Summary: Mrs X complained that the Council failed to provide suitable alternative education when her daughter was unable to attend school for medical reasons. We find that the Council failed to reconsider its original decision on the suitability of the alternative education, which it had provided, in the light of new facts. The Council has now agreed to review its decision and Mrs X will be able to provide relevant information. We have therefore completed our investigation and we are closing the complaint.

The complaint

1. A summary of the complaint is that the Council failed to provide suitable alternative education to the complainant’s (Mrs X’s) daughter, Y, since it was agreed that she was unable to attend her allocated school, School B. As a result, Y has missed out on appropriate education and her mental health has deteriorated. Mrs X has had to give up work to look after her. This has caused avoidable financial hardship and distress.

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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’.
3. 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).
4. 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).
5. 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

6. I am investigating events from July 2023, which is one year since Mrs X complained to us. I have referred to events before July 2023 for context, but I have not investigated them.
7. The Council refused to carry out a special educational needs (SEN) assessment in August 2024. The complainant has now appealed to the Special Educational Needs and Disability (SEND) Tribunal. As this appeal is separate to the complaint to us and is about whether there should be a needs assessment, we do not consider the appeal rights affects our jurisdiction.

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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council, as well as relevant law, policy and guidance set out below.
9. I issued a draft decision statement to Mrs X and to the Council. I have taken into account their further comments before reaching a final decision.

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What I found

Legal and administrative

Children out of school because of medical needs

10. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
11. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
12. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
13. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
14. The guidance also says that “there will be a range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the local authority [council], for example where the child can still attend school with some support”.

The Ombudsman’s Focus Report: Out of School, out of mind?

15. In July 2022, the Ombudsman issued a Focus Report about children out of school. It was updated in August 2023.
16. We made a number of recommendations. The most relevant to Mrs X’s complaint is that, where a council arranges for a school or other body to carry out its functions, the council retains responsibility. Therefore, it must retain oversight and control.
17. Also, all cases of parttime education should be kept under review with a view to increasing it if a child’s capacity to learn increases.

The Council’s alternative provision

18. The Council says that there are four alternative education providers approved by the Council, which are close to the complainant’s home. One of them is Provider C, where Y was initially placed by the Council. The other is Provider D where Y is currently placed by her parents.
19. To be placed on the Council’s Approved Providers’ list, now called Alternative Education Directory, the provider has to meet the Council’s compliance, quality and financial standards. Applications for approval are made to the Council’s commissioning team.
20. The Council prioritises its established providers to ensure efficient use of public funds.

Key facts

21. In 2022, Y was on the roll of School B, a secondary comprehensive school which caters for pupils aged eleven to sixteen. In November 2022, the Council says that the parents asked for Y to be deregistered. This meant that the planned referral to the Council’s learning hub (Provider C) could not proceed. The parents home educated Y.
22. The parents asked for Y to be placed back on the school roll at School B in October 2023, and she was. However, her attendance was poor, and School B made a referral to Provider C.
23. A Child and Adolescent Mental Health Service’s (CAMHS’) report indicated that Y suffered from severe anxiety and school related distress. But Y had said she wanted to be at school. The Council considered that Provider C was suitable because it provided a highly flexible and personalised approach, with small group settings and a gradual reintegration to school.
24. The Council says that it considered the CAMHS’ report and that of a clinical psychologist, as well as the referral from School B, when deciding Provider C was suitable.
25. Mrs X says that School B told her that Provider C was not suitable for Y. But the Council says that it was not told this.
26. Provider C provides temporary educational support for pupils aged five to sixteen. It is for children unable to attend school fulltime because of illness (physical or mental health). The criteria are that the child has been absent for fifteen days because of illness and the school has an Additional Needs Plan for the pupil. Provider C will consider a range of medical evidence.
27. Mrs X says that it was accepted in November 2023 that Y would be referred to Provider C. In December 2023, Mrs X asked for Y to be placed at another alternative education setting, Provider D. Provider D is for children aged nine to fourteen with high levels of anxiety, sensory, social and emotional needs. The parents felt that this would be more suitable for Y.
28. Mrs X says that Provider C is for children with medical needs. But, if the non-attendance is due to special educational needs (SEN) (eg neurodevelopmental), Provider C says that other support may be appropriate.
29. The Council says that it considered the parents’ request for Provider D. But it decided that, because Provider D had not applied to be on its then called Approved Providers list, and Provider C was capable of meeting Y’s needs and was using various strategies to support and accommodate her, Provider C was suitable.
30. Between January and April 2024, Y struggled to engage with Provider C, despite weekly home visits and a gradual introduction of learning activities. Mrs X says that they tried their best to encourage Y to attend but it soon became clear that this was causing more anxiety, and her mental health was deteriorating.
31. In February 2024, Y had the autism assessment and in April it was formally confirmed that she has autism. Mrs X asked again for Y to be placed at Provider D because of this formal diagnosis.
32. There was a meeting (Individual Education Plan) between Mr X and Provider C to discuss this. The notes of this meeting record that Mr and Mrs X had decided Provider D was the better option for Y because she had been unable to engage with the education at Provider C. Mr X said that they did not want Y to be deregistered from School B. It was suggested that the family discussed this with the attendance officer and that it was for School B to determine the arrangements.
33. The recommended actions from this meeting were that School B would arrange a meeting with the attendance team and Provider C would seek advice about the funding arrangement and service involvement.
34. The next day, under the form ‘’Assess, Plan, Do, Review Sheet’ it is recorded that Provider D is not on the Council’s Approved Provider list. Under the ‘Do’ section it stated “we are unable to fund [Provider D]…[Y] to preserve with Provider C. Meeting to be set up with SEN team”.
35. The Council says it declined to fund Provider D on the basis that Provider C remained the designated provider, it was flexible and was making adjustments to cater for Y’s autism. The Council says that it is for a council to determine what constitutes suitable interim education. A change of placement would only happen if Provider C had been fully trialled and shown to be unsuitable.
36. Y remained on the roll of School B, as requested by the parents. The Council says that this is to retain flexibility because reintegration might be possible, and School B retains its safeguarding responsibility.
37. The parents placed Y at Provider D because it was the only placement which they thought suitable for Y. Y has been there since April 2024, and Mrs X says that Y is benefitting from their approach. Her attendance has improved and, although she could attend more sessions, the parents cannot afford this.
38. In April, Provider C formally ended the placement given that Y would not be attending, and the parents had placed her with Provider D. The Council says that it is possible for Y to return to Provider C if the parents request this.
39. In May 2024, Mrs X complained to the Council about its refusal to fund the placement at Provider D. The Council replied, stating that Provider C was required to offer education that met a child’s medical needs, and it prepares them for a return to school. The Council stated that Provider C was the designated provision for children too ill to attend school and any alternative pathway would need to be pursued through the school or organised privately.
40. Mrs X considers that the Council did not even consider whether Provider D was a suitable alternative for Y.
41. In July 2024, Mrs X requested an Education, Health and Care Needs Assessment (EDCNA). In early August the Council refused this. Mrs X is pursuing an appeal to the SEND Tribunal.
42. Mrs X says Y has been out of school for nearly two years. She is complaining about the suitability of the alternative education provided to Y at Provider C and the Council’s refusal to fund what the parents consider is more suitable for Y. Mrs X says that the Council has a one size fits all approach. Provider C is not a specialist provision and does not cater specifically for pupils with autism.
43. Mrs X also considers that the placement at Provider C has been ‘fully trialled’ and there is clear evidence that it is not suitable. She considers the Council is just not listening to their concerns and ignoring the facts of this case.
44. On Provider D’s website, it states that it was placed on the Council’s then Approved Provider list, I believe in November 2024. However, Mrs X says that Provider D was approved by the Council in April 2024.

45. In response, the Council has explained that the decision to decline the funding at Provider D was not only about the fact it had not been approved. The presence on its list does not mean automatically that the Council would agree funding. And further commissioning checks would be required.

Findings

46. It is accepted that the Council should provide Y with alternative education under s19. This is a complaint about the suitability of the alternative education offered by the Council.
47. The parents wish the Council to fund Provider D because this is the only educational establishment Y has attended for two years, and they consider she is benefitting from this.
48. We cannot question the merits of councils’ decisions, taken properly, however much a complainant might disagree with it. Whatever the parents’ reasons for wanting the Council to fund Y’s placement at Provider D, I initially considered it was not fault for the Council to decline funding for an educational establishment which had not formally been recognised by the Council as an approved provider.
49. However, Provider D is now formally on the Council’s Alternative Provider Directory, and this may have happened much sooner than I initially thought. So, one of the Council’s initial (but not only) reason for refusing the parents’ request, is no longer there.
50. In addition, Y has tried to attend Provider C with the parents’ support and there is evidence that she was trying to attend but could not progress because of her anxiety. Y has also had a formal diagnosis of autism since the Council’s original decision that Provider C is appropriate.
51. In view of the above, and that the Council should keep alternative education under regular review, I consider that the Council should have revisited its original decision once Provider D was approved and, at the same time, considered the updated medical information and evidence of Y’s failure, and why, she is unable to attend Provider C. I consider it is fault for the Council not to have carried out an earlier review.
52. The injustice is that the Council might have reached a different decision once Provider D was placed on its Alternative Provider Directory.

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Action

53. Within one month of the final decision, the Council will:
1. carry out a review on whether Provider D is the more suitable alternative provider in light of the new evidence available. The Council should keep a note of this reconsideration, what evidence was considered and who made the decision. Mrs X will be invited to provide further evidence about why Provider D is the suitable alternative provider and why Provider C is unsuitable;
2. if, as a result of this review, the Council agrees the placement at Provider D, the Council should consider whether it should reimburse Mrs X’s fees to when the Council formally placed Provider D on its Alternative Provider Directory or for any other reason it thinks it could have made this decision sooner. If the Council declines to do this, it should explain its reasoning; and
3. if Mrs X disagrees with the review decision, this should be regarded as a fresh complaint.
54. The Council should provide us with evidence it has complied with the above actions.

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Decision

55. I find fault in that the Council did not review its original alternative education decision in the light of new evidence available. This was a lost opportunity for the Council to consider properly what constitutes suitable alternative education for a pupil with Y’s needs.
56. The Council has now agreed to review its decision. I consider this is a suitable remedy for the injustice caused. Therefore, I have completed my investigation, and I am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman