Summary: Mrs X complains the Council failed to properly consider its Section 19 duty towards her child, Y and provide alternative education. Mrs X also says the Councils complaints handling has been poor. Mrs X says this caused her and her family distress. We have not found fault in the actions of the Council.

The complaint

1. Mrs X complains the Council failed to properly consider its Section 19 duty towards her child, Y and provide alternative education. Mrs X also says the Councils complaints handling has been poor.
2. Mrs X says this caused her and her family distress.

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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. 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.
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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How I considered this complaint

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

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What I found

8. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
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)
10. Government guidance “Arranging education for children who cannot attend school because of health needs” says there is no absolute deadline by which councils must start to arrange education when a child is out of school on health grounds. It says councils should arrange alternative provision as soon as it becomes clear the child will be away from school for more than 15 days. The guidance explains “the 15 days may be consecutive or over the course of a school year”.
11. 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. 
12. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says:

• Councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• Councils should 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; and
• Councils should put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Complaint handling

13. The Councils complaints handling procedure says a Stage one response will be issued to any complaint within 10 working days unless the Council contact’s complainants to advise it needs longer to respond.
14. The procedure goes on to say if the complaint is escalated to stage two. Complainants can expect a response from a manager or senior officer who has not previously been involved in the complaint within 20 working days. Again, if the Council feels it needs longer to respond it will contact the complainant to confirm.
15. The procedure then says if the complaint is not resolved it can be referred to the Local Government Ombudsman.

What happened

16. Mrs X says her child, Y, stopped attending school in summer 2024.
17. Mrs X contacted the Council in late November 2024 to request an Education, Health and Care Needs Assessment (EHCNA) for Y.
18. Mrs X raised a complaint with the Council in early December 2024 and said Y had not received any education since the summer. The Council offered to meet with Mrs X about Y’s attendance in mid-December, but Mrs X could not attend.
19. The Council contacted Mrs X about her complaint in December 2024 and issued a stage one response in mid-January 2024. The Council said any issues regarding Y’s school would need to be addressed with it directly. It also said the EHCNA process was ongoing and the Council would organise a meeting shortly to discuss Y’s schooling. The Council also said Y had an offer of education and so it would not offer funding for a tutor.
20. The Council spoke to Y’s school in January 2025 which confirmed it had tried to put in place a number of things to help Y attend school. The school said it offered a reduced timetable and a member of staff being available to walk Y to lessons.
21. Mrs X was unhappy with the Council’s response to her complaint and asked for the Council to escalate it. Mrs X asked the Council to refrain from its threatening attitude on the phone from an officer.
22. The Educational Psychologist (EP) allocated to Y emailed various professionals in mid-January 2025 to invite them to a meeting to discuss how to support Y. The list of attendees includes and invite for Mrs X. Mrs X was sent the email the same day.
23. The Council received an email in mid-January 2025 confirming Mrs X had been advised she could attend the meeting organised for two days later, but she had declined. The meeting went ahead, and the notes record the professionals involved decided Y's school would continue to try to reintegrate Y into education and would issue a reduced timetable.
24. Mrs X received a reduced timetable offer for Y shortly after the meeting and emailed the EP to ask why no one had invited her to the meeting. The EP responded to say Mrs X had been invited.
25. Mrs X sent various emails to the Council through late January and early February 2025 asking when online lessons would begin for Y. The Council responded in early February 2025 and said it was satisfied that Y was on the roll of a school and had a partial timetable. The Council said all agencies felt the timetable was suitable to meet Y’s needs.
26. The Council issued a stage two response to Mrs X’s complaint in mid-February 2025 which said it had received unreasonable contact from Mrs X. It also confirmed Mrs X was invited to the multi-agency meeting and again confirmed it was satisfied Y’s partial timetable offer was suitable to meet their need.
27. The Council wrote to Mrs X in late February 2025 to advise her it would not be issuing an Education Health and Care Plan for Y. I understand Mrs X has appealed this decision.

Analysis

28. Mrs X says she tried to contact the Council to report Y was not attending school many times. The Council says Mrs X submitted and EHCNA request in November 2024 and conversations with professionals were underway regarding Y’s schooling.
29. Mrs X submitted a complaint in December 2024, and the Council offered to meet Mrs X to discuss Y’s attendance. I understand Y still had an offer of education at her school and the school were trying to work with Y to reintegrate her into school.
30. The Council organised a multi-agency meeting in late January 2025 to discuss Y’s attendance and the professionals involved including CAMHS decided the school should continue to try to re-integrate Y back into school.
31. I understand Mrs X feels Y should have been receiving alternative provision. However, the Council considered what provision would be suitable for Y alongside professionals and worked with the school to offer a timetable to reflect this.
32. I have not found fault in the Council’s actions.

Complaint handling

33. Mrs X is unhappy with the Council’s complaint handling. However, the Council responded in line with its policy at stage one. The Council issued its stage two response just outside of its policy but not significantly so. Therefore, I have not found fault in the Council’s actions.

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Decision

34. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman