Summary: Mr X complained the Council did not provide his daughter with sufficient alternative provision while she was unable to attend school. The Council is at fault for failing to arrange a suitable full-time education from October 2023 to July 2024. The Council has also failed to record its decision making. This fault meant Mr X’s daughter received limited education between October 2023 and July 2024. This caused Mr X and his daughter significant distress, frustration and has negatively impacted her educational development. The Council has agreed to apologise, make a payment to Mr X and his daughter, and make a service improvement.

The complaint

1. Mr X complained the Council failed to provide suitable educational provision when his daughter (Y) became unable to attend school from February 2023 onwards. He says the alternative provision delivered by the Council only consisted of three hours of online tuition per week and he does not believe this was sufficient. He believes the lack of suitable education has hindered Y’s educational progress. He wants compensation from the Council to support Y academically and to address the shortfall in provision.

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The Ombudsman’s role and powers

2. 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)
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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

5. 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)
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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What I have and have not investigated

7. We typically expect complainants to come to us within 12 months of becoming aware of an issue. Mr X complained to the Ombudsman in December 2024, and therefore events before December 2023 are late. However, I have chosen to exercise discretion in this case and start the investigation in late September 2023 which is when Y’s school requested alternative provision from the Council. I am satisfied Mr X could have bought his concerns before late September 2023 to us sooner and I therefore not exercised discretion to investigate them.
8. The courts have said where the period out of education coincides with an appeal about an EHC Plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard is outside the Ombudsman’s jurisdiction. Mr X appealed the provision in section F of Y’s EHC Plan to the SEND Tribunal in July 2024. His appeal encompassed all the provision in section F of the Plan. Therefore, I have not investigated what provision the Council provided to Y after July 2024 as this cannot be separated from Mr X’s appeal.

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How I considered this complaint

9. I considered evidence provided by Mr X and made written enquiries of the Council. I also considered relevant law, policy and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What I found

Education Health and Care Plan

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 

Appeal rights

12. 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)
13. 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.
14. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Alternative Provision

15. 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.
16. 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)
17. 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)
18. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
19. 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
20. 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.

21. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

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What happened

22. This section sets out the key events in this case and is not intended to be a detailed chronology.
23. In February 2023, Y stopped attending school due to autistic burnout and anxiety.
24. In May and then in September, at the start of Year 3, the school facilitated some reintegration attempts, but these were not successful. Y remained absent from school. The school recorded Y’s absence as an ‘other’ authorised absence.
25. The school provided Y with learning materials at home and her family funded an hour of weekly tuition from a company I will refer to as Provider A.
26. On 28 September the school submitted a section 19 (S19) request to the Council to arrange alternative educational provision for Y.
27. At the beginning of October, the Council made a provisional agreement that S19 alternative educational provision could be made, pending confirmation from the school that it did not intend to pursue legal action for attendance. This would have made Y ineligible for alternative provision.
28. On 17 November the Council asked the school whether it had classed Y’s absence as authorised. The school confirmed on 22 November that it did not intend to pursue the legal attendance route and confirmed Y’s eligibility for alternative provision.
29. The Council agreed it would provide alternative provision and began to consult with alternative provision providers at the end of November. It identified Y was accessing tuition via Provider A once a week already and this was being funded by her family.
30. On 23 November, Mr X asked the Council to complete an EHC needs assessment for Y. This is an assessment of a child’s education, health and social needs.
31. On 30 November, the Council confirmed to Mr X it had secured and would fund provision for Y through Provider A.
32. Y received three hours of this online provision on a 1:1 basis each week. This provision was in place from January to July 2024.
33. A wider package of provision was in place that also included a member of staff from the school visiting Y at home once a week, access to the school’s Emotional Literacy Support Assistant and nurture groups. Y was also receiving input from a mental health service, Educational Psychologists and an Occupational Therapist.
34. The Council renewed the funding for provision through Provider A in February as it was due to run out. It renewed this for the remainder of the academic year.
35. The Council issued Y’s final EHC Plan in July after completing the EHC needs assessment.
36. In July, a Section 19 referral triage indicated that Provider A continued to meet Y’s needs. It confirmed Y was coping well and engaging 100% with the tuition. Provider A reported Y’s good levels of attainment to the Council.
37. Mr X complained to the Council in October as he did not think the level of provision Y had been receiving was sufficient. In its response, issued in December, the Council did not uphold his complaint. It said:

• It delivered alternative education to Y in line with its S19 policy and it was content that Y was receiving a wider package of provision.
• It put in place the provision within a reasonable timeframe following the school’s request for AP, and nine school days after the school’s confirmation it would not be seeking a legal attendance route in relation to Y’s absence.
• The school was responsible for Y’s education before November 2023.

38. Mr X remained unhappy with the provision Y had received and with the Council’s response. He complained to the Ombudsman in December 2024.

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Analysis

39. In its complaint response, the Council said it took nine days to arrange alternative provision after the school confirmed Y’s eligibility for it. However, the school originally made the request for alternative provision in September, and there is no evidence that shows the Council sought confirmation from the school about whether it intended to authorise Y’s absence, therefore making her eligible for alternative provision, until 17 November. This delay in action by the Council amounts to fault. There is uncertainty around whether provision would have started sooner had the Council been more proactive in establishing Y’s eligibility.
40. The Council had a duty to ensure Y received a suitable and full-time education. The Council was satisfied that three hours of 1:1 weekly tuition was suitable for Y, and said it made this decision in consideration of her health needs and a wish to avoid the risk of further burnout. It was also content that this formed part of a wider package of provision, as outlined in paragraph 33. However, there is no evidence to support that this decision was made at the time, nor any records showing that the Council considered Y’s age or educational ability when deciding the amount of provision.
41. There is no analysis of what Y could realistically manage, other than the fact that she had already been accessing an hour of tuition weekly through Provider A. Furthermore, there is no evidence that shows the Council communicated its rationale to Y’s parents, or that it spoke with them to understand what level of provision Y could cope with. The Council’s failure to record its decision making and carry out these actions is fault. I have recommended a remedy for this below.
42. The Council said it regularly reviewed Y’s provision from January to July 2024 and was content with her engagement and attainment. However, there is no evidence to show the Council reviewed the provision Y was receiving and whether she would be able to cope with more. It had plenty of opportunities to do so, including when it renewed funding for the alternative provision in February 2024. Y was reported to be coping well with the provision and demonstrated full engagement with her lessons. On the balance of probabilities, it is likely that Y would have been able to cope with more provision than the Council provided. The Council’s failure to actively monitor and reassess the provision, and consider whether Y could have coped with more, is fault. I have recommended a service improvement to address this below.
43. The Council’s faults have caused Y an injustice as she has not received a suitable or full-time education she is legally entitled to. The Council’s faults have also caused Mr X distress in the form of uncertainty and frustration that Y has been without an education she is legally entitled to. I have made appropriate recommendations to remedy this injustice.

Agreed Actions

44. Within one month the Council has agreed to:
1. Apologise to Mr X for the injustice caused by the Council’s faults.
2. Pay Mr X £100 to reflect the period of uncertainty between October 2023, when the Council accepted its S19 duties, to November 2023, when it began consulting alternative provision providers.
3. Pay Mr X £2000 to reflect Y’s missed provision from November 2023 to July 2024. We recommend Mr X uses this payment for Y’s educational benefit.
45. Within two months the Council has agreed to:
1.  
2.  
3.  
4. Review how it makes its decisions regarding alternative provision to ensure it offers full-time education where appropriate or provides clear and documented reasons when it decides a part-time table is a suitable education for a child. This record should include an assessment of how much the child can manage when they are too unwell to access a full-time education. The decision should be clearly communicated to the child’s parent/carer.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

47. I have now completed my investigation. I find fault causing injustice for which I recommend a remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman