Summary: Mrs X complains the Council has not dealt with her daughter Y’s education properly and she has missed educational opportunity. The Council delayed considering whether it should make alternative education provision for Y. Y suffered delay and the loss of educational opportunity. The Council should apologise and pay Mrs X £1500.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council failed to deal with her daughter Y’s education properly because it didn’t provide s19 Alternative Education provision for her.
2. Mrs X says her daughter missed educational provision.

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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. 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)
6. 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

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. 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

Law, guidance and policies

Alternative Education

9. 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.] We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
10. 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)
11. While there is no legal requirement as to when full-time education should begin for children placed in alternative provision (AP) for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school. (Statutory guidance ‘Alternative Provision’ January 2013)
12. 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”.
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. 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))
15. 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)
16. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made seven recommendations including that councils:
• Consider the individual circumstances of each case and be aware that the Council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis)- and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare and take 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 education.
• 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.

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.

What happened?

17. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
18. Y stopped attending school in March 2024. In April, Mrs X informed the Council and requested that it make alternative educational provision for Y.
19. Mrs X had to chase up her request on two occasions in May as she received no response from the Council.
20. The Council responded in mid-May and apologised for the delay. It said Y’s school believed her needs could be managed with SEN support.
21. In early June Mrs X told the Council Y was still not able to access school and asked for full time provision to be made for the start of the new school year in September.
22. A Team Around the Family meeting (TAF) was held in July and the Council said any alternative provision would have to be made via a medical referral. It was decided that Y should continue at school on a reduced timetable on a re-engagement plan. A review was scheduled for early October.
23. Mrs X complained to the Council that Y had been out of school for 6 months.
24. At the TAF review meeting in October, the Council agreed to provide alternative education provision for Y.
25. The Council partially upheld Mrs X’s complaint about the time it took to address the barriers to Y’s attendance and her medical needs.

Analysis

26. The Council’s complaint response said, “Your complaint is partially justified. In response to your complaint, we have considered the time that it has taken to address the barriers to [Y’s] attendance and her medical needs and have taken steps to improve our internal processes. We have already reviewed our guidance to Schools ‘Promoting Educational Attendance in Dorset’ to ensure that our processes do not place additional barriers to accessing appropriate provision. We are committed to ensuring that our children, young people and their families can access the right support at the right time. This updated guidance has been shared with all schools and Inclusion Leads from across Dorset.”
27. I agree with the Council. There was a delay of three months, (approximately one term), before the Council made any consideration of Y’s situation and whether it should provide alternative education. When it was clear at the October review meeting that re-integration to school was not working, the Council agreed to provide alternative education provision for Y.
28. This delay is fault by the Council. Y suffered delay in addressing her needs and consequently missed educational provision for this period of time.

Action by the Council

29. The Council has identified necessary service improvements as a result of Mrs X’s complaint, including reviewing its internal guidance to staff to ensure additional barriers do not prevent appropriate provision being accessed.
30. I consider the service improvements the Council has made to be appropriate.

The Ombudsman’s Guidance on Remedies

31. 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.
32. I have also taken into account the fact that Y missed some educational provision, her subsequently identified special educational needs as detailed in her EHC Plan and her school attendance in determining an appropriate remedy.

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Action

33. 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 Mrs 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 Mrs X £1,500 in respect of missed educational provision for one term.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. 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