Summary: Miss Y complained the Council failed to make alternative provision for her child, Z, when they were unable to attend school. We have not found fault with the Council in the way it made its decisions about Z’s alternative provision.

The complaint

1. The complainant, Miss Y, complains the Council failed to make alternative educational provision for her child Z, when they were unable to attend school. She says this failure caused unnecessary stress and upset and affected Z’s wellbeing.
2. Miss Y wants the Council to apologise for its failure, pay financial redress for the impact on Z, and accept it failed to act in accordance with its duty to make alternative provision for children unable to attend school.

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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.
4. 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 spoke to Miss Y, made enquiries of the Council, and read the information Miss Y and the Council provided about the complaint.
7. I invited Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

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. Suitable education means efficient education suitable to a child’s age, ability and aptitude and any special educational needs they may have. (Education Act 1996, section 19(6))
10. 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)
11. 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)

Council’s Access to Education Policy

12. The Council’s Access to Education Policy Section 19 Education Act 1996 is published on its website.
13. This policy sets out the Council’s process for making decisions and taking action to meet its section 19 duties. This includes where children are unable to attend school for reasons other than suspensions, exclusions and medical conditions. It says:

• the Access to Education Panel (ATE Panel) is the usual forum for making and recording these decisions;
• the ATE Panel will determine if the case should be considered as part of the Council’s section 19 duty or a legal enforcement intervention route is recommended; and
• if the ATE Panel determines the section 19 duty applies, it will arrange for suitable education to be put in place where appropriate. Officers will contact the parents/carers to discuss the arrangements and take their and the child’s views into account.

14. The Council also publishes its process for referrals to the ATE panel. This says:

• referrals must be made by one of the professionals listed, which includes local authority attendance officers;
• professionals who wish to make a referral must consult with the school and local authority attendance officer to understand the support the school has already put in place; and
• the referrer must have discussed the referral with their manager who agrees it meets the threshold.

What happened

15. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

16. Z is a primary school pupil. Following an incident at school, Miss Y told the school Z could no longer attend because of their anxiety.
17. Miss Y also contacted the Council’s education team about Z’s difficulties attending school. She said Z had been struggling to attend school for some time because of anxiety before the incident.

November/December 2023: contact about Z’s attendance

18. The Council contacted Z’s school about the situation. The school said it had been supporting Z with their anxiety issues for some time and Z had been coping well with school. It did not consider there was a reason for their absence. It had asked Miss Y to work with it to organise Z’s re-integration back to school but this offer had not been accepted.
19. The Council’s special educational needs and disability information advice and support service (SENDIASS) attended a meeting with the school and Miss Y. The school says it offered ways of supporting Z’s return to school. Miss Y would not consider this as she felt Z would not return to school under any circumstances.
20. Following the meeting Miss Y complained to the Council. She said Z had been struggling to attend school for many months and was now unable to attend because of their anxiety. She complained they had not been provided with any alternative education provision.

January 2024: request for alternative provision

21. Miss Y contacted the Council again. She told it Z had not attended school since November because of their anxiety issues. She wanted the Council to arrange alternative provision for Z.
22. The Council asked the school for information about the request, and the provision it had offered to support Z’s attendance at school. It considered the request for alternative provision at its ATE supervision meeting on 15 January.
23. The Council decided it was not appropriate to refer the request to panel for the time being. It said this was because the school had not supported the request, and the level of support the school had offered to Z.
24. The Council had a meeting with Miss Y, and SENDIASS. It advised her about the outcome of the referral request and the support offered by Z’s school. It advised Miss Y to consider the plan to re-integrate Z back into school and a referral to the Emotionally Based School Avoidance (EBSA) pathway.

Council’s response to Miss Y’s complaint

25. In its response to Miss Y’s complaint, the Council said her complaint was not upheld at this stage because:

• Z’s attendance at school had been 94% before the incident. Their absence had been recorded as unauthorised because there was no medical evidence Z was too unwell to attend school;
• the school’s view was Z should be attending and the prolonged absence was damaging to their wellbeing. The school said it had tried to work with Miss Y to encourage Z back to school and Miss Y had agreed to do this at the recent meeting;
• its attendance officer would explore the barriers stopping Z from attending school. It considered each child’s individual circumstances to inform its decision making about its section 19 duty. Once it received the further information from its attendance officer, it would decide whether to refer Z’s case to its ATE Panel; and
• the ATE Panel would decide if the Council had a duty to arrange alternative provision under section 19, or if it should consider legal enforcement action about Z’s non- attendance. If the Panel decided section 19 applied, it would arrange suitable alternative provision for Z.

26. Miss Y was now supported by an independent SEND adviser. This adviser replied to the Council on Miss Y’s behalf and said:

• Miss Y would escalate her complaint to stage 2 of the Council’s complaints procedure;
• there was no requirement to meet a threshold before the Council was required to provide a suitable education under section 19. Any Council policy or Panel decision which required this was unlawful;
• Z’s difficulties were well documented and the school aware of their longstanding social emotional and mental health difficulties. Evidence about this was attached, with Miss Y’s requests to the school for support. They would be making a parental referral to the EBSA pathway; and
• the Council should provide Z with alternative provision under section 19.

February 2024: further contact about a referral to the ATE Panel

27. The Council told Miss Y’s adviser it would look again at making a referral to the Panel. It asked the adviser for any further documents, including medical information to support the referral.
28. The Council told the adviser it had sent the relevant paperwork to Z’s school for the EBSA referral. It was now making a referral for the ATE Panel. This would be considered at the next meeting.

Council’s final complaint response

29. The Council said:

• Miss Y had been offered home visits to Z to help their return to school. The school had put support in place, including social, emotional and mental health interventions;
• the EBSA pathway was being explored;
• Z’s case, with the additional information provided, had been referred to the ATE Panel; and
• it upheld her complaint points about concern Z had been out of education since November, not being provided with alternative education and gaps in their learning because they were not in school.

March 2024: ATE Panel Decision

30. The Panel considered the referral for Z. It decided:

• the school should be advised to arrange a multi-agency meeting to coordinate support. The meeting was to include parents, school, Education Psychology, School Attendance Officer, a member of the ATE Panel and a Thrive Professional;
• a severe absence action plan should be put in place and the multi-agency meeting was to feed into this plan;
• the school should consider a referral to the Education Psychologist;
• the Council would now fund 1:1 support for Z with the aim of re-engaging them with education and help their return to school full time; and
• the Education Inclusion Officer would discuss the panel decision with Miss Y, arrange a home visit to talk with Miss Y and Z to gain their voices and discuss alternative provision options.

March to May 2024: action to arrange Z’s alternative provision

31. The Council told Miss Y about the Panel decision and arranged a meeting to discuss options for alternative provision.
32. In April, the Council:

• contacted a local education provider about the delivery of Z’s alternative provision; and
• had discussions with Miss Y’s adviser about the proposed alternative provision. The adviser told the Council they wanted another provider (Provider B).

33. The Council considered Miss Y and her adviser’s request and agreed to ask Provider B to deliver Z’s alternative provision.
34. During May Provider B:

• contacted Miss Y to discuss the proposed alternative provision;
• told the Council it had agreed with Miss Y it would start providing Z with I hour of 1:1 support a week with a view to increasing this; and
• it would have an initial meeting with Miss Y and Z and the 1:1 weekly sessions would then start after the half-term.

June 2024: alternative provision starts

35. Z’s first 1:1 session took place at the start of June.
36. The sessions were then increased to five hours a week.

My view – was there fault by the Council causing injustice?

The Council’s decision about Z’s alternative provision

37. My view is the Council properly considered the available information and followed its published policy when making its decisions about its duty under section 19 from November 2023, when Z stopped attending school. I say this because:

• it promptly consulted with the school about Z’s case, worked with the school and Miss Y about a plan to re-integrate Z back to school, and considered the support with this offered by the school;
• it properly considered the information available in January 2024 when making its decision it was not appropriate to refer Z’s case to the ATE Panel at that stage;
• it properly considered the further information provided by Miss Y and her adviser when it made its decision in March to make the referral to the ATE Panel; and
• the Panel properly considered the referral when it made its decision about alternative provision for Z and the other action to support their return to school.

38. A council does not have an automatic duty to provide alternative provision for a child who is not attending school. It must first consider the reason they are not attending - because of exclusion, illness or some other reason - and decide whether the educational provision it has offered is “available and accessible to the child”.
39. It is positive to see that the Council has a published policy and process for making and recording its decisions about its section 19 duties.
40. Based on the information seen, my view is the Council properly considered its duty to provide a suitable education for Z. I don’t consider there is fault in the way it made its decisions in response to Miss Y’s request for alternative provision from November 2023 to March 2024.

Arrangements for alternative provision

41. The Council’s ATE Panel decided in March 2024, it should now make alternative provision for Z.
42. In my view it promptly contacted Miss Y about its decision and the proposed arrangements for Z’s alternative provision. It took into account Miss Y and her adviser’s views about a provider. It asked this provider to agree and arrange the educational provision with Miss Y.
43. The Council then put this agreed provision in place for Z.
44. I don’t consider there was fault by the Council in the way it arranged the delivery of Z’s alternative provision.

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Final decision

45. I have completed my investigation into this complaint. I have not found fault with the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman