Summary: Mrs X complains the Council failed to provide alternative provision after her son Y, become a school refuser. We have concluded our investigation having made a finding of fault. There were periods when the Council failed to ensure Y was receiving alternative provision, and I have not seen evidence the Council appropriately considered its section 19 duty. We also found fault after matters drifted when attempting to secure a placement for Y to begin in September 2022. Further, we found that Mrs X was not always kept informed, and there were instances when the Council failed to respond to Mrs X. The Council have agreed to our recommendations.

The complaint

1. Mrs X complained the Council failed to act to provide an alternative education after her son Y, became a school refuser. Mrs X also complains about poor communication from the Council during the period of complaint. Mrs X says this has impacted Y’s education mental wellbeing and has been stressful for her family. Mrs X would like the Council to provide a remedy for the injustice imposed on Y and her family, and to ensure a placement agreed for Y.

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The Ombudsman’s role and powers

2. 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(i), as amended)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. The Ombudsman has liaised with Mrs X and considered the information she provided. The Ombudsman also made enquiries to the Council and considered the information it provided in response. I invited Mrs X and the Council to comment on my draft decision and considered any comments that were submitted before making a final decision.

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What I found

Relevant law and guidance

Alternative provision

6. 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.
7. 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)
8. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established 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. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ 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”.
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 it decides 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. 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’)
13. 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?’ July 2022)
14. We made seven recommendations. Councils should:
• consider the individual circumstances of each case and be aware 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;
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible, therefore, retaining oversight and control to ensure duties are properly fulfilled.

Special Educational Needs

15. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. It will ‘name’ a school or type of school which the child will attend.
16. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. This includes the content of EHC plans. We refer to it as the SEND Tribunal in this decision statement.
17. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This restriction applies from the date the appeal right arose to the date of the appeal hearing.

Good administrative practice

18. The Ombudsman has issued guidance on good administration called “Principles of good administrative practice”. The guidance says we expect councils to be open and accountable. This includes keeping proper and appropriate records.

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What happened

19. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.

Background

20. Mrs X’s child, Y, has a diagnosis of Autistic Spectrum Disorder, Epilepsy and Developmental Coordination Disorder.
21. Leading up to this complaint, Y was attending School A, a specialist autism school. Mrs X says that due to a lack of educational stimulation, Y stopped attending School A in June 2021, due to an impact on his mental health.
22. Y had an EHCP, but I understand Mrs X felt this did not reflect the person Y was at present. It was Mrs X’s view that Y’s needs in School A were not being met.

Events beginning June 2021

23. In June 2021, an annual review meeting was held. It is documented that Mrs X had requested a change of placement for Y to a specialist school that would enable him to achieve GCSE qualifications, something he was unable to achieve at School A.
24. Between June and July 2021, Mrs X contacted the Council confirming she wished for Y to be placed at School B.
25. In August 2021, the Council agreed with Mrs X that it commence a consultation for School B, but could not confirm the placement would be authorised if Y’s needs could be met in a locally maintained school.
26. In September 2021, the Council updated Mrs X regarding the consultation for School B. The Council informed Mrs X that in the interim, Y should still be attending School A. Mrs X informed the Council that School A had acknowledged it was unable to meet Y’s needs, and that Y would not be attending School A due to the impact on his mental wellbeing. Mrs X confirmed she would be happy to explore other placements for Y.
27. In mid-September 2021, the Council spoke with School A, who confirmed it was unable to meet the needs of Y. The Council also began a consultation with School C, for Y to start immediately.
28. Later in September 2021, following a request from Mrs X, the Council sent her the draft EHCP for Y.
29. Toward the end of September 2021, School B confirmed it was unable to offer Y a placement. Mrs X chased an update from the Council regarding whether it had received a response, but the Council did not respond to Mrs X.
30. In mid-October 2021, School D confirmed it was unable to offer Y a placement. I cannot see that the Council informed Mrs X.
31. In November 2021, the Council contacted School E to discuss a placement for when Y. Mrs X wanted assurances that there would be an available place before commencing the assessment process.
32. In January 2022, the Council held a meeting with School A. Following this meeting, the Council said it would assess the appropriateness of alternative provision given Y was not attending School A and had not yet secured a placement at a different school.
33. It is also noted that School B offered outreach support for Y, with a view to support Y’s transition to School E, but this had not been accepted as Y’s placement had not been confirmed.
34. Later in January 2022, School E offer a provisional place for Y to begin attending in September 2022. A referral is also made for Y to begin at Learning Centre A and a decision made to consult alternative provision providers for an immediate start.
35. Later in January 2022, assessments visits with School E and Learning Centre A are arranged.
36. At the end of January 2022, the Council consulted with Learning Centre B for an immediate start, to prepare Y for a placement in September 2022.
37. In February 2022, Mrs X contacted the Council regarding changes to Y’s EHCP. Mrs X also informed the Council that the assessment visits at School E and Learning Centre A did not go ahead, as Y had found it difficult to leave the house. The Council also confirmed with Mrs X about the feasibility of home tutoring. Mrs X confirmed it would be okay, provided one tutoring would be support Y.
38. At the beginning of March 2022, the Council arranged alternative provision for 15 hours of support from Provider A, and 10 hours of support from Provider B. The Council says it will give notice to Portfield of Y’s placement ending. Alternative provision for Y begins a week later.
39. At the end of March 2023, the Council issued Y’s final EHCP.
40. Toward the end of April 2022, Mrs X contacted the Council regarding the tutoring arrangements for Y. Mrs X expressed that she was unhappy with having two tutors as this was challenging for Y. Mrs X also informed the Council that Y could not manage more than 15 hours of education a week. During period School E formally offer Y a placement from September 2022.
41. At the end of April 2022, the Council begun a consultation with School F regarding a placement for Y to begin in September 2022.
42. The Council notes that Learning Centre A has informed it that Mrs X either refused or did not turned up for any of the arranged assessments.
43. In May 2022, the Council contacts Mrs X to inform her that it is important assessment offers are undertaken, as a placement at School E was not guaranteed.
44. In June 2022, alternative provision from Provider A and Provider B is agreed until the end of summer term in July 2022.
45. Later in June 2022, Mrs X contacts the Council for an update regarding a permanent placement for Y from September 2022. Mrs X queries whether it will name School E on Y’s EHCP. The Council informs Mrs X that it must look at the feasibility of all settings. The Council acknowledges that although Learning Centre A did not have animals on site, it could commission a service to allow Y the opportunity to spend time with animals.
46. In July 2022, the Council sent Mrs X a placement offer from School F, asking Mrs X to arrange a visit from the school directly.
47. In August 2022, Mrs X contacted the Council to confirm when tutoring would continue for Y. Mrs X expressed concern that the tutor who had been working with Y had been reassigned elsewhere. The Council responded in September 2022 to inform Mrs X that tutoring had been commissioned for the first half of the autumn term, and that staff availability was outside the control of the Council.
48. In early-September 2022, the Council informed Mrs X that it had not secured the tutoring for Y, and that Y would be assigned a new case officer. Mrs X contacted the Council to chase an update, The Council responded to Mrs X to advise her it had begun a consultation with School H, who could offer animal care courses. The Council also informed Mrs X that tutoring for Y had been commissioned until October 2022.
49. Frustrated that the Council had still not agreed a placement for Y, Mrs X responded, querying how alternative provision provided by Provider A was sustainable to meet Y’s needs long term, as set out in his EHCP. Mrs X expressed concern with the lack of securing a placement for Y. Mrs X also expressed further concern with the Council’s suggestion of an animal care course as Y only required the presence of animals to help regulate himself, rather than study about animals directly. Mrs X explained that this would not be suitable for Y.
50. In mid-September 2021, the Council spoke again with School C, who confirmed it was unable to meet the needs of Y.
51. Later in October 2022, Mrs X contacted the Council to inform it that the visit to School H had not been success, and that School H was not suitable for providing Y with the academic qualifications he wished to pursue.
52. In mid-October 2022, the Council accepted a placement at School E. Y shortly after started school at School E.

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Analysis

Alternative provision

53. I consider the Council were alerted to a potential problem with Y that needed exploring in September 2021 when Mrs X said that Portland could not meet Y’s needs and that Y was no longer attending. At this point, it could have started the process of exploring Y’s situation and whether the section 19 duty applied. The failure to consider starting this process is fault.
54. I consider these failings caused an injustice as there was a lost opportunity for the Council to decide whether it needed to arrange alternative provision when Y stopped attending school. It also caused uncertainty about whether alternative provision could have been arranged at this point. Alternative provision was not formally put in place until March 2022, meaning that Y was without any form of education for 6 months between September 2021 and March 2022, and this is fault.
55. Matters concerning alternative provision for Y appear to have first been raised in January 2022. The Council appear to have focused on finding Y an immediate placement. In any event, this does not relieve the Council of its section 19 duty.
56. Overall, and on balance, I am satisfied the Council failed to show it properly, and proactively, considered whether it had a duty to provide alternative education to Y. The Council had to consider if this duty had arisen in Y’s case. When considering this, I would expect evidence to show:
• it had made a decision that it would or would not make provision. There is no written record showing the Council had reached a decision;
• what it took into account when reaching this decision including all the circumstances of the case;
• it took account of the provision the school made at the time and whether this was suitable and reasonably practicable for Y to access. This would mean asking the school for details of what it was doing, what work was being given to Y, and how, so it could decide whether this provision was adequate; and
• it communicated this decision to the school and Mrs X.
57. The evidence suggests there was an absence of a clear and defined process that was followed.

Suitability of the alternative provision provided to Y

58. I do not have any concerns with the suitability of the alternative provision provided to Y from March 2022. The Council commissioned a total of 25 hours. I understand that Mrs X said that Y was unable to handle any more than 15 hours of tutoring, and was therefore only using the services of Provider A.
59. Further, I have not seen any objection from Mrs X about the alternative provision Y provided to Y from March 2022 onwards, and it was understood that the arrangement would support Y with his transition to a new placement at the beginning of the academic year in September 2022. Mrs X also expressed positive progress with Y and his tutor from Provider A.

Securing a placement Y

60. It is clear that since August 2021, the Council had begun consultations with a range of educational settings with a view to finding either immediate and/or a future placement for Y.
61. The Council contacted a number of educational settings, including those Mrs X expressed a preference for. From the evidence available to me, I can see the Council contacted a total of ten different educational settings, all with varying degrees of success. Some educational settings said they were unable to meet the needs of Y, and some educational settings set up assessment visits, which Mrs X, on occasion, did not engage with. On balance, I accept this this is likely to have impacted upon securing Y a placement, but was not the significance cause of failing to secure Y a placement in time for September 2022.
62. I understand that Mrs X had concerns with the suitability of some of these placements, expressing concerns with the curriculum being offered and how this would meet the needs of Y. I note that School B and School E, which Mrs X expressed a preference for, offered places in January 2022, and April 2022 respectively, for Y to start in September 2022.
63. In Mrs X complaint, she expressed concern that the Council appeared reluctant to agree to place Y at one of these schools, in preference of a more cost-effective option. The Council explained to Mrs X that it had a duty to consult alternative schools and to consider the cost of any placement including the additional cost of transport to those settings. I do not have any concerns with the Council consulting a number of educational settings, and accept it is the Council’s duty to consider the suitability of all placements before making a decision.
64. Much of the Council’s effort to consult with different educational settings and secure a placement for Y took place between September 2021 and July 2022. As set out in our Focus Report, detailed in paragraph 13, we expect plans to be kept under review and not allow cases to drift if plans are not successful.
65. I cannot see any evidence of action taken by the Council between July 2022 and September 2022, until it consulted with School H. The Council allowed matters to drift despite the upcoming academic year beginning in September 2022 and having placement offers for Y. This is fault.
66. Further, despite not having agreed a placement for Y in time for the new academic year, alternative provision had also not been put in place from September 2022. Although the Council quickly resolved this, I have made a further finding of fault.

Keeping Mrs X suitability informed

67. There were occasions when the Council did not respond to emails sent by Mrs X. There were also occasions where the Council did not keep Mrs X suitability informed at all stages of the consultations taken place. This is fault.
68. The Council acknowledges that on occasion, it did not respond, nor keep Mrs X suitably informed. The Council says it experienced high level of staff turnover, and staff sickness and leave contributed to a lack of communication from the service.
69. The Council says it has since recruited a number of permanent case officers with a view to improving communication with families and its service users. The Council also says that existing staff members have also received been retrained on their roles.

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Agreed action

70. I have considered our guidance on remedies. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of circumstantial factors. I have arrived at a figure of £1,275 per term. In arriving at a figure within the suggested range, I have considered:
• the severity of Y’s SEN as set out in his EHCP.
• the absence of any education provision provided during the period with which I have found fault; and
• the significance of the period concerned with regard to Y’s school career.
71. Using the figure described in paragraph 70, and fault found as described in paragraph 54 for the period September 2021 - March 2022, I have arrived at an amount of £2,040.
72. To prevent similar occurrences, and remedy the injustice caused to Mrs X and Y, the Council should:
1. Pay Mrs X an amount of £2,040 as a symbolic payment to acknowledge the lost education for Y.
2. Pay Mrs X an amount of £300 to acknowledge the distress caused as a result of not keeping Mrs X suitability informed and failing to respond to correspondence she sent it. Also for further, distress caused through inconvenience in matters complained about.
3. Provide a written apology to Mrs X and Y, in line with our guidance on remedies, to acknowledge the injustice imposed upon her, and Y.
4. Review its out of school procedures to ensure it meets its duties to secure alternative provision. The Council should inform the Ombudsman of the outcome of its review.
73. The Council will complete action points a, b and c within one month of the Ombudsman’s final decision and action point d within two months of the Ombudsman’s final decision.

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Final decision

74. I have concluded my investigation having made a finding of fault. There were periods when the Council failed to ensure Y was receiving alternative provision, and I have not seen evidence the Council appropriately considered its section 19 duty. We also found fault after matters drifted when attempting to secure a placement for Y to begin in September 2022. Further, we found that Mrs X was not always kept informed, and there were instances when the Council failed to respond to Mrs X. The Council have agreed to our recommendations.

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Investigator's decision on behalf of the Ombudsman