Summary: There was fault by the Council, because it did not properly discharge its duty to arrange alternative provision for a child who was not attending school. It is not possibly to state clearly what material difference this made, but we consider it caused frustration and distress to the complainant and child. The Council has agreed to offer a financial remedy to account for this, and to formally apologise.

The complaint

1. I will refer to the complainant as Mrs F.
2. Mrs F complains the Council failed to make arrangements for alternative educational provision for her son, G, when he was unable to attend school for health reasons.

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The Ombudsman’s role and powers

3. 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)
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. 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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How I considered this complaint

6. I reviewed Mrs F’s correspondence with the Council, a chronology provided by Mrs F, and sought the Council’s clarification on several points.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. G has been diagnosed with learning and developmental disorders. He entered Year 7 at a mainstream school in 2021, and while he remains on roll there, his attendance has always been inconsistent due to his anxiety. Mrs F says G stopped attending school entirely in January 2024.
9. Mrs F says she was informed in July 2022 that the Council had a duty to arrange alternative provision for G because of his poor school attendance. Having received documents through a subject access request, she says she believes G’s school contacted the Council to request alternative provision at some point after this, but that the Council declined to do so.
10. In December 2022, the Council contacted Mrs F to discuss alternative provision. Mrs F was also informed G was on the waiting list for mentoring at this point. He was subsequently offered a place in March 2023, and G had his first session in June.
11. In July Mrs F made a formal complaint about the Council’s failure to arrange alternative provision. The Council responded in September. It said G’s attendance at school during 2021/22 academic year had been enough not to trigger its intervention, although it accepted he had been absent for 15 consecutive days in June 2022 and agreed it was at fault for not arranging alternative provision at this time. The Council offered Mrs F £250 as a remedy for this.
12. In October there was an exchange of emails between Mrs F and the Council, in which she disputed its view G’s absences had not met the threshold for intervention. Mrs F also emailed the Council Director of Children’s Services separately, specifically asking for the Council to make arrangements for alternative provision for G.
13. In November, the Council contacted Mrs F to discuss online tutoring for G, and providing her a link to a tutoring agency. Mrs F later replied to say she did not think this was suitable for G. The Council then offered face-to-face tuition for G.
14. The Council also provided Mrs F with a further complaint response in November. It noted the NHS had not confirmed G was medically unfit to attend school, and said that, during the 2022/23 academic year, “there was no medical evidence to confirm that at specific times it would be clear that [G] would not be able to attend School, which would have triggered the Council’s duty to [arrange alternative provision]”. However, the Council increased its offer of a remedy to £850, for its failure to arrange alternative provision in June 2022, to reflect the Ombudsman’s guidance on loss of education.
15. In December Mrs F attended a meeting with several council officers. They discussed the reasons G was unable to engage with online tuition, his interests and how he was able to engage with some activities.
16. In January 2024 the Council provided Mrs F the details of a tuition agency, which had several tutors with potential availability. Mrs F contacted one tutor to arrange an initial meeting with G. Several days later the agency contacted the tutor and Council to make an appointment, but the Council did not reply immediately. When it did so, the tutor said she might no longer have availability.
17. In February, after a meeting with the tutor, the Council told Mrs F it could not agree to pay the costs for this agency. It again offered to arrange online tuition, or a different tuition agency.
18. In March, Mrs F says G began tuition with this agency. She said the Council had arranged for ten hours of tuition per week, consisting of English, Maths and Science, although when I spoke to Mrs F in May, she said G was currently only receiving eight hours per week.

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Legislative background

Alternative provision

19. 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. We refer to this as councils’ ‘section 19 duty’.
20. 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))
21. 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))
22. 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)
23. 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’)

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Analysis

24. The law says a person should approach us within 12 months of becoming aware of the issue they wish to complain about. This is called the ‘permitted period’. Mrs F complained to us in February 2024, which means anything which happened before February 2023 falls outside the permitted period and is therefore late.
25. We have the power to disapply this restriction, where we consider it appropriate, but we must first be satisfied there was a good reason for the complainant’s delay in approaching us. In this case though, I am conscious that G’s attendance problems have been ongoing since 2021, and that Mrs F became aware of the Council’s section 19 duty in July 2022; and I therefore consider it reasonable to expect her to have made this complaint sooner.
26. For this reason, I will not exercise discretion to investigate outside the permitted period, and will restrict my findings to events since February 2023.
27. In responding to Mrs F’s complaint, the Council noted G had been absent from school for a consecutive period of 15 days in 2022, and accepted this triggered its section 19 duty. It therefore upheld Mrs F’s complaint about this. However, in considering the 2022/23 academic year, the Council said there was no single period of sustained absence, and that therefore its duty was not triggered during this time.
28. On page 7, the statutory guidance (‘Arranging education for children who cannot attend school because of health needs’) says:

“[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.”

29. I cannot say precisely how many days G was absent for during the 2022/23 year, but it appears common ground between the Council and Mrs F that he was frequently absent, to the point where I am satisfied it was for at least 15 days. This being so, and despite the fact it was not in one single, consecutive block, this means the Council was wrong to say G’s absences did not trigger its section 19 duty at this time.
30. In responding to my enquiries, the Council has also made the point that it cannot practically arrange alternative provision to cover sporadic, unplanned and short-term absences of this nature. I do acknowledge this point. There is very high demand for tuition – as demonstrated by the difficulty the Council had in arranging one at the start of 2024 – and the Council cannot realistically keep a tutor in reserve, in case a pupil is unable to attend school on a particular day.
31. However, I note also the Council contacted Mrs F in December 2022 to begin discussing alternative provision, and it offered online tuition in November 2023. This was before G stopped attending school entirely, and so it appears the Council considered it could make some arrangement for him even while he was still going to school.
32. The evidence available to me in this case is therefore somewhat contradictory, and so it is difficult for me to draw any solid conclusions about when, and how, the Council should have sought to arrange alternative provision for G.
33. Taking everything together though, I still remain concerned the Council has not properly discharged its section 19 duty in this case. I say this because, and despite initiating a discussion with Mrs F about alternative provision in December 2022, the Council then appears to have done very little about it from that point until the end of 2023. This is despite upholding Mrs F’s complaint about the lack of alternative provision in June 2022 during that time.
34. I am unable to say with any certainty what injustice this caused. As I have noted, it is difficult to see how the Council could have practically arrange meaningful alternative provision before G stopped attending school entirely. It then did so. I note there was some delay in this, and also that Mrs F has expressed concern about the number of hours available to G, but as this happened after her formal complaint to the Council, I must regard this as a new matter which I cannot investigate here.
35. Ultimately though, I am satisfied the uncertainty in all of this has at least contributed to causing some distress and frustration to Mrs F and to G. I consider this to be an injustice in its own right.
36. Our guidance on remedies says:

“Our recommendation for a remedy [for distress] needs to reflect all the circumstances including:

• the severity of the distress;
• the length of time involved;
• the number of people affected (for example, members of the complainant’s family as well as the complainant);
• whether the complainant or other persons affected are vulnerable and affected by distress more severely than most people; and
• any relevant professional opinion about the effects on any individual.

“Where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500.”

37. I consider this injustice applies equally to Mrs F and to G himself, and that both can be said to have some form of vulnerability (Mrs F has explained she also suffers from a debilitating medical condition). This being so, I consider a remedy of £300 each to be appropriate here.
38. Separately, I also consider the Council should write a formal letter of apology to Mrs F for the fault I have identified here.

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Agreed action

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

• offer Mrs F and G £300 each to reflect their frustration and distress at the Council’s failure to properly discharge its section 19 duty; and
• write a formal letter of apology to Mrs F for the same reason. 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.

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

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Final decision

41. I have completed my investigation with a finding of fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman