Summary: Mr X complained that the Council did not deal with his daughter Y’s education properly. The Council is at fault because it did not consider providing s19 alternative education provision. Mr X and Y suffered avoidable distress. Y suffered loss of educational provision. The Council should apologise, pay Mr X and Y £200 each for avoidable distress, pay Mr X £3,000 for missed educational provision and provide guidance to staff.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to deal with education properly because it did not:

• Make suitable school or s19 alternative education provision for Y from Jan 2023 to July 2024.
• Communicate with him properly.

2. Mr X says Y has missed education provision and his family has suffered avoidable distress and uncertainty.

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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. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. 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.
6. 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)
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 Mr X’s complaint after August 2023 because he had the right of appeal to SEND Tribunal about the education placement specified in Y’s EHC Plan and this period is therefore outside of the Ombudsman’s jurisdiction.

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How I considered this complaint

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law, guidance and policies

11. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
12. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Alternative Education

13. 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.] We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
14. 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)
15. While there is no legal requirement as to when full-time education should begin for children placed in alternative provision (AP) for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school. (Statutory guidance ‘Alternative Provision’ January 2013)
16. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
17. 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)
18. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made seven recommendations including that councils:
• Consider the individual circumstances of each case and be aware that the Council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis)- and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare and take 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 education.
• 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.
19. 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.

Absences from school

20. A school may authorise a pupil’s absence if, for example, the child is too ill to attend, the school has given advance permission for the absence, or the child is being educated off-site. Schools must regularly inform the Council of any pupils who are regularly absent from school, have irregular attendance, or have missed ten school days or more without the school’s permission.
21. When a child refuses to attend school, or appears to have a phobia about attending, the Council must consider whether he or she is medically fit to attend school. Where specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child.
22. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
23. When reintegration into school is anticipated, councils should work with the school (and hospital school, PRU/home tuition services if appropriate) to plan for consistent provision during and after the period of education outside school. As far as possible, the child should be able to access the curriculum and materials that he or she would have used in school. The Council should work with schools to ensure that children can successfully remain in touch with their school while they are away. This could be through school newsletters, emails, invitations to school events or internet links to lessons from their school.
24. Councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.
25. Councils must have regard to statutory guidance - Arranging education for children who cannot attend school because of health needs (Dec 2023). This makes it clear that Councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school. We would expect the Council to provide evidence that it has objectively considered whether the education arranged by the school is suitable in situations where it has decided not to arrange alternative education.

Limits on jurisdiction

26. The courts have established that if someone has appealed, or could have 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)
27. 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.

What happened?

28. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
29. Y had an EHC Plan and was on roll at School A.
30. The Council accepts it was first informed of Y’s non-attendance at School A in January 2023.
31. An annual review of Y’s EHC Plan was completed. A change of placement was requested. School A said it believed it could meet Y’s needs if she was able to attend.
32. The Council considered the request for an alternative placement at its SEND Placement Review and Transition Commissioning Panel in early April 2023. The panel agreed a change of placement was required.
33. The Council consulted with several schools between April and August 2023 to try to find an alternative placement for Y.
34. The Council partially upheld Mr X’s complaint, agreeing that communication was poor. It also separately accepted it took too long to secure an effective education for Y and Mr X had experienced a service which fell below what he and his daughter needed.

Analysis

35. The Council said, “The local authority takes the position that its duty under s19 of the Education Act 1996 (EA 1996) to make arrangements for the provision of suitable education for children who may not for any period receive suitable education for whatever reason is discharged by [Y] having a placement at [School A] that she could have accessed.”
36. The Council says it did not feel it was appropriate to take further action via attendance procedures. It did not take any enforcement action regarding Y’s non-attendance.
37. Evidence from the Council shows School A considered it could meet Y’s needs, provided she was able to attend.
38. The Council has provided no evidence prior to May 2023 to show that it took any action to ascertain or consider further or additional information about Y’s circumstances in respect of whether that provision was accessible to her, as well as available.
39. The panel decision in May 2023 concluded that Y required a different school placement.
40. The Council continued to name School A in Y EHC Plan, in direct opposition to the panel conclusion. Mr X had a right of appeal against the named educational placement in Y’s EHC Plan from August 2023. For the reasons outlined in paragraphs 8, 27 and 28 above I cannot consider this complaint from that time onwards.
41. I note the Council’s complaint responses did not uphold Mr X’s complaint relating to delays to a change of educational placement for Y. Email evidence in February 2024 contradicts this, stating, “I want to apologise for the time which has passed in seeking to secure effective education, in agreement that it has taken far longer than I would expect and you have experienced a service which has fallen below what you and [Y] have needed.”.
42. On the balance of probabilities, the Council did not properly consider whether the place at School A was accessible to Y, and therefore did not properly consider whether it should have provided s19 alternative education, between January 2023 and August 2023, a period of two terms. Y suffered injustice because she missed educational opportunity and SEN provision. Mr X and Y suffered avoidable distress.

The Ombudsman’s Guidance on Remedies

43. Where fault has resulted in a loss of educational provision, we will usually recommend a symbolic remedy payment of between £900 to £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.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
44. I have taken into account the fact that Y missed educational provision, her special educational needs as detailed in her EHC Plan, any educational provision made, her current school attendance and comments from Mr X in determining an appropriate remedy.

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Action

45. To remedy the outstanding injustice caused by the fault I have identified, the Council should take the following action within 4 weeks of my final decision:
• Apologise to Mr X and Y for the fault found. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mr X and Y £200 each in respect of avoidable distress.
• Pay Mr X £3.000 in respect of Y’s missed educational provision, representing £1500 per term.
• Provide guidance to staff to consider any action required under the Council’s statutory duties when it becomes aware of non-attendance at schools, and to record all actions, communication and decision making as part of this consideration.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

47. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman