Summary: Mrs X complains the Council has not made alternative education provision for her son. The Council is at fault because it did not properly consider whether it should make alternative education provision. Mrs X suffered avoidable distress and Y missed educational provision. The Council should apologise, pay Mrs X £4,500 and provide guidance to staff.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has not made section 19 alternative education provision for her son Y since October 2023.
2. Mrs X says she has suffered avoidable distress and Y has missed education provision since October 2023.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. 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.
6. 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)
7. 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

8. I spoke to Mrs X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. Mrs X raised concerns about the EHC needs assessment with the Council. Mrs X’s complaint to the Ombudsman was only about Section 19 alternative education provision, but I have included some references to the EHC needs assessment to provide context.

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What I found

Law, guidance and policies

Alternative Education

11. 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.] We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
12. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
13. While there is no legal requirement as to when full-time education should begin for children placed in alternative provision (AP) for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school. (Statutory guidance ‘Alternative Provision’ January 2013)
14. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
15. 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)
16. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made seven recommendations including that councils:
• Consider the individual circumstances of each case and be aware that the Council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis)- and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare and take account of the evidence when making decisions.
• Choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative education.
• Keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases.
• Work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary.
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Where councils arrange for schools or other bodies to carry out their functions on their behalf, the Council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

Absences from school

17. A school may authorise a pupil’s absence if, for example, the child is too ill to attend, the school has given advance permission for the absence, or the child is being educated off-site. Schools must regularly inform the Council of any pupils who are regularly absent from school, have irregular attendance, or have missed ten school days or more without the school’s permission.
18. When a child refuses to attend school, or appears to have a phobia about attending, the Council must consider whether he or she is medically fit to attend school. Where specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child.
19. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
20. When reintegration into school is anticipated, councils should work with the school (and hospital school, PRU/home tuition services if appropriate) to plan for consistent provision during and after the period of education outside school. As far as possible, the child should be able to access the curriculum and materials that he or she would have used in school. The Council should work with schools to ensure that children can successfully remain in touch with their school while they are away. This could be through school newsletters, emails, invitations to school events or internet links to lessons from their school.
21. 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.
22. Councils must have regard to statutory guidance - Arranging education for children who cannot attend school because of health needs (Dec 2023). This 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. We would expect the Council to provide evidence that it has objectively considered whether the education arranged by the school is suitable in situations where it has decided not to arrange alternative education.

The Council’s Alternative Provision

23. The Council’s website states:
• Alternative Learning Provision is for pupils who can't attend mainstream educational settings because of health, emotional or behavioural reasons.
• The Council works in partnership with North Somerset and South Gloucestershire Local Authorities to produce and manage a framework of approved ALPs.
• Our Alternative Learning Provision (ALP) Hub arranges alternative provision in Bristol. The ALP Hub commissions alternative provision from a range of alternative providers on our behalf.
• Alternative Learning Provision (ALP) is usually a short to medium term placement for children who are struggling to access mainstream education full-time.
• Placements are commissioned by the on roll school to make up part of the child's timetable, work on a specific area of challenge, support children back into their school full-time and support children in their transition to a new setting.

Bristol Hospital Education Service (BHES)

24. The BHES website states:
• BHES offers education to students who are too ill to attend their on roll school. We take referrals from health care professionals who are providing health care plans to address the health condition that is the cause of the inability to attend school.
• While receiving BHES support students will remain on the roll of their on roll school
• Referrals that do not include ongoing GP referral to a Community Team/Consultant, or where those GP referrals are not taken up by a Community Team/Consultant, will not be eligible to receive support from BHES.

What happened?

25. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
26. In November 2023, Mrs X told the Council Y had missed school since October.
27. Mrs X asked the Council to complete an Education Health and Care Needs Assessment (EHCNA) for her son Y in December 2023. An email from Mrs X to the Council shows the Council were aware again from that date that Y was, “not currently able to attend school at all due to school refusal caused by his needs not being met in school.”
28. The Council agreed to assess Y’ for an EHCNA.
29. In January 2024, a meeting was held between Y’s school, Mrs X and the Council to discuss Y’s absence from school.
30. In late January 2024, Mrs X emailed the Council asking it to provide s19 alternative education for Y.
31. In February, Mrs X also made a complaint to the Council that it was failing to provide alternative education for Y. Mrs X chased her complaint three weeks later.
32. Some activities were provided by the school for Y at home from March 2024.
33. During April and May 2024, the Council again met with Mrs X and Y’s school to discuss alternative education provision.
34. Mrs X complained to the Ombudsman because the Council had not responded to her complaint made in February.
35. Y’s school applied for additional funding from the Council in June 2024. The Council did not agree to provide this.
36. In July 2024, Mrs X wrote to the Council about the delay to Y’s EHC Plan and the lack of s19 alternative education provision. The Council responded saying it would contact Y’s school. The Council also accepted that the statutory timescales in relation to making a decision about whether to issue an EHC Plan for Y had not been met. (The Council has subsequently issued an EHC Plan for Y in October 2024.)
37. In August 2024, Mrs X sent the Council a Judicial Review pre-action protocol letter about the Council’s failure to issue Y’s EHC Plan in 20 weeks and its failure to provide s19 education.
38. A day later, the Council provided a complaint response to Mrs X. It accepted the complaint response was late but did not uphold her complaint about alternative education provision.

Analysis

39. The Council said:
• it does not commission ALP on behalf of schools;
• it can advise schools on the use of ALP;
• it can provide financial support for schools to cover costs of ALP where this has been agreed as appropriate;
• where a pupil does not have an EHC Plan, it is the school’s responsibility to request non statutory funding for ALP;
• The BHES sets its own entry criteria. For children who are experiencing anxiety which is so extreme that they cannot attend their school, BHES require that the child is open to Child and Adolescent Mental Health Services (CAMHS), or is on the waiting list to be seen by CAMHS.
• For those children who do not meet the eligibility criteria for BHES, it would be expected that the on roll school work closely with the parent and the local authority to try and meet the child’s needs.
• If a child is on the ASD diagnosis pathway and is experience school based anxiety in relation to this, then we recommend a referral to the Bristol Autism Team.
40. Mrs X’s request for the Council to produce an EHC Plan for Y ran in parallel with her request for alternative education provision.
41. The meeting referred to in paragraph 23 above was attended by the Council’s Education Welfare Officer (EWO). The Council has not taken any enforcement action against Mrs X in respect of Y’s school attendance because, “absences are being and have been authorised by the school for reason of other exceptional circumstances.”
42. An email from Y’s school in March 2024, said the Council did not have sufficient medical evidence to be able to put alternative education in place for Y. The Council has not provided any evidence to show it considered liaising with other medical professionals.
43. The Council spoke to Mrs X in April 2024 about Y’s needs with regard to alternative education.
44. The Council told Mrs X that it had agreed with Y’s school to wait for an Educational Psychologist (EP) visit before deciding on what action to take.
45. In May 2024, the Council attended a multi-agency meeting about Y’s situation. The Council says this was to discuss possible ALP provision and to advise both parties on how to apply for support through the Inclusion team. The Council therefore did not provide advice about additional funding for a period of approximately six months after it became aware Y was not attending school.
46. Y’s school did subsequently apply in May, for funding for ALP from September, which was refused by the Council because it said the EHCNA was in progress and any necessary provision should be funded through an EHC Plan.
47. The Council says Y’s school had made the Inclusion team aware that Y was not attending school on 30th April 2024. However, it is clear that the Council were aware of, and involved in discussions about, Y’s non-attendance at school from November/December 2023.
48. It is unclear if any referrals to the Council’s ALP hub were made and what the outcome of those were.
49. The barriers to eligibility of the BHES meant Y could not access that provision.
50. The Council wrongly asserted that the responsibility for provision of alternative education, (including applying for funding, commissioning provision and making referrals for autism support), was solely upon the on-roll school.
51. The Council uses the ALP hub to deliver its s19 duties. The Council can use the hub in this way but it remains responsible and accountable for ensuring provision is made and delivered, as per paragraphs 18 to 22 above.
52. The Council’s consideration of the request for additional funding from Y’s school, was adversely impacted by the delay in the concurrent decision making process concerning Y’s EHC Plan.
53. The Council says that, “Y’s non-attendance was due to Y’s anxiety. This understanding is based on reports from the school, but there is no documented medical referral, though we are aware that Miss X has sought GP support and Y is on the neurodivergent pathway for assessment.” There is no evidence the Council took any action to ascertain any further information about Y’s circumstances.
54. Y did not attend school between November 2023 and July 2024. The Council has provided no evidence to show that it gave consideration to whether Y’s school place was available and accessible to them before May 2024.

Complaint handling

55. Mrs X complained about alternative education provision in February 2024. The Council accepts its complaint response sent in August 2024 was significantly delayed and has offered Mrs X a remedy of £250 in respect of this. I consider this an appropriate remedy.

Current situation

56. Y began attending school in November 2024. Throughout the remainder of 2024 he attended for 1 hour three times a week. He is now attending for 2 hours three times a week.

Conclusions

57. The Council did not take action to fulfil its statutory responsibilities to ensure education provision for Y, after it became aware Y was not attending school. The Council should have ensured provision was available from January 2024. This is fault by the Council. Y missed educational provision between January and November 2024, a period of two and a half terms.

The Ombudsman’s Guidance on Remedies

58. Where fault has resulted in a loss of educational provision, we will usually recommend a symbolic remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
59. I have taken into account the fact that Y missed educational provision, his special educational needs as detailed in his EHC Plan, his current school attendance and an impact statement from Mrs X in determining an appropriate remedy.

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Agreed action

60. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs X and Y for the fault found. 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.
• Pay Mrs X £4,500 in respect of Y’s missed educational provision, representing £1800 per term.
• Provide guidance to staff to consider any action required under the Council’s statutory duties when it becomes aware of non-attendance at schools, and to record all actions, communication and decision making as part of this consideration.
61. The Council should provide us with evidence it has complied with the above actions.

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Final decision

62. I have found fault by the Council, which caused injustice to Mrs X and Y. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman