Summary: Mrs Y complained the Council failed to provide her child, Z, with a suitable education. We have found fault by the Council, causing injustice, in failing to consider its duty to make alternative educational provision for Z during the period from January 2023 to April 2024. The Council has agreed to remedy this injustice by apologising to Mrs Y, and making payments to acknowledge the distress caused and impact of the missed education on Z.

The complaint

1. The complainant, Mrs Y, complains the Council failed to provide her child, Z, with a suitable education from January 2022 to 2024. Z was unable to attend school during this period because of anxiety caused by their complex needs not being met at school.
2. Mrs Y wants the Council to pay redress for the impact of the missed education on Z, and the upset and distress caused to Mrs Y and the family.

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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.
4. 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)
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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What I have not investigated

Delay completing the Education Health and Care needs assessment

8. I have not considered the delay by the Council in completing the Education Health and Care (EHC) needs assessment referred to in the background to this complaint. This was the subject of a previous complaint to us. The Council had accepted it failed to complete the assessment process within the statutory timescales. We decided the redress it offered Mrs Y was a suitable way of remedying the injustice caused by the delay.

Failure to provide a suitable education from 4 April 2024 to November 2024

9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
10. The courts have established that if someone has appealed to the SEND 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)
11. This means that if a child or 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.
12. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
13. Here, after the final EHC Plan was issued on 4 April, Mrs Y appealed to the tribunal against the Council’s decision to name Z’s current school as their placement in the final Plan.
14. My view is we cannot investigate any failure by the Council to provide Z with a suitable education during the period from 4 April to November 2024. This is because the reason Z was not attending education was closely linked to the matters raised in Mrs Y’s appeal to the tribunal – that Z was unable to attend the named school and Education Otherwise than at School (EOTAS) should be provided instead. The tribunal proceedings concluded in November 2024 when the Council agreed to the EOTAS provision.

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How I considered this complaint

15. I spoke to Mrs Y, and made enquiries of the Council, and read the information Mrs Y and the Council provided about the complaint.
16. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Alternative provision: the law

17. 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)). We refer to this as section 19 or alternative education provision.
18. 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)
19. 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)

Our guidance: “Out of school, out of sight”

20. We issued guidance in our Focus Report “Out of school, out of sight? Ensuring children out of school get a good education” on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. We recommended councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking 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 provision
• 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.

What happened

21. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background: January 2022 to December 2022

22. Z was on the roll at a mainstream secondary school. They struggled to attend school from January 2022 because of extreme anxiety.
23. Based on the evidence seen, my understanding is the school had discussions with Mrs Y about Z’s situation and took the following action to address Z’s attendance difficulties:

• a reduced timetable was put in place as part of a phased return to school;
• in June 2022, it arranged a place for Z in its personalised learning centre. Z’s school attendance increased to 100% by the end of the school year;
• from September 2022, Z struggled again with attendance. The school agreed a reduced timetable for Z in addition to their place in the personalised learning centre: and
• the reduced timetable was extended in October 2022, following a review meeting with Mrs Y.

24. As at December 2022, Z’s school attendance for the autumn term was 25%.
25. There is no evidence the school or Mrs Y raised Z’s attendance issues with the Council during this period.

January 2023 to March 2023: Request for an EHC needs assessment

26. In January, Mrs Y asked the Council to assess Z’s EHC needs.
27. She told the Council, in her request, Z was only attending school four hours a week and hadn’t really engaged in any learning since January 2022.because of their extreme anxiety.
28. In March, the Council refused Mrs Y’s request for an EHC needs assessment.

April 2023 to June 2023: Z’s ongoing attendance difficulties

29. In April, the school referred Z to an alternative education provider. They put in place provision for Z of 16 hours a week online tuition in english, maths, science and citizenship.
30. In May, the Council’s inclusion team had a meeting with Mrs Y about Z’s school attendance. The Council’s meeting record says:

• the school said it was unable to help Z access school. Z had not attended school since 17 January 2023;
• online learning arranged by the school, available for Z to access five days a week, had been in place from 6 May. Mrs Y said Z was currently only able to access this two days a week because of extreme tiredness;
• there was a reference to alternative provision for Z. Mrs Y told the Council she was funding Z’s visits to a farm placement.
• Mrs Y said returning to school was not an achievable target for Z. Although they were still on the school’s roll, there was no current plan to get them back to school. Mrs Y did not consider school was the right place for Z.
• she had been informally home-schooling Z since the end of the spring term. Mrs Y wanted to continue this with a bespoke package.

31. In June, the Council agreed to carry out an EHC needs assessment for Z.
32. The online learning provision arranged by the school remained in place until the end of the school year in July. Neither the school nor the Council arranged any other alternative provision for Z during this period.

September 2023 to April 2024: completion of the EHCN assessment

33. The school stopped Z’s online learning provision at the start of the new school year. It said this was intended as a short/medium term measure. It would not fund further alternative provision unless there was a specific medical need for this.
34. The educational psychologist’s report in January 2024 for the EHC needs assessment confirmed Z was not attending school or engaging in any structured learning.
35. Mrs Y complained about the Council’s delay in completing the EHC needs assessment. She also raised concerns Z was not receiving a suitable education. In response the Council said the school should refer Z to the Council if it felt it was unable to meet their needs.
36. The Council completed the assessment and agreed to provide Z with an EHC Plan.
37. It issued the final EHC Plan on 4 April 2024, naming Z’s current school as their placement.

Mrs Y’s complaint

38. Mrs Y complained the Council had failed to provide Z with a suitable education since January 2022. She said the only alternative provision made for Z was the period of online learning in the summer term 2023. She had contacted the Council’s inclusion team about alternative provision a number of times but had no response.
39. The Council told Mrs Y it had replied to her complaint about the delay with the EHC assessment and given advice about how the school should work with her while the assessment was being completed. It had nothing further to add.
40. Mrs Y brought her complaint to us in June 2024.

Tribunal proceedings

41. Mrs Y appealed against the Council’s decision to name Z’s current school as their placement in the final EHC Plan. She wanted the Council to provide Z with a bespoke package of EOTAS.
42. The proceedings concluded in November 2024 when the Council agreed to issue an amended final plan naming EOTAS as Z’s educational provision.

My view – was there fault by the Council causing injustice?

January 2022 to December 2022

43. I don’t consider Council failed in its duty to provide Z with a suitable education during the period from January 2022 to December 2022.
44. This is because I have not seen any evidence the school or Mrs Y told the Council about Z’s attendance difficulties during this period. So as far as it was aware, Z was on the school roll and the school was providing them with a suitable education.

January 2023 to April 2024

45. The Council was told about Z’s attendance difficulties in January 2023, when Mrs Y requested an EHC needs assessment. The Council was also told Z had struggled to attend school for some considerable time and missed a substantial amount of their education.
46. I have not seen anything to show the Council took any action to investigate or address these issues before its meeting with Mrs Y in May 2023. Even then, the Council does not appear to have taken any action to consider Z’s circumstances, the limited alternative provision the school had arranged and whether it had a duty to make alternative provision for Z.
47. In my view, the Council should have investigated Z’s circumstances, shortly after it was told in January 2023, Z was no longer attending school. It should then have considered whether it had a duty to make alternative provision for Z’s education because they were not attending school.
48. The Council’s failure to do so when it was first told in January Z was not attending school, and its further failure to consider its duty following the meeting in May 2023 was fault.

Impact of this fault

49. Based on the circumstances, I consider it is more likely that, but for its failure, the Council after investigating the circumstances, would have decided to make alternative arrangements for Z’s education, from the start of the summer term 2023. This is because:
• there is no evidence the Council disputed Mrs X’s claim at the meeting in May 2023 Z was unable to return to school, or that it considered taking any action to require Z’s attendance at school.
• it discussed with Mrs Y the online tuition arranged by the school as alternative provision for Z, and the educational activities Mrs Y arranged for Z at home because they could not attend school. There is no evidence the Council proposed any other action to ensure Z was provided with a suitable education, such as a plan to re-integrate Z back into school.
50. The Council’s failure to consider its duty to make arrangements for alternative provision for Z caused injustice to Z and Mrs Y.
51. It meant that Z missed education from the start of the summer term in 2023, until April 2024 when the final EHC Plan was issued. This also caused Mrs Y worry and distress about Z’s lack of educational provision.
52. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
53. I have taken into account the period of about 9 weeks of part-time online tuition arranged for Z during the summer term. But I don’t consider this on its own amounted to a suitable education. And the Council did not arrange any alternative provision for Z from the start of the school year in September 2023 to April 2024.
54. On this basis I consider the remedy payment for the loss of Z’s educational provision should be towards the middle of the scale for part of the 2023 summer term and at the higher end of the scale for the start of the summer term 2023, and the period from September 2023.

Service improvements

55. Following our decision last year on a similar complaint (our reference 23005741) the Council agreed to review its alternative provision process and provide us with evidence that it complies with Section 19 of the Education Act 1996. It has now done this, and I don’t consider it appropriate to ask it to make any further service improvements at this stage.

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Action

56. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y for its failure to consider its duty to make arrangements for alternative provision for Z from January 2023 to April 2024. This apology should be in line with our guidance on Making an effective apology;
2. pay Mrs Y, on Z’s behalf, £6,400 (based on 2 + 1/3 terms at £2,400 and 2/3 term at £1,200). This is a remedy for Z’s benefit to recognise the injustice the missed education has caused them.
3. pay Mrs Y £350 to reflect the upset, frustration and uncertainty caused by its failures. This is a symbolic amount based on our guidance on remedies; and
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman