Summary: The Council failed to properly consider its duty to provide alternative education for Ms X’s child, Z. This led to Z missing out on alternative provision and caused Ms X uncertainty and frustration. In recognition of the injustice caused, the Council has agreed to apologise, pay Ms X £1,200 and carry out service improvements.

The complaint

1. Ms X complains the Council failed to provide her child, Z, with a suitable education when Z was not attending school for medical reasons.
2. Ms X said this has caused her and Z distress and caused Z to miss out on several months of education.

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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 question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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. We cannot investigate any matter in respect of which someone has exercised a right of appeal to a tribunal (s.26(6)(a) of the Local Government Act 1974.)
8. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
9. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
10. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
11. 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)
12. 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

13. Ms X complained that Z received unsuitable education from April 2023 and this has continued into mid-2024. From November 2023, Z had an Education, Health and Care (EHC) Plan for the first time.
14. I have investigated events from when they began in April 2023 to the date of Z’s final EHC Plan in November 2023. I have not investigated what happened after 29 November 2023 as from this point, any disagreement about the suitability of the provision proposed by the Council carried a right of appeal to the SEND Tribunal and Ms X used this appeal right. The restrictions on our powers to investigate in these circumstances are set out in the ‘role and powers’ section above, at paragraphs 6-8.
15. Ms X also complained the Council did not give Z’s GP enough notice of a meeting to go over Z’s education. We cannot say even on balance whether Z’s GP would have attended the meeting if not for this, we also cannot say whether the GP’s attendance would have changed the outcome of the meeting. Therefore in line with the law as set out in the ‘role and powers’ section above, at paragraph 10, I have decided not to investigate this complaint.

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How I considered this complaint

16. I considered the information provided by Ms X and the Council.
17. I considered the relevant law and guidance as set out below.
18. I considered our Guidance on Remedies.
19. I considered all comments made by Ms X and the Council on previous draft decisions before making a final decision.

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What I found

Law and guidance

Alternative provision

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. The provision generally should be full-time unless it is not in the child’s interests, in which case councils can arrange education on a part-time basis. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
21. 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)
22. The duty to arrange alternative provision does not automatically apply simply because there is an expert opinion that says the child is unfit to attend school. This is because the council may have a rational ground to disregard that opinion, having considered it. The council is the decision-maker in this situation.

Out of school due to health issues

23. Councils must have regard to statutory guidance, “Arranging education for children who cannot attend school because of health needs (Dec 2023)”. This makes it clear that Councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school.
24. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
25. While there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days.

Education other than at school (EOTAS)

26. Section 61 of the Children and Families Act allows councils to arrange for special educational provision to be made otherwise than in a school. We refer to this as EOTAS in this decision statement.

Education, Health and Care Plans

27. A young person with special educational needs may have an EHC Plan. This sets out their needs and what arrangements should be made to meet them.
28. Councils decide whether a young person needs an EHC Plan by carrying out an EHC needs assessment.
29. The EHC Plan 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. 
30. We cannot direct changes to the sections about education, or name a different educational setting. Only the SEND Tribunal can do that.

Child in Need

31. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
32. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.
33. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

What happened

Background

34. Z is of secondary school age and at the beginning of the period I have investigated, attended a mainstream school, School A.
35. Z has neurodevelopmental conditions as well as a skin condition. Z was not yet diagnosed with neurodevelopmental conditions in the earlier part of this complaint period.

Key events

36. In April 2023, Z stopped attending School A after they began presenting with severe fatigue. Prior to this Z regularly attended school. Ms X informed School A each day of Z’s absence. The school did not provide work for Z, due to them not being well.
37. After fifteen days of Z not attending school for this reason, Ms X contacted the Council. She said she was aware that after fifteen days of school absence due to medical reasons, councils are under a duty to provide alternative education if it decides a child can no longer access education in a school. The Council did not respond right away.
38. Ms X contacted the Council again in May, sending a letter from Z’s paediatric consultant. In June she contacted it again to request an EHC needs assessment for Z. The Council initially refused the request but changed its mind following mediation.
39. A multidisciplinary meeting was held in mid-June 2023. Ms X attended, along with representatives from School A and representatives from the Council. Z’s GP and other medical professionals were invited to attend but were not able to. However recent medical evidence was discussed at the meeting.
40. At the meeting the school said Z was asleep during some of the school’s visits to Z at home. Ms X asked if the visits home could be stopped until Z felt better but the Council said the visits should continue as the school had a duty of care.
41. Ms X said she felt Z needed to have no expectations placed on them while they were experiencing exhaustion and had removed routines such as bedtimes to help Z recover in their own time. Council representatives disagreed and said sometimes removing all boundaries and expectations could make the situation worse. At the end of the meeting it was agreed that:
• School A should visit Z weekly and use approaches rooted in managing emotionally-based school avoidance (EBSA) to try and reintroduce Z gradually back into education;
• Z was an appropriate candidate for additional support such as an app to assist with anxiety and getting back into education and the Council would send the school the details of the app and referral form;
• Z may benefit from forms of therapy, such as art therapy, but Z was not ready for this yet. The Council said it would consider the potential of art therapy; and
• The school would seek an update from Z’s GP regarding any medical issues that may be causing the fatigue and the Council would arrange another meeting to discuss this in a few weeks.
42. In July 2023, another multi-disciplinary meeting took place, this time under Child in Need proceedings. During this meeting;
• the Council said it had approved use of the specialist anxiety app and sent the school the details to make the referral;
• the Council said it approved a referral for art therapy and sent the school the details to make the referral;
• the school said they had been unable to engage with Z during several home visits before the summer break, as Z was asleep when they arrived. It was agreed the school would continue weekly visits from September when term started again;
• At the meeting Ms X discussed Z’s interests and hobbies and the professionals said school could try and engage Z more during visits by incorporating these;
• In the meantime, the Council said Z’s social worker would do some direct work with Z over the holidays. Professionals and Ms X also discussed what kind of routines at home may help Z in getting back into education.
43. The notes from June and July 2023 say that School A was visiting weekly and Z often was asleep or unable to engage. Ms X told the Ombudsman this is inaccurate and the school missed several weekly visits.
44. In mid-August another child in need meeting was held. The professionals reflected on the work the social worker had done with Z over the summer holidays around routines and anxiety. Regarding the app and art therapy referrals, the notes say that the school should send these referrals to the Council. The notes are not clear about the reasons for this, or if the referrals had been completed by the school.
45. The art therapy and app were not in place at the beginning of the September term, when Ms X asked for Z to be referred to a hospital school. Z’s consultant made the referral. In the referral the consultant noted that Z had received an autism diagnosis in September 2023 and had suffered from fatigue because of masking their difficulties.
46. As part of our enquiries, we asked the Council whether the anxiety app and the art therapy was ever put in place between June and September, as this was agreed in several meetings. The Council said:
47. “At this time, the (Council) had a commission with (a third party) to provide one of the following three forms of support – art therapy, (specialist anxiety app), or talking therapies – for young people who were showing signs of EBSA, to support with their engagement of attending school regularly…. At this time the talking therapy and art therapy was only being delivered during term-time in the child’s school building. Therefore once the forms were received (Z’s) case would have been heard at the September triage meeting and she would have been placed on the waiting list.”
48. Regarding why the specialist anxiety app was not put in place over the summer holidays, the Council told the Ombudsman that it was decided on the 21 September meeting that this referral should be paused because the app “would have supported (Z) to attend school”.
49. Another child in need meeting was held on 21 September 2023 attended by Ms X, the Council and the school. At this meeting:
• the Council said it had put the request for hospital school to the Council’s panel for approval;
• the Council reminded Ms X that the hospital school intervention was not long term and was designed to help Z return to their named school; and
• the notes record that ‘it was agreed’ to ‘pause’ the referrals for the app and the art therapy while awaiting the outcome of the hospital school referral.
50. In late September 2023, the Council’s panel declined to refer Z for a place at the hospital school. It said the reason for Z’s non-attendance did not appear to be health-related but was due to their SEND needs. It said that instead, Z required alternative provision to re-engage with education, including:
• implementation of the app previously discussed;
• the formerly discussed art therapy to be put in place;
• once the final EHC Plan was issued, for school to be supported with putting the additional provision from Section F of the Plan in place; and
• for EBSA strategies to be used.
51. The Council did not put these recommended provisions in place, as a week and a half later, Z was referred to the hospital school again. This time the referral was accepted based on Z’s skin condition.
52. On 20 October, Z was registered with the hospital school. The hospital school made attempts to offer provision but Z was not well enough to access this. The hospital school said in an email to the Council, dated 7 November, that it felt as though it would be unable to put in place any successful package of education for Z due to barriers to education caused by Z’s sleep issues. The Council did not put in place any alternative education in response to this.
53. The hospital school then informed the Council in late November that it intended to close Z to its service. Not long before this, Ms X also said the placement was unsuitable due to it only being short-term and linked to Z’s skin condition, which was beginning to improve anyway.
54. At a meeting in late November the Council considered again what education would be suitable for Z and discussed whether to arrange an EOTAS package.
55. The Council issued a final EHC Plan for Z on 29 November 2023. This was within the twenty weeks allowed by the statutory guidance. The final EHC Plan named School A in section I as the school Z should attend and said Z’s needs would be met in a mainstream setting. Ms X disagreed with the placement named in the Plan and lodged an appeal to the SEND Tribunal. Z did not attend School A.
56. Ms X complained to the Council. She said the Council had failed to properly consider its duty to provide Z with alternative provision, the work sent home by the school was inappropriate for Z and there had been several months where Z had received no education at all.
57. The Council responded to Ms X’s complaint at stage one of its complaints process in December 2023 and at stage two in January 2024. It said:
• in June 2023, at the first meeting to consider Z’s situation, there was “no evidence shared of a medical reason for (Z’s) absence or of them being medically unable to attend”. The Council said that was why it chose to manage Z’s absence through the “attendance process” and try to encourage Z back into school using EBSA strategies;
• it accepted that the work the school sent home “could have been more carefully differentiated” for Z;
• between 8 September – 20 October 2023, it accepted alternative provision was not made available when it should have been, due to professionals understanding that Z would start accessing the hospital school instead. The Council accepted fault and offered Ms X £600 to reflect this period of missed provision. The Council said from 20 October, provision was available from the hospital school which Ms X declined.
58. Ms X complained to the Ombudsman as she was unhappy with the Council’s response and the financial remedy offered.
59. Since Ms X complained, from April 2024 the Council put in place a different form of home tutoring for Z.

My findings

Education provision - April to July 2023

60. By mid-May 2023, Z had been absent from school for just over fifteen days and Ms X made the Council aware of this. The Council needed to consider its section 19 duty from this point and whether Z required alternative provision. The Council did not consider whether alternative provision was needed for Z until 19 June 2023, when a multi-disciplinary meeting was held.
61. The Council decided in this June meeting that based on the information it had so far, Z required an EBSA based approach to support them back into attending school and set out several actions to be taken by the school, including weekly visits and EBSA-based support. The Council’s meeting notes say Z was often asleep when school staff attended at home and did not engage with the EBSA-based strategies. Ms X said the school did not always carry out the weekly visits.
62. The Council’s delay of one month in considering its section 19 duty was fault and caused Ms X frustration. However on balance, I do not consider that it caused Z an injustice. This is because once the Council became involved from June and changes were made to how the school approached Z’s education, Z’s sleep issues prevented Z from engaging with this. On balance, even if not for the fault, Z would most likely not have been able to engage with this provision if it had been arranged any earlier.
63. Additionally, when the Council considered its section 19 duty, it properly considered the evidence available to it. It decided that it was appropriate to support Z to through measures to reintroduce them to school gradually. It considered its section 19 duty and decided that it did not owe one in this case. It kept its decision making under review through multi-disciplinary meetings including child in need meetings. These were decisions the Council was entitled to make and there was no fault in how it made its decisions. I consider that the Council would have reached the same decisions had it considered its section 19 duty earlier.
64. Regarding Ms X’s complaint that the school did not always attend weekly, the Council’s notes do not say that the school missed sessions, or that Ms X raised this as a concern and so it is unclear whether this was a matter brought to the Council’s attention at the time. This would be challenging to investigate further as the Ombudsman is restricted in its ability to investigate most complaints about the actions of schools. It would also be challenging to assess any injustice arising from this, as Z was mainly too exhausted to engage with visits and the records indicate that in the June meeting, Ms X asked for the visits to cease, rather than raising concerns that they had not happened. As a result of these issues, I have given weight to both accounts equally and have not been able to come to a finding on whether any visits were missed due to Council fault, or to any injustice that may have arisen from this.

Education provision - September to November 2023

65. From 8 September, Z no longer received the previously agreed visits and EBSA support from the school. The Council stopped this provision before Z had a place confirmed at the hospital school. This was fault and when the panel first declined a place at the hospital school, led to a period of missed provision for Z between 8 September and 20 October 2023. The Council has already accepted that it failed to put in place alternative provision during this period and has offered Ms X £600 in recognition of this, which I consider to be in line with the Ombudsman’s guidance on remedies.
66. The Council then said provision at the hospital school was available to Z from 20 October but Ms X declined it. This is not entirely accurate. The hospital school provision was trialled with Z from 20 October but it was unsuccessful. On 7 November, the hospital school told the Council it no longer felt it could put in place any successful package of education for Z. The Council did not put in place any alternative provision for Z when it received this information and did not consider this issue again until a meeting in late November, when it began to consider other options such as EOTAS. For the reasons explained in paragraphs 13 and 14, I have not investigated any complaint about provision from 29 November 2023 onwards.
67. Z’s sleep needs were significant during this time and made it challenging for the Council to provide suitable education that Z could engage with. However on balance, I think the Council should have done more to consider other forms of alternative provision for Z between 7 November (when it became aware the hospital school did not feel it would be able to put in place successful provision) and 29 November 2023 (the date of Z’s final EHC Plan).
68. It was open to the Council to consider other provisions which could be accessed more flexibly and/or at home. The Council did not arrange any provision for Z between 7 November and 29 November and failed to consider all options in response to their needs. This was fault. This led to a further period of missed provision for Z.

Additional support (art therapy and anxiety app)

69. The Council first asked School A to refer Z for the specialist anxiety app in June 2023 and the art therapy in July 2023. It noted at several meetings over the summer holidays that these referrals should be made but did not record whether they had been and if not, any reasons for this.
70. The specialist app provides anxiety support to young people in a games format which Ms X said would be helpful for Z in facing their fears around attending school. Given the nature and content of the app, on the balance of probabilities this should have been accessible to Z in the last weeks of the summer term, over the summer holidays and in the period before Z attended the hospital school on 20 October.
71. Regarding the art therapy, this was to be provided in term-time, on the premises at School A and was subject to a waiting list. This may not have been as accessible to Z as the app, due to Z’s ongoing and significant sleep issues during this time and we cannot know when this would have started due to it having a waiting list. The Council has also set out that Z would have accessed either the anxiety app, or the art therapy, and not both.
72. The Council let the progress of these referrals drift and this was fault. I cannot say even on balance that if not for the Council’s fault, Z would have accessed the app, or the art therapy, as putting it in place was partly dependent on the actions of the school. The Ombudsman cannot investigate most complaints about what happens in schools. However Ms X has been caused uncertainty by the Council’s fault and this is an injustice to her.

Approach to medical evidence

73. The Council said in its complaint responses to Ms X that it first chose to use an attendance and EBSA based approach with Z, rather than arranging alternative provision, because in the initial months (until September 2023) there was no medical evidence showing Z could not attend school for medical reasons. Ms X’s position is that, while there was no definitive explanation for Z’s condition at that point, it was clear that Z was genuinely ill, and that alternative provision should have been arranged.
74. I agree it was clear that Z was suffering from exhaustion and had serious problems with sleep. The Council’s complaint responses imply that it would only consider arranging alternative provision once there was a definitive medical explanation for Z’s condition. I consider this to be fault. There is no requirement for a definitive medical diagnosis before the Council may have to arrange provision under s.19. The way the Council expressed its position has caused Ms X uncertainty.
75. However, having reviewed the notes from the Council’s meetings during this time, I do not believe that the Council was simply waiting for a certain type of medical evidence before arranging alternative provision. It considered the available medical evidence at its review meetings but it also took account of Ms X’s views, evidence showing what Z could manage and feedback from the school and other providers. It considered what type of educational support was appropriate for Z and in the initial months, decided that they should be provided with support to help them gradually get back into education. This was a decision the Council was entitled to make and I do not find fault in how it made its decisions.

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Agreed action

76. Within one month of the date of the final decision, the Council has agreed to provide us with evidence that it has:
1. Apologised to Ms X for the injustice caused by the faults in this case;
2. Paid Ms X £600 to reflect the period of missed provision Z experienced between 8 September and 20 October 2023;
3. Paid Ms X £300 to reflect the period of missed provision Z experienced between 7 November and 29 November 2023;
4. Paid Ms X £150 to reflect the uncertainty caused by the Council’s lack of oversight of the referrals for additional support; and
5. Paid Ms X £150 to reflect the uncertainty caused to her by the way it expressed itself in its complaint response.
77. Within three months of the date of the final decision, the Council has agreed to:
1. provide us with evidence that it has reminded education staff that the Council should consider its section 19 duty to pupils from the fifteenth day of absence from school and clearly record its decision making at that time.
78. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
79. The Council should provide us with evidence it has complied with the above actions.

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Final decision

80. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay a financial remedy and carry out a service improvement.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman