Summary: Mrs X complained the Council failed to arrange alternative educational provision for her child (Y) after they became unwell and unable to attend school in the 2023/2024 school year. The Council was at fault for failing to consider alternative educational provision when Mrs X raised attendance problems in late April 2024. However, this did not cause an injustice as Y was not absent for 15 days or more which is a requirement for the Council to arrange alternative provision. Y also went on study leave five weeks after Mrs X raised attendance problems and any alternative education provision would not have been arranged before this period.

The complaint

1. Mrs X complained the Council failed to arrange alternative educational provision for her child (Y) after they became unwell and unable to attend school in the 2023/2024 school year. Mrs X says this means Y missed out on suitable educational provision which has caused them uncertainty and distress and impacted Y’s academic development and well-being.

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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. 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)
4. 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

5. Mrs X also complained the Council failed to identify and assess Y’s needs concluding that an Education Health and Care (EHC) needs assessment was not necessary. I cannot investigate this part of the complaint as Mrs X used her right of appeal to the SEND tribunal about these matters. 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.

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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs 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 law and guidance

8. 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.
9. 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)
10. There is no absolute legal deadline by which local authorities must start to arrange education for children with additional health needs. However, as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the local authority should arrange suitable alternative provision. The 15 days may be consecutive or over the course of a school year.
11. 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
12. 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.

What happened

13. Mrs X has a child Y who, in September 2023, was attending school in year 11. Due to Y’s health conditions, the School created an individual healthcare plan the same month. The plan says the provision required to support the medical need is for Mrs X to provide painkillers for Y to take at school.
14. The School reviewed the plan in March 2024. The plan says Y is to leave lessons five minutes early to get to the next class and Y will not participate in P.E lessons. Attendance is not raised as an issue.
15. In April 2024, Mrs X contacted the Council to request it carry out an Education, Health and Care (EHC) needs assessment. As part of Mrs X’s application, she provided medical letters which referenced school attendance. In the medical letter dated April 2024, the doctor writes that Mrs X says Y is significant unwell and only able to attend school until mid-day.
16. Y’s last full-time month of school was May 2024 and then they went on study leave at the start of June 2024.
17. In July 2024, a legal representative (Ms Z) raised a complaint on Mrs X’s behalf. The complaint said Y’s attendance was 30% for year 11. Despite the Council being aware of Y’s poor attendance, it failed to provide alternative provision under S19 of the Education Act 1996. As such, Ms Z requested the Council remedy the lack of education and frustration caused to Mrs X and Y.
18. The Council issued a stage one response the same month advising it cannot see evidence the school has raised issues with Y’s attendance. The Council said the records indicate Y’s attendance for year 11 was 77.51%. It should be noted the records did not provide a breakdown of what the school had coded the absences as.
19. Ms Z then made a stage two complaint. Ms Z said even if Y’s attendance was 77.51% this equates to far more than 15 days of absence. Therefore, the Council should have secured alternative provision. She also said Y has rarely managed a full day of attendance and Mrs X has regularly had to collect Y at lunchtime. Ms Z referred the Council to the medical letter dated April 2024.
20. In August 2024, the Council issued a stage two complaint response. It did not uphold the complaint as it said Y had occasional and irregular short-term absences due to illness. It said the EHC needs assessment request states Y’s health was causing difficulties with some subjects and movement between lessons not that this was preventing her from accessing lessons. On the occasions where Mrs X was collecting Y at lunchtime, the Council said the School was correctly recording this as absent due to illness.
21. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.

Council’s response to our enquiries

22. The Council says the school did not submit any irregular attendance or part-time timetable notifications to alert the Council to any concerns regarding Y’s attendance. School attendance was only referenced as part of the EHC needs assessment application which Mrs X submitted late April 2024.
23. The Council has provided a breakdown Y’s attendance records. Y had 14.5 days of absence due to illness. Any other absences have been recorded under different codes including but not limited to exclusion, religious observance and medical/dental appointments.
24. The Council has not provided any evidence of how it considered its duties to provide alternative provision when it was reported Y was struggling to attend school in April 2024.

My findings

25. The Council first became aware of attendance concerns in late April 2024. Mrs X wrote in her request for an EHC needs assessment that Y at times loses mobility and is unable to attend school or complete daily tasks. Mrs X also provided a medical letter dated April 2024 where it is recorded that Y is significantly unwell and only managing to go school in the mornings. At the point Mrs X submitted this information, the records show Y had already had 13 days of absence due to illness. At the point the Council had responded to Mrs X’s assessment request in May 2024 the records show Y had 14.5 days of absence due to illness. The statutory guidance says where it is clear a child will be away from school for 15 days or more (either consecutively or cumulatively), the Council should arrange suitable alternative provision. Given that Y almost reached 15 days of absence, we would expect there to be some evidence of the Council’s consideration of this so that any alternative provision could be put in place as soon as practicably possible. There is no evidence the Council considered this at the time which was fault. However, we do not consider this to have caused Mrs X or Y any injustice as the records show they did not reach 15 days of absence due to illness. Y also went on planned study leave five weeks after Mrs X made the Council aware of Y’s absences. Given that the Council was not aware of attendance concerns until late April 2024, it is unlikely the Council would have reviewed this, considered its Section 19 responsibility and implemented any alternative education provision prior to Y’s planned study leave.
26. We have found similar fault with the Council on a separate case which resulted in a service improvement. In this case, the Council agreed to:
• provide us with an explanation and evidence of how it has improved internal processes for considering its Section 19 responsibility and making the necessary arrangements to put alternative provision in place in a timely manner.
27. We will continue to monitor the Council’s progress on the above actions through our casework. Therefore, no further service improvements are required.

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Decision

28. I find fault not causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman