Summary: Mx X complains the Council did not deal properly with her daughter Y’s education because it did not provide alternative education and she says Y lost education provision. The Council did not properly consider whether it should provide s19 alternative education for Y. Y suffered loss of educational provision and opportunity for 3 months. The Council should apologise and Pay Mx X £1,800 for loss of education provision.

The complaint

1. The complainant, whom I shall refer to as Mx X, complains the Council did not deal with her daughter Y’s education properly because:
• Its decision to transition Y into mainstream education In October 2023 was flawed; and
• It did not provide s19 alternate education between October 2023 and March 2024.
2. Mx X says Y suffered avoidable distress and loss of educational opportunity.

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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. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, 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)
8. 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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How I considered this complaint

9. I considered evidence provided by Mx X and the Council as well as relevant law, policy and guidance.
10. Mx 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. 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.
12. 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)
13. 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)
14. 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.
15. Councils must “make arrangements for the provision of suitable education at 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 such arrangements are made for them.” (Education Act 1996, section 19(1))
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 statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
18. 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))
19. The education provided by the council must be full-time unless the council determines that 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)
20. 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’)
21. 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])
22. 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
23. 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.

24. 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 (EHC Plans)

25. 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. 
26. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.

What happened?

27. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
28. In February 2023 Y refused to go to school at all.
29. In March 2023 Mx X asked the Council to complete an Education Health and Care Needs Assessment (ECHNA) for Y. This request was refused by Council. Mx X appealed to SEND Tribunal in Sep 2023 about this decision.
30. Y was provided with a placement at Springboard, in May 2023. Mx X clearly stated she didn’t believe re-integration to mainstream school following the placement would work for Y.
31. It was determined at a Team Around the Family (TAF) meeting in September 23 that Y would begin re-integation to her mainstream school.
32. In early October 2023, Mx X complained to the Council and requested it make s19 provision for Y
33. In late November the Council replied to Mx X’s complaint stating it was unclear whether Y was able to attend school and detailed the current arrangements for supporting Y. It said Y’s school was considering making a referral for Y to a pupil referral unit. Mx X asked for her complaint to be reviewed at stage 2 of the Council’s complaints process because the Council had not fully addressed her complaint.
34. In November 2023 Mx X made a complaint to Y’s school about her transition plan not working.
35. SEND Tribunal issued a consent order in January 2024 which stated the Council would complete an EHCNA.
36. Tuition was arranged by Y’s school and started in March 2024.
37. The Council provided its final complaint response. It apologised for the late response. The Council’s final complaint response said, “Your concerns have been reviewed and, in this instance, I uphold your complaint.”
38. The Council issued Y’s final EHCP in April 2024.

Analysis

Mainstream re-integration.

39. Team Around the Family (TAF) meetings were held in June and September 2023.
40. Y expressed a view that she wanted to return to her mainstream school.
41. It was determined that there would be a re-integration plan to Y’s mainstream school. The Council was required to make a decision about how to proceed with Y’s education. It did so. Mx X disagreed with the decision, but this is not fault by the Council, despite the re-integration plan not succeeding.

S19 alternative provision between October 2023 and March 2024.

42. The Council’s stage 1 complaint response in November 2023 said:
• “It is not clear whether Y is unable to attend school. The current key worker will continue to work with you and Y, alongside the Youth Engagement Worker and the School to support and encourage Y’s school attendance.
• Y is in a mainstream school which is currently deemed a suitable place address her educational needs.
• If she is not attending, the plan is that Y accesses the online Maths Watch so that she is able to complete her schoolwork at home. Although this is not the best option, maintaining Y’s education is important.
• Y’s School are considering referring Lara to a Pupil Referral Unit.
• Y is currently in a suitable full time school place at her school. Efforts are being made to consider alternative provisions that she may be more comfortable to attend.”
43. The Council’s stage 2 complaint response in March 24 said:
• “school stated that they will be exploring virtual learning for Y. Y has recently been diagnosed with Attention Deficit Hyperactive Disorder (ADHD), Autism Spectrum Disorder (ASD) and Pathological Demand Avoidance (PDA). The Tribunal have agreed to an Education, Health and Care Plan (EHCP) to be completed for Y, and you and the school have been linked with a named coordinator from the SEND Team. The school has provided a learning tutor for Y for two hours per day to support her learning.
• School has explained that an Educational Psychologist’s report and diagnoses for Y changed the approach they would take with Y, and that they would support Y with online learning. The learning in question will be a virtual learning environment which Y will be able to access from home. The learning follows the curriculum, and students are not compelled to have their cameras on when interacting with teachers.
• The online learning will cover the core subjects and may be reviewed in time to incorporate other subjects.
• Y was offered a referral to (a pupil referral unit), but that for various reasons, this was not considered appropriate for her at this time. The school’s decision to engage online learning with core subjects for Y, together with an application for an EHCP plan which is currently being reviewed. The EHCP plan should promote and support next steps for Y going forwards.”
44. The Council response to enqs says
• “When it agreed she could not return to school it intended for Y to attend a Pupil Referral Unit. Mx X was of the view this would not be successful, so the Council considered alternatives, and online learning was then agreed.”
• “Due to Y’s sporadic school attendance, the SENDCO considered a further period of respite for Y at a Pupil Referral Unit on 1st December 2023. This was not followed through.”
45. Mx X complained to Y’s school about transition and re-integration problems.
46. The Council was aware Y missing education due to the failed re-integration from 16 Oct 2023.
47. In its response to my enquiries, the Council provided no evidence to show it considered whether s19 alternative education provision was appropriate after the TAF meeting held in September 2023 and provided no evidence in relation to the Ombudsman’s guidance outlined in paragraphs 22 and 23 above.
48. The Council’s stage 1 complaint response indicates that in late November the Council considered whether provision of s19 alternative education was appropriate. It concluded that it wasn’t, as it stated, “The Service is currently working with you and the school to improve Lara’s attendance and as cited above, there is a plan in place to ensure that her learning continues whe she does not attend school.”
49. It is clear there was a change in approach between the Council’s stage 1 and stage 2 complaint responses. The Council’s stage 2 complaint response in March 2024 refers only to actions taken or considered by Y’s school and also made reference to an EHC Plan being prepared for Y. The EHC Plan was irrelevant to the provision of s19 alternative education.
50. Despite my requesting it to do so, the Council has not provided any evidence to show the information in paragraph 45 is correct. I note the Council’s assertion that it ‘considered alternatives’ conflicts with its failure to provide any evidence about consideration of s19 provision after the TAF meeting in September 2023.
51. The Council should have considered whether s19 alternative education was necessary between its stage 1 complaint response and Y’s school providing tutoring in March 2024.
52. On the balance of probabilities, paragraphs 47 to 51 show the Council made no consideration of whether s19 alternative education provision was necessary for Y after November 2023.
53. On the balance of probabilities, the inclusion of information about Y’s EHC Plan in its stage 2 complaint response indicates the Council had partially conflated the two separate issues of s19 alternative provision and Y’s EHC Plan, which appears to have contributed to compromising the Council’s ability to make a decision about whether Y required s19 alternative education provision.
54. The Council should have reviewed its decision about whether Y required s19 alternative education by the end of November 2023, when it became clear the re-integration plan was failing and Y was still not attending school. It did not. The Council should have ensured provision was available from December 2023. The delay to the stage 2 complaint response, which the Council accepts, meant the Council did not consider taking action to fulfil its statutory responsibilities to ensure education provision for Y, until March 2024, when tutoring had already been put in place by Y’s school. This is fault by the Council. Y missed educational provision between December 2023 and March 2024, a period equivalent to one term.

Complaint handling

55. The Council accepted that it’s stage 2 complaint response was late. It apologised to Mx X for this and offered £100 remedy payment in respect of this. I consider this is an appropriate remedy, for this specific limited point of fault.

The Ombudsman’s Guidance on Remedies

56. 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.
57. I have taken into account the fact that Y missed educational provision, her currently identified special educational needs as detailed in her EHC Plan and an impact statement from Mx X in determining an appropriate remedy.

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Action

58. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mx 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 Mx X £1,800 in respect of Y’s missed educational provision.
• Provide guidance to staff to consider any action required under the Council’s statutory duties when it becomes aware of non-attendance at schools, with reference to the Ombudsmans Focus Report ‘Out of school, out of sight?’ published in July 2022 and to record all actions, communication and decision making as part of this consideration.
59. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman