Summary: There was no fault in how the Council decided whether it had a duty to make alternative educational provision while Mrs B’s son, K, could not attend school. There was also no fault in how the Council decided what educational provision it should offer once it accepted that duty.

The complaint

1. Mrs B complains that the Council took too long to offer her son alternative educational provision, and the provision it offered was not sufficient nor suitable.
2. Mrs B says the Council’s failures have caused her son to miss out on education, and have caused distress and uncertainty to both her and her son. Mrs B felt she had to privately fund educational provision for her son and she has been unable to work full time as she had planned to do.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

Back to top

How I considered this complaint

5. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
6. Mrs B 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

The law and guidance

7. 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.
8. The courts have considered the circuMrstances 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)
9. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
10. 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))
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

12. Mrs B’s child, K, has special educational needs. She asked the Council to assess K for an EHC Plan. The Council refused and Mrs B appealed against this decision to the tribunal.
13. Mrs B says that K struggled at school and so on 9 September 2024, he stopped attending. K had been diagnosed with a neuro developmental condition and specific learning disability. This meant that he became distressed and dysregulated at school. K’s GP certified that he was not fit to attend school on 12 September. The GP wrote to say that the Council should consider a reduced timetable. The next day, Mrs B asked the Council to make alternative educational provision on that basis. Mrs B also sent a letter from a clinical psychologist that said K needed adaptations to meet his needs such as a part-time timetable or home learning
14. The Council met with the school. The notes of the meeting show the Council considered K’s school history, and the medical information Mrs B had supplied. It noted that the school had visited K at home and offered different support options, which K and Mrs B thought were largely unsuitable, and had signposted the family to therapeutic support. The school had offered a reduced timetable, and the option to access a learning support area instead of being in certain lessons. The notes say there was other support the school could access and other options it could try to re-engage K in school.
15. The Council refused to make alternative provision and wrote to Mrs B about this on 25 October. Its letter to Mrs B says the Council has met with the school, which has a plan in place to return K to school. The Council said that the school would revisit the plan with Mrs B to further refine what support he needed; the school will get support to help K overcome the barriers to going to school; and the school has already offered counselling, anxiety workshops and therapy options, support from its special education lead, and access to a special learning Support area. The Council said the support would be reviewed in 3 months (the end of December).
16. Mrs B responded to the Council. She told it that K is absolutely unable to engage with the school or its staff. She explained that she had already sent the school and the Council medical letters that say K’s absence should be authorised and his mental health will deteriorate if the school tries to follow the plan.
17. Mrs B says the school sent home some learning videos for K, which he tried but failed to engage with. Mrs B arranged and paid for K to go to a small group learning college locally, and to have a home tutor for one hour per week. Mrs B says K was thriving with this education.
18. In mid-November, Mrs B obtained a clinical psychologist assessment for K. Their report says that K cannot return to school with the current support and needs adjustments. The psychologist recommended 1:1 home tuition, small group learning, technology assisted learning such as speech to text software, engaging K’s strengths to encourage his engagement in child led educational activities, therapy, mindfulness and social skills support. It said that K’s social interaction should be in person and not online. The Council also received a report from a specialist teacher to say that K could not return to school with the support offered to him at that time.
19. Towards the end of November, Mrs B’s solicitor sent a letter setting out her intention to start court action if the Council did not provide a suitable alternative education. Mrs B also asked the Council to reimburse the provision she had been paying for.
20. At the beginning of December, the Council responded to the solicitor’s letter. It said that its original decision was sound because the school had not made a referral for alternative provision, and it had understood from the school that support was in place. However, now that it has a report from the clinical psychologist, and a specialist teacher, the Council accepted it had a duty to make alternative provision.
21. The Council proposed 12 hours of online learning tailored to meet K’s age, ability, aptitude and needs. The Council said that this accommodates K’s anxiety and his reluctance for in-person learning. It said it will review how K is coping with that provision to see if it should increase the hours.
22. Mrs B wrote to the Council setting out that the online learning was not sufficient nor suitable for K’s needs. She explained that he cannot manage online classrooms due to his specific learning and executive functioning difficulties. Mrs B also referred the Council to his recent medical assessments.
23. On 20 January 2025, Mrs B made a formal complaint to the Council that it had failed to provide a suitable full-time education for K. Mrs B said:
• the Council wrongly refused to make alternative provision when she requested this in September 2024.
• the Council’s offer of 12 hours per week online learning was not suitable because it was not full-time and does not meet his access needs, as K cannot manage online learning. In addition, the Council had not made the provision.
• the small group provision and 1:1 tuition that she had arranged and asked the Council to fund, matches the recommendation of the clinical psychologist’s assessments.
24. The Council responded to Mrs B’s complaint. It said:
• Mrs B had accepted the alternative provision on 6 January. The Council needed information from the school to arrange provision, but it did not send this in good time. The education provider contacted Mrs B on 6 February to discuss the online provision, but Mrs B declined this.
• There was still no Education Health and Care Plan that would set out K’s special educational needs and provision, and no evidence that attending school with the right support was inappropriate. The offer of 12 hours per week is an interim offer and the Council was clear that this could be increased. The Council said that it had met its legal duties.
25. The small group learning college wrote to the Council to support his continued attendance in its classes as meeting his needs.
26. The Council changed the offer of online learning to 1:1 tuition. This would also be online but it would be by a specialist teacher and tailored to K’s needs. In addition to the online learning, the Council offered six hours of in-person tuition in a learning centre. Mrs B and K raised concerns that this would be another change of provision and that he would not be able to pursue the subjects he was really engaging with at the college. Mrs B said K’s mental health was fragile and she was concerned that he would lose trust in education if he was made to move again.
27. Mrs B asked for further information about the learning centre. She also reiterated that K cannot access the online learning and this was not in line with the medical assessments, and so the six hours of in-person tuition was still not enough. Mrs B also asked how K would travel to and from the learning centre as there was no public transport and neither parent was available, and she pointed out that the tuition clashed with the small group learning college he was already doing.
28. The Council said the tuition was intended to go alongside the small group college Mrs B was already funding. It maintained that online learning is accessible to K as these are structured live 1:1 online sessions by a specialist teacher and is designed to be flexible and adapted to K’s needs. It said it could not conclude that the provision is wholly unsuitable without seeing if it could be adapted to meet K’s needs. The Council said K was not eligible for home to school transport but if he took up the place at the learning centre, it would refer his case to the school transport team for further consideration.
29. Mrs B arranged to visit the learning centre but had to cancel this as K was too distressed to attend. She again told the Council that K could not manage a transition to another provider and it should reconsider funding the college he is already successfully attending. She pointed to case law that says a council cannot take into account its own financial constraints when deciding on a suitable educational provision.
30. In April, the Council offered to fund the college that K was already attending. Unfortunately, the college closed at that point. The Council has now agreed to fund a new college placement as requested by Mrs B and K.
31. The Council has explained that it considered Mrs B’s further requests for 1:1 in person tuition and online mentoring, but the Council said that it had already offered this type of provision online and at the teaching centre and so it was not necessary to make further provision in order to meet its duty.

Was there fault by the Council causing injustice to Mrs B or to K?

32. The Council considered Mrs B’s request for alternative provision without avoidable delay. There was no fault by the Council when it decided that not to make alternative educational provision from September to early December.
33. It was for the Council to consider all the information and decide whether there was a suitable and accessible education on offer to K. The Council has explained how it weighed up the evidence it had at that time. It had a clear plan of support from the school and set a time to review this in case there was not sufficient progress in returning to school. The Council has shown that it considered all the information it had, and made a decision based on that.
34. The Council reviewed its position when the school’s plan was not working, and it had more evidence from the psychologist and specialist teacher. It decided to make alternative educational provision for K.
35. It was for the Council to decide whether the alternative education it offered was suitable for K’s age, ability and aptitude, taking into account his needs.
36. The Council decided to take a graduated approach to K returning to school. It changed its original offer of online group learning to 1:1 online learning to take account of K’s need for a personalised approach. The Council has explained that this provision was intended to accommodate K’s anxiety about going to school, and there was nothing in the information it had received from the psychologist to say that K could not manage online learning.
37. The Council has explained that it always intended to increase the provision in time. It later offered small group in-person learning alongside the 1:1 provision at the teaching centre. The small groups were to encourage K to socialise in a structured environment. The Council says that it understood that K might find it hard to transition to this new setting and so it offered a flexible approach to introduce the learning centre gradually. It has shown that it kept its offer under review and later agreed to fund the college K was already attending.
38. Mrs B asked how K would travel to and from the learning centre. The law and guidance on home to school transport where the nearest suitable school is too far or not safe to walk to, can also apply to alternative provision commissioned by the Council. The Council told Mrs B that K was not at that time eligible for school transport but if he took up the place at the learning centre, it would refer the matter to its school transport team. The Council could have handled this better and explained how it would consider the matter in line with the law and government guidance. However, it will have passed this for proper determination by the specialist team and Mrs B would have been able to appeal any decision that team made.
39. I can see that from Mrs B’s and K’s point of view, it would have made most sense for the Council to fund the college place that K was already accessing. However, the Council has been able to show that it considered all the information it had and decided what alternative education provision would suit K’s needs. It has shown that it was flexible and open to reviewing its approach. In addition, I note that the Council explained its approach and reasoning to Mrs B. There was no fault by the Council.

Back to top

Decision

I find no fault.

Back to top

Investigator's decision on behalf of the Ombudsman