Summary: There was fault in the way the Council considered whether it had a duty to provide alternative education when a child stopped attending their school. During this investigation the Council has offered a suitable remedy for the injustice caused to Ms X and her child. This offer, and our recommended service improvements, are a satisfactory resolution to the complaint.

The complaint

1. Ms X complains the Council failed to provide alternative education under s.19 Education Act 1996, and special educational provision under s.42 Children and Families Act 2014, between late February 2024 and early June 2024. During this period Ms X’s child was not attending the school named in their Education, Health and Care Plan (EHC Plan).
2. Ms X also says the school advised in 2023 it was not able to meet need.
3. Ms X says her child has missed out on education. Work was sent home by the school when her child stopped attending, but Ms X did not consider this was suitable.
4. Ms X wants the Council to apologise to her child ‘for the system failing her and not meeting her needs in line with her EHCP’, and to award ‘compensation’ for lost opportunity in gaining GCSE’s due to lost education and time lost when ‘mistreated’ in a setting.

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The Ombudsman’s role and powers

5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
8. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:
• any injustice is not significant enough to justify our involvement; or
• we could not add to any previous investigation by the organisation; or

• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

9. 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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What I have and have not investigated

10. I have not investigated the actions of the school, including whether Ms X’s child was ‘mistreated’ by staff. We do not have jurisdiction to consider the actions of schools.
11. I have considered the actions of the Council in relation to whether appropriate special educational provision was in place; and, whether suitable alternative education was considered and offered when Ms X’s child stopped attending school.

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How I considered this complaint

12. I have considered information provided by Ms X and the Council including:
• EHC Plan and review documents
• Complaint documents
• Correspondence
• Examples of work sent home.
13. I have considered relevant law and guidance including:
• Education Act 1996, as amended.
• Statutory Guidance ‘Alternative Provision’
• Our Focus Report: Out of school, out of sight?
• Our Guidance on Remedies
14. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
15. 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 law and guidance

16. 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.
17. 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)
18. 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)
19. The courts have found that whether it is reasonably possible for a child to take advantage of existing schooling is a decision for the Council and councils are not obliged to make alternative arrangements where it is felt parents have misconceived objections to their child attending a particular school. Whether a child can attend is a question to be answered objectively, not by reference to the parents’ view of the facts. (R (on the application of DS) v Wolverhampton City Council 2017)
20. There is no statutory requirement for when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. Statutory Guidance: Alternative Provision says this should happen as quickly as possible.

What happened

21. Ms X’s child attended School A in 2023. Ms X says at the annual review in 2023 the school raised concerns it could not meet her child’s needs, but later retracted this view.
22. It is apparent from correspondence that Ms X lost trust in the school over 2023/4 and that she disagreed with the way her child was treated by staff. The Council was aware of the loss of trust and there is mention in correspondence of Ms X starting to look at alternative schools in late 2023.
23. Ms X says the actions of staff led to her child refusing to attend school at all in February 2024.
24. An emergency review meeting was held in March 2024, which the Council attended. The view of the school at that time was that it was meeting need and Ms X’s child was making appropriate progress.
25. Ms X says it was accepted by the Council the placement had broken down and another setting would be found. This appears to have been because of the breakdown in the relationship between Ms X and the school and her loss of trust, not because there was agreement needs were not met.
26. The school sent work home for Ms X’s child to complete. The Council did not provide s.19 education.
27. Ms X was dissatisfied with the work provided. Ms X brought this to the attention of the Council after Easter 2024. In mid-May, Ms X requested the Council provide s.19 education and made a formal complaint.
28. Ms X’s child started a new school in early June.
29. The Council’s complaint response stated that as Ms X’s child was on roll until late May, it was School A’s responsibility to provide education while her child ‘unfortunately felt unable to attend’, and the Council had not been at fault.
30. Ms X was dissatisfied with this response because it did not address the Council’s own duty under s.19.

Council’s response to my enquiries

31. I asked the Council to explain whether it made a decision at the relevant time that existing schooling was reasonably practicable for Ms X’s child to access, and whether s.19 education was required.
32. The Council told me it agrees the s.19 duty can apply when a child is on roll. It says it has reminded staff in response to my enquiries of their s.19 and s.42 duties. It also agrees the correct legal test is as set out at paragraph 18 above.
33. The Council says the caseworker has now left the Council and they did not save any documentation about the decision making at the time.
34. The Council now considers the caseworker misunderstood the s.19 duties and mistakenly considered work being sent home would meet the s.19 and s.42 duties, which was an error.
35. The Council says in light of this revised position it would like to offer Ms X a financial remedy to her complaint as follows:
• £1200 on behalf of her child for missed education.
• £250 for distress caused.

Analysis

36. It is not for the Ombudsman to say whether the school placement was or was not reasonably practicable for Ms X’s child to attend, this was a decision for the Council.
37. There was fault by the Council in failing to make, or record, a decision about whether Ms X’s child should attend school or receive alternative education when they stopped attending school. The Ombudsman’s expectation is that decisions should be documented, and clearly communicated to families, giving reasons. The lack of any decision record leaves uncertainty what the decision would have been had it been correctly taken.
38. Had the Council decided s.19 education was required, there is no statutory timescale for this, but it should have been arranged as quickly as possible after the March 2024 review. Taking into account a period to arrange provision, and school holidays, approximately six weeks of education was potentially lost.
39. The Council’s complaint response failed to fully reflect the legal duties of the Council. This was fault.
40. The Council has now offered Ms X a symbolic remedy payment of £1450. This is in line with our Guidance for Remedies for the level of injustice caused.
41. I cannot achieve any further worthwhile outcome for Ms X. I cannot make a finding that Ms X’s child did not receive appropriate education while at school or that missed provision has affected long term outcomes. The actions of the school are outside the scope of my investigation, and the evidence on progress provided at the review does not support this.

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Agreed action

Within four weeks of my final decision:

42. The Council will pay Ms X £1450 to acknowledge the impact of the fault.
43. The Council will apologise to Ms X for the fault identified in this decision statement.
44. 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.
45. The Council has already taken action to refresh officers’ knowledge of s.19 and s.42 duties, this should prevent a recurrence of the fault.

Within two months of my final decision:

46. The Council ensure officers follow a clear and consistent process when considering s.19 and s.42 duties. This should include consulting professionals involved with the child, considering all the evidence, reaching a decision, recording the decision and rationale, and then communicating this to families. The Council may wish to consider whether a decision checklist and standard decision letter format may be helpful to officers making decisions and to those reviewing decisions or considering complaints.
47. The Council will provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation. There was fault in the way the Council considered whether it had a duty to provide alternative education. During the investigation the Council has offered a suitable remedy for the injustice caused to Ms X and her child. I am satisfied the actions set out above are an appropriate resolution to the complaint. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman