Summary: Mrs X complained the Council did not provide her daughter with appropriate alternative education when she became unable to attend school. We are satisfied the Council sufficiently considered its statutory duties and did not act with any fault. We do not uphold this complaint.

The complaint

1. Mrs X complains the Council did not provide appropriate alternative education for her daughter, Y, when she became unable to attend school due to her health needs.
2. She says this has caused considerable distress and frustration and that Y has missed out on education provision she was due at a crucial stage in her education.

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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 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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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(1), as amended)

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What I have and have not investigated

6. My investigation begins in February 2024 when the Council became aware of Y’s difficulties in attending school.
7. My investigation ends in early November 2024 when the Council completed its formal complaint process.

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How I considered this complaint

8. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Education welfare

10. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.

General section 19 duty

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 S19 or alternative education provision.

Educational provision - available and accessible

12. The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 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)
13. When considering whether to provide alternative provision, councils must have regard to statutory guidance, Arranging education for children who cannot attend school because of health needs (Dec 2023). This makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has arranged to deliver suitable education outside of school.

AV1 ‘robot’ device

14. An AV1 ‘robot’ device (the device) was, at times, used by Y’s school.
15. The device is designed to be placed in the physical school classroom. It uses a camera and microphone to transmit a live feed of the lesson to the pupil at home or elsewhere via an internet connection.
16. The pupil downloads an app which allows them to control the device situated at school. The pupil can use the app to interact with the lesson using two-way audio, rotate their view of the lesson and passively listen, if required.

What happened

17. I have set out below a summary of the key events. This is not meant to show everything that happened.

Context and background information

18. Before the period of my investigation, in the autumn term of 2023, Y was attending a mainstream secondary school, School A. Mrs X communicated with School A about Y’s attendance issues. Her mental health difficulties meant she was finding it increasingly hard to attend school.
19. Mrs X and School A continued to communicate into January 2024. School A created an attendance action plan (AAP) to try and improve Y’s attendance. At the end of January, School A discussed whether the device could be used for Y at home.
20. On 1 February 2024, Y’s GP wrote a letter which Mrs X sent to School A. The letter asked for Y to be supported as much as possible in the school environment and make provisions for her, if possible, to help reduce her difficulties in attending school.

The period of investigation

21. On 9 February 2024, School A emailed the Council’s EWO to raise Y’s attendance being an issue. The EWO asked school to hold an AAP meeting.
22. On 10 February, School A held the AAP meeting. It looked at Y’s difficulties in attending, and set strategies, targets and actions to try and improve this. It also discussed work being sent home and use of the device.
23. Mrs X and School A continued to communicate about Y’s difficulties during February. Mrs X was unhappy as Y had been unable to attend school for more than 15 days and she felt more should be done. School A explained it could offer a variety of support to enable Y to try and reintegrate back into school.
24. On 5 March, the Council discussed the case at an EWO termly support meeting. It then advised School A to continue with a referral for home tuition based on medical grounds. The Council noted School A said it could meet Y’s education needs.
25. Y began to access Spanish lessons from 11 March using the device.
26. A further letter from Y’s GP on 11 March asked that short-term alternative provision be offered for Y whilst she was waiting for help and advice from local mental health services.
27. The Council discussed Y’s tuition referral request at a tuition panel meeting on 16 April. It decided to continue use of the device with the possibility of widening the number of subjects accessed using it.
28. Mrs X appealed the Council’s decision. She was unhappy because Y felt uncomfortable using the device and felt it drew attention to her not being on the school site. Mrs X also listed difficulties Y had experienced in how the device was being used at school, moving it between lessons and that she felt it would be difficult to roll usage out to other subject areas.
29. On 1 May, the Council responded. It said it was satisfied the device, along with adaptations, could be a successful and efficient way to meet Y’s needs.
30. Mrs X complained to the Council on 2 May. She remained unhappy as the Council would not agree to Maths tutoring for Y. She said the device had not worked well as an alternative and that explaining how the device worked to Y would not lessen her concerns about using it. Mrs X said the Council was not meeting its S19 duty to provide full time education and what was in place was not suitable or efficient.
31. The Council again assessed Y’s case on 13 May 2024. It decided that Y should continue to access education via the device but was aware she still felt unable to attend school. School A increased use of the device to include a second subject area by the end of the week.
32. The Council sent Mrs X its stage one complaint response on 17 May. It said it:
• acknowledged her concerns about use of the device and that it would not be suitable for all subjects;
• had the intention to increase this usage over time to provide a full-time alternative to in school education until Y was well enough to return to the school site;
• proposed a meeting to discuss how it could increase Y’s device usage to sit alongside other school provision; and
• wanted to schedule regular review meetings to develop a support plan to meet Y’s needs.
33. Unhappy with this response, Mrs X escalated her complaint at the end of May. She said the Council had not met its statutory S19 duty and had refused to offer Maths tutoring to add to use of the device. Mrs X disagreed with the Council’s interpretation of Y’s difficulties in using it. Mrs X asked for the Council to organise Maths tutoring.
34. The Council sent its stage two response to Mrs X on 17 June. Its response said:
• it had considered its S19 duties and decided School A’s approach of learning to complete at home and the use of the device was suitable in March 2024;
• use of the device would build over time in addition to learning provided by the school;
• additional support would be considered in line with regular review meetings but that at the time of writing there had not been enough time to form an evidence base on the effectiveness of the current offer and engagement with the reintegration plan;
• that on the balance of probabilities there was insufficient evidence to suggest the plan was not working; and
• it would consider matters at the next review meeting.
35. Mrs X and the Council’s tuition service met online on 19 June. Mrs X highlighted persistent issues with the use of the device and that Y was having to ask friends to send work to her instead. The Council wanted Y to attempt to engage with the device for Maths lessons in addition to the three subjects she was by now accessing using it.
36. At the beginning of July, the Council agreed three hours Maths tuition at home, per week for Y as she still felt unable to engage in lessons by using the device. Mrs X and the tutor arranged some sessions to happen before the start of the school summer holidays.
37. Over the school summer holidays, Mrs X met with the Council’s emotional based school avoidance (EBSA) team. Different versions of reintegration plans for September were made with the primary intention Y would try and return to school.
38. At the beginning of September, Y attended School A for one lesson on the first day of term and one full day at the beginning of the next week.
39. Mrs X then advised the Council Y was unable to return to school . She said a full-time return looked unlikely to happen currently. The previous Maths tutor no longer had availability to work with Y.
40. By the beginning of October, the Council had arranged 2 hours Maths tutoring per week for Y. Mrs X continued to voice concerns about the device’s connection issues. Maths tutoring continued up to and after the end of the investigation period.
41. On 14 October, School A offered additional one to one support for Y on the school site with an intervention teacher. Mrs X replied on 18 October to say that Y would not be able to return to school currently and asked what could be put in place instead.
42. Mrs X emailed the Council on 7 November to again raise her unhappiness saying the Council had failed to properly act in line with its S19 duties to provide alternative education. The Council responded by 12 November to say it had already responded to her complaints and would not correspond further. It signposted her to the Ombudsman.

Analysis

43. The Ombudsman is not an appeal body. Our role is to consider whether there was any fault in how the Council reached its decision when considering any relevant legislation and guidance. If there was no fault in how the Council made its decision, we cannot question the outcome. A difference of opinion is not evidence of fault.
44. In my enquiries to the Council, I asked if it had considered whether it owed Y a duty to provide alternative education under S19.
45. In response, the Council said it had begun its S19 considerations of Y’s case from February 2024 when Y felt unable to attend school. It took the view that School A’s reintegration strategy provided suitable education for her.
46. The Council said it had continued to regularly review whether it owed an S19 duty to Y. It was satisfied School A was able to provide suitable education and adjusted provision. It gave examples of School A offering:
• use of the device in three subjects with Y declining additional use of it in Maths and Geography;
• various reintegration plans - including those drawn up by the EBSA team, work being sent home, regular pastoral support meetings, review meetings at school with learning mentors; access to work via online communication tools other than the device;
• access to online learning websites; and
• in-school support offered by intervention staff for Maths and Geography.
47. The Council also detailed its considerations of whether it owed Y an S19 duty throughout the period of my investigation. This included Mrs X’s tuition appeal, formal complaint responses and regular communications and meetings with the tuition service. It said the Maths tuition offered was designed to supplement, not replace, the education from School A.
48. Having reviewed the evidence on file, I am satisfied the Council has sufficiently demonstrated that it considered whether it owed Y any S19 duty and reviewed this throughout the period of my investigation. The Council was entitled to make the decision that Y had an education that was available and accessible to her and did not owe her any S19 duty. I am satisfied the Council considered relevant information and followed the correct processes in doing so. I am therefore satisfied the Council did not act with any fault.
49. Any matters with connectivity of the device were for School A to resolve, not the Council. The Council attempted to assist and provided an additional device for use. I am satisfied there is no fault on the part of the Council here.

Final decision

50. I have now completed my investigation. I find no fault in the Council’s actions and do not uphold this complaint.

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Investigator's decision on behalf of the Ombudsman