Summary: The complainant, Mrs X, complained that the Council failed to provide her son with alternative education for seven months and said the Council’s communication has been poor. We find the Council at fault. This caused significant stress to Mrs X who spent time and money in ensuring her son received an education at home. The Council has agreed to several recommendations to address the injustice caused by these faults.

The complaint

1. The complainant, Mrs X, complains that the Council failed to provide her son, B, with alternative education for seven months and said the Council’s communication has been poor. She said because of her son being out of school his anxiety has increased and said this has had a significant impact on her health.

Back to top

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 and whether the Council’s communication was poor. I have not investigated the Council’s decision to not consider B for an education, health and care (EHC) needs assessment. This is because Mrs X had the right to appeal the decision at a Tribunal.

Back to top

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 We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

Back to top

How I considered this complaint

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

Back to top

What I found

What should have happened?

Timescales and process for EHC assessments

11. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.

Alternative provision

12. 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.
13. 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 (AP) 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.
14. 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.
15. 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

16. 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.
17. 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.
18. 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.
19. 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.
20. 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.

The Community and Hospital Education Service (CHES) alternative education provision

21. CHES is an AP academy that is commissioned by the Council to provide education for pupils unable to attend school due to medical reasons. Its main principles are:
• Ensure early identification and intervention and thus reduce anxiety for children and young people, families and schools.
• Provide education for all children and young people of statutory school age whose health enables them to access this.
• Encourage close liaison with parents and carers at every stage of the process.
• Ensure that the child’s view is taken into account at every stage.
• Provide continuity of educational provision.
• Promote successful reintegration back into mainstream school or Post 16 provision.
• Work together with other services and agencies to ensure there is a high-quality educational provision for this group of vulnerable children and young people.
• Ensure effective liaison with health professionals by schools, CHES and other AP provision.

Supporting Change in Partnership (SCIP)

22. SCIP is solution focused, fosters new skills in families and celebrates success. SCIP is a practical way of working in partnership with families towards their goal. SCIP is a preventative, time limited approach that sets out to improve outcomes for children and their families. SCIP aims to respond quickly to children, young people and their family’s needs.

What did happen?

23. This section sets out the key events in this case and is not intended to be a detailed chronology.
24. Mrs X contacted the Council in January 2022. She said her son, B, had low attendance at the school where he was on roll. This was because he had high anxiety. The Council’s notes stated Mrs X was in touch with the school who had talked about CHES with her. The Council advised Mrs X to meet with the special educational needs co-ordinator to put a plan in writing of what had been tried, what can be tried, what’s worked and what had not.
25. The Council spoke with the school in the same month. The school said B had not returned to school and said it had offered support to Mrs X which she did not engage with. It was also noted that CHES had advised the school B’s health needs did not meet the threshold for referral.
26. A meeting was held at school in February 2022 to discuss B’s absence. It was noted that:
• Mrs X had been offered a SCIP worker which she declined.
• Mrs X provided a GP letter dated 21.01.22 which stated B had a history of anxiety and said she felt this letter should warrant a referral to CHES.
• Mrs X was advised as the letter did not refer to current difficulties or a proposed treatment plan, it was not suitable evidence for CHES but it was noted that this would support when considering alternative strategies.
• Mrs X was advised that if she could get the GP or other health practitioner to complete the medical referral, school would complete the CHES referral. But the school said as the outcome was likely that it would be refused, it said it should try to support B to re-engage in school using small steps to break the cycle of absence.
• Mrs X expressed her concerns for B and stated she would not force him to go into school if his anxiety was bad.
27. The Council’s notes stated it spoke with Mrs X in the same month. She said she wanted support around attendance and B’s mental health. She also said she had declined the SCIP worker as she had felt overwhelmed by professionals.
28. In March 2022, Mrs X told the Council she was concerned about B’s continued absences from school and his low mood and anxiety which Mrs X believed was due to his unmet needs. She submitted an EHCP assessment request.
29. In the same month, the Council’s notes stated Mrs X said one of the services, which she had previously been offered by the school was not appropriate as a neurodevelopmental assessment had been requested. Mrs X told the Council under S.19 of the Education Act 1996, it was the Council’s responsibility to fund education after so many days absence.
30. In March 2022, the school told the Council it had received updated health information for B. This was a GP letter provided by Mrs X, confirming B was unfit to attend school. The notes stated the school would have to consider access to alternative provision and agreed to refer B to CHES.
31. Mrs X asked the Council in the same month if it had received the GP letter she had sent it. She said she was home educating B and said he was attending circus skills twice a week and forest school once a week. This was being funded by Mrs X.
32. In the following month, Mrs X told the Council the school was not doing anything and had not referred B to CHES. She said the school had initially tried to reintegrate B back into school but said he had become too distressed. Mrs X said she had been accessing forest school and circus skills for B and said she would like some support with his education and support with funding the current activities. Mrs X provided the Council with medical letters confirming B was going to be assessed by the mental health team.
33. In April 2022, the Council told Mrs X it would work with the school to develop a plan of support. It also said to identify what suitable education provision could look like, it would need to speak to professionals involved for advice. The notes also stated a SCIP worker had now been allocated.
34. In the same month, the Council sent Mrs X a letter which stated it did not consider an EHC needs assessment was required for B as it said it was not clear that there were needs that are over and above those which can be met from delegated funding as SEN support.
35. The Council told Mrs X in April 2022 that it was waiting for clarification on whether CHES would be accepted. It also said it needed signed consent from Mrs X so it could discuss with professionals about what provision would be suitable for B. It said B was completing some work at home alongside the circus skills and forest school that Mrs X was funding. The Council said it had asked the school to consider visiting B at home to ensure he still had a relationship with staff at school.
36. Mrs X was advised in June 2022 that due to a long waiting list, it was unlikely that CHES would be allocated in the current academic year.
37. In August 2022, it was agreed that B would go to outdoor activities session one day a week and CHES for three sessions a week. The CHES sessions were to be provided at home.
38. Mrs X asked the Council for an update on 7 September 2022. She said she had been trying to get hold of the Council but said she had no responses.
39. A meeting was held on 21 September 2022. It said B had been attending the outdoor activities on a Monday, CHES was delivering core sessions three days a week and said Mrs X had arranged another activity one day a week. It discussed a planned integration into school and a visit in school was arranged.
40. The following month a further meeting was held. It said B was working with CHES at school and home. It said there was potential for increasing B’s timetable at school and that he would attend classes in the nurture room. It was also noted that the two activities would run until December and it would then be re-evaluated.
41. A review meeting held in November 2022 stated CHES had been going well when B can get in as he had been struggling. It said the plan was to integrate B back into school.

Analysis

42. Mrs X said the Council’s communication was poor throughout and stated the Council did not take action. From the evidence seen, the Council did not always respond to Mrs X’s emails in a timely manner. This is fault. This meant Mrs X spent unnecessary time and trouble contacting the Council.
43. 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 January 2022.
44. There is a duty on the school where a child is on roll to provide education. In this case, the school said as it was unlikely the CHES referral would be accepted, it said it should try to support B to re-engage in school. It also said it had offered support to Mrs X which she didn’t engage with. I cannot consider the actions of the school so I cannot comment on whether the actions taken were sufficient.
45. Following this, Mrs X made the Council aware in February 2022 that she was concerned for B who was still not attending school. The Council told Mrs X in March 2022, following receiving further health information for B, the school would consider alternative provisions and refer B to CHES. But Mrs X then told the Council the school had done nothing. The Council has provided no evidence showing how it satisfied itself any action taken by the school was suitable and sufficient. This is fault. Any hours of teaching provided by 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.
46. 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 attendance was not increasing. Despite this, the Council did not consider looking into alternative provisions until March 2022. This is fault.
47. While the Council did advise Mrs X in April 2022 that it was waiting for clarification on whether a CHES referral would be accepted, the alternative provision was not agreed for B until August 2022. Mrs X was advised in January 2022 that the GP letter she had was not enough to warrant a referral to CHES. She was advised in February 2022 that if she could get a GP or health practitioner to complete a medical referral, the school could complete the CHES referral but said the outcome was likely that it would be refused. 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. The Council did not ask Mrs X for consent to contact B’s GP until April 2022. This is fault. I cannot say whether referring B for CHES sooner would have placed him in education sooner as there was a waiting list. But the responsibility was left with Mrs X to fund B’s education, something the Council should have been arranging sooner. As Mrs X made provision for B, I do not consider that he suffered significant detriment to his education by being out of school.
48. I consider the correct approach to remedying this complaint is to look at Mrs X’s quantifiable loss. Our remedies guidance makes clear that we can consider making recommendations to recompense parents who spend money on education which an education authority should have met.

Back to top

Agreed action

49. To remedy the injustice caused by fault, within one month of my final decision the Council has agreed to:
• Apologise to Mrs X and B for the faults identified in this statement.
• Reimburse Mrs X for the money she spent on part of B’s education between January when the Council became aware B was not attending school and August when the AP was agreed. This does not include items outside of the Council’s parameter.
• Pay Mrs X £200 to acknowledge the distress caused by the faults identified in this statement.
50. Within two months of my final decision, the Council has agreed to 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.
51. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

52. 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.

Back to top

Investigator's decision on behalf of the Ombudsman