Summary: Ms X complained the Council failed to provide suitable full-time alternative provision for her son G when he was unable to attend school from July 2023 until May 2024. The Council was at fault for failing to consider if it should provide, and then failing to provide, alternative provision from February to April 2024. The Council was also at fault for failing to consider if the alternative provision it offered met G’s needs. The Council will apologise and pay Ms X £1,100 to recognise the alternative provision G missed and the uncertainty and frustration caused to Ms X by the Council’s actions. The Council will also review its policy for commissioning alternative provision.

The complaint

1. Ms X complained the Council failed to provide suitable full-time alternative provision for her son G when he was unable to attend school from July 2023 until May 2024. Ms X said G missed education and social opportunities which impacted his emotional wellbeing, and she had to leave her employment as a result. Ms X wanted the Council to recognise its faults and provide compensation to the family.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
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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What I have and have not investigated

10. I have investigated events between September 2023 and May 2024. Ms X complained to us in March 2024. I have exercised discretion to investigate what happened between March and May 2024 even though the Council has not yet considered Ms X’s complaint about those two months. This is because it is a continuation of events between September 2023 and March 2024 and it is not reasonable to expect the Council to consider the matter now.

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How I considered this complaint

11. I read the documents Ms X provided and discussed the complaint with her on the phone.
12. I considered the information the Council sent in response to my enquiries.
13. Ms X 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

Relevant legislation and guidance

Section 19 education

14. 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, exclusion or other reasons, may not receive suitable education unless such arrangements are made for them.
15. 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))
16. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
17. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
18. We made six recommendations. 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;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

19. 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.

What happened

20. G is a child of primary school age. He lives at home with his sibling and parents. Ms X reports that G displayed neurodiverse difficulties at home for a number of years and this began to cause difficulties for him attending school in 2023.
21. The school G attended told the Council at the beginning of September 2023 that G was attending on a part-time timetable for 12 and a half hours a week. It reported G needed support as he was experiencing high levels of anxiety.
22. The school completed a referral for medical needs tuition for G three weeks later. It reported G’s attendance was 8%, and a referral had been made to children and adolescent mental health services (CAMHS). The school provided an occupational therapist’s (OT) report which said G had sensory processing and integration difficulties and was awaiting assessment for autism and ADHD. It said G needed to be educated in a small, structured environment.
23. The Council considered the information and declined to provide medical needs tuition. It recorded that G’s needs were sensory based, not medical and he should be considered by its education inclusion panel.
24. Ms X wrote to the Council at the end of September and asked for section 19 alternative provision for G. She said G was unable to attend school full time due to his mental health and had been on a part-time timetable since July to support him to attend school. Ms X said G was slowly increasing his time in school and a part-time timetable was in his best interest but he needed more than one hour of education a day that was suitable for his needs.
25. The school completed a part-time timetable review at the beginning of October and submitted it to the Council. It said G was spending longer periods of time in school which was gradually increasing. It said it was using strategies recommended by specialists and it would review it again in January 2024.
26. Ms X contacted the Council again in October and repeated her request for alternative provision for G.
27. The Council held an inclusion panel meeting to consider G’s case in mid-October. It was attended by the school, Council officers including an autism specialist, the educational psychologist (EP) and attendance team. It considered the support the school was already offering, Ms X’s request for alternative provision, the medical referral it had declined and the school’s opinion that G could be supported in school. It decided the school should continue to support G with a transition timetable and allow the strategies it had gathered from specialists to embed. It said it would review the timetable every six weeks.
28. Ms X complained to the Council in November that it had not provided a suitable section 19 education for G. The Council responded and said it would consider G’s education at another inclusion panel meeting.
29. In preparation for the panel meeting the school told the Council that G’s attendance was 24%. Ms X told the Council G had been seen by the GP and CAMHS who agreed he had unmet neurodiverse needs rather than a clinical mental health issue. Ms X said a private psychiatrist had diagnosed that G had ADHD, traits of autism and separation anxiety
30. The Council held an inclusion panel meeting in mid-December. It heard G was attending school four days a week for three hours a day. It recorded the school was implementing advice from its autism team to support G. It recorded G had a transition timetable in place and it was due to be reviewed. Ms X was paying for one session of forest school a week. The panel decided it would not provide alternative provision as the provision at school was suitable and there was no medical evidence G was too unwell to attend school. It said the school could best meet G’s needs. It recommended it continued to build G’s timetable as he was able to manage and review it at least every six weeks.
31. At the end of December the school submitted a review of G’s part-time timetable. It recorded G’s timetable had increased to 15 hours a week and his attendance had improved.
32. The Council’s autism team provided additional advice to the school on how to support G while in school in January 2024.
33. Ms X contacted the Council at the beginning of February and explained G had started the term attending three hours every morning which was then increased to four hours and he began to struggle. She said he had only attended two mornings in the last two weeks. Ms X said G was not in education full time and questioned why the Council was not offering alternative provisions listed on its website to support his reintegration to school.
34. The Council responded and said it only commissioned online tuition to meet its section 19 duty and the alternative providers on its website were for schools to access.
35. The school submitted another review of G’s part-time timetable in mid-February. It said G was completing work at home but his attendance was falling significantly.
36. Ms X complained to the Council and said G was now unable to attend at all. Ms X said it had rejected medical needs tuition and online tuition was not appropriate for his level of ability and was not full time. Ms X again asked for alternative provision at either one of two providers listed on the Council’s website.
37. The Council responded to Ms X’s complaint at the end of February. It did not uphold the complaint and said it had previously considered the education available to G was appropriate. It said it would consider G’s education again at another inclusion panel as he was now struggling to access any education.
38. The school contacted the Council as it was concerned for G’s wellbeing. It said it had done six months of transitional timetables, reasonable adjustments and providing work to do at home and had made no progress with G’s attendance. It asked for an urgent meeting as it believed the current arrangements were detrimental to G’s wellbeing.
39. Ms X was dissatisfied with the Council’s complaint response and asked it to consider it at stage two. The Council declined to consider the complaint further as it said it would not change its decision.
40. Three Council officers from the attendance and tuition teams, who had been panel members on previous inclusion panels, met and discussed G’s education in March 2024. The Council later referred to this as an inclusion panel meeting. The Council does not hold a record of the discussion or matters considered during that meeting. However during this meeting it decided that it owed G a section 19 duty.
41. Following the meeting the Council contacted the school and said it could provide six weeks online tuition for G for the half term April to May. It asked the school to discuss the offer with Ms X and recontact the Council if she agreed to the tuition. Ms X declined the tuition as she did not believe it was suitable for G’s needs.
42. The school told the Council it would provide support for reintegration for four weeks for an hour and a half a day focussing on emotional and mental health. It asked for a meeting to discuss the ongoing actions.
43. Ms X asked the Council for a meeting at the end of April and for alternative provision at one of two specific alternative providers. Ms X asked again for a meeting in May 2024. The Council did not meet with Ms X.
44. In response to my enquiries the Council said it commissions online tuition for children who are too unwell to attend school. It also commissions a different provider for children with behavioural issues and who are at risk of permanent exclusion.

My findings

45. Ms X first asked the Council to provide section 19 alternative provision for G in September 2023. The Council considered G’s education in;
• September when it considered the medical needs request from the school;
• October at the inclusion panel;
• November when it responded to Ms X’s complaint; and
• December at the inclusion panel.
46. The Council considered the information available, that G’s attendance was improving and the school was implementing appropriate strategies and increasing his timetable in line with his abilities. There is no evidence of fault in how the Council considered G’s needs and education and so I cannot question the outcome. In addition there is no evidence G would have been able to access a full-time provision given that he was on a gradually increasing reintegration timetable.
47. In February 2024 the Council was aware, from Ms X and the school, that G’s attendance had dropped dramatically. The Council did not consider this until March when it decided it should provide G a section 19 alternative provision. It then only offered to provide alternative provision (online tuition) from April onwards. The Council’s delay in considering and arranging a section 19 alternative provision from February to April was fault and meant that G missed out on alternative educational provision for half a term and caused Ms X frustration and distress.
48. The Council did not keep complete and contemporaneous records of how it decided it owed a section 19 duty. It also did not record how it considered online tuition was suitable for G given his special educational needs. Ms X declined tuition on the basis it did not meet G’s needs. I have seen no record or evidence the Council considered Ms X’s opinion or any other option for G after that decision. The lack of record keeping was fault and leaves uncertainty for Ms X about whether it properly considered if the alternative provision it offered was suitable for G.
49. The Council said it only offers online tuition under its section 19 duty where a child is unable to attend school due to illness or other reasons. The legislation is clear that alternative provision under section 19 of the Education Act 1996 should be suitable for a child’s age, ability and aptitude and to any special educational needs they may have. The Council’s blanket policy that it will only offer online tuition is fettering its discretion and is fault. I cannot say, even on a balance of probabilities, whether the fault caused G an injustice as I cannot say whether the online tuition was appropriate to meet his needs or not. However, the fault is likely to have caused and could continue to cause injustice to some children who require suitable alternative provision where online tuition is not suitable. I have made an appropriate service improvement recommendation below.

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Agreed action

50. Within one month of this decision the Council will:
1. Write to Ms X and apologise for the injustice caused to her and G by the Council’s faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended;
2. Pay Ms X £600 for the alternative provision G did not receive between February and April 2024. Ms X should use this for G’s benefit as she sees fit;
3. Pay Ms X a symbolic amount of £500 to recognise the distress, frustration and uncertainty caused to her by the Council’s faults;
4. Remind relevant Council officers of the importance of keeping clear, complete and contemporaneous records of its decision making when deciding if it has a duty to provide alternative provision to meet its duties under section 19 of the Education Act 1996; and
5. Review its policy to only commission online provision for children who require alternative provision due to illness or otherwise and ensure the policy does not fetter its discretion to consider the individual needs of each child, in line with the legislation.
51. The Council will provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation. I found fault causing injustice and I have made recommendations to remedy that injustice and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman