Summary: Mrs B complained that the Council failed to provide a suitable alternative education for her daughter C since she started attending her current school in January 2025. We have not found fault with actions of the Council.

The complaint

1. Mrs B complained that Devon County Council (the Council) failed to provide a suitable alternative education for her daughter C since she started attending her current school in January 2025.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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)

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What I have and have not investigated

5. I have investigated the events from 6 January 2025 when C started at the school to 7 April 2025 when Mrs B complained to us.

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How I considered this complaint

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

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What I found

Alternative educational provision

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. 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.
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. 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 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)
12. In cases where illness is the reason the child cannot attend, the Council should consider alternative provision after 15 days of absence.

Part-time timetables

13. 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. 
14. 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.

What happened

15. Mrs B’s daughter C started at a new school on 6 January 2025. She struggled to attend due to anxiety. From 14 January the school introduced a part-time timetable of an hour each day with occasional afternoons, aiming at a slow transition to full-time attendance. The school said she was welcome to attend at any other time.
16. The timetable was discussed at a multi-agency meeting (including the Council and Mrs B) on 30 January. The outcome of this was to continue with the reduced timetable with a number of strategies and suggestions to encourage C’s increased attendance.
17. On 6 February, Mrs B requested alternative provision as C was unable to attend school due to severe anxiety. On 21 February Mrs B complained about the lack of alternative provision.
18. On 28 February the reduced timetable was reviewed and increased to 12.35 hours a week with an aim to review it on 18 March. The school sent a formal notification of the reduced timetable to the Council which said Mrs B agreed to the reduced timetable.
19. On 10 March Mrs B provided a letter from C’s GP supporting alternative provision saying she had been privately diagnosed with severe anxiety and was undergoing assessments for neurodiversity on the NHS.
20. C’s last attendance at school was on 13 March.
21. On 16 March the Council responded to Mrs B’s complaint. It said it considered the current educational provision was accessible with reasonable adjustments and was the most suitable based on C’s attendance history. It said there was currently no evidence that met the medical inclusion threshold, but the Council needed to do more work with the school around the Offsite Alternative Inclusion Programme before considering alternative provision. An education, health and care needs assessment was underway involving mental health services. It noted further evidence had been sent in requesting alternative provision and the case would be considered at the next section 19 Panel. The Council did not uphold the complaint and referred Mrs B to our service.
22. On the 18 March at a second multi-agency meeting, it was agreed that the C’s needs were not being met and that a referral for section 19 alternative provision should be made.
23. On 27 March Mrs B responded to the complaint. She explained that C’s attendance was now zero and that the recent multi-agency meeting agreed that the school was not meeting C’s needs. On 31 March the mental health service submitted a report saying that C was unable to attend school due to a long-term illness. She was awaiting an occupational therapy assessment and parental intervention sessions.
24. On 3 April the section 19 Panel considered alternative provision. It refused saying that the health plan and treatment plan were unclear and her needs were not demonstrated to be a treatable medical condition. The barriers to education appeared to be long term unmet special educational needs and the therapist evidence supported school-level provision. The Panel made further suggestions of support the school could provide supported by the Council.
25. Mrs B complained to us on 7 April 2025.

Findings

26. I have not identified fault in the Council’s actions between 6 January and 7 April 2025. It is a relatively short period of three months, during which all parties including the Council and Mrs B, agreed to a reduced timetable for C. When Mrs B first requested alternative provision, the reduced timetable had been in operation for less than three weeks. It was reviewed on 28 February 2025 after 6 weeks and an increase in hours was agreed by all parties until 18 March 2025. I consider this was a reasonable approach in line with the guidance to encourage C’s reintegration into school, in total for a two month period.
27. After C stopped attending school completely on 13 March, the Council on 16 March considered section 19 provision in response to Mrs B’s complaint. It concluded that there was no evidence to support alternative provision on medical grounds but said new evidence recently received would be considered by its section 19 Panel. It concluded the education offered by the school at that time was suitable and accessible. This was a decision for the Council to make based on the evidence. I have not found fault with the way it was made.
28. Less than three weeks later the Council’s Panel considered alternative provision but declined, giving reasons for its decision and offering suggestions. There was no delay and no fault in the way the decision was reached.
29. Mrs B complained to us immediately after this decision was made and I am unable to consider any events after that date (7 April 2025).

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Decision

30. I find no fault.

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Investigator's decision on behalf of the Ombudsman