Summary: Mrs X complained the Council failed to provide suitable alternative education when her son, B, was too unwell to attend school. We find the Council was at fault for failing to provide B with alternative education. This caused distress to Mrs X and B has been out of education. To address the injustice caused by fault, the Council has agreed to apologise, make symbolic payments and remind staff of the relevant guidance.

The complaint

1. The complainant, Mrs X complains the Council failed to provide suitable alternative education when her son was too unwell to attend school.

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What I have and have not investigated

2. I have investigated whether the Council have taken the right action when finding out B had not been attending school. I have not investigated the Council’s decision about what type of schools to name and what happened after July 2021 for the outlined reasons in the final paragraph of this statement.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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. 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.
7. 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.
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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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How I considered this complaint

10. I spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

What should have happened?

Education, Health and Care plans

12. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. This can include support needed in school.
13. Before producing an EHC plan, a council must complete an EHC assessment. Both parents and schools can ask councils to do this and councils must then decide whether an assessment is necessary.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
15. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Alternative provision

16. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
17. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
18. Councils are responsible for arranging suitable full-time education for permanently excluded pupils, and for other pupils who-because of illness or other reasons- would not receive suitable education without such provision. This applies to all children of compulsory school age resident in the Council’s area, whether or not they are on the roll of a school, and whatever type of school they attend.
19. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made seven recommendations including that councils:
• Consider the individual circumstances of each case and be aware that the Council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis)- and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare and take 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 education.
• 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.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the Council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.

Absences from school

20. A school may authorise a pupil’s absence if, for example, the child is too ill to attend, the school has given advance permission for the absence, or the child is being educated off-site. Schools must regularly inform the council of any pupils who are regularly absent from school, have irregular attendance, or have missed ten school days or more without the school’s permission.
21. When a child refuses to attend school, or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. Where 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.
22. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
23. When reintegration into school is anticipated, councils should work with the school (and hospital school, PRU/home tuition services if appropriate) to plan for consistent provision during and after the period of education outside school. As far as possible, the child should be able to access the curriculum and materials that he or she would have used in school. The Council should work with schools to ensure that children can successfully remain in touch with their school while they are away. This could be through school newsletters, emails, invitations to school events or internet links to lessons from their school.
24. Councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.

What did happen?

25. This section sets out the key events in this case and is not intended to be a detailed chronology.
26. Mrs X’s son B has a diagnosis of Autism Spectrum Disorder with Pathological Demand Avoidance Profile and behaviour pattern and Attention Deficit Hyperactivity Disorder.
27. The Council sent Mrs X its decision letter to carry out an EHC needs assessment for B in March 2021. As part of the assessment, it considered reports from medical professionals.
28. The Council completed an early help assessment the following month. This was due to concerns as Mrs X had requested help with her five children. The assessment noted B had not been attending school. It said the Council would speak with the school and see what support it could offer.
29. The Council attended a meeting at B’s school in May 2021 to discuss how to reintegrate B back into school and completed a reintegration plan. It discussed referrals to the children and young people’s mental health service, occupational therapy (OT) and speech and language therapy (SALT). The Council agreed to ask the SEN team about possibly arranging home tuition for B.
30. The Council told Mrs X the following day its SEN team only arrange tuition for pupils not on roll to a school, who have an EHC plan. It said whilst B is on roll at his current school, the school are responsible for his education, including any tuition needed to be put in place at home. It said B’s EHC plan assessment was still in process.
31. An educational psychologist report stated because of B’s complex needs and anxiety he had not attended school since March 2021. It recommended B was supported by a key adult in school.
32. In May 2021, the Council sent Mrs X its decision letter to issue an EHC plan for B. It said it considered mainstream school suitable. But Mrs X said the educational psychology report it relied on did not include B’s most recent diagnosis.
33. Mrs X asked the Council in June 2021 when she would receive B’s draft EHC plan. She said B was still not able to attend school and said the school had not provided any other suitable alternatives. It sent Mrs X the draft EHC plan on 14 June 2021.
34. The Council asked Mrs X to provide medical evidence that B was not fit to attend school. It also asked B’s school if it had been provided with evidence. The school said it did not have evidence but said it had not seen B since the meeting held in May 2021.
35. Mrs X’s advocate asked the Council about consulting specialist schools and asked if it could discuss an interim education other than at school (EOTAS) package once a medical letter had been obtained. The Council said it did not fund interim tuition unless a child was not on roll whilst awaiting placement. It said children are expected to attend at the school they are on roll to and for children who are medically unfit to attend, other arrangements may need to be discussed.
36. Following the school’s referral to the Council’s health needs education service it said it had no primary provision and did not support learners with EHC plans. The service said it had offered online learning, but Mrs X could not support B with this. The school said it had been advised not to provide online learning for B as it can meet B’s learning needs.
37. The Council issued B’s finalised EHC plan in July 2021. It named B’s current school and said B would have a regular adult to do regular check ins and support across the school day as needed. Mrs X appealed to the SEND tribunal about the type of school named in the plan.
38. In the same month, an OT report stated B had not attended school since March 2021 due to anxiety. It recommended B to have a phased return to school with 1:1 support in a school with children with special needs. A SALT report the following month stated B needed weekly direct 1:1 SALT sessions.
39. Mrs X complained to the Council in October 2021. She said B was still without suitable provision and requested a personal budget to fund a EOTAS package. The Council said it could not accept Mrs X’s complaint as Mrs X had appealed the content of the EHC plan to the SEND tribunal.
40. Mrs X complained to the Council again in January 2022. She said the Council should have considered her complaint about the Council failing to provide suitable alternative provision for B who had medical evidence confirming his ill health.
41. The Council said it had medical evidence from B’s GP stating he was unable to attend school. It said it would expect B’s school to ensure he had access to education whilst the appeal was being heard. But said as the school have not, it would make a referral to its education programme.
42. In April 2022, Mrs X asked for her complaint to be escalated. She said the personal budget had not been actioned and B was still not receiving education.
43. The Council’s notes stated it referred B to its education programme in April 2022 and it was approved. It arranged for home tuition for B in the interim until the appeal concluded.
44. The Council told Mrs X in August 2022 as the ongoing appeal relates to the type of school and Mrs X has requested an EOTAS package, the Council cannot amend B’s EHC plan regarding a personal budget. It said Mrs X had refused the alternative education it had offered which was home tuition as it was unsuitable but said it was still available.

Analysis

45. For the reasons outlined in the final paragraph of this statement, I cannot investigate whether there was any fault in the Council naming the school and what happened after the July 2021 EHC plan was issued. I can only consider whether there was any fault on the Council’s part when it found out B was not attending school.
46. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’ the Council must intervene and make such arrangements itself. The duty arises after a child has missed 15 days of education either consecutively or accumulatively. From the evidence I have seen, the Council became aware B was not attending school in April 2021.
47. There is a duty on the school where a child is on roll to provide education. In this case, the school implemented a reintegration plan for B in May 2021 at a meeting it held which the Council attended. I cannot consider the actions of the school so I cannot comment on whether the actions taken were sufficient. Following the meeting, the Council’s SEN team said it could only arrange tuition for pupils not on roll, who have an EHC plan. It said B’s education was the school’s responsibility. This is fault. Any hours of teaching provided by a school will count towards the full-time duty, but councils remain responsible for any shortfall. The guidance applies to all children of compulsory school age, whether or not they are on roll of a school.
48. The school referred B to the Council’s health needs education service but in June 2021 the service said it had no primary provision and did not support learners with EHC plans. It said it offered online learning for B, but Mrs X was unable to support him with this. This is because Mrs X is registered blind and has four other children. In the same month, the school told the Council it had not seen B since the meeting in May 2021. While the service did offer online learning, the Council has provided no evidence showing how it satisfied itself this and the reintegration plan was suitable and sufficient for B. This is fault.
49. Mrs X told the Council in June 2021 the school had not provided any suitable alternative education for B. During this period, the Council was working on drafting B’s EHC plan. By doing so the Council was aware B had special educational needs that required additional support. But the Council asked Mrs X to provide medical evidence that B was not fit to attend school. The guidance states that a lack of medical evidence should not stop a child from accessing education and that councils should consider liaising with 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. There is no evidence to suggest the Council did so. This is fault. This caused significant distress to Mrs X at a time she had serious concerns for B.
50. It is acceptable for councils to see whether, in the first instance, the school can reintegrate a non-attending child. However, the statutory guidance makes clear that reintegration plans should be used when the child’s re-attendance is ‘anticipated’. It is clear from the records that B’s non-attendance was not increasing despite ongoing efforts made by the school and family. Despite this, the Council continued in its refusal to support Mrs X and B.
51. The LGSCO’s guidance says, if a school placement breaks down and the child is out of school, we can look at the period from then until any right of appeal arises. If a child’s absence is directly linked to their SEN, for example anxiety about attending school, we consider it is too closely linked to matters which could be appealed. Therefore, I will not provide a remedy for any provision B missed between July 2021 and November 2022. As Mrs X received a final EHC plan on 9 July 2021 she had the right to appeal the named placement which she did and is awaiting a response.
52. In acknowledgment of missed education, we recommend a payment per school month. I consider an appropriate figure in this case to be £300 per month between April when the Council became aware B was not attending school to July when appeal rights were pursued. In determining this, I have taken into account that B required support at school across the day, as needed.

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Agreed action

53. To address the injustice caused by fault, within one month of the date of my final decision the Council has agreed to:

• Apologise to Mrs X for the faults identified in this decision statement.
• Pay Mrs X £900 for the educational benefit of B, to recognise the impact of its failings on B’s education.
• Pay Mrs X £150 to acknowledge the distress caused by the faults identified in this decision statement.

54. Within two months, issue written reminders to relevant staff to ensure they are aware of:

• The Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
• The Department for Education statutory guidance which says where 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

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

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Final decision

56. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Parts of the complaint that I did not investigate

57. I have not investigated the Council’s decision about which schools were suitable for B and what happened after the July 2021 EHC plan was issued. This is because Mrs X had the right to appeal the decision at tribunal, which she did and is awaiting a response.

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Investigator's decision on behalf of the Ombudsman