Summary: Mrs X complained that the Council failed to make suitable alternative provision for her daughter when she was unable to attend school because of anxiety. We found the Council was at fault in failing to put in place alternative provision between September 2022 and January 2023. The Council has agreed to make a payment to Mrs X in recognition of the injustice caused.

The complaint

1. Mrs X complains that the Council failed to make suitable alternative provision for her daughter, D, when she was unable to attend school due to anxiety. Mrs X says that, as a result, D has missed out on education, the family has suffered distress and she has incurred costs in providing her with an education.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as ‘the Tribunal’ in this decision statement.
5. 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

6. I have investigated Mrs X’s complaint that the Council failed to make suitable alternative provision for her daughter between September 2022 when she was due to start her new school and January 2023 when Mrs X complained to us.

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How I considered this complaint

7. I have considered all the information provided by Mrs X, made enquiries of the Council and considered its comments and the documents it provided.
8. Mrs 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

Legal and administrative background

Education, health and care plans

9. A child with special educational needs (SEN) may have an education, health and care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections which include:
• Section B: The child or young person’s special educational needs
• Section F: The special educational provision needed by the child or the young person
• Section I: The name and/or type of school.
10. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.

Education for children out of school

11. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise.
12. Where a child is permanently excluded from school, or if they are unable to attend “because of illness or other reasons”, section 19 of the Education Act places a duty on councils to arrange suitable alternative education. The only exception is when suitable provision is already being made.
13. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special educational needs (SEN). It should be full-time, unless the physical or mental health of the child means that full-time education would not be in their best interests. The education can be made up by two or more part-time provisions.
14. The Council should attempt to arrange this alternative provision as soon as it is clear the child will be away from school for more than 15 school days, although there is no statutory timeframe.
15. When considering whether a school can meet a child’s needs, the Council must decide whether it is “reasonably practicable” for them to attend. The Council must consider relevant information, including medical advice, when reaching this decision but is not obliged to follow medical advice.
16. 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? Ensuring children out of school get a good education, published in July 2022)
17. We made six recommendations. We said councils should:
• consider the individual circumstances of each case and be aware they 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 in reaching decisions;
• choose, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Key facts

18. Mrs X’s daughter, D, has SEN and had been out of school since October 2021 because of severe anxiety. She was on the roll of a mainstream high school (‘the School’) which she was due to attend from September 2022.
19. In June 2022 Mrs X requested an education, health and care needs assessment (EHCNA). The Council refused the request.
20. During June and July the School tried to acclimatise D.
21. On 22 August Mrs X contacted the Council requesting suitable alternative education for D while she was out of school for medical reasons and referred to section 19. She said D developed severe anxiety during the autumn term 2021 leading to non-attendance. Although attempts were made to reintegrate her to school, these failed and she had to remove her from the school’s roll and home educate (EHE) for the rest of Year 6. Mrs X explained D has SEN relating to ADHD and autistic traits so EHE was not an option from Year 7. She said D would be unable to attend school until she had recovered from her anxiety. Mrs X requested face-to-face education for D at home from September saying she struggled to engage with online tuition.
22. On 30 August Mrs X complained to the Council that suitable education had not been put in place. She asked for a referral to Access to Education (A2E) at the beginning of term so she did not miss out on education.
23. D did not attend school at the start of term in September because of her anxiety. The Council says the Inclusion Officer attended a planning meeting on 5 September and discovered that the school had been in dialogue with the family through the summer holidays to try to initiate a reintegration plan. The officer advised the school to make an enquiry with A2E.
24. At the end of September the Council agreed to complete an EHCNA.
25. On 4 October the Inclusion Officer reported that the School was waiting for a medication plan to help it make any necessary adjustments.
26. On 25 October the Council responded to Mrs X’s complaint. It said the School had forwarded medical information to the A2E team and it would assess this and offer a programme of education if appropriate.
27. In November the Council offered support from A2E. Mrs X says that when she met with A2E they did not have any teachers available so were only able to offer mentoring with a learning support worker. This started on 18 November and consisted of one session per week. D found this difficult at first but, over the second half of the autumn term, her engagement increased as she established a relationship with her mentor.
28. On 20 December the question of whether to issue an EHCP was considered by the EHCP Governance Board. The decision was deferred because the Board requested detailed information from the School on what the transition plan was and what strategies had been put in place to support D.
29. A2E issued a support plan on 2 January 2023. The plan was to continue building a relationship and develop D’s confidence.
30. On 19 January Mrs X again asked the Council for help with D’s education while she was out of school. She explained D was under the care of the children and adolescent mental health service (CAMHS). She said she had been trying to bridge the gap in her education since September but could no longer afford to pay for these activities. She said D had been attending APPEER sessions (socialisation and activities for autistic girls), Mindjam sessions (mentoring and educational support) and online English and maths practice. She asked whether the Council could fund these activities.
31. The Council’s Education and Inclusion Service Manager responded noting that the A2E team was providing some services to D and that she had been linked with Early Help services who could offer the family support. She referred Mrs X to the SEND local offer. She said there was no fund available that could provide financial support, particularly as A2E services were in place. She noted the outcome of the EHCNA would be discussed at Governance Board the following week and advised Mrs X to await the outcome of this process.
32. On 24 January D’s mentoring sessions increased to twice per week.
33. On 25 January the Governance Board reconsidered D’s case and decided to issue an EHCP.
34. On 30 January the School wrote to Mrs X saying it had tried various things to introduce D to school, all of which had been unsuccessful. It said the Council should take on responsibility for D’s education because it had a duty to put in place alternative provision under section 19. The School said the Council wanted it to provide online education for D but it did not consider this to be reasonable unless it formed part of a short term reintegration plan. As D had not attended since September, the School considered it unlikely that remote education would encourage a return to school. It had therefore referred the matter to the Council for it to consider alternative provision.
35. On 30 January Mrs X wrote to the Council saying it should have provided D with a suitable education since September 2022. She said the A2E provision was not education but only mentoring. She requested referrals to Surrey Online School (SOS) for maths, English and science tuition, and to APPEER and Mindjam.
36. In February 2023 the Council arranged for C to attend English, maths and science lessons provided by SOS to complement the mentoring sessions. This was funded by the School.
37. The Council also issued a draft EHCP stating that D should attend a mainstream school with 20 hours support and naming D’s current school. The Council said the school would receive funding for 20 hours support which would be used for the provisions already in place which were working well for D.

Analysis

Alternative provision

38. Where a child is not able to go to school because of exclusion, ill-health, or otherwise the Council should ensure they receive a suitable education as soon as it is clear they will be away from school for 15 days or more.
39. Mrs X contacted the Council in August 2022 asking for alternative provision because D would be unable to attend school in September due to her anxiety. The Council’s inclusion service was already aware of the situation because there had been a period of EHE after Mr and Mrs X removed D from her previous school. The Inclusion Officer attended a meeting with the school at the beginning of term and was aware that D was not attending and that the school had attempted reintegration over the summer which had not been successful.
40. I find the Council should have put alternative provision in place from September 2022 when it was clear that D would miss 15 days of school. I accept it arranged mentoring for D, but this was not education. Although D could not attend school because of her anxiety, it was clear that she could cope with some education as Mrs X was funding some online provision for her. It was not sufficient for the Council to expect the school to take responsibility for providing alternative provision. It should have considered its section 19 duties and provided alternative education for D while it was completing the EHCNA.
41. I have recommended a remedy for the loss of provision from September 2022 until January 2023 when Mrs X complained to us.

Complaints process

42. Mrs X complained to the Council on 30 August 2022. The Council issued a stage 1 response on 25 October 2022 and apologised for the delay.
43. The Council’s complaints process states that it aims to provide a full response at stage 1 within 10 working days. It significantly exceeded this timescale. This was fault. However, I consider the Council’s apology represents a satisfactory remedy for the injustice caused.

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Agreed action

44. The Council has agreed that, within one month, it will:
• apologise to Mrs X for failing to put in place alternative provision and the distress, anxiety and frustration caused;
• pay Mrs X £250 to acknowledge her avoidable distress and frustration; and
• pay Mrs X £1500 to use for D’s educational benefit.
45. The Council has also agreed that, following a review of its procedures and the development of a revised process, it will provide training to Inclusion, A2E, SEN teams and schools on best practice in supporting children on a school roll who are not accessing full-time education and the Council’s duty under section 19 of the Education Act 1996. The Council should do this within two months.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I find the Council was at fault in failing to put in place alternative provision for Mrs X’s daughter when she was unable to attend school due to anxiety between September 2022 and January 2023.
48. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman