Summary: Ms X complained the Council failed to provide suitable education provision for Z, from the point Z stopped attending School D. Ms X said this affected Z’s educational attainment and wellbeing. She said it also led to avoidable distress and expense. We have found the Council failed to consider its section 19 duty at key points. We cannot say the Council would have acted differently, but for its faults. The Council has agreed to apologise and pay a symbolic financial remedy in recognition of the avoidable distress and uncertainty caused. The Council has also agreed to provide guidance to its officers. There are parts of Ms X’s complaint we cannot investigate. We explain why in our statement.

The complaint

1. Ms X complained the Council failed to provide suitable, full-time education provision for her daughter, Z, from the point Z was unable to attend School D. Ms X said this affected Z’s educational attainment and wellbeing, causing avoidable uncertainty, frustration and distress. Ms X also said she experienced avoidable uncertainty and distress, and incurred financial expenses, due to the Council’s faults.

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The Ombudsman’s role and powers

2. 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)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. 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)
5. 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)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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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What I have and have not investigated

Time

8. Paragraph 4 sets out the Ombudsman’s jurisdiction to investigate historic complaints. Ms X approached the Ombudsman in June 2024 and so the 12-month time bar would apply from June 2023. However, I have exercised our general discretion to consider matters from October 2022 onwards. This is because events from this period are directly relevant to the injustice Ms X claimed.

Appeal rights

9. Paragraphs 5 and 27-30 set out the Ombudsman’s jurisdiction to investigate complaints where a relevant right of appeal exists about the same, or closely related matters. For these reasons, I cannot investigate a complaint about a lack of alternative provision from July 2023 onwards.

Schools

10. Paragraph 6 sets out the Ombudsman’s jurisdiction regarding the actions of schools. Parts of Ms X’s complaint concern School D’s actions. I have referenced some of these actions and School D’s own complaint response for context, but I have not investigated these actions.

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How I considered this complaint

11. I discussed the complaint with Ms X and considered information she provided.
12. I considered information the Council provided about the complaint.
13. Both Ms X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.
14. 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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Relevant legislation, guidance and policy

Alternative provision

15. 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.
16. 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’)
17. 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)
18. 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)
19. 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 medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
20. 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? published July 2022)
21. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that 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;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

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

Education, Health and Care Plans

23. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
24. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement. 

25. We cannot direct changes to the sections about a child or young person’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 

Appeal rights

26. There is a right of appeal to the Tribunal against a council’s:
• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

The Ombudsman’s jurisdiction when there is an appeal right

27. The courts have established that if someone has appealed to the 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)
28. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
29. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
30. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Free school meals

31. Government guidance, “Free school meals: guidance for local authorities, maintained schools, academies and free schools” sets out that where a child has a disability that affects their ability to eat free school meals, schools must make reasonable adjustments to help that child.
32. The Education (Transfer of Functions Concerning School Lunches etc.) (England) (No.2) Order 1999 transferred the duty to provide free school meals for eligible children from councils to the governing bodies of maintained schools.

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What I found

33. Below is a summary of the key events leading to this investigation. It does not detail every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
34. In October 2022, School D and Ms X asked the Council to carry out an EHC needs assessment for Z. This followed periods where Z did not regularly attend School D.
35. The Council agreed to carry out an EHC needs assessment. In December 2022, it sought advice for professionals as part of the assessment. These professionals included a Cognitive Behavioural Therapist (CBT) and an Educational Psychologist (EP).
36. The Council said it was told about Z’s absences in Late April 2023. On 4 May 2023, the Council went to an attendance meeting with School D, Ms X and Z. Minutes from this meeting showed:
1. School D had put in place various measures to support Z’s attendance and reintegration. These included “soft landing” sessions on arrival to school, 1:1 tutoring four times per week in English and Mathematics, providing work for Z to complete at home and a reduced timetable.
2. Z’s overall attendance for the year was 35%. Z had not attended School D for several weeks before the meeting.
3. Ms X raised concerns about School D’s approach in this case. School D said it felt some of the requests made were not reasonable in a mainstream setting.
4. School D said Ms X was at risk of prosecution for Z’s non-attendance, which School D felt was not supported by relevant medical evidence. It would refer this matter to the Council. Ms X disagreed with School D’s position.
5. A new amended timetable for Z was proposed, with a further review to take place in around a month.
37. In June 2023, Ms X complained to School D:
1. Ms X alleged School D had discriminated against Z and failed to follow its SEND policy or make reasonable adjustments.
2. Ms X said despite agreeing a reduced timetable, School D was marking Z’s afternoon absences as unauthorised.
38. On 7 July 2023, there was a further attendance review meeting. Minutes from this meeting showed:
1. Z had not attended School D since the previous meeting. School D told the Council it could not meet Z’s needs. Ms X and Z told the Council Z no longer wanted to attend School D.
2. The Council said the next step would be finding alternative provision while it finalised Z’s EHC Plan and named a setting.
3. Those present agreed School D could not meet Z‘s needs, but there was no agreement about the type of setting that would be suitable.
4. The reduced timetable would stay in place while Ms X and Z considered other settings and provided further medical evidence.
39. On 17 July 2023, the Council issued Z’s final EHC Plan. This continued to name School D as the setting, The Council provided Ms X with the right to appeal the EHC Plan to the SEND Tribunal.
40. On 18 July 2023, I understand the Council confirmed it would not seek a prosecution of Ms X for Z’s non-attendance.
41. In September 2023, School D responded to Ms X’s complaint:
1. It upheld Ms X’s complaint about it wrongly recording Zs absences.
2. It said a Tribunal would consider the discrimination claims.
3. It set out the measures it had taken to support Z, but said these had limited success due to Z’s non-attendance.
42. I understand the Council and Ms X attended a mediation meeting in October 2023. On 26 October 2023, Ms X appealed to the SEND Tribunal regarding sections B, F and I of Z’s EHC Plan.
43. In November 2023, Ms X complained to the Council:
1. Ms X complained about Z’s lack of education provision. Ms X said Z remained on roll at School D, which the Council continued to name in the EHC Plan despite it being unsuitable.
2. Ms X said the Council had been aware of Z’s non-attendance since April 2023.
3. Ms X said she had been issued with a fixed penalty notice (FPN) for Z’s non-attendance, despite there being professional evidence relating to Z’s needs. Ms X said the FPN had since been withdrawn and refunded, but School D continued to be unsupportive.
4. Ms X said the Council had not arranged the alternative provision it proposed in the meeting in July 2023. Ms X said School D had sent Z work to complete at home since September 2023, but this arrangement was not suitable.
5. Ms X sought an apology, funding for suitable alternative provision, a tutor for Z away from the school setting, and guarantees about future prosecution for non-attendance.
44. I understand Z started attending an alternative provision setting in November 2023.
45. In December 2023, the Council responded to Ms X’s complaint:
1. The Council said it discussed providing alternative provision on medical grounds in July 2023. However, Ms X had declined this, as the Council might name a new setting in the EHC Plan and Ms X did not want Z to change settings too often.
2. The Council set out its reasons for naming School D in the EHC Plan. It said School D then wrote to Ms X setting out a return-to-school programme. The Council said this included adaptions to provision, policy and curriculum. It said this was a form of alternative provision.
3. The Council said it had not received any medical evidence to show Z could not engage with the provision on offer.
4. The Council provided an apology. It said it could not offer guarantees about future non-attendance prosecutions, advising it would consider any evidence School D submitted. It said Ms X should make a new complaint about the funding for alternative provision.
46. Ms X escalated her complaint. She reiterated her concerns about a lack of suitable education provision for Z. She said the Council was at fault for not monitoring Z’s attendance or part-time timetable, and it should have acted sooner. Ms X also said had she known the Council would name School D on the EHC Plan, she would have taken the alternative provision offered in July 2023.
47. In January 2024, the Council wrote to Ms X about alternative provision funding and additional tuition. The Council said it put the alternative provision in place from November 2023 after Z had expressed clear views to the Council. It said it would continue to consult for a long-term placement.
48. In April 2024, the Council issued its final complaint response:
1. The Council said it had no record of concerns about Z‘s attendance before April 2023. It said School D, as an academy, had not been required to share its attendance data with the Council and had opted out of the Council’s automatic data system. It said this would change with new statutory requirements being introduced in September 2024.
2. The Council set out events to date. It said it received new supporting medical information in March 2024, resulting in Z coming off roll at School D. The Council said it had decided Z should receive a package of education other than at school (EOTAS). It noted the appeal continued.
49. In August 2024, the Council issued an amended final EHC Plan, naming EOTAS provision. On 22 August 2024, the SEND Tribunal issued a consent order, confirming the EHC plan would be amended further. It also said the Council would arrange an occupational therapy assessment and commission added tuition.
50. In September 2024, the Council issued a further final amended EHC Plan pursuant to the SEND Tribunal’s order. It provided Ms X with a further right of appeal.

Analysis

Did the Council act with fault?

51. In its stage two complaint response, the Council said it had no record of any concerns about Z’s attendance before April 2023. However, the evidence shows the Council received multiple notifications about Z’s attendance before then:
1. The request for an EHC needs assessment in October 2022 highlighted Z’s attendance issues.
2. The Council sought statutory advice from a CBT in December 2022, as part of the needs assessment. This request for advice mentioned Z’s attendance issues.
3. Z provided personal views as part of the EHC needs assessment process in March 2023, in which she set out the struggles she faced attending school regularly.
4. The EP advice provided to the Council in March 2023 also set out Z’s non-attendance to School D.
52. The Council told me it accepted the request for an EHC needs assessment highlighted Z’s attendance issues. It said it had no record it considered its section 19 duty at this point. The Council said it considered the paperwork it received solely in the context of conducting an EHC needs assessment, with no concerns being highlighted to its inclusion service.
53. The Council was notified about Z’s attendance issues in October 2022 and so should have considered its section 19 duty at that point. I have found the Council at fault for not doing so.
54. The minutes of the attendance meeting from May 2023 showed, by that point, Z had not attended School D for more than three weeks and her overall attendance for the year was at 35%. The Council had sufficient information presented to it at this meeting to again consider whether it owed Z a section 19 duty. The Council did not do so and I have found the Council at fault for this.
55. The Council attended a further meeting with School D, Ms X and Z in July 2023. The minutes of this meeting show the Council conceding it owed a section 19 duty. The Council said it proposed alternative provision ahead of issuing Z’s EHC Plan. However, Ms X and Z had reservations about frequent changes in setting and opted to wait for the EHC Plan to be issued. Those present therefore agreed to continue with an amended reduced timetable instead. Ms X’s stage two complaint escalation confirms this was the case.
56. The Council accepted its section 19 duty at this point and offered what it assessed to be an appropriate alternative provision offer. I have not found the Council at fault for its actions at this point.
57. Shortly following this meeting, the Council issued Z’s final EHC Plan, again naming School D as the setting. It provided a right of appeal against the content of the EHC Plan, which Ms X exercised. Ms X appealed against the setting named in Z’s EHC Plan (section I), as well as the special educational needs and provision (Sections B and F).
58. For the reasons set out in paragraphs 27-30, I cannot consider a complaint about a lack of suitable alternative provision from 17 July 2023, the point an appeal right arose, to August 2024, when the SEND Tribunal issued its consent order. Z’s lack of education in this period is tied to Ms X and Z’s dissatisfaction with the setting named in the EHC Plan. Ms X exercised her right of appeal to the SEND Tribunal, which considered these matters.

Did the Council’s faults cause an injustice?

59. The above analysis sets out the Council should have considered whether it owed Z a section 19 duty in October 2022 and May 2023, but failed to do so.
60. On the balance of probabilities, I find the Council failing to consider its section 19 duty in October 2022 did not cause Z an injustice. This is because, if the Council had properly considered the question at this point, it is unlikely it would have decided it owed Z a section 19 duty.
61. Paragraph 17 sets out the test the Council should apply when deciding whether it owes a section 19 duty. The Council would have had to decide whether the education on offer at School D remained “available and accessible”. Z remained on roll at School D and, around this time, School D implemented measures to address Z’s non-attendance and provide a route to reintegrate into the setting, including a reduced timetable.
62. The Council would only likely conclude the provision was not available or accessible once reintegration measures had been tried and failed. Given these measures were only just being implemented and would be monitored, it is unlikely the Council would have accepted a section 19 duty, if it had considered the question. The Council’s response would not therefore have been different, but for the fault occurring.
63. The circumstances presented to the Council in May 2023 were different. Z’s attendance was recorded at 35%. This was after School D had implemented a reduced timetable and other adjustments to aid reintegration back into the setting.
64. The Council should have decided whether the education offer at School D remained available and accessible for Z, and whether this was all the education that Z could manage. It did not do so.
65. Even on the balance of probabilities, I cannot now say what the Council would have decided, if it had properly considered its section 19 duty. While the reduced timetable and adjustments to date had shown limited success, it is of note that all parties agreed a new amended timetable for implementation, which would be monitored. Had the Council properly turned its mind to its duty, it may have decided the proposed timetable was insufficient and it needed to intervene to arrange suitable alternative provision. However, it may have decided the proposed timetable was sufficient in the short-term and Z’s reintegration at School D remained the priority.
66. That we cannot say what the Council would have decided causes uncertainty. We cannot say whether, but for the fault occurring, the Council’s response would have been different and whether Z would have received different, or added, provision. This uncertainty is in itself an injustice to Ms X and Z. I have recommended the Council act to recognise this injustice.
67. Further, the Council properly considering its duty at this point may have highlighted that some of Z’s absences were being incorrectly recorded. I note School D later accepted this and the Council ultimately did not proceed with enforcement action over Z’s absences. However, the Council’s intervention at the correct time could have clarified matters sooner, possibly mitigating some of the events and uncertainty that occurred. Again, even on the balance of probabilities, we cannot say what would have happened. This uncertainty is an injustice to Ms X and Z.
68. Ms X told the Ombudsman the Council’s faults caused a further injustice, in that Z was entitled to free school meals, but could not access these. This meant Ms X incurred costs that she otherwise would not have. This was not a matter explicitly put to the Council, though I have nonetheless considered whether this is something the Ombudsman can investigate.
69. There are some circumstances in which the Ombudsman can consider complaints about a child’s free school meal entitlement. However, in this case, this part of Ms X’s complaint is outside the Ombudsman’s jurisdiction. School D is an academy. Academies are responsible for providing school meals, including when a child attends alternative provision while remaining on the school roll. The quality and accessibility of those meals remains a matter for the school. While Z came off roll in March 2024, this was during the period of appeal. Z’s access tp free school meals during this period was therefore connected to the suitability of School D, a matter under consideration by the SEND Tribunal. The restrictions set out in paragraphs 6 and 27 therefore apply and I cannot investigate this complaint.

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Action

70. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Ms X and Z for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Pay £400 in recognition of the avoidable distress and uncertainty experienced by Ms X and Z. I have considered the Ombudsman’s Guidance on Remedies when making this recommendation, which defines uncertainty as a form of distress, affecting both Ms X and Z.
3. Share a copy of this decision and the Ombudsman’s focus report “Out of school, out of sight?” with relevant officers, to identify lessons learned and emphasise the Council should consider its section 19 duty however it is notified of a child’s absence.
71. The Council should provide us with evidence it has complied with the above actions.

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Final decision

72. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman