Summary: Miss X complained the Council has failed to provide alternative provision for her daughter since she was unable to attend school in May 2024. We found there is no evidence of fault in the Council’s actions.

The complaint

1. Miss X complained the Council has failed to provide alternative provision for her daughter since she was unable to attend school in May 2024.

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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. 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. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. 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(1), as amended)

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What I have and have not investigated

6. Miss X complains her daughter has not received an education or the provision in her Education Health and Care (EHC) Plan for almost two years. While I have investigated the period between May 2024 and July 2024, I have not investigated any missed provision from September 2024 onwards. This is because Miss X disagrees with the placement named in her daughter’s EHC Plan and has appealed to the SEND Tribunal.
7. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
8. This means that if a young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.

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How I considered this complaint

10. I considered evidence provided by Mis X and the Council as well as relevant law, policy and guidance.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Alternative provision

12. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
13. Section 19 of the Education Act 1996 says that the council must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child.
14. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.

Attendance

15. The Education Act 1996 also 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.

What happened here

16. The following is a summary of the key events relevant to our consideration of the complaint. It does not include everything that happened.
17. Miss X’s daughter Y was on roll at a mainstream primary school, School 1. In May 2024 School 1 contacted the Council for advice. It said Y had been on a reduced timetable and was at risk of permanent exclusion. She had school refused in January and February but then attended every day, on a reduced timetable, since Spring half term. Y was now school refusing again and fleeing the school site. School 1 asked what its options were.
18. Having discussed the issues with the school, the Council suggested the next step was the fast track legal process for non-attendance. As part of this process School 1 invited Miss X to a School Attendance Review meeting. Miss X declined. She told the school Y would not be returning to the school and she would not attend the meeting.
19. Miss X says she withdrew Y from school in May 2024 as the school could not meet her needs and she was unsafe.
20. School 1 served Miss X with a Formal Warning Notice and then referred the matter to the Council to consider issuing Miss X with a penalty notice or taking legal action.
21. In July 2024 the Council issued an EHC Plan for Y naming School 1 for the rest of the academic year and School 2, a mainstream secondary school from September 2024.
22. Miss X appealed to the SEND Tribunal.
23. Miss X complains Y has not received suitable educational provision since she stopped attending school in May 2024. Miss X did not request alternative provision when she withdrew Y from school in May 2024, but she says the Council was aware Y was not attending as she was receiving fast track attendance letters.
24. In response to my enquiries the Council says that Y remained on roll at School 1 and there was no medical evidence confirming she was unable to attend school full time. It did not therefore consider she met the statutory threshold for alternative provision under section 19 during May to July 2024. It says there was school-led attendance support, including reduced timetables, implemented with the intention of supporting Y’s reintegration and managing escalating emotional and behavioural needs.
25. The Council says its Education Legal Intervention Team reviewed the school’s fast track referral and closed it with no further action. This was due to timing constraints linked to the introduction of new attendance legislation in August 2024.

Analysis

26. The law is clear that councils must intervene and provide education under their section 19 Education Act duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness or otherwise. This means that once the Council was alerted to Y's absence it needed to consider its legal duties and take action where appropriate.
27. The Council needed to consider whether Y was receiving a suitable education, and whether this education was “reasonably available and accessible” to her. The Council discussed Y’s absence with the school and determined the appropriate course of action was fast track legal proceedings for non-attendance. The Council does not consider it had a section 19 duty to provide a suitable alternative education between May and July 2024. Miss X disagrees with this decision, but it is one the Council is entitled to make.
28. We are not an appeal body; we do not have the power to overturn council decisions or replace them with our own. If a council has made a decision without fault then we cannot criticise it, no matter how strongly someone disagrees with that decision.

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Decision

29. I find no fault.

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Investigator's decision on behalf of the Ombudsman