the shortfall of provision which caused her financial loss. Mrs Y also says D has been academically and socially disadvantaged and the family have experienced avoidable distress.

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The Ombudsman’s role and powers

4. 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)
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 considered the information provided by Mrs Y and her representative, Mrs X. I also gave Mrs X the opportunity to discuss the complaint with me by telephone.
7. I made enquiries of the Council and considered its response alongside the relevant law and guidance which I have referred to in this statement.
8. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

The relevant law and guidance

10. 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))
11. The education provided must be full-time unless the council decides it 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)
12. 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 one-to-one 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’)
13. Although there is no statutory timeframe, the Council should attempt to arrange alternative provision as soon as it is clear that the child will be away from school for more than 15 school days.
14. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them 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 courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give to medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]).
16. 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. (Out of school… out of sight? Ensuring children out of school get a good education, published in July 2022).
17. We made six recommendations:
• consider the individual circumstances of each case and be aware they may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in reaching decisions;
• choose, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• 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.

Key events relevant to the complaint

18. D attended a mainstream secondary school. Mrs Y says D was the victim of bullying which significantly affected her mental health and her ability to attend school.
19. The records show the Council received notification from D’s school on 1 June 2023 that she was on a part-time timetable and had been since 12 May 2023. D was in school Year 10. The school told the Council that D was attending school four hours a day for five days a week. The school did not say that D had stopped attending school, been absent for more than 15 days or that she needed alternative provision.
20. The records do not show any further contact between the school and the Council regarding D between June and October 2023.
21. On 3 October the records show Mrs Y called the Council for advice about D. The notes of the call show that Mrs Y explained D was being bullied and that she had already arranged with the school for D to attend for half days only. The officer who spoke with Mrs Y advised her to look on the school’s website to get further information about their policies. Mrs Y also asked for information about Elective Home Education (EHE).
22. One week later, D’s school contacted the Council. It said that D was currently absent and unlikely to return. The school told the Council it had discussed a possible managed move to another school, but Mrs Y declined. The school asked for a referral to the ‘Children who Cannot Attend School’ (CCAS) panel.
23. Mrs Y’s representative, who I will call Mrs X, emailed the Council on 11 October with a copy of a GP letter regarding D’s inability to attend school.
24. On 12 October the school emailed the Council to advise that D had been absent for ten days. The school shared a chronology of incidents, actions and communication with Mrs Y about alternative provision. The school also attached medical letters it had received in respect of D.
25. The records show email exchanges between Mrs X and the school about D’s case. On 27 October the school said to Mrs X:

“The LA were notified previously of the reduced timetable. [D was] attending school part-time and it is our opinion that Alternative Provision was not appropriate at that time and that the criteria was not met for a referral to the Educational Psychologist or direction to SENDIASS. We would not necessarily involve the LA in our decision making as a stand-alone Academy”.

26. On 8 November Mrs X told the Council that D’s school had arranged alternative provision for one day each week. Mrs X said it was a positive step forward but not a long-term solution.
27. The Council emailed Mrs Y on 21 November to invite her to the CCAS panel due to go ahead on 28 November. The Council also explained the purpose of the panel.
28. The notes of the CCAS panel on 28 November show the following areas of discussion.
• Agreement for the Council to fund D’s alternative provision for four days a week (15 hours).
• Parents requested for the provision to be increased but only once transport was in place for D.
• Regular reviews to take place to monitor D’s provision and to ensure it remained appropriate for her needs as they evolve over time.
• The desire is for D to transition back to another school eventually or to access early post-16 provision.
29. D’s provider of alternative provision closed for the school holidays on 14 December. When it re-opened in early January, D started attending for 15 hours a week over four days.
30. On 4 January 2024 the Council emailed Mrs X to discuss D’s provision:

“I have spoken with [Mrs Y]. I raised the potential for [provider] to offer 25 hours in specific circumstances and sought [Mrs Y and D’s] views. [Mrs Y] said it would be too much for [D] to make a transition straight to 25 hours. [Mrs Y] agreed it is correct to start with 15 hours and then review. I said I’m looking to arrange a review mtg [meeting] in the 3rd week of [provision] (w/b 22/01/24), [Mrs Y] agreed”.

31. Another CCAS panel took place on 22 January 2024 where D’s case was discussed.
• D is studying towards four GCSE qualifications. The provider says she displays ‘exemplary’ behaviour and is engaging well with the provision.
• D aspires to study towards a post-16 ‘health and social care’ qualification and the provider will help to find an examination centre.
• Parents said they were happy with the 15 hours of provision currently in place. If four GCSEs is enough for D to achieve her post-16 goals, then the parents would not look to increase the hours of provision in place.
• The provider said that 15 hours is an appropriate amount of provision for D because the teaching she receives is more intensive due to small group and 1:1 work.
32. As a result of her ill health, D stopped attending the alternative provision in early March.
33. The notes of the following CCAS panel on 13 March show the following discussion.
• Parents worried about D’s mental health. She is now receiving support from the NHS for a possible eating disorder. Due to her weight loss, she is at risk of hospitalisation and cannot currently access education because she is on bed rest. Until last week, D’s attendance was 100%.
• The provider was willing to send work home for D, but parents wanted to check with health professionals first.
• The provider maintains regular contact and hopes to support D to return soon. Parents are hopeful this will be next week.
• The provider said D remained on track for her GCSEs and it will continue to review the placement over time.
34. D started attending the provider again on 9 April after the Easter break.
35. Notes from the CCAS panel on 30 April showed that D was happy and doing well in the provision following her return earlier that month.

Findings

36. We may find fault with a council if it provides part-time provision without any justification and without considering what is appropriate for the child or young person in question. The starting point should be full-time provision, or equivalent, unless there is evidence this would not be in the child’s best interests.
37. In my view, the decision to allocate 15 hours of provision a week for D was based on a professional judgement and following the request of D’s parents. I do not find fault for the following reasons.
• The Council discussed D’s case with her parents and her school before making a decision about the type and quantity of alternative provision. It also considered a GP letter. Everyone consulted agreed they were happy for D to access 15 hours of education per week if this was enough for her to achieve her goal of studying towards a health and social care qualification. The Council and provider agreed to increase the provision up to 25 hours per week if it was appropriate for D.
• Records show that Mrs Y was happy with the arrangements in place for D. At no point did Mrs Y say that the provision was inadequate in content or quantity.
• Full-time education is not defined but is commonly held to be equivalent to between 22 and 25 hours a week, depending on the child’s age. However, if a Council is arranging one-to-one tuition, fewer hours may be appropriate, given the increased intensity of learning. D’s provision is intensive because of the small group work and 1:1 sessions.
• Although Mrs X says the Councils Section 19 duty was engaged from May 2023, there is no evidence to support this claim. The law and statutory guidance do not say a council’s duty becomes engaged once a pupil begins a part-time timetable. The records show the school notified the Council of D’s part-time timetable in June. It did not say that D had stopped attending school, or that she had failed to attend for 15 days due to illness or other reasons. In my view, the Council’s duty to arrange suitable alternative education was engaged from October 2023 when it became aware that D would not return to school after a period of absence.
• There is no evidence of any quantifiable loss experienced by D’s parents. The records show the Council reimbursed Mr Y for petrol expenses he incurred between 9 October to 14 December (the period during which he transported D to the provider every Monday). The Council also reimbursed D’s parents for some private online learning purchased in 2023.
38. Although we find no fault with the type and quantity of provision offered to D, there is evidence of a small delay in making that provision available. Mrs X says the Council delayed when increasing D’s provision from one to four days per week. She says the provision could have been increased sooner and that the availability of taxi transport should not have been a barrier. She says the Council knew that D’s parents had offered to transport her to the placement until the taxi was arranged, as long as their costs were refunded. This is evidenced by email exchanges.
39. In its correspondence with Mrs X, the Council accepts that its Section 19 duty started from Monday 9 October 2023 when D’s school said she was unlikely to return. There were 43 school days between 9 October and 14 December 2023 when the provider closed for Christmas. During that time, D received one day of provision each week instead of four. In my view, that decision was not based on D’s health or ability, but because of the unavailability of taxi transport.
40. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss

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Agreed action

41. The Council has agreed to take the following action within four weeks of our final decision:
• Pay £1,020 to Mrs Y for D’s educational benefit. This is in recognition of the partial provision received by D between October 2023 and January 2024 which we consider was a result of avoidable delay. We have taken into account that D received one day of provision each week during this period and have calculated the remedy on the basis that she received approximately one quarter of the agreed provision for almost 70% of the Autumn term.
• Apologise in writing and pay £200 to Mrs Y for the distress, time and trouble caused by the fault identified in this statement. We recommend the apology letter to be written in accordance with our Guidance on making an effective apology.
42. The Council tells the Ombudsman is has already taken positive action in response to the growth of notifications about children missing education in 2022/23. The improvements include:
• reorganised services and staff;
• integrated leadership to focus accountability;
• increased frontline staffing;
• co-produced guidance Children who Cannot Attend School (CCAS) | Worcestershire County Council for staff, settings and parent/carers in relation to children who are not attending school;
• shared information and guidance through education networks and the education bulletin; and 
• introduced a weekly multi-agency panel that includes a Senior Operational Health Manager working with schools to provide support and to agree the relevant level of education provision in line with meeting children’s needs. 
43. The Ombudsman welcomes the service improvements listed above. To complement the work already taking place, within eight weeks of our final decision, the Council will also seek to further improve the timeliness of the decisions it makes about requests for alternative provision. To do so, the Council will:
• arrange staff training or a briefing paper. As part of this, the Council will draw officers’ attention to the Section 19 duties, accompanying statutory guidance and the Ombudsman’s focus report ‘Out of School, Out of Sight?’
44. The Council will provide us with evidence it has complied with the above.

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Final decision

45. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions listed in the above section will provide an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman