Summary: Mrs P complained the Council did not make arrangements to receive alternative provision when her daughter’s attendance at school deteriorated. We do not consider the Council was at fault for its decision not to arrange alternative provision, but we find fault for the Council’s extensive delays in responding to Mrs P and for arranging a meeting it had promised, which caused distress, frustration and uncertainty. The Council has agreed to apologise and offer a financial remedy to reflect this.

The complaint

1. I will refer to the complainant as Mrs P.
2. Mrs P complains about the Council’s handling of matters concerning her daughter, G’s, education. Specifically, she says:

• the Council did not make arrangements for G to receive meaningful alternative educational provision, after a deterioration in her attendance due to her mental and physical health needs; and
• there were significant delays in the Council’s consideration of and response to her formal complaint.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

7. I considered evidence provided by Mrs P and the Council as well as relevant law, policy and guidance.
8. I also shared a draft copy of this decision statement with each party for their comments.

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What I found

9. G has a physical disability as well as learning difficulties. She was attending a mainstream school, but Mrs P says her attendance started to deteriorate in March 2022. In November 2022, Mrs P asked the Council to carry out an education, health and care (EHC) needs assessment for G, which it agreed to do.
10. On 15 March 2023 the Council decided it would not issue an EHC plan for G.
11. On 20 March, Mrs P contacted the Council’s special educational need (SEN) team to highlight F’s low school attendance. The SEN team advised Mrs P to contact the Council’s Inclusion Support Service (ISS), which she did on 29 March. Having received no response, Mrs P emailed the ISS again on 28 April.
12. On 17 May G’s school contacted the SEN team, to ask for advice about G’s attendance. The SEN team also signposted the school to the ISS, which the school contacted on 19 May. The ISS allocated an officer to respond to the school.
13. On 6 June, having still had no response from the ISS, Mrs P emailed it a third time.
14. On 9 June the ISS officer attending a meeting with the school. She noted G’s absences were related to her physical condition and the treatment she was receiving for it. As she was still regularly attending school, the officer decided it was not appropriate to make a medical referral, and that it was for the school to provide support instead.
15. Mrs G submitted a stage 1 complaint to the Council on 13 June. She said:

• G’s attendance at school was 85-86%, which was having a significant impact on her academic performance;
• she had passed the 15-day trigger point for the Council’s duty under section 19 to apply, and would often miss lessons even while attending school;
• the school had failed to provide the proper care and support G needed for her conditions;
• she had appealed against the Council’s decision not to issue an EHC plan;
• G’s mental health was suffering and she needed alternative educational provision to help her catch-up with the schooling she had missed.

16. The Council responded on 7 July. It said:

• the ISS would arrange a meeting with Mrs P and the school before the end of term, to agree a plan to help G attend school more by making reasonable adjustments;
• it did not agree G had significant learning difficulties, requiring support beyond what was already available at school.

17. On the same day Mrs P replied, confirming she wished to attend a meeting with the ISS. The ISS also contacted the school to make arrangements for the meeting, although the Council says it did not receive a response to this.
18. In September the Council issued G’s draft EHC plan, and on 2 November it issued the final plan, which triggered Mrs P’s right of appeal. She subsequently lodged an appeal with the SEND Tribunal about sections B, F and I of the plan.
19. Mrs P says G stopped attending school entirely around this time.
20. On 7 November Mrs P submitted a stage 2 complaint. She said there were crucial elements missing from the draft EHC plan, including the extra provision Mrs P felt G needed to make up for the lessons she had missed. Mrs P reiterated the Council had a duty to arranged alternative provision for G, and complained the ISS had failed to arrange the meeting it had proposed in its response to the stage 1 complaint.
21. The Council responded to the stage 2 complaint on 27 December, saying it was in the process of arranging a meeting between Mrs P, the school, the ISS and the SEN team, and that it would confirm the date of this meeting by 12 January 2024.
22. The Council arranged a meeting with Mrs P on 1 March. Mrs P says the outcome of the meeting was an agreement that G needed alternative provision, and the Council said it would liaise with the school to create a plan for this.
23. On 19 April Mrs P submitted a stage 3 complaint. She said the Council had delayed arranging a meeting with the school until 28 March, and that, despite assuring her it would send a copy of the action plan to her within two weeks, she had still not received anything. Mrs P said G had received no substantive education at all since November, and was only attending two brief mentoring sessions each week. She reiterated the impact this was having on G’s welfare and criticised the Council for failing to discharge its duties towards her.
24. Having received no response, Mrs P approached the Ombudsman on 22 May. We referred her complaint back to the Council for a response to the stage 3 complaint.
25. The Council issued its stage 3 response on 2 September. It said, although Mrs P had said she had been raising concerns about G’s attendance since March 2022, the ISS had only become aware of the situation in June 2023, and since it had been “actively involved in addressing [G’s] educational needs”.
26. The Council said it had made efforts to develop an alternative education plan since the meeting in March. However, it had now named a specialist school for G to start at in September, and the school would be responsible for implementing all elements of G’s EHC plan.
27. The Council explained the statutory guidance on section 19 says schools should manage the health needs of children who are able to attend, and that councils’ duty to arrange alternative provision applies when health needs prevent a child from receiving suitable education at school. However, the Council acknowledged there had been delays in its provision of support in this case and partially upheld Mrs P’s complaint.
28. The Council also upheld Mrs P’s complaint because of its inadequate communication with her, in particular the significant delay in arranging the meeting it had proposed in the stage 2 response; and because it agreed the EHC plan it had issued did not fully reflect G’s needs.

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Legislative background

29. 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.
30. 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)

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Analysis

31. Mrs P’s complaint to the Council, and subsequently to the Ombudsman, covers an alleged failure by the Council to arrange alternative provision for G, from the point her school attendance began to falter in March 2022. Mrs P also complained about the content of the EHC plan, which she considered to be inadequate for G’s needs.
32. However, our jurisdiction to investigate Mrs P’s complaint is limited by two factors.
33. First, the law says a person should approach us within 12 months of becoming aware of the issue they wish to complain about. Mrs P approached us in May 2024, meaning any event predating May 2023 is late by this rule.
34. We have discretion to disapply this rule, where we consider it appropriate, but first we must be satisfied there is a good reason for the complaint to be late. In this case though, I do not consider Mrs P has provided such a reason, and so I will not exercise discretion to investigate events back to March 2022. However, for the sake of practicality, I will consider events from March 2023, which is when Mrs P first contacted the ISS.
35. Second, the law says we cannot investigate any matter which has been subject to an appeal to a tribunal, or anything intrinsically linked to a matter which has been subject to such an appeal.
36. Upon receipt of the final EHC plan in November 2023, Mrs P submitted an appeal about sections B, F and I to the SEND Tribunal. Section F of an EHC plan sets out the specialist provision which will be made for the child or young person, while Section I names their educational placement.
37. This means Mrs P’s complaint about the provision set out in G’s plan is outside of our jurisdiction, because she asked the Tribunal to consider it. This remains the case, even acknowledging the Tribunal has now upheld Mrs P’s appeal.
38. It also means I cannot investigate the Mrs P’s complaint about alternative provision from the point her appeal right was triggered. This is because the Council had issued an EHC plan naming G’s (then current) mainstream school as her educational placement, and so the question of whether she should be attending there was now for the Tribunal to address. We cannot consider whether the Council should have been arranging alternative provision for the same period without overlapping with the Tribunal’s role.
39. This remains the case, even though the appeal is now resolved and a specialist school placement named on G’s EHC plan.
40. However, I can investigate the Council’s handling of the alternative provision element before the issue of G’s EHC plan and the triggering of the appeal right.
41. On 20 March 2023 Mrs P contacted the SEN team, to raise the issue of G’s deteriorating school attendance. In response, the SEN team advised her to contact the ISS, which is the Council’s team which deals with attendance issues for children without an EHC plan.
42. G did not have an EHC plan at the time, and this was therefore correct, but it would have been better if the SEN team had referred G’s case directly to the ISS itself, rather than signposting Mrs P. I note the SEN team did this again in May after a similar query from the school.
43. The Council has acknowledged this in response to my enquiries, and offered to pay Mrs P £100 to reflect her time and trouble arising from it. This is positive; but, if it has not already done so, I consider the Council should also issue a reminder to staff in the SEN team to make direct referrals to the ISS when appropriate.
44. Putting this point to one side, even once Mrs P had contacted the ISS on 29 March, the Council’s records show she did not receive any reply or acknowledgement. She chased the ISS for a response on 28 April, and again 6 June, but the ISS did not reply to either; and this was despite the fact it had responded to school by that point, and indeed had arranged a meeting for 9 June. From what I can see, the first time the ISS contacted Mrs P herself was in its response to her stage 1 complaint on 7 July, more than three months after her first message.
45. In that response, the ISS explained it had decided the school should manage G’s absences, but said it would arrange a meeting with Mrs P and the school, to draw up an action plan to support G. Mrs P responded on the same day to confirm she would attend the proposed meeting.
46. But it then took the ISS until 1 March 2024, almost eight months later, to actually arrange this meeting. This was an extraordinary delay; made more so by the fact the Council promised to arrange the meeting again as its response to Mrs P’s stage 2 complaint in December.
47. I will turn shortly to the Council’s actual decision on its section 19 duty, but these delays and failures to respond to Mrs P represent a significant fault in themselves. I am conscious the Council recognised this in its response to Mrs P’s stage 3 complaint, but in doing so it offered her neither an apology, nor any remedy to reflect the obvious distress and frustration it had caused her. I consider it should do both.
48. With regard to the Council’s substantive decision, I will reiterate I am only able to investigate the period before November 2023.
49. Statutory guidance (Arranging education for children who cannot attend school because of health needs) says, on page 7:

“Where possible, the child’s health needs should be managed by the home school so that they can continue to be educated there with support, and without the need for the intervention of the local authority. However, as soon as it is clear that the home school can no longer support the child’s health needs and provide suitable education, the school should speak to the local authority about putting alternative provision in place.

“There is no absolute legal deadline by which local authorities must start to arrange education for children with additional health needs. However, as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the local authority should arrange suitable alternative provision. The 15 days may be consecutive or over the course of a school year.

“When a local authority arranges alternative education, that education should begin as soon as it is possible, and at the latest by the sixth day of the child’s absence from school. Where an absence is planned, for example for a stay or recurrent stays in hospital, local authorities must make suitable, timely arrangements, unless exceptional circumstances apply, in advance to allow provision to begin from day one.”

50. Unfortunately this means the Council’s duty was somewhat ambiguous, when it came to G’s situation.
51. Mrs P had made clear that G’s absences had cumulatively reached the 15-day trigger point. Although I have no way to verify this independently, I also have no reason to doubt it; and, under the guidance, this meant the Council had a duty to arrange alternative provision for her.
52. The school had informed the Council that most of G’s absences were for scheduled hospital appointments, along with a day to recover from her treatment after each appointment. Again, this appears to fall into the scenario described in the guidance, whereby the Council should make “suitable, timely arrangements” for planned and recurrent hospital stays, with the aim of arranging alternative provision to start immediately.
53. However, equally, the guidance encourages councils not to intervene when it considers a child’s health needs can be effectively managed with support from their school. It is clear the Council believed this to be the case.
54. And I cannot overlook the obvious impracticalities of arranging alternative provision for a child in G’s position at that time. She was still going to school consistently, with an attendance record of over 86%. Most of her absences were due to her scheduled hospital appointments, and Mrs P has explained G was usually too unwell to complete the homework set by the school for these days; this being so, it appears unlikely she would have been able to cope with any tuition or similar provision arranged by the Council.
55. I note some of G’s absences were not because of a hospital appointment, but instead due to her anxiety about attending school. Again though, I accept the Council could not practically have arranged alternative provision to cover sporadic, short-term absences such as this, even assuming G would have been able to cope with it on those days.
56. Mrs P has also explained that, even when G was at school, she would often miss lessons, and so she considers the 86% attendance record is misleading. While I accept this point, it was for the school to manage G’s education on a day-to-day basis.
57. Taking these points together, I consider the Council was entitled to decide it was inappropriate for it to intervene at that time, and that the school was better placed to provide the support G needed. I do not find the Council to be at fault for not accepting a section 19 duty during this period.
58. However, the fact the Council had decided it was for the school to support G does serve to further reinforce my criticism of the delay in arranging the meeting, which was critical to deciding what support it should offer.
59. Mrs P has also complained about delays in the Council’s response to her complaints.
60. By my calculation, the Council responded to Mrs P’s stage 1 complaint in 17 working days, and her stage 2 complaint in 34 working days. The Council has recently issued a new complaints procedure on its website, and as I do not have a copy of the previous procedure, I cannot say whether the Council missed its target dates for those responses – but, either way, I do not consider 17 and 34 working days to be obviously excessive, to the point where I would likely make a formal finding of fault.
61. However, by my calculation the Council took 92 working days to respond to Mrs P’s stage 3 complaint, which I do consider excessive. That is especially so, given Mrs P approached the Ombudsman during this period, but still had to wait more than three further months after we referred the complaint back to the Council. I find fault for this reason.
62. I consider this fault has caused Mrs P an injustice, because of the time and trouble it represented for her.
63. I noted earlier the Council had offered Mrs P £100 as a remedy for her time and trouble, because of the SEN team’s failure to refer her case directly to the ISS. While, again, this is positive, it is not a recommendation I would likely have made, given it only actually caused a brief delay in Mrs P approaching the ISS. Conversely, I do consider this would be an appropriate remedy for the time and trouble she experienced because of the delay in her stage 3 complaint.
64. Therefore, if the Council has already paid Mrs P the £100 it has offered, then I consider this stands as suitable remedy for her time and trouble and I make no further recommendation on this point. Alternatively, if the Council has not yet made this payment, it should offer it instead as a remedy for this element of the complaint.

Conclusions

65. For the reasons I have set out, I do not find the Council at fault for its substantive decision not to arrange alternative provision for G during the period March – November 2023.
66. However, I do find the Council was at fault for its failure to respond to Mrs P between March and July; and for the fact it then took eight months to arrange the meeting it had promised her, despite promising it again in December in response to her stage 2 complaint.
67. And not only did this cause Mrs P frustration and distress, it also meant a significant delay in progressing the substantive purpose of the meeting, which was to agree a support plan for G. While I cannot speculate what material difference it may have made to G had the plan been agreed sooner, this uncertainty is an injustice in its own right.
68. In accordance with our guidance on remedies, I consider the Council should offer to pay £300 each to Mrs P and G, to reflect the frustration, distress and uncertainty arising from these faults. The Council should also write a formal letter of apology to Mrs P for the same reason.
69. The Council should also offer Mrs P £100 to reflect her time and trouble arising from its lengthy delay in responding to her stage 3 complaint; unless it has already paid Mrs P the £100 it offered because of its failure to refer her case directly to the ISS.
70. Separately, I consider the Council should issue a notice to staff in its SEN team, to remind them they should make direct referrals to the ISS when they become aware that a child may be experiencing school attendance issues.

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Action

71. Within one month of the date of my final decision, the Council has agreed to:

• offer to pay Mrs P £300 to reflect her distress and frustration arising from its fault;
• offer to pay Mrs P a further £300 on G’s behalf to reflect the uncertainty arising from its fault;
• offer to pay Mrs P £100 to reflect her time and trouble chasing for a response to her stage 3 complaint (unless the Council has already paid Mrs P £100 for time and trouble arising from the SEN team’s failure to refer her case direct to the ISS);
• write a formal letter of apology to Mrs P for the same reasons. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making this apology; and
• if it has not already done so, circulate a notice to staff in the SEN team, reminding them they should make direct referrals to the ISS if they become aware of a child with school attendance issues, and not simply signpost the child’s parent, guardian or other representative to the ISS.

72. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman