Summary: We found fault on Mrs Y’s complaint about the Council failing to ensure her daughter received alternative education after she stopped attending school. It failed to show it decided whether she received suitable education. It fettered its discretion by requiring medical evidence from a medical consultant or CAMHS manager. It failed to liaise with other sources of evidence. It also failed to follow its complaints procedure. This caused lost education, stress, and lost opportunity. The Council agreed to make a payment for lost education provision, and review policy, monitoring procedures, and her education provision.

The complaint

1. Mrs Y complains about the Council’s failure to:
1. ensure her daughter received alternative education provision since she stopped attending school in October 2023 due to severe anxiety and unmet needs; and
2. follow its complaints procedure.
2. As a result, her daughter remains out of school which is impacting on her mental health, and that of her daughter. It also affected her financially due to the impact it had on her job.

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The Ombudsman’s role and powers

3. 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)
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. A council should not adopt a blanket or uniform approach or policy which prevents it from considering the circumstances of an individual case. We may find fault in its actions that ‘fetter its discretion’ in this way.
6. When considering complaints, we make findings based on the balance of probabilities. This means we look at the available relevant evidence and decide what was more likely to have happened.
7. 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

8. I have not investigated any complaint Mrs Y may have about the Council’s actions which took place before October 2023. This was because this was the date when her daughter stopped attending school.
9. This investigation considered events to May 2024. This was because this was the date she complained to us.

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How I considered this complaint

10. I considered all the information Mrs Y sent, including the notes I made of our telephone conversation, as well as the Council’s response to my enquiries. I sent a copy of my draft decision to Mrs Y and the Council. I considered their responses.

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What I found

Council: Policy to ensure compliance with statutory guidance in respect of Alternative Provision

11. Councils are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who, because of illness or other reasons, would not receive suitable education without such arrangements being made.
12. While there is no statutory requirement as to when suitable full-time education should start for pupils placed in alternative provision for reasons other than exclusion, councils should ensure they are placed as quickly as possible.
13. Pupils who cannot attend mainstream school because of health needs have provision through Pupil Referral Units (PRU). Pupils too ill to attend a PRU would get home tuition. Inpatients of local hospitals and the Child and Adolescent Mental Health Service (CAMHS) assessment centre would receive provision through the Lancashire Hospital Education Service.

Council policy: Ensuring a good education for children who cannot attend school because of health needs

14. Parents are required to provide the necessary medical evidence, from a medical consultant or CAMHS manager, to support a referral for provision.
15. The criteria for access to a PRU includes: those diagnosed with illness or injury, which necessitates interruption to their schooling for more than 15 school days; those with chronic medical conditions or recurrent illnesses needing regular admission to hospital or frequent absences from school; those who cannot access mainstream education for more than 15 school days because of diagnosed psychiatric/psychological difficulties.
16. Access to a PRU is through the Medical Education Panel (the panel) who meet to decide if the case meets the criteria.

Relevant legislation and guidance

Section 19 education

Alternative provision

17. 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. The ‘otherwise’ category provides for a wide range of scenarios where a council may have a legal duty under section 19. It would include, for example, when a child was refusing to attend school due to anxiety or phobia. (Statutory guidance ‘Alternative provision’ January 2013)
18. Statutory guidance (the Guidance), ‘Arranging education for children who cannot attend school because of health needs’ (December 2023) says if specific medical evidence is not readily available, the child’s home school or the local authority, should consider liaising with other medical practitioners (GP or consultant) and consider other evidence to ensure appropriate provision can be arranged as soon as possible. It should review any additional evidence to help identify the most suitable provision.
19. A council does not need to become involved in arrangements made by a school involving health needs unless it has reason to believe the education provided by the school is unsuitable.
20. Where possible, the child’s health needs should be managed by the school to allow them to continue to be educated there with support, without the need for intervention of the council. When it is clear the school can no longer support the child’s health needs, and provide suitable education, the school should speak to the council about putting alternative provision in place.
21. There is no absolute legal deadline by which a council must start to arrange education for children with additional health needs. As soon as it is clear a child will be away from school for 15 days or more because of their health needs, it should arrange suitable alternative provision. It should start as soon as possible.
22. The education offered should be good quality, equivalent to that provided in mainstream schools as far as the child’s health needs allow.
23. 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))
24. The education provided by the council must be full-time unless the council determines 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 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 intensive.
26. The Department for Education guidance (‘Working together to improve school attendance’) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances, there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a reintegration package. A part-time timetable must not be treated as a long-term solution. 
27. We 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?’ published July 2022)
28. We made six recommendations which said councils should:

• consider the individual circumstances of each case and be aware a council 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 when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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.

29. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. This means councils should keep oversight and control to ensure their duties are properly fulfilled.

The acid test

30. The courts considered the circumstances where the section 19 duty applies. Caselaw established 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 offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
31. The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. The courts found (R (on the application of G) v Westminster Council [2004] EWCA Civ 45) the education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child.
32. If a council is not satisfied parents are providing a suitable education, they can serve a notice on the parent and issue a school attendance order. Where a council chooses enforcement, it has no parallel duty to make alternative out-of-school provision for the child in question. This is because the child has a place at school and there is no good reason for them not attending.

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What happened

33. Mrs Y said her 15-year-old daughter, Z, was unable to attend secondary school from October 2023 because of severe anxiety and unmet needs. Z was in Year 10. There had been bullying at school and Z was physically assaulted by another pupil who was moved. Her daughter began to get into trouble for small issues at school because of anxiety. She was suspended for two days.
34. In early November, the school told the Council of Z’s absence and the contact it had from Mrs Y about it. Mrs Y asked the Council to provide Z with alternative provision. She explained Z was under CAMHS and waiting for an Attention Deficit Hyperactivity Disorder (ADHD) assessment. The school had offered PRU1 which was unacceptable as the child who bullied Z was there.
35. The Council wanted to know from Mrs Y and Z what they wanted. It was concerned alternative provision would narrow Z’s options significantly at GCSE. As she had only been out of school for a short time, a range of support could be given if she went back quickly. It suggested the school consider providing online lessons and sent a referral to the Children’s Champion to understand Z’s needs and preferences. Internal emails said Mrs Y should go back to the school for support and to explore alternative provision.
36. The school gave her online learning for three weeks. She was having tests for ADHD and for Autism Spectrum Disorder. There had been a ‘managed’ move to another secondary school in April, but Mrs Y said Z could not settle there. A managed move is an agreement between two schools, a child, and parents to start the process which leads to the permanent transfer from one school to another.
37. The Council said weekly visits to Z at her home were arranged from school. It provided no evidence showing these visits happened.
38. The following month, a Children’s Champion (the officer) employed by the Council, was appointed for Z. These help support children and ensure their voices, views, and experiences, are heard.
39. The officer met Mrs Y and Z at their home. He outlined various options and suggested the school met Mrs Y to discuss a way forward. The options suggested included: a phased return to the school; respite at an alternative school further away such as a PRU. Mrs Y said the options were unsuitable. The officer explained the Council could look at a ‘section 19 medical’, but the school needed to make the referral with required evidence. He explained this meant sending medical evidence signed by a consultant. She was also told the school could source alternative provision itself, such as home tutoring with the aim of reintegration back to school.
40. At this point, Z had just completed three weeks of online tuition of six hours a week in maths, English, and science. Mrs Y did not consider this was enough or amounted to a full-time education. She wanted the online tuition extending to Christmas.
41. When the officer spoke to Z, she became overwhelmed and upset. Various recommendations were made which included: the school to consider submitting medical evidence of a section 19 medical placement if she met the criteria; Mrs Y to ask for extra support for Z’s mental health; school to look at reintegration methods and providing meaningful education through alternative provision or tutoring to ensure a suitable education; complete a graduated response. He notified the school of what had happened and suggested a meeting.
42. In January 2024, Mrs Y contacted the school after visiting a third-party provider as she wanted Z to go there three days a week and do online work from the school. The officer met the school who agreed to meet Mrs Y.
43. The following month, at a meeting, the school explained online provision was not a long-term solution as it would not deliver the curriculum. It had provided this until recently. The officer agreed about the online provision. The school also said Z did not meet the section 19 criteria as she was not under CAMHS. Mrs Y said the school referred Z to CAMHS in November 2022 with assessments done in March and September 2023. The school noted it had offered respite at PRU1 which was the outcome a section 19 medical decision would have resulted in anyway.
44. The school again set out options. These included: a phased return back to school; respite at an alternative school further away; home schooling; applying to another school for a managed move.
45. Mrs Y refused reintegration back to the school.
46. The next day, Mrs Y made a formal complaint to the Council. She also asked for the Council to assess Z for an Education, Health and Care plan (EHC plan). With her complaint, she sent a copy of a note from the GP which confirmed Z was already under CAMHS due to anxiety.
47. The Council replied to her complaint on 20 February saying it was for the school, as far as possible, to make reasonable readjustments to support Z’s continued access to education there, even if this meant a reduced timetable or other amendments. It explained the school was required to implement adjustments and continue to work to provide access to education in some form.
48. It went on to explain there were two routes for pupils with medical conditions. Both required the school to ask the Council for support. One route was the panel, with supporting medical evidence. The other was the Lancashire Hospital Education Service which also required medical evidence. CAMHS would need to provide supporting evidence about Z being unable to attend school for medical reasons. The Council would advise the school of these options.
49. The same month, Mrs Y confirmed the options were not currently suitable because of Z’s severe anxiety. She ended by saying if there was anything else the school could do, to let her know, otherwise she again referred the Council to section 19 provision.
50. The officer sent an internal email which confirmed Z did not meet the section 19 criteria.
51. An education psychologist completed a report on Z in March as part of the EHC needs assessment. This said it was unlikely she would return to this, or any other, mainstream school.
52. The Council again decided Z did not meet the section 19 criteria as there was no medical evidence about her health.
53. In March, Mrs Y contacted PRU2 directly to arrange a visit to look round after the school suggested it. This would be a short-term placement only.
54. The Council received a request for medical provision to the panel (section 19 medical) in May. The panel approved the request. This was for a two-term placement at PRU2. Medical evidence was sent in support which the Council said was CAMHS information. A couple of days later, Z started there. She still attends there part time, along with an alternative provider for one day a week. This was provided under the Council’s section 19 duties.
55. The Council said its current medical policy stated evidence of an active treatment plan was needed to access medical provision. It was reviewing it ‘in line with section 19 legislation’. It accepted while it eventually made a decision based on medical provision arrangements, it could have done so earlier.

My findings

56. I fault on this complaint. In reaching this decision, I took the following into account:
1. The law clearly states a council must intervene and provide education under the section 19 duty if no suitable educational provision has been made, for example, by the school, for a child who is missing education through exclusion, illness, or otherwise. The duty arises after a child has missed 15 days of education either consecutively or cumulatively. This meant once alerted to Z’s absence, it needed to consider its legal duties and act where appropriate.
2. Provided a council can show it considered, and was satisfied a child’s school educational provision was ‘reasonably available and accessible’ for the child, the duty to arrange alternative provision will not arise.
3. Z stopped attending school in October after a further suspension. The 15th missed day of school was in mid-November, taking account of the school’s half term break. I note Mrs Y brought Z’s situation to the Council’s attention before this date.
4. The section 19 duty required the Council to satisfy itself that Z was receiving a suitable education. I saw no evidence the Council did this. While the Council assessed Z in December 2023, I saw no evidence of it deciding Z was, or was not, in suitable education. Nor was there evidence it kept this under review.
5. In reaching this view, I noted:

• the assessment was carried out by an officer who visited her about one month after the 15th day ended. During it, Mrs Y explained why the school’s offer of PRU1 was unsuitable. She also said Z had just received three weeks of online tuition of six hours a week, and the school had attempted a managed move to another secondary school. Z would not settle there. The school’s attempts to arrange external education were, therefore, unsuccessful;
• there was no evidence the Council considered the school’s strategies were providing a suitable education before deciding whether it needed to intervene under section 19;
• there was no evidence the Council considered and decided whether the online provision was satisfactory or not;
• while the Council said home visits by the school were done, there was nothing to show what these were for, who did them, their frequency, duration, and intention. Nor was there evidence showing the Council considered these visits in terms of whether the school was providing a suitable education;
• there was no contemporaneous record made about how it decided whether the section 19 duty applied (health or otherwise), or any reasoning behind such a decision;
• there was nothing to show it considered the part time provision made by the school was equivalent to what would have been provided had she remained in a mainstream school;
• Mrs Y rejected proposals and recommendations made by the Council. There was nothing to show how the Council considered this and whether there she had a reasonable justification for refusing those parts recommended concerning reintegration back to this school; and
• there was no evidence showing how it would monitor, and keep the suitability of education Z received, under review.
6. I am also satisfied the Council had an inflexible policy about the evidence needed for section 19 medical provision. This was because it insisted the supporting medical evidence which had to be submitted was provided by a medical consultant or CAMHS manager. In addition, pupils needed to be in receipt of medical treatment for a condition.
7. I consider these criteria were too strict and amounted to the Council fettering its discretion. This was because the Guidance, and the previous statutory guidance it replaced which was in place since 2013, said where specific medical evidence was not readily available, the school or the council should consider liaising with other medical practitioners. This would include a GP. There was no evidence the Council considered liaising with other medical practitioners. The Council needed to consider all the circumstances of the situation.
8. The Guidance also said a council should consider other evidence to ensure appropriate provision can be arranged as soon as possible. The other evidence the Council could have considered in this case, in the date order it was received or became aware of the involvement, was: CAMHS (9 November 2023), the GP reference to CAMHS involvement (February 2024) and the education psychologist report (March 2024). It could have contacted and liaised with the GP, CAMHS, and the education psychologist at any of these points in time.
9. The operation of the policy meant a section 19 medical referral could only be made with medical evidence from a medical consultant or CAMHS manager. Had the Council not had this inflexible policy, it was possible it could have considered section 19. I note the decision the panel went on to make in May was based on information from CAMHS. While I have not seen this information, as noted, it was aware of CAMHS involvement since November 2023.
10. I am satisfied, therefore, the Council missed the chance to make a properly considered section 19 decision at a much earlier stage than it did. This would have looked at what education she could cope with and what education she was receiving from the school. On balance, it was possible the May 2024 panel decision could have happened sooner.
11. Nor have I seen evidence showing whether the Council considered this was a case it needed to take enforcement action on.
12. I consider the fault caused Mrs Y and Z some injustice. This took the form of distress as it caused: lost opportunity to have Z’s situation properly decided sooner; frustration; anxiety; lost, and limited, educational provision from November 2023 to May 2024 as she did not receive full time education or its equivalent; not knowing whether the online provision was properly considered by the Council as suitable.
13. When considering injustice, while I also took account of Mrs Y’s refusal to agree to the recommendations made by the school and the Council, I gave this limited weight. This was because it was clear Mrs Y wanted Z to receive education but was not convinced it should be back at the school she left. This was why she was against the phased return/reintegration recommendations. Her refusal of reintegration was justified with the publishing of the education psychologist’s report.

Complaint b): complaints procedure

57. I also considered Mrs Y’s complaint about the Council failing to follow its complaints procedure. Mrs Y complained to the Council on 13 February 2024. This was acknowledged two days later. It said she would receive a response by 29 February and sent it on 20 February. The response did not explain she could go to the next stage if she remained unhappy.
58. A week later, Mrs Y contacted the Council in response. This did not say she wanted it to go to the next stage of the Council’s complaints process.
59. On 12 April, the Council wrote to Mrs Y as it understood she had not received its original reply. The letter noted the Council had sent her a copy but her response to it failed to reach the complaint officer’s inbox. Again, this did not mention what she could do if she was unhappy with its response.
60. The Council confirmed it considered these were its stage 1 and 2 responses and accepted the correct templates were not used.
61. The Council’s complaints procedure stated:

• Stage 1: investigation: the Council will acknowledge the complaint within three working days. The appropriate manager for the service will investigate and respond within 20 working days. If this is not possible, it will let the complainant know how much longer it will take and give progress reports. If dissatisfied, they can ask for it to go to Stage 2.
• Stage 2: consideration by Head of Service or Director. A response is sent within 20 working days from the date they asked for it to go to stage 2. Again, if it will take longer, the complainant is told.

My findings

62. In its stage 1 response, the Council failed to tell Mrs Y she could escalate her complaint to stage 2 if she remained dissatisfied. This was fault.
63. For whatever reason, Mrs Y did not receive this letter. When notified, the Council sent her another letter in response. The Council accepted this was its stage 2 response. This letter did not signpost her to us. This was fault.
64. I am satisfied these failures caused Mrs Y an injustice. This was in the form of distress as it caused her some frustration with the process. When considering her injustice, despite the failure to signpost her to us, I note she complained to us anyway.

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Agreed action

65. I considered our guidance on remedies, the online provision Z received, her school year, and her identified needs.
66. The Council agreed to take the following action within six weeks of the final decision on this complaint:
1. Send Mrs Y a written apology for: failing to show it properly considered whether Z was receiving suitable education from the school; failing to properly consider whether its section 19 duty applied; fettering its discretion about the evidence it would consider under section 19 medical; not following its complaint procedure.
2. Pay £300 to Mrs Y for the injustice the identified fault caused.
3. Pay £2,000 to Mrs Y to acknowledge the two terms (1x full term and x2 half terms x £1,000 a term) her daughter was not receiving full time education.
4. Consider whether additional tuition could be provided for Z to help her catch up with the education she lost and set out an action plan for its provision.
5. Review its policy about evidence required for section 19 provision.
6. Review its oversight/monitoring systems in place for children who are not attending school full time.
7. Remind all relevant officers of the need to make and retain proper records of its consideration and decision about: whether its section 19 duty applied or not; enforcement action for non-attendance.
8. Remind complaint officers of the need to use approved templates when responding to complaints which signpost to the next stage of the complaints process and to us.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. I found the following on Mrs Y’s complaint against the Council:
1. Complaint a): fault causing injustice; and
2. Complaint b): fault causing injustice.
69. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman