Summary: Ms X complained the Council failed to provide suitable education for her child from January 2024 to January 2025. She says that her child has special educational needs and has lost out on education because of this issue. We found the Council at fault. The Council has agreed to apologise and make a symbolic payment to remedy the injustice caused.

The complaint

1. Ms X complains about the Council’s failure to provide suitable education after her child stopped attending school in January 2024. She says that her child has special educational needs.
2. Ms X confirms this issue impacted her by having to take seven months off work and affecting both her and her child’s mental health.

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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. 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)
5. 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

6. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance. Ms X and the Council had the opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. I have also considered the relevant statutory guidance, as set out below. In addition, I have considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

8. 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.
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.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
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. 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)
12. 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)
13. 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’)
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. Ms X says that due to health reasons her child stopped attending school in January 2024. In March 2024 she contacted the Council about arranging alternative provision after receiving no support.
17. The Council confirms that it only became aware that Ms X’s child had stopped attending school in March 2024. It states that no alternative provision was put in place up to July 2024 because it is not a measure the school would consider or fund. Some reasonable adjustments were offered for reintegration but these failed.
18. In September 2024 Ms X’s child started a new school and they attended a small number of sessions. However, their attendance dropped away and whilst alternative provision was discussed, this was delayed due to possible funding challenges.
19. An EHC plan was agreed in December 2024, and alternative provision was agreed from January 2025 onwards.

Analysis

20. The regulations make clear that it is the Council’s responsibility to arrange alternative provision when a child stops attending school. I consider it fault, that firstly the Council did not know that Ms X’s child had stopped attending school and failed to arrange suitable alternative provision for them.
21. The Council has confirmed that it has used this case to review the way that it handles section 19 cases. It has written a new policy and guidance which it is currently rolling out, and it includes:

• Providing a clear and transparent process for requesting support under Section 19 of the Education Act.
• Allow schools, health professionals and parents to request support under Section 19 of the Education Act when a child is unable to attend school despite reasonable adjustments.
• Ensures multi-agency oversight of requests, plans and implementation.
• Ensures appropriate funding is available.
• Ensures appropriate provision and/or support are put in place in a timely manner.
• Ensures schools are better held to account in line with their duty to provide education and make reasonable adjustments.

22. I also asked the Council to comment on how it was reviewing and identifying children who are not attending school, and it has confirmed that:

• Children that are not attending school are now identified through Student and Attendance dashboards. Amongst other cohorts, these dashboards highlight:
• Children that are persistently absent and severely absent from school
• Children that have missed 10 or more days of school due to illness
• Children on part-time timetables
• Children that have high Child Need Index scores

23. The Council further commented that: ‘These dashboards inform discussions with schools through termly Targeted Support Meetings as well as whole-school conversations through our new Team Around the School model’.
24. I am satisfied the Council is acting to correct the issues going forward that Ms X faced. The Council is also on an agreed action plan with the Ombudsman to improve its performance regarding the handling of special educational needs cases which is also referenced in this complaint.
25. Both Ms X and the Council confirm that no full-time alternative provision was put in place from January 2024 until provision was secured at the end of December 2024. I consider this to be fault by the Council.
26. This would have undoubtedly caused Ms X distress in her belief the Council were not meeting its responsibilities. It also has impacted Ms X’s child in not receiving the education they were entitled to receive, which Ms X confirms significantly affected their mental health.
27. I have therefore recommended an award in line with our guidance on remedies on this matter. It recommends a payment of £900 to £2,400 per term.
28. I have considered the child was not in a key examination year, however they were transitioning from one school to another. For the spring and summer terms therefore when no provision was provided, I have recommended the figure of £1,500 per term.
29. For the autumn term when some provision was provided (although I accept this was minimal) I have recommended the figure of £1,200. I also consider the Council should apologise to Ms X for the distress this issue has caused her and her child.

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Action

30. Within four weeks of my final decision the Council has agreed to:
1. Provide a written apology to Ms X and her child for the unnecessary and avoidable distress caused by the failure to secure appropriate alternative provision.
2. Pay £4,200 for the failure to secure appropriate alternative provision.
31. 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.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. I find fault causing injustice. The Council has agreed to apologise and make a payment to Ms X.

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Investigator's decision on behalf of the Ombudsman