Summary: Miss F complained the Council failed to arrange alternative provision for her daughter. We found fault which caused a loss of education and distress. The Council has agreed to make a payment to Miss F for the educational benefit of her daughter to remedy that injustice.

The complaint

1. Miss F complained the Council failed to arrange alternative provision for her daughter from October 2023 to August 2024.
2. Miss F says this has had a negative impact on her daughter’s mental health and the family’s finances as they have had to reduce their work hours and privately fund an OT assessment and alternative education. Miss F wants the Council to provide alternative provision and financial compensation.

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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 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)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. 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.
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
8. 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)
9. 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

10. I considered the information Miss F sent, the Council’s response to my enquiries and the statutory guidance: Arranging education for children who cannot attend school because of health needs.
11. Miss F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Alternative educational provision

12. The Education Act 1996 says that if a child of compulsory school age cannot attend school for “reasons of illness, exclusion from school or otherwise” the local authority must make arrangements to provide suitable education either at school or elsewhere, such as at home. The duty applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend. (Education Act 1996, section 19(1))
13. Where a child cannot attend school because of health problems, and would not otherwise receive a suitable full-time education, the council is responsible for arranging provision.
14. But the statutory guidance makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school.
15. We therefore expect councils to consider whether any education arranged by the school is suitable or whether the child could attend the school with support. When reintegration into school is anticipated, councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.
16. The duty to arrange alternative provision does not automatically apply simply because there is an expert opinion that says the child is unfit to attend school. This is because the council may have a rational ground to disregard that opinion, having considered it. The Courts have found that it is a judgment for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
17. Similarly, the duty does not apply simply because a parent refuses to send a child to the educational provision. A judicial decision (R (on the application of G) v Westminster Council [2004] EWCA Civ 45) says that the education offered must have been “reasonably available and accessible” to the child. If a parent asks for education out of school, the test would be whether the child is too unwell to attend any school, not just the school where they are on roll.
18. Where it is clear a child will be away from school for 15 days or more, councils should liaise with medical professionals to ensure there is minimal delay in arranging appropriate provision.
19. 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))
20. 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) The statutory guidance also states that some forms of provision, such as one-to-one provision, which is more intensive, need not be full-time. If the council offers a child less than full-time education, it must regularly review the situation.

What happened

21. I have set out the key events; this is not meant to detail everything that happened.
22. Miss F’s daughter, J, was on the roll of a mainstream primary school. She was struggling to attend due to severe anxiety and Miss F was seeking an assessment about whether J was autistic. J stopped attending school on 11 October 2023.
23. The School had developed a learning plan for J to support her attendance and a referral was made to mental health services. The School asked to meet with Miss F and J to develop the learning plan, but Miss F said J was unable to go into school.
24. Miss F emailed the Council on 27 October asking it to put alternative education in place in the form of online learning. She said that J could not attend school due to anxiety and problems with sensory processing. She attached a letter from the GP and the CAMHS referral. Miss F said she had arranged for an occupational therapy (OT) assessment and that no plan could be made for J to return to school until this had been completed. Miss F sent the Council the School’s learning plan which she did not consider to be sufficient.
25. The Council contacted the School. The School said that the suggestions Miss F had made to support J were already in place but it could not complete the learning plan, or develop a reintegration plan, until Miss F and J came into school to discuss it.
26. On 10 November, the School asked the Council for advice on how to record J’s absence. The Council agreed that J’s absence was due to illness and should be authorised.
27. The OT assessment had been completed and had found J had sensory processing difficulties. The OT recommended therapies and various strategies and “A visit to her school from an OT will be recommended to then be able to work with J to help her in returning to school. … Sensory activities and strategies to be identified within clinic that can be used as part of a daily routine at home and assist her in returning to school. … When J returns to school, a visit to school to observe her within the setting and to establish additional appropriate occupational therapy interventions to aid her regulation.”
28. The Council told Miss F it needed to give the School a chance to make reasonable adjustments for J, using the OT’s recommendations, before alternative provision could be made. It suggested meeting with the School and Miss F to discuss how J could be supported.
29. Miss F complained to the Council on 27 November about the lack of alternative provision. She said the Council had not clearly explained whether it had decided that J was able to attend the School.
30. Miss F met the School and the Council on 6 December, she considered J would not be able to attend school for “some considerable time”. It was agreed that Miss F would try to bring J in for 10 minutes of arts and crafts twice a week, with a view to possibly increasing after the Christmas holiday.
31. The Council responded to Miss F’s complaint on 13 and 14 December. It said it had decided that the School was reasonably practicable for J to attend so no section 19 duty was owed. It hoped that the reintegration plan agreed would support J back into school.
32. Miss F arranged for J to start equestrian alternative provision sessions. She had also purchased various resources to support J’s learning.
33. On 29 December, Miss F asked for her complaint to be escalated to stage two. She said J had been unable to attend school for the 10-minute sessions. Miss F asked how the Council could say J’s absence was authorised due to illness but also that J could attend school.
34. The Council spoke to the School on 8 January 2024 and agreed that the reintegration plan was not working. The Council considered J’s provision at a panel on 22 January. The panel decided that alternative provision should be made. A referral was made to the Council’s alternative education provider (“the PRU”). This referral did not include any medical letter stating that J was unable to attend the PRU or required home tuition.
35. The Council’s stage two complaint response was sent on 1 February. It said that alternative provision had been approved and the PRU would contact Miss F. The PRU called Miss F on 12 February to arrange J attending their setting. Miss F said J was unable to attend, so the PRU agreed to provide home tuition.
36. Miss F asked to escalate her complaint to stage three on 20 February as the tuition was not yet in place and alternative education had not been provided from 27 October 2023.
37. The PRU started to provide home tuition on 28 February. Miss F said J was unable to cope with the usual five hours a week and it was agreed that three hours a week should be provided initially.
38. The Council’s final complaint response on 8 April said it would not investigate at stage three as Miss F had not been treated unfairly and further consideration of the complaint would not result in a different outcome.
39. The Council said no alternative education was provided in October 2023 because J was “still accessing school as part of a small steps reintegration plan.” It accepted there had been a delay in providing alternative education from 22 January to 28 February 2024 and that there had been some initial confusion about whether home tuition was to be provided. This had been caused by the lack of a medical letter stating this in the Council’s referral to the PRU.
40. Miss F came to the Ombudsman. She said the reintegration plan was not agreed until 6 December and had not been a suitable education.
41. Following Miss F’s complaint to the Ombudsman, she made new complaints to the Council about the provision of home tuition. This was because the PRU had contacted her about transitioning J back to the School, but Miss F did not consider that J was ready and considered that the home tuition should be continued.
42. Miss F also said that, due to staffing issues, less than three hours home tuition per week was delivered for ten weeks from April to July. She had also agreed with the PRU to increase the provision to five hours a week after the May half-term, but only three hours had been provided for two weeks. So in total J had not had the full provision for 12 weeks from April to July.

My findings

43. J’s last day in school was 10 October 2023. Miss F contacted the Council on 27 October asking for online alternative education. I have seen no evidence that the Council was aware that J was absent before then. By then, J had not attended for 13 school days. Miss F said J could not attend due to anxiety and attached a GP letter and the CAMHS referral. She made clear that in her view J would be unable to attend school for the foreseeable future. At this point the Council needed to decide if it owed J a duty under section 19 to provide alternative education.
44. On 10 November, the Council agreed with the School that J’s absence was authorised due to illness. So the Council was aware that J was likely to be out of school for 15 school days and that the reason was illness. I therefore find that the section 19 duty was owed from 27 October.
45. But even when a section 19 duty is owed, the statutory guidance says councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school. (Statutory guidance: Arranging education for children who cannot attend school because of health needs, page 6) There is no evidence the School had arranged any education outside school, so the Council needed to determine whether J could attend school with some support.
46. The OT’s assessment does not clearly state that J could not attend school but even if it had, as set out in paragraph 16, the duty to arrange alternative provision does not automatically apply simply because there is an expert opinion that says the child is unfit to attend school. The Council is the decision-maker in this situation.
47. I have seen that the Council discussed reintegration with the School and was allowing the School time to develop and implement a reintegration plan. The School said many of Miss F’s suggestions to support J were in place but a reintegration plan could not be developed further until there had been a meeting with Miss F and J. That meeting took place on 6 December.
48. I appreciate Miss F considered support for reintegration was insufficient. In response to my second draft decision statement, she said that, from October to January, the Council did not ensure J had access to the curriculum and other materials, did not consider extra support she may have needed, and did not consider the use of remote or digital learning.
49. But this does not mean the Council had to put alternative provision in place from 27 October. The statutory guidance says councils should work with schools to develop reintegration plans. This means the Council could give the School time to develop a reintegration plan and try to implement it before it had to make alternative provision. It is for the Council to decide if any reintegration plan is sufficient or working. I find that the Council did not have a duty to put the alternative provision in place until it decided that the reintegration plan was not working on 8 January 2024.
50. The provision should have been put in place as soon as possible after that, but the Council has accepted there was a delay until 28 February 2024. This was partly caused by the lack of clarity about whether J was able to attend the PRU or whether home tuition was needed. I have not seen the details of the panel’s discussion so I do not have evidence that the Council properly decided that J could attend any setting and that home tuition was not needed.
51. I therefore find that the Council delayed putting alternative provision in place from 8 January to 28 February 2024, causing J to miss out on education for seven school weeks (half a term). This is an injustice.
52. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
53. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. Having taken into account that there was no EHC plan in place at the time and it was not a key educational phase for J, but that additional provision now could remedy some or all of the loss, my view is that a sum of £900 for half a term would be an appropriate remedy. This should be used for J’s educational benefit.
54. The Council accepts it did not specify home tuition when it made the referral to the PRU, but that was remedied a couple of days later and before any provision was made so I do not find it caused an additional injustice to J or Miss F.
55. The PRU initially offered five hours home tuition but Miss F said J would not be able to cope with that and three hours was agreed to start with. However, as set out in paragraph 42, Miss F says not all those hours were provided. This is service failure and meant J did not receive the full provision for 12 weeks from April to July 2024, which is further injustice. As J was receiving some provision during this period, I consider a payment of £900 to be an appropriate remedy.
56. Miss F also complains the Council did not fund the equestrian alternative provision or other learning resources she purchased. I find there was no fault. It was Miss F’s choice to arrange the equestrian provision and it was not agreed by the Council. I therefore do not find it should be funded by the Council. Miss F purchased learning resources during the period when the Council was allowing the School to put in place a reintegration plan. This spending was therefore not an injustice caused by fault.
57. Miss F says the lack of provision caused her and J significant distress. Our guidance says a moderate, symbolic amount may be a suitable remedy for distress caused by fault.
58. Miss F says she was unable to work. We do not normally recommend reimbursement of loss of earnings. This is because we cannot usually, on balance, establish a clear and causal link between the fault and the claimed injustice of lost earnings. There are frequently other factors, personal circumstances and choices involved. Such payments are therefore best resolved by the courts.

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Agreed action

59. Within a month of my final decision, the Council has agreed to apologise to Miss F and pay her:
• £900 to remedy the loss of educational provision to J from 8 January to 28 February 2024.
• £900 to remedy the lack of provision from April to July 2024.
• £300 to remedy the significant distress caused by fault.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman