Summary: Mrs X complained the Council failed to provide her child, Z, with a suitable alternative education while they were absent from school due to health issues. The Council was not at fault. It considered all the information and decided Z could still access an education at school. There was no fault in the way it reached this decision.

The complaint

1. Mrs X complained the Council failed to provide her child, Z, with a suitable alternative education while they were absent from school due to health issues. She says Z missed several weeks of education which impacted their mental health. She wants the Council to compensate Z for their missed education and ensure suitable provision is in place in the event Z is absent from school again.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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)

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How I considered this complaint

5. I have discussed the complaint with Mrs X and considered the information she provided. I have also considered information provided by the Council.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The Law

7. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
8. 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)
9. The Courts have found that it is a judgement 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])

What happened

10. Mrs X’s child, Z, suffers from persistent pain in their feet because of a congenital condition. In Autumn 2023 Z struggled to attend school regularly due to being unable to move around school without being in pain. The school put remote learning in place which Z could access from home or from a single accessible location in school. Mrs X told the school its remote learning technology was inconsistent, and it was failing to ensure Z received an education.
11. The school contacted the Council in December 2023 asking for support to find a solution. The Council met with Mrs X and the school. Mrs X said the arrangements were not working. The school agreed several actions to try and improve the situation. The records of the meeting show the Council did not feel Z needed at home provision.
12. Z stopped attending school in January 2024 and Mrs X asked the Council provide Z with a suitable alternative education. At the same time the school referred Z to the Council’s learning centre for alternative education.
13. The Council’s learning centre panel decided Z could still be educated at school. It said the school needed to make reasonable adjustments for Z to attend and access education.
14. The Council and school met with Mrs X and other professionals working with Z in early February 2024. Z’s physiotherapist detailed Z’s condition at the meeting. The meeting agreed to hire a wheelchair for Z to return to school following half term. The Council said its moving and handling advisor would visit the school to speak to staff, while the school said it would ensure staff set tasks for Z when they accessed lessons remotely.
15. Mrs X complained to the Council on 12 February. She said it had not responded to her request for alternative provision for Z. The Council visited Z at home later that month. It discussed what was and was not working in school with Z. It agreed to proceed with the trial of the wheelchair and to continue working with Z’s school to support Z.
16. The Council responded to Mrs X’s complaint on 6 March. It said it would be more appropriate for Z’s school to respond to the complaint, as it was about Z’s daily education. It reiterated that it believed Z’s needs could be met through reasonable adjustments in Z’s school. It said it would continue meeting with the school and Mrs X in team around the family meetings.
17. Z returned to school in March 2024. Over the following weeks Mrs X emailed the Council and school detailing the issues Z was facing in school. The Council hosted a team around the family meeting in May 2024. The meeting reviewed what was working and not working and agreed actions to try and resolve issues. The school reported Z was doing well at school.

My findings

18. Mrs X complained the Council failed to provide Z, with a suitable alternative education while they were absent from school due to health issues. The law says councils must arrange suitable education for pupils who are out of education. However, it also allows councils to decide whether it is reasonably practicable for the pupil to still access education at school. It was a judgement for the Council to decide whether Z’s health needs prevented them from attending school.
19. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the Council made.
20. I have considered the steps the Council took to consider the issue, and the information it took account of when deciding whether it owed Z a section 19 duty.
21. Mrs X and Z’s school asked the Council to provide Z with an alternative education in January 2024. The Council looked at all the information a few days later and decided Z was still able to access an education at her school with reasonable adjustments in place. It then met with Mrs X and the school to discuss the way forward. There is no fault in how the Council took the decision, and I therefore cannot question whether that decision was right or wrong.
22. Following the decision, the Council worked with the school and Z to plan for Z’s return to school and put in place suitable measures. Z returned to school in March 2024. The Council then continued to meet with all parties to review Z’s progress and make any changes needed. The Council has taken appropriate steps to enable Z to return to school and has kept the situation under review so Z can continue to attend school. The Council is not at fault.
23. Mrs X has raised issues about the quality of the school’s education and the reliability of the technology used. We cannot investigate the education provided by the school.

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Final decision

24. I have completed my investigation. The Council was not at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman