Summary: Miss X complained about the Council’s failure to properly consider all the professional reports about her child’s, Y, health condition and educational needs. Miss X said as a result, the Council failed to provide Y, who cannot attend school due to medical reasons, with alternative provision. There were faults by the Council for its failure to properly consider Y’s case and for its failure to provide him with alternative provision. This has led to ongoing loss of education and support to Y, and it caused Miss X distress, frustration and worry. The Council will take action to remedy the injustice caused.

The complaint

1. Miss X complained about the Council’s failure to make alternative educational provision for her child, Y, who cannot attend school due to medical reasons. She said the Council failed to properly consider all the professional reports about Y’s health condition and educational needs before it made its decision not to provide him with alternative provision.
2. Miss X said the Council’s failings has led to ongoing loss of education and support for Y. She said the matter has also caused distress, worry, time and trouble and has affected her and Y’s health and wellbeing.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

10. I have investigated whether the Council met its statutory responsibilities in providing alternative provision to Y when he was absent from school. This investigation covers the period April 2022 to October 2023.
11. I have not investigated matters raised about Y’s Educational, Health and Care (EHC) needs assessment and EHC Plan. These are separate issues and new complaints as the final EHC Plan was issued in October 2023.
12. I have not investigated the actions of the school. This is because school matters are not within our jurisdiction.

How I considered this complaint

13. I discussed the complaint with Miss X and considered the information she provided. I also considered the information the Council provided in response to my enquiries.
14. I have exercised discretion to investigate matters from April 2022. This is because I needed to consider the whole period to carry out a meaningful investigation and there is evidence of continuing fault and injustice.
15. I sent Miss X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Legislation and Guidance

16. Section 19 of the Education Act 1996 (the Act) says each local authority will 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. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
17. If a child is unable to attend school because of illness, the council must make alternative arrangements once the child has been absent for 15 days, either consecutively or cumulatively. The council must consider the individual circumstances of each child and take account of any medical evidence or advice when deciding what arrangements to make.
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.
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)
20. Local authorities are expected to obtain data from all schools, regardless of governance, up-to-date and accurate data on all children not accessing full-time education.
21. 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? updated August 2023
22. 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.
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

23. 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.
24. A child with special educational needs may have an Educational, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. The Ombudsman cannot investigate or make changes to the sections about special educational provision. Only the tribunal can do this.
25. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.

Key events

26. Miss X’s child, Y, has some health conditions which affects his school attendance.
27. Y started missing school sporadically between April and October 2022 due to illness and medical appointments. Y was absent for more than 15 days during this period. And he finally stopped attending school at the end of October 2022 due to medical reasons.
28. In November 2022, Y’s school referred his case to the Council’s commissioned provider to offer Y an alternative provision placement. The Provider refused to offer Y a placement due being at full capacity and it said it had concerns about the high levels of Y’s needs.
29. In December 2022, Y’s school confirmed it was unable to meet Y’s needs, but he remained on the school’s roll.
30. In April 2023, Y’s school asked the Provider to reconsider its decision not to offer Y a placement. The Provider asked for medical evidence from Y’s consultants to confirm he could not attend school. Miss X submitted medical evidence from Y’s consultant to Y’s school and the Council. She explained she was unable to get a letter from Y’s GP to support his case.
31. Y continued to be absent from school and the Council did not provide him with alternative provision.
32. In May 2023, Miss X made a complaint to the Council. She expressed her frustration about how the Council had dealt with Y’s case. Miss X complained the Council and the Provider failed to properly consider the professional evidence she submitted in support of Y’s case. Miss X said as a result, the Council had failed to provide Y with support and alternative provision since he stopped attending school due to medical reasons. Miss X said the matter caused ongoing loss of education, provision and support to Y.
33. In the Council’s responses to Miss X’s complaint, it apologised for any frustrations the matter may have caused to her. It explained that where a child is too unwell to attend school, the school should refer the child to the Council’s commissioned provider for suitable educational provision. The Council said this happened in Y’s case, but the Provider was unable to offer Y a placement due to the lack of medical evidence to show he was unable to attend school. The Council said Y remained on his school’s roll which meant the school remained responsible to ensure Y had access to suitable education. The Council advised Miss X to contact Y’s school directly to discuss arrangements for Y’s education.
34. Miss X remained dissatisfied with the Council’s responses. She said the Council did not explain why it failed to consider the medical evidence she submitted to it and why it failed to provide Y with alternative provision for over a year. Miss X made a complaint to the Ombudsman.
35. During the period Y was absent from school in 2022, Miss X and Y’s school applied for an EHC assessment for Y. The Council initially refused to assess Y but subsequently overturned its initial decision. In October 2023, the Council issued Y’s final EHC Plan.
36. In response to our enquiries, the Council said Y stopped attending school in December 2022. The Council confirmed it failed to provide Y with suitable education and alternative provision since he stopped attending school. It apologised to Y and Miss X for the distress the matter has caused to them. The Council said its commissioned provider said it did not receive the medical letter Miss X submitted in support of Y’s case. And it said Y’s school was also unable to confirm if it received or passed the medical letter onto the Provider.
37. The Council said it was reviewing its draft policy on ‘Education for pupils unable to attend school for medical reasons’. The Council said it aims to publish the policy once it is finalised.
38. The Council said Y requires a placement within an alternative provision setting. The Council confirmed it has finalised Y’s EHC Plan with ‘Alternative Provision’ as the named setting. It said it continues to make consultations with suitable settings which includes Miss X’s preference. The Council said while it is awaiting consultation responses, it has made a referral to arrange an interim provision for Y.

Analysis

39. According to Section 19 of the Education Act 1996, where a child does not attend school by reason of illness, exclusion or otherwise, councils have a duty to provide the child with suitable education.
40. Once a child is absent from school because of illness for 15 days either consecutively or cumulatively, councils must make alternative provision for the child. Our approach relating to alternative provision has been updated in line with evolving caselaw. Where councils can demonstrate it has considered and it is satisfied that a child’s school placement is ‘reasonably available and accessible’ for the child, then councils do not have a duty to arrange alternative provision.
41. The Council in response to our enquiries said Y stopped attending school in December 2022. However, evidence shows Y missed school for more than 15 days between April and October 2022. And then he completely stopped attending school at the end of October 2022. This suggests the Council was not aware of Y’s absence from school prior to December 2022.
42. Between April and October 2022, when Y was absent from school, there was no evidence to show the Council was notified of his absence. So, I do not consider the Council could have arranged alternative provision for Y if it was unaware he was not attending school or that he required alternative provision during this period. This was not fault.
43. When Y stopped attending school completely at the end of October 2022, this was when Y’s school first referred him to the Council’s commissioned provider in November 2022. The Provider refused to offer Y a placement and asked for medical evidence to confirm Y was unable to attend school due to medical reasons. Miss X submitted a medical letter from Y’s consultant but there is no evidence to show the Provider received the medical evidence. This was fault. This meant the Provider was unable to properly consider Y’s case without the medical evidence Miss X submitted to support his case. As a result, the Provider was unable to reconsider its initial decision not to offer Y a placement for alternative provision. The Provider should have chased Y’s school for the medical information it requested. This was fault.
44. Where councils arrange for schools or commissions other bodies to carry out their functions on their behalf, councils remain responsible for the organisations’ services and actions. In Y’s case, the Council lost sight of its responsibility to ensure its commissioned provider discharged its duty to provide Y with alternative provision when he could not attend school. This was fault.
45. Also, the Council missed out on the opportunity to put things right when Y’s school confirmed it was unable to meet Y’s needs in December 2022. The Council failed to consider its statutory duties under section 19 of the Education Act 1996 to provide suitable alternative education. This was fault. It caused ongoing injustice to Y and Miss X.
46. The Council’s failings as identified above led to loss of education and support to Y over a significant period (October 2022 to October 2023). This meant Y was out of school for one academic year without any educational provision. The matter has also caused distress, frustration and worry to Miss X.
47. I note the Council has apologised and acknowledged it failed to provide Y with suitable education and alternative provision since he stopped attending school. However, I do not consider this is proportionate to remedy the injustice caused to Y and Miss X in line with our guidance on remedies. This has been addressed under the ‘agreed action’ section below.
48. As stated above, our investigation is about the Council’s duty in providing alternative provision to Y up until October 2023 and does not cover provision in his EHC Plan. But I note the Council said it has issued Y’s final EHC Plan. This engages Miss X’s appeal right. If Miss X disagrees with the provisions within the Plan, she can exercise her right of appeal to the tribunal if she wishes to do so. If the Council has not secured the provision in the Plan, she can make a new complaint.

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Agreed action

49. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the organisation, the Council will take action to remedy the injustice caused.
50. To remedy the injustice caused by the faults identified, the Council has agreed to within one month of the final decision:

• apologise in writing to Y and Miss X to acknowledge the injustice caused to them by the Council’s failings as identified above. The apology should be in accordance with our new guidance, Making an effective apology
• on behalf of Y, pay Miss X a symbolic payment of £4,500 for Y’s loss of education and support. This is a payment of £1,500 per term for the period October 2022 to October 2023
• pay Miss X £250 to acknowledge the distress, frustration and worry caused to her by the Council’s failings as identified above
• ask its commissioned alternative provider(s) to inform the Council when its placement reaches full capacity. This is to ensure the Council retains sufficient oversight of its commissioned alternative provision.

51. Within two months of the final decision:

• review and monitor the Council’s alternative provision process. Provide the Ombudsman with an action plan to demonstrate how the Council will meet statutory timescales for providing children who are unable to attend school with alternative provision in line with section 19 of the Education Act 1996
• finalise the Council’s draft policy on ‘Education for pupils unable to attend school for medical reasons’. The Council should publish the final copy of the policy on its website and send a copy to the Ombudsman.

52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I find evidence of fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman