Summary: We have found the Council at fault for failing to consider its Section 19 duties when Mrs X reported that her son, Y was unable to attend school due to ill health. The delay in securing suitable alternative provision caused Y to miss out on suitable education for 5 months. The Council has agreed to apologise and make a symbolic payment to remedy this injustice.

The complaint

1. Mrs X complained the Council caused delay in securing suitable alternative provision when her son was unable to attend school due to illness. She said Y was without suitable education for months.

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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. 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

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

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What I found

Law and legislation

Section 19 duty – Children out of school due to health needs

6. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. This is referred to as ‘Alternative Provision’ (AP).
7. 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”.
8. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
9. 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))
10. 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)
11. 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’)

What happened

Background

12. Mrs X’s son, Y was diagnosed with an autoimmune condition in December 2023. He found it hard to attend school or to stay at school for a full day due to the symptoms. Y previously had good attendance and academic achievement.
13. In December 2023, Y’s school wrote to Mrs X expressing concerns about Y’s attendance.

Council made aware of Y’s condition

14. In January 2024, Mrs X contacted the Council to explain Y’s condition and the impact that it was having on his attendance and performance. She referred to statutory guidance about alternative provision (AP). She said that Y had missed more than 15 days and while he was receiving medical intervention, he would be likely to miss more school. She said she had spoken to the Home and Hospital Teaching Service (HHTS) but had not received any information about the support available.
15. After Mrs X made contact, the Council asked the school to arrange some online tuition for Y.
16. Mrs X contacted the Council again and explained the online learning was not suitable for Y and was not the equivalent to a full-time education. She said the Council has a duty to secure suitable alternative provision when a child has been out of school for more than 15 days.
17. The Council explained that pupil referrals for HHTS come directly from schools to the Vulnerable Pupil Panel (VPP) that runs every three weeks. The Council said that in the first instance, schools have a duty to support a child with medical needs. It went on to say that if the school feels it can not meet the child’s educational needs, it will contact the parents and the Council via the VPP.
18. Mrs X was unhappy with this response. In March, she made a complaint to the Council. She said it was failing to meet its Section 19 duty and as a result her son was missing out on suitable education when he is unable to attend school due to his medical condition.
19. The Council upheld Mrs X’s complaint but did not accept that the AP being delivered was unsuitable. It agreed to re-evaluate the suitability of the provision Y was receiving from the school.
20. The Council reviewed the AP in April 2024 and concluded the provision was not suitable. The Council considered Y’s case at the next VPP and agreed that it would secure support for Y through HHTS.
21. Y started to attend HHTS in May 2024.
22. Ms X brought her complaint to the Ombudsman in January 2025.

My findings

23. The law is clear that it is the responsibility of the Council to secure suitable education for a child who may not be able to access education due to ill health. While the Council may work with schools and in some cases, schools may deliver the AP, the responsibility ultimately lies with the Council.
24. I have found fault with the Council for failing to consider whether the online AP delivered through the school was suitable for Y. It did not consider its Section 19 duties when Mrs X raised concerns about Y’s attendance in January 2024.
25. Only when Mrs X complained, did the Council properly consider the suitability of the provision available to Y. The Council determined that the AP was unsuitable in April 2024. On balance, I believe if the Council had made this Section 19 decision in January, it would have reached the same conclusion.
26. Therefore, the fault of failing to make a Section 19 decision in January 2024, resulted in Y receiving no or unsuitable AP, until May 2024 when he began to attend HHTS. This was 1.5 school terms of missed education during an important stage in Y’s education (Year 10).
27. The Council has agreed apologise to Mrs X for the delay in arranging suitable AP for Y. In line with our Guidance on Remedies, the Council will also pay Mrs X a symbolic payment of £1500 per term (£2250 in total) in recognition of the injustice of Y missing education.
28. The Council’s stage 2 response recommended that it should review Y’s case and its internal processes to ensure it is able to make timely arrangements for the provision of suitable education in accordance with its Section 19 duties. On the back of this, the Council has agreed to remind relevant officers of the Council’s duties and the correct procedures to follow.

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Agreed action

29. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for the delay in securing suitable alternative provision for Y.
2. Pay Mrs X £2250 in recognition of the injustice of Y missing education.
3. Remind relevant staff of the Council’s Section 19 duties and the procedures they need to follow when a child is unable to access education due to ill health.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have found fault causing injustice. The Council has agreed to take action to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman