Summary: Ms X complained the Council failed to refer her daughter to the complex needs team and failed to make section 19 provision. This has caused Ms X distress and her daughter to miss out on education. The Council is at fault for failing to make a decision on the section 19 duty and providing a written copy of this to Ms X. This has caused uncertainty. I have recommended a remedy.

The complaint

1. Ms X complained the Council failed to make section 19 provision for her daughter (D) and failed to refer her to its complex needs team. She also complained that it compelled her daughter’s school to mark her absences as unauthorised. This has caused D to miss out on education and Ms X distress. This is their injustice.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
4. 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.
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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What I have and have not investigated

6. I have only investigated Ms X’s complaint about the Council failing to provide her daughter with section 19 provision. I have not investigated the Education, Health and Care (EHC) Assessment or Plan. This is because Ms X has a right of appeal to the Special Educational Needs (SEN) Tribunal which she has used. The Ombudsman does not have jurisdiction over matters linked to the appeal.
7. I can only investigate the period 12 months prior to the complaint to the Ombudsman. Ms X complained to the Ombudsman in August 2024. This means I can look at the period from August 2023 onwards. Any information provided before this date is for background only.
8. I can only investigate the period up until the Council issued the Final Plan. Anything that is connected to the appeal that has taken place after this date is outside the Ombudsman’s jurisdiction. Any information provided after this date is for background only.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms 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

Relevant legislation

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.

How 26(6)(a) applies when appeal rights have been engaged and relevant caselaw

12. 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)
13. 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.
14. 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.

General section 19 duty

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. 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)
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. 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])

Part-time timetables

19. The DfE 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 re-integration package. A part-time timetable must not be treated as a long-term solution. 
20. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

Attendance

21. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
22. The legislation states that before prosecuting parents, the council must consider whether they should apply to the court for an Education Supervision Order (ESO). An ESO is placed on the child and the council is appointed by the court to supervise that child’s education, either at school, or at home for a specified period.

The Council’s policies and procedures

23. The Councils website explains that section 19 of the Education Act 1996 places a duty on local authorities to make suitable arrangements for children who cannot attend school because of illness, exclusion or any other reason (‘otherwise’). It says where a child has been absent for a continuous period of 15 school days (authorised or unauthorised) the Council must assess whether it needs to step in and provide the education. It will only provide education under the ‘otherwise’ category if it has assessed it is not possible for the child to receive suitable education at their current school.
24. When the Council is alerted to a child being out of school, it will check if the school has looked at all reasonable alternatives for providing the child with suitable and full-time education which includes alternatives such as changes to the timetable and provision of an alternative curriculum.
25. The Council issued guidance for schools to assist with decision making in exceptional circumstances where attendance has become a concern. It sets out a three-tiered approach of potential intervention. Tier one is ‘Universal’ and is intervention provided by school. Tier two is ‘Targeted’ and provides support and interventions by the attendance team. The third tier is ‘Specialist’ and provides interventions made by specialist teams on behalf of the Council. The complex needs team sits between tier two and three and provides support for pupils and families where there is a lack of clarity of information or where there is a complexity of circumstances which make decisions about accessing tier three problematic. The complex needs team initiates intensive discussions and potential interventions to support the family which include person centred planning, case meeting at the family home, liaison with school and health practitioners and other offers.
26. At the end of the guidance document is a checklist for the Council which reminds it to exhaust all the opportunities in the three-tier model. This includes inviting input from the complex needs team.

What happened

27. I have summarised below the key events; this is not intended to be a detailed account.

2023

28. In March 2023, D’s attendance at school was just under 90%.
29. Between April and July, D’s attendance had dropped to just under 30%. 72 of the 84 sessions were not authorised. When D went to School, she attended sessions in the Special Educational Needs and Disabilities (SEND) Hub.
30. Between September and October, D’s attendance was just over 6%. 34 sessions of absence were unauthorised out of 36 sessions.
31. In September, the Councils attendance officer sent a warning letter to Ms X about D’s attendance. The letter said if Ds attendance did not improve, it would consider prosecuting Ms X. It also said it will advise the school not to authorise future absences unless medical evidence is provided. Around the same time, the Councils attendance officer invited Ms X to a pre-referral meeting. This was to understand the reason for D’s absence and consider available support.
32. In late September, the Council held the pre-referral meeting. The School agreed a time out card, time in the Reach facility and for D to start school at 9:30am. The records show School had tried a reduced timetable previously which had failed.
33. From the middle of October, the School offered D a part-time timetable. Over the next two-week period, it offered 18 sessions. D attended seven. Of the absences, the School authorised seven and did not authorise four.
34. The Council held regular parenting contract for attendance meetings (attendance meetings) with Ms X and D. The first attendance meeting took place in October. At this meeting, the actions included making a referral to Child and Adolescent Mental Health Services (CAMHS) and an Early Help Assessment (EHA). Ms X asked for an EHC Needs Assessment. The attendees discussed D attending School daily 8:30am to 9:30am in the Reach facility which D agreed to.
35. At the November attendance meeting, records show D’s attendance was 10%. The plan was for D to continue attending School between 8:30am and 9:30am.
36. The December attendance meeting took place at D’s home. D had started counselling sessions once a week and said she was finding it ok.
37. In the middle of December, the Council issued a warning letter to Ms X about D’s absence and invited her to a Police and Criminal Evidence Act (PACE) interview.

2024

38. At the beginning of January 2024, the Council declined to do an EHC Needs Assessment. Ms X appealed. At a later date, it was agreed the Council would do an EHC Needs Assessment.
39. In the middle of January 2024, the Council made a referral to its section 19 team. The application form said the School had already put reduced hours in place for D to attend between 8:30am and 9:30am daily in the SEND room which D is unable to access. It explained referrals for D had been made to CAMHS several times and declined, she had recently started counselling sessions. She was also open to EHA. The application form said the aim was to support D back into school within six weeks. It said Ds case was open to legal action which would take place if D did not engage with section 19 reintegration. In response to my enquiries, the Council said D did not meet the formal criteria for s.19 but as an exceptional offer, it put section 19 provision in place to try and engage her back into education.
40. The section 19 provision was tutoring online. D did not attend the first week. In week two she attended one out of 12 hours and in week three she attended two out of 12 hours. D did not attend in week four.
41. Later in January, the Council held a Way Forward attendance meeting. D was accessing counselling. The attendees discussed D starting to access section 19 support from the following week to support reintegration to School. Officers recommended Ms X supports D to attend and engage with reintegration.
42. At the beginning of February, Ms X met with the section 19 team. She said she could not force D to engage with the online alternative provision. The Council wrote to Ms X in the middle of February and said it would withdraw the alternative provision due to lack of engagement. It expected D to return to school at the end of the month.
43. A reintegration meeting took place in late February. The records show the plan was for staff to meet D at reception and she would attend daily from 2pm to 3pm.
44. As part of the EHC Needs Assessment, the Council received advice from the community paediatric team, CAMHS and the Educational Psychologist (EP) in March 2024. The EP report recommended D attends School one hour a day to complete activities of her own choice to support transition and phased return.
45. The Council held an attendance meeting in March. The records show Ds attendance was 8.5%. D had attended four out of 11 days phased return as agreed at the reintegration meeting in February. D had attended the pastoral room with other children and completed craft activities recommended by the EP.
46. In the middle of March, the Council issued a pre-court letter and invited Ms X to a PACE interview which took place towards the end of April.
47. The Council held a reintegration meeting in the middle of April, the records show D attended one session since the last meeting. D had completed the counselling sessions. The EHC team said D should be attending school on the small steps programme. The plan was for D to continue to attend from 2pm to 3pm daily and for staff to welcome her at reception. A key adult would support her throughout the sessions in the pastoral room where she can do her own chosen activity.
48. In late April, the Council held a pre-court meeting. The part time timetable, as agreed by the EP and EHC team was to continue. The records show D would engage for a few days and then does not engage.
49. An email in late April shows the school attendance officer asked the school to mark Ds absence as unauthorised.
50. In early May, Ms X received the draft EHC Plan. The Council sent consultation letters to schools.
51. In late May, the Council held a pre-court review meeting. D attended one session since the meeting in May and her attendance was 10%. School had completed a home visit and said they were happy to continue this to support D’s reintegration
52. The Council issued the final EHC Plan in the middle of June which named School B from the start of the next academic year. It set up a flexible small steps programme to integrate D into School B, moving at a pace she was comfortable with, a clear and consistent routine and key adult to provide support.
53. At the beginning of July, the Council held a pre court review meeting. This was the third of its kind which the Council said is unusual. D had not attended school since the previous meeting. The final EHC Plan said D would attend School an hour a day. The advice from the meeting was for D to engage with the Plan until the end of the academic year.
54. At the end of August, Ms X appealed the EHC Plan to the SEN Tribunal. The date for the SEN Tribunal hearing is July 2025.

The complaint

55. Ms X complained to the Council in the middle of June 2024. The Council issued a stage one response in early July and a stage two response in late July.
56. Ms X complained the Council did not provide alternative provision. The complaint response said as the head teacher did not authorise D’s absence, the Council did not need to provide section 19 education.
57. It explained the attendance officer took advice from Educational Psychologist who said D could attend school one hour a day and complete tasks she felt comfortable with. D agreed to this but did not engage. The Council relied on this in the absence of any medical evidence. It did not consider it was appropriate to increase her provision until she was engaging with the one-hour provision in place. The Council said it reviewed this regularly at meetings.
58. Ms X complained the Council did not refer D to the complex needs team as an exceptional case. The Council responded and said because there were already several professionals already involved with D, it would have been an inappropriate use of resources and confusing for D.
59. Ms X complained the Council had considered legal action prematurely. In its response, it explained it normally takes legal action within three months and D’s case it had been continuing for over a year. It explained it would not take legal action until it had considered different ways it could support D.
60. Ms X complained to the Ombudsman in late August. She said the Council failed to refer D to the complex needs team, had an inflexible policy on needing medical evidence before providing alternative education which it failed to provide and forced the School to mark D’s attendance as unauthorised.

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Analysis

Compliance with the Councils policy and the provision provided

61. The Councils guidance for schools’ policy requires the Council to ensure it has exhausted the three-tier process set out above. Under tier one of the guidance, the Council should check if the school has made reasonable alternatives for education such as changes to the timetable and provision of alternative curriculum. The School offered a reduced timetable for D and access to the SEND Hub. It also provided her with a time out card and time in the Reach provision. The School considered D’s individual circumstances and made changes to try and accommodate her needs. The Council checked this and was satisfied with the Schools actions. It is not at fault.
62. Tier two of the Councils guidance for schools’ policy provides support and guidance from the attendance team. The Councils attendance officer became involved from September 2023 and provided advice and guidance. They held regular attendance meetings, referred and signposted Ms X and D to other services and professionals. The Council complied with this stage of its guidance and can be seen to be putting provisions in place. It is not at fault.
63. The guidance says the complex needs team should be involved if tier one and two is not effective. Ms X complained the Council failed to refer D to the complex case team and did not coordinate with multi-agencies. I asked the Council if it had completed the check list set out in the guidance and gone through each stage. It said as it had involved professionals and support from multi-agencies (it listed 15), it felt it was unnecessary to assign an officer from the complex case team as well. It said this would have duplicated the work and introduced a further professional to D when she was already working with so many.
64. While the actions of the Council did not specifically follow its own guidance, the result is similar as it had already consulted with professionals who would have been involved had the Council referred D to the complex needs team. The Council provided a lot of support which would have been the same had it followed the three-tier process. While the Council is at fault for not following its guidance, on the balance of probabilities, the result is likely to have been the same. D has not suffered an injustice.

Reliance on medical evidence and unauthorised absence

65. Ms X complains the Council compelled the School to record D’s absences as unauthorised. In response to my enquires, the Council said it has no power to direct schools to record an absence as authorised or unauthorised. Instead, it will direct it to the relevant guidance. From the records I have seen, the Council did advise the School to mark the absences as unauthorised if Ms X did not submit medical evidence. In the Councils complaint response it also says alternative provision is not available because D’s absences are unauthorised.
66. Whether D’s absences were authorised or unauthorised should not have made a difference to the case. This is because the legislation and the Councils policy does not distinguish between authorised and unauthorised absences when it assesses a child for section 19 provision. The test is whether suitable education is available which is “reasonably practicable” for the child to access and whether educational provision the council has offered is “available and accessible”. This is a decision for the Council to make not the school. The Councils complaint has not referred to the correct test for section 19 provision which is misleading. This is fault which has caused confusion and uncertainty.

The section 19 duty

67. When a child is ‘otherwise’ unable to attend school, the council needs to make available an efficient educational facility that is suitable for the child’s age, ability and aptitude and their special educational needs and is reasonably practicable for them. Good practice is for the council to make contemporaneous notes of its decision and to clearly communicate the decision it does not owe a section 19 duty, showing it has considered all the relevant evidence.
68. In my enquiries, I asked the Council to provide a record of its decision which shows it considered if the section 19 duty applied. It referred to the section 19 referral application in January 2024 and said D did not meet the formal criteria. While the Council said it considered and offered section 19 provision in January 2024, this was roughly six months after the period Ds attendance started to decline. This is delay, this is fault.
69. The Council relied on the section 19 application form as evidence it considered the section 19 duty, but there is nothing within this form to show the Council considered the duty or assessed the evidence. There is no record of the Council’s decision making process within this document in January 2024, or at any other point. The referral form does not show how the Council came to the decision that section 19 was not engaged or the reasons why. The Council failed to record its decision or provide any notes about how it made the decision. This is fault.
70. The Council should have provided Ms X with a copy its decision in writing that section 19 was not engaged and set out its reasons. I have not seen any evidence the Council wrote to Ms X regarding the section 19 duty, its failure to do so is fault. This left Ms X and D unsure whether this should be offered and how successful it might have been. This is uncertainty, this is injustice.
71. Even though the Council says D did not meet the criteria for section 19 provision, it offered this to her to try and reintegrate her into school. This limits the injustice.

Legal action

72. Ms X complained the Council has been premature taking legal action. The Council said it usually takes legal action within three months. The first warning letter was sent in September 2023 and meetings have taken place but the Council has not brought a prosecution. In response to my enquiries, the Council said it is unprecedented to have so many meetings, and it has tried to avoid initiating legal proceedings. It is now over 18 months and the Council has not prosecuted Ms X. I do not consider the Councils actions to be premature, it is not at fault.

Summary of fault causing injustice

73. The Council is at fault for failing to record a decision about its section 19 duty and providing a copy of its decision in writing to Ms X.
74. The Council advised the School to mark D’s absences as unauthorised and referred to this in its complaint response as a reason why section 19 provision was not provided. The Council misstated the test for section 19 provision which caused Ms X uncertainty.

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Action

75. Within four weeks of the final decision, the Council should:
• Apologise to Ms X and pay her £500 for the uncertainty caused by failing to explain in writing whether it owed D a section 19 duty and give reasons.
• Remind staff about the importance of making and recording timely decisions about if the section 19 duty is engaged and communicating this to parents.
• Remind staff about the legislation and guidance about the recording of absences and how this impacts on the section 19 duty.
76. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman