Summary: Mrs X complained the Council failed to provide her child with alternative education when she was unable to attend school due to ill health. The Council was at fault for failing to consider its duty under Section 19 of the Education Act 1996 from April 2022 to February 2023. The Council has agreed to apologise to Mrs X and pay her £3250 to acknowledge the frustration, uncertainty and the loss of provision.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains the Council failed to provide her child, Y, with alternative education when she was unable to attend school due to medical reasons. Mrs X complains this has been an ongoing issue since 2019.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

7. I have not investigated the Council’s decision not to assess Y’s needs for an EHC Plan because this decision is appealable to the SEND Tribunal.

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How I considered this complaint

8. I considered Mrs X’s complaint and the information she provided.
9. I considered the information I received from the Council in response to my enquiries.
10. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Relevant law and guidance

Education Health and Care Plans

11. Children with special educational needs may have an Education, Health and Care (EHC) Plan. Councils are the lead agency for carrying out assessments for EHC Plans and have the statutory duty to secure special educational provision in an EHC Plan (Children and Families Act 2014, Section 42).
12. 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 Code is based on the Children and Families Act 2014 and the SEND 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;
• the process of assessing a child’s needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• the whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks.
13. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
14. 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. The appeal can be against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a Plan has been made and sent to the parent or a final EHC Plan has been issued. We cannot direct changes to the sections about the child’s special educational needs, special educational provision, or name a different school. Only the SEND Tribunal can do this.
15. 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).

School attendance

16. Section 7 Education Act 1996 requires parents of children of compulsory school age to ensure their child receives full-time education by regular attendance at school or otherwise.
17. Schools and Councils have various powers to enforce attendance at school. This may include parenting contracts, parenting orders and fixed penalty notices.
18. Councils can also prosecute parents for a criminal offence if they fail to ensure their child attends regularly at school. (s.444(1)(A) Education Act 1996)
19. Statutory guidance ‘Working Together to Improve School Attendance’ says schools, councils and families should work together to identify root causes of absence and remove barriers to attendance. This may include putting in place an early help plan, or assessing for an Education, Health and Care (EHC) Plan.

Education when a child cannot attend school

20. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements (Statutory guidance ‘Alternative Provision’ January 2013).
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have (Education Act 1996, section 19(6)).
22. 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).
23. 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. We made recommendations that 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.
24. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.
25. Statutory Guidance ‘Ensuring a good education for children who cannot attend school because of health needs’, says councils should work closely with medical professionals and the child’s family. Where specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should consider liaising with other medical professionals or look at other evidence to ensure minimal delay in arranging appropriate provision for the child. The Guidance says Councils should not unnecessarily demand continuing evidence from a consultant without good reason.
26. In R (on the application of D) v A local authority [2020] EWHC 2916 (Admin) the Court said that it was not a precondition for alternative provision to be provided when parents have obtained a consultant’s report. There may be other ways in which the child’s illness and inability to attend school come to the attention of the local authority. The Judge said it was clear from section 19(1) itself that the responsibility rests with the local authority to identify when alternative provision is required for a child on health grounds: it is the local authority’s decision.
27. In new guidance, ‘Summary of responsibilities where a mental health issue is affecting attendance’ and ‘Working together to improve school attendance’ the Government says professionals should provide cross-agency support through a team around the family to alleviate a pupil’s concerns about barriers to attending school. Schools must record absences as authorised where pupils cannot attend due to illness that is mental health related. Schools should inform the Council where pupils are likely to miss more than fifteen days. Councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education.

The Council’s policy on children who are missing education due to health/medical needs

28. The Council has a policy where a medical referral from the school the child is on‑roll at is sent to the Council, managed by the Fair Access Team, who then arrange medical provision.
29. The Council used to have a policy where it required medical referrals to have evidence from a consultant in order to be made/progressed. The Council changed its policy in November 2022 to remove the absolute requirement to have evidence from a consultant and instead referrals were to be accompanied with evidence from ‘relevant professionals’.

What happened

30. In March 2022, Y was in Year 8. Y has experienced difficulties attending school since she was in Year 5. Y was in Year 9 when she received a formal diagnosis by a psychiatrist of anxiety and depression.
31. Interventions by the school she was attending, including two managed moves, were unsuccessful.
32. In April 2022 Mrs X provided the Council’s Fair Access Team with a letter from Y’s GP confirming her health needs and the impact it was having on her attendance at school.
33. Y’s school, the Fair Access Team and Pupil Entitlement had advised Mrs X that a referral for blended learning could not be submitted without relevant medical evidence from a consultant, as per the Council’s policy. At the time, Y was on a lengthy waiting list for Child and Adolescent Mental Health Services (CAMHS).
34. In January 2023, the Council received a referral for blended learning from Y’s school. The Council considered the referral and decided a package of blended learning would be offered to Y.
35. Blended learning for Y began on 13 March 2023. On this same day Mrs X complained to the Council that Y had not received a full-time education since she was in Year 6 due to the Council’s refusal to accept the medical evidence she had provided. Mrs X explained that the Council’s refusal to accept the medical evidence had resulted in Y missing almost three years of education and blended learning could have been secured earlier.
36. The Council responded under Stage 1 of its complaints procedure in May 2023. It acknowledged Mrs X’s concerns that the referral was not made earlier but it advised her to discuss these concerns directly with the school because the Council had considered and implemented the blended learning promptly. It also listed interventions available for Y to support her learning.
37. On the same day Mrs X requested her complaint be escalated to the second stage of the Council’s complaint process. Mrs X highlighted that the Council (Fair Access and Pupil Entitlement) had advised her the medical evidence was not sufficient for a referral and the Council’s guidance on the matter was very clear in that the evidence would not be accepted. Mrs X also advised the Council that although Y was now receiving Blended Learning, it was not suitable for her needs as it was only 2 hours a week and not full-time education. Mrs X also highlighted Y was unable to access some of the interventions because she was unable to attend school.
38. The Council refused Mrs X’s request to escalate her complaint. It advised her to appeal to the SEND Tribunal about the Council’s decision not to assess Y for an EHC Plan. The Council said the provision was actioned in a timely manner once it received the referral from the school.  It also advised her to raise the matters relating to Y being unable to access provision with the SEND Tribunal to support her appeal.
39. Mrs X contacted the Council to say her complaint had been misunderstood. She clarified her complaint was that the school had been advised by the Council that they were unable to apply for blended learning until medical evidence was received and as it took two years for Y to be seen by a psychiatrist at CAMHS due to their lengthy waiting list, it took two years to receive the evidence and Y was left without education for that time.
40. The Council responded to Mrs X and said that whilst medical evidence was required to implement blended learning, it would still be the responsibility of the school to put in place strategies to ensure the wellbeing needs of Y were being met, with support available from local authority services.

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Analysis

Alternative provision for Y

41. Councils have a duty to identify children not receiving an education. 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 (I refer to this as the Council’s Section 19 duty). The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
42. 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.
43. From the evidence I have seen, I consider the Council’s Fair Access Team was aware from at least April 2022 that Y was not attending school but the Council did not arrange alternative provision until 7 March 2023. I have not seen any evidence the Council considered its Section 19 duty before February 2023 despite it being aware Y was not attending school.
44. Statutory guidance says that schools need to be aware of their responsibilities when mental health issues are impacting on a child’s attendance and the local authority does not need to become involved in such arrangements unless it has reason to believe that the education being provided by the school is unsuitable.
45. In this case, Y was unable to access the various arrangements made by the school. There is no evidence the Council monitored Y’s situation to satisfy itself the education she was being provided was suitable and accessible. I have seen no evidence that it considered its Section 19 duty from April 2022 to February 2023 despite it being aware Y was not attending school. This is fault. The evidence shows nearly an entire academic year went by before the Council arranged alternative provision.
46. I asked the Council when it first became aware Y was not attending school due to medical reasons and the response I received was that the medical referral was received by the Council on 30 January 2023. However, as referenced above, the Council was aware of Y’s absence from school from April 2022. Therefore, it had a duty under section 19 to provide provision, whether it was for medical reasons or ‘otherwise’. The delay to arrange alternative provision for Y for nearly a whole academic year is fault.
47. The evidence shows the Council had a policy that was inflexible in that it required medical evidence from a consultant for a referral to be made for alternative provision. Once this requirement was removed from the policy, a medical referral was made, and the Council arranged alternative provision for Y.
48. I acknowledge the medical referral was actioned by the Council quickly once it had received it. But had the Council not had such an inflexible policy, a medical referral could have been made sooner and it is likely that Y would have received alternative provision sooner. Also, if the Council had acted quicker in considering its Section 19 duty, it would have been aware that the education she was receiving was not reasonably available and accessible and this also could have resulted in alternative provision being arranged sooner.
49. The Council told me that alternative provision would not have been deemed appropriate when it received evidence from Y’s GP about her health needs in April 2022 because the letter stated Y required support to attend school and it did not say she required medical provision other than at school. I am not persuaded by the Council’s argument because the decision maker with regards to alternative provision is the Council, not the GP. The Council should have considered Y’s individual circumstances along with the medical evidence to gain an understanding of her needs and the barriers to her receiving a suitable education.
50. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
51. As mentioned above, the medical referral was actioned by the Council once it had received it and a package of Blended Learning was arranged. Although Y had struggled to access all the alternative provision that had been arranged for her, I have seen evidence of the Council monitoring Y’s situation since February 2023. Therefore, in relation to alternative provision, I do not find fault with the Council’s actions from February 2023 onwards.

The Council’s complaint handling

52. I have also found evidence of fault with the Council’s response to Mrs X’s complaint because it failed to address her concerns about the inflexible policy and Y not being able to access the alternative provision. The Council refused to consider the complaint at Stage 2 because Mrs X had appealed the Council’s decision not to conduct an EHC needs assessment.
53. In response to Mrs X’s complaint about Y not being able to access provision, the Council advised her to raise it with the school and in its refusal to consider her complaint at Stage 2, the Council told her it was a matter for her to raise in support of her appeal at the SEND Tribunal.
54. The Council’s response to Mrs X’s complaint shows it did not look at the need for alternative provision separate to the refusal of the EHC needs assessment. It failed to address Mrs X’s concerns about Y being able to access only 2 hours of alternative provision per week. This is fault and it added to Mrs X’s frustration at an already difficult time.
55. Mrs X was frustrated with the Council not addressing her concerns and advising her that she should convey her concerns to the school and the SEND Tribunal instead. She was put to additional time and trouble reiterating and clarifying her complaint and subsequently bringing her complaint to the Ombudsman because she was not getting answers from the Council. I have made recommendations to remedy this injustice to Mrs X.

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Agreed action

56. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this final decision, it will:
• Apologise to Mrs X for the identified faults;
• Pay Mrs X £250 to acknowledge the distress, frustration and worry caused by the Council’s failings as identified above; and
• On behalf of Y, pay Mrs X a symbolic payment of £3000 for Y’s loss of education and support. This is a payment of approximately £1000 per term for the period April 2022 to March 2023. I recommend Mrs X uses this payment for the benefit of Y’s education.
57. The Council has also agreed that within three months of this final decision, it will review its alternative provision process and provide the Ombudsman with evidence that it complies with Section 19 of the Education Act 1996.
58. The Council will provide us with evidence it has complied with the above actions.

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Final decision

59. The Council was at fault for failing to consider its duty under Section 19 of the Education Act 1996 and this caused injustice to Mrs X and to Y. The Council has agreed to remedy the injustice caused. I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman