Summary: Mrs X complained the Council delayed arranging alternative educational provision for her child, Z when she was unwell and unable to attend school. When the Council did then arrange the provision, Mrs X said this was part-time and unsuitable. The Council was at fault as there was a six month delay in arranging the provision. However, the Council was not at fault regarding the suitability of the provision as it was appropriate for Z’s needs. The Council has agreed to apologise and make a payment for Z’s missed provision to recognise the distress, frustration and uncertainty caused.

The complaint

1. Mrs X complained the Council delayed arranging alternative educational provision for her child, Z when she was unwell and unable to attend school. When the Council did then arrange the provision, Mrs X said this was part-time and unsuitable. This has caused distress, frustration and uncertainty as Z has missed provision.

Back to top

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. 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.
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

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 has done. (Local Government Act 1974, sections 26B and 34D, as amended). Some of Mrs X’s complaint is late as she says Z has not received alternative educational provision since September 2022 to present but did not complain to us until November 2024, over two years later. I have exercised discretion to investigate and remedy the period from June 2023 when the Council started to consider its section 19 duties. It was reasonable for Mrs X to complain to us earlier about matters before June 2023.
7. 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
8. In July 2024 the Council issued Z’s final EHC Plan naming a mainstream school. Mrs X appealed as she did not agree a mainstream school could meet Z’s needs and requested a bespoke package of education other than in school or college (EOTISC). I cannot investigate anything past July 2024 when the final EHC Plan was issued. Doing so would involve looking at the Council’s decision to name a mainstream school and therefore trespassing on the Tribunal’s jurisdiction.

Back to top

How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Relevant law and guidance

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. 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.
14. 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
15. 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

16. Mrs X has a child Z who transitioned to secondary school in September 2022 but was absent due to anxiety. The school has consistently recorded Z as absent due to illness for the school year.
17. Following Z’s transition to secondary school, the Educational Psychology (EP) service became involved at the school’s request to provide advice and guidance to support Z’s mental health and attendance.
18. In June 2023, the Council started to explore section 19 provision following unsuccessful attempts to reintegrate Z back into school. It made initial enquiries with a hospital education service which could provide Z with section 19 provision.
19. The same month, Mrs X started to self-fund Z to attend a mentoring service specifically to develop digital skills.
20. In February 2024, the hospital education service agreed to provide Z with section 19 provision. In March 2024, Z started to receive three hours a week of 1:1 Maths, Science and Art lessons.
21. The records show that in May 2024 the EP advised lessons should be increased gradually for Z given the length of time they have been out of school and the difficulties they experience in social situations.
22. At the start of June 2024, the hospital education service wrote a letter to the Council providing an update on Z’s education to inform the EHC needs assessment. The letter said Z was engaging most positively with the Art lessons. It also said they had seen early success in Maths and Science. However, Z needs additional support to access these and can appear hugely fatigued after the lessons. The letter said future outcomes include Z accessing up to five hours of teaching a week. Z was also still accessing the mentoring Mrs X initially arranged to develop digital skills.
23. At the end of June 2024, a review of the provision was carried out. Z was still accessing Science and Art with some success, but it had to pause Maths due to anxiety.
24. Mrs X raised a stage one complaint in September 2024 which said the Council had failed to provide suitable, full-time alternative education for Z after they stopped attending school.
25. The Council responded the following month. It said it made initial enquiries to the hospital education service in June 2023 but it delayed following this up. Therefore, Z was not accepted for this until February 2024. The Council apologised and offered to reimburse Mrs X for the mentoring she had paid for between June 2023-January 2024. The Council also said the initial offer of one hour per week of Art, Science and Maths was agreed with Mrs Z. It said this was required because of the need for a gradual build up and slow transition back to education.
26. Mrs X escalated her complaint to stage two and the Council issued a response reiterating its stance in the stage one response.
27. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.

Council’s response to our enquiries

28. The Council accepted it did not follow up with the hospital education service after making initial enquires at the start of June 2023. The Council said since the alternative provision was put in place it has kept this under review making reductions and increases to the hours in line with Z's changing needs. The Council said it has provided Z with part-time education as it considered this more suitable and in Z’s interests based on her presenting needs. The Council has also said the hospital education service was not aware the parent had concerns about the provision until the point of the stage one complaint in September 2024.

My findings

29. The Council started considering its section 19 duties and made initial enquiries with the hospital education service in June 2023. However, the Council delayed following this up which caused the matter to drift without meaningful progression. There was a delay of six-months (excluding the summer holidays) between the Council initially considering its section 19 duties and implementing the alternative provision which was fault. On a balance of probabilities, had there been no delay in the Council considering its section 19 duties, it would have likely decided Z required alternative educational provision and arranged this for September 2023 after the summer holidays. Z missed out on provision for six months and their needs went unmet for longer than necessary. There was also a lost opportunity to try and increase the hours of Z’s alternative provision earlier. This caused distress, frustration and uncertainty.
30. Mrs X also complained the Council provided unsuitable, part-time provision for Z. The Council has provided evidence the EP advised the provision should be increased gradually and it said Mrs X initially agreed to three hours a week. The Council has also provided evidence it has regularly reviewed the provision. At the start of June, the hospital education service informed the Council, Z was attending the lessons with some success. It said the aim was to increase the lessons to five hours a week. However, a review at the end of June said due to Z’s anxiety, the lessons had to be reduced to two hours a week. The Council has reviewed the relevant advice and Z’s presenting needs and considered full-time provision to not be in Z’s interests. Therefore, the Council was not at fault.

Back to top

Action

31. Within one month of the final decision, the Council has agreed to take the following action:
1. Apologise to Mrs X to recognise the distress, frustration and uncertainty caused by its delay in arranging alternative educational provision for Z. 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.
2. Pay Mrs X £200 to recognise the distress, frustration and uncertainty caused by its delay in arranging alternative educational provision for Z.
3. Pay Mrs X £500 per term to recognise Z’s loss of alternative educational provision between September 2023-February 2024.
4. Create an action plan to address how it will improve internal processes and communication when considering its Section 19 responsibility and making the necessary arrangements to put alternative provision in place in a timely manner.
32. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman