Summary: There was no fault in the Council’s handling of a situation where a child was missing education. It took appropriate steps to make arrangements for alternative provision. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Miss B.
2. Miss B complains the Council did not make arrangements for alternative provision for her son, D, after the provision he was attending shut down in November 2023. This meant D was entirely without education from that point until the end of the academic year.

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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. 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. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

Background

Alternative provision

7. 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.
8. 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)
9. 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)

Miss B’s complaint

10. The following will provide a summary of key events relevant to this complaint. It is not intended to be a detailed chronology of everything that happened.
11. D is of secondary school age, but according to Miss B has missed most of his secondary education, because he has struggled to attend school due to his anxiety.
12. In September 2023, D was placed on roll at an alternative provision school and began to attend consistently. Shortly after this, OFSTED inspected the school and found it be inadequate. The school subsequently agreed to close down because of OFSTED’s report.
13. On 4 December Miss B emailed the Council, asking for an emergency annual review of D’s education, health and care (EHC) plan. This was because no new provision had been arranged for D since the school’s closure in November. In response, the Council arranged a review meeting for 18 December.
14. During the meeting, the Council discussed other alternative providers which could offer a place to D. Miss B declined the Council’s suggestion, and asked the Council to provide a personal budget for a new provision set up by the management of the closed school, which she had been told was due to open in January 2024. The Council agreed to present this request to its EHC panel.
15. On 21 December the Council emailed Miss B to decline her request for a personal budget, because of the involvement of OFSTED and the Government in the closed school. The Council suggested a provider which used online learning, but Miss B expressed scepticism about this because she did not believe D would engage with this. She asked the Council to provide more information about the provider.
16. A second meeting took place on 19 January. Miss B asked the Council why it would not agree the personal budget for the new provision she had asked about. The Council offered to present Miss B’s request to the EHC panel again, but warned it had already said it would not agree to this. The Council again suggested other alternative providers which might be suitable for D. Miss B and the Council agreed to meet again on 22 February.
17. On 19 February, the Council emailed a list of alternative providers, for both education and mentoring, to Miss B.
18. At the meeting on 22 February, the Council asked Miss B if she had considered any of the providers on the list. Miss B again asked why the Council would not agree to the new provision, and explained she preferred this because it was the only one D had successfully engaged with. The Council suggested a particular music-based provider, and Miss B agreed the provider could contact D to discuss its programme. Miss B also agreed she would complete the personal budget request form with a list of other providers she would like to consider, to allow the Council to put a costed proposal to the EHC panel. They agreed to meet again on 15 March.
19. On 15 March, the Council explained it had contacted the music-based provider, although Miss B said she had not heard from it yet. The Council also said it had contacted the online provider, but Miss B again explained she did not believe D would engage with this. Miss B said she had not yet completed the personal budget request form, and asked again to include the new provider as part of D’s educational package.
20. The Council exchanged emails with Miss B at the end of April. The Council explained it would present a request for home tuition and the music-based provider to the next EHC panel on 8 May. Miss B then said she was no longer interested in the music-based provider, and said she had been looking at another provider. The Council explained it had not approved this provider, and told Miss B she would need to look at other options if she did not want the music-based one.
21. On 8 May the EHC panel declined to grant ‘education other than at school’ (EOTAS) status to D, as it felt he could be educated at school. The panel decided the Council should commission the music-based provider, despite Miss B’s wishes.
22. Miss B submitted a formal stage 1 complaint on 12 June. She complained about the Council’s refusal to fund her preferred provider, and its decision to decline her request for an EOTAS package for D, and accused the Council of not helping her with D’s situation.
23. On 11 July the Council contacted Miss B. During this conversation Miss B agreed the Council should commission a home tutor for D. Then, at a new emergency review meeting on 1 August, the Council confirmed it had referred D to a tuition provider, which would likely contact Miss B soon. The Council also noted Miss B’s preferred provider had approached it, to discuss receiving council approval, and so it could now begin considering her request for this.
24. The Council responded to Miss B’s complaint on 6 August. It explained the reasons the alternative provision school had closed down, and the new provider started by the same management had not been approved by the Council when Miss B had requested it previously. The Council noted a suitable provider had now been identified for D, to start in September.
25. On 12 August the tuition provider confirmed it had identified a suitable tutor for D and had arranged a visit with Miss B. On 14 August, the provider contacted the Council to say it was now trying to identify a different tutor, following its meeting with her. It confirmed it had done so on 22 August and was now making arrangements to begin work with D.
26. In a series of emails over August and September, Miss B raised a stage 2 complaint. She said the Council’s response had failed to address that D had not been in education since November 2023, and that it was Miss B, and not the Council, who had proactively sought to resolve this.
27. In October, and having approved Miss B’s preferred provider, the Council commissioned it as a second provider for D’s education. The Council also responded to Miss B’s stage 2 complaint, but declined to investigate it any further, as it considered its stage 1 response had adequately addressed the complaint.
28. In November, Miss B referred her complaint to the Ombudsman.

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Analysis

29. The law says, where a child of compulsory school age is missing education because of illness, councils have a duty to arrange suitable alternative provision for them.
30. Miss B says D had essentially missed all his secondary education due to anxiety, up to the point where he started attending the alternative provision school in September 2023. However, due to the time restriction on our jurisdiction set out at paragraph 4, my investigation has only covered the events in the 12 months since Miss B’s complaint to the Ombudsman, from November 2023 onward. I have therefore not considered whether the Council was at fault for D’s situation in the preceding years.
31. D stopped attending the alternative provision school in November 2023, when it closed down. At this point, as he was still of compulsory school age, the Council had a duty to make new arrangements for him.
32. Miss B complains the Council did not take any proactive steps at this point, and it was left for her to contact the Council. The evidence provided by the Council appears to support this, with the earliest event (after the school’s closure) being Miss B’s email to the Council on 4 December asking for an emergency annual review. I agree with Miss B it should have been the Council initiating this contact, given it was aware of what had happened with the school.
33. Apart from this though, I do not consider there is any evidence of fault by the Council in this matter. The Council responded very quickly to Miss B’s email and set up a review meeting for two weeks later. It then met Miss B on three more occasions over the following months, in an effort to address D’s absence from educational provision, as well as having several email exchanges with her in between the meetings. I do not agree the Council simply left Miss B to deal with the situation alone, as she has complained.
34. It is unfortunate it took such a long time for the Council and Miss B to agree which provider should be commissioned to replace the school. However, this was not because of fault by the Council. While I understand Miss B’s reasons for insisting on the new provider set up by the management of the school, the Council explained several times this provider was not on its approved list, and was therefore not an option. Once it had approved the provider, it then commissioned it in accordance with Miss B’s wishes.
35. I appreciate Miss B felt another provider would not have worked for D, given his particular difficulties with engaging in education. However, this does not mean it was the Council’s fault D received no provision after the school closed down. The Council’s role was to make arrangements for suitable provision; I cannot reasonably criticise it for failing to do so, when the obstacle was Miss B’s own disagreement with the available options, even accepting she had the right to do this.
36. I have considered whether the Council’s initial failure to proactively contact Miss B amounts to fault. But, on balance, I do not consider it significant enough, given the relatively short period of time in question, and the fact the Council went on to take satisfactory steps to find a replacement provision for D.

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Decision

37. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman