Summary: Miss X complains the council failed in its duty to provide alternative provision to her son Y. We have concluded our investigation having made a finding of fault by the Council. I found the Council failed to provide sufficient alternative provision to Y when he was not attending School A between January 2022 to March 2022. This caused an injustice to Y, and I have proposed recommendations to the Council.

The complaint

1. Miss X complains the Council failed in its duty to provide alternative provision to her son, Y, as per his EHCP, whilst he was not attending School A. Miss X would like the Council to provide a substantive remedy to acknowledge the impact that an absence of education had on Y.

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What I have and have not investigated

2. As agreed with Miss X, I have investigated events from December 2021 to March 2022.
3. Certain decisions related to SEN have a right of appeal to the Special Educational Needs and Disability Tribunal (the Tribunal).
4. Where a parent has appealed to the Tribunal, we cannot investigate Council actions between the date the appeal was engaged up until the appeal is completed, where it is linked to the matters appealed. So, in these circumstances, the Council’s actions after March 2022 are outside the Ombudsman’s jurisdiction. It also means we cannot seek a remedy for any injustice during that period.
5. Ms X used her right of appeal in March 2022. This places any complaint after this date outside the Ombudsman’s jurisdiction. For this reason, I am unable to investigate her complaint about the Council’s failure to offer suitable educational provision/alternative provision from March 2022 onwards.

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The Ombudsman’s roles and powers

6. 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)
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
10. 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

11. I spoke with Miss X and considered the information she provided. I also raised enquiries with the Council and considered the information it provided in response. Miss X and the Council were both offered an opportunity to comment on my draft decision and I considered any comments that were made.

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What I found

Relevant law and guidance

Alternative provision - Inability to attend due to health needs

12. 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 or other reasons, may not receive suitable education unless such arrangements are made for them. We refer to this as section 19 or alternative education provision.
13. 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))
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 statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
16. 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))
17. 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)
18. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Educational provision – available and accessible

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)

Focus report

20. 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
21. 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;
• 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;
22. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the Council remains responsible. Therefore, Council’s must retain oversight and control to ensure their duties are properly fulfilled.

Background

23. Y has a diagnosis of Autistic Spectrum Disorder and Anxiety Disorder.
24. A Tribunal final hearing took place in November 2020, and the Tribunal Order was issued in December 2020.
25. Later in January 2021, the Council issued Y’s EHCP in line with the Tribunal Order. Named in Y’s EHCP was School A, which Y was registered in the same month.
26. From January 2021 to September 2021, discussions were held between Miss X and the Council about provision. The Council secured and arranged the provision as set out in Y’s EHCP. It is noted that it was accepted by all parties that the transition to school attendance would be a lengthy process for Y.
27. From September 2021 to December 2021, it is noted that collaborative conversations were held between Miss X and the Council for reasonable adjustments to provision to support Y to access learning. I note having discussed the case with Miss X, that her complaint relates to an absence of alternative provision provided between the period January 2022 to March 2022 when she engaged her right of appeal to the Tribunal.

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What happened

28. In December 2021, a review of Y’s EHCP took place. In January 2022, the Council issued its decision letter.
29. Prior to December 2021, Y attended introductory sessions via a mentoring programme offering emotional support and guidance for children. In December 2021, the Council discussed with School A about funding two hours per week via the school placement funding provided by it.
30. In January 2022, Miss X wrote to the Council that whilst the mentoring sessions were progressing well, she was unhappy with a lack of sufficient alternative provision in place whilst Y was capable of more and not attending School A.
31. During the period from January 2022 to March 2022, Y was not attending School A, and the only evidence I have seen of education/alternative provision is that provided by the mentoring programme that Y attended.
32. In March 2022, Miss X engaged her right of appeal to the Tribunal.

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Analysis

33. The Council has acknowledged that Y was not attending School A during January 2022 to March 2022.
34. Although Miss X reported that Y was enjoying and engaging in the mentoring sessions, this was not sufficient to meet the needs of Y as per his EHCP.
35. I have not seen any evidence of additional alternative provision that was provided to Y. The Council has acknowledged that it should have provided more suitable education for Y than was offered and delivered by School A. The absence of sufficient alternative provision is fault, and this caused an injustice to Y.

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Agreed action

36. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. I recognise the term period to be between 4 January to 31 March 2023, a total of 12 weeks, not including the half term break. I note that Miss X engaged her right of appeal on 9 March 2022. This means there are a total of 8 weeks to consider.
37. I have also arrived at the middle point of the remedy scale at £1650, which considers the severity of Y’s SEN and the provision that should have been provided. Using the above apportionment, I have arrived at a figure of £1,100.
38. To remedy the fault and injustice imposed on Y and Miss X, the Council have agreed to:
1. Pay Miss X an amount of £1,100. This is to acknowledge the lack of alternative provision provided to Y. This award should be used for the benefit of Y.
2. Provide a written apology to Miss X, acknowledging the impact its action had on Y.
39. The Council will also:
1. Explain what it will do to prevent similar occurrences detailed in this complaint. The Ombudsman would like to see evidence of service improvement which specifically addresses occurrences where children are without sufficient educational provision.
40. The Council have agreed to complete action a-b within one month of the Ombudsman’s final decision and action c within two months of the Ombudsman’s final decision.

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Final decision

41. I have concluded my investigation having made a finding of fault by the Council. I found the Council failed to provide sufficient alternative provision to Y when he was not attending School A between the period January 2022 to March 2022. This caused an injustice to Y, and I have proposed recommendations to the Council.

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Investigator's decision on behalf of the Ombudsman