Summary: Mr X complained the Council failed to provide his child with a suitable fulltime education. Mr X said there has been an impact of the missed education, and it has also impacted his child’s mental health. Mr X said it caused unnecessary distress. We do not find the Council at fault.

The complaint

1. Mr X complained the Council failed to provide his child with a suitable fulltime education from September 2022.
2. Mr X said his child missed out on social experiences, and there has been an impact of the missed education. He said this has impacted his child’s mental health. Mr X said he has had to reduce his working hours, there has been increased financial pressure, and it has caused unnecessary distress and stress.

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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(i), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)

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What I have and have not investigated

7. Mr X complained the Council failed to provide his child, B, with a suitable fulltime education from September 2022. He complained to the Ombudsman in April 2024.
8. As I have said above, we cannot investigate late complaints unless we decide there are good reasons. Mr X said the reason he did not complain to us earlier was because he was trying to work with the Council, the school, and other agencies.
9. I do not consider there are good reasons for us to exercise our discretion and look back to September 2022. B stopped attending school in the summer of 2023. For this reason, I have decided that it is proportionate and appropriate to investigate one school year: from autumn term 2023 to the end of summer term 2024.

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How I considered this complaint

10. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
11. I considered the relevant legislation, case law, and statutory guidance, set out below.

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What I found

What should have happened

12. 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.
13. 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)

What happened

14. In early 2023, before the start of the scope of my investigation, Mr X’s child, B, had problems attending school. The school had a plan to reintegrate B back into school.
15. Later in 2023, the school agreed to provide alternative provision for B with a view to reintegrating them into school. Mr X complained to the Council.
16. The Council told Mr X what provision the school had put in place. It said the school had put alternative provision in place to help B transition back into school. It said there was a clear plan to reintegrate B.
17. Mr X then complained to the Ombudsman.

Analysis

18. The Council said it does not believe its section 19 duties to provide alternative education were triggered. This was because the school did not indicate it could not meet B’s needs, the school had a plan to reintegrate B, and the school had arranged alternative provision. The Council determined that the provision the school put in place was appropriate for B.
19. I have considered whether there was any fault in how the Council decided it did not have a duty to provide B alternative education. As I have said above, councils 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.
20. The Council decided the provision B’s school put in place, and its reintegration plan, were reasonably practicable for B to access. The Council found the provision on offer was available and accessible to B.
21. I have seen no evidence which persuades me the Council was wrong to decide its section 19 duties were not triggered. The Council was entitled to decide its section 19 duties were not triggered based on the provision the school put in place and the school’s reintegration plan. For this reason, the Council had no duty to provide alternative education to B.
22. For these reasons, I do not find the Council at fault.

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Final decision

23. I have completed my investigation. I do not uphold Mr X’s complaint. This is because there is no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman