Summary: Mrs X complains that the Council failed to provide alternative education provision to her daughter, Y. The Council is at fault as it failed to consider if it had a duty under section 19 of the Education Act to make alternative provision for Y. This fault caused distress and uncertainty to Mrs X but did not cause Y to miss education provision. The Council has agreed to remedy the injustice to Mrs X.

The complaint

1. Mrs X complains that the Council failed to provide alternative education provision for her daughter when she was unable to attend school. Mrs X says this caused significant distress to her and her family which has affected their health. It has also caused financial detriment as they have had to engage a solicitor to advocate for them and Mrs X has been unable to work.

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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 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)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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)
7. 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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What I have not investigated

8. I have not investigated the Council’s decision to name Y’s current school on her EHC Plans. This is because Mrs X had the right to appeal against these decisions to the SEND Tribunal and I consider it is reasonable to expect her to have exercised that right. The Ombudsman cannot direct changes to named educational placements as that is a matter for the Tribunal.

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How I considered this complaint

9. I have:

• Considered the complaint and the information provided by Mrs X;
• Made enquiries of the Council and considered the information provided;
• Given Mrs X and the Council the opportunity to comment on a draft decision and considered any received.

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What I found

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. (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. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

What happened

14. The following is a summary of the key facts relevant to my consideration of the complaint. It does not include everything that happened.
15. Mrs X’s daughter, Y, attended a mainstream primary school. From autumn 2022, she struggled to attend school due to severe anxiety. The Council’s records show the school notified it that Y’s absence was anxiety related and that it had agreed a reduced timetable. The school made a referral to the Council’s SEND Hub for additional support on strategies to manage Y’s reintegration. Specialist teachers and the school produced a reintegration plan for Y. The SEND Hub and school held regular review meetings to monitor the progress in supporting Y’s return to school.
16. Mrs X also applied for an education, health and care needs assessment in autumn 2022. The Council agreed to assess and issue a EHC Plan for Y. The Council issued the final EHC Plan in early May 2023 and this named Y’s primary school.
17. The Council’s records note that the school and Mrs X told the Council in June 2023 that Y was not attending school and she no longer had support from the SEND Hub. The school told the Council that it had arranged for Y to attend provision made by an outside provider for one session per week using her EHC Plan funding but she had struggled to engage. The school sent a further email in early July 2023 to say it had not been able to get Y into school and support from the SEND Hub had also not been successful. Emails between the school and Council show the school considered it could meet Y’s needs if she could attend.
18. The Council’s records show Mrs X asked it consult specialist schools for a place for Y. The Council’s records note it arranged to consult Mrs X’s preferred schools but informed Mrs X of the need for a reintegration plan for Y to attend her current school.
19. The school provided a part timetable for Y from September 2023 with support from the SEND Hub. The timetable provided Y should attend for 30 minutes per day for four days with one day at home. I understand Y did not attend school at all from October 2023.
20. In November 2023 Y had an assessment at a special school to see if it would meet her needs. The school considered it could offer a place for Y for September 2024.
21. The school arranged an early annual review of Y’s EHC Plan in December 2023. The record of the annual review notes the school considered it could not meet Y’s needs and that Y was unable to cope in a mainstream setting.
22. Mrs X’s solicitor also contacted the Council at this time. He raised that the Council had a duty to ensure Y received full time education so alternative provision needed to be put in place until she moved to a new placement.
23. The Council issued a draft amended EHC Plan in January 2024. The Council’s placement panel also considered what placement should be named on Y’s EHC Plan on a number of occasions between January and March 2024. It considered Y’s needs could be met at her current school with a more robust reintegration plan.
24. The school used the funding for Y’s EHC Plan to arrange alternative provision for her from January 2024 which I understand was for two sessions per week. The school applied for exceptional funding but the Council refused the application as it considered the school could meet Y’s needs.
25. In April 2024 the Council issued the final amended EHC Plan which named Y’s current school until the end of the academic year and Mrs X’s preferred specialist school placement from September 2024.

Complaint

26. In November 2023, Mrs X made a complaint to the Council that it had failed to make alternative provision for Y since autumn 2022. The Council responded in January 2024 and partially upheld Mrs X’s complaint. It said the SEND Hub had advised the school to make a referral to the Medical Education Service in December 2022 but this was not completed. It found alternative provision could have been made from December 2022.
27. Mrs X escalated her complaint to stage two of the complaints procedure but the Council declined to consider as it could not achieve a different outcome for Mrs X.
28. Mrs X considers the Council has failed to provide suitable education for Y for over a year. This has caused significant distress to Y and caused her to suffer ill health. Mrs X has also said it has caused significant distress to her and financial detriment to her family as she has been unable to work and she had to instruct a solicitor to represent them

Analysis

29. The law says that councils must arrange alternative education for children who are otherwise unable to attend school. On balance, I consider the Council did not give appropriate consideration to whether it had a duty under section 19 of the Education Act 1996 to provide education for Y.
30. The Council was aware from September 2022 that Y was struggling to attend school. I consider it was appropriate to allow a period of time to determine if the part time timetable and support from the SEND Hub would help Y return to full time education. The SEND Hub and the school also kept Y’s progress under review with regular review meetings.
31. But the Council was aware in June 2023 that Y was still on a part time timetable and was struggling to engage with school and the alternative provision made by the school. This was further confirmed by the school in July 2023. I am mindful that the school had said it could meet Y’s needs if she attended. But the Council was aware that Y was struggling to attend. There is no evidence to show the Council had considered taking enforcement action regarding Y’s attendance. So, on balance, I consider it must have considered Y had good reasons for her poor attendance. I therefore consider the Council should have considered at this time if the education was accessible to Y given her attendance problems and whether it had a duty under section 19 of the Education Act 1996 to provide alternative provision to Y. The failure to do so was fault.
32. The Council was aware in October 2023 that Y was still on a significantly reduced timetable at the school. There is no evidence to the Council considered if the education was accessible to Y and whether it needed to make alternative provision for Y while it consulted other placements. There is no evidence to show it reviewed whether the part time timetable was effective at reintegrating Y. She had been out of full time education for a year at this time so the Council should have given consideration to whether the reintegration strategies were working, considered the barriers to Y’s attendance and whether the education was accessible for her. Again, I note the Council did not take any enforcement action regarding Y’s poor attendance. So, on balance, I consider it must have accepted Y had good reasons for not attending school. The failure to consider if it had a duty under section 19 is fault.
33. The school said it could not meet Y’s needs at the annual review in December 2023. Mrs X’s solicitor also asked the Council to make alternative provision. Again, there is no evidence to show the Council considered its section 19 duty in response to the school’s position and the solicitor’s request. This is fault.
34. The Council also did not give proper consideration to whether it had a duty under section 19 to make alternative provision in response to Mrs X’s complaint. The Council’s stage one response to Mrs X’s complaint said that alternative provision could have been made from December 2022 if the school had proceeded with the medical education service referral. I am not clear on what basis the Council came to this conclusion. There is no evidence to show Y had a medical reason for her poor attendance so it is unlikely the medical education service would have accepted the referral. The issue the Council should have addressed was whether it had a duty to provide alternative education for Y as she was out of school for other reasons.
35. I cannot conclude, on balance, that the Council would have made alternative provision if it had considered its section 19 duty from June 2023 onwards. The Council subsequently decided the school could meet Y’s needs and named the school on her EHC Plan. The Council also refused the school’s exceptional funding request as it considered the school could meet Y’s needs. So, I consider, on balance, that it would have decided that the education was accessible to Y and its section 19 duty was not triggered even if it had considered the matter from June 2023 onwards. I therefore cannot say the fault by the Council caused Y to miss education. But the Council’s failure to consider its duty caused distress and uncertainty to Mrs X which the Council should remedy.
36. I am mindful that Mrs X considers the school could not meet Y’s needs. I cannot come to a view on whether the school could meet Y’s needs as it is not separable from the Council’s decision to name the school on Y’s EHC Plan. I explain above why I cannot consider this matter.

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Agreed action

37. The Council has agreed to:
1. Sends a written apology to Mrs X for the distress and uncertainty caused by its failure to consider if it had a duty under section 19 of the Education Act 1996 to make alternative education provision for her daughter Y. 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.
2. Make a symbolic payment of £400 to Mrs X to acknowledge the distress and uncertainty caused.
3. By training or other means, remind officers that they should consider if the Council has a duty under section 19 of the Education Act 1996 to provide alternative education provision when a child is not attending school for a period of time and strategies to reintegrate them have been unsuccessful.
38. The Council should take the action at a) and b) within one month and the action at c) within two months of this final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

The Council was at fault and this caused injustice to Mrs X. The Council has agreed to the recommendations made to remedy the injustice so I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman