Summary: Mrs X complained the Council did not provide alternative education for her daughter, Y, when she informed the Council Y would be out of school. Mrs X said Y has missed out on education. There was fault in the way the Council did not provide any education for two academic terms. Mrs X suffered frustration and Y missed out on education. The Council should apologise, make a financial payment and remind staff of the Council’s duty to children missing education.

The complaint

1. Mrs X complained the Council did not provide alternative education for her daughter, Y, when she informed the Council Y would be out of school. Mrs X said Y has missed out on education.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. I have exercised discretion to consider events in this case back to September 2021. I reference events prior to this for context in this matter. I have seen Mrs X complained to the Ombudsman about this matter in May 2022 and we directed her back to the Council to consider this complaint. The Council did not consider this complaint until after the tribunal process was completed in early 2023.

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How I considered this complaint

7. I read Mrs X’s complaint and spoke to her about it on the phone.
8. I considered information provided by Mrs X and the Council.
9. 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

Background information

10. 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.
11. 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)
12. 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)
13. 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.
14. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
15. 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”.
16. 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”.
17. 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))
18. 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)
19. 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’)
20. 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
21. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
22. The legislations states that before prosecuting parents, the council must consider whether they should apply to the court for an Education Supervision Order (ESO). An ESO is placed on the child and the council is appointed by the court to supervise that child’s education, either at school, or at home for a specified period.
23. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
24. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
25. The courts have established that if someone has or could have lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

What happened

26. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
27. Y has complex special educational needs and anxieties. Mrs X reported she found it difficult to get Y to attend primary school.
28. Mrs X said when Y transitioned to secondary school in September 2021, she was only able to attend for two days as she could not cope with mainstream schooling.
29. The Council recorded Y was not attending school. The Council logged a telephone call with the school, who recorded the absence as unauthorised. The Council noted it did not need to take any action.
30. Mrs X applied for an EHCP for Y in the middle of September 2021, having been unsuccessful in a previous application in March 2020.
31. The Council agreed to complete an EHCP assessment for Y in October 2021.
32. The school met with Mrs X in November 2021. The school put in place an attendance plan for Y. Mrs X requested alternative provision from the Council.
33. The school contacted the Council in December 2021 asking for advice about Y’s attendance. Mrs X reported to the Council, school were not pursuing attendance proceedings given Y’s circumstances.
34. The Council assessed Y’s needs and declined to issue an EHCP at the end of December 2021. The Council advised Mrs X the information she had provided did not meet the legal threshold for an EHCP.
35. Mrs X advised the Council she would appeal against its decision not to issue an EHCP. Mrs X contacted the tribunal service and received a provisional date in May 2022 to consider the matter.
36. In January 2022, the school asked the Council for advice about Y’s attendance again. The Council said the Children’s and Adolescent Mental Health Service (CAMHS) needed to say if Y was unfit to attend school and required tuition.
37. In February, Mrs X provided a letter from Y’s doctor detailing her needs, supporting her EHCP application and raising concerns Y had not received an education from September 2021.
38. The school submitted a referral form for a specialist provision for Y in March 2022. The Council held a panel meeting about the referral for specialist provision but requested further information.
39. The Council held another panel meeting in April 2022 and agreed to contact its placements team to source a placement for Y.
40. The Council agreed to issue an EHCP for Y in April 2022 prior to the potential tribunal date in May 2022. The Council issued a draft plan which named the mainstream school Y had not been able to attend for eight months. Mrs X disagreed with the draft plan and met with the Council to discuss her concerns. The Council proceeded to issue the final EHCP on the day of the meeting, naming the mainstream school. The Council provided Mrs X with details how she could appeal to the tribunal.
41. Mrs X appealed to the tribunal in May 2022 and requested the contents of the plan and placement were amended.
42. Mrs X complained to the Council in May 2022. She complained Y could not engage with social workers or CAMHS due to her complex needs. Mrs X said Y had not received any education for nine months. The Council refused to consider the complaint until Mrs X had been to the tribunal.
43. The Council responded to Mrs X’s complaint in March 2023 following the tribunal hearing. The response said Y’s school had a duty to support her and indicated CAMHS said she was medically fit for school, the Council acted appropriately. The Council advised it had offered Y online learning, but she refused.
44. Mrs X requested the Council escalate her complaint and the Council responded in April 2022. The response said Y’s absence was unauthorised and she was on roll at a school which had the duty to Y.
45. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to admit it did not seek alternative provision as it should have and take responsibility for not providing any education for Y. She would like the Council to compensate her for Y’s missed education.
46. In response to my enquiries the Council stated it offered Y tuition as an interim measure until the outcome of the tribunal, but Mrs X declined this support. The Council also stated it did not have a responsibility to provide education after 15 days at the time of the complaint, as the legislation recently changed.

My findings

47. The law requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council was aware Y was not attending school in September 2021. It should have ensured Y received education provision from this time or taken steps to secure her attendance. The Council has done neither. This is fault and Y has missed provision for two academic terms.
48. The Council stated it offered education and this was turned down. The evidence it has provided of this is a copy of an email from September 2022. The email does not say when any education was offered. This does not evidence the education was offered and turned down. The email was sent five months after the dates I am considering and does not evidence the Council has completed its duty owed to Y.
49. It appears from the complaint correspondence and in its response to our enquiries, the Council has fundamentally misunderstood its legal duties to arrange suitable education in these circumstances. The Council cannot delegate its duty to arrange a suitable education for Y.
50. It is for the Council to decide what education is suitable, although it should be full-time, unless the physical or mental health of the child is such that full-time education would not be in his or her best interests. There is no fixed definition of full-time education, but it should be equivalent to the education they would receive in school. It is recognised where a child receives one to one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
51. The Council did not ensure Y was provided with an education suitable to her ability. This was a critical year for Y’s education as she was transitioning to secondary school. This is fault and has led to Y missing out on education during a transition year.
52. As explained at paragraph 27, once an appeal right is engaged, we cannot consider matters which can be dealt with by an appeal to the tribunal. We can therefore only recommend a remedy for missed education for two academic terms from September 2021 until the Final EHCP was issued in April 2022.

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Agreed action

53. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for not ensuring she received education for two academic terms. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mrs X £300 as an acknowledgement of the distress and frustration in this case.
• Pay Mrs X £4,000 for not providing Y with a suitable education for two academic terms. This money should be used for Y’s benefit.
• Ensure staff are aware of the Councils statutory obligation and those of the school as detailed in the Education Act 1996 to ensure a child receives a suitable education if they are unable to attend school.
54. The Council has agreed to take the following action within three months of my final decision:
• Review its policies and procedures to ensure the Council retains oversight and responsibility for its duties to children unable to attend school.
55. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

56. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman